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DR. BENOY IDICULA BABU Vs. DR. NISHA SAIRA BENOY | Kurian Joseph, J. - Leave granted. 2. This is a case where this court successfully experimented a new method of settlement, namely, court assisted mediation and conciliation. 3. The appellant(s) approached this Court aggrieved by the order dated 29.3.2017 of the High Court of Kerala at Ernakulam in Matrimonial Appeal Nos.737, 955 and 956 of 2015. 4. Finding that there is an element of settlement, we initially directed the parties for mediation. The Initial attempt was unsuccessful. Thereafter, this Court directed the parties to appear before this Court. We had long interaction with them. Finally, on the monetary aspect, a settlement has been arrived at, on the terms suggested by the Court. Still there were some minor disputes. 5. We sought the assistance of Mr. V. Shekhar, learned senior counsel and we are happy to note that the learned senior counsel was able to successfully mediate on the remaining disputes and the parties have reached a settlement. 6. The deed of settlement has been produced along with the I.A. The same is taken on record. The deed of settlement shall form part of the decree. In terms of the settlement, the parties have filed an application under Section 10-A of the Divorce Act of 1869. | 1[ds]5. We sought the assistance of Mr. V. Shekhar, learned senior counsel and we are happy to note that the learned senior counsel was able to successfully mediate on the remaining disputes and the parties have reached a settlement.6. The deed of settlement has been produced along with the I.A. The same is taken on record. The deed of settlement shall form part of the decree. In terms of the settlement, the parties have filed an application under Section 10-A of the Divorce Act of 1869. | 1 | 239 | 98 | ### 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:
Kurian Joseph, J. - Leave granted. 2. This is a case where this court successfully experimented a new method of settlement, namely, court assisted mediation and conciliation. 3. The appellant(s) approached this Court aggrieved by the order dated 29.3.2017 of the High Court of Kerala at Ernakulam in Matrimonial Appeal Nos.737, 955 and 956 of 2015. 4. Finding that there is an element of settlement, we initially directed the parties for mediation. The Initial attempt was unsuccessful. Thereafter, this Court directed the parties to appear before this Court. We had long interaction with them. Finally, on the monetary aspect, a settlement has been arrived at, on the terms suggested by the Court. Still there were some minor disputes. 5. We sought the assistance of Mr. V. Shekhar, learned senior counsel and we are happy to note that the learned senior counsel was able to successfully mediate on the remaining disputes and the parties have reached a settlement. 6. The deed of settlement has been produced along with the I.A. The same is taken on record. The deed of settlement shall form part of the decree. In terms of the settlement, the parties have filed an application under Section 10-A of the Divorce Act of 1869.
### Response:
1
### Explanation:
5. We sought the assistance of Mr. V. Shekhar, learned senior counsel and we are happy to note that the learned senior counsel was able to successfully mediate on the remaining disputes and the parties have reached a settlement.6. The deed of settlement has been produced along with the I.A. The same is taken on record. The deed of settlement shall form part of the decree. In terms of the settlement, the parties have filed an application under Section 10-A of the Divorce Act of 1869.
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Bhaskar Lal Sharma & Another Vs. Monica | marriage, wedding gifts, gifts subsequent to marriage etc. Para 470 deals with "Gifts to a maiden". Para 471 deals with "Wedding gifts" and it is stated therein that properties gifted at the time of marriage to the bride, whether by relations or strangers, either Adhiyagni or Adhyavahanika, are the brides stridhana. In para 481 at page 426, it is stated that ornaments presented to the bride by her husband or father constitute her Stridhana property. In para 487 dealing with "powers during coverture" it is stated that saudayika meaning the gift of affectionate kindred, includes both Yautaka or gifts received at the time of marriage as well as its negative Ayautaka. In respect of such property, whether given by gift or will she is the absolute owner and can deal with it in any way she likes. She may spend, sell or give it away at her own pleasure. 10. It is thus clear that the properties gifted to her before the marriage, at the time of marriage or at the time of giving farewell or thereafter are her stridhana properties. It is her absolute property with all rights to dispose at her own pleasure. He has no control over her stridhana property. Husband may use it during the time of his distress but nonetheless he has a moral obligation to restore the same or its value to his wife. Therefore, stridhana property does not become a joint property of the wife and the husband and the husband has no title or independent dominion over the property as owner thereof." It was furthermore held: "...The expression "entrustment" carries with it the implication that the person handing over any property or on whose behalf that property is handed over to another, continues to be its owner. Entrustment is not necessarily a term of law. It may have different implications in different contexts. In its most general significance, all its imports is handing over the possession for some purpose which may not imply the conferment of any proprietary right therein. The ownership or beneficial interest in the property in respect of which criminal breach of trust 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 offence of criminal breach of trust as defined in Section 405 of the IPC may be held to have been committed when a person who had been entrusted in any manner with the property or has otherwise dominion over it, dishonestly misappropriates it or converts it to his own use, or dishonestly uses it, or disposes it of, in violation of any direction of law prescribing the mode in which the trust is to be discharged, or of any lawful contract, express or implied, made by him touching such discharge, or willfully suffers any other person so to do.The essential ingredients for establishing an offence of criminal breach of trust as defined in Section 405 and punishable under Section 406 IPC with sentence for a period up to three years or with fine or with both, are:(i) entrusting any person with property or with any dominion over property;(ii) the person entrusted dishonestly misappropriating or converting to his own use that property; or dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract made touching the discharge of such trust.We have noticed hereto before that the correspondences exchanged between the spouses or by and between Vikas and his in-laws do not disclose any allegation which would amount to criminal misconduct on the part of the appellants.With the aforementioned backdrop of events, we may now notice the allegations made in the complaint petition filed by the respondent against the appellants.The only allegation which brings the case within the purview of Section 406 is that appellant No.2 had taken all the gifts/cash given by the invitees/guests. Technically, this allegation would attract the definition of breach of trust within the meaning of Section 405 of the IPC. Entrustment of some properties and/or dominion over them, if any, therefore, is attributed only against the appellant No.2. Other allegations made against the appellants are general in nature. Entrustment is said to have been made to the appellants and/or their son.No definite case of entrustment of any property has been made against the appellant No.1. He is only said to have given back to the complainants parent the entire cloth and jewelry. No demand was made by the respondent. Offering of Rs.25 lakhs for grant of divorce by mutual consent as compensation to the complainant, which is three times of the amount of the value of `Streedhana and/or amount spent by the complainants father per se does not constitute any offence of Section 406 of the Code. Any gift made to the bridegroom or his parents - whether in accordance with any custom or otherwise also would not constitute any offence under Section 406 of the Code. In State of Punjab vs. Pritam Chand & Ors. [2009 (2) SCALE 457 ], it has been held: "4. Section 406 IPC deals with punishment for criminal breach of trust. In a case under Section 406 the prosecution is required to prove that the accused was entrusted with property or he had dominion over the property and that the accused misappropriated or converted the property to his own use or used or disposed of the property or willfully suffered any person to dispose of the property dishonestly or in violation of any direction of law prescribing the mode in which the entrusted property should be dealt with or any legal contract express or implied which he had entered into relating to carrying out of the trust." {See also Harmanpreet Singh Ahluwalia & Ors. vs. State of Punjab & Ors.[2009 (7) SCALE 85 ] | 1[ds]We may place on record that at the instance of Monica several attempts have been made for reconciliation of matrimonial dispute between her and Vikas.We may also place on record that applications dated 9.5.2008 and 31.5.2008 respectively were also filed before this Court by the respondent for mediation Chandan Sharma, another son of the appellants came from Hong Kong to India for that purpose. Monica, however, insisted that appellant No.1 himself should come to India before her husband Vikas comes, which was not acceptable to the appellants as the reconciliation of the disputes was to take place between Monica and her husband Vikas.We may notice that even this Court in the transfer petition filed by Monica being Transfer Petition (Crl.) No. 258 of 2007 by its order dated 4.2.2008 impleaded Union of India through Ministry of External Affairs as a party and learned Additional Solicitor General appearing for Union of India made a statement before this Court on 11.4.2008 that Emergency Travel Documents would be made available to Vikas and upon his arrival a regular passport would be issued. Interpol/Ministry of External Affairs were directed not to enforce the Red Corner Notice against Vikas Sharma. Pursuant thereto Vikas traveled tocomplainant further did not stop there but also filed a complaint petition that she was cheated as Vikas and his parents did not disclose about his marital state of affairs in regard to the first marriage and/or the decree of divorce obtained by him. We do not intend to make any comment with regard to the correctness or otherwise of the statements made therein as the matter is not before us.We have, however, made note of the litigations filed between the parties in great detail. These litigations, if a holistic view is taken, depict a sad state of affairs, namely, that the respondent, on the one hand, intends to take all coercive measures to secure the presence of her husband and the appellants in India in various cases filed by her and, on the other hand, she had repeatedly been making attempts of conciliation. Endeavour/conciliations were made by the Delhi High Court as also this Court at various stages. The High Court, as indicated hereinbefore, in its order dated 6.10.2005 passed in Criminal Revision No. 452 of 2005 categorically held that the marriage has irretrievably broken down. Be that as it may, we are of the opinion that keeping in view the ingredients of the provisions of Sections 498A of the IPC, no case has been made out against the appellantsoffence of criminal breach of trust as defined in Section 405 of the IPC may be held to have been committed when a person who had been entrusted in any manner with the property or has otherwise dominion over it, dishonestly misappropriates it or converts it to his own use, or dishonestly uses it, or disposes it of, in violation of any direction of law prescribing the mode in which the trust is to be discharged, or of any lawful contract, express or implied, made by him touching such discharge, or willfully suffers any other person so to do.The essential ingredients for establishing an offence of criminal breach of trust as defined in Section 405 and punishable under Section 406 IPC with sentence for a period up to three years or with fine or with both, are:(i) entrusting any person with property or with any dominion over property;(ii) the person entrusted dishonestly misappropriating or converting to his own use that property; or dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract made touching the discharge of such trust.We have noticed hereto before that the correspondences exchanged between the spouses or by and between Vikas and hisdo not disclose any allegation which would amount to criminal misconduct on the part of the appellants.With the aforementioned backdrop of events, we may now notice the allegations made in the complaint petition filed by the respondent against the appellants.The only allegation which brings the case within the purview of Section 406 is that appellant No.2 had taken all the gifts/cash given by the invitees/guests. Technically, this allegation would attract the definition of breach of trust within the meaning of Section 405 of the IPC. Entrustment of some properties and/or dominion over them, if any, therefore, is attributed only against the appellant No.2. Other allegations made against the appellants are general in nature. Entrustment is said to have been made to the appellants and/or their son.No definite case of entrustment of any property has been made against the appellant No.1. He is only said to have given back to the complainants parent the entire cloth and jewelry. No demand was made by the respondent. Offering of Rs.25 lakhs for grant of divorce by mutual consent as compensation to the complainant, which is three times of the amount of the value of `Streedhana and/or amount spent by the complainants father per se does not constitute any offence of Section 406 of the Code. Any gift made to the bridegroom or his parentswhether in accordance with any custom or otherwise also would not constitute any offence under Section 406 of the Code. | 1 | 9,866 | 954 | ### 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:
marriage, wedding gifts, gifts subsequent to marriage etc. Para 470 deals with "Gifts to a maiden". Para 471 deals with "Wedding gifts" and it is stated therein that properties gifted at the time of marriage to the bride, whether by relations or strangers, either Adhiyagni or Adhyavahanika, are the brides stridhana. In para 481 at page 426, it is stated that ornaments presented to the bride by her husband or father constitute her Stridhana property. In para 487 dealing with "powers during coverture" it is stated that saudayika meaning the gift of affectionate kindred, includes both Yautaka or gifts received at the time of marriage as well as its negative Ayautaka. In respect of such property, whether given by gift or will she is the absolute owner and can deal with it in any way she likes. She may spend, sell or give it away at her own pleasure. 10. It is thus clear that the properties gifted to her before the marriage, at the time of marriage or at the time of giving farewell or thereafter are her stridhana properties. It is her absolute property with all rights to dispose at her own pleasure. He has no control over her stridhana property. Husband may use it during the time of his distress but nonetheless he has a moral obligation to restore the same or its value to his wife. Therefore, stridhana property does not become a joint property of the wife and the husband and the husband has no title or independent dominion over the property as owner thereof." It was furthermore held: "...The expression "entrustment" carries with it the implication that the person handing over any property or on whose behalf that property is handed over to another, continues to be its owner. Entrustment is not necessarily a term of law. It may have different implications in different contexts. In its most general significance, all its imports is handing over the possession for some purpose which may not imply the conferment of any proprietary right therein. The ownership or beneficial interest in the property in respect of which criminal breach of trust 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 offence of criminal breach of trust as defined in Section 405 of the IPC may be held to have been committed when a person who had been entrusted in any manner with the property or has otherwise dominion over it, dishonestly misappropriates it or converts it to his own use, or dishonestly uses it, or disposes it of, in violation of any direction of law prescribing the mode in which the trust is to be discharged, or of any lawful contract, express or implied, made by him touching such discharge, or willfully suffers any other person so to do.The essential ingredients for establishing an offence of criminal breach of trust as defined in Section 405 and punishable under Section 406 IPC with sentence for a period up to three years or with fine or with both, are:(i) entrusting any person with property or with any dominion over property;(ii) the person entrusted dishonestly misappropriating or converting to his own use that property; or dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract made touching the discharge of such trust.We have noticed hereto before that the correspondences exchanged between the spouses or by and between Vikas and his in-laws do not disclose any allegation which would amount to criminal misconduct on the part of the appellants.With the aforementioned backdrop of events, we may now notice the allegations made in the complaint petition filed by the respondent against the appellants.The only allegation which brings the case within the purview of Section 406 is that appellant No.2 had taken all the gifts/cash given by the invitees/guests. Technically, this allegation would attract the definition of breach of trust within the meaning of Section 405 of the IPC. Entrustment of some properties and/or dominion over them, if any, therefore, is attributed only against the appellant No.2. Other allegations made against the appellants are general in nature. Entrustment is said to have been made to the appellants and/or their son.No definite case of entrustment of any property has been made against the appellant No.1. He is only said to have given back to the complainants parent the entire cloth and jewelry. No demand was made by the respondent. Offering of Rs.25 lakhs for grant of divorce by mutual consent as compensation to the complainant, which is three times of the amount of the value of `Streedhana and/or amount spent by the complainants father per se does not constitute any offence of Section 406 of the Code. Any gift made to the bridegroom or his parents - whether in accordance with any custom or otherwise also would not constitute any offence under Section 406 of the Code. In State of Punjab vs. Pritam Chand & Ors. [2009 (2) SCALE 457 ], it has been held: "4. Section 406 IPC deals with punishment for criminal breach of trust. In a case under Section 406 the prosecution is required to prove that the accused was entrusted with property or he had dominion over the property and that the accused misappropriated or converted the property to his own use or used or disposed of the property or willfully suffered any person to dispose of the property dishonestly or in violation of any direction of law prescribing the mode in which the entrusted property should be dealt with or any legal contract express or implied which he had entered into relating to carrying out of the trust." {See also Harmanpreet Singh Ahluwalia & Ors. vs. State of Punjab & Ors.[2009 (7) SCALE 85 ]
### Response:
1
### Explanation:
We may place on record that at the instance of Monica several attempts have been made for reconciliation of matrimonial dispute between her and Vikas.We may also place on record that applications dated 9.5.2008 and 31.5.2008 respectively were also filed before this Court by the respondent for mediation Chandan Sharma, another son of the appellants came from Hong Kong to India for that purpose. Monica, however, insisted that appellant No.1 himself should come to India before her husband Vikas comes, which was not acceptable to the appellants as the reconciliation of the disputes was to take place between Monica and her husband Vikas.We may notice that even this Court in the transfer petition filed by Monica being Transfer Petition (Crl.) No. 258 of 2007 by its order dated 4.2.2008 impleaded Union of India through Ministry of External Affairs as a party and learned Additional Solicitor General appearing for Union of India made a statement before this Court on 11.4.2008 that Emergency Travel Documents would be made available to Vikas and upon his arrival a regular passport would be issued. Interpol/Ministry of External Affairs were directed not to enforce the Red Corner Notice against Vikas Sharma. Pursuant thereto Vikas traveled tocomplainant further did not stop there but also filed a complaint petition that she was cheated as Vikas and his parents did not disclose about his marital state of affairs in regard to the first marriage and/or the decree of divorce obtained by him. We do not intend to make any comment with regard to the correctness or otherwise of the statements made therein as the matter is not before us.We have, however, made note of the litigations filed between the parties in great detail. These litigations, if a holistic view is taken, depict a sad state of affairs, namely, that the respondent, on the one hand, intends to take all coercive measures to secure the presence of her husband and the appellants in India in various cases filed by her and, on the other hand, she had repeatedly been making attempts of conciliation. Endeavour/conciliations were made by the Delhi High Court as also this Court at various stages. The High Court, as indicated hereinbefore, in its order dated 6.10.2005 passed in Criminal Revision No. 452 of 2005 categorically held that the marriage has irretrievably broken down. Be that as it may, we are of the opinion that keeping in view the ingredients of the provisions of Sections 498A of the IPC, no case has been made out against the appellantsoffence of criminal breach of trust as defined in Section 405 of the IPC may be held to have been committed when a person who had been entrusted in any manner with the property or has otherwise dominion over it, dishonestly misappropriates it or converts it to his own use, or dishonestly uses it, or disposes it of, in violation of any direction of law prescribing the mode in which the trust is to be discharged, or of any lawful contract, express or implied, made by him touching such discharge, or willfully suffers any other person so to do.The essential ingredients for establishing an offence of criminal breach of trust as defined in Section 405 and punishable under Section 406 IPC with sentence for a period up to three years or with fine or with both, are:(i) entrusting any person with property or with any dominion over property;(ii) the person entrusted dishonestly misappropriating or converting to his own use that property; or dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract made touching the discharge of such trust.We have noticed hereto before that the correspondences exchanged between the spouses or by and between Vikas and hisdo not disclose any allegation which would amount to criminal misconduct on the part of the appellants.With the aforementioned backdrop of events, we may now notice the allegations made in the complaint petition filed by the respondent against the appellants.The only allegation which brings the case within the purview of Section 406 is that appellant No.2 had taken all the gifts/cash given by the invitees/guests. Technically, this allegation would attract the definition of breach of trust within the meaning of Section 405 of the IPC. Entrustment of some properties and/or dominion over them, if any, therefore, is attributed only against the appellant No.2. Other allegations made against the appellants are general in nature. Entrustment is said to have been made to the appellants and/or their son.No definite case of entrustment of any property has been made against the appellant No.1. He is only said to have given back to the complainants parent the entire cloth and jewelry. No demand was made by the respondent. Offering of Rs.25 lakhs for grant of divorce by mutual consent as compensation to the complainant, which is three times of the amount of the value of `Streedhana and/or amount spent by the complainants father per se does not constitute any offence of Section 406 of the Code. Any gift made to the bridegroom or his parentswhether in accordance with any custom or otherwise also would not constitute any offence under Section 406 of the Code.
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E.Bapanaiah Vs. K.S.Raju Etc | order, the company to make repayment of such deposit or part thereof forthwith or within such time and subject to such conditions as may be specified in the order: Provided that the Tribunal may before making any order under this sub-section give a reasonable opportunity of being heard to the company and the other persons interested in the matter. (10) Whoever fails to comply with any order made by the Tribunal under sub-section (9) shall be punishable with imprisonment which may extend to three years and shall also be liable to a fine of not less than rupees five hundred for every day during which such non-compliance continues. (Expression Tribunal was substituted in the above mentioned provisions vide Act No. 11 of 2003 in place of words Company Law Board) 24. During arguments it is stated before us by the learned counsel for the parties that the prosecution was also launched against the respondent K.S. Raju but he was discharged. However, Special Leave Petition is said to have been pending in said matter. We are of the view that the depositors cannot be left without remedy merely for the reason that prosecution could have been launched against the company. 25. Powers of the High Courts to punish for contempt including the powers to punish for contempt of itself flow from Article 215 of the Constitution of India. Section 10 of the Contempt of Courts Act, 1971 empowers the High Courts to punish contempts of its subordinate courts which reads as under: - 10. Power of High Court to punish contempts of subordinate courts. – Every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempts of courts subordinate to it as it has and exercises in respect of contempts of itself: Provided that no High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code (45 of 1860). 26. As to the question whether CLB is a court subordinate to High Court or not, in Canara Bank v. Nuclear Power Corporation of India Ltd. and others [1975 Supp (3) SCC 81], this Court has held that CLB in the proceedings before it under Section 111 of the Companies Act since performs curial functions, hence it is a court within the meaning of Section 9-A of Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992. In Sk. Mohammedbhikhan Hussainbhai v. The Manager Chandrabhanu Cinema [AIR 1986 Guj 209 ], the Gujarat High Court has taken the view that if the High Court is an appellate court of some authority under a statute, such authority can be deemed to be a subordinate court within the ambit of Contempt of Courts Act, 1971 and, therefore, the High Court can exercise powers of dealing with contempt of such authority provided the act of contempt was not punishable for offences under Indian Penal Code. In N. Venkata Swamy Naidu v. Sri Surya Teja Constructions Pvt. Ltd. and others [2008 CriLJ 227 ], High Court of Andhra Pradesh observed as under: - 28. Under Section 10F of the Companies Act 1956, any person aggrieved by any decision or order of the Company Law Board may file an appeal to the High Court, within sixty days from the date of communication of the decision or order of the Company Law Board, on any question of law arising out of such an order. The Company Law Board is thus judicially subordinate to the High Court and, even if its administrative control is held not to vest in the High Court under Article 235 of the Constitution of India, it would nonetheless be a Court subordinate to the High Court under Section 10 of the Contempt of Courts Act. 27. The present case relates to a civil contempt wherein an undertaking given to Company Law Board is breached. Normally, the general provisions made under the Contempt of Courts Act are not invoked by the High Courts for forcing a party to obey orders passed by its subordinate courts for the simple reason that there are provisions contained in Code of Civil Procedure, 1908 to get executed its orders and decrees. It is settled principle of law that where there are special law and general law, the provisions of special law would prevail over general law. As such, in normal circumstances a decree holder cannot take recourse of Contempt of Courts Act else it is sure to throw open a floodgate of litigation under contempt jurisdiction. It is not the object of the Contempt of Courts Act to make decree holders rush to the High Courts simply for the reason that the decree passed by the subordinate court is not obeyed. However, there is no such procedure prescribed to execute order of CLB particularly after proviso is added to Section 634A of the Companies Act, 1956, vide Companies (Second Amendment) Act, 2002. 28. Therefore, having considered submissions of learned counsel for the parties, and material on record, and further considering the relevant provisions of law and the cases referred above, and exercising powers under Article 136 read with Article 142 of the Constitution, we think it just and proper to interfere with the order passed by the Division Bench of the High Court whereby the Division Bench erroneously set aside the finding and sentence awarded by the learned single Judge against K.S. Raju. In our opinion, respondent K.S. Raju wilfully disobeyed the order of CLB and breached the undertaking given to CLB, and thereby committed Contempt of Court subordinate to High Court as such the Division Bench of the High Court has erred in law in allowing the Contempt Appeal No. 3 of 2007 filed by K.S. Raju and setting aside his conviction and sentence, recorded against him by the learned Single Judge in Contempt Case No. 915 of 2002. 29. | 1[ds]5. Brief facts of the case are that the present appellant, E. Bapanaiah, (one of the depositors who made deposits with NFL) filed the contempt petition under Section 12 read with Section 10 of the Contempt of Courts Act, 1971 for the alleged wilful disobedience of order dated 29.2.2000 and one dated 21.8.2001 passed by Company Law Board, Southern Region Bench, and for breach of undertakings/affidavits, including one filed by K.S. Raju (Promoter Director of NFL) before CLB and one given in Company Appeal No. 7 of 2001. It is stated by the present appellant that the respondent, K.S. Raju, was Promoter Director of M/s. Nagarjuna Finance Limited, Hyderabad (in short NFL). The said company, through its Directors, issued advertisement inviting deposits promising good returns on the deposits with attractive interest thereon, and collected the huge sum from the public. The present appellant deposited ?.40,00,000/- (? forty lakhs) hoping that the same would multiply to double within 45 months as projected in the advertisement. The said amount was deposited in eight fixed deposits of ?.5,00,000/- (? five lakhs) each for a period of 45 months on 20.7.1997 and was due for repayment on maturity on 28.4.2001. However, when the NFL failed to re-pay the sum to the depositors, an application (CP No. 35 of 2000) was filed under Section 58-A of the Companies Act, 1956 before the Company Law Board, Southern Region Bench, for framing the scheme of repayment of deposits in instalments within a period of 48 months. The Company Law Board (CLB), exercising its suo motu powers, allowed the time to NFL on the request of its directors to approve the scheme of repayment. During the pendency of such application the CLB ordered the Directors, including the Promoter Director K.S. Raju, to file affidavits giving undertaking to the CLB that they would abide by the scheme and pay off the amount due to depositors. On the assurance as given in the undertakings/affidavits filed by K.S. Raju, Promoter Director, and other Directors separately, the CLB passed order dated 29.2.2000. But the Promoter Director and its group companies filed Company Appeal Nos. 9 of 2001 and 7 of 2001 against the said order dated 29.2.2000 passed in CP No. 35 of 2000. In said appeals, on behalf of the Company an undertaking was given to pay half of first years entitlement of the present appellant by 20.4.2002. However, no amount was paid. As such, the contempt petition was filed by the present appellant before the High Court for violation of the orders of the Company Law Board6. According to the appellant, after the scheme was approved, K.S. Raju, Promoter Director of NFL, started pleading that there was change in the management of NFL, and sought to be relieved from his liability as the Promoter Director of NFL, its group companies and from the undertaking given by him to the CLB. The CLB declined to relieve the Promoter Director K.S. Raju from the undertaking given by him and it was directed that he should make the repayment as per the repayment scheme. The Company Appeals were dismissed by the High Court on 3.1.2002. NFL and its Promoter Director failed to comply with the order of the Company Law Board even after dismissal of the Company Appeals. K.S. Raju, the then Promoter Director, was responsible for issuance of the advertisement inviting deposits from the public and failed to repay the deposits as per the undertaking given by him on behalf of the Company. It is further alleged by the present appellant in the Contempt Petition before the High Court that K.S. Raju kept on evading his liability, and attempted to shirk the responsibility by taking plea that he had resigned from the directorship7. A counter affidavit was filed on behalf of K.S. Raju, Promoter Director of NFL, in February, 2003 before the High Court which discloses that the said respondent disputed and denied the averments made in the Contempt Petition. He pleaded that he had all respect for the Court and had no intention to commit the contempt of the court. He further pleaded that long back he had left to function as Managing Director of NFL. It is further stated by him that he is neither in a position to exercise any control over the Company nor responsible to make repayment of the deposits made in favour of NFL. It was further submitted by him before the learned single Judge of the High Court that in the order dated 29.2.2000 passed by the CLB, the Board did not rely on the assurance or undertaking given by the parties. Only the Managing Director was directed to file the undertaking, as such the undertaking/affidavit given by the respondent K.S. Raju was not the basis of the order dated 29.2.2000. As such it was contended that there was no contempt of CLB or the Court. It was further pleaded that an agreement was entered into between one M/s. Mahalakshmi Factorial Services Limited (for short MFSL) and NFL whereby the control of NFL was handed over to MFSL, and N. Selvaraj (respondent No. 2 in the Contempt Petition) was nominated as the Chief Executive Officer to look after the affairs of NFL. Lastly, it was pleaded by respondent K.S. Raju that assuming that he had given undertaking/affidavit on which CLB passed the order said to have been disobeyed, there is no personal liability on said respondent to repay the amount in question8. In the counter affidavits filed on behalf of NFL (through G. Venkatapathi, Executive Director) and N. Selvaraj (respondent No. 2 in the Contempt Petition) it was disclosed that Sridhar Chary, Managing Director, functioning for over a decade of NFL, was none else than the nominee of K.S. Raju, Promoter Director. It was also pleaded on behalf of NFL that out of Paid-up Capital of ?.26.32 crores group companies were holding ?.16.16 crores, i.e., approximately 61%. It was also stated by NFL in its counter affidavit before the High Court that under Articles 104 and 140 of the Articles of Association K.S. Raju had power to appoint the Managing Director and other three Directors as his nominees. N. Selvaraj (respondent No. 2 in the Contempt petition) denied that he was nominee of MFSL. He further pleaded that there was no change in the management of NFL during his tenure as Managing Director, and he further told that entire control remained with K.S. Raju and his nominees. The Executive Director, G. Venkatapathi of NFL, filed additional counter affidavit in which it is clearly stated that the CLB passed the order on the basis of the undertakings and affidavits filed by the Promoter Director and the group companies. The counter affidavits further revealed that on special audit made in April, 2002, several irregularities were found to have been committed by the Management resulting in failure of recoveries in respect of loans advanced to various companies who were not traceable on the addresses given9. An additional counter affidavit was filed by K.S. Raju, Promoter Director, who was contesting the contempt petition with other two respondents, in which he alleged that the representatives of MFSL have engineered and secured the audit report to save the Directors of said company10. Learned Single Judge, after hearing the parties at length, came to the conclusion that NFL and its Promoter Director, K.S. Raju, are guilty of contempt of court. Paragraphs 134 and 135 of the judgment and order dated 3.8.2007 passed by the learned Single Judge read as under: -134. The 1st and 3rd respondents/contemnors are found guilty and liable to be convicted under Section 12 of the Contempt of Courts Act. Accordingly, the 1st respondent as well as the other directors of the 3rd respondent company are convicted and sentenced to suffer simple imprisonment for a period of six months, together with imposition of fine of Rs.2,000/- (Rupees two thousand only). The 1st respondent as well as other directors of the 3rd respondent shall be detained in Civil Prison for the period of imprisonment as ordered above135. Accordingly, C.C. is allowed11. Aggrieved by the order dated 3.8.2007 passed by the learned single Judge in Contempt Case No. 915 of 2002 respondent K.S. Raju, Promoter Director, appears to have filed Contempt Appeal No. 3 of 2007 before the Division Bench of the High Court. His appeal was taken up along with the appeals of the other Directors and disposed of vide impugned order dated 22.8.2008 whereby the appeals of all the Directors, including that of K.S. Raju, were allowed. Hence these appeals before us by the depositor E. Bapanaiah(We have already observed in the beginning of this judgment that since the other Directors were neither impleaded by name nor had an opportunity to defend themselves, as such setting aside of their conviction and sentence by the Division Bench of the High Court in their appeals, requires no interference. As such further discussion is confined to the issue of allowing of K.S. Raju by the Division Bench of the High Court.)The present case relates to a civil contempt wherein an undertaking given to Company Law Board is breached. Normally, the general provisions made under the Contempt of Courts Act are not invoked by the High Courts for forcing a party to obey orders passed by its subordinate courts for the simple reason that there are provisions contained in Code of Civil Procedure, 1908 to get executed its orders and decrees. It is settled principle of law that where there are special law and general law, the provisions of special law would prevail over general law. As such, in normal circumstances a decree holder cannot take recourse of Contempt of Courts Act else it is sure to throw open a floodgate of litigation under contempt jurisdiction. It is not the object of the Contempt of Courts Act to make decree holders rush to the High Courts simply for the reason that the decree passed by the subordinate court is not obeyed. However, there is no such procedure prescribed to execute order of CLB particularly after proviso is added to Section 634A of the Companies Act, 1956, vide Companies (Second Amendment) Act, 2002Therefore, having considered submissions of learned counsel for the parties, and material on record, and further considering the relevant provisions of law and the cases referred above, and exercising powers under Article 136 read with Article 142 of the Constitution, we think it just and proper to interfere with the order passed by the Division Bench of the High Court whereby the Division Bench erroneously set aside the finding and sentence awarded by the learned single Judge against K.S. Raju. In our opinion, respondent K.S. Raju wilfully disobeyed the order of CLB and breached the undertaking given to CLB, and thereby committed Contempt of Court subordinate to High Court as such the Division Bench of the High Court has erred in law in allowing the Contempt Appeal No. 3 of 2007 filed by K.S. Raju and setting aside his conviction and sentence, recorded against him by the learned Single Judge in Contempt Case No. 915 of 2002 | 1 | 5,941 | 2,065 | ### 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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order, the company to make repayment of such deposit or part thereof forthwith or within such time and subject to such conditions as may be specified in the order: Provided that the Tribunal may before making any order under this sub-section give a reasonable opportunity of being heard to the company and the other persons interested in the matter. (10) Whoever fails to comply with any order made by the Tribunal under sub-section (9) shall be punishable with imprisonment which may extend to three years and shall also be liable to a fine of not less than rupees five hundred for every day during which such non-compliance continues. (Expression Tribunal was substituted in the above mentioned provisions vide Act No. 11 of 2003 in place of words Company Law Board) 24. During arguments it is stated before us by the learned counsel for the parties that the prosecution was also launched against the respondent K.S. Raju but he was discharged. However, Special Leave Petition is said to have been pending in said matter. We are of the view that the depositors cannot be left without remedy merely for the reason that prosecution could have been launched against the company. 25. Powers of the High Courts to punish for contempt including the powers to punish for contempt of itself flow from Article 215 of the Constitution of India. Section 10 of the Contempt of Courts Act, 1971 empowers the High Courts to punish contempts of its subordinate courts which reads as under: - 10. Power of High Court to punish contempts of subordinate courts. – Every High Court shall have and exercise the same jurisdiction, powers and authority, in accordance with the same procedure and practice, in respect of contempts of courts subordinate to it as it has and exercises in respect of contempts of itself: Provided that no High Court shall take cognizance of a contempt alleged to have been committed in respect of a court subordinate to it where such contempt is an offence punishable under the Indian Penal Code (45 of 1860). 26. As to the question whether CLB is a court subordinate to High Court or not, in Canara Bank v. Nuclear Power Corporation of India Ltd. and others [1975 Supp (3) SCC 81], this Court has held that CLB in the proceedings before it under Section 111 of the Companies Act since performs curial functions, hence it is a court within the meaning of Section 9-A of Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992. In Sk. Mohammedbhikhan Hussainbhai v. The Manager Chandrabhanu Cinema [AIR 1986 Guj 209 ], the Gujarat High Court has taken the view that if the High Court is an appellate court of some authority under a statute, such authority can be deemed to be a subordinate court within the ambit of Contempt of Courts Act, 1971 and, therefore, the High Court can exercise powers of dealing with contempt of such authority provided the act of contempt was not punishable for offences under Indian Penal Code. In N. Venkata Swamy Naidu v. Sri Surya Teja Constructions Pvt. Ltd. and others [2008 CriLJ 227 ], High Court of Andhra Pradesh observed as under: - 28. Under Section 10F of the Companies Act 1956, any person aggrieved by any decision or order of the Company Law Board may file an appeal to the High Court, within sixty days from the date of communication of the decision or order of the Company Law Board, on any question of law arising out of such an order. The Company Law Board is thus judicially subordinate to the High Court and, even if its administrative control is held not to vest in the High Court under Article 235 of the Constitution of India, it would nonetheless be a Court subordinate to the High Court under Section 10 of the Contempt of Courts Act. 27. The present case relates to a civil contempt wherein an undertaking given to Company Law Board is breached. Normally, the general provisions made under the Contempt of Courts Act are not invoked by the High Courts for forcing a party to obey orders passed by its subordinate courts for the simple reason that there are provisions contained in Code of Civil Procedure, 1908 to get executed its orders and decrees. It is settled principle of law that where there are special law and general law, the provisions of special law would prevail over general law. As such, in normal circumstances a decree holder cannot take recourse of Contempt of Courts Act else it is sure to throw open a floodgate of litigation under contempt jurisdiction. It is not the object of the Contempt of Courts Act to make decree holders rush to the High Courts simply for the reason that the decree passed by the subordinate court is not obeyed. However, there is no such procedure prescribed to execute order of CLB particularly after proviso is added to Section 634A of the Companies Act, 1956, vide Companies (Second Amendment) Act, 2002. 28. Therefore, having considered submissions of learned counsel for the parties, and material on record, and further considering the relevant provisions of law and the cases referred above, and exercising powers under Article 136 read with Article 142 of the Constitution, we think it just and proper to interfere with the order passed by the Division Bench of the High Court whereby the Division Bench erroneously set aside the finding and sentence awarded by the learned single Judge against K.S. Raju. In our opinion, respondent K.S. Raju wilfully disobeyed the order of CLB and breached the undertaking given to CLB, and thereby committed Contempt of Court subordinate to High Court as such the Division Bench of the High Court has erred in law in allowing the Contempt Appeal No. 3 of 2007 filed by K.S. Raju and setting aside his conviction and sentence, recorded against him by the learned Single Judge in Contempt Case No. 915 of 2002. 29.
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Selvaraj (respondent No. 2 in the Contempt Petition) was nominated as the Chief Executive Officer to look after the affairs of NFL. Lastly, it was pleaded by respondent K.S. Raju that assuming that he had given undertaking/affidavit on which CLB passed the order said to have been disobeyed, there is no personal liability on said respondent to repay the amount in question8. In the counter affidavits filed on behalf of NFL (through G. Venkatapathi, Executive Director) and N. Selvaraj (respondent No. 2 in the Contempt Petition) it was disclosed that Sridhar Chary, Managing Director, functioning for over a decade of NFL, was none else than the nominee of K.S. Raju, Promoter Director. It was also pleaded on behalf of NFL that out of Paid-up Capital of ?.26.32 crores group companies were holding ?.16.16 crores, i.e., approximately 61%. It was also stated by NFL in its counter affidavit before the High Court that under Articles 104 and 140 of the Articles of Association K.S. Raju had power to appoint the Managing Director and other three Directors as his nominees. N. Selvaraj (respondent No. 2 in the Contempt petition) denied that he was nominee of MFSL. He further pleaded that there was no change in the management of NFL during his tenure as Managing Director, and he further told that entire control remained with K.S. Raju and his nominees. The Executive Director, G. Venkatapathi of NFL, filed additional counter affidavit in which it is clearly stated that the CLB passed the order on the basis of the undertakings and affidavits filed by the Promoter Director and the group companies. The counter affidavits further revealed that on special audit made in April, 2002, several irregularities were found to have been committed by the Management resulting in failure of recoveries in respect of loans advanced to various companies who were not traceable on the addresses given9. An additional counter affidavit was filed by K.S. Raju, Promoter Director, who was contesting the contempt petition with other two respondents, in which he alleged that the representatives of MFSL have engineered and secured the audit report to save the Directors of said company10. Learned Single Judge, after hearing the parties at length, came to the conclusion that NFL and its Promoter Director, K.S. Raju, are guilty of contempt of court. Paragraphs 134 and 135 of the judgment and order dated 3.8.2007 passed by the learned Single Judge read as under: -134. The 1st and 3rd respondents/contemnors are found guilty and liable to be convicted under Section 12 of the Contempt of Courts Act. Accordingly, the 1st respondent as well as the other directors of the 3rd respondent company are convicted and sentenced to suffer simple imprisonment for a period of six months, together with imposition of fine of Rs.2,000/- (Rupees two thousand only). The 1st respondent as well as other directors of the 3rd respondent shall be detained in Civil Prison for the period of imprisonment as ordered above135. Accordingly, C.C. is allowed11. Aggrieved by the order dated 3.8.2007 passed by the learned single Judge in Contempt Case No. 915 of 2002 respondent K.S. Raju, Promoter Director, appears to have filed Contempt Appeal No. 3 of 2007 before the Division Bench of the High Court. His appeal was taken up along with the appeals of the other Directors and disposed of vide impugned order dated 22.8.2008 whereby the appeals of all the Directors, including that of K.S. Raju, were allowed. Hence these appeals before us by the depositor E. Bapanaiah(We have already observed in the beginning of this judgment that since the other Directors were neither impleaded by name nor had an opportunity to defend themselves, as such setting aside of their conviction and sentence by the Division Bench of the High Court in their appeals, requires no interference. As such further discussion is confined to the issue of allowing of K.S. Raju by the Division Bench of the High Court.)The present case relates to a civil contempt wherein an undertaking given to Company Law Board is breached. Normally, the general provisions made under the Contempt of Courts Act are not invoked by the High Courts for forcing a party to obey orders passed by its subordinate courts for the simple reason that there are provisions contained in Code of Civil Procedure, 1908 to get executed its orders and decrees. It is settled principle of law that where there are special law and general law, the provisions of special law would prevail over general law. As such, in normal circumstances a decree holder cannot take recourse of Contempt of Courts Act else it is sure to throw open a floodgate of litigation under contempt jurisdiction. It is not the object of the Contempt of Courts Act to make decree holders rush to the High Courts simply for the reason that the decree passed by the subordinate court is not obeyed. However, there is no such procedure prescribed to execute order of CLB particularly after proviso is added to Section 634A of the Companies Act, 1956, vide Companies (Second Amendment) Act, 2002Therefore, having considered submissions of learned counsel for the parties, and material on record, and further considering the relevant provisions of law and the cases referred above, and exercising powers under Article 136 read with Article 142 of the Constitution, we think it just and proper to interfere with the order passed by the Division Bench of the High Court whereby the Division Bench erroneously set aside the finding and sentence awarded by the learned single Judge against K.S. Raju. In our opinion, respondent K.S. Raju wilfully disobeyed the order of CLB and breached the undertaking given to CLB, and thereby committed Contempt of Court subordinate to High Court as such the Division Bench of the High Court has erred in law in allowing the Contempt Appeal No. 3 of 2007 filed by K.S. Raju and setting aside his conviction and sentence, recorded against him by the learned Single Judge in Contempt Case No. 915 of 2002
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THE STATE OF RAJASTHAN Vs. TRILOK RAM | its replacement by the new provision. As regards repeal of a statute the law is thus stated in Sutherland on Statutory Construction:?The effect of the repeal of a statute where neither a saving clause nor a general saving statute exists to prescribe the governing rule for the effect of the repeal, is to destroy the effectiveness of the repealed act in futuro and to divest the right to proceed under the statute, which, except as to proceedings past and closed, is considered as if it had never existed.? (Vol. I, para 2042, pp. 522-523)10. Similarly in Crawfords Interpretation of Laws it has been said:?Effect of Repeal, Generally.— In the first place, an outright repeal will destroy the effectiveness of the repealed act in futuro and operate to destroy inchoate rights dependent on it, as a general rule. In many cases, however, where statutes are repealed, they continue to be the law of the period during which they were in force with reference to numerous matters.? (pp. 640-641) 11. The observations of Lord Tenterden and Tindal, C.J. referred in the above- mentioned passages in Craies on Statute Law also indicate that the principle that on repeal a statute is obliterated is subject to the exception that it exists in respect of transactions past and closed. To the same effect is the law laid down by this Court. (See: Qudrat Ullah v. Municipal Board [(1974) 1 SCC 202 : (1974) 2 SCR 530 ] , SCR at p. 539) 12. This means that as a result of repeal of a statute the statute as repealed ceases to exist with effect from the date of such repeal but the repeal does not affect the previous operation of the law which has been repealed during the period it was operative prior to the date of such repeal . (emphasis supplied)18. Therefore, when a substitution was carried out initially on 28.6.2006, all the provisions of clause (3) of Rule 266, as it stood, suffered a repeal and in its place a new avtaar was born. It must be at once remembered that the proviso was inserted on 1.7.2004 in clause (3) of Rule 266. Therefore, when the rule making authority substituted clause (3) of Rule 266 by the amendment dated 28.6.2006, the inevitable result would be the repeal of entire clause (3) of Rule 266 including the proviso. It is crucial to bear in mind that the amendment to Rule 266 (3) by substitution did not expressly save the proviso. It is equally important to be not oblivious to the fact that the proviso was an integral part of clause(3) of Rule 266. Since Rule 266(3) came to be substituted, having regard to the legal consequences of the same, the proviso could not survive. 19. The fact that the proviso had ceased to exist as a result of the substitution dated 28.6.2006 is unambiguously demonstrated, by the fact the rule making authority chose to step in by issuing notification dated 29.11.2006 by inserting again the proviso to Rule 266(3). It read as follows:?Provided that the person who has appeared or is appearing in the B.Ed./ B.S.T.C./DSE/B.Ed.(Special Education) Examination shall be eligible to apply for the post of primary and upper primary school teachers (General Education/ Special Education) but he shall have to submit proof of having acquired the said educational qualification to the Rajasthan Public Service Commission before the declaration of result of the competitive examination.?It is by a subsequent amendment that the words ‘District Establishment Committee? was inserted in place of Rajasthan Public Service Commission. 20. Rule 266 (3) as was brought into life by the amending Act dated 28.6.2006 continued to hold the field till it suffered substitution by notification dated 11.5.2011. Apparently, consequent upon the need to change the qualifications, Rule 266(3) came to be substituted. However, it is not in dispute that after the substitution dated 11.5.2011, the proviso relied upon by the respondent has not been brought back into existence as was done in the year 2006. 21. We would think whatever ambiguity there may have been as to the actual effect of the substitution, it stands removed by the legislative history of clause (3) of Rule 266 including the proviso therein. The legislative intention is clear that when rule maker substituted the provisions of clause (3), it intended that the entirety of clause (3) would stand obliterated as indeed is the effect of a repeal and a new set of provisions taking its place. It is on this understanding that the rule making authority, when it intended that the proviso must govern, it expressly did so, and it issued the notification dated 29.11.2006. Admittedly after 11.5.2011, the proviso has not been brought back to life. Apparently, the notification dated 29.11.2006 bringing the proviso back to life after the substitution of clause (3) to Rule 266 in 2006 was not brought to the notice of the High Court. 22. As far as the Circular dated 29.2.2012 relied upon by the respondent is concerned, it related to the advertisement issued in 2012 though legally the proviso to Rule 266(3) was non-existent. For whatever reasons it may have been, the order came to be issued extending the benefit of the proviso but after changing the condition in the advertisement. It cannot advance the case of the respondent who applied pursuant to a later advertisement dated 11.8.2013 wherein the requirement as to possession of qualifications as on the last date is clearly indicated. As far as the advertisement with which we are concerned which is of the year 2013, the Circular dated 29.2.2012 cannot be pressed into service by the respondent both in law and on facts. 23. The candidates must possess the qualifications on the last date when applying under the advertisement when it is so provided. In view of our finding that the proviso had ceased to exist after substitution of Rule 266(3) by notification dated 11.5.2011, there can be no question of the advertisement being opposed to the statutory rule. | 1[ds]4. In short, if the proviso held the field, the respondent would become eligible and qualified for selection and appointment based on merit. If the proviso on the other hand was not available, the respondent would not be eligible for the reason that as contended by the appellants, as on the last date for filing application the respondent had admittedly not passed the B.S.T.C. examination. The respondent had actually appeared for the examination and taking shelter under the proviso, the respondent claimed to be qualified on the terms thereof. The High Court after referring to the amendment dated 11.5.2011 to clause (3) of Rule 266, dwelt upon the purpose of a proviso. The Court adverted to case law on the point. It was found that there is no rule that the proviso must always be restricted to the ambit of the main provision. Occasionally in a statute, it was reasoned a proviso may be unrelated to the subjecthe preceding section or contains matter extraneous to that section. Under such circumstances, it was reasoned by the High Court that it would have to be interpreted as a substantive provision dealing independently with the matter comprised therein and not as qualifying the main and preceding section. The academic qualifications in clause (3) of Rule 266, it was found, were neither expanded nor qualified by the proviso. The proviso dealt with a clearly different area, namely, the time in which the eligibility prescribed under the Rules had to be attained. The amendment to sub-Rule (3) regarding academic qualifications was necessitated on account of subsequent legislation. Even after sub- rule (3) was substituted by amendment dated 11.5.2011, the proviso continued to hold the field. It is found that in such circumstances the condition in the advertisement being contrary to the proviso it would be illegal for the reason that an executive instruction cannot supplant the rule. The writ appeals were allowed. Petitioners were found entitled to benefits of employment in the light of their merit position except for back wages.The High Court has taken the view that when the substitution was effected on 11.5.2011, all that happened was one set of qualifications were replaced by another set of qualifications. The domain of clause (3) of Rule 266 was the declaration as to the qualifications to be possessed by the candidates for appointment as teachers at different levels. The proviso which was inserted on 1.7.2004 did not add to or take away from the qualifications which were declared in the main provision. All that the proviso purported to achieve was to give an opportunity to those candidates who had not acquired the qualifications as on the last date for making application but who had appeared for the concerned examination, to apply for the post. Thus, the proviso was indeed a beneficial provision as it provided a window of opportunity to those while not being qualified as such, were in the process of acquiring qualification by having appeared in the examination. This is no doubt subject to the conditions in the proviso.We do agree with the High Court and with the learned counsel for the respondent that the proviso was intended to have a different area of operation from the main provision whose function was only to enunciate the requisite qualifications.The argument also is that in the year 2006 also when the new set of qualifications was ushered in, it was facilitated by the substitution of clause (3) of Rule 266 of the Rules. Therefore, the contention is, when qualifications changed as a result of NCTE stipulating new qualifications, by substituting the existing qualifications contained in Rule 266(3), the rule making authority complied with the requirement of law. This has nothing to do with the continued availability of the beneficial provisions of the proviso.We are in this case concerned with the effect of amending Act which brought about the substitution of a provision. An amendment which brings about substitution of a provision essentially does two things. In the first place, the provision which is substituted undergoes a repeal. At the same time, there is a re-enactment through the newly inserted provisions.Therefore, when a substitution was carried out initially on 28.6.2006, all the provisions of clause (3) of Rule 266, as it stood, suffered a repeal and in its place a new avtaar was born. It must be at once remembered that the proviso was insertedin clause (3) of Rule 266. Therefore, when the rule making authority substituted clause (3) of Rule 266 by the amendment dated 28.6.2006, the inevitable result would be the repeal of entire clause (3) of Rule 266 including the proviso. It is crucial to bear in mind that the amendment to Rule 266 (3) by substitution did not expressly save the proviso. It is equally important to be not oblivious to the fact that the proviso was an integral part of clause(3) of Rule 266. Since Rule 266(3) came to be substituted, having regard to the legal consequences of the same, the proviso could not survive.The fact that the proviso had ceased to exist as a result of the substitution dated 28.6.2006 is unambiguously demonstrated, by the fact the rule making authority chose to step in by issuing notification dated 29.11.2006 by inserting again the proviso to Ruleded that the person who has appeared or is appearing in the B.Ed./ B.S.T.C./DSE/B.Ed.(Special Education) Examination shall be eligible to apply for the post of primary and upper primary school teachers (General Education/ Special Education) but he shall have to submit proof of having acquired the said educational qualification to the Rajasthan Public Service Commission before the declaration of result of the competitiveis by a subsequent amendment that the words ‘District Establishment Committee? was inserted in place of Rajasthan Public Service Commission.Rule 266 (3) as was brought into life by the amending Act dated 28.6.2006 continued to hold the field till it suffered substitution by notification dated 11.5.2011. Apparently, consequent upon the need to change the qualifications, Rule 266(3) came to be substituted. However, it is not in dispute that after the substitution dated 11.5.2011, the proviso relied upon by the respondent has not been brought back into existence as was done in the year 2006.We would think whatever ambiguity there may have been as to the actual effect of the substitution, it stands removed by the legislative history of clause (3) of Rule 266 including the proviso therein. The legislative intention is clear that when rule maker substituted the provisions of clause (3), it intended that the entirety of clause (3) would stand obliterated as indeed is the effect of a repeal and a new set of provisions taking its place. It is on this understanding that the rule making authority, when it intended that the proviso must govern, it expressly did so, and it issued the notification dated 29.11.2006. Admittedly after 11.5.2011, the proviso has not been brought back to life. Apparently, the notification dated 29.11.2006 bringing the proviso back to life after the substitution of clause (3) to Rule 266 in 2006 was not brought to the notice of the High Court.As far as the Circular dated 29.2.2012 relied upon by the respondent is concerned, it related to the advertisement issued in 2012 though legally the proviso to Rule 266(3) was non-existent. For whatever reasons it may have been, the order came to be issued extending the benefit of the proviso but after changing the condition in the advertisement. It cannot advance the case of the respondent who applied pursuant to a later advertisement dated 11.8.2013 wherein the requirement as to possession of qualifications as on the last date is clearly indicated. As far as the advertisement with which we are concerned which is of the year 2013, the Circular dated 29.2.2012 cannot be pressed into service by the respondent both in law and on facts.The candidates must possess the qualifications on the last date when applying under the advertisement when it is so provided. In view of our finding that the proviso had ceased to exist after substitution of Rule 266(3) by notification dated 11.5.2011, there can be no question of the advertisement being opposed to the statutory rule. | 1 | 5,034 | 1,513 | ### Instruction:
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its replacement by the new provision. As regards repeal of a statute the law is thus stated in Sutherland on Statutory Construction:?The effect of the repeal of a statute where neither a saving clause nor a general saving statute exists to prescribe the governing rule for the effect of the repeal, is to destroy the effectiveness of the repealed act in futuro and to divest the right to proceed under the statute, which, except as to proceedings past and closed, is considered as if it had never existed.? (Vol. I, para 2042, pp. 522-523)10. Similarly in Crawfords Interpretation of Laws it has been said:?Effect of Repeal, Generally.— In the first place, an outright repeal will destroy the effectiveness of the repealed act in futuro and operate to destroy inchoate rights dependent on it, as a general rule. In many cases, however, where statutes are repealed, they continue to be the law of the period during which they were in force with reference to numerous matters.? (pp. 640-641) 11. The observations of Lord Tenterden and Tindal, C.J. referred in the above- mentioned passages in Craies on Statute Law also indicate that the principle that on repeal a statute is obliterated is subject to the exception that it exists in respect of transactions past and closed. To the same effect is the law laid down by this Court. (See: Qudrat Ullah v. Municipal Board [(1974) 1 SCC 202 : (1974) 2 SCR 530 ] , SCR at p. 539) 12. This means that as a result of repeal of a statute the statute as repealed ceases to exist with effect from the date of such repeal but the repeal does not affect the previous operation of the law which has been repealed during the period it was operative prior to the date of such repeal . (emphasis supplied)18. Therefore, when a substitution was carried out initially on 28.6.2006, all the provisions of clause (3) of Rule 266, as it stood, suffered a repeal and in its place a new avtaar was born. It must be at once remembered that the proviso was inserted on 1.7.2004 in clause (3) of Rule 266. Therefore, when the rule making authority substituted clause (3) of Rule 266 by the amendment dated 28.6.2006, the inevitable result would be the repeal of entire clause (3) of Rule 266 including the proviso. It is crucial to bear in mind that the amendment to Rule 266 (3) by substitution did not expressly save the proviso. It is equally important to be not oblivious to the fact that the proviso was an integral part of clause(3) of Rule 266. Since Rule 266(3) came to be substituted, having regard to the legal consequences of the same, the proviso could not survive. 19. The fact that the proviso had ceased to exist as a result of the substitution dated 28.6.2006 is unambiguously demonstrated, by the fact the rule making authority chose to step in by issuing notification dated 29.11.2006 by inserting again the proviso to Rule 266(3). It read as follows:?Provided that the person who has appeared or is appearing in the B.Ed./ B.S.T.C./DSE/B.Ed.(Special Education) Examination shall be eligible to apply for the post of primary and upper primary school teachers (General Education/ Special Education) but he shall have to submit proof of having acquired the said educational qualification to the Rajasthan Public Service Commission before the declaration of result of the competitive examination.?It is by a subsequent amendment that the words ‘District Establishment Committee? was inserted in place of Rajasthan Public Service Commission. 20. Rule 266 (3) as was brought into life by the amending Act dated 28.6.2006 continued to hold the field till it suffered substitution by notification dated 11.5.2011. Apparently, consequent upon the need to change the qualifications, Rule 266(3) came to be substituted. However, it is not in dispute that after the substitution dated 11.5.2011, the proviso relied upon by the respondent has not been brought back into existence as was done in the year 2006. 21. We would think whatever ambiguity there may have been as to the actual effect of the substitution, it stands removed by the legislative history of clause (3) of Rule 266 including the proviso therein. The legislative intention is clear that when rule maker substituted the provisions of clause (3), it intended that the entirety of clause (3) would stand obliterated as indeed is the effect of a repeal and a new set of provisions taking its place. It is on this understanding that the rule making authority, when it intended that the proviso must govern, it expressly did so, and it issued the notification dated 29.11.2006. Admittedly after 11.5.2011, the proviso has not been brought back to life. Apparently, the notification dated 29.11.2006 bringing the proviso back to life after the substitution of clause (3) to Rule 266 in 2006 was not brought to the notice of the High Court. 22. As far as the Circular dated 29.2.2012 relied upon by the respondent is concerned, it related to the advertisement issued in 2012 though legally the proviso to Rule 266(3) was non-existent. For whatever reasons it may have been, the order came to be issued extending the benefit of the proviso but after changing the condition in the advertisement. It cannot advance the case of the respondent who applied pursuant to a later advertisement dated 11.8.2013 wherein the requirement as to possession of qualifications as on the last date is clearly indicated. As far as the advertisement with which we are concerned which is of the year 2013, the Circular dated 29.2.2012 cannot be pressed into service by the respondent both in law and on facts. 23. The candidates must possess the qualifications on the last date when applying under the advertisement when it is so provided. In view of our finding that the proviso had ceased to exist after substitution of Rule 266(3) by notification dated 11.5.2011, there can be no question of the advertisement being opposed to the statutory rule.
### Response:
1
### Explanation:
were replaced by another set of qualifications. The domain of clause (3) of Rule 266 was the declaration as to the qualifications to be possessed by the candidates for appointment as teachers at different levels. The proviso which was inserted on 1.7.2004 did not add to or take away from the qualifications which were declared in the main provision. All that the proviso purported to achieve was to give an opportunity to those candidates who had not acquired the qualifications as on the last date for making application but who had appeared for the concerned examination, to apply for the post. Thus, the proviso was indeed a beneficial provision as it provided a window of opportunity to those while not being qualified as such, were in the process of acquiring qualification by having appeared in the examination. This is no doubt subject to the conditions in the proviso.We do agree with the High Court and with the learned counsel for the respondent that the proviso was intended to have a different area of operation from the main provision whose function was only to enunciate the requisite qualifications.The argument also is that in the year 2006 also when the new set of qualifications was ushered in, it was facilitated by the substitution of clause (3) of Rule 266 of the Rules. Therefore, the contention is, when qualifications changed as a result of NCTE stipulating new qualifications, by substituting the existing qualifications contained in Rule 266(3), the rule making authority complied with the requirement of law. This has nothing to do with the continued availability of the beneficial provisions of the proviso.We are in this case concerned with the effect of amending Act which brought about the substitution of a provision. An amendment which brings about substitution of a provision essentially does two things. In the first place, the provision which is substituted undergoes a repeal. At the same time, there is a re-enactment through the newly inserted provisions.Therefore, when a substitution was carried out initially on 28.6.2006, all the provisions of clause (3) of Rule 266, as it stood, suffered a repeal and in its place a new avtaar was born. It must be at once remembered that the proviso was insertedin clause (3) of Rule 266. Therefore, when the rule making authority substituted clause (3) of Rule 266 by the amendment dated 28.6.2006, the inevitable result would be the repeal of entire clause (3) of Rule 266 including the proviso. It is crucial to bear in mind that the amendment to Rule 266 (3) by substitution did not expressly save the proviso. It is equally important to be not oblivious to the fact that the proviso was an integral part of clause(3) of Rule 266. Since Rule 266(3) came to be substituted, having regard to the legal consequences of the same, the proviso could not survive.The fact that the proviso had ceased to exist as a result of the substitution dated 28.6.2006 is unambiguously demonstrated, by the fact the rule making authority chose to step in by issuing notification dated 29.11.2006 by inserting again the proviso to Ruleded that the person who has appeared or is appearing in the B.Ed./ B.S.T.C./DSE/B.Ed.(Special Education) Examination shall be eligible to apply for the post of primary and upper primary school teachers (General Education/ Special Education) but he shall have to submit proof of having acquired the said educational qualification to the Rajasthan Public Service Commission before the declaration of result of the competitiveis by a subsequent amendment that the words ‘District Establishment Committee? was inserted in place of Rajasthan Public Service Commission.Rule 266 (3) as was brought into life by the amending Act dated 28.6.2006 continued to hold the field till it suffered substitution by notification dated 11.5.2011. Apparently, consequent upon the need to change the qualifications, Rule 266(3) came to be substituted. However, it is not in dispute that after the substitution dated 11.5.2011, the proviso relied upon by the respondent has not been brought back into existence as was done in the year 2006.We would think whatever ambiguity there may have been as to the actual effect of the substitution, it stands removed by the legislative history of clause (3) of Rule 266 including the proviso therein. The legislative intention is clear that when rule maker substituted the provisions of clause (3), it intended that the entirety of clause (3) would stand obliterated as indeed is the effect of a repeal and a new set of provisions taking its place. It is on this understanding that the rule making authority, when it intended that the proviso must govern, it expressly did so, and it issued the notification dated 29.11.2006. Admittedly after 11.5.2011, the proviso has not been brought back to life. Apparently, the notification dated 29.11.2006 bringing the proviso back to life after the substitution of clause (3) to Rule 266 in 2006 was not brought to the notice of the High Court.As far as the Circular dated 29.2.2012 relied upon by the respondent is concerned, it related to the advertisement issued in 2012 though legally the proviso to Rule 266(3) was non-existent. For whatever reasons it may have been, the order came to be issued extending the benefit of the proviso but after changing the condition in the advertisement. It cannot advance the case of the respondent who applied pursuant to a later advertisement dated 11.8.2013 wherein the requirement as to possession of qualifications as on the last date is clearly indicated. As far as the advertisement with which we are concerned which is of the year 2013, the Circular dated 29.2.2012 cannot be pressed into service by the respondent both in law and on facts.The candidates must possess the qualifications on the last date when applying under the advertisement when it is so provided. In view of our finding that the proviso had ceased to exist after substitution of Rule 266(3) by notification dated 11.5.2011, there can be no question of the advertisement being opposed to the statutory rule.
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M/S. Vedanta Limited (Formerly Known As Sesa Sterlite Limited And Successor In Interest Of Erstwhile Vs. M/S Emirates Trading Agency Llc | The Respondent submitted its bid and was awarded an order for supply of 30,000 MT. The Appellant had signed a backup support agreement with the Respondent for supplies in case the tender was awarded to the latter, and which was furnished by the Respondent to the BCIC in support of its capacity to deliver supplies. The correspondence between the Appellant and the Respondent culminated in the latter forwarding a draft agreement dated 26.10.2007, to the Appellant for Sale/Purchase contract for 3 x 10,000 MT phosphoric acid for supply to the BCIC during November and December, 2007. The covering letter, appended to the draft agreement, required the Appellant to sign, stamp and return the same to the Respondent in confirmation. The Appellant, in response, made a counter proposal for supply of 3 x 9500 MT (max) and between the period January to March, 2008 by incorporating necessary corrections in hand in the draft agreement. Resultantly, while there was a proposal from the Respondent, the Appellant made a counter proposal both with regard to the quantity and the period of supply. There is no material or evidence placed by the Respondent that the draft agreement ever assumed the form of a concluded contract by a meeting of minds both with regard to the quantity of supplies and the duration for the same, much less was the agreement signed, stamped and returned by the Appellant to the Respondent in confirmation. 9. The contract between the Respondent and the Appellant was independent of the contract between the Respondent and the BCIC. The Appellant had only offered a backup support to supply phosphoric acid to the Respondent in case the contract was awarded to the latter. In the written statement, the Appellant had taken a specific defence regarding absence of any concluded contract between it and the Respondent. The Trial Court as well as the First Appellate Court did not specifically deal with the issue of the draft agreement, the corrections in the same, existence of a proposal and counter proposal with regard to quantity and time period for supplies, the absence of any executed contract by virtue of the Appellant having signed, stamped and returned the agreement to the Respondent, in confirmation. On a presumptive reasoning, based on the exchange of correspondence preceding the draft agreement, the First Appellate Court affirmed the finding in the Suit of a concluded contract between the parties. 10. The Appellant challenged the First Appellate Courts order dated 04.10.2014 earlier in a special leave petition. On 12.05.2014, this Court considering the plea for absence of a concluded contract and after perusal of the draft agreement dated 26.10.2007 containing corrections, in hand, had observed that these aspects are not specifically dealt with by the High Court. In this view of the matter, it would be more appropriate for the petitioner to approach the High Court by filing a review petition. Observing that the High Court shall deal with the aspect on merits, liberty was also granted to challenge any fresh order along with the impugned orders, if aggrieved. 11. In the review petition, a specific plea was taken that the draft agreement dated 26.10.2007, Exhibit 8-A, did not constitute a concluded contract in view of the counter proposal made by the Appellant, both with regard to the quantity of supply and the period for the same. Reliance on the correspondence preceding the same was not sufficient in absence of acceptance by the Appellant of the proposal made by the Respondent coupled with signing, stamping and returning of the agreement in confirmation of the same. 12. The High Court, despite noticing the specific plea of the Appellant with regard to the absence of a concluded contract between the parties in view of a counter proposal, much less that the agreement was never signed, stamped and returned, reiterated the earlier observations of the First Appellate Court of a concluded contract between the parties based on exchange of correspondence preceding the draft agreement, and also on the premise that the Respondent had submitted its offer to BCIC on the assurance of the Appellant for backup support if the contract was awarded to the former. The High Court declined to delve further into the agreement dated 26.10.2017, holding it to be impermissible in the review jurisdiction and concluding that the grounds urged were superficial in nature without any material proof, designed to avoid payment, and dismissed the review application. The High Court failed to notice that as recent as 28.01.2008, the Respondent was still awaiting confirmation of its proposal from the Appellant, and soon thereafter the performance guarantee was invoked by the BCIC against the Respondent on 13.04.2008. 13. Section 7 of the Indian Contract Act, 1872 (hereinafter referred to as the Act) provides that in order to convert a proposal into a contract, the acceptance must be absolute and unqualified. The existence of a concluded contract is a sine qua non in a claim for compensation for loss and damages under Section 73 of the Act arising out of a breach of contract. If instead of acceptance of a proposal, a counter proposal is made, no concluded contract comes into existence. 14. U.P. Rajkiya Nirman Nigam Ltd. v. Indure (P) Ltd., (1996) 2 SCC 667 , also related to a proposal and counter proposal. Holding that no concluded contract had come into existence, the Apex Court observed as follows :- 9...As seen, the material alterations in the contract make a world of difference to draw an inference of concluded contract.... 15. The fulcrum of the entire controversy is the draft agreement dated 26.10.2007 marked Exhibit 8-A, for supply of phosphoric acid by the Appellant to the Respondent. The proposal of the Respondent, led to a counter proposal by the appellant. There was no acceptance of the proposal by the Appellant giving rise to a concluded contract. The quantity and duration of supply, therefore, remained in the realm of uncertainty and was never agreed upon so as to give rise to a concluded contract. | 1[ds]15. The fulcrum of the entire controversy is the draft agreement dated 26.10.2007 marked Exhibit, for supply of phosphoric acid by the Appellant to the Respondent. The proposal of the Respondent, led to a counter proposal by the appellant. There was no acceptance of the proposal by the Appellant giving rise to a concluded contract. The quantity and duration of supply, therefore, remained in the realm of uncertainty and was never agreed upon so as to give rise to a concluded contract. | 1 | 1,887 | 95 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
The Respondent submitted its bid and was awarded an order for supply of 30,000 MT. The Appellant had signed a backup support agreement with the Respondent for supplies in case the tender was awarded to the latter, and which was furnished by the Respondent to the BCIC in support of its capacity to deliver supplies. The correspondence between the Appellant and the Respondent culminated in the latter forwarding a draft agreement dated 26.10.2007, to the Appellant for Sale/Purchase contract for 3 x 10,000 MT phosphoric acid for supply to the BCIC during November and December, 2007. The covering letter, appended to the draft agreement, required the Appellant to sign, stamp and return the same to the Respondent in confirmation. The Appellant, in response, made a counter proposal for supply of 3 x 9500 MT (max) and between the period January to March, 2008 by incorporating necessary corrections in hand in the draft agreement. Resultantly, while there was a proposal from the Respondent, the Appellant made a counter proposal both with regard to the quantity and the period of supply. There is no material or evidence placed by the Respondent that the draft agreement ever assumed the form of a concluded contract by a meeting of minds both with regard to the quantity of supplies and the duration for the same, much less was the agreement signed, stamped and returned by the Appellant to the Respondent in confirmation. 9. The contract between the Respondent and the Appellant was independent of the contract between the Respondent and the BCIC. The Appellant had only offered a backup support to supply phosphoric acid to the Respondent in case the contract was awarded to the latter. In the written statement, the Appellant had taken a specific defence regarding absence of any concluded contract between it and the Respondent. The Trial Court as well as the First Appellate Court did not specifically deal with the issue of the draft agreement, the corrections in the same, existence of a proposal and counter proposal with regard to quantity and time period for supplies, the absence of any executed contract by virtue of the Appellant having signed, stamped and returned the agreement to the Respondent, in confirmation. On a presumptive reasoning, based on the exchange of correspondence preceding the draft agreement, the First Appellate Court affirmed the finding in the Suit of a concluded contract between the parties. 10. The Appellant challenged the First Appellate Courts order dated 04.10.2014 earlier in a special leave petition. On 12.05.2014, this Court considering the plea for absence of a concluded contract and after perusal of the draft agreement dated 26.10.2007 containing corrections, in hand, had observed that these aspects are not specifically dealt with by the High Court. In this view of the matter, it would be more appropriate for the petitioner to approach the High Court by filing a review petition. Observing that the High Court shall deal with the aspect on merits, liberty was also granted to challenge any fresh order along with the impugned orders, if aggrieved. 11. In the review petition, a specific plea was taken that the draft agreement dated 26.10.2007, Exhibit 8-A, did not constitute a concluded contract in view of the counter proposal made by the Appellant, both with regard to the quantity of supply and the period for the same. Reliance on the correspondence preceding the same was not sufficient in absence of acceptance by the Appellant of the proposal made by the Respondent coupled with signing, stamping and returning of the agreement in confirmation of the same. 12. The High Court, despite noticing the specific plea of the Appellant with regard to the absence of a concluded contract between the parties in view of a counter proposal, much less that the agreement was never signed, stamped and returned, reiterated the earlier observations of the First Appellate Court of a concluded contract between the parties based on exchange of correspondence preceding the draft agreement, and also on the premise that the Respondent had submitted its offer to BCIC on the assurance of the Appellant for backup support if the contract was awarded to the former. The High Court declined to delve further into the agreement dated 26.10.2017, holding it to be impermissible in the review jurisdiction and concluding that the grounds urged were superficial in nature without any material proof, designed to avoid payment, and dismissed the review application. The High Court failed to notice that as recent as 28.01.2008, the Respondent was still awaiting confirmation of its proposal from the Appellant, and soon thereafter the performance guarantee was invoked by the BCIC against the Respondent on 13.04.2008. 13. Section 7 of the Indian Contract Act, 1872 (hereinafter referred to as the Act) provides that in order to convert a proposal into a contract, the acceptance must be absolute and unqualified. The existence of a concluded contract is a sine qua non in a claim for compensation for loss and damages under Section 73 of the Act arising out of a breach of contract. If instead of acceptance of a proposal, a counter proposal is made, no concluded contract comes into existence. 14. U.P. Rajkiya Nirman Nigam Ltd. v. Indure (P) Ltd., (1996) 2 SCC 667 , also related to a proposal and counter proposal. Holding that no concluded contract had come into existence, the Apex Court observed as follows :- 9...As seen, the material alterations in the contract make a world of difference to draw an inference of concluded contract.... 15. The fulcrum of the entire controversy is the draft agreement dated 26.10.2007 marked Exhibit 8-A, for supply of phosphoric acid by the Appellant to the Respondent. The proposal of the Respondent, led to a counter proposal by the appellant. There was no acceptance of the proposal by the Appellant giving rise to a concluded contract. The quantity and duration of supply, therefore, remained in the realm of uncertainty and was never agreed upon so as to give rise to a concluded contract.
### Response:
1
### Explanation:
15. The fulcrum of the entire controversy is the draft agreement dated 26.10.2007 marked Exhibit, for supply of phosphoric acid by the Appellant to the Respondent. The proposal of the Respondent, led to a counter proposal by the appellant. There was no acceptance of the proposal by the Appellant giving rise to a concluded contract. The quantity and duration of supply, therefore, remained in the realm of uncertainty and was never agreed upon so as to give rise to a concluded contract.
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Smt. N. Nirmala Vs. Nelson Jeyakumar | 1. Leave granted. 2. We have heard the appeal finally by consent of learned counsel for the parties. 3. The question involved in this appeal is about the custody of a minor daughter. The respondent-father was permitted to continue the custody as legal guardian. Learned Single Judge of the High Court confirmed the custody of the minor daughter with the father but gave visiting rights to the appellant-mother in search of actual order passed by learned Single Judge, the appellant-mother in search of actual order of custody, went in appeal. The Division Bench of the High Court by the impugned judgment while dismissing the appeal has deprived the appellant of her visiting right for which there was no cross-objection on the part of the respondent. In our opinion, such a further adverse order against the appellant was not justified. The interest of justice will be served if the order of the learned Single Judge continuing the custody of the minor child with the respondent and as confirmed by the Division Bench is maintained subject to the modification that visiting right which was denied to the appellant by the Division Bench be continued. | 1[ds]In our opinion, such a further adverse order against the appellant was not justified. The interest of justice will be served if the order of the learned Single Judge continuing the custody of the minor child with the respondent and as confirmed by the Division Bench is maintained subject to the modification that visiting right which was denied to the appellant by the Division Bench be continued. | 1 | 206 | 74 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
1. Leave granted. 2. We have heard the appeal finally by consent of learned counsel for the parties. 3. The question involved in this appeal is about the custody of a minor daughter. The respondent-father was permitted to continue the custody as legal guardian. Learned Single Judge of the High Court confirmed the custody of the minor daughter with the father but gave visiting rights to the appellant-mother in search of actual order passed by learned Single Judge, the appellant-mother in search of actual order of custody, went in appeal. The Division Bench of the High Court by the impugned judgment while dismissing the appeal has deprived the appellant of her visiting right for which there was no cross-objection on the part of the respondent. In our opinion, such a further adverse order against the appellant was not justified. The interest of justice will be served if the order of the learned Single Judge continuing the custody of the minor child with the respondent and as confirmed by the Division Bench is maintained subject to the modification that visiting right which was denied to the appellant by the Division Bench be continued.
### Response:
1
### Explanation:
In our opinion, such a further adverse order against the appellant was not justified. The interest of justice will be served if the order of the learned Single Judge continuing the custody of the minor child with the respondent and as confirmed by the Division Bench is maintained subject to the modification that visiting right which was denied to the appellant by the Division Bench be continued.
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General Government Servants Co-Operative Housing Society Limited Vs. Wahab Uddin and Others Etc | for the purpose; (iv) that the area of land proposed to be acquired is not excessive; (v) that the Company is in a position to utilize land expeditiously; and (vi) where the land proposed to be acquired is good agricultural land, that no alternative suitable site can be found so as to avoid acquisition of that land. (2) The Collector shall, after giving the Company a reasonable opportunity to make any representation in this behalf, hold an enquiry into the matters referred to in sub-rule (1) and while holding such enquiry he shall, - (i) in any case where the land proposed to be acquired is agricultural land, consult the Senior Agricultural Officer of the district whether or not such land is good agricultural land ; (ii) determine, having regard to the provisions of sections 23 and 24 of the Act, the approximate amount of compensation likely to be payable in respect of the land which in the opinion of the Collector, should be acquired for the Company ; And(iii) ascertain whether the Company offered a reasonable price (not being less than the compensation so determined), to the persons interested in the land proposed to be acquired. Explanation:-For the purpose of this rule "good agricultural land" means any land which, considering the level of agricultural production and the crop pattern of the area in which it is situated, is of average or above average productivity and includes a garden or grove land. (3) As soon as may be after holding the enquiry under sub-rule (2), the Collector shall submit a report to the appropriate Government and a copy of the same shall be forwarded by that Government to the Committee. (4) No declaration shall be made by the appropriate Government under section 6 of the Act unless- (i) the appropriate Government has consulted the Committee and has considered the report submitted under this rule and the report, if any submitted under section 5A of the Act; and (ii) the agreement under section 41 of the Act has been executed by the Company. Sub-rule (1) requires the Government to direct the Collector to submit a report to it on the matters enumerated in clauses (i) to (vi) of the sub-rule (1) which is for the benefit of the Company. The purpose is to avoid acquisition of land not suitable for a Company. Clause (ii) of sub-rule (1) requires that the Company has to make all reasonable efforts to get such lands by negotiation with the person interested therein on payment of reasonable prices and that such efforts have faile d. The purpose of clause (ii) seems to be to avoid unnecessary land acquisition proceedings and payment of exorbitant prices. The purpose of clauses (iii), (iv) and (v) is obvious. The purpose of clause (vi) is to avoid acquisition of good agricult ural land, when other alternative land is available for the purpose. Subrule 2 of rule 4 requires the Collector to give reasonable opportunity to the Company so that the Collector may hold an inquiry into the matters referred in sub-rule (1). The C ollector has to comply with Clauses (i), (ii) and (iii) of sub-rule 2 during the course of the inquiry under sub-rule (1). The Collector under sub-rule 3 then has to send a copy of his report of the inquiry to the appropriate Government and a copy of the report has to be forwarded by the Government to the Land Acquisition Committee constituted under Rule 3 for the purpose of advising the Government in relation to acquisition of land under Part VII of the Act, the duty of the Committee being to advise the Government on all matters relating to or arising out of acquisition of land under Part VII of the Act (Sub-rule (5) of Rule 3). No declaration shall be made by the appropriate Government under section 6 of the Act unless the Committee has been consulted by the Government and has considered the report submitted by the Collector under section 5A of the Act. In addition, under clause (ii) of sub-rule (4) of rule 4, the Company has to execute an agreement under section 41 of the Act. The above consideration shows that rule 4 is mandatory; its compliance is no idle formality, unless the directions enjoined by rule 4 are complied with, the notification under section 6 will be invalid. A consideration of rule 4 also shows that its compliance precedes the notification under section 4 as well as compliance of section 6 of the Act. 10. In the instant case, as stated earlier, the first respondent on receipt of the notice under section 9(3) of the Act submitted a representation. After the representation, a brief written note of the arguments was also supplied (Annexure 6). The first respondents objections, inter alia against the acquisition of the land were: (1 ) that the land being that of the Government cannot be legally acquired ; (2) that the land or lessee rights having been once acquired by the Central Government under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, it cannot be acquired by the State Government ; and (3) that the proceedings for the acquisition of the land for the appellant were illegal as the mandatory procedure for acquisition of land for private companies has not been followed. It was also stated in the representation that no efforts to purchase the rights of the first respondent by negotiation were made. The inquiry report submitted by Collector does not show that he applied his mind to the provisions of rule 4 as stated above, or to the objections of the first respondent. In fact there was no report under rule 4. The report that was submitted was one under section 5A of the Act. We have examined this aspect of the matter to see that although the enquiry was belated and not in accordance with law, there has been no failure of justice. In our opinion there has been failure of justice. | 0[ds]This point which has been urged for the first time before us is a mixed question of fact and law. It does not appear to have been taken before the High Court. A mixed question of law and fact needing investigation into facts cannot be allowed to be urged for the first time in an appeal by special leave under Art. 136 of the Constitution.It is true that admittedly the first respondent was out of possession at the relevant time but there is no evidence before us to show whether or not the land in question was contiguous to any other land occupied by the person who is in possessi on and that his possession had been lawful. We are therefore not in a position to accept the submission of the appellant that the first respondents claim was barred by limitation. On the contrary there is ample evidence before us to show that the first respondent had interest in the land in question. We come to this conclusion from the following circumstances:(I) A sale certificate had been issued to the first respondent after the purchase of the land in auction sale held in 1 962;(2) the Collector, Agra, knew that the first respondent had purchased the land in auction, for he had himself filed a suit for ejectment from the land in question under section 171 of the Tenancy Act against the first respondent, and that t he suit was dismissed by the Assistant Collector Ist Class, on 24th March, 1969; the appeal preferred against the said order had also been dismissed by the Commissioner on the 27th of October, 1970;(3) the Collector issued notice under section 9 (3) of the Act calling upon the first respondent to prefer his claim, if any for compensation of the land acquired. (This amounts to an admission of the first respondents interest in the land by the Collector) and(4) that in the counter affidavit filed by the Collector, in reply to the affidavit filed by the first respondent before the High Court the claim of the petitioner to get compensation for the rights acquired by the Government was not denied by the appellant. W e therefore agree with the High Court that the first respondent was a person interested within the meaning of clause (b) of section 3 of the ActIn our opinion, the real question , as urged by the first respondent, is notwhether there has been any violation of any principle of natural justice but whether Rule 4 of the Rules has been complied with by then (1) of Section 4 of the Act provides that whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose a notification to that effect shall be published in the official gazette and that he shall also cause a public notice of the substance of the notification to be given at convenient places in the said localityThe inquiry report submitted by Collector does not show that he applied his mind to the provisions of rule 4 as stated above, or to the objections of the first respondent. In fact there was no report under rule 4. The report that was submitted was one under section 5A of the Act. We have examined this aspect of the matter to see that although the enquiry was belated and not in accordance with law, there has been no failure of justice. In our opinion there has been failure of justice. | 0 | 3,243 | 641 | ### 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:
for the purpose; (iv) that the area of land proposed to be acquired is not excessive; (v) that the Company is in a position to utilize land expeditiously; and (vi) where the land proposed to be acquired is good agricultural land, that no alternative suitable site can be found so as to avoid acquisition of that land. (2) The Collector shall, after giving the Company a reasonable opportunity to make any representation in this behalf, hold an enquiry into the matters referred to in sub-rule (1) and while holding such enquiry he shall, - (i) in any case where the land proposed to be acquired is agricultural land, consult the Senior Agricultural Officer of the district whether or not such land is good agricultural land ; (ii) determine, having regard to the provisions of sections 23 and 24 of the Act, the approximate amount of compensation likely to be payable in respect of the land which in the opinion of the Collector, should be acquired for the Company ; And(iii) ascertain whether the Company offered a reasonable price (not being less than the compensation so determined), to the persons interested in the land proposed to be acquired. Explanation:-For the purpose of this rule "good agricultural land" means any land which, considering the level of agricultural production and the crop pattern of the area in which it is situated, is of average or above average productivity and includes a garden or grove land. (3) As soon as may be after holding the enquiry under sub-rule (2), the Collector shall submit a report to the appropriate Government and a copy of the same shall be forwarded by that Government to the Committee. (4) No declaration shall be made by the appropriate Government under section 6 of the Act unless- (i) the appropriate Government has consulted the Committee and has considered the report submitted under this rule and the report, if any submitted under section 5A of the Act; and (ii) the agreement under section 41 of the Act has been executed by the Company. Sub-rule (1) requires the Government to direct the Collector to submit a report to it on the matters enumerated in clauses (i) to (vi) of the sub-rule (1) which is for the benefit of the Company. The purpose is to avoid acquisition of land not suitable for a Company. Clause (ii) of sub-rule (1) requires that the Company has to make all reasonable efforts to get such lands by negotiation with the person interested therein on payment of reasonable prices and that such efforts have faile d. The purpose of clause (ii) seems to be to avoid unnecessary land acquisition proceedings and payment of exorbitant prices. The purpose of clauses (iii), (iv) and (v) is obvious. The purpose of clause (vi) is to avoid acquisition of good agricult ural land, when other alternative land is available for the purpose. Subrule 2 of rule 4 requires the Collector to give reasonable opportunity to the Company so that the Collector may hold an inquiry into the matters referred in sub-rule (1). The C ollector has to comply with Clauses (i), (ii) and (iii) of sub-rule 2 during the course of the inquiry under sub-rule (1). The Collector under sub-rule 3 then has to send a copy of his report of the inquiry to the appropriate Government and a copy of the report has to be forwarded by the Government to the Land Acquisition Committee constituted under Rule 3 for the purpose of advising the Government in relation to acquisition of land under Part VII of the Act, the duty of the Committee being to advise the Government on all matters relating to or arising out of acquisition of land under Part VII of the Act (Sub-rule (5) of Rule 3). No declaration shall be made by the appropriate Government under section 6 of the Act unless the Committee has been consulted by the Government and has considered the report submitted by the Collector under section 5A of the Act. In addition, under clause (ii) of sub-rule (4) of rule 4, the Company has to execute an agreement under section 41 of the Act. The above consideration shows that rule 4 is mandatory; its compliance is no idle formality, unless the directions enjoined by rule 4 are complied with, the notification under section 6 will be invalid. A consideration of rule 4 also shows that its compliance precedes the notification under section 4 as well as compliance of section 6 of the Act. 10. In the instant case, as stated earlier, the first respondent on receipt of the notice under section 9(3) of the Act submitted a representation. After the representation, a brief written note of the arguments was also supplied (Annexure 6). The first respondents objections, inter alia against the acquisition of the land were: (1 ) that the land being that of the Government cannot be legally acquired ; (2) that the land or lessee rights having been once acquired by the Central Government under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, it cannot be acquired by the State Government ; and (3) that the proceedings for the acquisition of the land for the appellant were illegal as the mandatory procedure for acquisition of land for private companies has not been followed. It was also stated in the representation that no efforts to purchase the rights of the first respondent by negotiation were made. The inquiry report submitted by Collector does not show that he applied his mind to the provisions of rule 4 as stated above, or to the objections of the first respondent. In fact there was no report under rule 4. The report that was submitted was one under section 5A of the Act. We have examined this aspect of the matter to see that although the enquiry was belated and not in accordance with law, there has been no failure of justice. In our opinion there has been failure of justice.
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This point which has been urged for the first time before us is a mixed question of fact and law. It does not appear to have been taken before the High Court. A mixed question of law and fact needing investigation into facts cannot be allowed to be urged for the first time in an appeal by special leave under Art. 136 of the Constitution.It is true that admittedly the first respondent was out of possession at the relevant time but there is no evidence before us to show whether or not the land in question was contiguous to any other land occupied by the person who is in possessi on and that his possession had been lawful. We are therefore not in a position to accept the submission of the appellant that the first respondents claim was barred by limitation. On the contrary there is ample evidence before us to show that the first respondent had interest in the land in question. We come to this conclusion from the following circumstances:(I) A sale certificate had been issued to the first respondent after the purchase of the land in auction sale held in 1 962;(2) the Collector, Agra, knew that the first respondent had purchased the land in auction, for he had himself filed a suit for ejectment from the land in question under section 171 of the Tenancy Act against the first respondent, and that t he suit was dismissed by the Assistant Collector Ist Class, on 24th March, 1969; the appeal preferred against the said order had also been dismissed by the Commissioner on the 27th of October, 1970;(3) the Collector issued notice under section 9 (3) of the Act calling upon the first respondent to prefer his claim, if any for compensation of the land acquired. (This amounts to an admission of the first respondents interest in the land by the Collector) and(4) that in the counter affidavit filed by the Collector, in reply to the affidavit filed by the first respondent before the High Court the claim of the petitioner to get compensation for the rights acquired by the Government was not denied by the appellant. W e therefore agree with the High Court that the first respondent was a person interested within the meaning of clause (b) of section 3 of the ActIn our opinion, the real question , as urged by the first respondent, is notwhether there has been any violation of any principle of natural justice but whether Rule 4 of the Rules has been complied with by then (1) of Section 4 of the Act provides that whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose a notification to that effect shall be published in the official gazette and that he shall also cause a public notice of the substance of the notification to be given at convenient places in the said localityThe inquiry report submitted by Collector does not show that he applied his mind to the provisions of rule 4 as stated above, or to the objections of the first respondent. In fact there was no report under rule 4. The report that was submitted was one under section 5A of the Act. We have examined this aspect of the matter to see that although the enquiry was belated and not in accordance with law, there has been no failure of justice. In our opinion there has been failure of justice.
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Tanviben Pankajkumar Divetia Vs. State Of Gujarat | being hurt by intruders. The accused had also witnessed a very brutal assault made on her mother-in-law who being critically injured was lying in a pool of blood. If under these circumstances, the doctor in the hospital was of the view that the accused should not be interrogated by the police immediately after her admission but she should be allowed to remain in complete rest, no exception can be taken on such decision of the doctor. That apart, there is no material to warrant that the doctors in the hospital had connived either with the accused or the relations of the accused so as to prevent the police from interrogating the accused. We, therefore, do not find any good reason for coming to such finding. 44. The court has drawn adverse inference against the accused for making false statement as recorded under Section 313 of the Code of Criminal Procedure. In view of our findings, it cannot be held that the accused made false statements. Even if it is assumed that the accused had made false statements when examined under Section 313 of the Code of Criminal Procedure, the law is well settled that the falsity of the defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea may be considered as an additional circumstance if other circumstances proved and established point out the guilt of the accused. In this connection, reference may be made to the decision of this Court in Shankerlal Gyarasilal v. State of Maharashtra, AIR 1981 SC 761. 45. The principle for basing a conviction on the basis of circumstantial evidences has been indicated in a number of decisions of this Court and the law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. This Court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal roof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the accused beyond all reasonable doubts. It has been held that the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for some times, unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by this Court that there is a long mental distance between `may be true and `must be true and the same divides conjectures from sure conclusions. Jaharlal Das v. State of Orissa, 1991(3) SCC 27. 46. We may indicate here that more the suspicious circumstances, more care and caution are required to be taken; otherwise the suspicious circumstances may unwittingly enter the adjudicating thought process of the Court even though the suspicious circumstances had not been clearly established by clinching and reliable evidences. It appears to us that in this case, the decision of the Court in convicting the appellant has been the result of the suspicious circumstances entering the adjudicating thought process of the Court. 47. Mr. Jethmalani has contended that a number of incriminating circumstances alleged by the prosecution witnesses have been taken into consideration by the Court for convicting the accused but such incriminating facts had not been put to the accused specifically to explain them when she had been examined under Section 313 of the Code of Criminal Procedure. The conviction of the accused is vitiated on account of not drawing the attention of the accused specifically to the incriminating facts alleged by the prosecution witnesses. In view of the finding made by us that for want of reliable and convincing circumstantial evidences, the appellant could not have been convicted for the offence under Section 302 read with Section 34 IPC, we do not think it necessary to consider as to whether in the facts of the case, reasonable opportunity to explain the incriminating circumstances established by evidence was given to the accused at the time of making statement under Section 313 of the Code of Criminal Procedure by pointedly drawing the attention of the accused to the specific evidence led in the case. 48. It has also been contended by Mr. Jethmalani that since the appellant has been acquitted of the offence of murder read with Section 120-B of the Code of Criminal Procedure, her conviction for the offence under Section 302 read with Section 34 IPC by relying on the same set of evidences was not warranted. Such contention of Mr. Jethmalani was disputed by Mr. Dholakia by contending that the consideration of evidence which was germane for conviction for murder read with Section 120-B IPC necessarily may not be germane for convicting the accused for murder with the aid of Section 34 IPC. Mr. Dholakia has also contended that apart from evidences led for conviction under Section 120-B, there are other independent evidences which have been taken into consideration by the court for basing the conviction of the appellant for the offence under Section 302 read with Section 34 IPC. In view of our specific finding that in the instant case, the circumstantial evidences were not sufficient for conviction of the appellant for the offence under Section 302 read with Section 34 IPC, it is not necessary to consider the respective contentions of the learned counsel for the parties in this regard. | 1[ds]34. In our considered view, the expert opinion of Dr. Shariff that the injuries of the accused were self-inflicted or caused by a friendly hand should not be accepted. It is quite evident that the accused had sustained multiple injuries on her head and one of such injuries was bone deep and if a little more force was used in causing the said bone deep injury, the skull might have fractured. Dr. Manek who had examined the accused, has clearly stated that such injuries could not be self-inflicted. It is the specific case of the accused that she was hit on the head by `hathodi meaning thereby a small hammer like object. Dr. Shariff has specifically stated that he had given his opinion that the injuries could not be caused by a hammer on the footing that a heavy and big hammer had been used. It is also quite clear that the accused had suffered the eye injury on account of severe blow by a blunt object and it has been stated by Dr. Manek that such injury cannot be self-inflicted injury. Such view has also been expressed by Dr. Shariff. It may be stated here that Dr. Manek had actually examined the accused and had noted the injuries himself but Dr. Shariff gave his opinion only on the basis of the injury report and the X-ray report without even looking to the X-ray plate. In such circumstances, we are inclined to rely more on the opinion of Dr. Manek than on the opinion of Dr. Shariff. We are also of the view that the injuries caused on the eye of the accused and also one of the injuries on the head were quite serious and it was highly improbable that the accused would invite such injuries to be caused by a friendly hand. We may also indicate here that the infant baby aged only six months had also suffered injuries and the doctor has given opinion that the abrasion suffered by the infant was possible by contact with a blunt object and could be caused by a fall and the diffused swelling found on the infant reflected the manifestation of some internal injury. In our opinion, it is also highly improbable that such injuries could be caused on the infant of six months either by the accused herself who was mother of the child or she would allow anybody to cause such injury voluntarily to give a show that infant along with herself had been attacked. On the contrary, the nature of the injuries suffered by the infant fits in with the statement made by the accused indicating the manner in which the infant was dealt with by the assailant thereby causing the injuries on the child. On a careful consideration of expert opinion and the evidences adduced regarding the injuries suffered by the accused and the infant child, we have no hesitation to hold that such injuries suffered by the accused and the infant were neither self-inflicted nor caused by any friendly hand.No evidence is available as to whether on the fateful night, the doors leading the bed-room of the deceased had been fully secured. In basing the conviction, the Court has proceeded on the footing that the doors must have been secured but the same had been opened by the accused because she was the only adult person then living inside the bungalow. It should be borne in mind that it has come in the evidence that the deceased was in the habit of enjoying fresh air in the terrace. It is not unlikely that the deceased had gone out for enjoying fresh air and she might have failed to secure the door. It is the case of the accused that the deceased had gone to the terrace to enjoy fresh air. After feeding her child, she had fallen asleep and woke up only after hearing the groaning sound coming from the room of the deceased. It is also not unlikely that entry doors through the ground floor might not have been secured on account of inadvertance. There is no evidence that the same was found to have been secured before the two ladies had gone to their respective bed-room for nights rest. There is also no evidence that it was the accused who used to close entry doors or as a routine measure, used to ensure that such doors were closed. Blood marks were found on the door leading to the terrace but the police did not notice any blood mark on the ground floor. According to the investigating officer, no footprints could be noticed indicating that the assailants had come to the terrace by scaling or had gone down through the terrace. It may, therefore, be reasonably presumed that through the ground floor, the assailants had come. As blood marks were not found in the ground floor, the exact manner in which assailants had come to the bed-room of the deceased and had also gone out of the house cannot be precisely held. Even if it is assumed that the assailant had come through the entry door which was kept open because no violence on such entry door had been noticed, it cannot be held that it is the accused who had deliberately opened such entry door to facilitate the entry of the assailant. In view of our specific finding that the accused herself and her infant child had also been assualted by the intruders and the accused suffered some injuries which were likely to be quite serious if little more force would have been applied, it cannot be reasonably held that the accused had invited the intruder to enter the bungalow for being assaulted.41. In the aforesaid circumstances, no conviction can be based on circumstantial evidence since adduced in the case. In our view, such conviction is based more on surmise and conjecture than on any reliable evidences from which an irresistible conclusion about the complicity of the accused in causing the murder, can at all be drawn.We may also indicate here that the finding that although the accused did suffer only minor injuries, a deliverate attempt was made to prevent interrogation of the accused by the police officer immediately after the incident, cannot be sustained. The accused herself having been injured was admitted in the hospital as an indoor patient. She had to be taken to the hospital for immediate treatment. It, therefore, cannot be reasonably held that the accused herself lying as an indoor patient in the hospital prevented the police from interrogating her.The court has drawn adverse inference against the accused for making false statement as recorded under Section 313 of theCode of Criminal Procedure. In view of our findings, it cannot be held that the accused made false statements. Even if it is assumed that the accused had made false statements when examined under Section 313 of theCode of Criminal Procedure, the law is well settled that the falsity of the defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea may be considered as an additional circumstance if other circumstances proved and established point out the guilt of the accused.The principle for basing a conviction on the basis of circumstantial evidences has been indicated in a number of decisions of this Court and the law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. This Court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legalview of the finding made by us that for want of reliable and convincing circumstantial evidences, the appellant could not have been convicted for the offence under Section 302 read with Section 34IPC, we do not think it necessary to consider as to whether in the facts of the case, reasonable opportunity to explain the incriminating circumstances established by evidence was given to the accused at the time of making statement under Section 313 of theCode of Criminal Procedure by pointedly drawing the attention of the accused to the specific evidence led in theview of our specific finding that in the instant case, the circumstantial evidences were not sufficient for conviction of the appellant for the offence under Section 302 read with Section 34IPC, it is not necessary to consider the respective contentions of the learned counsel for the parties in this regard. | 1 | 15,869 | 1,541 | ### Instruction:
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being hurt by intruders. The accused had also witnessed a very brutal assault made on her mother-in-law who being critically injured was lying in a pool of blood. If under these circumstances, the doctor in the hospital was of the view that the accused should not be interrogated by the police immediately after her admission but she should be allowed to remain in complete rest, no exception can be taken on such decision of the doctor. That apart, there is no material to warrant that the doctors in the hospital had connived either with the accused or the relations of the accused so as to prevent the police from interrogating the accused. We, therefore, do not find any good reason for coming to such finding. 44. The court has drawn adverse inference against the accused for making false statement as recorded under Section 313 of the Code of Criminal Procedure. In view of our findings, it cannot be held that the accused made false statements. Even if it is assumed that the accused had made false statements when examined under Section 313 of the Code of Criminal Procedure, the law is well settled that the falsity of the defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea may be considered as an additional circumstance if other circumstances proved and established point out the guilt of the accused. In this connection, reference may be made to the decision of this Court in Shankerlal Gyarasilal v. State of Maharashtra, AIR 1981 SC 761. 45. The principle for basing a conviction on the basis of circumstantial evidences has been indicated in a number of decisions of this Court and the law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. This Court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal roof. The Court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot, in any manner, establish the guilt of the accused beyond all reasonable doubts. It has been held that the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for some times, unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by this Court that there is a long mental distance between `may be true and `must be true and the same divides conjectures from sure conclusions. Jaharlal Das v. State of Orissa, 1991(3) SCC 27. 46. We may indicate here that more the suspicious circumstances, more care and caution are required to be taken; otherwise the suspicious circumstances may unwittingly enter the adjudicating thought process of the Court even though the suspicious circumstances had not been clearly established by clinching and reliable evidences. It appears to us that in this case, the decision of the Court in convicting the appellant has been the result of the suspicious circumstances entering the adjudicating thought process of the Court. 47. Mr. Jethmalani has contended that a number of incriminating circumstances alleged by the prosecution witnesses have been taken into consideration by the Court for convicting the accused but such incriminating facts had not been put to the accused specifically to explain them when she had been examined under Section 313 of the Code of Criminal Procedure. The conviction of the accused is vitiated on account of not drawing the attention of the accused specifically to the incriminating facts alleged by the prosecution witnesses. In view of the finding made by us that for want of reliable and convincing circumstantial evidences, the appellant could not have been convicted for the offence under Section 302 read with Section 34 IPC, we do not think it necessary to consider as to whether in the facts of the case, reasonable opportunity to explain the incriminating circumstances established by evidence was given to the accused at the time of making statement under Section 313 of the Code of Criminal Procedure by pointedly drawing the attention of the accused to the specific evidence led in the case. 48. It has also been contended by Mr. Jethmalani that since the appellant has been acquitted of the offence of murder read with Section 120-B of the Code of Criminal Procedure, her conviction for the offence under Section 302 read with Section 34 IPC by relying on the same set of evidences was not warranted. Such contention of Mr. Jethmalani was disputed by Mr. Dholakia by contending that the consideration of evidence which was germane for conviction for murder read with Section 120-B IPC necessarily may not be germane for convicting the accused for murder with the aid of Section 34 IPC. Mr. Dholakia has also contended that apart from evidences led for conviction under Section 120-B, there are other independent evidences which have been taken into consideration by the court for basing the conviction of the appellant for the offence under Section 302 read with Section 34 IPC. In view of our specific finding that in the instant case, the circumstantial evidences were not sufficient for conviction of the appellant for the offence under Section 302 read with Section 34 IPC, it is not necessary to consider the respective contentions of the learned counsel for the parties in this regard.
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child. On a careful consideration of expert opinion and the evidences adduced regarding the injuries suffered by the accused and the infant child, we have no hesitation to hold that such injuries suffered by the accused and the infant were neither self-inflicted nor caused by any friendly hand.No evidence is available as to whether on the fateful night, the doors leading the bed-room of the deceased had been fully secured. In basing the conviction, the Court has proceeded on the footing that the doors must have been secured but the same had been opened by the accused because she was the only adult person then living inside the bungalow. It should be borne in mind that it has come in the evidence that the deceased was in the habit of enjoying fresh air in the terrace. It is not unlikely that the deceased had gone out for enjoying fresh air and she might have failed to secure the door. It is the case of the accused that the deceased had gone to the terrace to enjoy fresh air. After feeding her child, she had fallen asleep and woke up only after hearing the groaning sound coming from the room of the deceased. It is also not unlikely that entry doors through the ground floor might not have been secured on account of inadvertance. There is no evidence that the same was found to have been secured before the two ladies had gone to their respective bed-room for nights rest. There is also no evidence that it was the accused who used to close entry doors or as a routine measure, used to ensure that such doors were closed. Blood marks were found on the door leading to the terrace but the police did not notice any blood mark on the ground floor. According to the investigating officer, no footprints could be noticed indicating that the assailants had come to the terrace by scaling or had gone down through the terrace. It may, therefore, be reasonably presumed that through the ground floor, the assailants had come. As blood marks were not found in the ground floor, the exact manner in which assailants had come to the bed-room of the deceased and had also gone out of the house cannot be precisely held. Even if it is assumed that the assailant had come through the entry door which was kept open because no violence on such entry door had been noticed, it cannot be held that it is the accused who had deliberately opened such entry door to facilitate the entry of the assailant. In view of our specific finding that the accused herself and her infant child had also been assualted by the intruders and the accused suffered some injuries which were likely to be quite serious if little more force would have been applied, it cannot be reasonably held that the accused had invited the intruder to enter the bungalow for being assaulted.41. In the aforesaid circumstances, no conviction can be based on circumstantial evidence since adduced in the case. In our view, such conviction is based more on surmise and conjecture than on any reliable evidences from which an irresistible conclusion about the complicity of the accused in causing the murder, can at all be drawn.We may also indicate here that the finding that although the accused did suffer only minor injuries, a deliverate attempt was made to prevent interrogation of the accused by the police officer immediately after the incident, cannot be sustained. The accused herself having been injured was admitted in the hospital as an indoor patient. She had to be taken to the hospital for immediate treatment. It, therefore, cannot be reasonably held that the accused herself lying as an indoor patient in the hospital prevented the police from interrogating her.The court has drawn adverse inference against the accused for making false statement as recorded under Section 313 of theCode of Criminal Procedure. In view of our findings, it cannot be held that the accused made false statements. Even if it is assumed that the accused had made false statements when examined under Section 313 of theCode of Criminal Procedure, the law is well settled that the falsity of the defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea may be considered as an additional circumstance if other circumstances proved and established point out the guilt of the accused.The principle for basing a conviction on the basis of circumstantial evidences has been indicated in a number of decisions of this Court and the law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. This Court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legalview of the finding made by us that for want of reliable and convincing circumstantial evidences, the appellant could not have been convicted for the offence under Section 302 read with Section 34IPC, we do not think it necessary to consider as to whether in the facts of the case, reasonable opportunity to explain the incriminating circumstances established by evidence was given to the accused at the time of making statement under Section 313 of theCode of Criminal Procedure by pointedly drawing the attention of the accused to the specific evidence led in theview of our specific finding that in the instant case, the circumstantial evidences were not sufficient for conviction of the appellant for the offence under Section 302 read with Section 34IPC, it is not necessary to consider the respective contentions of the learned counsel for the parties in this regard.
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Ganapathy and Company Vs. The Commissioner, Income Tax Bangalore | allowing the deduction appears to have taken into account the view recorded in another proceeding by the ITAT itself in the case of a sister concern [ITA No.3717/Mds/1987]. The relief granted in the case of the sister concern in ITA No.3717/Mds/1987 was on identical facts and, therefore, perhaps, ITAT did not think it proper to depart from the view already taken in the said case of the sister concern. However, the High Court found the aforesaid view taken by the Tribunal in ITA No.3717/Mds/1987 to be wholly untenable and, therefore, interfered with the reliance placed by the ITAT on the aforesaid decision in the present case. There was no legal bar for the High Court in taking the aforesaid view. Taking into account the above and the facts of the case which have been set out by the High Court in paragraphs 29 and 30 of its order, we do not see how the same can be faulted. Having regard to the facts and circumstances in which the “investment” was made and “loss” claimed, we can find no fault in the view taken by the High Court that the entire transaction was a sham transaction and was a calculated device to avoid tax liability. 6. Disallowance of donation to Aparna Ashram: Disallowance of donation made to Aparna Ashram by the assessee was refused by the Primary and First Appellate Authority on the ground that the necessary certificate showing that the donee (Aparna Ashram) had complied with the conditions subject to which registration was granted to it under Section 35(2A) of the Act was not produced by the assessee so as to entitle it to the claim of deduction of the donation made. The learned ITAT took the view that the aforesaid conditions were not material. The High Court on due consideration found that the said conditions were necessary preconditions to the grant of statutory registration and had to be satisfied. There is no dispute on the fact that no such certificate had been furnished by the assessee and also that all Authorities have consistently held that if and when such certificate is produced the consequential benefit can be afforded to the assessee. In the aforesaid circumstances, we do not see how the view taken by the High Court that the assessee was not entitled to the benefit of donation made to Aparna Ashram can be faulted. 7. An issue on which there could be little dispute on law, nevertheless, needs to be dealt with in view of the elaborate arguments advanced on behalf of the appellant – assessee, namely, that the High Court had relied on findings of fact independent of those considered by the learned ITAT which is the final fact finding authority. Reliance in this regard has been placed on several judgments of this Court to contend that issues of fact determined by the Tribunal are final and the High Court in exercise of its reference jurisdiction should not act as an appellate Court to review such findings of fact arrived at by the Tribunal by a process of reappreciation and reappraisal of the evidence on record. The aforesaid position in law has been consistently laid down by this Court in several of its pronouncements out of which, illustratively, reference may be made to Karnani Properties Ltd. Vs. Commissioner of Income-Tax, West Bengal [82 ITR 547] , Rameshwar Prasad Bagla vs. Commissioner of Income-Tax, U.P. [87 ITR 421] , Commissioner of Income-Tax, Bombay City vs. Greaves Cotton and Co. Ltd. [68 ITR 200] and K. Ravindranathan Nair vs. Commissioner of Income-Tax [247 ITR 178]. 8. The legal position in this regard may be summed up by reiterating that it is the Tribunal which is the final fact finding authority and it is beyond the power of the High Court in the exercise of its reference jurisdiction to reconsider such findings on a reappraisal of the evidence and materials on record unless a specific question with regard to an issue of fact being opposed to the weight of the materials on record is raised in the reference before the High Court. 9. Having reiterated the above position in law we do not see how the same can be said to have been transgressed by the impugned order of the High Court. Each relevant fact considered by the High Court to answer the questions referred to it on the claim(s) of deduction raised by the appellant – assesee are acknowledged, admitted and undisputed facts. No fresh determination of facts found by the Tribunal have been made by the High Court. What, however, the High Court did was to take into account certain additional facts, already on record, which were however not taken note of by the Tribunal to arrive at its findings, e.g., that the appellant – assessee had failed to furnish any proof of service rendered by UTC in the course of the relevant Assessment Year i.e. 1984-1985. Alternatively, the High Court construed certain facts as, for example, compliance of the conditions subject to which registration was granted to the Aparna Ashram under Section 35(2A) of the Act to be of significance as against the contrary/different view of the learned Tribunal on this score. There was no departure from the basic facts found by the learned Tribunal in the two illustrative situations cited above, namely, that (i) the assessee had not adduced any proof of service rendered by UTC in the Assessment Year 1984-1985; (ii) that Aparna Ashram had not complied with the conditions subject to which registration had been granted to it under Section 35(2A) of the Act.10. The difference in the approach between the learned Tribunal and the High Court, therefore, is not one relating to determination of new or additional facts but was merely one of emphasis on facts on which there is no dispute. This is surely an exercise that was within the jurisdiction of the High Court in the exercise of its reference power under the provisions of the Act as it then existed. | 0[ds]A reading of the order of the ITAT in favour of the assessee which has been reversed by the High Court would indicate that the learned ITAT did not address itself to a very fundamental issue that had arisen before it, namely, effect of the failure of the assessee to produce evidence in support of the services claimed to have been rendered by UTC during the Assessment Year in question i.e. 1984-1985. The answer given by the assessee in response to a specific query made by the Assessing Officer in this regard was that explanations in this regard had already been submitted for the previous Assessment Year i.e. 1983-1984. If service had been rendered to the assessee by UTC during the Assessment Year in question and service charges had been paid for such service rendered, naturally, it was incumbent on the part of the assessee to adduce proof of such service having been rendered during the period under assessment. There is no dispute on the issue that the assessee did not, in fact, offer any proof of the service rendered during the Assessment Year in question. In such circumstances, the High Court was perfectly justified in reversing the eventual conclusion of the learned ITAT on the basis that the findings and conclusions recorded in the course of the assessment proceedings of the previous year cannot foreclose the findings that are required to be arrived at for the Assessment Year in question i.e. 1984-1985. We, therefore, can find no fault with the order of the High Court on the aforesaidthe High Court found the aforesaid view taken by the Tribunal in ITA No.3717/Mds/1987 to be wholly untenable and, therefore, interfered with the reliance placed by the ITAT on the aforesaid decision in the present case. There was no legal bar for the High Court in taking the aforesaid view.Having reiterated the above position in law we do not see how the same can be said to have been transgressed by the impugned order of the High Court. Each relevant fact considered by the High Court to answer the questions referred to it on the claim(s) of deduction raised by the appellant – assesee are acknowledged, admitted and undisputed facts. No fresh determination of facts found by the Tribunal have been made by the High Court. What, however, the High Court did was to take into account certain additional facts, already on record, which were however not taken note of by the Tribunal to arrive at its findings, e.g., that the appellant – assessee had failed to furnish any proof of service rendered by UTC in the course of the relevant Assessment Year i.e. 1984-1985. Alternatively, the High Court construed certain facts as, for example, compliance of the conditions subject to which registration was granted to the Aparna Ashram under Section 35(2A) of the Act to be of significance as against the contrary/different view of the learned Tribunal on this score. There was no departure from the basic facts found by the learned Tribunal in the two illustrative situations cited above, namely, that (i) the assessee had not adduced any proof of service rendered by UTC in the Assessment Year 1984-1985; (ii) that Aparna Ashram had not complied with the conditions subject to which registration had been granted to it under Section 35(2A) of the Act.10. The difference in the approach between the learned Tribunal and the High Court, therefore, is not one relating to determination of new or additional facts but was merely one of emphasis on facts on which there is no dispute. This is surely an exercise that was within the jurisdiction of the High Court in the exercise of its reference power under the provisions of the Act as it then existed. | 0 | 2,036 | 686 | ### Instruction:
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allowing the deduction appears to have taken into account the view recorded in another proceeding by the ITAT itself in the case of a sister concern [ITA No.3717/Mds/1987]. The relief granted in the case of the sister concern in ITA No.3717/Mds/1987 was on identical facts and, therefore, perhaps, ITAT did not think it proper to depart from the view already taken in the said case of the sister concern. However, the High Court found the aforesaid view taken by the Tribunal in ITA No.3717/Mds/1987 to be wholly untenable and, therefore, interfered with the reliance placed by the ITAT on the aforesaid decision in the present case. There was no legal bar for the High Court in taking the aforesaid view. Taking into account the above and the facts of the case which have been set out by the High Court in paragraphs 29 and 30 of its order, we do not see how the same can be faulted. Having regard to the facts and circumstances in which the “investment” was made and “loss” claimed, we can find no fault in the view taken by the High Court that the entire transaction was a sham transaction and was a calculated device to avoid tax liability. 6. Disallowance of donation to Aparna Ashram: Disallowance of donation made to Aparna Ashram by the assessee was refused by the Primary and First Appellate Authority on the ground that the necessary certificate showing that the donee (Aparna Ashram) had complied with the conditions subject to which registration was granted to it under Section 35(2A) of the Act was not produced by the assessee so as to entitle it to the claim of deduction of the donation made. The learned ITAT took the view that the aforesaid conditions were not material. The High Court on due consideration found that the said conditions were necessary preconditions to the grant of statutory registration and had to be satisfied. There is no dispute on the fact that no such certificate had been furnished by the assessee and also that all Authorities have consistently held that if and when such certificate is produced the consequential benefit can be afforded to the assessee. In the aforesaid circumstances, we do not see how the view taken by the High Court that the assessee was not entitled to the benefit of donation made to Aparna Ashram can be faulted. 7. An issue on which there could be little dispute on law, nevertheless, needs to be dealt with in view of the elaborate arguments advanced on behalf of the appellant – assessee, namely, that the High Court had relied on findings of fact independent of those considered by the learned ITAT which is the final fact finding authority. Reliance in this regard has been placed on several judgments of this Court to contend that issues of fact determined by the Tribunal are final and the High Court in exercise of its reference jurisdiction should not act as an appellate Court to review such findings of fact arrived at by the Tribunal by a process of reappreciation and reappraisal of the evidence on record. The aforesaid position in law has been consistently laid down by this Court in several of its pronouncements out of which, illustratively, reference may be made to Karnani Properties Ltd. Vs. Commissioner of Income-Tax, West Bengal [82 ITR 547] , Rameshwar Prasad Bagla vs. Commissioner of Income-Tax, U.P. [87 ITR 421] , Commissioner of Income-Tax, Bombay City vs. Greaves Cotton and Co. Ltd. [68 ITR 200] and K. Ravindranathan Nair vs. Commissioner of Income-Tax [247 ITR 178]. 8. The legal position in this regard may be summed up by reiterating that it is the Tribunal which is the final fact finding authority and it is beyond the power of the High Court in the exercise of its reference jurisdiction to reconsider such findings on a reappraisal of the evidence and materials on record unless a specific question with regard to an issue of fact being opposed to the weight of the materials on record is raised in the reference before the High Court. 9. Having reiterated the above position in law we do not see how the same can be said to have been transgressed by the impugned order of the High Court. Each relevant fact considered by the High Court to answer the questions referred to it on the claim(s) of deduction raised by the appellant – assesee are acknowledged, admitted and undisputed facts. No fresh determination of facts found by the Tribunal have been made by the High Court. What, however, the High Court did was to take into account certain additional facts, already on record, which were however not taken note of by the Tribunal to arrive at its findings, e.g., that the appellant – assessee had failed to furnish any proof of service rendered by UTC in the course of the relevant Assessment Year i.e. 1984-1985. Alternatively, the High Court construed certain facts as, for example, compliance of the conditions subject to which registration was granted to the Aparna Ashram under Section 35(2A) of the Act to be of significance as against the contrary/different view of the learned Tribunal on this score. There was no departure from the basic facts found by the learned Tribunal in the two illustrative situations cited above, namely, that (i) the assessee had not adduced any proof of service rendered by UTC in the Assessment Year 1984-1985; (ii) that Aparna Ashram had not complied with the conditions subject to which registration had been granted to it under Section 35(2A) of the Act.10. The difference in the approach between the learned Tribunal and the High Court, therefore, is not one relating to determination of new or additional facts but was merely one of emphasis on facts on which there is no dispute. This is surely an exercise that was within the jurisdiction of the High Court in the exercise of its reference power under the provisions of the Act as it then existed.
### Response:
0
### Explanation:
A reading of the order of the ITAT in favour of the assessee which has been reversed by the High Court would indicate that the learned ITAT did not address itself to a very fundamental issue that had arisen before it, namely, effect of the failure of the assessee to produce evidence in support of the services claimed to have been rendered by UTC during the Assessment Year in question i.e. 1984-1985. The answer given by the assessee in response to a specific query made by the Assessing Officer in this regard was that explanations in this regard had already been submitted for the previous Assessment Year i.e. 1983-1984. If service had been rendered to the assessee by UTC during the Assessment Year in question and service charges had been paid for such service rendered, naturally, it was incumbent on the part of the assessee to adduce proof of such service having been rendered during the period under assessment. There is no dispute on the issue that the assessee did not, in fact, offer any proof of the service rendered during the Assessment Year in question. In such circumstances, the High Court was perfectly justified in reversing the eventual conclusion of the learned ITAT on the basis that the findings and conclusions recorded in the course of the assessment proceedings of the previous year cannot foreclose the findings that are required to be arrived at for the Assessment Year in question i.e. 1984-1985. We, therefore, can find no fault with the order of the High Court on the aforesaidthe High Court found the aforesaid view taken by the Tribunal in ITA No.3717/Mds/1987 to be wholly untenable and, therefore, interfered with the reliance placed by the ITAT on the aforesaid decision in the present case. There was no legal bar for the High Court in taking the aforesaid view.Having reiterated the above position in law we do not see how the same can be said to have been transgressed by the impugned order of the High Court. Each relevant fact considered by the High Court to answer the questions referred to it on the claim(s) of deduction raised by the appellant – assesee are acknowledged, admitted and undisputed facts. No fresh determination of facts found by the Tribunal have been made by the High Court. What, however, the High Court did was to take into account certain additional facts, already on record, which were however not taken note of by the Tribunal to arrive at its findings, e.g., that the appellant – assessee had failed to furnish any proof of service rendered by UTC in the course of the relevant Assessment Year i.e. 1984-1985. Alternatively, the High Court construed certain facts as, for example, compliance of the conditions subject to which registration was granted to the Aparna Ashram under Section 35(2A) of the Act to be of significance as against the contrary/different view of the learned Tribunal on this score. There was no departure from the basic facts found by the learned Tribunal in the two illustrative situations cited above, namely, that (i) the assessee had not adduced any proof of service rendered by UTC in the Assessment Year 1984-1985; (ii) that Aparna Ashram had not complied with the conditions subject to which registration had been granted to it under Section 35(2A) of the Act.10. The difference in the approach between the learned Tribunal and the High Court, therefore, is not one relating to determination of new or additional facts but was merely one of emphasis on facts on which there is no dispute. This is surely an exercise that was within the jurisdiction of the High Court in the exercise of its reference power under the provisions of the Act as it then existed.
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M/S. Hindustan Zinc Ltd Vs. Comnr. Of Central Excise, Jaipur | stage, it, therefore, becomes necessary to see what is the product of the assessee and what is the product in the market. At the outset, it may be pointed out that both the products are silver chloride. Both exist in the form of white pasty mass. However, the question which arises for determination is on marketability. According to the assessee, silver chloride as a residue of the treatment of filtration, having silver content of 50% to 53%, has no market. According to the assessee, silver chloride which is sold in the market emerges from pure silver and, therefore, the content of silver in the silver chloride, which is sold in the market, is 75% and the purity level of 99%. In the case of Cadila Laboratories Pvt. Ltd.(supra), the Division Bench of this Court, speaking through one of us [Variava, J.] has held: 9. Thus, the law is that in order to be excisable, not only goods must be manufactured i.e. some new product brought into existence, but the goods must be marketable. By marketable it does not mean that the goods must be actually bought and sold in the market. But the goods must be capable of being bought or sold in the market. The law also is that goods which are in the crude or unstable form and which require a further processing before they can be marketed, cannot be considered to be marketable goods merely because they fall within the Schedule to the Excise Act. 12. It is an admitted position that the department has (1) made no efforts to ascertain whether any of the intermediate products are available in the market; (2) even if available whether or not products available in the market are the same as that produced by the Appellant; (3) none of the intermediate products manufactured by the Appellants were got analysed by a chemical analyser. It is admitted that the Report of the chemical analyser, relied on, was based only on the write up given by the Appellant. In his cross- examination the chemical analyser admits that there was no facility available in his laboratory to carry out tests to establish the identity of the products. He also admits that, except for 3-4 Diamino Benzophenone there was no reference available, regarding other intermediate products, in the technical literature available in the laboratory. 13. At this stage, it must be mentioned that Customs Notification relied upon does not refer to all the products. Reliance on such a Notification may be relevant and may show marketability if the goods are identical. However, where a question is raised that goods available in the market are finished or refined product whereas what is manufactured is in a crude and unrefined form, the burden would be on the department to show that what is available in the market is the same as the goods manufactured. In this case, no attempt is made to find out whether any of these products are bought or sold in the market and more importantly it has not been verified, by drawing samples of Appellants products and getting them chemically analysed, whether their claim is false. It has not been ascertained whether or not Appellants products are in crude and unstable form and/or whether these products had a shelf life of only a few hours. Mere fact that they are stored in tins or cans for a short period would not ipso facto lead to the conclusion that the products were stable. 14. It is admitted that the Appellants had bought one of the products from the market at one stage. However, they have explained that what was bought was in a purer form and the product they manufacture does not have that purity. It was for the department to check this. The department has chosen not to do so. The burden being on the department it will have to be held that they have not discharged that burden. The order passed only on the basis that these goods can conceivably be sold cannot be sustained in the light of the law which has been set out hereinabove. 8. Thus, marketability is essentially a question of fact. In the show-cause notice it is stated as follows: As per market enquiry conducted revealed that silver chloride (75%) was being sold ex-factory @ Rs.1000/- per 100 Gms. i.e. Rs.10,000/- per Kg. The silver chloride manufactured by M/s Hindustan Zinc Ltd. Debari containing 53.7% silver its assessable value of the comparable goods under the provisions of Rule 6(b)(i) of Central Excise (Valuation) Rules, 1975 works out to be Rs.7160/- per Kg. 9. This seems to suggest that some market enquiry was made. However, it could not be shown to us what that market enquiry was. The above statement also shows that silver chloride sold in the market had 75% silver content. In the present case, the department has made no efforts to ascertain whether silver chloride emerging from the treatment adopted in the assessees factory, having 50% to 53% silver content, had a market. Mathematical ratio between total quantity of silver chloride and silver content cannot establish marketability. The burden was on the department to prove such marketability. In the circumstances, on facts, we hold that the department has failed to prove the test of marketability. 10. Before concluding, we may point out that since 1990, when the case of Hindustan Zinc Ltd. (supra) came to be decided, the question of excisability of silver chloride has been cropping up and yet till this day no steps have been taken by the department to go to the market and collect proper evidence of marketability. In most of the matters, we find lethargy and reluctance on the part of the department to collect evidence on marketability and even in cases where market enquiry is made it is made in a perfunctory manner. Consequently, despite the department having good case on classification, we are constrained to allow the appeal of the assessee on marketability for want of evidence. | 1[ds]7. At this stage, it, therefore, becomes necessary to see what is the product of the assessee and what is the product in the market. At the outset, it may be pointed out that both the products are silver chloride. Both exist in the form of white pasty mass. However, the question which arises for determination is on marketabilityIn the case of Cadila Laboratories Pvt. Ltd.(supra), the Division Bench of this Court, speaking through one of us [Variava, J.] has held:9. Thus, the law is that in order to be excisable, not only goods must be manufactured i.e. some new product brought into existence, but the goods must be marketable. By marketable it does not mean that the goods must be actually bought and sold in the market. But the goods must be capable of being bought or sold in the market. The law also is that goods which are in the crude or unstable form and which require a further processing before they can be marketed, cannot be considered to be marketable goods merely because they fall within the Schedule to the Excise Act12. It is an admitted position that the department has (1) made no efforts to ascertain whether any of the intermediate products are available in the market; (2) even if available whether or not products available in the market are the same as that produced by the Appellant; (3) none of the intermediate products manufactured by the Appellants were got analysed by a chemical analyser. It is admitted that the Report of the chemical analyser, relied on, was based only on the write up given by the Appellant. In his cross- examination the chemical analyser admits that there was no facility available in his laboratory to carry out tests to establish the identity of the products. He also admits that, except for 3-4 Diamino Benzophenone there was no reference available, regarding other intermediate products, in the technical literature available in the laboratory13. At this stage, it must be mentioned that Customs Notification relied upon does not refer to all the products. Reliance on such a Notification may be relevant and may show marketability if the goods are identical. However, where a question is raised that goods available in the market are finished or refined product whereas what is manufactured is in a crude and unrefined form, the burden would be on the department to show that what is available in the market is the same as the goods manufactured. In this case, no attempt is made to find out whether any of these products are bought or sold in the market and more importantly it has not been verified, by drawing samples of Appellants products and getting them chemically analysed, whether their claim is false. It has not been ascertained whether or not Appellants products are in crude and unstable form and/or whether these products had a shelf life of only a few hours. Mere fact that they are stored in tins or cans for a short period would not ipso facto lead to the conclusion that the products were stable14. It is admitted that the Appellants had bought one of the products from the market at one stage. However, they have explained that what was bought was in a purer form and the product they manufacture does not have that purity. It was for the department to check this. The department has chosen not to do so. The burden being on the department it will have to be held that they have not discharged that burden. The order passed only on the basis that these goods can conceivably be sold cannot be sustained in the light of the law which has been set out hereinabove8. Thus, marketability is essentially a question of fact9. This seems to suggest that some market enquiry was made. However, it could not be shown to us what that market enquiry was. The above statement also shows that silver chloride sold in the market had 75% silver content. In the present case, the department has made no efforts to ascertain whether silver chloride emerging from the treatment adopted in the assessees factory, having 50% to 53% silver content, had a market. Mathematical ratio between total quantity of silver chloride and silver content cannot establish marketability. The burden was on the department to prove such marketability. In the circumstances, on facts, we hold that the department has failed to prove the test of marketability10. Before concluding, we may point out that since 1990, when the case of Hindustan Zinc Ltd. (supra) came to be decided, the question of excisability of silver chloride has been cropping up and yet till this day no steps have been taken by the department to go to the market and collect proper evidence of marketability. In most of the matters, we find lethargy and reluctance on the part of the department to collect evidence on marketability and even in cases where market enquiry is made it is made in a perfunctory manner. Consequently, despite the department having good case on classification, we are constrained to allow the appeal of the assessee on marketability for want of evidence. | 1 | 1,981 | 961 | ### Instruction:
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stage, it, therefore, becomes necessary to see what is the product of the assessee and what is the product in the market. At the outset, it may be pointed out that both the products are silver chloride. Both exist in the form of white pasty mass. However, the question which arises for determination is on marketability. According to the assessee, silver chloride as a residue of the treatment of filtration, having silver content of 50% to 53%, has no market. According to the assessee, silver chloride which is sold in the market emerges from pure silver and, therefore, the content of silver in the silver chloride, which is sold in the market, is 75% and the purity level of 99%. In the case of Cadila Laboratories Pvt. Ltd.(supra), the Division Bench of this Court, speaking through one of us [Variava, J.] has held: 9. Thus, the law is that in order to be excisable, not only goods must be manufactured i.e. some new product brought into existence, but the goods must be marketable. By marketable it does not mean that the goods must be actually bought and sold in the market. But the goods must be capable of being bought or sold in the market. The law also is that goods which are in the crude or unstable form and which require a further processing before they can be marketed, cannot be considered to be marketable goods merely because they fall within the Schedule to the Excise Act. 12. It is an admitted position that the department has (1) made no efforts to ascertain whether any of the intermediate products are available in the market; (2) even if available whether or not products available in the market are the same as that produced by the Appellant; (3) none of the intermediate products manufactured by the Appellants were got analysed by a chemical analyser. It is admitted that the Report of the chemical analyser, relied on, was based only on the write up given by the Appellant. In his cross- examination the chemical analyser admits that there was no facility available in his laboratory to carry out tests to establish the identity of the products. He also admits that, except for 3-4 Diamino Benzophenone there was no reference available, regarding other intermediate products, in the technical literature available in the laboratory. 13. At this stage, it must be mentioned that Customs Notification relied upon does not refer to all the products. Reliance on such a Notification may be relevant and may show marketability if the goods are identical. However, where a question is raised that goods available in the market are finished or refined product whereas what is manufactured is in a crude and unrefined form, the burden would be on the department to show that what is available in the market is the same as the goods manufactured. In this case, no attempt is made to find out whether any of these products are bought or sold in the market and more importantly it has not been verified, by drawing samples of Appellants products and getting them chemically analysed, whether their claim is false. It has not been ascertained whether or not Appellants products are in crude and unstable form and/or whether these products had a shelf life of only a few hours. Mere fact that they are stored in tins or cans for a short period would not ipso facto lead to the conclusion that the products were stable. 14. It is admitted that the Appellants had bought one of the products from the market at one stage. However, they have explained that what was bought was in a purer form and the product they manufacture does not have that purity. It was for the department to check this. The department has chosen not to do so. The burden being on the department it will have to be held that they have not discharged that burden. The order passed only on the basis that these goods can conceivably be sold cannot be sustained in the light of the law which has been set out hereinabove. 8. Thus, marketability is essentially a question of fact. In the show-cause notice it is stated as follows: As per market enquiry conducted revealed that silver chloride (75%) was being sold ex-factory @ Rs.1000/- per 100 Gms. i.e. Rs.10,000/- per Kg. The silver chloride manufactured by M/s Hindustan Zinc Ltd. Debari containing 53.7% silver its assessable value of the comparable goods under the provisions of Rule 6(b)(i) of Central Excise (Valuation) Rules, 1975 works out to be Rs.7160/- per Kg. 9. This seems to suggest that some market enquiry was made. However, it could not be shown to us what that market enquiry was. The above statement also shows that silver chloride sold in the market had 75% silver content. In the present case, the department has made no efforts to ascertain whether silver chloride emerging from the treatment adopted in the assessees factory, having 50% to 53% silver content, had a market. Mathematical ratio between total quantity of silver chloride and silver content cannot establish marketability. The burden was on the department to prove such marketability. In the circumstances, on facts, we hold that the department has failed to prove the test of marketability. 10. Before concluding, we may point out that since 1990, when the case of Hindustan Zinc Ltd. (supra) came to be decided, the question of excisability of silver chloride has been cropping up and yet till this day no steps have been taken by the department to go to the market and collect proper evidence of marketability. In most of the matters, we find lethargy and reluctance on the part of the department to collect evidence on marketability and even in cases where market enquiry is made it is made in a perfunctory manner. Consequently, despite the department having good case on classification, we are constrained to allow the appeal of the assessee on marketability for want of evidence.
### Response:
1
### Explanation:
7. At this stage, it, therefore, becomes necessary to see what is the product of the assessee and what is the product in the market. At the outset, it may be pointed out that both the products are silver chloride. Both exist in the form of white pasty mass. However, the question which arises for determination is on marketabilityIn the case of Cadila Laboratories Pvt. Ltd.(supra), the Division Bench of this Court, speaking through one of us [Variava, J.] has held:9. Thus, the law is that in order to be excisable, not only goods must be manufactured i.e. some new product brought into existence, but the goods must be marketable. By marketable it does not mean that the goods must be actually bought and sold in the market. But the goods must be capable of being bought or sold in the market. The law also is that goods which are in the crude or unstable form and which require a further processing before they can be marketed, cannot be considered to be marketable goods merely because they fall within the Schedule to the Excise Act12. It is an admitted position that the department has (1) made no efforts to ascertain whether any of the intermediate products are available in the market; (2) even if available whether or not products available in the market are the same as that produced by the Appellant; (3) none of the intermediate products manufactured by the Appellants were got analysed by a chemical analyser. It is admitted that the Report of the chemical analyser, relied on, was based only on the write up given by the Appellant. In his cross- examination the chemical analyser admits that there was no facility available in his laboratory to carry out tests to establish the identity of the products. He also admits that, except for 3-4 Diamino Benzophenone there was no reference available, regarding other intermediate products, in the technical literature available in the laboratory13. At this stage, it must be mentioned that Customs Notification relied upon does not refer to all the products. Reliance on such a Notification may be relevant and may show marketability if the goods are identical. However, where a question is raised that goods available in the market are finished or refined product whereas what is manufactured is in a crude and unrefined form, the burden would be on the department to show that what is available in the market is the same as the goods manufactured. In this case, no attempt is made to find out whether any of these products are bought or sold in the market and more importantly it has not been verified, by drawing samples of Appellants products and getting them chemically analysed, whether their claim is false. It has not been ascertained whether or not Appellants products are in crude and unstable form and/or whether these products had a shelf life of only a few hours. Mere fact that they are stored in tins or cans for a short period would not ipso facto lead to the conclusion that the products were stable14. It is admitted that the Appellants had bought one of the products from the market at one stage. However, they have explained that what was bought was in a purer form and the product they manufacture does not have that purity. It was for the department to check this. The department has chosen not to do so. The burden being on the department it will have to be held that they have not discharged that burden. The order passed only on the basis that these goods can conceivably be sold cannot be sustained in the light of the law which has been set out hereinabove8. Thus, marketability is essentially a question of fact9. This seems to suggest that some market enquiry was made. However, it could not be shown to us what that market enquiry was. The above statement also shows that silver chloride sold in the market had 75% silver content. In the present case, the department has made no efforts to ascertain whether silver chloride emerging from the treatment adopted in the assessees factory, having 50% to 53% silver content, had a market. Mathematical ratio between total quantity of silver chloride and silver content cannot establish marketability. The burden was on the department to prove such marketability. In the circumstances, on facts, we hold that the department has failed to prove the test of marketability10. Before concluding, we may point out that since 1990, when the case of Hindustan Zinc Ltd. (supra) came to be decided, the question of excisability of silver chloride has been cropping up and yet till this day no steps have been taken by the department to go to the market and collect proper evidence of marketability. In most of the matters, we find lethargy and reluctance on the part of the department to collect evidence on marketability and even in cases where market enquiry is made it is made in a perfunctory manner. Consequently, despite the department having good case on classification, we are constrained to allow the appeal of the assessee on marketability for want of evidence.
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Jaipur Zila Dugdh Utpadak Sahkari Sangh Limited & Ors Vs. M/s Ajay Sales & Suppliers & Ors | In paragraphs 15 & 20 it is observed and held as under: 15. Section 12(5), on the other hand, is a new provision which relates to the de jure inability of an arbitrator to act as such. Under this provision, any prior agreement to the contrary is wiped out by the non- obstante clause in Section 12(5) the moment any person whose relationship with the parties or the counsel or the subject matter of the dispute falls under the Seventh Schedule. The sub-section then declares that such person shall be ineligible to be appointed as arbitrator. The only way in which this ineligibility can be removed is by the proviso, which again is a special provision which states that parties may, subsequent to disputes having arisen between them, waive the applicability of Section 12(5) by an express agreement in writing. What is clear, therefore, is that where, under any agreement between the parties, a person falls within any of the categories set out in the Seventh Schedule, he is, as a matter of law, ineligible to be appointed as an arbitrator. The only way in which this ineligibility can be removed, again, in law, is that parties may after disputes have arisen between them, waive the applicability of this sub-section by an express agreement in writing. Obviously, the express agreement in writing has reference to a person who is interdicted by the Seventh Schedule, but who is stated by parties (after the disputes have arisen between them) to be a person in whom they have faith notwithstanding the fact that such person is interdicted by the Seventh Schedule. xxx xxx xxx 20. This then brings us to the applicability of the proviso to Section 12(5) on the facts of this case. Unlike Section 4 of the Act which deals with deemed waiver of the right to object by conduct, the proviso to Section 12(5) will only apply if subsequent to disputes having arisen between the parties, the parties waive the applicability of sub-section (5) of Section 12 by an express agreement in writing. For this reason, the argument based on the analogy of Section 7 of the Act must also be rejected. Section 7 deals with arbitration agreements that must be in writing, and then explains that such agreements may be contained in documents which provide a record of such agreements. On the other hand, Section 12(5) refers to an express agreement in writing. The expression express agreement in writing refers to an agreement made in words as opposed to an agreement which is to be inferred by conduct. Here, Section 9 of the Indian Contract Act, 1872 becomes important. It states: 9. Promises, express and implied.—In so far as a proposal or acceptance of any promise is made in words, the promise is said to be express. In so far as such proposal or acceptance is made otherwise than in words, the promise is said to be implied. It is thus necessary that there be an express agreement in writing. This agreement must be an agreement by which both parties, with full knowledge of the fact that Shri Khan is ineligible to be appointed as an arbitrator, still go ahead and say that they have full faith and confidence in him to continue as such. The facts of the present case disclose no such express agreement. The appointment letter which is relied upon by the High Court as indicating an express agreement on the facts of the case is dated 17.01.2017. On this date, the Managing Director of the appellant was certainly not aware that Shri Khan could not be appointed by him as Section 12(5) read with the Seventh Schedule only went to the invalidity of the appointment of the Managing Director himself as an arbitrator. Shri Khans invalid appointment only became clear after the declaration of the law by the Supreme Court in TRF Ltd. (supra) which, as we have seen hereinabove, was only on 03.07.2017. After this date, far from there being an express agreement between the parties as to the validity of Shri Khans appointment, the appellant filed an application on 07.10.2017 before the sole arbitrator, bringing the arbitrators attention to the judgment in TRF Ltd. (supra) and asking him to declare that he has become de jure incapable of acting as an arbitrator. Equally, the fact that a statement of claim may have been filed before the arbitrator, would not mean that there is an express agreement in words which would make it clear that both parties wish Shri Khan to continue as arbitrator despite being ineligible to act as such. This being the case, the impugned judgment is not correct when it applies Section 4, Section 7, Section 12(4), Section 13(2), and Section 16(2) of the Act to the facts of the present case, and goes on to state that the appellant cannot be allowed to raise the issue of eligibility of an arbitrator, having itself appointed the arbitrator. The judgment under appeal is also in correct in stating that there is an express waiver in writing from the fact that an appointment letter has been issued by the appellant, and a statement of claim has been filed by the respondent before the arbitrator. The moment the appellant came to know that Shri Khans appointment itself would be invalid, it filed an application before the sole arbitrator for termination of his mandate. 11. In view of the above and for the reasons stated above once the sole arbitrator – Chairman is ineligible to act as an arbitrator to resolve the dispute between the parties in view of Sub-section (5) of Section 12 read with Seventh Schedule to the Act he loses mandate to continue as a sole arbitrator. Therefore, it cannot be said that the High Court has committed any error in appointing the arbitrator other than the sole arbitrator – Chairman as per Clause 13 of the Agreement in exercise of powers, under Section 11 read with Section 14 of the Act. | 0[ds]6. It is not in dispute that distributorship agreement between the parties was dated 31.03.2015 i.e. prior to the insertion of Sub-section (5) of Section 12 and Seventh Schedule to the Act w.e.f. 23.10.2015. It also cannot be disputed that Clause 13 of the Agreement dated 31.03.2015 contained the arbitration clause and as per Clause 13, any dispute and differences arising out of or in any way touching or concerning distributorship agreement shall be resolved through arbitration. As per Clause 13 such a dispute shall be referred to the sole Arbitrator – the Chairman, Sahkari Sangh.6.3 So far as the submission on behalf of the petitioners that the agreement was prior to the insertion of Sub-section (5) of Section 12 read with Seventh Schedule to the Act and therefore the disqualification under Sub-section (5) of Section 12 read with Seventh Schedule to the Act shall not be applicable and that once an arbitrator – Chairman started the arbitration proceedings thereafter the High Court is not justified in appointing an arbitrator are concerned the aforesaid has no substance and can to be accepted in view of the decision of this Court in Trf Ltd vs Energo Engineering Projects Ltd, (2017) 8 SCC 377 ; Bharat Broadband Network Limited vs United Telecoms Limited, (2019) 5 SCC 755 ; Voestalpine Schienen GMBH vs. Delhi Metro Rail Corporation Limited, (2017) 4 SCC 665. In the aforesaid decisions this Court had an occasion to consider in detail the object and purpose of insertion of Sub- section (5) of Section 12 read with Seventh Schedule to the Act. In the case of Voestalpine Schienen GMBH (Supra) it is observed and held by this Court that the main purpose for amending the provision was to provide for neutrality of arbitrators. It is further observed that in order to achieve this, Sub-section (5) of Section 12 lays down that notwithstanding any prior agreement to the contrary, any person whose relationship with the parties or counsel or the subject-matter of the dispute falls under any of the categories specified in the Seventh Schedule, he shall be ineligible to be appointed as an arbitrator. It is further observed that in such an eventuality i.e. when the arbitration clause finds foul with the amended provisions (Sub-section (5) of Section 12 read with Seventh Schedule) the appointment of an arbitrator would be beyond pale of the arbitration agreement, empowering the court to appoint such arbitrator as may be permissible. It is further observed that, that would be the effect of non obstante clause contained in sub-section (5) of Section 12 and the other party cannot insist on appointment of the arbitrator in terms of the arbitration agreement.7. In the case of Bharat Broadband Network Limited (Supra), it is observed that Sub-section (5) of Section 12 read with Seventh Schedule made it clear that if the arbitrator falls in any one of the categories specified in the Seventh Schedule, he becomes ineligible to act as an arbitrator. It is further observed that once he becomes ineligible, it is clear that he then become dejure unable to perform his functions inasmuch as in law, he is regarded as ineligible. It further is observed in the said decision that where a person becomes ineligible to be appointed as an arbitrator there is no question of challenge to such arbitrator before such arbitrator in such a case i.e. a case which falls under Section 14(1)(a) of the Act gets attracted inasmuch as the arbitrator becomes, as a matter of law (i.e., de jure), unable to perform his functions under Section12(5), being ineligible to be appointed as an arbitrator and this being so, his mandate automatically terminates, and he shall then be substituted by another arbitrator.7.1 Now so far as the submission on behalf of the petitioners that in view of Section 58 of the Rajasthan Cooperative Societies Act, 2001, the dispute between the parties is to be resolved by the Registrar only and as per Bye Laws 30 of Rajasthan Cooperative Societies Act, 2001 shall be applicable and therefore no court shall have jurisdiction and therefore the dispute referred to the former District Judge is unsustainable has no substance. It cannot be disputed that Arbitration Act is a special Act. Even Sub-section (5) of Section 12 also states with non obstante clause. In the distributorship agreement dated 31.03.2015, there is a provision to resolve dispute through arbitration. Despite Section 58 of the Rajasthan Cooperative Societies Act, 2001, there is an agreement between the parties to resolve the dispute through arbitrator – Chairman. Parties are bound by the agreement and the arbitration clause contained in the Agreement dated 31.03.2015. Therefore, neither Section 58 of the Rajasthan Cooperative Societies Act, 2001 shall not be applicable at all nor the same shall come in the way of appointing the arbitrator under the Arbitration Act.The aforesaid has no substance at all. Disqualification/ineligible under Sub-section (5) of Section 12 read with Seventh Schedule to the Act is to be read as a whole and considering the object and purpose for which Sub-section (5) of Section 12 read with Seventh Schedule to the Act came to be inserted. Sub-section (5) of Section 12 read with Seventh Schedule has been inserted bearing in mind the impartiality and independence of the arbitrators. It has been inserted with the purpose of neutrality of arbitrators. Independence and impartiality of the arbitrators are the hallmarks of any arbitration proceedings as observed in the case of Voestalpine Schienen (Supra). Rule against bias is one of the fundamental principles of natural justice which apply to all judicial proceedings and quasi-judicial proceedings and it is for this reason that despite the contractually agreed upon, the persons mentioned in Sub-section (5) of Section 12 read with Seventh Schedule to the Act would render himself ineligible to conduct the arbitration. In paragraphs 20 to 22 in the case of Voestalpine Schienen (Supra) it is observed and held as under:20. Independence and impartiality of the arbitrator are the hallmarks of any arbitration proceedings. Rule against bias is one of the fundamental principles of natural justice which applied to all judicial and quasi judicial proceedings. It is for this reason that notwithstanding the fact that relationship between the parties to the arbitration and the arbitrators themselves are contractual in nature and the source of an arbitrators appointment is deduced from the agreement entered into between the parties, notwithstanding the same non-independence and non-impartiality of such arbitrator (though contractually agreed upon) would render him ineligible to conduct the arbitration. The genesis behind this rational is that even when an arbitrator is appointed in terms of contract and by the parties to the contract, he is independent of the parties. Functions and duties require him to rise above the partisan interest of the parties and not to act in, or so as to further, the particular interest of either parties. After all, the arbitrator has adjudicatory role to perform and, therefore, he must be independent of parties as well as impartial. The United Kingdom Supreme Court has beautifully highlighted this aspect in Hashwani v. Jivraj in the following words: (WLR p. 1889, para 45)45 .. ...the dominant purpose of appointing an arbitrator or arbitrators is the impartial resolution of the dispute between the parties in accordance with the terms of the agreement and, although the contract between the parties and the arbitrators would be a contract for the provision of personal services, they were not personal services under the direction of the parties.21. Similarly, Cour de Cassation, France, in a judgment delivered in 1972 in Consorts Ury, underlined that:an independent mind is indispensable in the exercise of judicial power, whatever the source of that power may be, and it is one of the essential qualities of an arbitrator.22. Independence and impartiality are two different concepts. An arbitrator may be independent and yet, lack impartiality, or vice versa. Impartiality, as is well accepted, is a more subjective concept as compared to independence. Independence, which is more an objective concept, may, thus, be more straightforwardly ascertained by the parties at the outset of the arbitration proceedings in light of the circumstances disclosed by the arbitrator, while partiality will more likely surface during the arbitration proceedings.9. Applying the law laid down by this Court in the aforesaid decisions and considering the object and purpose of insertion of Sub-section (5) of Section 12 read with Seventh Schedule to the Act, the Chairman of the petitioner Sangh can certainly be held to be ineligible to continue as an arbitrator.10. Now so far as the submission on behalf of the petitioners that the respondents participated in the arbitration proceedings before the sole arbitrator – Chairman and therefore he ought not to have approached the High Court for appointment of arbitrator under Section 11 is concerned, the same has also no substance. As held by this Court in the case of Bharat Broadband Network Limited (Supra) there must be an express agreement in writing to satisfy the requirements of Section 12(5) proviso. In paragraphs 15 & 20 it is observed and held as under:15. Section 12(5), on the other hand, is a new provision which relates to the de jure inability of an arbitrator to act as such. Under this provision, any prior agreement to the contrary is wiped out by the non- obstante clause in Section 12(5) the moment any person whose relationship with the parties or the counsel or the subject matter of the dispute falls under the Seventh Schedule. The sub-section then declares that such person shall be ineligible to be appointed as arbitrator. The only way in which this ineligibility can be removed is by the proviso, which again is a special provision which states that parties may, subsequent to disputes having arisen between them, waive the applicability of Section 12(5) by an express agreement in writing. What is clear, therefore, is that where, under any agreement between the parties, a person falls within any of the categories set out in the Seventh Schedule, he is, as a matter of law, ineligible to be appointed as an arbitrator. The only way in which this ineligibility can be removed, again, in law, is that parties may after disputes have arisen between them, waive the applicability of this sub-section by an express agreement in writing. Obviously, the express agreement in writing has reference to a person who is interdicted by the Seventh Schedule, but who is stated by parties (after the disputes have arisen between them) to be a person in whom they have faith notwithstanding the fact that such person is interdicted by the Seventh Schedule.xxx xxx xxx20. This then brings us to the applicability of the proviso to Section 12(5) on the facts of this case. Unlike Section 4 of the Act which deals with deemed waiver of the right to object by conduct, the proviso to Section 12(5) will only apply if subsequent to disputes having arisen between the parties, the parties waive the applicability of sub-section (5) of Section 12 by an express agreement in writing. For this reason, the argument based on the analogy of Section 7 of the Act must also be rejected. Section 7 deals with arbitration agreements that must be in writing, and then explains that such agreements may be contained in documents which provide a record of such agreements. On the other hand, Section 12(5) refers to an express agreement in writing. The expression express agreement in writing refers to an agreement made in words as opposed to an agreement which is to be inferred by conduct. Here, Section 9 of the Indian Contract Act, 1872 becomes important. It states:9. Promises, express and implied.—In so far as a proposal or acceptance of any promise is made in words, the promise is said to be express. In so far as such proposal or acceptance is made otherwise than in words, the promise is said to be implied. It is thus necessary that there be an express agreement in writing.This agreement must be an agreement by which both parties, with full knowledge of the fact that Shri Khan is ineligible to be appointed as an arbitrator, still go ahead and say that they have full faith and confidence in him to continue as such. The facts of the present case disclose no such express agreement. The appointment letter which is relied upon by the High Court as indicating an express agreement on the facts of the case is dated 17.01.2017. On this date, the Managing Director of the appellant was certainly not aware that Shri Khan could not be appointed by him as Section 12(5) read with the Seventh Schedule only went to the invalidity of the appointment of the Managing Director himself as an arbitrator. Shri Khans invalid appointment only became clear after the declaration of the law by the Supreme Court in TRF Ltd. (supra) which, as we have seen hereinabove, was only on 03.07.2017. After this date, far from there being an express agreement between the parties as to the validity of Shri Khans appointment, the appellant filed an application on 07.10.2017 before the sole arbitrator, bringing the arbitrators attention to the judgment in TRF Ltd. (supra) and asking him to declare that he has become de jure incapable of acting as an arbitrator. Equally, the fact that a statement of claim may have been filed before the arbitrator, would not mean that there is an express agreement in words which would make it clear that both parties wish Shri Khan to continue as arbitrator despite being ineligible to act as such. This being the case, the impugned judgment is not correct when it applies Section 4, Section 7, Section 12(4), Section 13(2), and Section 16(2) of the Act to the facts of the present case, and goes on to state that the appellant cannot be allowed to raise the issue of eligibility of an arbitrator, having itself appointed the arbitrator. The judgment under appeal is also in correct in stating that there is an express waiver in writing from the fact that an appointment letter has been issued by the appellant, and a statement of claim has been filed by the respondent before the arbitrator. The moment the appellant came to know that Shri Khans appointment itself would be invalid, it filed an application before the sole arbitrator for termination of his mandate.11. In view of the above and for the reasons stated above once the sole arbitrator – Chairman is ineligible to act as an arbitrator to resolve the dispute between the parties in view of Sub-section (5) of Section 12 read with Seventh Schedule to the Act he loses mandate to continue as a sole arbitrator. Therefore, it cannot be said that the High Court has committed any error in appointing the arbitrator other than the sole arbitrator – Chairman as per Clause 13 of the Agreement in exercise of powers, under Section 11 read with Section 14 of the Act. | 0 | 6,315 | 2,790 | ### 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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In paragraphs 15 & 20 it is observed and held as under: 15. Section 12(5), on the other hand, is a new provision which relates to the de jure inability of an arbitrator to act as such. Under this provision, any prior agreement to the contrary is wiped out by the non- obstante clause in Section 12(5) the moment any person whose relationship with the parties or the counsel or the subject matter of the dispute falls under the Seventh Schedule. The sub-section then declares that such person shall be ineligible to be appointed as arbitrator. The only way in which this ineligibility can be removed is by the proviso, which again is a special provision which states that parties may, subsequent to disputes having arisen between them, waive the applicability of Section 12(5) by an express agreement in writing. What is clear, therefore, is that where, under any agreement between the parties, a person falls within any of the categories set out in the Seventh Schedule, he is, as a matter of law, ineligible to be appointed as an arbitrator. The only way in which this ineligibility can be removed, again, in law, is that parties may after disputes have arisen between them, waive the applicability of this sub-section by an express agreement in writing. Obviously, the express agreement in writing has reference to a person who is interdicted by the Seventh Schedule, but who is stated by parties (after the disputes have arisen between them) to be a person in whom they have faith notwithstanding the fact that such person is interdicted by the Seventh Schedule. xxx xxx xxx 20. This then brings us to the applicability of the proviso to Section 12(5) on the facts of this case. Unlike Section 4 of the Act which deals with deemed waiver of the right to object by conduct, the proviso to Section 12(5) will only apply if subsequent to disputes having arisen between the parties, the parties waive the applicability of sub-section (5) of Section 12 by an express agreement in writing. For this reason, the argument based on the analogy of Section 7 of the Act must also be rejected. Section 7 deals with arbitration agreements that must be in writing, and then explains that such agreements may be contained in documents which provide a record of such agreements. On the other hand, Section 12(5) refers to an express agreement in writing. The expression express agreement in writing refers to an agreement made in words as opposed to an agreement which is to be inferred by conduct. Here, Section 9 of the Indian Contract Act, 1872 becomes important. It states: 9. Promises, express and implied.—In so far as a proposal or acceptance of any promise is made in words, the promise is said to be express. In so far as such proposal or acceptance is made otherwise than in words, the promise is said to be implied. It is thus necessary that there be an express agreement in writing. This agreement must be an agreement by which both parties, with full knowledge of the fact that Shri Khan is ineligible to be appointed as an arbitrator, still go ahead and say that they have full faith and confidence in him to continue as such. The facts of the present case disclose no such express agreement. The appointment letter which is relied upon by the High Court as indicating an express agreement on the facts of the case is dated 17.01.2017. On this date, the Managing Director of the appellant was certainly not aware that Shri Khan could not be appointed by him as Section 12(5) read with the Seventh Schedule only went to the invalidity of the appointment of the Managing Director himself as an arbitrator. Shri Khans invalid appointment only became clear after the declaration of the law by the Supreme Court in TRF Ltd. (supra) which, as we have seen hereinabove, was only on 03.07.2017. After this date, far from there being an express agreement between the parties as to the validity of Shri Khans appointment, the appellant filed an application on 07.10.2017 before the sole arbitrator, bringing the arbitrators attention to the judgment in TRF Ltd. (supra) and asking him to declare that he has become de jure incapable of acting as an arbitrator. Equally, the fact that a statement of claim may have been filed before the arbitrator, would not mean that there is an express agreement in words which would make it clear that both parties wish Shri Khan to continue as arbitrator despite being ineligible to act as such. This being the case, the impugned judgment is not correct when it applies Section 4, Section 7, Section 12(4), Section 13(2), and Section 16(2) of the Act to the facts of the present case, and goes on to state that the appellant cannot be allowed to raise the issue of eligibility of an arbitrator, having itself appointed the arbitrator. The judgment under appeal is also in correct in stating that there is an express waiver in writing from the fact that an appointment letter has been issued by the appellant, and a statement of claim has been filed by the respondent before the arbitrator. The moment the appellant came to know that Shri Khans appointment itself would be invalid, it filed an application before the sole arbitrator for termination of his mandate. 11. In view of the above and for the reasons stated above once the sole arbitrator – Chairman is ineligible to act as an arbitrator to resolve the dispute between the parties in view of Sub-section (5) of Section 12 read with Seventh Schedule to the Act he loses mandate to continue as a sole arbitrator. Therefore, it cannot be said that the High Court has committed any error in appointing the arbitrator other than the sole arbitrator – Chairman as per Clause 13 of the Agreement in exercise of powers, under Section 11 read with Section 14 of the Act.
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### Explanation:
the requirements of Section 12(5) proviso. In paragraphs 15 & 20 it is observed and held as under:15. Section 12(5), on the other hand, is a new provision which relates to the de jure inability of an arbitrator to act as such. Under this provision, any prior agreement to the contrary is wiped out by the non- obstante clause in Section 12(5) the moment any person whose relationship with the parties or the counsel or the subject matter of the dispute falls under the Seventh Schedule. The sub-section then declares that such person shall be ineligible to be appointed as arbitrator. The only way in which this ineligibility can be removed is by the proviso, which again is a special provision which states that parties may, subsequent to disputes having arisen between them, waive the applicability of Section 12(5) by an express agreement in writing. What is clear, therefore, is that where, under any agreement between the parties, a person falls within any of the categories set out in the Seventh Schedule, he is, as a matter of law, ineligible to be appointed as an arbitrator. The only way in which this ineligibility can be removed, again, in law, is that parties may after disputes have arisen between them, waive the applicability of this sub-section by an express agreement in writing. Obviously, the express agreement in writing has reference to a person who is interdicted by the Seventh Schedule, but who is stated by parties (after the disputes have arisen between them) to be a person in whom they have faith notwithstanding the fact that such person is interdicted by the Seventh Schedule.xxx xxx xxx20. This then brings us to the applicability of the proviso to Section 12(5) on the facts of this case. Unlike Section 4 of the Act which deals with deemed waiver of the right to object by conduct, the proviso to Section 12(5) will only apply if subsequent to disputes having arisen between the parties, the parties waive the applicability of sub-section (5) of Section 12 by an express agreement in writing. For this reason, the argument based on the analogy of Section 7 of the Act must also be rejected. Section 7 deals with arbitration agreements that must be in writing, and then explains that such agreements may be contained in documents which provide a record of such agreements. On the other hand, Section 12(5) refers to an express agreement in writing. The expression express agreement in writing refers to an agreement made in words as opposed to an agreement which is to be inferred by conduct. Here, Section 9 of the Indian Contract Act, 1872 becomes important. It states:9. Promises, express and implied.—In so far as a proposal or acceptance of any promise is made in words, the promise is said to be express. In so far as such proposal or acceptance is made otherwise than in words, the promise is said to be implied. It is thus necessary that there be an express agreement in writing.This agreement must be an agreement by which both parties, with full knowledge of the fact that Shri Khan is ineligible to be appointed as an arbitrator, still go ahead and say that they have full faith and confidence in him to continue as such. The facts of the present case disclose no such express agreement. The appointment letter which is relied upon by the High Court as indicating an express agreement on the facts of the case is dated 17.01.2017. On this date, the Managing Director of the appellant was certainly not aware that Shri Khan could not be appointed by him as Section 12(5) read with the Seventh Schedule only went to the invalidity of the appointment of the Managing Director himself as an arbitrator. Shri Khans invalid appointment only became clear after the declaration of the law by the Supreme Court in TRF Ltd. (supra) which, as we have seen hereinabove, was only on 03.07.2017. After this date, far from there being an express agreement between the parties as to the validity of Shri Khans appointment, the appellant filed an application on 07.10.2017 before the sole arbitrator, bringing the arbitrators attention to the judgment in TRF Ltd. (supra) and asking him to declare that he has become de jure incapable of acting as an arbitrator. Equally, the fact that a statement of claim may have been filed before the arbitrator, would not mean that there is an express agreement in words which would make it clear that both parties wish Shri Khan to continue as arbitrator despite being ineligible to act as such. This being the case, the impugned judgment is not correct when it applies Section 4, Section 7, Section 12(4), Section 13(2), and Section 16(2) of the Act to the facts of the present case, and goes on to state that the appellant cannot be allowed to raise the issue of eligibility of an arbitrator, having itself appointed the arbitrator. The judgment under appeal is also in correct in stating that there is an express waiver in writing from the fact that an appointment letter has been issued by the appellant, and a statement of claim has been filed by the respondent before the arbitrator. The moment the appellant came to know that Shri Khans appointment itself would be invalid, it filed an application before the sole arbitrator for termination of his mandate.11. In view of the above and for the reasons stated above once the sole arbitrator – Chairman is ineligible to act as an arbitrator to resolve the dispute between the parties in view of Sub-section (5) of Section 12 read with Seventh Schedule to the Act he loses mandate to continue as a sole arbitrator. Therefore, it cannot be said that the High Court has committed any error in appointing the arbitrator other than the sole arbitrator – Chairman as per Clause 13 of the Agreement in exercise of powers, under Section 11 read with Section 14 of the Act.
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Dehra Dun Tea Company Limited and Another Vs. Commissioner of Income Tax, U.P., Lucknow | Hegde, J. 1. These are appeals by special leave. They are directed against the decision of the High Court of Allahabad in a reference under Section 66 (1) of the Indian Income Tax Act 1922 (to be hereinafter referred to as the Act). The common question of law referred in these appeals was:"Whether the tax paid by the assessee company on the tea-garden lands under the U. P. Large Land Holdings Tax Act, 1957 (U. P. Act XXXI of 1957) is liable to be deducted under Section 10 (2) (xv)?". 2. The High Court answered this question in favour of the Revenue. It did so following the decision of this Court in Travancore Titanium Product Ltd. v. C.I.T. Kerala, 60 ITR 277 = (AIR 1966 SC 1250 ). 3. It may be noted that the assessee companies (there are two companies) are taxed under Section 10 of the Act. Their income is considered as business income. The assessee companies are tea-growers and the activity they carry on is a business activity. Therefore, the question is whether the tax paid by them under the U. P. Act XXXI of l957 is an item of expenditure coming within the scope of Section 10 (2) (xv) of the Act. In Indian Aluminium Co. Ltd. v. Commr. of Income Tax, West Bengal, 84 ITR 735 = (AIR 1972 SC 1880 ) a Five-Judge Bench of this Court modified the decision of this Court in Travancore Titanium Products case 60 ITR 277 = (AIR 1966 SC 1250 ) (supra) holding that if the expenditure laid out by the assesses is as an owner-cum-trader and the expenditure is really incidental to the carrying on his business it must be treated to have been laid out by him as a trader and as incidental to his business. On the basis of that rule it came to the conclusion that the wealth tax paid by a trader on his business assets is liable to be deducted under Section l0 (2) (xv) of the Act. Applying the ratio of that decision to the facts of the present case it is clear that the lands owned by the assessee companies are its business assets and the tax paid thereon under the U. P. Act XXXI of 1957 is an item of expenditure laid out by the assesses companies as traders and. as incidental to their business. Consequently the same must be treated as an item of expenditure under S. 10 (2) (xv) of the Act. 4. Mr. Karkhanis appearing for the Revenue contended that so far as tea-growers are concerned they are both the owners of lands as well as traders. It is for that reason they are assessed only on 40 per cent of their net income, applying Rule 24 of the Rules framed under the Act. According to him the tax paid under the U. P. Act XXXI of 1957 is a tax levied on the owners and not on the traders. Consequently the ratio of the decision of this Court in Indian Aluminimum Company s case 84 ITR 735 = (AIR 1972 SC 1880 ) (supra) is inapplicable. We are unable to accept this contention as correct. A tea-grower is considered under the Act, read with Rules as an owner-cum-trader. Therefore, any item of expenditure incurred by him must be considered as an item of expenditure incurred by a trader in connection with his business activity. It is true that only 40 per cent of the net income of the tea-growers are brought to tax under the Act: but, at the same time, the tea-growers will also be entitled only to 40 per cent of the expenditure incurred by them. Under Rule 24, only 40 per cent of the net income is brought to tax. Hence we are unable to accept the contention of Mr. Karkhanis that the ratio of the decision of this Court in the Indian Aluminium Companys case 84 ITR 735 =(AIR 1972 SC 1880 ) (supra) is inapplicable to the facts of this case. Lastly, Mr. Karkhanis contended that in view of the Income-tax (Amendment) Act 1972, an assessee company, is not entitled to claim any deduction in respect of the tax paid by them. In this connection he relies on Section 2 of the Amendment Act of 1972. That section reads:"2. Amendment of Section 40. In Section 40 of the Income-tax Act, 1961 (43 of 1961) (hereinafter referred to as the principal Act), after sub-clause (ii) of clause (a), the following sub-clause shall be, and shall be deemed always to have been, inserted, namely: "(iia) any sum paid on account of wealth-tax." Explanation:-For the purposes of this sub-clause, "wealth-tax" means wealth-tax chargeable under the Wealth-tax Act, 1957 (27 of 1957), or any tax of a similar character chargeable under any law in force in any country outside India or any tax chargeable under such law with reference to the value of the assets of, or the capital employed in, a business or profession, carried on by the assessee, whether do not the debts of the business or profession are allowed as a deduction in computing the amount with reference to which such tax is charged, but does not include any tax chargeable with reference to the value of any particular asset of the business or profession;". 5. We are unable to accept the contention of Mr. Karkhanis that this Section has any bearing on the point arising for decision in this case. Herein we are not dealing with Wealthtax, i.e. a tax on net assets nor with any of the taxes referred in the explanation. | 1[ds]5. We are unable to accept the contention of Mr. Karkhanis that this Section has any bearing on the point arising for decision in this case. Herein we are not dealing with Wealthtax, i.e. a tax on net assets nor with any of the taxes referred in the explanation. | 1 | 1,071 | 58 | ### Instruction:
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Hegde, J. 1. These are appeals by special leave. They are directed against the decision of the High Court of Allahabad in a reference under Section 66 (1) of the Indian Income Tax Act 1922 (to be hereinafter referred to as the Act). The common question of law referred in these appeals was:"Whether the tax paid by the assessee company on the tea-garden lands under the U. P. Large Land Holdings Tax Act, 1957 (U. P. Act XXXI of 1957) is liable to be deducted under Section 10 (2) (xv)?". 2. The High Court answered this question in favour of the Revenue. It did so following the decision of this Court in Travancore Titanium Product Ltd. v. C.I.T. Kerala, 60 ITR 277 = (AIR 1966 SC 1250 ). 3. It may be noted that the assessee companies (there are two companies) are taxed under Section 10 of the Act. Their income is considered as business income. The assessee companies are tea-growers and the activity they carry on is a business activity. Therefore, the question is whether the tax paid by them under the U. P. Act XXXI of l957 is an item of expenditure coming within the scope of Section 10 (2) (xv) of the Act. In Indian Aluminium Co. Ltd. v. Commr. of Income Tax, West Bengal, 84 ITR 735 = (AIR 1972 SC 1880 ) a Five-Judge Bench of this Court modified the decision of this Court in Travancore Titanium Products case 60 ITR 277 = (AIR 1966 SC 1250 ) (supra) holding that if the expenditure laid out by the assesses is as an owner-cum-trader and the expenditure is really incidental to the carrying on his business it must be treated to have been laid out by him as a trader and as incidental to his business. On the basis of that rule it came to the conclusion that the wealth tax paid by a trader on his business assets is liable to be deducted under Section l0 (2) (xv) of the Act. Applying the ratio of that decision to the facts of the present case it is clear that the lands owned by the assessee companies are its business assets and the tax paid thereon under the U. P. Act XXXI of 1957 is an item of expenditure laid out by the assesses companies as traders and. as incidental to their business. Consequently the same must be treated as an item of expenditure under S. 10 (2) (xv) of the Act. 4. Mr. Karkhanis appearing for the Revenue contended that so far as tea-growers are concerned they are both the owners of lands as well as traders. It is for that reason they are assessed only on 40 per cent of their net income, applying Rule 24 of the Rules framed under the Act. According to him the tax paid under the U. P. Act XXXI of 1957 is a tax levied on the owners and not on the traders. Consequently the ratio of the decision of this Court in Indian Aluminimum Company s case 84 ITR 735 = (AIR 1972 SC 1880 ) (supra) is inapplicable. We are unable to accept this contention as correct. A tea-grower is considered under the Act, read with Rules as an owner-cum-trader. Therefore, any item of expenditure incurred by him must be considered as an item of expenditure incurred by a trader in connection with his business activity. It is true that only 40 per cent of the net income of the tea-growers are brought to tax under the Act: but, at the same time, the tea-growers will also be entitled only to 40 per cent of the expenditure incurred by them. Under Rule 24, only 40 per cent of the net income is brought to tax. Hence we are unable to accept the contention of Mr. Karkhanis that the ratio of the decision of this Court in the Indian Aluminium Companys case 84 ITR 735 =(AIR 1972 SC 1880 ) (supra) is inapplicable to the facts of this case. Lastly, Mr. Karkhanis contended that in view of the Income-tax (Amendment) Act 1972, an assessee company, is not entitled to claim any deduction in respect of the tax paid by them. In this connection he relies on Section 2 of the Amendment Act of 1972. That section reads:"2. Amendment of Section 40. In Section 40 of the Income-tax Act, 1961 (43 of 1961) (hereinafter referred to as the principal Act), after sub-clause (ii) of clause (a), the following sub-clause shall be, and shall be deemed always to have been, inserted, namely: "(iia) any sum paid on account of wealth-tax." Explanation:-For the purposes of this sub-clause, "wealth-tax" means wealth-tax chargeable under the Wealth-tax Act, 1957 (27 of 1957), or any tax of a similar character chargeable under any law in force in any country outside India or any tax chargeable under such law with reference to the value of the assets of, or the capital employed in, a business or profession, carried on by the assessee, whether do not the debts of the business or profession are allowed as a deduction in computing the amount with reference to which such tax is charged, but does not include any tax chargeable with reference to the value of any particular asset of the business or profession;". 5. We are unable to accept the contention of Mr. Karkhanis that this Section has any bearing on the point arising for decision in this case. Herein we are not dealing with Wealthtax, i.e. a tax on net assets nor with any of the taxes referred in the explanation.
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5. We are unable to accept the contention of Mr. Karkhanis that this Section has any bearing on the point arising for decision in this case. Herein we are not dealing with Wealthtax, i.e. a tax on net assets nor with any of the taxes referred in the explanation.
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Keshavlal Khemchand & Sons Pvt. Ltd. & Others Vs. Union of India & Others | turn regulated by the National Housing Bank are loans which are term loans for relatively longer periods than other loans. There is nothing uniform about these CREDITORS or their activities. 69. It is submitted by learned counsel for the RBI – "Prior to the amendment in 2004, NPA was defined as sub-standard, doubtful or loss asset in accordance with the directions or under guidelines relating to assets classification issued by the Reserve Bank. Irrespective of whether the financial entity was regulated by RBI or not, for the purposes of SARFAESI Act, the asset classification stipulated by RBI was applicable. Though the regulator concerned of the financial entity had stipulated different standards for regulatory purposes, the entities had to apply the criteria stipulated by RBI for asset classification so far as SARFAESI Act was concerned. The amendment brought about in 2004 addresses this issue and brings in uniformity in the classification of assets by financial entities, both for the purposes of complying with the directions issues by their own regulations and for the purposes of SARFAESI Act. As such, a situation where an asset is not an NPA as per the specifications of the regulator but the same asset is an NPA for the purposes of SARFAESI Act or vice versa does not arise after the amendment made in 2004." 70. The Union of India filed a counter affidavit (through Director, Department of Financial Services, Ministry of Finance) before the High Court of Gujarat in Special Civil Application No.2910 of 2013 regarding the purpose for which the impugned amendment was brought in. It is stated in the counter affidavit as follows: "9. I state and submit that the amendment in Section 2(1)(o) of SARFAESI Act, 2002 was made in 2004 to extend the classification norms of non-performing assets stipulated buy (sic by) the concerned regulator who is administering or regulating such entity or the Reserve Bank of India when the said institution is not regulated by any regulator in India. There are financial institutions such as Housing Finance corporations notified by Central Government under SARFAESI Act, which are regulated by National Housing Bank. The non-performing assets of these institutions are classified as per guidelines prescribed by National Housing Bank. The Act covers certain other institutions such as Asian Development Bank and assets are classified as per the guidelines prescribed by Reserve Bank of India. The above amendments in the Act were made so that the guidelines issued by concerned regulator as applicable to them are covered for the purpose of recovery under the Act.10. I further state and submit that the amendment covered the entities under the Act regulated by different regulators such as Reserve Bank of India, National Housing Bank etc. who had stipulated their own guidelines for the purpose. At the same time, the amendment also covered the entities like Asian Development Bank, which did not fall within the purview of any regulator in India. Therefore, the amendment was made in the Act to take care of these situations and these amendments were necessary to cover the deficiencies noticed in the Act." 71. Therefore, to say that enabling them to follow different norms would be violative of Article 14, in our view, would be wholly untenable.72. Coming to the third submission of the borrower, we would not like to deal with this submission in the instant batch of cases as there are few cases where factually the SECURED ASSETS have been transferred by the ORIGINAL CREDITORS. Those cases have been de-tagged from this batch to be heard separately.73. Coming to the fourth submission of the borrower, it must fail on the basis of express language of Section 13(3A) [Section 13(3A). If, on receipt of the notice under sub-section (2), the borrower makes any representation or raises any objection, the secured creditor shall consider such representation or objection and if the secured creditor comes to the conclusion that such representation or objection is not acceptable or tenable, he shall communicate within fifteen days of receipt of such representation or objection the reasons for non-acceptance of the representation or objection to the borrower.Provided that the reasons so communicated or the likely action of the secured creditor at the stage of communication of reasons shall not confer any right upon the borrower to prefer an application to the Debts Recovery Tribunal under section 17 or the Court of District Judge under section 17A.] which obligates the SECURED CREDITORS to examine the representation/objection, if any, made by the borrower on the receipt of notice contemplated under Section 13(2) and communicate the reasons to the borrower if such a representation is not accepted by the SECURED CREDITORS. We have already indicated in our judgment, in para no. 48, that the representation/objection contemplated under Section 13(3A) is required to be examined objectively. Section 13 obligates the SECURED CREDITOR to communicate the reasons for non-acceptance of the representation or objections to the borrowers.74. Before closing these matters, we may also deal with one aspect of the judgment of the Gujarat High Court. The Gujarat High Court recorded that the impugned amendment is ultra vires the object of the Act. We presume for the sake of this judgment that the impugned amendment is not strictly in consonance with the objects enunciated when the Act was initially made. We fail to understand as to how such inconsistency will render the Act unconstitutional. The objects and reasons are not voted upon by the legislature. If the enactment is otherwise within the constitutionally permissible limits, the fact that there is a divergence between the objects appended to the Bill and the tenor of the Act, in our opinion, cannot be a ground for declaring the law unconstitutional.75. In view of our abovementioned conclusions, we do not propose to examine other submissions regarding the correctness of the Gujarat High Courts declaration that the unamended definition of the expression "NPA" would continue to govern the situation in view of the Gujarat High Courts conclusion that the amended definition of NPA is unconstitutional. | 0[ds]We have already noticed that under the said guidelines FINANCIAL ASSETS areinto 4 categories i.e. (i) standard, (ii)(iii) doubtful, and (iv) loss. Depending upon the length of the period for which the installment of money is over due, such assets are classified as NPA. As the length of the period of over due increased, the account of the borrower is progressively classified fromto "loss".45. The same classification is adopted by the Parliament while enacting the Act. Therefore, all NPAs do not belong to the same class. Their characters vary depending on the length of time for which they remained NPAs.46. In our view, such a classification is relevant and assumes importance in the decision making process of the SECURED CREDITOR under Section 13(2) as to which one of the steps contemplated under Section 13(4) should be resorted to in the case of a given defaulting borrower. We hasten to add that it may not be the only factor which determines the cause of action to be taken by the SECURED CREDITOR. The magnitude of the amount due and outstanding in a given case, the reasons which prompted the borrower to default in the repayment schedule, the nature of the business carried on by the defaulting borrower, the overall prospects of the defaulters business, national and international market conditions relevant to the business of a defaulterin our opinion, are some of the factors which are germane to a decision that action under Section 13(4) is required to be taken against a defaulting borrower. Even in a case where on rational and objective consideration of all the relevant factors including the representations/objections referred to under Section 13(3A), the CREDITOR comes to a conclusion that steps contemplated under Section 13(4) are required to be taken in the case of a particular defaulter, the further question as to which one of the steps contemplated under Section 13(4) is required to be taken or would meet the ends of justice is a matter for a further rational decision on the part of the SECURED CREDITOR.We are of the firm opinion that it is not necessary that legislature should define every expression it employs in a statute. If such a process is insisted upon, legislative activity and consequentially governance comes to a standstill. It has been the practice of the legislative bodies following the British parliamentary practice to define certain words employed in any given statute for a proper appreciation of or the understanding of the scheme and purport of the Act. But if a statute does not contain the definition of a particular expression employed in it, it becomes the duty of the courts to expound the meaning of the undefined expressions in accordance with the well established rules of statutory interpretation.66. Therefore, in our opinion, the function of prescribing the norms for classifying a borrowers account as a NPA is not an essential legislative function. The laying down of such norms requires a constant and close monitoring of the financial system demanding considerable amount of expertise in the areas of public finance, banking etc., and the norms may require a periodic revision. All that activity involves too much of detail and promptitude of action. The crux of the impugned Act is the prescription that a SECURED CREDITOR could take steps contemplated under Section 13(4) on the "default" [Section 2(1) (j) "default" meansof any principal debt or interest thereon or any other amount payable by a borrower to any secured creditor consequent upon which the account of such borrower is classified asasset in the books of account of the secured creditor ;] of the borrower. The expression "default" is clearly defined under the Act. Even if the Act were not to be on the statute book, under the existing law a CREDITOR could initiate legal action for the recovery of the amounts due from the borrower, the moment there is a breach of the terms of the contract under which the loan or advance is granted. The stipulation under the Act of classifying the account of the borrower as NPA as a condition precedent for enforcing the security interest is an additional obligation imposed by the Act on the CREDITOR. In our opinion, the borrower cannot be heard to complain that defining of the conditions subject to which the CREDITOR could classify the account as NPA, is part of the essential legislative function. If the Parliament did not choose to define the expression "NPA" at all, Court would be bound to interpret that expression as long as that expression occurs in Section 13(2). In such a situation, Courts would have resorted to the principles of interpretation (i) as to how that expression is understood in the commercial world, and (ii) to the existing practice if any of either the particular CREDITOR or CREDITORS as a class generally. If the Parliament chose to define a particular expression by providing that the expression shall have the same meaning as is assigned to such an expression by a body which is an expert in the field covered by the statute and more familiar with the subject matter of the legislation, in our opinion, the same does not amount to any delegation of the legislative powers. Parliament is only stipulating that the expression "NPA" must be understood by all the CREDITORS in the same sense in which such expression is understood by the expert body i.e., the RBI or other REGULATORS which are in turn subject to the supervision of the RBI. Therefore, the submission that the amendment of the definition of the expressionasset under Section 2(1)(o) is bad on account of excessive delegation of essential legislative function, in our view, is untenable and is required to be rejected.67. Coming to the submission that by authorizing different REGULATORS to prescribe different norms for the identification of a NPA with reference to different CREDITORS amount to unreasonable classification is also required to be rejected for the reason that all the CREDITORS do not form a uniform/homogenous class.68. There are innumerable differences among the CREDITORS. Differences based on the legal structure of the CREDITORS organization, differences based upon the nature of the loan advanced by them, and differences based on the terms and conditions subject to which such loans or advances are made by each of those CREDITORS, etc. For example, the Exim Bank loans are generally in foreign currencies. Similarly, loans granted by Housing Finance CREDITORS which are in turn regulated by the National Housing Bank are loans which are term loans for relatively longer periods than other loans. There is nothing uniform about these CREDITORS or their activities.Therefore, to say that enabling them to follow different norms would be violative of Article 14, in our view, would be wholly untenable.72. Coming to the third submission of the borrower, we would not like to deal with this submission in the instant batch of cases as there are few cases where factually the SECURED ASSETS have been transferred by the ORIGINAL CREDITORS. Those cases have beenfrom this batch to be heard separately.73. Coming to the fourth submission of the borrower, it must fail on the basis of express language of Section 13(3A) [Section 13(3A). If, on receipt of the notice under(2), the borrower makes any representation or raises any objection, the secured creditor shall consider such representation or objection and if the secured creditor comes to the conclusion that such representation or objection is not acceptable or tenable, he shall communicate within fifteen days of receipt of such representation or objection the reasons forof the representation or objection to the borrower.Provided that the reasons so communicated or the likely action of the secured creditor at the stage of communication of reasons shall not confer any right upon the borrower to prefer an application to the Debts Recovery Tribunal under section 17 or the Court of District Judge under section 17A.] which obligates the SECURED CREDITORS to examine the representation/objection, if any, made by the borrower on the receipt of notice contemplated under Section 13(2) and communicate the reasons to the borrower if such a representation is not accepted by the SECURED CREDITORS. We have already indicated in our judgment, in para no. 48, that the representation/objection contemplated under Section 13(3A) is required to be examined objectively. Section 13 obligates the SECURED CREDITOR to communicate the reasons forof the representation or objections to the borrowers.74. Before closing these matters, we may also deal with one aspect of the judgment of the Gujarat High Court. The Gujarat High Court recorded that the impugned amendment is ultra vires the object of the Act. We presume for the sake of this judgment that the impugned amendment is not strictly in consonance with the objects enunciated when the Act was initially made. We fail to understand as to how such inconsistency will render the Act unconstitutional. The objects and reasons are not voted upon by the legislature. If the enactment is otherwise within the constitutionally permissible limits, the fact that there is a divergence between the objects appended to the Bill and the tenor of the Act, in our opinion, cannot be a ground for declaring the law unconstitutional.75. In view of our abovementioned conclusions, we do not propose to examine other submissions regarding the correctness of the Gujarat High Courts declaration that the unamended definition of the expression "NPA" would continue to govern the situation in view of the Gujarat High Courts conclusion that the amended definition of NPA is unconstitutional.The first major decision of this Court on the subject of the validity of delegated legislation is In re Art. 143, Constitution of India and Delhi Laws Act (1912) etc., AIR 1951 SC 332 , by a Constitution bench ofSeven separate judgments were delivered. It was a case where Section 7 of the Delhi Laws Act authorized the provincial government to extend by a notification in the official gazette to the provinces of Delhi, any enactment which was in force in any part of British India as on the date of such notification. Similar provisions were contained in two other enactments. One of the questions was whether such conferment of power on the executive amounted to excessive delegation of the legislative power. Even according to Patanjali Sastri, J., who was a member of the Bench which decided the case, in a subsequent decision in Kathi Raning Rawat v. State of Saurashtra, AIR 1952 SC 123 , while dealing with the decision in Delhi Laws Acts case observedundoubtedly certain definite conclusions were reached by the majority of the Judges who took part in the decision in regard to the constitutionality of certain specified enactments, the reasoning in each case was different, and it is difficult to say that any particular principle has been laid down by the majority which can be of assistance in the determination of otherCourt held that there was no impermissible delegation of legislative power.57. Justice Hidayatullah, speaking for himself and for Justice Ramaswami, agreed with the conclusion reached at by the Chief Justice, though on slightly differentother words, the very fact that the legislature has the power to repeal and withdraw the authority of the delegate and the discretion vested in the delegate, should lead to the conclusion that the legislature did not abdicate its essential functions.Whether defining every word employed in a statute is really necessary and whether it is a part of the essential legislative function was never the subject matter of debate in any of these cases. | 0 | 13,387 | 2,121 | ### Instruction:
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turn regulated by the National Housing Bank are loans which are term loans for relatively longer periods than other loans. There is nothing uniform about these CREDITORS or their activities. 69. It is submitted by learned counsel for the RBI – "Prior to the amendment in 2004, NPA was defined as sub-standard, doubtful or loss asset in accordance with the directions or under guidelines relating to assets classification issued by the Reserve Bank. Irrespective of whether the financial entity was regulated by RBI or not, for the purposes of SARFAESI Act, the asset classification stipulated by RBI was applicable. Though the regulator concerned of the financial entity had stipulated different standards for regulatory purposes, the entities had to apply the criteria stipulated by RBI for asset classification so far as SARFAESI Act was concerned. The amendment brought about in 2004 addresses this issue and brings in uniformity in the classification of assets by financial entities, both for the purposes of complying with the directions issues by their own regulations and for the purposes of SARFAESI Act. As such, a situation where an asset is not an NPA as per the specifications of the regulator but the same asset is an NPA for the purposes of SARFAESI Act or vice versa does not arise after the amendment made in 2004." 70. The Union of India filed a counter affidavit (through Director, Department of Financial Services, Ministry of Finance) before the High Court of Gujarat in Special Civil Application No.2910 of 2013 regarding the purpose for which the impugned amendment was brought in. It is stated in the counter affidavit as follows: "9. I state and submit that the amendment in Section 2(1)(o) of SARFAESI Act, 2002 was made in 2004 to extend the classification norms of non-performing assets stipulated buy (sic by) the concerned regulator who is administering or regulating such entity or the Reserve Bank of India when the said institution is not regulated by any regulator in India. There are financial institutions such as Housing Finance corporations notified by Central Government under SARFAESI Act, which are regulated by National Housing Bank. The non-performing assets of these institutions are classified as per guidelines prescribed by National Housing Bank. The Act covers certain other institutions such as Asian Development Bank and assets are classified as per the guidelines prescribed by Reserve Bank of India. The above amendments in the Act were made so that the guidelines issued by concerned regulator as applicable to them are covered for the purpose of recovery under the Act.10. I further state and submit that the amendment covered the entities under the Act regulated by different regulators such as Reserve Bank of India, National Housing Bank etc. who had stipulated their own guidelines for the purpose. At the same time, the amendment also covered the entities like Asian Development Bank, which did not fall within the purview of any regulator in India. Therefore, the amendment was made in the Act to take care of these situations and these amendments were necessary to cover the deficiencies noticed in the Act." 71. Therefore, to say that enabling them to follow different norms would be violative of Article 14, in our view, would be wholly untenable.72. Coming to the third submission of the borrower, we would not like to deal with this submission in the instant batch of cases as there are few cases where factually the SECURED ASSETS have been transferred by the ORIGINAL CREDITORS. Those cases have been de-tagged from this batch to be heard separately.73. Coming to the fourth submission of the borrower, it must fail on the basis of express language of Section 13(3A) [Section 13(3A). If, on receipt of the notice under sub-section (2), the borrower makes any representation or raises any objection, the secured creditor shall consider such representation or objection and if the secured creditor comes to the conclusion that such representation or objection is not acceptable or tenable, he shall communicate within fifteen days of receipt of such representation or objection the reasons for non-acceptance of the representation or objection to the borrower.Provided that the reasons so communicated or the likely action of the secured creditor at the stage of communication of reasons shall not confer any right upon the borrower to prefer an application to the Debts Recovery Tribunal under section 17 or the Court of District Judge under section 17A.] which obligates the SECURED CREDITORS to examine the representation/objection, if any, made by the borrower on the receipt of notice contemplated under Section 13(2) and communicate the reasons to the borrower if such a representation is not accepted by the SECURED CREDITORS. We have already indicated in our judgment, in para no. 48, that the representation/objection contemplated under Section 13(3A) is required to be examined objectively. Section 13 obligates the SECURED CREDITOR to communicate the reasons for non-acceptance of the representation or objections to the borrowers.74. Before closing these matters, we may also deal with one aspect of the judgment of the Gujarat High Court. The Gujarat High Court recorded that the impugned amendment is ultra vires the object of the Act. We presume for the sake of this judgment that the impugned amendment is not strictly in consonance with the objects enunciated when the Act was initially made. We fail to understand as to how such inconsistency will render the Act unconstitutional. The objects and reasons are not voted upon by the legislature. If the enactment is otherwise within the constitutionally permissible limits, the fact that there is a divergence between the objects appended to the Bill and the tenor of the Act, in our opinion, cannot be a ground for declaring the law unconstitutional.75. In view of our abovementioned conclusions, we do not propose to examine other submissions regarding the correctness of the Gujarat High Courts declaration that the unamended definition of the expression "NPA" would continue to govern the situation in view of the Gujarat High Courts conclusion that the amended definition of NPA is unconstitutional.
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the supervision of the RBI. Therefore, the submission that the amendment of the definition of the expressionasset under Section 2(1)(o) is bad on account of excessive delegation of essential legislative function, in our view, is untenable and is required to be rejected.67. Coming to the submission that by authorizing different REGULATORS to prescribe different norms for the identification of a NPA with reference to different CREDITORS amount to unreasonable classification is also required to be rejected for the reason that all the CREDITORS do not form a uniform/homogenous class.68. There are innumerable differences among the CREDITORS. Differences based on the legal structure of the CREDITORS organization, differences based upon the nature of the loan advanced by them, and differences based on the terms and conditions subject to which such loans or advances are made by each of those CREDITORS, etc. For example, the Exim Bank loans are generally in foreign currencies. Similarly, loans granted by Housing Finance CREDITORS which are in turn regulated by the National Housing Bank are loans which are term loans for relatively longer periods than other loans. There is nothing uniform about these CREDITORS or their activities.Therefore, to say that enabling them to follow different norms would be violative of Article 14, in our view, would be wholly untenable.72. Coming to the third submission of the borrower, we would not like to deal with this submission in the instant batch of cases as there are few cases where factually the SECURED ASSETS have been transferred by the ORIGINAL CREDITORS. Those cases have beenfrom this batch to be heard separately.73. Coming to the fourth submission of the borrower, it must fail on the basis of express language of Section 13(3A) [Section 13(3A). If, on receipt of the notice under(2), the borrower makes any representation or raises any objection, the secured creditor shall consider such representation or objection and if the secured creditor comes to the conclusion that such representation or objection is not acceptable or tenable, he shall communicate within fifteen days of receipt of such representation or objection the reasons forof the representation or objection to the borrower.Provided that the reasons so communicated or the likely action of the secured creditor at the stage of communication of reasons shall not confer any right upon the borrower to prefer an application to the Debts Recovery Tribunal under section 17 or the Court of District Judge under section 17A.] which obligates the SECURED CREDITORS to examine the representation/objection, if any, made by the borrower on the receipt of notice contemplated under Section 13(2) and communicate the reasons to the borrower if such a representation is not accepted by the SECURED CREDITORS. We have already indicated in our judgment, in para no. 48, that the representation/objection contemplated under Section 13(3A) is required to be examined objectively. Section 13 obligates the SECURED CREDITOR to communicate the reasons forof the representation or objections to the borrowers.74. Before closing these matters, we may also deal with one aspect of the judgment of the Gujarat High Court. The Gujarat High Court recorded that the impugned amendment is ultra vires the object of the Act. We presume for the sake of this judgment that the impugned amendment is not strictly in consonance with the objects enunciated when the Act was initially made. We fail to understand as to how such inconsistency will render the Act unconstitutional. The objects and reasons are not voted upon by the legislature. If the enactment is otherwise within the constitutionally permissible limits, the fact that there is a divergence between the objects appended to the Bill and the tenor of the Act, in our opinion, cannot be a ground for declaring the law unconstitutional.75. In view of our abovementioned conclusions, we do not propose to examine other submissions regarding the correctness of the Gujarat High Courts declaration that the unamended definition of the expression "NPA" would continue to govern the situation in view of the Gujarat High Courts conclusion that the amended definition of NPA is unconstitutional.The first major decision of this Court on the subject of the validity of delegated legislation is In re Art. 143, Constitution of India and Delhi Laws Act (1912) etc., AIR 1951 SC 332 , by a Constitution bench ofSeven separate judgments were delivered. It was a case where Section 7 of the Delhi Laws Act authorized the provincial government to extend by a notification in the official gazette to the provinces of Delhi, any enactment which was in force in any part of British India as on the date of such notification. Similar provisions were contained in two other enactments. One of the questions was whether such conferment of power on the executive amounted to excessive delegation of the legislative power. Even according to Patanjali Sastri, J., who was a member of the Bench which decided the case, in a subsequent decision in Kathi Raning Rawat v. State of Saurashtra, AIR 1952 SC 123 , while dealing with the decision in Delhi Laws Acts case observedundoubtedly certain definite conclusions were reached by the majority of the Judges who took part in the decision in regard to the constitutionality of certain specified enactments, the reasoning in each case was different, and it is difficult to say that any particular principle has been laid down by the majority which can be of assistance in the determination of otherCourt held that there was no impermissible delegation of legislative power.57. Justice Hidayatullah, speaking for himself and for Justice Ramaswami, agreed with the conclusion reached at by the Chief Justice, though on slightly differentother words, the very fact that the legislature has the power to repeal and withdraw the authority of the delegate and the discretion vested in the delegate, should lead to the conclusion that the legislature did not abdicate its essential functions.Whether defining every word employed in a statute is really necessary and whether it is a part of the essential legislative function was never the subject matter of debate in any of these cases.
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High Court of Kerala Vs. Reshma A. & Others Etc | vacancies in the service is contrary to law. In the event that some of the candidates who are sent on training cannot be absorbed at a future date for want of vacancies, it would lead to a serious dissatisfaction and be unfair to the candidates who were sent for training. This would also cause a burden on the exchequer requiring it to pay a stipend to persons who are yet to be recruited to the judicial service, there being no present vacancies to accommodate them. 56. During the course of the submissions, reliance has been placed on behalf of the respondents on the decision of this Court in Virendra S Hooda v. State of Haryana (1999) 3 SCC 696 . This was a case where the Haryana Public Service Commission issued an advertisement for recruitment to the Executive Branch of the Haryana Civil Service. The advertisement covered 12 posts, 7 of which were in the general category and 5 were reserved. A written examination was held following which the results were published. The appellants were in the list of candidates whose results were declared but did not place sufficiently high to be appointed to the Civil Service (Executive Branch). They were given alternate posts. The writ petitions filed by the appellants were dismissed by the High Court and when the matter reached this Court, they were granted liberty to file fresh writ petitions for getting appointments on the basis of two circulars of 1957 and 1972 which laid down the procedure to be adopted for selection against all notified additional vacancies which arise within six months from the recommendation of the names. The High Court rejected the claim again but this Court eventually took the view that when a policy was declared by the State as to the manner of filling up the post and the policy is declared in terms of the rules, the instructions not being contrary to the rules, the State ought to follow them. Now significantly, the administrative instructions which were referred to were subsequently repealed by legislation with retrospective effect. The validity of the law was upheld by this Court in Virender Singh Hooda v. State of Haryana (2004) 12 SCC 588 , though appointments made already in pursuance of the directions of this Court were left undisturbed. The first decision in Virender Singh Hooda would have to be read in the context of the facts of the case. Significantly, this Court did not have occasion to consider the earlier decision including the principle that appointments cannot be made, consistent with Articles 14 and 16, in excess of notified vacancies. This principle was reiterated in Prem Singh (supra) which was prior to the decision in Virender Singh. Be that as it may, we are of the view that in the above facts the decision in Virender Singh Hooda will not assist the respondents and would have to be confined to the peculiar circumstances in that case. 57. The respondents urged, on the basis of Annexures A-1 to A-3 produced before the High Court along with the statement filed on 18 August 2020, and referred to in the appendix to the impugned judgment, that more than 37 vacancies actually existed as on 31 December 2019 and therefore the select list could be operated for a larger number of vacancies. We are unable to subscribe to this submission. The respondents participated in the selection process on the basis of 37 probable vacancies. Moreover, it has been submitted on behalf of the appellants that, Annexure A-2 appended to the submissions would indicate that the total number of vacancies as on 31 December 2019 were shown to be 43, which included 37 regular vacancies and 8 NCA vacancies. Out of the 37 regular vacancies only 32 could be included in the select list for the year 2019 because as against 5 vacancies candidates were not available against the reserved turn. Those five vacancies have been treated as NCA vacancies for 2020 and have been included in the list of vacancies for the succeeding year. The 37 regular vacancies and 8 NCA vacancies were notified for the year 2019, in accordance with the break up provided in Malik Mazhar Sultan (3). It has been stated that 45 vacancies notified for selection year 2019 included 4 vacancies under the 10 per cent addition that had to be made for every year. However, only two of the four vacancies had actually arisen and hence the figure of 43. On this basis, it has been submitted that there is no discrepancy in the figures which were given in the statement filed before the High Court and the statement filed on additional affidavit before this Court. 58. Finally, it has been urged on behalf of the respondents that the recruitment process for the year 2020 has been delayed as a result of the onset of the Covid-19 pandemic. A recruitment notification was issued in the month of June 2020. It has been submitted that the actual process of selection would take about one year following which candidates would have to be sent on training. Hence it has been submitted that candidates for recruitment year 2020 would be in a position to actually commence judicial duties only in early 2023. Having come to the conclusion that the judgment of the High Court is erroneous, we are of the view that it would be impermissible to grant relief to the respondents purely on this basis. The respondents have no vested right to appointment for the 2019 selections. They cannot claim any right, or even equity, on the ground that the selection for the subsequent year may be delayed. Vacancies for 2020 must be allocated to candidates who are duly selected in pursuance of the recruitment process for 2020. Candidates who have ranked lower in the 2019 selection and were unable to obtain appointments cannot appropriate the vacancies of a subsequent year to themselves. To allow such a claim would be an egregious legal and constitutional error. | 1[ds]17. As we have seen above, under the unamended Rule 7(2), there was a stipulation that a list approved by the Governor will remain in force for a period of three years or until a fresh list is prepared (the three years stipulation had earlier been substituted by SRO 660/2006). As a result of the amendment which came into effect in 2019, it has been stipulated that the list approved by the Governor shall be valid till the notified vacancies and the vacancies that may arise within one year from the date of the approval of the list are filled up or a fresh list comes into force, whichever is earlier.18. The existence of unfilled vacancies in posts falling within the district judiciary across the country has been considered by this Court in Malik Mazhar Sultan (3) v. U P Public Service Commission (Malik Mazhar Sultan (3)) (2008) 17 SCC 703 . In the judgment, which was delivered on 4 January 2007, comprehensive directions were issued in regard to the mode of determining vacancies and the manner in which the selection would have to be conducted every year. The judgment of this Court envisages an annual exercise for selection to posts in the judicial service of each state. While issuing directions, the two judge Bench consisting of Chief Justice YK Sabharwal and Justice CK Thakker noted that nearly five years had elapsed since the decision of this Court in All India Judges Association v. Union of India (2002) 4 SCC 247 (All India Judges Association). In the earlier decision, the Court had envisaged that existing vacancies at all levels in the district judiciary should be filled, if possible, by 31 March 2003. Despite this aspiration, the backlog of judicial vacancies remained unfilled. The problem, as the Court perceived it, was that:1. It was about five years back that this Court directed that existing vacancies in the subordinate courts, at all levels, should be filled, if possible, latest by 31-3-2003, in all the States. This direction is contained in All India Judges Assn. (III) v. Union of India [(2002) 4 SCC 247 : 2002 SCC (L&S) 508]. It has been noticed that an independent and efficient judicial system is one of the basic structure of our Constitution. If sufficient number of Judges are not appointed, justice would not be available to the people thereby undermining the basic structure. The judicial system has been facing the problem arising out of delay in dispensation of justice for which one of the major causes is insufficient number of Judges when compared to either the large number of cases pending or in relation to the average Judge- population ratio going by the number of Judges available in various other democracies in the world [Ed.: See also Beating the Backlog: Less Talk, More Actions by Dr. A.M. Singhvi, (2007) 2 SCC J-9]. In this light, it becomes all the more necessary to take all possible steps to ensure that vacancies in the courts are timely filled.While issuing these directions and the time schedule which must be adhered to in making judicial appointments for filling up vacancies, the Court dealt with the submission that its directions would impinge on the role and functions of the Public Service Commissions which were tasked with judicial appointments in states. Dealing with the submission, the court observed that:5… it is necessary to note that selections are required to be conducted by the authorities concerned as per the existing Judicial Service Rules in the respective States/Union Territories.19. This Court observed that progressively, a consensus would have to be arrived at so that the selection process for appointments to the district judiciary would be conducted by the High Courts or by the Public Service Commission under the control and supervision of the High Courts. The Court issued detailed directions specifying timelines for appointments of District Judges; Civil Judges (Senior Division) and Civil Judges (Junior Division). For appointment to the post of Civil Judge (Junior Division) by direct recruitment, the following time schedule was stipulated in the judgment of this Court:D. For appointment to the posts of Civil Judge (Junior Division) by direct recruitment20. All Chief Justices of the High Courts were directed to constitute committees to oversee the process of selection and appointment of judicial officers and to set up a special cell within the High Court to look after the process. The judgment of this Court envisages that appointment letters would be issued by the State Governments within a month of the receipt of the recommendations from the High Courts/State Public Service Commissions. Paragraph 15 of the judgment contains a further direction that:15….ten per cent of unforeseen vacancies would be in respect of sanctioned posts and not vacancies occurring in a particular year.21. While the Court granted liberty to the High Courts and to the Governments of the States or, as the case may be, Union Territories to apply for a variation of the time schedule in the event of difficulties arising due to peculiar geographical and climatic conditions and other relevant considerations, the time schedule which was indicated in the judgment was directed to be adhered to and appointments made accordingly until it was varied.22. In the State of Kerala, certain proceedings took place in relation to the selection and appointment of Munsiff Magistrates from the select list which was prepared in 2013. The notification for 2013 for selection of Munsiff Magistrates was published after taking into account additional posts of 30 Gram Nyaylayas and 27 Special Magistrate Courts. Pursuant to the notification, 66 candidates were selected. For selection in 2013, the appellant had notified 74 probable vacancies for general recruitment and 7 for NCA. In calculating the 74 vacancies, the appellant took into account the establishment of the above Gram Nyaylayas and Munsiff Magistrate Courts. A select list of 66 candidates was approved by the Governor and on 31 October 2014 and 1 November 2014, all the 66 candidates were appointed as Munsiff Magistrate trainees. It so happened that after the 74 vacancies were notified, 30 Gram Nyaylayas were not established as anticipated, as a result of which a reduction of 30 anticipated vacancies occurred in the total number of notified vacancies. Apparently, 13 NCA slots were also required to be kept vacant.23. The appellant moved this Court in IA 141/2015 for exempting it for conducting the selection for 2014 and 2015 and for permission to fill up the vacancies of 2015 from the then existing 66 candidates within the 2013 selection. The IA came up before this Court together with reports filed by various High Courts on compliance with the Malik Mazhar Sultan (3) directions. By an order dated 27 October 2015, the following order was passed on the IA:I.A. No. 141 of 2015After hearing learned Amicus Curiae and learned counsel for the High Court of Kerala, we are of the firm view that the prayer in the application cannot be granted.I.A. No. 141 of 201524. The appellant was directed to file an appropriate status report/affidavit before this Court on or before 20 November 2015. The plea of the appellant for exemption from conducting the annual selection process, in light of the excess candidates in the previous years, was firmly rejected.25. The significance of these events for the controversy in the present case lies in appreciating the submission of the appellant that the requirement of an annual selection process and adherence to the timelines specified has been considered to be sacrosanct by this Court. It was on this basis that the application filed by the High Court for exempting it from carrying out a selection for 2014-15 was rejected.26. The stand out feature which emerges from the judgment in Malik Mazhar Sultan (3) is that the object and purpose of this Court in issuing the directions was to ensure that unfilled vacancies which continue to be the bane of the judicial system across the country would be filled up by adhering to fixed time-lines and by adopting an annual process for selection to judicial posts. It was with this object that detailed timelines were spelt out in the decision. Punctilious compliance was sought, save and except where for exceptional reasons, an extension was granted by this Court. Since the pronouncement of that decision, this Court has consistently monitored compliance across the country by all the High Courts. Faced with an unfavorable judge to population ratio, the effort of this Court has been to ensure that at least the available posts in the district judiciary are filled up.27. Another facet which needs to be mentioned at this stage is that in the decision which was rendered on 4 January 2007 in Malik Mazhar Sultan (3), this Court had directed that the number of vacancies to be notified by the High Court for the annual selection would be calculated by including:(i) Existing vacancies;(ii) Future vacancies that may arise within one year due to retirement;(iii) Future vacancies which may arise due to promotion, death or otherwise say 10 per cent of the number of posts.Existing vacancies are known. Vacancies arising due to retirement are also known, because the date of retirement is fixed by the date of birth, coupled with the age of retirement under service rules. The third category recognizes the imponderables of service: vacancies inevitably arise due to promotion, death or resignation and such other factors whose precise number cannot be predicted in advance. In computing the probable vacancies for the next year, the number of posts which may fall vacant due to uncertain events such as death, resignation and promotion cannot be determined with precision. Yet they have to be taken into account for the selection year. Hence, in the original judgment, this Court contemplated that about 10 per cent of the number of posts would cover contingencies of future vacancies arising due to promotion, death or otherwise. This category was dealt with in a subsequent decision(Malik Mazhar Sultan and anr. vs. Uttar Pradesh Public Service Commission & Ors., (2009) 17 SCC 24) which was rendered on 24 March 2009 by a three judge Bench presided over by the learned Chief Justice KG Balakrishnan (as he was then). The precise reason for modifying the 10 per cent stipulation was explained in the order of this Court2. It has been pointed out by the counsel appearing for the various High Courts that 10 per cent of the sanctioned posts are notified in some States. A large number of posts are to be notified whereas there was corresponding number of vacancies to be filled if the candidates are selected in the select list. There may be an expectation for such candidates to get appointment and this creates unwanted litigation by the candidates and it is prayed that the existing vacancies alone be notified along with the anticipated vacancies that may arise in the next one year and some candidates also be included in the wait list prepared by the High Courts/PSCs.In view of the above submission of the High Courts, this Court modified the earlier judgment in terms of the following directions:3. In supersession of the order passed by this Court on 4.1.2007, this Court directs that in future the High Courts/PSCs shall notify the existing number of vacancies plus the anticipated vacancies for the next one year and some candidates also be included in the wait list. To this extent earlier order is modified.28. Hence, in computing the vacancies to be notified annually by the High Court, the three factors to be borne in mind would be(i) the existing number of vacancies;(ii) the anticipated vacancies for the next year; and(iii) some candidates to be included in the wait-list.34. While analyzing the two-pronged submission of the appellant, it must be noted at the outset that the Kerala Rules 1991 govern appointments to the Kerala Judicial Service. The decision in Malik Mazhar Sultan (3) recognizes that Judicial Service Rules prevail in every State. Selections to the Judicial Service have to be conducted by the authorities by adhering to the rules which have been framed in the respective States. The Kerala Rules 1991 trace their authority to both- a constitutional and statutory power. SRO No. 1621/1991 by which the Rules were issued makes this clear in its prefatory recital:S.R.O. No. 1621/91: - In exercise of the powers conferred by Articles 234 and 235 of the Constitution of India and sub- section (1) of section 2 of the Kerala Public Services Act, 1968 (19 of 1968) and in supersession of all the existing rules on the subject, the Governor of Kerala hereby makes the following Special Rules in respect of the Kerala Judicial Service…The decision in Malik Mazhar Sultan (3) notices that selections are required to be conducted by the authorities concerned as per the existing Judicial Service Rules in the respective States/Union Territories. Emphasizing this, the judgment of the Court specifically dealt with the objection that the constitution of Selection Committees by the Chief Justices of the High Court to monitor the timely appointment of judges in the district judiciary at all levels would amount to an inference with the independent functioning of the Public Service Commissions. The Court held that the apprehension was wholly misplaced, in view of what we have already noted about the appointments to be made in accordance with the respective Judicial Services Rules in the States((2008) 17 SCC 703 , at pages 75-76, paras 5-6). The decision in Malik Mazhar Sultan (3) was intended to deal with a specific problem namely, unfilled judicial vacancies in the district judiciary. The solution that was envisaged was in terms of a regulated process governed by specific timelines under which an annual exercise would be carried out for filling up the posts. Article 234 of the Constitution provides that:234. Appointments of persons other than district judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State.Article 235 vests in the High Court control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State. The High Courts rules governing the appointment of persons other than district judges to the judicial service of a State have constitutional authority whose source originates in Article 234. The recognition in Malik Mazhar Sultan (3) of the legal position that selections have to take place in accordance with existing Judicial Service Rules in the States, or as the case may be, Union Territories is hence in accordance with the mandate of Article 234.35. In two subsequent decisions of this Court, we find a reiteration of the principle imparting sanctity to the Rules governing the judicial service in the States. The three judge Bench decision in Rakhi Ray v. High Court of Delhi (2010) 2 SCC 637 (Rakhi Ray) involved a situation where the High Court had issued an advertisement for filling up 20 vacancies in the cadre of District Judge of which 13 were to be drawn from the general category, 3 from the Scheduled Castes and 4 from the Scheduled Tribes. All the 13 vacancies in the general category were filled up according to the merit list and the appellants who ranked below the selected candidates were not appointed. Some of the unsuccessful candidates moved the Delhi High Court with the submission that the vacancies which arose during the pendency of the selection process could also have been filled up from the select list in view of the decision in Malik Mazhar Sultan (3). This Court observed, following its earlier decisions in All India Judges Association and Malik Mazhar Sultan (3) that selection was to be made as per the existing Rules(At page 644, para 18) and that appointments have to be made giving strict adherence to the existing statutory provisions(at page 645, para 20). Dr Justice BS Chauhan, speaking for the three judge Bench, held that appointments have to be made in view of the provisions of the Delhi Higher Judicial Service Rules 1970 which provide for advertisement of the vacancies after being determined. Moreover, the reservation policy is to be implemented, the number of vacancies to be filled up has to be determined, failing which it would not be possible to implement the reservation policy at all. Consequently, the Court held that there was no question of taking into consideration the anticipated vacancies as per the judgment in Malik Mazhar Sultan (3). Since the anticipated vacancies have not been determined in view of the existing statutory rules, and they could not be taken into consideration:21. The appointments had to be made in view of the provisions of the Delhi Higher Judicial Service Rules, 1970. The said Rules provide for advertisement of the vacancies after being determined. The Rules further provide for implementation of reservation policies in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes. As the reservation policy is to be implemented, the number of vacancies to be filled up is to be determined, otherwise it would not be possible to implement the reservation policy at all. Thus, in view of the above, the question of taking into consideration the anticipated vacancies, as per the judgment in Malik Mazhar Sultan (3) case [(2008) 17 SCC 703 : (2007) 2 Scale 159] , which had not been determined in view of the existing statutory rules could not arise.22. In view of the above, we do not find any force in the submissions that the High Court could have filled vacancies over and above the vacancies advertised on 19-5-2007, as per the directions issued by this Court in Malik Mazhar Sultan (3) case [(2008) 17 SCC 703 : (2007) 2 Scale 159] .36. Rakhi Ray involved a situation where candidates who were not successful in seeking appointment to the vacancies which were advertised, attempted to gain appointment as District Judges by the inclusion of additional vacancies, over and above those which were notified. This court turned down the request, holding that such a course of action was not permissible, both in terms of the judicial service rules and the mandate of Articles 14 and 16 (the latter aspect will be explored a little later in this judgment).38. In Rakhi Ray, the submission which did not find acceptance was that anticipated vacancies should be considered over and above the vacancies which were notified in the advertisement for making appointments. In Hirandra Kumar candidates who sought an age relaxation on the ground that they had crossed the age limit after the last recruitment met with a similar fate, with this Court holding that compliance with the age limit prescribed in the Judicial Services Rules cannot be obviated. We are thus unable to subscribe to the wider submission of the appellant that the directions in Malik Mazhar Sultan (3) will prevail over the provisions contained in Rule 7(2). A better line of approach is to seek an interpretation which will bring harmony between them.41. The decision in Rakhi Ray which is by a Bench of three learned judges has been adverted to in a different context earlier. In that case, as we have noticed, the High Court had notified an advertisement to fill up 20 vacancies in the cadre of District Judge. All the 13 vacancies in the general category were filled up according to the merit list. Unsuccessful candidates belonging to the general category however asserted that additional vacancies which came up during the pendency of the selection process should also be filled up from the same select list. In this context, while analyzing the constitutional requirements of Article 14 and Article 16, Dr Justice BS Chauhan, speaking for the three judge Bench, observed:7. It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution, of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to improper exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated from and such a deviation is permissible only after adopting policy decision based on some rationale, otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, is not permissible in law. (Vide Union of India v. Ishwar Singh Khatri [1992 Supp (3) SCC 84 : 1992 SCC (L&S) 999 : (1992) 21 ATC 851] , Gujarat State Dy. Executive Engineers Assn. v. State of Gujarat [1994 Supp (2) SCC 591 : 1994 SCC (L&S) 1159 : (1994) 28 ATC 78] , State of Bihar v. Secretariat Asstt. Successful Examinees Union 1986 [(1994) 1 SCC 126 : 1994 SCC (L&S) 274 : (1994) 26 ATC 500 : AIR 1994 SC 736 ] , Prem Singh v. Haryana SEB [(1996) 4 SCC 319 : 1996 SCC (L&S) 934] and Ashok Kumar v. Banking Service Recruitment Board [(1996) 1 SCC 283 : 1996 SCC (L&S) 298 : (1996) 32 ATC 235 : AIR 1996 SC 976 ] .)In the view of the Court:12. In view of above, the law can be summarised to the effect that any appointment made beyond the number of vacancies advertised is without jurisdiction, being violative of Articles 14 and 16(1) of the Constitution of India, thus, a nullity, inexecutable and unenforceable in law. In case the vacancies notified stand filled up, the process of selection comes to an end. Waiting list, etc. cannot be used as a reservoir, to fill up the vacancy which comes into existence after the issuance of notification/advertisement. The unexhausted select list/waiting list becomes meaningless and cannot be pressed in service any more.42. The decision in Prem Singh has been followed by a Bench of two learned judges in Anurag Kumar Singh v. State of Uttarakhand (2016) 9 SCC 426 . In that case, the Public Service Commission advertised 38 posts of Assistant Prosecuting Officers for a year of recruitment comprising of 12 months commencing from first day of July of the calendar year. The Public Service Commission however, held a selection for 74 posts, 37 additional posts having been created subsequently. The High Court set aside the action, holding that the selection pursuant to an advertisement can only be for clear vacancies and anticipated vacancies, but not for future vacancies. Justice L Nageswara Rao, speaking for the Bench of two learned judges of this Court, observed that the rules referred only to the recruitment year. The Bench observed that only the number of vacancies that are advertised can be filled up and if the advertisement gives liberty to the Government to vary the number of posts this power could not be exercised for filling up future vacancies. The Court held that during the pendency of the proceedings a large number of persons would have become eligible for selection to the posts which were advertised and their right to be considered for appointment was guaranteed by Articles 14 and 16 of the Constitution. In the view of the Court, there would be an infraction of such a right if the additional posts are not filled up by a fresh selection. Hence the Court held that the selection pursuant to the advertisement should be confined only to the posts that were advertised and the additional posts which were created after the expiry of the recruitment year would have to be filled up by the issuance of an advertisement afresh.44. Having considered each of these judgments, we must notice that all of them involve factual situations which may not be identical with the facts of the present case. Precedent does not always rest on all fours. We have noticed earlier that, in the present case, the High Court while issuing its advertisement for recruitment specified 37 as a probable number of vacancies. The meaning which must be attributed to the expression probable will be considered shortly hereafter. At this stage we must recapitulate some of the salient aspects of the decisions which we have cited above. In Prem Singh the advertisement which was issued by the Haryana State Electricity Board was for filling up 62 vacant posts of Junior Engineers while as many as 138 candidates came to be appointed. In this backdrop this Court held that it was not open to the Board to travel beyond clear and anticipated vacancies. In other words, while clear and anticipated vacancies could be taken into consideration while issuing an advertisement for commencing the selection process, future vacancies could not be considered. While moulding the relief, this Court maintained the selection for the 62 vacancies which were advertised and 25 additional vacancies which arose during the selection process due to promotions and deaths, but not beyond that. The decision in Rakhi Ray involved a situation whether the High Court had advertised 20 vacancies of District Judges of which 13 were in the general category all of which were filled up. This Court rejected the contention of those among the general category candidates whose position in the merit list was below the 13 selected candidates that they were entitled to selection on the basis of the vacancies which occurred during the pendency of the selection process, based on Malik Mazhar Sultan (3). This Court held that vacancies over and above those which were notified could not be filled up, save and except in a rare and exceptional situation. Absent an exceptional situation an exercise to fill up vacancies over and above those which were notified would be arbitrary. The decision in Anurag Kumar Singh involved a requisition by the State of Uttarakhand to the Public Service Commission for selection of 38 Assistant Prosecuting Officers. Despite the advertisement which was for filling up 38 posts, an additional 37 posts were sought to be filled up which had been created subsequently. This was held to be impermissible, as violating the guarantees of Articles 14 and 16. The decision in Rahul Dutta of two judges has held that restricting the field of a written examination to 10 per cent of the candidates who appeared at the preliminary examination is violative of the dictum in Malik Mazhar Sultan (3) besides being arbitrary on the ground that it unreasonably restricts the field of competition.45. The constitutional principle which finds recognition in the precedents of this Court is that the process of selection in making appointments to public posts is subject to the guarantees of equality under Article 14 and of equality in matters of public employment under Article 16. The process of selection must comport with the principles of reasonableness. Where the authority which makes a selection advertises a specific number of posts, the process of selection cannot ordinarily exceed the number of posts which have been advertised. While notifying a process for appointment, the authority may take into consideration the actual and anticipated vacancies but not future vacancies. Anticipated vacancies are the vacancies which can be reasonably contemplated to arise due to the normal exigencies of service such as promotion, resignation or death. Hence, in notifying a given number of posts for appointment, the public authority may legitimately take into account the number of vacancies which exist on the date of the notification and vacancies which can reasonably be accepted to arise in the exigencies of the service. While the exact number of posts which may fall vacant due to circumstances such as promotion, resignation or death may be difficult to precisely determine the authority may make a reasonable assessment of the expected number of vacancies on these grounds. However, future vacancies conceptually fall in a distinct class or category. Future vacancies which arise during a subsequent recruitment year cannot be treated as anticipated vacancies of a previous selection year. Vacancies which would arise outside the fold of the recruitment year would not fall within the ambit of anticipated vacancies. For it is only the vacancies, actual and anticipated which would fall within the course of the selection or recruitment year that can be notified when the selection process is initiated. These are constitutional principles to which statutory edicts are subordinate.46. In the present case, the essential aspect on which we need to dwell is the meaning of the expression probable, in the context of Rule 7(1). The essence of the present case will depend upon the manner in which the statutory rules are interpreted. That indeed is the central task in deciding the appeal. Intrinsic to the process of interpreting the rules is the meaning which is to be ascribed to the expression the probable number of vacancies.47. After its amendment in 2019, Rule 7(1) as it stands speaks in the first instance of the notification of the probable number of vacancies likely to be filled up. Rule 7(1) also refers to notified vacancies in two places, the first in the context of maintaining the ratio between the vacancies which are notified and successful candidates while the second refers to the proportion between the notified vacancies and the number of candidates called for the viva voce. Now sub-Rule (2) of Rule 7 which has been substituted in its entirety as a result of the amendment provides the tenure over which the merit list which has been approved by the Governor would be valid. As we have seen, before its amendment, sub-Rule (2) of Rule 7 provided for a tenure for the list approved by the Governor for a period of three years or until a fresh approved list is prepared whichever is earlier. This tenure is now modified by the amendment brought about by the substitution of Rule 7(2). The modified tenure for the list approved by the Governor indicates that the list will be valid till the notified vacancies and vacancies that may arise within one year from the date of approval of the list are filled up or a fresh list comes into force, whichever is earlier. Thus, we find that the expression notified vacancies which has been used at two places in sub-Rule (1) of Rule 7 finds a presence also in substituted Rule 7(2). Now what is material to note is that it is Rule 7(1) which provides for the initial notification by which a probable number of vacancies is notified. The notified vacancies also determine the ratio of 1:10 in the preliminary examination and the number of candidates called for the interview. Sub-Rule (2) of Rule 7 does not have any bearing on the notification of the vacancies under Sub- rule (1) but it provides for the period of time over which the list approved by the Governor is to remain valid.48. The Kerala Rules 1991 preceded the judgment in Malik Mazhar Sultan (3). The amendment which came into force on 19 January 2019 is evidently after the decision of this Court. The effort, as a matter of statutory interpretation, must be to harmonize the directions which were issued by this Court in Malik Mazhar Sultan (3) which are relatable to the jurisdiction of this Court under Article 142 of the Constitution and the statutory rules. Undoubtedly, this Court has noticed in that decision that there were rules in force in the States and the Union Territories governing the selection to their judicial service. While issuing directions in regard to the maintenance of timelines and for the modalities to be followed in an annual selection, this Court clarified that this would not impinge upon the independence of the Public Service Commission or the role of the High Courts in the States. In the subsequent decisions in Rakhi Ray and Hirandra Kumar, this Court has specifically negatived the attempts made by candidates that did not qualify in terms of the rules governing selection to the judicial service to seek appointment merely on the basis of the observations in Malik Mazhar Sultan (3). Rakhi Ray involved a situation where candidates who did not qualify for the notified vacancies of District Judge in Delhi claimed appointment on the basis of the vacancies which had arisen during the process of selection. Their plea was turned down on the ground that once vacancies have been notified, no candidate could seek appointment beyond the extent of the vacancies which were advertised. Hirandra Kumar was a decision of this Court where candidates for the higher judicial service examination claimed an exemption from the age limit set out in the State Judicial Service Rules on the ground that after the date of the last examination for recruitment, they had become age barred. This effort was again negatived by the decision of this Court which held candidates down to the requirement of complying with the rules and selection process of the State Judicial Service. These two decisions would indicate that a candidate who does not qualify in terms of the judicial service rules prevailing in the State (or Union Territory) cannot seek a mandamus which is founded on a breach of the rules. The observation in Rakhi Ray and Hirandra Kumar that the decision in Malik Mazhar Sultan (3) did not override the State Judicial Service Rules must therefore be construed in an appropriate sense. The object and purpose of this Court in the decision in Malik Mazhar Sultan (3) was to ensure the expeditious filling up of judicial vacancies in the State Judicial Services. It was in this perspective, that the Court set down strict timelines for compliance. At the same time, it is evident that the decision did not provide for other essential aspects such as eligibility, modalities for conducting the examination and the application of reservations in making appointments to state judicial services. Hence, a significant field in regard to the process of selection and appointments to the judicial services is not covered by the decision in Malik Mazhar Sultan (3) for which one has to fall back upon construing the rules governing the state judicial service in question. But a stand out feature which emerges from the decision in Malik Mazhar Sultan (3) must equally be emphasized. The judgment of this Court enunciates, in no uncertain terms, that the process of selection to the state judicial services has to take place on an annual basis. As the orders passed by this Court on the IAs by the appellant indicate, the requirement of yearly selection does not ordinarily brook exception. The court however reserved to itself the power to exempt in a given situation a State or Union Territory from compliance with the time schedule or extend time where peculiar local conditions require the grant of such an exemption or extension. The significant aspect of the decision in Malik Mazhar Sultan (3) is that the recruitment process is initiated each year with a notification of vacancies by the appellant and culminates in the appointment of candidates and their joining service. Once the process of selection is annual, the notification of probable or anticipated vacancies has to be for the selection year. The expression probable means what is anticipated, expected and likely. The expression thus comprehends the existing vacancies and those which are anticipated due to retirement, promotion, death or resignation and to which some vacancies can be added to incorporate imponderable events during the recruitment process. In construing the rules by the State Judicial Service, more particularly the process of notifying the probable vacancies, an effort must be made to harmonize the rules with the object, intent and purpose underlying the directions that were issued under Article 142 in Malik Mazhar Sultan (3). This exercise becomes necessary for another reason. In the present case, Rule 7(1) refers to notifying the probable number of vacancies likely to be filled up. However, Rule 7(1) does not expressly indicate what is meant by this expression. The ambit of that phrase should receive content and meaning based on what was envisioned in Malik Mazhar Sultan (3). The decision of this Court indicates that by 15 January every year the number of vacancies is to be notified by the appellant.Originally, in the judgment of this Court dated 4 January 2007, the third category [(c) above] was to consist of say 10 per cent of the number of posts. Subsequently, by the order dated 24 March 2009, the stipulation was varied as a consequence of which, it has been envisioned that in future the High Courts/Public Service Commissions shall notify the existing number of vacancies plus the anticipated vacancies for the next one year and some candidates also to be included in the wait- list. The existing number of vacancies is an objective fact which is known to the particular High Court. Anticipated vacancies are those which arise as a part of the normal exigencies of service in the ensuing year due to factors such as promotion, death or resignation from service. These exigencies are normal to a service but these vacancies are difficult to predict with precision. In the original order dated 4 January 2007 in Malik Mazhar Sultan (3) category (b) consisting of future vacancies that may arise within one year was qualified by the expression due to retirement. Retirements are known as an objective factor since the date on which a candidate appointed to judicial service would attain the age of superannuation is known in advance. Category (c) consisting of future vacancies referred to those which may arise due to promotion, death or otherwise, the exact number being somewhat in the realm of an imponderable future event. As a result of the modification which has been brought about by the order of this Court dated 24 March 2009, the first category of existing vacancies is maintained as it is. The second category consists of anticipated vacancies for the next one year. This category would incorporate vacancies which were likely to arise on account of retirement as well as those which may be anticipated in the ordinary course due to the exigencies of service such as promotion, resignation or death of candidates within the service. Significantly, the last category incorporates the principle that some candidates also be included in the wait-list. The inclusion of some candidates in the wait-list is to ensure the availability of candidates in the event that additional vacancies occur during the course of the year due to the exigencies of service. But significantly, the entire process which is contemplated by the decision in Malik Mazhar Sultan (3) is an annual process. Hence, the vacancies which are to be notified in the advertisement which is issued by the High Court are relatable to the recruitment year for which a selection is carried out. Malik Mazhar Sultan (3) does not incorporate future vacancies, that is those which lie beyond the recruitment year for which the selection is to be made.49. Now while giving meaning and content to the provisions of Rule 7(1) of the Kerala Rules 1991 as amended, it would be appropriate to harmonize the ambit of the expression notifying the probable number of vacancies on the basis of the Article 142 directions in Malik Mazhar Sultan (3). This would not do violence to the provisions of Rule 7(1), since Sub-rule 1 does not define what is meant by probable vacancies. Moreover, as we have already explained, Rule 7(2) deals with tenure of the approved list while the determination of the probable number of vacancies falls within the ambit of Rule 7(1). Hence, in determining the probable number of vacancies likely to be filled up, the particular High Court has to take into account:(i) The existing number of vacancies;(ii) Anticipated vacancies during the year arising due to retirements and other exigencies of service including promotion, death and resignation; and(iii) Some candidates are to be included in the wait-list.The ambit of the probable number of vacancies in Rule 7(1) must be based on this assessment. In fact, as noted earlier, this was exactly what was done by the appellant.There are significant problems in accepting this line of interpretation which has found acceptance by the High Court.51. Firstly, this line of interpretation requires the appointing authority to take into account vacancies which have arisen in the subsequent recruitment year 2020 in making appointments in pursuance of the selection for recruitment year 2019. This, as a matter of first principle, is impermissible. The determination of probable vacancies in terms of Rule 7(1) is a determination which is based on the vacancies which are projected during the course of that recruitment year, in this case 2019. This exercise cannot cover, consistent with the mandate of Art 14 and Art 16, future vacancies of a subsequent year of selection. Nor does Rule 7(1) bring vacancies of a future year within the computation of probable vacancies.52. Secondly, adopting the interpretation which has been suggested on behalf of the respondents would lead to serious anomalies. As we have seen, a notification was issued by the appellant in the month of June 2020 for the 2020 recruitment. The consequence of accepting the arguments of the respondents would be that posts which have to be allocated for recruitment against the existing and anticipated vacancies for 2020 would have to be reduced by allocating them to recruitment year 2019. The appellant has expressly determined and notified the vacancies which have arisen for 2020. The respondents argued that though the original notification referred to a probable number of vacancies the corrigendum deleted the expression probable. This, in our view, is not a matter of moment since the essence of the controversy lies in interpreting the provisions of the Rules as they stand. If the respondents were right in their submission, this would require the appellant to progressively remove from the ambit of the vacancies which are notified for the subsequent recruitment year, the vacancies which are allocated to the previous year on the basis of a supposed interpretation of Rule 7(2). This would clearly be impermissible and bring uncertainty to the recruitment for subsequent years. It will cause serious prejudice to candidates who qualify in terms of eligibility during the recruitment process of 2020 by reducing the number of probable vacancies and adding them to the previous recruitment cycle.53. The third anomaly which arises from the interpretation, which has been suggested by the respondents and which has been accepted by the High Court, was noticed by the High Court itself in the course of its judgment. If Rule 7(2) were to be given overriding importance without reading it in juxtaposition with the determination of the probable number of vacancies under Rule 7(1), the issue is until what period of time would vacancies arising after the date of approval by the Governor have to be factored into account. Some of the petitioners before the High Court, as indeed some of them in the written submissions before this Court, indicated that the number of vacancies as existing on the date of the approval of the Governor should form the basis of making appointments. The High Court rejected these arguments in the following observations:9. Immediately we have to notice that we cannot go mid-way to direct appointment to vacancies arising till the date of approval. We either decline the relief or grant it as permissible under the rules. The date of approval is only relevant to determine the validity period of the list, as per the rules. We cannot give the date of approval any significance other than that prescribed in the rules. Which if allowed would literally be a half baked cake, neither good for consumption nor completely worthless to be thrown out. We would not rest ourselves on such sticky premise of uncertainty.The High Court was correct in comprehending that it could not accept a half-way measure merely because it suited the interest of some of the candidates who would be appointed if the vacancies which had arisen up to the date of approval were taken into account. Noticing this anomaly, the High Court by its impugned judgment went the entire extent by issuing the following directions:38… We direct the appellant to prepare a select list from the approved merit list including those vacancies which arise as on today and those anticipated till 06.05.2021 or any other date on which the appellant expects the next list to be published.In its conclusion, the High Court also observed:We dismiss the Writ Appeals, directing the High Court to forward a select list in accordance with the rules 14 to 17 of Part II of the KS&SSR, 1958 from the approved merit list.The plain consequence of the decision of the High Court would be that vacancies which have arisen during 2020 would be allocated to 2019. This could only be done if the vacancies for 2020 were anticipated to arise during 2019, which is not the case.54. The fourth difficulty in accepting the line of approach of the High Court rests on constitutional principles. Undoubtedly, the validity of Rule 7(2) was not in question before the High Court. Counsel for the respondents argued that it does not lie in the province of the appellant to raise a doubt about the validity of its own rules, more particularly Rule 7(2). It is necessary to note that Mr V Giri, learned Senior Counsel appearing on behalf of the appellant did not suggest or argue that Rule 7(2) should be held to be invalid.We are in agreement with this line of submissions, based as it is on the precedent of this Court. It is a settled principle of service jurisprudence that when vacancies are notified for conducting a selection for appointments to public posts, the number of appointments cannot exceed the vacancies which are notified. The answer to this submission, which has been proffered by the respondents is that under Rule 7(1) a probable number of vacancies is required to be notified and since an exact number is not notified, there is no constitutional bar in exceeding the 37 probable vacancies that were notified in 2019. The difficulty in accepting the submission is simply this: it attributes to the expression probable number of vacancies a meaning which is inconsistent with basic principles of service jurisprudence, the requirement of observing the mandate of equality of opportunity in public employment under Articles 14 and 16 and is contrary to the ordinary meaning of the expression.Probable number of vacancies, as we have seen, is based on computing the existing vacancies and the vacancies anticipated to occur during the year. It also accounts for the possibility of inclusion of some of the candidates that are in the wait-list. However, the expression probable cannot be interpreted as a vague assessment of vacancies that isnt founded in reason and can be altered without a statutorily prescribed cause. To allow the concept of probable number of vacancies in Rule 7(1) to trench upon future vacancies which will arise in a succeeding year would lead to a serious constitutional infraction. Candidates who become eligible for applying for recruitment during a succeeding year of recruitment would have a real constitutional grievance that vacancies which have arisen during a subsequent year during which they have become eligible have been allocated to an earlier recruitment year. If the directions of the High Court are followed, this would seriously affect the fairness of the process which has been followed by glossing over the fact that vacancies which have arisen during 2020 will be allocated for candidates in the select list for the year 2019. Such a course of action would constitute a serious infraction of Articles 14 and 16 and must be avoided. To reiterate, the submission of the appellant which we are inclined to accept is not that Rule 7(2) is invalid but that a harmonious interpretation of Rules 7(1) and (2) must be adopted that is consistent with the Article 142 directions in Malik Mazhar Sultan (3) to bring the rules in accord with the governing principles of constitutional jurisprudence in matters of public employment.55. Fifthly, at this stage, we must also advert to another serious aspect which arises from the judgment of the High Court. The High Court noticed in the course of its analysis that the acceptance of the submission of the respondents would lead to the appellant, on its administrative side, having to carry out piece-meal training for candidates who are appointed to vacancies arising in the year after approval of the merit list. The approval of the Governor was received on 7 May 2020. If vacancies which arise between 7 May 2020 and 6 May 2021 are to be reckoned in making appointments for the 2019 process, the training of candidates who are appointed against the subsequent vacancies would take place piece-meal and in a sporadic manner after the initial batch of recruits has been sent on training. Upon receipt of the approval of the Governor, candidates to whom appointment orders were issued joined their training and are in fact in the midst of their training. The High Court without venturing a solution to this imbroglio came out with a suggestion in paragraph 29 of this judgment, which is extracted below:29. There could arise one problem insofar as the High Court having to carry out training, piece meal, of the recruits appointed to the vacancies arising in the one year after the approval of the merit list. This could be solved by selecting for training even persons whose vacancies have not arisen, in anticipation. When appointments are made in June 2020 in accordance with Rue 7(2) it could only be regularly made to vacancies that actually arose till that date. The High Court then would be faced with the problem of appointing fresh recruits in the enabling year to arising vacancies who also would have to be given training for one year which may put the training process into jeopardy. We only observe that the High Court on its administrative side in consultation with the Government could device a procedure through which training could be commenced even for successful candidates, finding a place in the merit list, who could be appointed to the anticipated vacancies, which vacancies definitely would arise by the time their training is completed. This can especially be managed since the validity of the list go beyond one year from the date of approval of the merit list and the training can commence only after the approval of the merit list. The selection of recruits to anticipated vacancies for undergoing training could also be made subject to the vacancy arising and the new list coming into force with continuance in training on a stipend till a regular appointment is made to the vacancy. We do not intent these observations to be in the nature of a direction and are only our thoughts, expressed aloud.The solution which the High Court has indicated is, as it clarified, not in the nature of a direction but only our thoughts, expressed allowed. The solution suggested by the High Court is that candidates may be selected and sent for training even against vacancies which have not arisen, in anticipation of vacancies arising in future. The High Court observed that when appointments were made in June 2020, they could only be regularly made to vacancies that actually arose until that date. The High Court took notice of the fact that on its administrative side, appointment of fresh recruits to vacancies which would arise in the ensuing year would put the training process into jeopardy. However, it suggested that in consultation with the government, a procedure could be devised by which training could be commenced for candidates against vacancies which have still not arisen and which would arise in the future. The High Court even suggested that the trainees appointed against possible future vacancies could be paid a stipend. The solution which has been suggested by the High Court is plainly unacceptable. Persons are sent on training on being appointed to the judicial service and there cannot be two categories of trainees, one of whom receives a stipend since the vacancies for which they have been selected are yet to arise. Moreover, there will be a serious discontent if not all the candidates who are sent on training in expectation of future vacancies can be accommodated in service. We have emphasized the above aspect, for the simple reason that the High Court was cognizant of the serious problems which would result in the administration if its decisions were to hold the field. The suggestion by the High Court that the administration must send on training, candidates for whom there are no vacancies in the service is contrary to law. In the event that some of the candidates who are sent on training cannot be absorbed at a future date for want of vacancies, it would lead to a serious dissatisfaction and be unfair to the candidates who were sent for training. This would also cause a burden on the exchequer requiring it to pay a stipend to persons who are yet to be recruited to the judicial service, there being no present vacancies to accommodate them.Virendra S Hooda v. State of Haryana (1999) 3 SCC 696 . This was a case where the Haryana Public Service Commission issued an advertisement for recruitment to the Executive Branch of the Haryana Civil Service. The advertisement covered 12 posts, 7 of which were in the general category and 5 were reserved. A written examination was held following which the results were published. The appellants were in the list of candidates whose results were declared but did not place sufficiently high to be appointed to the Civil Service (Executive Branch). They were given alternate posts. The writ petitions filed by the appellants were dismissed by the High Court and when the matter reached this Court, they were granted liberty to file fresh writ petitions for getting appointments on the basis of two circulars of 1957 and 1972 which laid down the procedure to be adopted for selection against all notified additional vacancies which arise within six months from the recommendation of the names. The High Court rejected the claim again but this Court eventually took the view that when a policy was declared by the State as to the manner of filling up the post and the policy is declared in terms of the rules, the instructions not being contrary to the rules, the State ought to follow them. Now significantly, the administrative instructions which were referred to were subsequently repealed by legislation with retrospective effect. The validity of the law was upheld by this Court in Virender Singh Hooda v. State of Haryana (2004) 12 SCC 588 , though appointments made already in pursuance of the directions of this Court were left undisturbed. The first decision in Virender Singh Hooda would have to be read in the context of the facts of the case. Significantly, this Court did not have occasion to consider the earlier decision including the principle that appointments cannot be made, consistent with Articles 14 and 16, in excess of notified vacancies. This principle was reiterated in Prem Singh (supra) which was prior to the decision in Virender Singh. Be that as it may, we are of the view that in the above facts the decision in Virender Singh Hooda will not assist the respondents and would have to be confined to the peculiar circumstances in that case.We are unable to subscribe to this submission. The respondents participated in the selection process on the basis of 37 probable vacancies.Having come to the conclusion that the judgment of the High Court is erroneous, we are of the view that it would be impermissible to grant relief to the respondents purely on this basis. The respondents have no vested right to appointment for the 2019 selections. They cannot claim any right, or even equity, on the ground that the selection for the subsequent year may be delayed. Vacancies for 2020 must be allocated to candidates who are duly selected in pursuance of the recruitment process for 2020. Candidates who have ranked lower in the 2019 selection and were unable to obtain appointments cannot appropriate the vacancies of a subsequent year to themselves. To allow such a claim would be an egregious legal and constitutional error. | 1 | 18,807 | 10,374 | ### Instruction:
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vacancies in the service is contrary to law. In the event that some of the candidates who are sent on training cannot be absorbed at a future date for want of vacancies, it would lead to a serious dissatisfaction and be unfair to the candidates who were sent for training. This would also cause a burden on the exchequer requiring it to pay a stipend to persons who are yet to be recruited to the judicial service, there being no present vacancies to accommodate them. 56. During the course of the submissions, reliance has been placed on behalf of the respondents on the decision of this Court in Virendra S Hooda v. State of Haryana (1999) 3 SCC 696 . This was a case where the Haryana Public Service Commission issued an advertisement for recruitment to the Executive Branch of the Haryana Civil Service. The advertisement covered 12 posts, 7 of which were in the general category and 5 were reserved. A written examination was held following which the results were published. The appellants were in the list of candidates whose results were declared but did not place sufficiently high to be appointed to the Civil Service (Executive Branch). They were given alternate posts. The writ petitions filed by the appellants were dismissed by the High Court and when the matter reached this Court, they were granted liberty to file fresh writ petitions for getting appointments on the basis of two circulars of 1957 and 1972 which laid down the procedure to be adopted for selection against all notified additional vacancies which arise within six months from the recommendation of the names. The High Court rejected the claim again but this Court eventually took the view that when a policy was declared by the State as to the manner of filling up the post and the policy is declared in terms of the rules, the instructions not being contrary to the rules, the State ought to follow them. Now significantly, the administrative instructions which were referred to were subsequently repealed by legislation with retrospective effect. The validity of the law was upheld by this Court in Virender Singh Hooda v. State of Haryana (2004) 12 SCC 588 , though appointments made already in pursuance of the directions of this Court were left undisturbed. The first decision in Virender Singh Hooda would have to be read in the context of the facts of the case. Significantly, this Court did not have occasion to consider the earlier decision including the principle that appointments cannot be made, consistent with Articles 14 and 16, in excess of notified vacancies. This principle was reiterated in Prem Singh (supra) which was prior to the decision in Virender Singh. Be that as it may, we are of the view that in the above facts the decision in Virender Singh Hooda will not assist the respondents and would have to be confined to the peculiar circumstances in that case. 57. The respondents urged, on the basis of Annexures A-1 to A-3 produced before the High Court along with the statement filed on 18 August 2020, and referred to in the appendix to the impugned judgment, that more than 37 vacancies actually existed as on 31 December 2019 and therefore the select list could be operated for a larger number of vacancies. We are unable to subscribe to this submission. The respondents participated in the selection process on the basis of 37 probable vacancies. Moreover, it has been submitted on behalf of the appellants that, Annexure A-2 appended to the submissions would indicate that the total number of vacancies as on 31 December 2019 were shown to be 43, which included 37 regular vacancies and 8 NCA vacancies. Out of the 37 regular vacancies only 32 could be included in the select list for the year 2019 because as against 5 vacancies candidates were not available against the reserved turn. Those five vacancies have been treated as NCA vacancies for 2020 and have been included in the list of vacancies for the succeeding year. The 37 regular vacancies and 8 NCA vacancies were notified for the year 2019, in accordance with the break up provided in Malik Mazhar Sultan (3). It has been stated that 45 vacancies notified for selection year 2019 included 4 vacancies under the 10 per cent addition that had to be made for every year. However, only two of the four vacancies had actually arisen and hence the figure of 43. On this basis, it has been submitted that there is no discrepancy in the figures which were given in the statement filed before the High Court and the statement filed on additional affidavit before this Court. 58. Finally, it has been urged on behalf of the respondents that the recruitment process for the year 2020 has been delayed as a result of the onset of the Covid-19 pandemic. A recruitment notification was issued in the month of June 2020. It has been submitted that the actual process of selection would take about one year following which candidates would have to be sent on training. Hence it has been submitted that candidates for recruitment year 2020 would be in a position to actually commence judicial duties only in early 2023. Having come to the conclusion that the judgment of the High Court is erroneous, we are of the view that it would be impermissible to grant relief to the respondents purely on this basis. The respondents have no vested right to appointment for the 2019 selections. They cannot claim any right, or even equity, on the ground that the selection for the subsequent year may be delayed. Vacancies for 2020 must be allocated to candidates who are duly selected in pursuance of the recruitment process for 2020. Candidates who have ranked lower in the 2019 selection and were unable to obtain appointments cannot appropriate the vacancies of a subsequent year to themselves. To allow such a claim would be an egregious legal and constitutional error.
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from the date of approval of the merit list and the training can commence only after the approval of the merit list. The selection of recruits to anticipated vacancies for undergoing training could also be made subject to the vacancy arising and the new list coming into force with continuance in training on a stipend till a regular appointment is made to the vacancy. We do not intent these observations to be in the nature of a direction and are only our thoughts, expressed aloud.The solution which the High Court has indicated is, as it clarified, not in the nature of a direction but only our thoughts, expressed allowed. The solution suggested by the High Court is that candidates may be selected and sent for training even against vacancies which have not arisen, in anticipation of vacancies arising in future. The High Court observed that when appointments were made in June 2020, they could only be regularly made to vacancies that actually arose until that date. The High Court took notice of the fact that on its administrative side, appointment of fresh recruits to vacancies which would arise in the ensuing year would put the training process into jeopardy. However, it suggested that in consultation with the government, a procedure could be devised by which training could be commenced for candidates against vacancies which have still not arisen and which would arise in the future. The High Court even suggested that the trainees appointed against possible future vacancies could be paid a stipend. The solution which has been suggested by the High Court is plainly unacceptable. Persons are sent on training on being appointed to the judicial service and there cannot be two categories of trainees, one of whom receives a stipend since the vacancies for which they have been selected are yet to arise. Moreover, there will be a serious discontent if not all the candidates who are sent on training in expectation of future vacancies can be accommodated in service. We have emphasized the above aspect, for the simple reason that the High Court was cognizant of the serious problems which would result in the administration if its decisions were to hold the field. The suggestion by the High Court that the administration must send on training, candidates for whom there are no vacancies in the service is contrary to law. In the event that some of the candidates who are sent on training cannot be absorbed at a future date for want of vacancies, it would lead to a serious dissatisfaction and be unfair to the candidates who were sent for training. This would also cause a burden on the exchequer requiring it to pay a stipend to persons who are yet to be recruited to the judicial service, there being no present vacancies to accommodate them.Virendra S Hooda v. State of Haryana (1999) 3 SCC 696 . This was a case where the Haryana Public Service Commission issued an advertisement for recruitment to the Executive Branch of the Haryana Civil Service. The advertisement covered 12 posts, 7 of which were in the general category and 5 were reserved. A written examination was held following which the results were published. The appellants were in the list of candidates whose results were declared but did not place sufficiently high to be appointed to the Civil Service (Executive Branch). They were given alternate posts. The writ petitions filed by the appellants were dismissed by the High Court and when the matter reached this Court, they were granted liberty to file fresh writ petitions for getting appointments on the basis of two circulars of 1957 and 1972 which laid down the procedure to be adopted for selection against all notified additional vacancies which arise within six months from the recommendation of the names. The High Court rejected the claim again but this Court eventually took the view that when a policy was declared by the State as to the manner of filling up the post and the policy is declared in terms of the rules, the instructions not being contrary to the rules, the State ought to follow them. Now significantly, the administrative instructions which were referred to were subsequently repealed by legislation with retrospective effect. The validity of the law was upheld by this Court in Virender Singh Hooda v. State of Haryana (2004) 12 SCC 588 , though appointments made already in pursuance of the directions of this Court were left undisturbed. The first decision in Virender Singh Hooda would have to be read in the context of the facts of the case. Significantly, this Court did not have occasion to consider the earlier decision including the principle that appointments cannot be made, consistent with Articles 14 and 16, in excess of notified vacancies. This principle was reiterated in Prem Singh (supra) which was prior to the decision in Virender Singh. Be that as it may, we are of the view that in the above facts the decision in Virender Singh Hooda will not assist the respondents and would have to be confined to the peculiar circumstances in that case.We are unable to subscribe to this submission. The respondents participated in the selection process on the basis of 37 probable vacancies.Having come to the conclusion that the judgment of the High Court is erroneous, we are of the view that it would be impermissible to grant relief to the respondents purely on this basis. The respondents have no vested right to appointment for the 2019 selections. They cannot claim any right, or even equity, on the ground that the selection for the subsequent year may be delayed. Vacancies for 2020 must be allocated to candidates who are duly selected in pursuance of the recruitment process for 2020. Candidates who have ranked lower in the 2019 selection and were unable to obtain appointments cannot appropriate the vacancies of a subsequent year to themselves. To allow such a claim would be an egregious legal and constitutional error.
|
Hindustan Lever Ltd Vs. State Of Karnataka | the context of exemption notifications under the Sales Tax Act. As can be seen from paragraph 26 of the aforesaid judgment, the questions involved in that case were entirely different. Also, the test of what is “manufacture” was borrowed from the Central Excise Act as can be seen from paragraph 48 of the judgment. The High Court points to a new dimension to the word “manufacture” in the context of excise which would therefore include within it packing material as well in order that the goods be made marketable. This, as we have seen above, cannot be done in the context of the Entry Tax Act. 17. In Tata Engineering & Locomotive Co. Ltd. (TELCO) v. State of Bihar, (1994) 6 SCC 479 , this Court had to deal with a notification issued by the State of Bihar in the context of sales tax. The expression “raw material” and “input” was used in the notification. This Court held, following J.K. Cotton Spinning & Weaving Mills Co. Ltd. v. S.T.O., (1965) 1 SCR 900 , that the expression “in the manufacture of goods” would normally encompass the entire process carried on by the dealer of converting raw materials into finished products. The precise question before this Court was whether products finished in themselves, such as tyres, tubes, batteries, etc., when purchased by the appellant for use in the manufacture of vehicles, could be said to be inputs. This Court held that as a vehicle cannot be operative without tyres, tubes, and batteries, obviously they were inputs in the sense of the dictionary meaning of what is “put in”. Both the fact situation and the ratio of this judgment are far removed from the facts in the present case inasmuch as it is nobody’s case that without the packing material manufactured tea cannot be said to exist as a finished product, it being “moveable property” and therefore “goods” under the Karnataka Entry Tax Act. This judgment is also therefore of no avail to the appellant. 18. M/s. Star Paper Mills Ltd. v. CCE, Meerut, (1989) 4 SCC 724 , is an excise case in which an exemption Notification exempted goods used as component parts in manufacture of any goods on which excise duty was leviable. This judgment defines the word “component” to mean a constituent part. In this context, it was held that paper core is a component part of paper delivered to the customer in rolls, but not in sheets as it was not necessary for manufacture of paper sheets. This case would have no application to the facts of the present case. It is obvious that packing material used to pack a product complete in itself, cannot possibly be included in the word “component” as it is not a constituent part of manufactured tea. 19. Three other judgments under the Central Excise Act were cited. The first of them, CCE v. M/s. Eastend Paper Industries Ltd., (1989) 4 SCC 244 , was concerned with the marketability aspect of central excise which, as has been held by us above, would not apply in the context of the Entry Tax Act. In that judgment, paper wrapping was held to be essential to make the concerned goods marketable. The second of these judgments CCE v. Ballarpur Industries Limited, (1989) 4 SCC 566 , again concerned a completely different fact situation. The question in that case was whether an admitted input, Sodium Sulphate, in the manufacture of paper, would not be construed to be a raw material only by reason that in the course of chemical reactions Sodium Sulphate is consumed and burnt up. This Court held that consumption and burning up would make no difference, as an ‘input’ need not always manifest itself in the final product. And in H.M.M. Ltd. V. CCE, (1994) 6 SCC 594 , it was held that a screw cap on a bottle containing Horlicks was a component part of Horlicks, it being an essential ingredient to complete the process of manufacture to make Horlicks marketable. This judgment again will not apply for the same reason indicated above, namely, that marketability is not relevant for the purpose of the Entry Tax Act. 20. M/s. J.K. Cotton Spinning & Weaving Mills Co. Ltd. v. Sales Tax Officer, Kanpur, (1965) 1 SCR 900 , is a judgment in which Section 8 of the Central Sales Tax Act was pressed into aid on behalf of the appellant. In this case, the question was whether drawing materials, photographic materials etc. could be comprehended within the expression “in the manufacture of goods for sale” within the meaning of section 8(3)(b) of the Central Sales Tax Act, 1956. In order to determine whether such materials would qualify as such, this Court held that where any particular process is so integrally connected with the ultimate production of goods that, but for that process, manufacture or process of goods would be commercially inexpedient, goods required in that process would fall within the expression “in the manufacture of goods”. What has been said about the excise cases squarely applies here. The expression used in Section 8 of the Central Sales Tax Act is not “in the manufacture of goods”, but “in the manufacture of goods for sale”, bringing in the element of marketability. 21. It only remains to deal with the argument made on behalf of the appellant based on the Tea Marketing Control Order. Needless to add, a manufacturer for the purpose of the said Order is specifically a person who produces value added products commercially known as tea. The context of the said definition is for the purpose of registering manufacturers or producers and buyers of tea, having relevance therefore to the sale aspect of tea. As has already been held by us, the context of entry tax being different, we are afraid this argument also does not avail the appellant.22. We are, therefore, of the view that the High Court was correct in following its own earlier Division Bench judgment in the Nestle case. | 0[ds]there is no such Explanation II contained in the exemption notification dated 31.3.1993. This being the case, if we were to accept the case of the appellants, they would be liable to tax at the rate of 1% under the 1998 notification but would not be exempt under the 1993 notification, thus rendering the same packing material liable to tax at the rate of 2% in the case of the Dharwad unit and 1% in the case of all other units. This would lead to an anomalous situation which can best be avoided by not accepting the argument on behalf of the appellants.14. Equally, the argument based on Section 5A of the Karnataka Sales Tax Act is fallacious in that it is only for the purpose ofat packing materials are included, and forms a separate scheme of taxation under the Sales Tax statute. We cannot accede to the argument that de hors the context of the Entry Tax Act, we should accept that industrial inputs include packing materials and that therefore, by parity of reasoning,under the Entry Tax Act should also include packing material. This argument has therefore correctly been turned down by the High Court of Karnataka in the Nestle case.It only remains to deal with the argument made on behalf of the appellant based on the Tea Marketing Control Order. Needless to add, a manufacturer for the purpose of the said Order is specifically a person who produces value added products commercially known as tea. The context of the said definition is for the purpose of registering manufacturers or producers and buyers of tea, having relevance therefore to the sale aspect of tea. As has already been held by us, the context of entry tax being different, we are afraid this argument also does not avail the appellant.22. We are, therefore, of the view that the High Court was correct in following its own earlier Division Bench judgment in the Nestle case. | 0 | 6,040 | 357 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
the context of exemption notifications under the Sales Tax Act. As can be seen from paragraph 26 of the aforesaid judgment, the questions involved in that case were entirely different. Also, the test of what is “manufacture” was borrowed from the Central Excise Act as can be seen from paragraph 48 of the judgment. The High Court points to a new dimension to the word “manufacture” in the context of excise which would therefore include within it packing material as well in order that the goods be made marketable. This, as we have seen above, cannot be done in the context of the Entry Tax Act. 17. In Tata Engineering & Locomotive Co. Ltd. (TELCO) v. State of Bihar, (1994) 6 SCC 479 , this Court had to deal with a notification issued by the State of Bihar in the context of sales tax. The expression “raw material” and “input” was used in the notification. This Court held, following J.K. Cotton Spinning & Weaving Mills Co. Ltd. v. S.T.O., (1965) 1 SCR 900 , that the expression “in the manufacture of goods” would normally encompass the entire process carried on by the dealer of converting raw materials into finished products. The precise question before this Court was whether products finished in themselves, such as tyres, tubes, batteries, etc., when purchased by the appellant for use in the manufacture of vehicles, could be said to be inputs. This Court held that as a vehicle cannot be operative without tyres, tubes, and batteries, obviously they were inputs in the sense of the dictionary meaning of what is “put in”. Both the fact situation and the ratio of this judgment are far removed from the facts in the present case inasmuch as it is nobody’s case that without the packing material manufactured tea cannot be said to exist as a finished product, it being “moveable property” and therefore “goods” under the Karnataka Entry Tax Act. This judgment is also therefore of no avail to the appellant. 18. M/s. Star Paper Mills Ltd. v. CCE, Meerut, (1989) 4 SCC 724 , is an excise case in which an exemption Notification exempted goods used as component parts in manufacture of any goods on which excise duty was leviable. This judgment defines the word “component” to mean a constituent part. In this context, it was held that paper core is a component part of paper delivered to the customer in rolls, but not in sheets as it was not necessary for manufacture of paper sheets. This case would have no application to the facts of the present case. It is obvious that packing material used to pack a product complete in itself, cannot possibly be included in the word “component” as it is not a constituent part of manufactured tea. 19. Three other judgments under the Central Excise Act were cited. The first of them, CCE v. M/s. Eastend Paper Industries Ltd., (1989) 4 SCC 244 , was concerned with the marketability aspect of central excise which, as has been held by us above, would not apply in the context of the Entry Tax Act. In that judgment, paper wrapping was held to be essential to make the concerned goods marketable. The second of these judgments CCE v. Ballarpur Industries Limited, (1989) 4 SCC 566 , again concerned a completely different fact situation. The question in that case was whether an admitted input, Sodium Sulphate, in the manufacture of paper, would not be construed to be a raw material only by reason that in the course of chemical reactions Sodium Sulphate is consumed and burnt up. This Court held that consumption and burning up would make no difference, as an ‘input’ need not always manifest itself in the final product. And in H.M.M. Ltd. V. CCE, (1994) 6 SCC 594 , it was held that a screw cap on a bottle containing Horlicks was a component part of Horlicks, it being an essential ingredient to complete the process of manufacture to make Horlicks marketable. This judgment again will not apply for the same reason indicated above, namely, that marketability is not relevant for the purpose of the Entry Tax Act. 20. M/s. J.K. Cotton Spinning & Weaving Mills Co. Ltd. v. Sales Tax Officer, Kanpur, (1965) 1 SCR 900 , is a judgment in which Section 8 of the Central Sales Tax Act was pressed into aid on behalf of the appellant. In this case, the question was whether drawing materials, photographic materials etc. could be comprehended within the expression “in the manufacture of goods for sale” within the meaning of section 8(3)(b) of the Central Sales Tax Act, 1956. In order to determine whether such materials would qualify as such, this Court held that where any particular process is so integrally connected with the ultimate production of goods that, but for that process, manufacture or process of goods would be commercially inexpedient, goods required in that process would fall within the expression “in the manufacture of goods”. What has been said about the excise cases squarely applies here. The expression used in Section 8 of the Central Sales Tax Act is not “in the manufacture of goods”, but “in the manufacture of goods for sale”, bringing in the element of marketability. 21. It only remains to deal with the argument made on behalf of the appellant based on the Tea Marketing Control Order. Needless to add, a manufacturer for the purpose of the said Order is specifically a person who produces value added products commercially known as tea. The context of the said definition is for the purpose of registering manufacturers or producers and buyers of tea, having relevance therefore to the sale aspect of tea. As has already been held by us, the context of entry tax being different, we are afraid this argument also does not avail the appellant.22. We are, therefore, of the view that the High Court was correct in following its own earlier Division Bench judgment in the Nestle case.
### Response:
0
### Explanation:
there is no such Explanation II contained in the exemption notification dated 31.3.1993. This being the case, if we were to accept the case of the appellants, they would be liable to tax at the rate of 1% under the 1998 notification but would not be exempt under the 1993 notification, thus rendering the same packing material liable to tax at the rate of 2% in the case of the Dharwad unit and 1% in the case of all other units. This would lead to an anomalous situation which can best be avoided by not accepting the argument on behalf of the appellants.14. Equally, the argument based on Section 5A of the Karnataka Sales Tax Act is fallacious in that it is only for the purpose ofat packing materials are included, and forms a separate scheme of taxation under the Sales Tax statute. We cannot accede to the argument that de hors the context of the Entry Tax Act, we should accept that industrial inputs include packing materials and that therefore, by parity of reasoning,under the Entry Tax Act should also include packing material. This argument has therefore correctly been turned down by the High Court of Karnataka in the Nestle case.It only remains to deal with the argument made on behalf of the appellant based on the Tea Marketing Control Order. Needless to add, a manufacturer for the purpose of the said Order is specifically a person who produces value added products commercially known as tea. The context of the said definition is for the purpose of registering manufacturers or producers and buyers of tea, having relevance therefore to the sale aspect of tea. As has already been held by us, the context of entry tax being different, we are afraid this argument also does not avail the appellant.22. We are, therefore, of the view that the High Court was correct in following its own earlier Division Bench judgment in the Nestle case.
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Arati Ray Choudhury Vs. Union Of India & Ors | unreserved".The words "on a particular occasion" were substituted on September 2, 1964 by the words "year of recruitment". Thus, in the first place each year of recruitment is directed to be considered separately and by itself as laid down in Devadasans case, (1964) 4 SCR 680 , 694-695 = (AIR 1964 SC 1790) so that if there are only two vacancies to be filled in a particular year of recruitment, not more than one vacancy can be treated as reserved. Secondly, and that is directly relevant for our purpose, if there be only one vacancy to be filled in a given year of recruitment, it has to be treated as unreserved irrespective of whether it occurs in the model roster at a reserved point. The appointment then is not open to the charge that the reservation exceeds 50% for, if the very first vacancy in the first year of recruitment is in practice treated as a reserved vacancy, the system may be open to the objection that the reservation not only exceeds 50% but is in fact cent per cent. But, if "on this account" that is to say, if on account of the requirement that the first vacancy must in practice be treated as unreserved even if it occurs in the model roster at a reserved point, "a reserved point is treated as unreserved" the reservation can be carried forward to not more than two subsequent years of recruitment. Thus, if two vacancies occur, say, within an initial span of three years, the first vacancy has to be treated as an unreserved vacancy and the second as reserved.22. That is precisely what happened here. The S. E. Railway runs only two Secondary Schools for girls, one at Adra and the other at Kharagpur. The vacancy at Adra was filled on August 16, 1966 by the appointment of the seniormost Assistant Mistress, Smt. Gita Biswas. In pursuance of the Memorandum dated December 4, 1963 of the Ministry of Home Affairs, the Railway Board revised the model roster by their letter of January 16, 1964. The first point in this roster is a reserved point and therefore the Adra vacancy was strictly a reserved vacancy. But there being only one vacancy in the particular year of recruitment it had to be treated as unreserved and therefore the appointment went to Smt. Biswas, an open, not a reserved candidate. This, however, had to be compensated for by carrying forward the reservation, though not over more than 2 subsequent recruitment years. For the purposes of Services under the Railway administration recruitment year means the financial year and the Adra appointment having been made in the financial year 1966-67, it was permissible to carry forward the reservation till the close of the financial year 1968-69. There was no vacancy in 1967-68. The vacancy in the post of the Headmistress of the Kharapur school occurred in the financial year 1968-69 by the retirement of Smt. Bina Devi with, effect from December 31, 1968.This vacancy, indubitably, had to be treated as a reserved vacancy and since from amongst the 4 Assistant Mistresses, respondent No. 8 was the only candidate belonging to the scheduled caste, she was entitled to be considered for selection to the post of the Headmistress, to the exclusion of the other 3.The claims, if any, of the petitioner who is not a reserved candidate have to be postponed, though in the normal course it may be quite some years before she gets her turn. The Adra Headmistress and respondent No. 8 would seem to have a long tenure in their respective offices.23. It is urged that only one vacancy occurred in 1968-69 and since the letter of the Railway Board dated January 16, 1964 says that "if there be only one vacancy, it should be treated as unreserved", the Kharagpur vacancy must be treated as unreserved. Such a construction would rob the rule of its prime significance and will render the carry forward provision illusory.24. Though each year of recruitment is to be treated separately and by itself, a reserved vacancy has to be carried forward over 2 years, if it is not filled in by the appointment of a reserved candidate. The open class reaped a benefit in 1966-67 when a reserved vacancy was treated as unreserved by the appointment of an open candidate, Smt. Gita Biswas. If the carry forward rule has to be given any meaning, the vacancy shall have to be carried forward for the benefit of Scheduled castes and scheduled tribes until the close of the financial year 1968-69. The Kharagpur vacancy was to be filled in on January 1, 1969 and hence it cannot go to the petitioner who, admittedly does not belong to the reserved class. The construction sought to be put on the rule by the petitioner would perpetuate a socal injustice which has clouded the lives of a large section of humanity which is struggling to find its feet. Such a construction is contrary to the plain language of the letter of the Railway Board, the intendment of the rule and its legislative history.25. We may mention before we close that the posts of Headmistress of the Railway Higher Secondary Schools were upgraded in 1969 as Class II posts and in 1970 as Class I posts. The reservation for scheduled castes and scheduled tribes in Class II posts was abolished with effect from October 4, 1962 and in regard to Class I posts, there never was any such reservation. Different considerations may therefore apply to future recruitment to these posts, but with that we are not concerned here, Nor are we concerned to consider the Indian Railways Higher Secondary School Recruitment Rules, 1972, which, now are said to govern recruitment to the posts of Headmistresses.26. We hope that this judgment will finally ring down the curtain on the various proceedings pending in the Calcutta High Court together with various interim orders passed therein concerning the appointment to the Headmistresss post in the Kharagpur school.27. | 0[ds]We have set out the rules leading to the final order in some fulness with a view to showing how, from time to time, the rules were adapted to meet the requirements of the law declared by this Court. The vice of rules impugned in Devadasans case. (1964) 4 SCR 680 : (AIR 1964 SC 179 ) was that though the unutilised reserved quota could not be carried forward for more than 2 years, the carry forward mechanism envisaged by the rules could almost completely swamp recruitment to open, general seats. The Court illustrated the "startling effect of the carry forward rule" contained in the Memorandum of January 28, 1952 as modified in 1955 by taking a hypothetical example: If in each of the first 2 years of recruitment, the total number of seats to be filled in was 100, 18 vacancies would have to be treated as reserved in each year. If suitable candidates were not available to fill these reserved vacancies, the reservation would have to be carried forward to the third year, though not beyond it. If the total number of seats for recruitment in the third year was 50, the backlog of 36 seats with the addition of 9 reserved seats for the current year would cover 45 out of 50 vacancies, leaving only 5 vacancies for open recruitment. This vice was effectively rectified soon after the judgment in Devadasans case, by the issuance of the Memorandum of December 4, 1963 as amended on September 2, 1964.It was specifically directed by these curative prescriptions that "in any recruitment year, the number of normal reserved vacancies and the carried forward reserved vacancies together shall not exceed 45 per cent of the total number of vacancies". The rules thus are no longer open to the objection that the reservation is so excessive as to create in Government employment a monopoly in favour of backward classes or to disturb unduly the legitimate claims of otheropen class reaped a benefit in 1966-67 when a reserved vacancy was treated as unreserved by the appointment of an open candidate, Smt. Gita Biswas. If the carry forward rule has to be given any meaning, the vacancy shall have to be carried forward for the benefit of Scheduled castes and scheduled tribes until the close of the financial year 1968-69. The Kharagpur vacancy was to be filled in on January 1, 1969 and hence it cannot go to the petitioner who, admittedly does not belong to the reservedconstruction sought to be put on the rule by the petitioner would perpetuate a socal injustice which has clouded the lives of a large section of humanity which is struggling to find its feet. Such a construction is contrary to the plain language of the letter of the Railway Board, the intendment of the rule and its legislative history.We may mention before we close that the posts of Headmistress of the Railway Higher Secondary Schools were upgraded in 1969 as Class II posts and in 1970 as Class I posts. The reservation for scheduled castes and scheduled tribes in Class II posts was abolished with effect from October 4, 1962 and in regard to Class I posts, there never was any such reservation. Different considerations may therefore apply to future recruitment to these posts, but with that we are not concerned here, Nor are we concerned to consider the Indian Railways Higher Secondary School Recruitment Rules, 1972, which, now are said to govern recruitment to the posts of Headmistresses.We hope that this judgment will finally ring down the curtain on the various proceedings pending in the Calcutta High Court together with various interim orders passed therein concerning the appointment to the Headmistresss post in the Kharagpur school. | 0 | 5,156 | 674 | ### 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:
unreserved".The words "on a particular occasion" were substituted on September 2, 1964 by the words "year of recruitment". Thus, in the first place each year of recruitment is directed to be considered separately and by itself as laid down in Devadasans case, (1964) 4 SCR 680 , 694-695 = (AIR 1964 SC 1790) so that if there are only two vacancies to be filled in a particular year of recruitment, not more than one vacancy can be treated as reserved. Secondly, and that is directly relevant for our purpose, if there be only one vacancy to be filled in a given year of recruitment, it has to be treated as unreserved irrespective of whether it occurs in the model roster at a reserved point. The appointment then is not open to the charge that the reservation exceeds 50% for, if the very first vacancy in the first year of recruitment is in practice treated as a reserved vacancy, the system may be open to the objection that the reservation not only exceeds 50% but is in fact cent per cent. But, if "on this account" that is to say, if on account of the requirement that the first vacancy must in practice be treated as unreserved even if it occurs in the model roster at a reserved point, "a reserved point is treated as unreserved" the reservation can be carried forward to not more than two subsequent years of recruitment. Thus, if two vacancies occur, say, within an initial span of three years, the first vacancy has to be treated as an unreserved vacancy and the second as reserved.22. That is precisely what happened here. The S. E. Railway runs only two Secondary Schools for girls, one at Adra and the other at Kharagpur. The vacancy at Adra was filled on August 16, 1966 by the appointment of the seniormost Assistant Mistress, Smt. Gita Biswas. In pursuance of the Memorandum dated December 4, 1963 of the Ministry of Home Affairs, the Railway Board revised the model roster by their letter of January 16, 1964. The first point in this roster is a reserved point and therefore the Adra vacancy was strictly a reserved vacancy. But there being only one vacancy in the particular year of recruitment it had to be treated as unreserved and therefore the appointment went to Smt. Biswas, an open, not a reserved candidate. This, however, had to be compensated for by carrying forward the reservation, though not over more than 2 subsequent recruitment years. For the purposes of Services under the Railway administration recruitment year means the financial year and the Adra appointment having been made in the financial year 1966-67, it was permissible to carry forward the reservation till the close of the financial year 1968-69. There was no vacancy in 1967-68. The vacancy in the post of the Headmistress of the Kharapur school occurred in the financial year 1968-69 by the retirement of Smt. Bina Devi with, effect from December 31, 1968.This vacancy, indubitably, had to be treated as a reserved vacancy and since from amongst the 4 Assistant Mistresses, respondent No. 8 was the only candidate belonging to the scheduled caste, she was entitled to be considered for selection to the post of the Headmistress, to the exclusion of the other 3.The claims, if any, of the petitioner who is not a reserved candidate have to be postponed, though in the normal course it may be quite some years before she gets her turn. The Adra Headmistress and respondent No. 8 would seem to have a long tenure in their respective offices.23. It is urged that only one vacancy occurred in 1968-69 and since the letter of the Railway Board dated January 16, 1964 says that "if there be only one vacancy, it should be treated as unreserved", the Kharagpur vacancy must be treated as unreserved. Such a construction would rob the rule of its prime significance and will render the carry forward provision illusory.24. Though each year of recruitment is to be treated separately and by itself, a reserved vacancy has to be carried forward over 2 years, if it is not filled in by the appointment of a reserved candidate. The open class reaped a benefit in 1966-67 when a reserved vacancy was treated as unreserved by the appointment of an open candidate, Smt. Gita Biswas. If the carry forward rule has to be given any meaning, the vacancy shall have to be carried forward for the benefit of Scheduled castes and scheduled tribes until the close of the financial year 1968-69. The Kharagpur vacancy was to be filled in on January 1, 1969 and hence it cannot go to the petitioner who, admittedly does not belong to the reserved class. The construction sought to be put on the rule by the petitioner would perpetuate a socal injustice which has clouded the lives of a large section of humanity which is struggling to find its feet. Such a construction is contrary to the plain language of the letter of the Railway Board, the intendment of the rule and its legislative history.25. We may mention before we close that the posts of Headmistress of the Railway Higher Secondary Schools were upgraded in 1969 as Class II posts and in 1970 as Class I posts. The reservation for scheduled castes and scheduled tribes in Class II posts was abolished with effect from October 4, 1962 and in regard to Class I posts, there never was any such reservation. Different considerations may therefore apply to future recruitment to these posts, but with that we are not concerned here, Nor are we concerned to consider the Indian Railways Higher Secondary School Recruitment Rules, 1972, which, now are said to govern recruitment to the posts of Headmistresses.26. We hope that this judgment will finally ring down the curtain on the various proceedings pending in the Calcutta High Court together with various interim orders passed therein concerning the appointment to the Headmistresss post in the Kharagpur school.27.
### Response:
0
### Explanation:
We have set out the rules leading to the final order in some fulness with a view to showing how, from time to time, the rules were adapted to meet the requirements of the law declared by this Court. The vice of rules impugned in Devadasans case. (1964) 4 SCR 680 : (AIR 1964 SC 179 ) was that though the unutilised reserved quota could not be carried forward for more than 2 years, the carry forward mechanism envisaged by the rules could almost completely swamp recruitment to open, general seats. The Court illustrated the "startling effect of the carry forward rule" contained in the Memorandum of January 28, 1952 as modified in 1955 by taking a hypothetical example: If in each of the first 2 years of recruitment, the total number of seats to be filled in was 100, 18 vacancies would have to be treated as reserved in each year. If suitable candidates were not available to fill these reserved vacancies, the reservation would have to be carried forward to the third year, though not beyond it. If the total number of seats for recruitment in the third year was 50, the backlog of 36 seats with the addition of 9 reserved seats for the current year would cover 45 out of 50 vacancies, leaving only 5 vacancies for open recruitment. This vice was effectively rectified soon after the judgment in Devadasans case, by the issuance of the Memorandum of December 4, 1963 as amended on September 2, 1964.It was specifically directed by these curative prescriptions that "in any recruitment year, the number of normal reserved vacancies and the carried forward reserved vacancies together shall not exceed 45 per cent of the total number of vacancies". The rules thus are no longer open to the objection that the reservation is so excessive as to create in Government employment a monopoly in favour of backward classes or to disturb unduly the legitimate claims of otheropen class reaped a benefit in 1966-67 when a reserved vacancy was treated as unreserved by the appointment of an open candidate, Smt. Gita Biswas. If the carry forward rule has to be given any meaning, the vacancy shall have to be carried forward for the benefit of Scheduled castes and scheduled tribes until the close of the financial year 1968-69. The Kharagpur vacancy was to be filled in on January 1, 1969 and hence it cannot go to the petitioner who, admittedly does not belong to the reservedconstruction sought to be put on the rule by the petitioner would perpetuate a socal injustice which has clouded the lives of a large section of humanity which is struggling to find its feet. Such a construction is contrary to the plain language of the letter of the Railway Board, the intendment of the rule and its legislative history.We may mention before we close that the posts of Headmistress of the Railway Higher Secondary Schools were upgraded in 1969 as Class II posts and in 1970 as Class I posts. The reservation for scheduled castes and scheduled tribes in Class II posts was abolished with effect from October 4, 1962 and in regard to Class I posts, there never was any such reservation. Different considerations may therefore apply to future recruitment to these posts, but with that we are not concerned here, Nor are we concerned to consider the Indian Railways Higher Secondary School Recruitment Rules, 1972, which, now are said to govern recruitment to the posts of Headmistresses.We hope that this judgment will finally ring down the curtain on the various proceedings pending in the Calcutta High Court together with various interim orders passed therein concerning the appointment to the Headmistresss post in the Kharagpur school.
|
State Of Punjab Vs. Surjit Singh | the nature of the duties of either categories and it is not possible to hold that the principle of "equal pay for equal work" is an abstract one. 12. "Equal pay for equal work" is a concept which requires for its applicability complete and wholesale identity between a group of employees claiming identical pay scales and the other group of employees who have already earned such pay scales. The problem about equal pay cannot always be translated into a mathematical formula." Reliance placed by the High Court is Civil Appeal Nos. 1979-83 of 2003 - State of Punjab & Ors. vs. Rakesh Kumar & Ors. - is also misplaced. Therein the leave was granted purported to be on the basis of the benefit of regular pay-scale granted by other department in terms of the decision of the High court in Gurmukh Singh vs. State of Punjab [C.W.P. No. 9623 of 1993 decided on 12.4.1994]. The main plank of the case of the workmen therein was that they had been not only working for a long time it was urged that their regular counter-parts were holding similar posts and their postings are being inter-changed with them. The High Court noticing the allegation of the writ petitioners that they had been discharging absolutely similar functions with the same element of responsibility and having similar qualifications as are being discharged by the regularly appointed persons which having not been specifically controverted opined as under: "However, no material has been placed before this Court to show as to what is the real difference between the duties being performed by the petitioners (daily wagers) and regular employees. The statement containing the date of joining of the petitioners shows that all of them have rendered service between one to eleven years as on the date of the filing of the petition. The fact that they are continuously in service has not been controverted by the respondents. Therefore, merely because 64 petitioners have remained absent for different durations cannot be a ground for taking the view that all the 973 petitioners are discharging duties without proper responsibility. Absence from duty may constitute a misconduct but that by itself cannot lead to an inference that whole body of employees does not discharge its duties with responsibility. In fact on a query made by the court, learned Deputy Advocate General stated at the bar that the Government is not in a position to dispense with the services of the petitioners because the same are necessary for maintaining the distribution and supply of the drinking water to the people in rural as well as urban areas. From this, it can safely be inferred that the nature of the work being performed by the petitioners is not of a casual nature or of a fixed duration. They might have been posted to work against particular projects, but, these projects are perennial in character and there is no indication that the projects are going to be wound up by the Government. Continuous engagement of a large number of employees for years together is also indicative of the requirement of the man-power. Therefore, merely because the Government has not thought it proper to sanction regular posts, it cannot be held that there is a marked distinction between the functions of the petitioners and the regular employees." The High Court noticed that this Court in several decisions had arrived at an opinion that the principle of `equal pay for equal work cannot be applied blindly but chose to rely upon the decision of this Court in Dhirendra Chamoli & Anr. v. State of U.P. [(1986) 1 SCC 637].With utmost respect, the principle, as indicated hereinbefore, has undergone a sea change. We are bound by the decisions of large benches. This Court had been insisting on strict pleadings and proof of various factors as indicated hereto before.Furthermore, the burden of proof even in that case had wrongly been placed on the State which in fact lay on the writ petitioners claiming similar benefits. The factual matrix obtaining in the said case particularly similar qualification, interchangeability of the positions within the regular employees and the casual employees and other relevant factors which have been noticed by us also had some role to play.This Court in Gurcharan Singh Kahlon (supra) although noticed the Constitution Bench decision of this Court in Secretary, State of Karnataka & Ors.v. Umadevi (3) & Ors. [(2006) 4 SCC 1] declined to interfere with the order of the High Court having regard to the fact that no order of stay having been passed, the State of Punjab had implemented the order of the High Court. Furthermore, a scheme of regularization had already been drawn up. It is of some significance to notice that similar orders passed by some Benches of this Court relying on or on the basis of Paragraph 53 in Uma Devi (supra) vis-à-vis Para 43 and other paragraphs thereof, has been severally criticized by this Court in Official Liquidator (supra). We are bound by the law laid down therein.We, therefore, are of the opinion that the interest of justice would be subserved if the State is directed to examine the cases of the respondents herein by appointing an Expert Committee as to whether the principles of law laid down herein, viz., as to whether the respondents satisfy the factors for invocation of the decision in Charanjit Singh (supra) in its entirety including the question of appointment in terms of the recruitment rules have been followed. It has a positive concept.We would, however, before parting make an observation that the submission of the learned counsel that only because some juniors have got the benefit, the same by itself cannot be a ground for extending the same benefit to the respondents herein. It is now well known that the equality clause contained in Article 14 should be invoked only where the parties are similarly situated and where orders passed in their favour is legal and not illegal. It has a positive concept. | 0[ds]While laying down the law that regularization under the Constitutional scheme is wholly impermissible, the Court had issued certain directions relating to the employees in the services of Commercial Taxes Department as noticed hereinbefore. The employees of the Commercial Taxes Department were in service for more than 10 years. They were appointed inThey were sought to be regularized in terms of a scheme. Recommendations were made by the Director, Commercial Taxes for their absorption. It was only when such recommendations were not acceded to, the Administrative Tribunal was approached. It rejected theiris in the aforementioned factual backdrop, this Court in exercise of its jurisdiction under Article 142 of the Constitution of India, directed:"Hence, that part of the direction of the Division Bench is modified and it is directed that theseearners be paid wages equal to the salary at the lowest grade of employees of their cadre in the Commercial Taxes Department in government service, from the date of the judgment of the Division Bench of the High Court. Since, they are onlyearners, there would be no question of other allowances being paid to them. In view of our conclusion, that the courts are not expected to issue directions for making such persons permanent in service, we set aside that part of the direction of the High Court directing the Government to consider their cases for regularisation. We also notice that the High Court has not adverted to the aspect as to whether it was regularisation or it was giving permanency that was being directed by the High Court. In such a situation, the direction in that regard will stand deleted and the appeals filed by the State would stand allowed to that extent. If sanctioned posts are vacant (they are said to be vacant) the State will take immediate steps for filling those posts by a regular process of selection. But when regular recruitment is undertaken, the respondents in CAs Nos.and those in the Commercial Taxes Department similarly situated, will be allowed to compete, waiving the age restriction imposed for the recruitment and giving some weightage for their having been engaged for work in the Department for a significant period of time. That would be the extent of the exercise of power by this Court under Article 142 of the Constitution to do justice to them."We, therefore, do not see that any law has been laid down in paragraph 55 of the judgment. Directions were issued in view of the limited controversy. As indicated, the States grievances were limited.Reliance placed by Mr. Gupta on Haryana State Minor Irrigation Tubewells Corpn. v. G.S. Uppal [(2008) 7 SCC 375 at 384] is equally meritless. In that case, the question involved was application of the recommendations of the Pay Revision Committee. As a discriminatory treatment was meted out to the appellants therein, this Court interfered opining that the decision of the Government is unreasonable, unjust and prejudicial.Further contention of Mr. Gupta is that his clients had been appointed upon undertaking the due process of recruitment. It was not so, as while making appointments, the recruitment rules had not been followed. There had been no advertisement. How and in what manner the names were called from the employment exchange has not been disclosed. Ordinarily a large number of people would not be interested in applying for appointment against a Class III or Class IV post so long the appointment is contractual. Interviews were also taken by a Committee which was not competent therefor as appointment in the post of Clerk and above were required to be made by the Public Serviceplaced by the High Court is Civil Appeal Nos.ate of Punjab & Ors. vs. Rakesh Kumar & Ors.is also misplaced. Therein the leave was granted purported to be on the basis of the benefit of regulargranted by other department in terms of the decision of the High court in Gurmukh Singh vs. State of Punjab [C.W.P. No. 9623 of 1993 decided on 12.4.1994]. The main plank of the case of the workmen therein was that they had been not only working for a long time it was urged that their regularwere holding similar posts and their postings are beinghe High Court noticed that this Court in several decisions had arrived at an opinion that the principle of `equal pay for equal work cannot be applied blindly but chose to rely upon the decision of this Court in Dhirendra Chamoli & Anr. v. State of U.P. [(1986) 1 SCC 637].With utmost respect, the principle, as indicated hereinbefore, has undergone a sea change. We are bound by the decisions of large benches. This Court had been insisting on strict pleadings and proof of various factors as indicated hereto before.Furthermore, the burden of proof even in that case had wrongly been placed on the State which in fact lay on the writ petitioners claiming similar benefits. The factual matrix obtaining in the said case particularly similar qualification, interchangeability of the positions within the regular employees and the casual employees and other relevant factors which have been noticed by us also had some role to play.This Court in Gurcharan Singh Kahlon (supra) although noticed the Constitution Bench decision of this Court in Secretary, State of Karnataka & Ors.v. Umadevi (3) & Ors. [(2006) 4 SCC 1] declined to interfere with the order of the High Court having regard to the fact that no order of stay having been passed, the State of Punjab had implemented the order of the High Court. Furthermore, a scheme of regularization had already been drawn up. It is of some significance to notice that similar orders passed by some Benches of this Court relying on or on the basis of Paragraph 53 in Uma Devi (supra)Para 43 and other paragraphs thereof, has been severally criticized by this Court in Official Liquidator (supra). We are bound by the law laid down therein.We, therefore, are of the opinion that the interest of justice would be subserved if the State is directed to examine the cases of the respondents herein by appointing an Expert Committee as to whether the principles of law laid down herein, viz., as to whether the respondents satisfy the factors for invocation of the decision in Charanjit Singh (supra) in its entirety including the question of appointment in terms of the recruitment rules have been followed. It has a positive concept.We would, however, before parting make an observation that the submission of the learned counsel that only because some juniors have got the benefit, the same by itself cannot be a ground for extending the same benefit to the respondents herein. It is now well known that the equality clause contained in Article 14 should be invoked only where the parties are similarly situated and where orders passed in their favour is legal and not illegal. It has a positive concept. | 0 | 10,334 | 1,261 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
the nature of the duties of either categories and it is not possible to hold that the principle of "equal pay for equal work" is an abstract one. 12. "Equal pay for equal work" is a concept which requires for its applicability complete and wholesale identity between a group of employees claiming identical pay scales and the other group of employees who have already earned such pay scales. The problem about equal pay cannot always be translated into a mathematical formula." Reliance placed by the High Court is Civil Appeal Nos. 1979-83 of 2003 - State of Punjab & Ors. vs. Rakesh Kumar & Ors. - is also misplaced. Therein the leave was granted purported to be on the basis of the benefit of regular pay-scale granted by other department in terms of the decision of the High court in Gurmukh Singh vs. State of Punjab [C.W.P. No. 9623 of 1993 decided on 12.4.1994]. The main plank of the case of the workmen therein was that they had been not only working for a long time it was urged that their regular counter-parts were holding similar posts and their postings are being inter-changed with them. The High Court noticing the allegation of the writ petitioners that they had been discharging absolutely similar functions with the same element of responsibility and having similar qualifications as are being discharged by the regularly appointed persons which having not been specifically controverted opined as under: "However, no material has been placed before this Court to show as to what is the real difference between the duties being performed by the petitioners (daily wagers) and regular employees. The statement containing the date of joining of the petitioners shows that all of them have rendered service between one to eleven years as on the date of the filing of the petition. The fact that they are continuously in service has not been controverted by the respondents. Therefore, merely because 64 petitioners have remained absent for different durations cannot be a ground for taking the view that all the 973 petitioners are discharging duties without proper responsibility. Absence from duty may constitute a misconduct but that by itself cannot lead to an inference that whole body of employees does not discharge its duties with responsibility. In fact on a query made by the court, learned Deputy Advocate General stated at the bar that the Government is not in a position to dispense with the services of the petitioners because the same are necessary for maintaining the distribution and supply of the drinking water to the people in rural as well as urban areas. From this, it can safely be inferred that the nature of the work being performed by the petitioners is not of a casual nature or of a fixed duration. They might have been posted to work against particular projects, but, these projects are perennial in character and there is no indication that the projects are going to be wound up by the Government. Continuous engagement of a large number of employees for years together is also indicative of the requirement of the man-power. Therefore, merely because the Government has not thought it proper to sanction regular posts, it cannot be held that there is a marked distinction between the functions of the petitioners and the regular employees." The High Court noticed that this Court in several decisions had arrived at an opinion that the principle of `equal pay for equal work cannot be applied blindly but chose to rely upon the decision of this Court in Dhirendra Chamoli & Anr. v. State of U.P. [(1986) 1 SCC 637].With utmost respect, the principle, as indicated hereinbefore, has undergone a sea change. We are bound by the decisions of large benches. This Court had been insisting on strict pleadings and proof of various factors as indicated hereto before.Furthermore, the burden of proof even in that case had wrongly been placed on the State which in fact lay on the writ petitioners claiming similar benefits. The factual matrix obtaining in the said case particularly similar qualification, interchangeability of the positions within the regular employees and the casual employees and other relevant factors which have been noticed by us also had some role to play.This Court in Gurcharan Singh Kahlon (supra) although noticed the Constitution Bench decision of this Court in Secretary, State of Karnataka & Ors.v. Umadevi (3) & Ors. [(2006) 4 SCC 1] declined to interfere with the order of the High Court having regard to the fact that no order of stay having been passed, the State of Punjab had implemented the order of the High Court. Furthermore, a scheme of regularization had already been drawn up. It is of some significance to notice that similar orders passed by some Benches of this Court relying on or on the basis of Paragraph 53 in Uma Devi (supra) vis-à-vis Para 43 and other paragraphs thereof, has been severally criticized by this Court in Official Liquidator (supra). We are bound by the law laid down therein.We, therefore, are of the opinion that the interest of justice would be subserved if the State is directed to examine the cases of the respondents herein by appointing an Expert Committee as to whether the principles of law laid down herein, viz., as to whether the respondents satisfy the factors for invocation of the decision in Charanjit Singh (supra) in its entirety including the question of appointment in terms of the recruitment rules have been followed. It has a positive concept.We would, however, before parting make an observation that the submission of the learned counsel that only because some juniors have got the benefit, the same by itself cannot be a ground for extending the same benefit to the respondents herein. It is now well known that the equality clause contained in Article 14 should be invoked only where the parties are similarly situated and where orders passed in their favour is legal and not illegal. It has a positive concept.
### Response:
0
### Explanation:
lowest grade of employees of their cadre in the Commercial Taxes Department in government service, from the date of the judgment of the Division Bench of the High Court. Since, they are onlyearners, there would be no question of other allowances being paid to them. In view of our conclusion, that the courts are not expected to issue directions for making such persons permanent in service, we set aside that part of the direction of the High Court directing the Government to consider their cases for regularisation. We also notice that the High Court has not adverted to the aspect as to whether it was regularisation or it was giving permanency that was being directed by the High Court. In such a situation, the direction in that regard will stand deleted and the appeals filed by the State would stand allowed to that extent. If sanctioned posts are vacant (they are said to be vacant) the State will take immediate steps for filling those posts by a regular process of selection. But when regular recruitment is undertaken, the respondents in CAs Nos.and those in the Commercial Taxes Department similarly situated, will be allowed to compete, waiving the age restriction imposed for the recruitment and giving some weightage for their having been engaged for work in the Department for a significant period of time. That would be the extent of the exercise of power by this Court under Article 142 of the Constitution to do justice to them."We, therefore, do not see that any law has been laid down in paragraph 55 of the judgment. Directions were issued in view of the limited controversy. As indicated, the States grievances were limited.Reliance placed by Mr. Gupta on Haryana State Minor Irrigation Tubewells Corpn. v. G.S. Uppal [(2008) 7 SCC 375 at 384] is equally meritless. In that case, the question involved was application of the recommendations of the Pay Revision Committee. As a discriminatory treatment was meted out to the appellants therein, this Court interfered opining that the decision of the Government is unreasonable, unjust and prejudicial.Further contention of Mr. Gupta is that his clients had been appointed upon undertaking the due process of recruitment. It was not so, as while making appointments, the recruitment rules had not been followed. There had been no advertisement. How and in what manner the names were called from the employment exchange has not been disclosed. Ordinarily a large number of people would not be interested in applying for appointment against a Class III or Class IV post so long the appointment is contractual. Interviews were also taken by a Committee which was not competent therefor as appointment in the post of Clerk and above were required to be made by the Public Serviceplaced by the High Court is Civil Appeal Nos.ate of Punjab & Ors. vs. Rakesh Kumar & Ors.is also misplaced. Therein the leave was granted purported to be on the basis of the benefit of regulargranted by other department in terms of the decision of the High court in Gurmukh Singh vs. State of Punjab [C.W.P. No. 9623 of 1993 decided on 12.4.1994]. The main plank of the case of the workmen therein was that they had been not only working for a long time it was urged that their regularwere holding similar posts and their postings are beinghe High Court noticed that this Court in several decisions had arrived at an opinion that the principle of `equal pay for equal work cannot be applied blindly but chose to rely upon the decision of this Court in Dhirendra Chamoli & Anr. v. State of U.P. [(1986) 1 SCC 637].With utmost respect, the principle, as indicated hereinbefore, has undergone a sea change. We are bound by the decisions of large benches. This Court had been insisting on strict pleadings and proof of various factors as indicated hereto before.Furthermore, the burden of proof even in that case had wrongly been placed on the State which in fact lay on the writ petitioners claiming similar benefits. The factual matrix obtaining in the said case particularly similar qualification, interchangeability of the positions within the regular employees and the casual employees and other relevant factors which have been noticed by us also had some role to play.This Court in Gurcharan Singh Kahlon (supra) although noticed the Constitution Bench decision of this Court in Secretary, State of Karnataka & Ors.v. Umadevi (3) & Ors. [(2006) 4 SCC 1] declined to interfere with the order of the High Court having regard to the fact that no order of stay having been passed, the State of Punjab had implemented the order of the High Court. Furthermore, a scheme of regularization had already been drawn up. It is of some significance to notice that similar orders passed by some Benches of this Court relying on or on the basis of Paragraph 53 in Uma Devi (supra)Para 43 and other paragraphs thereof, has been severally criticized by this Court in Official Liquidator (supra). We are bound by the law laid down therein.We, therefore, are of the opinion that the interest of justice would be subserved if the State is directed to examine the cases of the respondents herein by appointing an Expert Committee as to whether the principles of law laid down herein, viz., as to whether the respondents satisfy the factors for invocation of the decision in Charanjit Singh (supra) in its entirety including the question of appointment in terms of the recruitment rules have been followed. It has a positive concept.We would, however, before parting make an observation that the submission of the learned counsel that only because some juniors have got the benefit, the same by itself cannot be a ground for extending the same benefit to the respondents herein. It is now well known that the equality clause contained in Article 14 should be invoked only where the parties are similarly situated and where orders passed in their favour is legal and not illegal. It has a positive concept.
|
P. Vankat Naidu Vs. Life Insurance Corporation Of India & Another | at the time of taking policy the insured had suppressed the facts relating to his illness.After considering the pleadings and evidence produced by the parties, the District Forum allowed the complaint and directed the respondents to pay Rs. 10,00,000 with 12% interest and compensation and cost of Rs. 10,000 each. While analyzing the evidence of Dr. B. Shankar Sarma (RW1) produced by the respondents, the District Forum made the following observations:?The evidence of Doctor B. Shankar Sarma (RW1) says on the admission of said P. Srikanth in G.G. Hospital at his wish as came with a complaint of Abdominal pain and the said Srikanth was under his care and during his treatment the said Srikanth left for himself on his own accord of better treatment to an higher institution. The evidence of said doctor does not say the line of treatment he has given to said Sri. P. Srikanth. Nor does it say the taking of ECG for three times of said patient as envisaged in Ex. B1. Nor any case sheet is filed as to the actual complaint with which the said P. Srikanth approached said G.G. Hospital and treatment he has given nor does the evidence of said doctor says the nature of said ailment in medical terms except it alleging the complaint of abdominal pain. Nor does his evidence says it as a casual one or chronic one and his diagnosis made on said complaint of the patient. Nor his evidence says it as a casual one or chronic one and his diagnosis of said complaint and the medicines he administered to the said patient during his treatment. Nor anything was elicited from said doctor that the alleged complaint with which the said patient P. Srikanth approached underwent treatment was capable enough to cause in due course such a death the said complaint of said patient P. Srikanth to believe of his existence at the time of taking the policy to find the said patient quality of its omission in the declaration of his good health proposal and questionnaire there in. While such is so the evidence of said Doctor B. Shankar Sarma as RW1 says that he has not treated the said insured policy holder Srikanth for any cardiac complaint. In the absence of any other cogent proof as to the said patient earlier heart ailment or other ailments alleged by the opposite parties side it cannot be taken that the said insured policy holder P. Srikanth was a chronic heart patient with great risk to life and that was suppressed by said insured policy holder Srikanth to have an undue advantage in future under that policy. Especially when the elector cardio gram report dated 3.9.2002 of the said insured policy holder P. Srikanth shows no abnormality.?The State Commission dismissed the appeal filed against the order of the District Forum and approved the direction given for payment of the insurance amount to the appellant with interest. The State Commission also adverted to statement of Dr. B. Sankar Sarma and observed:?The evidence of Dr. Shankar Sarma states that he has treated the assured for abdominal pain and there is no evidence placed by the appellants to substantiate that the assured was treated for cardiac problem. It is held by the National Commission in 1996 (3) CPR 229 (NC) in Smt. B. Chinnamma v. Divisional Officer, LIC of India, that when the assured underwent treatment for peptic ulcer and died of heart attack which has no nexus with the peptic ulcer, repudiation made by the insurer is arbitrary. It is also stated that the so called ailment for which the deceased was treated in the hospital during the said period had no nexus whatsoever with the caused of death. It is stated in the death certificate that he died of heart stroke. In the absence of any other cogent proof as to the policy holder had heart ailments and other ailments alleged by the appellants, it cannot be said that the insured policy holder was a chronic heart patient with great risk to life and the same was suppressed by him. The District Forum has rightly allowed the complaint and his order in our opinion does not suffer from any infirmity so as to call for any interference by this Commission in exercise of its appellate jurisdiction."5. The National Commission reversed the concurrent finding recorded by the District Forum and the State Commission by a cryptic order, the relevant portion of which is extracted below:?In the case before us, the information relating to hospitalization and treatment was specifically sought in the proposal form but it was suppressed by the assured. Therefore, the Insurance Company was justified in repudiating the claim due to suppression of relevant information relating to the health of the assured which had material bearing on the risk to be assumed by the Insurance Company.? 6. We have heard learned Counsel for the parties and carefully perused the record. In our view, the finding recorded by the District Forum and the State Commission that the respondents had failed to prove that the deceased has suppressed information relating to his illness was based on correct appreciation of the oral and documentary evidence produced by the parties and the National Commission committed serious illegality by upsetting the said findings on a wholly unfounded assumption that the deceased has suppressed information relating to hospitalization and treatment.7. Since the respondents had come out with the case that the deceased did not disclose correct facts relating to his illness, it was for them to produce cogent evidence to prove the allegation. However, as found by the District Forum and the State Commission, the respondents did not produce any tangible evidence to prove that the deceased had withheld information about his hospitalization and treatment. Therefore, the National Commission was not justified in interfering with the concurrent finding recorded by the District Forum and the State Commission by making a wild guesswork that the deceased had suppressed the facts relating to his illness. | 1[ds]In our view, the finding recorded by the District Forum and the State Commission that the respondents had failed to prove that the deceased has suppressed information relating to his illness was based on correct appreciation of the oral and documentary evidence produced by the parties and the National Commission committed serious illegality by upsetting the said findings on a wholly unfounded assumption that the deceased has suppressed information relating to hospitalization and treatment.7. Since the respondents had come out with the case that the deceased did not disclose correct facts relating to his illness, it was for them to produce cogent evidence to prove the allegation. However, as found by the District Forum and the State Commission, the respondents did not produce any tangible evidence to prove that the deceased had withheld information about his hospitalization and treatment. Therefore, the National Commission was not justified in interfering with the concurrent finding recorded by the District Forum and the State Commission by making a wild guesswork that the deceased had suppressed the facts relating to his illness. | 1 | 1,327 | 190 | ### 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:
at the time of taking policy the insured had suppressed the facts relating to his illness.After considering the pleadings and evidence produced by the parties, the District Forum allowed the complaint and directed the respondents to pay Rs. 10,00,000 with 12% interest and compensation and cost of Rs. 10,000 each. While analyzing the evidence of Dr. B. Shankar Sarma (RW1) produced by the respondents, the District Forum made the following observations:?The evidence of Doctor B. Shankar Sarma (RW1) says on the admission of said P. Srikanth in G.G. Hospital at his wish as came with a complaint of Abdominal pain and the said Srikanth was under his care and during his treatment the said Srikanth left for himself on his own accord of better treatment to an higher institution. The evidence of said doctor does not say the line of treatment he has given to said Sri. P. Srikanth. Nor does it say the taking of ECG for three times of said patient as envisaged in Ex. B1. Nor any case sheet is filed as to the actual complaint with which the said P. Srikanth approached said G.G. Hospital and treatment he has given nor does the evidence of said doctor says the nature of said ailment in medical terms except it alleging the complaint of abdominal pain. Nor does his evidence says it as a casual one or chronic one and his diagnosis made on said complaint of the patient. Nor his evidence says it as a casual one or chronic one and his diagnosis of said complaint and the medicines he administered to the said patient during his treatment. Nor anything was elicited from said doctor that the alleged complaint with which the said patient P. Srikanth approached underwent treatment was capable enough to cause in due course such a death the said complaint of said patient P. Srikanth to believe of his existence at the time of taking the policy to find the said patient quality of its omission in the declaration of his good health proposal and questionnaire there in. While such is so the evidence of said Doctor B. Shankar Sarma as RW1 says that he has not treated the said insured policy holder Srikanth for any cardiac complaint. In the absence of any other cogent proof as to the said patient earlier heart ailment or other ailments alleged by the opposite parties side it cannot be taken that the said insured policy holder P. Srikanth was a chronic heart patient with great risk to life and that was suppressed by said insured policy holder Srikanth to have an undue advantage in future under that policy. Especially when the elector cardio gram report dated 3.9.2002 of the said insured policy holder P. Srikanth shows no abnormality.?The State Commission dismissed the appeal filed against the order of the District Forum and approved the direction given for payment of the insurance amount to the appellant with interest. The State Commission also adverted to statement of Dr. B. Sankar Sarma and observed:?The evidence of Dr. Shankar Sarma states that he has treated the assured for abdominal pain and there is no evidence placed by the appellants to substantiate that the assured was treated for cardiac problem. It is held by the National Commission in 1996 (3) CPR 229 (NC) in Smt. B. Chinnamma v. Divisional Officer, LIC of India, that when the assured underwent treatment for peptic ulcer and died of heart attack which has no nexus with the peptic ulcer, repudiation made by the insurer is arbitrary. It is also stated that the so called ailment for which the deceased was treated in the hospital during the said period had no nexus whatsoever with the caused of death. It is stated in the death certificate that he died of heart stroke. In the absence of any other cogent proof as to the policy holder had heart ailments and other ailments alleged by the appellants, it cannot be said that the insured policy holder was a chronic heart patient with great risk to life and the same was suppressed by him. The District Forum has rightly allowed the complaint and his order in our opinion does not suffer from any infirmity so as to call for any interference by this Commission in exercise of its appellate jurisdiction."5. The National Commission reversed the concurrent finding recorded by the District Forum and the State Commission by a cryptic order, the relevant portion of which is extracted below:?In the case before us, the information relating to hospitalization and treatment was specifically sought in the proposal form but it was suppressed by the assured. Therefore, the Insurance Company was justified in repudiating the claim due to suppression of relevant information relating to the health of the assured which had material bearing on the risk to be assumed by the Insurance Company.? 6. We have heard learned Counsel for the parties and carefully perused the record. In our view, the finding recorded by the District Forum and the State Commission that the respondents had failed to prove that the deceased has suppressed information relating to his illness was based on correct appreciation of the oral and documentary evidence produced by the parties and the National Commission committed serious illegality by upsetting the said findings on a wholly unfounded assumption that the deceased has suppressed information relating to hospitalization and treatment.7. Since the respondents had come out with the case that the deceased did not disclose correct facts relating to his illness, it was for them to produce cogent evidence to prove the allegation. However, as found by the District Forum and the State Commission, the respondents did not produce any tangible evidence to prove that the deceased had withheld information about his hospitalization and treatment. Therefore, the National Commission was not justified in interfering with the concurrent finding recorded by the District Forum and the State Commission by making a wild guesswork that the deceased had suppressed the facts relating to his illness.
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In our view, the finding recorded by the District Forum and the State Commission that the respondents had failed to prove that the deceased has suppressed information relating to his illness was based on correct appreciation of the oral and documentary evidence produced by the parties and the National Commission committed serious illegality by upsetting the said findings on a wholly unfounded assumption that the deceased has suppressed information relating to hospitalization and treatment.7. Since the respondents had come out with the case that the deceased did not disclose correct facts relating to his illness, it was for them to produce cogent evidence to prove the allegation. However, as found by the District Forum and the State Commission, the respondents did not produce any tangible evidence to prove that the deceased had withheld information about his hospitalization and treatment. Therefore, the National Commission was not justified in interfering with the concurrent finding recorded by the District Forum and the State Commission by making a wild guesswork that the deceased had suppressed the facts relating to his illness.
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Herbertsons Limited Vs. Workmen Of Herbertsons Limited And Ors | was bound to take some time must have influenced both the par- ties to come to some settlement. The settlement has to be taken as a package deal and when labour has gained in the matter of wages and if there is some reduction in the matter of dearness allowance so far as the award is concerned, it cannot be said that the settlement as a whole is unfair and unjust.There are three categories of workers, permanent workers, listed casual workmen and certain other casual workmen. It is said that the third category of workmen are employed seasonally for a period of 20 days or so. Their number is also said to be not more than 20 or 30. The terms and conditions relating to this category of casual workmen were left, under the settlement, to be mutually decided by the parties. It is because of this feature in the settlement that the Tribunal held that the settlement was incomplete. We are, however, informed that as a matter of fact by mutual agreement some terms have been settled even for this third category of casual workmen. At any rate, because no decision was arrived at with regard to this small number of seasonal workmen, it cannot be said that the settlement is bad on that account. 13. The Tribunal next dealt with the principles applicable in granting dearness allowance to workers. It is while dealing with this part of the Tribunals award that Shri Damania for the 2nd respondent sought to make a strong plea in favour of sustaining the award by disregarding the settlement. According to counsel the wage level of the workers is more or less at subsistence level and, therefore, cent per cent neutralisation of the cost of living or, at any rate, 95% neutralisation should have been allowed while setting dearness allowance. Since the Tribunal has rightly taken that settle d principle into consideration and the settlement has departed from it, the same should be held as unjust and unfair to the workmen. 14. We should point out that there is some misconception about this aspect of the case. The question of adjudication has to be distinguished from a voluntary settlement. It is true that this Court has laid down certain principles with regard to the fixation of dearness allowance and it may be even shown that if the appeal is heard the said principles have been correctly followed in the award. That, however, will be no answer to the parties agreeing to a lesser amount under certain given circumstances. By the settlement, labour has scored in some other aspects and will save all unnecessary expenses in uncertain litigation. The settlement, therefore, cannot be judged on the touchstone of the principles which are laid down by this Court for adjudication.There may be several factors that may influence parties to come to a settlement as a phased endeavour in the course of collective bargaining. Once cordiality is established between the employer and labour in arriving at a settlement which operates well for the period that is in force, there is always a likelihood of further advances in the shape of improved emoluments by voluntary settlement avoiding friction and unhealthy litigation. This is the quintessence of settlement which courts and tribunals should endeavour to encourage. It is in that spirit the settlement has to be judged and not by the yardstick adopted in scrutinising an award in adjudication. The Tribunal fell into an error in invoking the principles that should govern in adjudicating a dispute regarding dearness allowance in judging whether the settlement was just and fair.15. Mr. Damania has drawn our attention to several authorities of this Court with regard to the principles of fixation of dearness allowance including the recent decision of this Court in Killick Nixon Limited v. Killick &Allied Companies Employees Union ([1975] Supp. S.C.R. 453.) and earnestly submitted that there is a peremptive necessity to grant cent per cent or at any rate 95% neutralisation of the cost of living as dearness allowance (5th principle of Killick Nixon Limited supra). Even the Tribunal has relied upon the above decision. But, as we have pointed out, that is not the correct way to decide whether a settlement voluntarily arrived at by the parties is just and fair. The matter would have been absolutely different if on the face of it the settlement was highly unconscionable or grossly unjust. Even according to the Tribunal, the reduction of the dearness allowance to 85% and 871/2% from cent per cent is the only objectionable feature to enable it to hold that that part of the settlement is unjust and unfair. The Tribunal found that all other terms of the settlement were fair, just and reasonable.It is not possible to scan the settlement in bits and pieces and hold some parts good and acceptable and others b ad. Unless it can be demonstrated that the objectionable portion is such that it completely outweighs all the other advantages gained the Court will be slow to hold a settle- ment as unfair and unjust. The settlement has to b e accepted or rejected as a whole and we are unable to reject it as a whole as unfair or unjust. Even before this Court the 3rd respondent representing admittedly the large majority of the workmen has stood by this settlement and that is a strong factor which it is difficult to ignore. As stated elsewhere in the judgment, we cannot also be oblivious of the fact that all workmen of the company have accepted the settlement. Bes ides, the period of settlement has since expired and we are informed that the employer and the 3rd respondent are negotiating another settlement with further improvements. These factors, apart from what has been state d above, and the need for industrial peace and harmony when a union backed by a large majority of workmen has accepted a settlement in the course of collective bargaining have impelled us not to interfere with this settlement. | 0[ds]9. Before we proceed further it is necessary to appreciate the implication of the order of this Court passed on December 19, 1974, set out earlier. This order was passed after hearing the parties for some time when the appeal was first called for hearing on December 19, 1974. From the recitals in the order it is apparent that the parties were prepared to abide by the settlement if the same was fair and just. We are not pre pared to accept the position, as urged by the 2nd respondent, that even if the settlement is binding on the parties executing the document, namely, the company and the 3rd respondent representing a large majority of the workmen, since the same is not binding on the members of the Mumbai Majdoor Sabha Union, howsoever small the number, under section 18 (1) of the Industrial Disputes Act, the appeal should be heard on merits. On the other hand, we take the view that after hearing the parties this Court was satisfied when it had called for a finding of the Tribunal that if the settlement was fair and just it would allow the parties to be governed by the settlement substituting the award. The wording of the issue sent to the Tribunal for a finding clearly shows that there was an onus on the 2nd respondent to show how many workers of the appellant were the ir members upon whom they could clearly assert that the settlement was not binding under section 18(1) of the Indus- trial Disputes Act. It cannot be assumed that the parties were not aware of the implications of section 18(1) of the Industrial Disputes Act when the Court passed the order of December 19, 1974. This Court would not have sent the case back only to decide the legal effect of section 18(1) of the Industrial Disputes Act. Since a recognised and registered union had entered into a voluntary settlement this Court thought that if the same, were found to be just and fair that could be allowed to be binding on all the workers even if a very s mall number of workers were not members of the majority union. It is only in that context that after hearing the parties the case was remanded to the Tribunal for a finding on the particular issues set out above.The numerical strength of the members of the 2nd respondent, who are workers of the company, would also have an important bearing as to whether the settlement accepted by the majority of the workmen is to be considered as jus t and fair. In that view of the matter we are unable to appreciate that the 2nd respondent did not choose it fit to produce evidence to show the actual number of the workers of the company having membership of the 2nd respondent. It is rather odd that not a single worker of the company claimed before the Tribunal to be a member of the 2nd respondent and to assert that the settlement was not fair and just. This is particularly so when all the workers of the company have accepted the settlement and also received the arrears and emoluments in accordance with the same.10. The Tribunal thought that the question of the quantum o f membership of the 2nd respondent did not call for a finding at all in view of 1his Courts order. As observed above that was not a correct assumption. On the other hand, we feel that this view of the Tribunal ha s led it to approach the matter in an entirely erroneous manner. The Tribunal is, rightly enough, conscious that under section 18 (1) of the Industrial Disputes Act the settlement was binding on the company and t he members of the 3rd respondent union. Even so, the Tribunal devoted nearly half of its order in scanning the evidence given by the company and respondent No. 3 to find out whether the terms of the settlement had been explained by the President of the union to the workmen or not and whether the workers voluntarily accepted the settlement knowing all the consequences. This to our mind is again an entirely wrong approach.11. When a recognised union negotiates with an employer the workers as individuals do not come into the picture. It is not necessary that each individual worker should know the implications of the settlement since a recognised union, which is expected to protect the legitimate interests of labour, enters into a settlement in the best interests of labour. This would be the normal rule. We cannot altogether rule out exceptional cases where there may be allegations of mala fides, fraud or even corruption or other inducements. Nothing of that kind has been suggested against the President of the 3rd respondent in this case. That being the position, prima facie, this is a settlement in the course of collective bargaining and, therefore, is entitled to due weight and consideration.It is true that in the course of evidence given by the President as also by two workmen and other officers of the company the Tribunal has found certain discrepancies. For example, the President in the course of cross-examination stated that since the workers had already agreed he only tried to improve upon the settlement by negotiating .with the company for 85% and 871/2% dearness allowances instead of 80% earlier agreed to by the workers on their own. We do not think that this admission by the President would reduce the efficacy of the settlement or affect its validity. It may be that negotiations had been going on for some time and even some important workers had been individually approached by the management, but it is clear that the President of the union had taken upon himself the responsibility for the settlement upon which he. on his own turn, succeeded in making some effective improvements beneficial to the Workmen. The Tribunal further made some observations that Shri Pandit was actually unaware of the consequences that would ensure to the workmen as a result of the settlement Reading the evidence of Shri Pandit as a whole. we, however find hat it cannot be said that he was unaware of the consequences. We are also unable to hold that he had knowingly and deliberately suppressed the fact about the importance of the consequences to the workers if the settlement were accepted. As a matter of fact it has been stated by the workmen who were examined, that Shri Pandit did mention that they would lose Rs. 12/- to Rs. 15/- in dearness allowance if the settlement superseded the award. Mathematically this may not be correct as perhaps, on account of the rise of consumer price index, the loss in dearness allowance could have been even double the figure given by the President. That, however, per se, does not make the settlement unfair or unreasonable.It is found by the Tribunal that in the matter of wages the settlement has given better terms and that the same cannot be said t o be unfair. The Tribunal has stated in more than one place that the only objection to this settlement levelled by the 2nd respondent is with regard to the quantum of dearness allowance. While the award has given the Revised Textile dearness allowance, the settlement has substituted 86% and 871/2% of the Revised Textile allowance for the first and the second period respectively. While the award is for one year, subject to the provisions of the Industrial Disputes Act, the settlement is for a period of three years. Having regard to the totality of the terms of the settlement we are unable to agree with the Tribunal that the terms are in any way un fair or unreasonable.12. Besides, the settlement has to be considered in the light of the conditions that were in force at the time of the reference. It will not be correct to judge the settlement merely in th e light of the award which was pending appeal before this Court. So far as the parties are concerned there will always be uncertainty with regard to the result of the litigation in a court proceedings. When, therefore, negotiations take place which have to be encouraged, particularly between labour and employer in the interest of general peace and well being, there is always give and take. Having regard to the nature of the dispute, which was raised as far back as 1968, the very fact the existence of a litigation with regard to the same matter which was bound to take some time must have influenced both the par- ties to come to some settlement. The settlement has to be taken as a package deal and when labour has gained in the matter of wages and if there is some reduction in the matter of dearness allowance so far as the award is concerned, it cannot be said that the settlement as a whole is unfair and unjust.There are three categories of workers, permanent workers, listed casual workmen and certain other casual workmen. It is said that the third category of workmen are employed seasonally for a period of 20 days or so. Their number is also said to be not more than 20 or 30. The terms and conditions relating to this category of casual workmen were left, under the settlement, to be mutually decided by the parties. It is because of this feature in the settlement that the Tribunal held that the settlement was incomplete. We are, however, informed that as a matter of fact by mutual agreement some terms have been settled even for this third category of casual workmen. At any rate, because no decision was arrived at with regard to this small number of seasonal workmen, it cannot be said that the settlement is bad on that account.The question of adjudication has to be distinguished from a voluntary settlement. It is true that this Court has laid down certain principles with regard to the fixation of dearness allowance and it may be even shown that if the appeal is heard the said principles have been correctly followed in the award. That, however, will be no answer to the parties agreeing to a lesser amount under certain given circumstances. By the settlement, labour has scored in some other aspects and will save all unnecessary expenses in uncertain litigation. The settlement, therefore, cannot be judged on the touchstone of the principles which are laid down by this Court for adjudication.There may be several factors that may influence parties to come to a settlement as a phased endeavour in the course of collective bargaining. Once cordiality is established between the employer and labour in arriving at a settlement which operates well for the period that is in force, there is always a likelihood of further advances in the shape of improved emoluments by voluntary settlement avoiding friction and unhealthy litigation. This is the quintessence of settlement which courts and tribunals should endeavour to encourage. It is in that spirit the settlement has to be judged and not by the yardstick adopted in scrutinising an award in adjudication. The Tribunal fell into an error in invoking the principles that should govern in adjudicating a dispute regarding dearness allowance in judging whether the settlement was just and fair.15. Mr. Damania has drawn our attention to several authorities of this Court with regard to the principles of fixation of dearness allowance including the recent decision of this Court in Killick Nixon Limited v. Killickd Companies Employees Union ([1975] Supp. S.C.R. 453.) and earnestly submitted that there is a peremptive necessity to grant cent per cent or at any rate 95% neutralisation of the cost of living as dearness allowance (5th principle of Killick Nixon Limited supra).Even the Tribunal has relied upon the above decision. But, as we have pointed out, that is not the correct way to decide whether a settlement voluntarily arrived at by the parties is just and fair. The matter would have been absolutely different if on the face of it the settlement was highly unconscionable or grossly unjust. Even according to the Tribunal, the reduction of the dearness allowance to 85% and 871/2% from cent per cent is the only objectionable feature to enable it to hold that that part of the settlement is unjust and unfair. The Tribunal found that all other terms of the settlement were fair, just and reasonable.It is not possible to scan the settlement in bits and pieces and hold some parts good and acceptable and others b ad. Unless it can be demonstrated that the objectionable portion is such that it completely outweighs all the other advantages gained the Court will be slow to hold a settle- ment as unfair and unjust. The settlement has to b e accepted or rejected as a whole and we are unable to reject it as a whole as unfair or unjust. Even before this Court the 3rd respondent representing admittedly the large majority of the workmen has stood by this settlement and that is a strong factor which it is difficult to ignore. As stated elsewhere in the judgment, we cannot also be oblivious of the fact that all workmen of the company have accepted the settlement. Bes ides, the period of settlement has since expired and we are informed that the employer and the 3rd respondent are negotiating another settlement with further improvements. These factors, apart from what has been state d above, and the need for industrial peace and harmony when a union backed by a large majority of workmen has accepted a settlement in the course of collective bargaining have impelled us not to interfere with this settlement. | 0 | 4,206 | 2,469 | ### 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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was bound to take some time must have influenced both the par- ties to come to some settlement. The settlement has to be taken as a package deal and when labour has gained in the matter of wages and if there is some reduction in the matter of dearness allowance so far as the award is concerned, it cannot be said that the settlement as a whole is unfair and unjust.There are three categories of workers, permanent workers, listed casual workmen and certain other casual workmen. It is said that the third category of workmen are employed seasonally for a period of 20 days or so. Their number is also said to be not more than 20 or 30. The terms and conditions relating to this category of casual workmen were left, under the settlement, to be mutually decided by the parties. It is because of this feature in the settlement that the Tribunal held that the settlement was incomplete. We are, however, informed that as a matter of fact by mutual agreement some terms have been settled even for this third category of casual workmen. At any rate, because no decision was arrived at with regard to this small number of seasonal workmen, it cannot be said that the settlement is bad on that account. 13. The Tribunal next dealt with the principles applicable in granting dearness allowance to workers. It is while dealing with this part of the Tribunals award that Shri Damania for the 2nd respondent sought to make a strong plea in favour of sustaining the award by disregarding the settlement. According to counsel the wage level of the workers is more or less at subsistence level and, therefore, cent per cent neutralisation of the cost of living or, at any rate, 95% neutralisation should have been allowed while setting dearness allowance. Since the Tribunal has rightly taken that settle d principle into consideration and the settlement has departed from it, the same should be held as unjust and unfair to the workmen. 14. We should point out that there is some misconception about this aspect of the case. The question of adjudication has to be distinguished from a voluntary settlement. It is true that this Court has laid down certain principles with regard to the fixation of dearness allowance and it may be even shown that if the appeal is heard the said principles have been correctly followed in the award. That, however, will be no answer to the parties agreeing to a lesser amount under certain given circumstances. By the settlement, labour has scored in some other aspects and will save all unnecessary expenses in uncertain litigation. The settlement, therefore, cannot be judged on the touchstone of the principles which are laid down by this Court for adjudication.There may be several factors that may influence parties to come to a settlement as a phased endeavour in the course of collective bargaining. Once cordiality is established between the employer and labour in arriving at a settlement which operates well for the period that is in force, there is always a likelihood of further advances in the shape of improved emoluments by voluntary settlement avoiding friction and unhealthy litigation. This is the quintessence of settlement which courts and tribunals should endeavour to encourage. It is in that spirit the settlement has to be judged and not by the yardstick adopted in scrutinising an award in adjudication. The Tribunal fell into an error in invoking the principles that should govern in adjudicating a dispute regarding dearness allowance in judging whether the settlement was just and fair.15. Mr. Damania has drawn our attention to several authorities of this Court with regard to the principles of fixation of dearness allowance including the recent decision of this Court in Killick Nixon Limited v. Killick &Allied Companies Employees Union ([1975] Supp. S.C.R. 453.) and earnestly submitted that there is a peremptive necessity to grant cent per cent or at any rate 95% neutralisation of the cost of living as dearness allowance (5th principle of Killick Nixon Limited supra). Even the Tribunal has relied upon the above decision. But, as we have pointed out, that is not the correct way to decide whether a settlement voluntarily arrived at by the parties is just and fair. The matter would have been absolutely different if on the face of it the settlement was highly unconscionable or grossly unjust. Even according to the Tribunal, the reduction of the dearness allowance to 85% and 871/2% from cent per cent is the only objectionable feature to enable it to hold that that part of the settlement is unjust and unfair. The Tribunal found that all other terms of the settlement were fair, just and reasonable.It is not possible to scan the settlement in bits and pieces and hold some parts good and acceptable and others b ad. Unless it can be demonstrated that the objectionable portion is such that it completely outweighs all the other advantages gained the Court will be slow to hold a settle- ment as unfair and unjust. The settlement has to b e accepted or rejected as a whole and we are unable to reject it as a whole as unfair or unjust. Even before this Court the 3rd respondent representing admittedly the large majority of the workmen has stood by this settlement and that is a strong factor which it is difficult to ignore. As stated elsewhere in the judgment, we cannot also be oblivious of the fact that all workmen of the company have accepted the settlement. Bes ides, the period of settlement has since expired and we are informed that the employer and the 3rd respondent are negotiating another settlement with further improvements. These factors, apart from what has been state d above, and the need for industrial peace and harmony when a union backed by a large majority of workmen has accepted a settlement in the course of collective bargaining have impelled us not to interfere with this settlement.
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are in any way un fair or unreasonable.12. Besides, the settlement has to be considered in the light of the conditions that were in force at the time of the reference. It will not be correct to judge the settlement merely in th e light of the award which was pending appeal before this Court. So far as the parties are concerned there will always be uncertainty with regard to the result of the litigation in a court proceedings. When, therefore, negotiations take place which have to be encouraged, particularly between labour and employer in the interest of general peace and well being, there is always give and take. Having regard to the nature of the dispute, which was raised as far back as 1968, the very fact the existence of a litigation with regard to the same matter which was bound to take some time must have influenced both the par- ties to come to some settlement. The settlement has to be taken as a package deal and when labour has gained in the matter of wages and if there is some reduction in the matter of dearness allowance so far as the award is concerned, it cannot be said that the settlement as a whole is unfair and unjust.There are three categories of workers, permanent workers, listed casual workmen and certain other casual workmen. It is said that the third category of workmen are employed seasonally for a period of 20 days or so. Their number is also said to be not more than 20 or 30. The terms and conditions relating to this category of casual workmen were left, under the settlement, to be mutually decided by the parties. It is because of this feature in the settlement that the Tribunal held that the settlement was incomplete. We are, however, informed that as a matter of fact by mutual agreement some terms have been settled even for this third category of casual workmen. At any rate, because no decision was arrived at with regard to this small number of seasonal workmen, it cannot be said that the settlement is bad on that account.The question of adjudication has to be distinguished from a voluntary settlement. It is true that this Court has laid down certain principles with regard to the fixation of dearness allowance and it may be even shown that if the appeal is heard the said principles have been correctly followed in the award. That, however, will be no answer to the parties agreeing to a lesser amount under certain given circumstances. By the settlement, labour has scored in some other aspects and will save all unnecessary expenses in uncertain litigation. The settlement, therefore, cannot be judged on the touchstone of the principles which are laid down by this Court for adjudication.There may be several factors that may influence parties to come to a settlement as a phased endeavour in the course of collective bargaining. Once cordiality is established between the employer and labour in arriving at a settlement which operates well for the period that is in force, there is always a likelihood of further advances in the shape of improved emoluments by voluntary settlement avoiding friction and unhealthy litigation. This is the quintessence of settlement which courts and tribunals should endeavour to encourage. It is in that spirit the settlement has to be judged and not by the yardstick adopted in scrutinising an award in adjudication. The Tribunal fell into an error in invoking the principles that should govern in adjudicating a dispute regarding dearness allowance in judging whether the settlement was just and fair.15. Mr. Damania has drawn our attention to several authorities of this Court with regard to the principles of fixation of dearness allowance including the recent decision of this Court in Killick Nixon Limited v. Killickd Companies Employees Union ([1975] Supp. S.C.R. 453.) and earnestly submitted that there is a peremptive necessity to grant cent per cent or at any rate 95% neutralisation of the cost of living as dearness allowance (5th principle of Killick Nixon Limited supra).Even the Tribunal has relied upon the above decision. But, as we have pointed out, that is not the correct way to decide whether a settlement voluntarily arrived at by the parties is just and fair. The matter would have been absolutely different if on the face of it the settlement was highly unconscionable or grossly unjust. Even according to the Tribunal, the reduction of the dearness allowance to 85% and 871/2% from cent per cent is the only objectionable feature to enable it to hold that that part of the settlement is unjust and unfair. The Tribunal found that all other terms of the settlement were fair, just and reasonable.It is not possible to scan the settlement in bits and pieces and hold some parts good and acceptable and others b ad. Unless it can be demonstrated that the objectionable portion is such that it completely outweighs all the other advantages gained the Court will be slow to hold a settle- ment as unfair and unjust. The settlement has to b e accepted or rejected as a whole and we are unable to reject it as a whole as unfair or unjust. Even before this Court the 3rd respondent representing admittedly the large majority of the workmen has stood by this settlement and that is a strong factor which it is difficult to ignore. As stated elsewhere in the judgment, we cannot also be oblivious of the fact that all workmen of the company have accepted the settlement. Bes ides, the period of settlement has since expired and we are informed that the employer and the 3rd respondent are negotiating another settlement with further improvements. These factors, apart from what has been state d above, and the need for industrial peace and harmony when a union backed by a large majority of workmen has accepted a settlement in the course of collective bargaining have impelled us not to interfere with this settlement.
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Ramrao Jankiram Kadam Vs. State of Bombay & Others | Civil Court shall entertain any suit against the Government on account of any act or omission of any Revenue Officer unless the plaintiff first proves that previously to bringing his suit, he has presented all such appeals allowed by the law for the time being in force, as within the period of limitation allowed for bringing such suit, it was possible to present."34. As to the applicability of S. 4 (c), it would be noticed that resort to the Civil Courts is barred only as regards certain specified classes of suits in which the validity of sales for arrears of Land Revenue are impugned. The classes so specified are those in which the plaintiff seeks to set aside sales on account of irregularities etc. other than fraud. The provision obviously assumes that there is in existence a sale though irregular under which title has passed to the purchaser and that that sale has to be set aside, on grounds other than fraud, before the plaintiff can obtain relief. Where however there is only a purported sale which does not pass title and the suit is for recovery of possession of property ignoring such a sale, the provision and the bar that it creates have no application.35. Nor is there any scope on the facts of the present case to attract the application of S. 11. The section is based on the principle that a party must exhaust the remedies provided by the Act before he can seek the assistance of the Civil Court in respect of a claim against the Government. It therefore posits three matters before its protection could be invoked: (1) There must be an act or omission of a revenue officer which gives rise to a claim against the Government; (2) the Act must provide for appeals against the said act or omission and (3) lastly the party should have failed to avail himself of the remedy by way of appeal to obtain redress for his grievance. The only "act" of which, on the facts, the appellant could be said to complain would be the direction by the Collector authorising the Mahalkari to offer the nominal bid of Re. 1/- and purchase the property. The question that next arises is whether the Statute had provided an appeal against this "act". It was admitted that there was no such specific provision. Learned Counsel for the respondent however drew our attention to S. 203 of the Bombay Land Revenue Code."203. In the absence of any express provision of this Act, or of any law for the time being in force to the contrary, an appeal shall lie from any decision or order passed by a revenue officer under this Act or any other law for the time being in force to that officers immediate superior, whether such decision or order may itself have been passed on appeal from a subordinate officers decision or order or not."36. In the present case however, there was no order by any authority which could be the subject of any appeal under S. 203. The Collector authorised administratively the Mahalkari to offer the bid and that is certainly not "a decisions" which is capable of appeal within S. 203. No other order which could by any stretch of language be construed to be a decision was pointed out in respect of which an appeal could have been filed. In fact, there was no decision and except the sale which is complained of as void and of no effect nothing took place. If S. 203 is not attracted it was not suggested that S. 11 of the Revenue Jurisdiction Act created any bar to the entertainment of the present suit.37. It was then suggested that the plaintiff was disentitled to any relief by reason of an estoppel raised by S. 41 of the Transfer of Property Act. The basis for this argument was that some time after the sale the second defendant had purchased the plot bearing Survey No. 80 for Rs. 2,000/- from the Government while the fifth defendant similarly purchased plots bearing Survey Nos. 35 and 40 for Rs. 1,750/- and that the inaction of the plaintiff without taking proceedings to set aside the sale constituted a representation to the world that the Government were properly the owners of the property which they had purchased for nominal bids and this was the reasoning by which S. 41 of the Transfer of Property Act was sought to be invoked. The respondent did not rely on any representation or any act or conduct on the part of the appellant but their belief that Government had acquired title by reason of their purchase at the revenue sale.If the Government had no title to convey, it is manifest the respondents cannot acquire any. They would clearly be trespassers. In the circumstances we consider there is no scope for invoking the rule as to estoppel contained in S. 41 of the Transfer of Property Act.38. Lastly, it was submitted that the respondents had made improvements to the property since they had purchased them for which they were entitled to compensation under S. 51 of the Transfer of Property Act. But no basis was laid for this plea which is one of pure fact. No evidence was led and no issues struck before the trial Judge and we do not therefore think it proper to entertain this point at this stage39. The Government of Bombay did not file any written statement before the trial Judge, nor did they seek to support the sale before the High Court. As we have stated, they were impleaded as the first respondent in the appeal before this Court. In their statement of the case which they filed they did not oppose the appeal but left it to the Court to decide the matter and they took no part in the hearing except that learned Counsel appearing on their behalf made a statement that no order as to costs might be passed against them. | 1[ds]We do not find it easy to discover the precise legal basis upon which prior notice to the defaulter would have the effect of validating the sale. If a sale for a nominal bid of one rupee were "a sale by public auction" within S. 167 notice to the defaulter that such a procedure would be followed would be legally unnecessary and would not add to the legal efficacy of the sale. If, on the other hand, such a sale or a sale in such circumstances was not a sale by public auction then notice to the defaulter could be of value only if (a) it operated as a waiver of the requirement of S. 167, or (b) created an estoppel which precluded him from questioning the legality of the proceeding First as to waiver, the power of Government to effect the sale by summary process is a special provision resting on public grounds and being so very special it is clear that the limitations on the power thus conferred should be strictly construed. In our opinion, it is an essential condition of the passing of property from the defaulter in invitum that there should be a sale by public auction and if a sale in the manner in which it has been conducted in the present case does not amount to a sale by public auction there is no question of the title to property passing by virtue of such a sale. The plea of waiver cannot therefore be of any avail.30. Nor is there any basis for any argument that by reason of the notice the defaulter is estopped from questioning the legality of the sale. If waiver cannot cure the defect there is still less scope for invoking the rule as to estoppel, for the essential condition of estoppel, viz., representation by the person sought to be estopped and prejudice to the person seeking the benefit of the rule, would both be absent. We therefore come to the conclusion that the fact that the defaulter was informed that the Government would make a nominal bid of rupee one and purchase the property is really irrelevant for considering the validity of the sale.31. The conclusion we have indicated earlier is in accord with the decision of the Bombay High Court in ILR (1947) Bom 75: (AIR 1947 Bom 403) (supra) and we consider that that case is correctly decided. We are further of Opinion that the ratio of that decision would also cover the case where notice was served on the defaulter of the Governments intention to purchase the property for a nominal price.As to the applicability of S. 4 (c), it would be noticed that resort to the Civil Courts is barred only as regards certain specified classes of suits in which the validity of sales for arrears of Land Revenue are impugned. The classes so specified are those in which the plaintiff seeks to set aside sales on account of irregularities etc. other than fraud. The provision obviously assumes that there is in existence a sale though irregular under which title has passed to the purchaser and that that sale has to be set aside, on grounds other than fraud, before the plaintiff can obtain relief. Where however there is only a purported sale which does not pass title and the suit is for recovery of possession of property ignoring such a sale, the provision and the bar that it creates have no application.35. Nor is there any scope on the facts of the present case to attract the application of S. 11. The section is based on the principle that a party must exhaust the remedies provided by the Act before he can seek the assistance of the Civil Court in respect of a claim against the Government. It therefore posits three matters before its protection could be invoked: (1) There must be an act or omission of a revenue officer which gives rise to a claim against the Government; (2) the Act must provide for appeals against the said act or omission and (3) lastly the party should have failed to avail himself of the remedy by way of appeal to obtain redress for his grievance. The only "act" of which, on the facts, the appellant could be said to complain would be the direction by the Collector authorising the Mahalkari to offer the nominal bid of Re. 1/- and purchase the property.The Government of Bombay did not file any written statement before the trial Judge, nor did they seek to support the sale before the High Court. As we have stated, they were impleaded as the first respondent in the appeal before this Court. In their statement of the case which they filed they did not oppose the appeal but left it to the Court to decide the matter and they took no part in the hearing except that learned Counsel appearing on their behalf made a statement that no order as to costs might be passed against them. | 1 | 6,834 | 905 | ### 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:
Civil Court shall entertain any suit against the Government on account of any act or omission of any Revenue Officer unless the plaintiff first proves that previously to bringing his suit, he has presented all such appeals allowed by the law for the time being in force, as within the period of limitation allowed for bringing such suit, it was possible to present."34. As to the applicability of S. 4 (c), it would be noticed that resort to the Civil Courts is barred only as regards certain specified classes of suits in which the validity of sales for arrears of Land Revenue are impugned. The classes so specified are those in which the plaintiff seeks to set aside sales on account of irregularities etc. other than fraud. The provision obviously assumes that there is in existence a sale though irregular under which title has passed to the purchaser and that that sale has to be set aside, on grounds other than fraud, before the plaintiff can obtain relief. Where however there is only a purported sale which does not pass title and the suit is for recovery of possession of property ignoring such a sale, the provision and the bar that it creates have no application.35. Nor is there any scope on the facts of the present case to attract the application of S. 11. The section is based on the principle that a party must exhaust the remedies provided by the Act before he can seek the assistance of the Civil Court in respect of a claim against the Government. It therefore posits three matters before its protection could be invoked: (1) There must be an act or omission of a revenue officer which gives rise to a claim against the Government; (2) the Act must provide for appeals against the said act or omission and (3) lastly the party should have failed to avail himself of the remedy by way of appeal to obtain redress for his grievance. The only "act" of which, on the facts, the appellant could be said to complain would be the direction by the Collector authorising the Mahalkari to offer the nominal bid of Re. 1/- and purchase the property. The question that next arises is whether the Statute had provided an appeal against this "act". It was admitted that there was no such specific provision. Learned Counsel for the respondent however drew our attention to S. 203 of the Bombay Land Revenue Code."203. In the absence of any express provision of this Act, or of any law for the time being in force to the contrary, an appeal shall lie from any decision or order passed by a revenue officer under this Act or any other law for the time being in force to that officers immediate superior, whether such decision or order may itself have been passed on appeal from a subordinate officers decision or order or not."36. In the present case however, there was no order by any authority which could be the subject of any appeal under S. 203. The Collector authorised administratively the Mahalkari to offer the bid and that is certainly not "a decisions" which is capable of appeal within S. 203. No other order which could by any stretch of language be construed to be a decision was pointed out in respect of which an appeal could have been filed. In fact, there was no decision and except the sale which is complained of as void and of no effect nothing took place. If S. 203 is not attracted it was not suggested that S. 11 of the Revenue Jurisdiction Act created any bar to the entertainment of the present suit.37. It was then suggested that the plaintiff was disentitled to any relief by reason of an estoppel raised by S. 41 of the Transfer of Property Act. The basis for this argument was that some time after the sale the second defendant had purchased the plot bearing Survey No. 80 for Rs. 2,000/- from the Government while the fifth defendant similarly purchased plots bearing Survey Nos. 35 and 40 for Rs. 1,750/- and that the inaction of the plaintiff without taking proceedings to set aside the sale constituted a representation to the world that the Government were properly the owners of the property which they had purchased for nominal bids and this was the reasoning by which S. 41 of the Transfer of Property Act was sought to be invoked. The respondent did not rely on any representation or any act or conduct on the part of the appellant but their belief that Government had acquired title by reason of their purchase at the revenue sale.If the Government had no title to convey, it is manifest the respondents cannot acquire any. They would clearly be trespassers. In the circumstances we consider there is no scope for invoking the rule as to estoppel contained in S. 41 of the Transfer of Property Act.38. Lastly, it was submitted that the respondents had made improvements to the property since they had purchased them for which they were entitled to compensation under S. 51 of the Transfer of Property Act. But no basis was laid for this plea which is one of pure fact. No evidence was led and no issues struck before the trial Judge and we do not therefore think it proper to entertain this point at this stage39. The Government of Bombay did not file any written statement before the trial Judge, nor did they seek to support the sale before the High Court. As we have stated, they were impleaded as the first respondent in the appeal before this Court. In their statement of the case which they filed they did not oppose the appeal but left it to the Court to decide the matter and they took no part in the hearing except that learned Counsel appearing on their behalf made a statement that no order as to costs might be passed against them.
### Response:
1
### Explanation:
We do not find it easy to discover the precise legal basis upon which prior notice to the defaulter would have the effect of validating the sale. If a sale for a nominal bid of one rupee were "a sale by public auction" within S. 167 notice to the defaulter that such a procedure would be followed would be legally unnecessary and would not add to the legal efficacy of the sale. If, on the other hand, such a sale or a sale in such circumstances was not a sale by public auction then notice to the defaulter could be of value only if (a) it operated as a waiver of the requirement of S. 167, or (b) created an estoppel which precluded him from questioning the legality of the proceeding First as to waiver, the power of Government to effect the sale by summary process is a special provision resting on public grounds and being so very special it is clear that the limitations on the power thus conferred should be strictly construed. In our opinion, it is an essential condition of the passing of property from the defaulter in invitum that there should be a sale by public auction and if a sale in the manner in which it has been conducted in the present case does not amount to a sale by public auction there is no question of the title to property passing by virtue of such a sale. The plea of waiver cannot therefore be of any avail.30. Nor is there any basis for any argument that by reason of the notice the defaulter is estopped from questioning the legality of the sale. If waiver cannot cure the defect there is still less scope for invoking the rule as to estoppel, for the essential condition of estoppel, viz., representation by the person sought to be estopped and prejudice to the person seeking the benefit of the rule, would both be absent. We therefore come to the conclusion that the fact that the defaulter was informed that the Government would make a nominal bid of rupee one and purchase the property is really irrelevant for considering the validity of the sale.31. The conclusion we have indicated earlier is in accord with the decision of the Bombay High Court in ILR (1947) Bom 75: (AIR 1947 Bom 403) (supra) and we consider that that case is correctly decided. We are further of Opinion that the ratio of that decision would also cover the case where notice was served on the defaulter of the Governments intention to purchase the property for a nominal price.As to the applicability of S. 4 (c), it would be noticed that resort to the Civil Courts is barred only as regards certain specified classes of suits in which the validity of sales for arrears of Land Revenue are impugned. The classes so specified are those in which the plaintiff seeks to set aside sales on account of irregularities etc. other than fraud. The provision obviously assumes that there is in existence a sale though irregular under which title has passed to the purchaser and that that sale has to be set aside, on grounds other than fraud, before the plaintiff can obtain relief. Where however there is only a purported sale which does not pass title and the suit is for recovery of possession of property ignoring such a sale, the provision and the bar that it creates have no application.35. Nor is there any scope on the facts of the present case to attract the application of S. 11. The section is based on the principle that a party must exhaust the remedies provided by the Act before he can seek the assistance of the Civil Court in respect of a claim against the Government. It therefore posits three matters before its protection could be invoked: (1) There must be an act or omission of a revenue officer which gives rise to a claim against the Government; (2) the Act must provide for appeals against the said act or omission and (3) lastly the party should have failed to avail himself of the remedy by way of appeal to obtain redress for his grievance. The only "act" of which, on the facts, the appellant could be said to complain would be the direction by the Collector authorising the Mahalkari to offer the nominal bid of Re. 1/- and purchase the property.The Government of Bombay did not file any written statement before the trial Judge, nor did they seek to support the sale before the High Court. As we have stated, they were impleaded as the first respondent in the appeal before this Court. In their statement of the case which they filed they did not oppose the appeal but left it to the Court to decide the matter and they took no part in the hearing except that learned Counsel appearing on their behalf made a statement that no order as to costs might be passed against them.
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Chaturi Yadav and Others Vs. State of Bihar | Fazal Ali, J.This appeal by special leave is directed against the judgment of the Patna High Court confirming the conviction and the sentences passed by the trial Court against the appellants. The appellants were convicted under Sections 399 and 402 and sentenced under Section 399 to 10 years RI and under Section 402 to 7 years RI. The sentences were directed to run concurrently.2. The prosecution case has been detailed in the judgment of the High Court and it is not necessary for us to repeat the same all over again. It appears that on the date of occurrence, the appellants along with the others, had assembled at a lonely spot in the school premises and were detected by a police Patrol Party on seeing whom some of the accused tried to run away but some of the appellants were caught.3. One of the appellants was found to be in possession of a gun and live cartridge and others had merely one live cartridge each in their pockets.4. The courts below have drawn the inference that the appellants were guilty under both the offences merely from the fact that they had assembled at a lonely place at 1 a.m. and could give no explanation for their presence at that odd hour of the night. Mr. Misra appearing for the appellant submitted that taking the prosecution case at its face value, there is no evidence to show that the appellants had assembled for the purpose of committing a dacoity or they had made any preparation for committing the same. We are of the opinion that the contention raised by the learned for the appellants is well founded and must prevail. The evidence led by the prosecution merely shows that eight persons were found in the school premises. Some of them were armed with guns, some had cartridges and others ran away. The mere fact that these persons were found at 1 a.m. does not, by itself, prove that the appellants had assembled for the purpose of committing dacoity or for making preparations to accomplish that object. The High Court itself, has in its judgment, observed that the school was quite close to the market, hence it is difficult to believe that the appellants would assemble at such a conspicuous place with the intention of committing a dacoity and would take such a grave risk. It is true that some of the appellants who were caught hold of by the Head Constable are alleged to have made the statement before him that they were going to commit a dacoity but this statement being clearly inadmissible has to be excluded from consideration. In this view of the matter, there is no legal evidence to support the charge under Sections 399 and 402 against the appellants. The possibility that the appellants may have collected for the purpose of murdering somebody or committing some other offence cannot be safely eliminated. In these circumstances, therefore, we are unable to sustain the judgment of the High Court. | 1[ds]We are of the opinion that the contention raised by the learned for the appellants is well founded and must prevail. The evidence led by the prosecution merely shows that eight persons were found in the school premises. Some of them were armed with guns, some had cartridges and others ran away. The mere fact that these persons were found at 1 a.m. does not, by itself, prove that the appellants had assembled for the purpose of committing dacoity or for making preparations to accomplish that object. The High Court itself, has in its judgment, observed that the school was quite close to the market, hence it is difficult to believe that the appellants would assemble at such a conspicuous place with the intention of committing a dacoity and would take such a grave risk. It is true that some of the appellants who were caught hold of by the Head Constable are alleged to have made the statement before him that they were going to commit a dacoity but this statement being clearly inadmissible has to be excluded from consideration. In this view of the matter, there is no legal evidence to support the charge under Sections 399 and 402 against the appellants. The possibility that the appellants may have collected for the purpose of murdering somebody or committing some other offence cannot be safely eliminated. In these circumstances, therefore, we are unable to sustain the judgment of the High Court. | 1 | 531 | 265 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
Fazal Ali, J.This appeal by special leave is directed against the judgment of the Patna High Court confirming the conviction and the sentences passed by the trial Court against the appellants. The appellants were convicted under Sections 399 and 402 and sentenced under Section 399 to 10 years RI and under Section 402 to 7 years RI. The sentences were directed to run concurrently.2. The prosecution case has been detailed in the judgment of the High Court and it is not necessary for us to repeat the same all over again. It appears that on the date of occurrence, the appellants along with the others, had assembled at a lonely spot in the school premises and were detected by a police Patrol Party on seeing whom some of the accused tried to run away but some of the appellants were caught.3. One of the appellants was found to be in possession of a gun and live cartridge and others had merely one live cartridge each in their pockets.4. The courts below have drawn the inference that the appellants were guilty under both the offences merely from the fact that they had assembled at a lonely place at 1 a.m. and could give no explanation for their presence at that odd hour of the night. Mr. Misra appearing for the appellant submitted that taking the prosecution case at its face value, there is no evidence to show that the appellants had assembled for the purpose of committing a dacoity or they had made any preparation for committing the same. We are of the opinion that the contention raised by the learned for the appellants is well founded and must prevail. The evidence led by the prosecution merely shows that eight persons were found in the school premises. Some of them were armed with guns, some had cartridges and others ran away. The mere fact that these persons were found at 1 a.m. does not, by itself, prove that the appellants had assembled for the purpose of committing dacoity or for making preparations to accomplish that object. The High Court itself, has in its judgment, observed that the school was quite close to the market, hence it is difficult to believe that the appellants would assemble at such a conspicuous place with the intention of committing a dacoity and would take such a grave risk. It is true that some of the appellants who were caught hold of by the Head Constable are alleged to have made the statement before him that they were going to commit a dacoity but this statement being clearly inadmissible has to be excluded from consideration. In this view of the matter, there is no legal evidence to support the charge under Sections 399 and 402 against the appellants. The possibility that the appellants may have collected for the purpose of murdering somebody or committing some other offence cannot be safely eliminated. In these circumstances, therefore, we are unable to sustain the judgment of the High Court.
### Response:
1
### Explanation:
We are of the opinion that the contention raised by the learned for the appellants is well founded and must prevail. The evidence led by the prosecution merely shows that eight persons were found in the school premises. Some of them were armed with guns, some had cartridges and others ran away. The mere fact that these persons were found at 1 a.m. does not, by itself, prove that the appellants had assembled for the purpose of committing dacoity or for making preparations to accomplish that object. The High Court itself, has in its judgment, observed that the school was quite close to the market, hence it is difficult to believe that the appellants would assemble at such a conspicuous place with the intention of committing a dacoity and would take such a grave risk. It is true that some of the appellants who were caught hold of by the Head Constable are alleged to have made the statement before him that they were going to commit a dacoity but this statement being clearly inadmissible has to be excluded from consideration. In this view of the matter, there is no legal evidence to support the charge under Sections 399 and 402 against the appellants. The possibility that the appellants may have collected for the purpose of murdering somebody or committing some other offence cannot be safely eliminated. In these circumstances, therefore, we are unable to sustain the judgment of the High Court.
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SHRI RAM SAHU (DEAD) THROUGH LRS & ORS Vs. VINOD KUMAR RAWAT & ORS | the reasons given by the High Court while allowing the review application and deleting para 20 that no issue was framed by the learned Trial Court with respect to possession and/or there was no issue before the Learned Trial Court with respect to the possession and therefore the observations made in para 20 with respect to possession of the plaintiff – appellant herein was unwarranted and therefore, the same was rightly deleted is concerned first of all on the aforesaid ground the powers under Order 47 Rule 1 could not have been exercised. At the most, observations made in para 20 can be said to be erroneous decision, though for the reasons stated herein below the same cannot be said to be erroneous decision and as observed hereinabove the said observations were made on appreciation of evidence on record, the aforesaid cannot be a ground to exercise of powers under Order 47 Rule 1 CPC. 11.1 Even otherwise non-framing of the issue with respect to possession would have no bearing and/or it fades into insignificance. It is required to be noted that there were necessary pleadings with respect to possession in the plaint as well as in the written statement. Even the parties also led the evidence on the possession. The original plaintiff – appellant herein led the evidence with supporting documents to show his possession and to that, there was no cross-examination by the defendants – respondents. The defendants respondents did not lead any evidence to show their possession. Therefore, the parties were aware of the rival cases. On a holistic and comprehensive reading of the pleadings and the deposition of PW1 and PW2, it is unescapable that the plaintiff had intendedly, directly and unequivocally raised in its pleadings the question of possession. As observed hereinabove even in the written statement, the defendants also made an averment with respect to possession. Thus neither prejudice was caused nor the proceedings can be said to have been vitiated for want of framing the issue. As observed and held by this Court in the case of Sri Gangai Vinayagar Temple vs. Meenakshi Ammal and Others, (Supra), if the parties are aware of the rival cases, the failure to formally formulate the issue fades into insignificance when an extensive evidence has been recorded without any demur. Even the observations made by the High Court that there was no issue with respect to possession before the Learned Trial Court and/or even before the High Court is not correct. As observed hereinabove in the pleadings in the plaint and even in the written statement filed by the defendants, there were necessary averments with respect to possession. Even the parties also led the evidence on possession. 12. Hence, on the grounds stated in the impugned order, the High Court in exercise of review jurisdiction could not have without sufficient and just reasons reviewed its own judgment and order and deleted the observations made in para 20 with respect to possession. 13. Even otherwise there is ample material on record to suggest/show the possession of the appellants herein/original plaintiff. During the pendency of the appeal the respondents original defendant nos. 1 and 2 filed an application under Section 151 CPC for dismissing the appeal filed by the appellant and for directing the appellant original plaintiff to vacate the suit property. In the said application filed on 19.03.2012 the respondents original defendant nos. 1 & 2 never stated that they are in possession of the disputed suit house. On the contrary, they prayed for an order directing the appellants original plaintiff to vacate the suit property. The said application for whatever reasons was withdrawn. During the pendency of the appeal, the appellants filed an application under Order 6 Rule 17 of the CPC by which the appellants sought amendment in the relief clause as regards the issue of permanent injunction restraining the respondents defendant nos. 1 and 2 from dispossessing the appellants forcibly from the disputed house. The said application was opposed by the respondents – original defendants. It was submitted that the proposed averment is not necessary at the appellate stage as no averments have been pleaded in the application as to why such a prayer is sought belatedly. It was also submitted that if during the pendency of the suit the plaintiffs have neither been threatened nor have been sought to be dispossessed of the aforesaid property such a prayer at the appellate stage may not be entertained. The High Court dismissed the said application, not on merits but on the ground that the same was submitted belatedly. However, the High Court dismissed the said application with the grant of permission to file a separate suit for the aforesaid relief against the defendants. 13.1 At this stage, it is required to be noted that after a period of approximately three years from the date of disposal of the First Appeal 16.04.2005 by the High Court and after the impugned order dated 14.07.2017 passed by the High Court in review application, the defendant nos. 1 and 2 – respondents herein in fact filed a separate suit in the Court of Learned Civil Judge, Class I, Gwalior against the appellants herein for receiving possession of the disputed house and compensation, in which the possession of the appellants has been admitted. In the said suit, it is pleaded that the plaintiffs have sent a legal notice to the said defendants -appellants herein, through the Advocate on 09.08.2017 and demanded to vacate the disputed place but have not vacated and handed over the possession of the disputed place. 14. The sum and substance of the aforesaid discussion is that the High Court has committed a grave error in allowing the review application and deleting the observations made in para 20 of its order dated 10.12.2013 passed in First Appeal No.17.04.2005 in exercise of powers under Section 114 read with Order 47 Rule 1 CPC. Under the circumstances the impugned order is unsustainable and deserves to be quashed and set aside. | 1[ds]5. By the impugned order the High Court in exercise of powers under Section 114 read with Order 47 Rule 1 CPC has allowed the review petition and has reviewed the judgment and order dated 10.12.2013 passed in First Appeal No.241 of 2005 insofar as deleting the observations made in Para 20 as regards the possession of the disputed property, which were in favour of the appellants – original plaintiffs. From the impugned order passed by the High Court, it appears that the High Court has deleted the observations made in para 20 as regards possession of the plaintiffs mainly/solely on the ground that the issue of possession was neither before the Learned Trial Court nor was it before the First Appellate Court and no such issue with respect to possession was framed by the Learned Trial Court.6.1 In the case of Haridas Das vs. Usha Rani Banik (Smt.) and Others, (2006) 4 SCC 78 while considering the scope and ambit of Section 114 CPC read with Order 47 Rule 1 CPC it is observed and held in paragraph 14 to 18 as under:14. In Meera Bhanja v. Nirmala Kumari Choudhury, (1995) 1 SCC 170 it was held that:8. It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC. In connection with the limitation of the powers of the court under Order 47 Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution, this Court, in Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, (1979) 4 SCC 389 speaking through Chinnappa Reddy, J. has made the following pertinent observations:It is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found, it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate court.15. A perusal of Order 47 Rule 1 shows that review of a judgment or an order could be sought: (a) from the discovery of new and important matters or evidence which after the exercise of due diligence was not within the knowledge of the applicant; (b) such important matter or evidence could not be produced by the applicant at the time when the decree was passed or order made; and (c) on account of some mistake or error apparent on the face of the record or any other sufficient reason.16. In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, AIR 1979 SC 1047 , this Court held that there are definite limits to the exercise of power of review. In that case, an application under Order 47 Rule 1 read with Section 151 of the Code was filed which was allowed and the order passed by the Judicial Commissioner was set aside and the writ petition was dismissed. On an appeal to this Court it was held as under: (SCC p. 390, para 3)It is true as observed by this Court in Shivdeo Singh v. State of Punjab, AIR 1963 SC 1909 there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate court to correct all manner of errors committed by the subordinate court.17. The judgment in Aribam case has been followed in Meera Bhanja. In that case, it has been reiterated that an error apparent on the face of the record for acquiring jurisdiction to review must be such an error which may strike one on a mere looking at the record and would not require any long-drawn process of reasoning. The following observations in connection with an error apparent on the face of the record in Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa Tirumale, AIR 1960 SC 137 were also noted:An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ.18. It is also pertinent to mention the observations of this Court in Parsion Devi v. Sumitri Devi, (1997) 8 SCC 715. Relying upon the judgments in Aribam and Meera Bhanja it was observed as under:9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be reheard and corrected. A review petition, it must be remembered has a limited purpose and cannot be allowed to be an appeal in disguise.7. The dictionary meaning of the word review is the act of looking, offer something again with a view to correction or improvement. It cannot be denied that the review is the creation of a statute. In the case of Patel Narshi Thakershi vs. Pradyumansinghji Arjunsinghji, (1971) 3 SCC 844 , this Court has held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise.8. What can be said to be an error apparent on the face of the proceedings has been dealt with and considered by this Court in the case of T.C. Basappa vs. T.Nagappa, AIR 1954 SC 440 . It is held that such an error is an error which is a patent error and not a mere wrong decision. In the case of Hari Vishnu Kamath vs. Ahmad Ishaque, AIR 1955 SC 233 , it is observed as under:It is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record? Learned counsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated.From the bare reading of Section 114 CPC, it appears that the said substantive power of review under Section 114 CPC has not laid down any condition as the condition precedent in exercise of power of review nor the said Section imposed any prohibition on the Court for exercising its power to review its decision. However, an order can be reviewed by a Court only on the prescribed grounds mentioned in Order 47 Rule 1 CPC, which has been elaborately discussed hereinabove. An application for review is more restricted than that of an appeal and the Court of review has limited jurisdiction as to the definite limit mentioned in Order 47 Rule 1 CPC itself. The powers of review cannot be exercised as an inherent power nor can an appellate power can be exercised in the guise of power of review.10. Considered in the light of the aforesaid settled position, we find that the High Court has clearly overstepped the jurisdiction vested in the Court under Order 47 Rule 1 CPC. No ground as envisaged under Order 47 Rule 1 CPC has been made out for the purpose of reviewing the observations made in para 20. It is required to be noted and as evident from para 20, the High Court made observations in para 20 with respect to possession of the plaintiffs on appreciation of evidence on record more particularly the deposition of the plaintiff (PW1) and his witness PW2 and on appreciation of the evidence, the High Court found that the plaintiff is in actual possession of the said house. Therefore, when the observation with respect to the possession of the plaintiff were made on appreciation of evidence/material on record, it cannot be said that there was an error apparent on the face of proceedings which were required to be reviewed in exercise of powers under Order 47 Rule 1 CPC. At this stage, it is required to be noted that even High Court while making observations in para 20 with respect to plaintiff in possession also took note of the fact that the defendant nos. 1 and 2 – respondents herein themselves filed an application being I.A. No.1267 of 2012 which was filed under Section 151 CPC for getting the possession of the disputed house from the appellants and the said application was dismissed as withdrawn. Therefore, the High Court took note of the fact that even according to the defendant nos. 1 & 2 the appellants were in possession of the disputed house. Therefore, in light of the fact situation, the High Court has clearly erred in deleting para 20 in exercise of powers under Order 47 Rule 1 CPC more particularly in the light of the settled preposition of law laid down by this Court in the aforesaid decisions.11. Now so far as the submission on behalf of the respondents – original defendant nos. 1 & 2 and the reasons given by the High Court while allowing the review application and deleting para 20 that no issue was framed by the learned Trial Court with respect to possession and/or there was no issue before the Learned Trial Court with respect to the possession and therefore the observations made in para 20 with respect to possession of the plaintiff – appellant herein was unwarranted and therefore, the same was rightly deleted is concerned first of all on the aforesaid ground the powers under Order 47 Rule 1 could not have been exercised. At the most, observations made in para 20 can be said to be erroneous decision, though for the reasons stated herein below the same cannot be said to be erroneous decision and as observed hereinabove the said observations were made on appreciation of evidence on record, the aforesaid cannot be a ground to exercise of powers under Order 47 Rule 1 CPC.11.1 Even otherwise non-framing of the issue with respect to possession would have no bearing and/or it fades into insignificance. It is required to be noted that there were necessary pleadings with respect to possession in the plaint as well as in the written statement. Even the parties also led the evidence on the possession. The original plaintiff – appellant herein led the evidence with supporting documents to show his possession and to that, there was no cross-examination by the defendants – respondents. The defendants respondents did not lead any evidence to show their possession. Therefore, the parties were aware of the rival cases. On a holistic and comprehensive reading of the pleadings and the deposition of PW1 and PW2, it is unescapable that the plaintiff had intendedly, directly and unequivocally raised in its pleadings the question of possession. As observed hereinabove even in the written statement, the defendants also made an averment with respect to possession. Thus neither prejudice was caused nor the proceedings can be said to have been vitiated for want of framing the issue. As observed and held by this Court in the case of Sri Gangai Vinayagar Temple vs. Meenakshi Ammal and Others, (Supra), if the parties are aware of the rival cases, the failure to formally formulate the issue fades into insignificance when an extensive evidence has been recorded without any demur. Even the observations made by the High Court that there was no issue with respect to possession before the Learned Trial Court and/or even before the High Court is not correct. As observed hereinabove in the pleadings in the plaint and even in the written statement filed by the defendants, there were necessary averments with respect to possession. Even the parties also led the evidence on possession.12. Hence, on the grounds stated in the impugned order, the High Court in exercise of review jurisdiction could not have without sufficient and just reasons reviewed its own judgment and order and deleted the observations made in para 20 with respect to possession.13. Even otherwise there is ample material on record to suggest/show the possession of the appellants herein/original plaintiff. During the pendency of the appeal the respondents original defendant nos. 1 and 2 filed an application under Section 151 CPC for dismissing the appeal filed by the appellant and for directing the appellant original plaintiff to vacate the suit property. In the said application filed on 19.03.2012 the respondents original defendant nos. 1 & 2 never stated that they are in possession of the disputed suit house. On the contrary, they prayed for an order directing the appellants original plaintiff to vacate the suit property. The said application for whatever reasons was withdrawn. During the pendency of the appeal, the appellants filed an application under Order 6 Rule 17 of the CPC by which the appellants sought amendment in the relief clause as regards the issue of permanent injunction restraining the respondents defendant nos. 1 and 2 from dispossessing the appellants forcibly from the disputed house. The said application was opposed by the respondents – original defendants. It was submitted that the proposed averment is not necessary at the appellate stage as no averments have been pleaded in the application as to why such a prayer is sought belatedly. It was also submitted that if during the pendency of the suit the plaintiffs have neither been threatened nor have been sought to be dispossessed of the aforesaid property such a prayer at the appellate stage may not be entertained. The High Court dismissed the said application, not on merits but on the ground that the same was submitted belatedly. However, the High Court dismissed the said application with the grant of permission to file a separate suit for the aforesaid relief against the defendants. 13.1 At this stage, it is required to be noted that after a period of approximately three years from the date of disposal of the First Appeal 16.04.2005 by the High Court and after the impugned order dated 14.07.2017 passed by the High Court in review application, the defendant nos. 1 and 2 – respondents herein in fact filed a separate suit in the Court of Learned Civil Judge, Class I, Gwalior against the appellants herein for receiving possession of the disputed house and compensation, in which the possession of the appellants has been admitted. In the said suit, it is pleaded that the plaintiffs have sent a legal notice to the said defendants -appellants herein, through the Advocate on 09.08.2017 and demanded to vacate the disputed place but have not vacated and handed over the possession of the disputed place.14. The sum and substance of the aforesaid discussion is that the High Court has committed a grave error in allowing the review application and deleting the observations made in para 20 of its order dated 10.12.2013 passed in First Appeal No.17.04.2005 in exercise of powers under Section 114 read with Order 47 Rule 1 CPC. Under the circumstances the impugned order is unsustainable and deserves to be quashed and set aside. | 1 | 10,851 | 3,149 | ### Instruction:
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the reasons given by the High Court while allowing the review application and deleting para 20 that no issue was framed by the learned Trial Court with respect to possession and/or there was no issue before the Learned Trial Court with respect to the possession and therefore the observations made in para 20 with respect to possession of the plaintiff – appellant herein was unwarranted and therefore, the same was rightly deleted is concerned first of all on the aforesaid ground the powers under Order 47 Rule 1 could not have been exercised. At the most, observations made in para 20 can be said to be erroneous decision, though for the reasons stated herein below the same cannot be said to be erroneous decision and as observed hereinabove the said observations were made on appreciation of evidence on record, the aforesaid cannot be a ground to exercise of powers under Order 47 Rule 1 CPC. 11.1 Even otherwise non-framing of the issue with respect to possession would have no bearing and/or it fades into insignificance. It is required to be noted that there were necessary pleadings with respect to possession in the plaint as well as in the written statement. Even the parties also led the evidence on the possession. The original plaintiff – appellant herein led the evidence with supporting documents to show his possession and to that, there was no cross-examination by the defendants – respondents. The defendants respondents did not lead any evidence to show their possession. Therefore, the parties were aware of the rival cases. On a holistic and comprehensive reading of the pleadings and the deposition of PW1 and PW2, it is unescapable that the plaintiff had intendedly, directly and unequivocally raised in its pleadings the question of possession. As observed hereinabove even in the written statement, the defendants also made an averment with respect to possession. Thus neither prejudice was caused nor the proceedings can be said to have been vitiated for want of framing the issue. As observed and held by this Court in the case of Sri Gangai Vinayagar Temple vs. Meenakshi Ammal and Others, (Supra), if the parties are aware of the rival cases, the failure to formally formulate the issue fades into insignificance when an extensive evidence has been recorded without any demur. Even the observations made by the High Court that there was no issue with respect to possession before the Learned Trial Court and/or even before the High Court is not correct. As observed hereinabove in the pleadings in the plaint and even in the written statement filed by the defendants, there were necessary averments with respect to possession. Even the parties also led the evidence on possession. 12. Hence, on the grounds stated in the impugned order, the High Court in exercise of review jurisdiction could not have without sufficient and just reasons reviewed its own judgment and order and deleted the observations made in para 20 with respect to possession. 13. Even otherwise there is ample material on record to suggest/show the possession of the appellants herein/original plaintiff. During the pendency of the appeal the respondents original defendant nos. 1 and 2 filed an application under Section 151 CPC for dismissing the appeal filed by the appellant and for directing the appellant original plaintiff to vacate the suit property. In the said application filed on 19.03.2012 the respondents original defendant nos. 1 & 2 never stated that they are in possession of the disputed suit house. On the contrary, they prayed for an order directing the appellants original plaintiff to vacate the suit property. The said application for whatever reasons was withdrawn. During the pendency of the appeal, the appellants filed an application under Order 6 Rule 17 of the CPC by which the appellants sought amendment in the relief clause as regards the issue of permanent injunction restraining the respondents defendant nos. 1 and 2 from dispossessing the appellants forcibly from the disputed house. The said application was opposed by the respondents – original defendants. It was submitted that the proposed averment is not necessary at the appellate stage as no averments have been pleaded in the application as to why such a prayer is sought belatedly. It was also submitted that if during the pendency of the suit the plaintiffs have neither been threatened nor have been sought to be dispossessed of the aforesaid property such a prayer at the appellate stage may not be entertained. The High Court dismissed the said application, not on merits but on the ground that the same was submitted belatedly. However, the High Court dismissed the said application with the grant of permission to file a separate suit for the aforesaid relief against the defendants. 13.1 At this stage, it is required to be noted that after a period of approximately three years from the date of disposal of the First Appeal 16.04.2005 by the High Court and after the impugned order dated 14.07.2017 passed by the High Court in review application, the defendant nos. 1 and 2 – respondents herein in fact filed a separate suit in the Court of Learned Civil Judge, Class I, Gwalior against the appellants herein for receiving possession of the disputed house and compensation, in which the possession of the appellants has been admitted. In the said suit, it is pleaded that the plaintiffs have sent a legal notice to the said defendants -appellants herein, through the Advocate on 09.08.2017 and demanded to vacate the disputed place but have not vacated and handed over the possession of the disputed place. 14. The sum and substance of the aforesaid discussion is that the High Court has committed a grave error in allowing the review application and deleting the observations made in para 20 of its order dated 10.12.2013 passed in First Appeal No.17.04.2005 in exercise of powers under Section 114 read with Order 47 Rule 1 CPC. Under the circumstances the impugned order is unsustainable and deserves to be quashed and set aside.
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1
### Explanation:
1 & 2 and the reasons given by the High Court while allowing the review application and deleting para 20 that no issue was framed by the learned Trial Court with respect to possession and/or there was no issue before the Learned Trial Court with respect to the possession and therefore the observations made in para 20 with respect to possession of the plaintiff – appellant herein was unwarranted and therefore, the same was rightly deleted is concerned first of all on the aforesaid ground the powers under Order 47 Rule 1 could not have been exercised. At the most, observations made in para 20 can be said to be erroneous decision, though for the reasons stated herein below the same cannot be said to be erroneous decision and as observed hereinabove the said observations were made on appreciation of evidence on record, the aforesaid cannot be a ground to exercise of powers under Order 47 Rule 1 CPC.11.1 Even otherwise non-framing of the issue with respect to possession would have no bearing and/or it fades into insignificance. It is required to be noted that there were necessary pleadings with respect to possession in the plaint as well as in the written statement. Even the parties also led the evidence on the possession. The original plaintiff – appellant herein led the evidence with supporting documents to show his possession and to that, there was no cross-examination by the defendants – respondents. The defendants respondents did not lead any evidence to show their possession. Therefore, the parties were aware of the rival cases. On a holistic and comprehensive reading of the pleadings and the deposition of PW1 and PW2, it is unescapable that the plaintiff had intendedly, directly and unequivocally raised in its pleadings the question of possession. As observed hereinabove even in the written statement, the defendants also made an averment with respect to possession. Thus neither prejudice was caused nor the proceedings can be said to have been vitiated for want of framing the issue. As observed and held by this Court in the case of Sri Gangai Vinayagar Temple vs. Meenakshi Ammal and Others, (Supra), if the parties are aware of the rival cases, the failure to formally formulate the issue fades into insignificance when an extensive evidence has been recorded without any demur. Even the observations made by the High Court that there was no issue with respect to possession before the Learned Trial Court and/or even before the High Court is not correct. As observed hereinabove in the pleadings in the plaint and even in the written statement filed by the defendants, there were necessary averments with respect to possession. Even the parties also led the evidence on possession.12. Hence, on the grounds stated in the impugned order, the High Court in exercise of review jurisdiction could not have without sufficient and just reasons reviewed its own judgment and order and deleted the observations made in para 20 with respect to possession.13. Even otherwise there is ample material on record to suggest/show the possession of the appellants herein/original plaintiff. During the pendency of the appeal the respondents original defendant nos. 1 and 2 filed an application under Section 151 CPC for dismissing the appeal filed by the appellant and for directing the appellant original plaintiff to vacate the suit property. In the said application filed on 19.03.2012 the respondents original defendant nos. 1 & 2 never stated that they are in possession of the disputed suit house. On the contrary, they prayed for an order directing the appellants original plaintiff to vacate the suit property. The said application for whatever reasons was withdrawn. During the pendency of the appeal, the appellants filed an application under Order 6 Rule 17 of the CPC by which the appellants sought amendment in the relief clause as regards the issue of permanent injunction restraining the respondents defendant nos. 1 and 2 from dispossessing the appellants forcibly from the disputed house. The said application was opposed by the respondents – original defendants. It was submitted that the proposed averment is not necessary at the appellate stage as no averments have been pleaded in the application as to why such a prayer is sought belatedly. It was also submitted that if during the pendency of the suit the plaintiffs have neither been threatened nor have been sought to be dispossessed of the aforesaid property such a prayer at the appellate stage may not be entertained. The High Court dismissed the said application, not on merits but on the ground that the same was submitted belatedly. However, the High Court dismissed the said application with the grant of permission to file a separate suit for the aforesaid relief against the defendants. 13.1 At this stage, it is required to be noted that after a period of approximately three years from the date of disposal of the First Appeal 16.04.2005 by the High Court and after the impugned order dated 14.07.2017 passed by the High Court in review application, the defendant nos. 1 and 2 – respondents herein in fact filed a separate suit in the Court of Learned Civil Judge, Class I, Gwalior against the appellants herein for receiving possession of the disputed house and compensation, in which the possession of the appellants has been admitted. In the said suit, it is pleaded that the plaintiffs have sent a legal notice to the said defendants -appellants herein, through the Advocate on 09.08.2017 and demanded to vacate the disputed place but have not vacated and handed over the possession of the disputed place.14. The sum and substance of the aforesaid discussion is that the High Court has committed a grave error in allowing the review application and deleting the observations made in para 20 of its order dated 10.12.2013 passed in First Appeal No.17.04.2005 in exercise of powers under Section 114 read with Order 47 Rule 1 CPC. Under the circumstances the impugned order is unsustainable and deserves to be quashed and set aside.
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Bhagwat Vs. The State of Maharashtra | they had seen accused at about 4.00 p.m. Considering the distance between their field and the spot of incident, it does not look probable that accused had taken 30 minutes to reach that spot. The distance between the lands of first informant and these witnesses is given as one and half k.m. and the land of father of the accused is adjacent to the lands of these witnesses. If accused was proceeding towards his field, it was not incriminating circumstance. Their statements were recorded on 8th, after about 3 days of the incident. Due to these circumstances also, it can be said that they had not noticed anything abnormal on that day. Everybody of that locality had learnt about the murder of Kiran on that day and if there was anything abnormal in the conduct of accused, the witnesses would have approached police immediately. Thus, not much weight can be given to the evidence given by these two witnesses of aforesaid nature.14. The spot panchanama at Exh. 13 is admitted by the accused. Police have given handsketch map of scene of offence. The map shows that on southern side of the field where the dead body was found, there is brooklet and on the south of that brooklet, there is Dadahari Vadgaon Shivar. On north of the brooklet, there is Loni Shivar. The dead body was lying in the standing crop of Tur and it was at the distance of 9 ft. from the crop of gram. Evidence is given by Mahadev that he had seen the accused running away from the brooklet. The evidence of all the witnesses shows that the village Dadahari Vadgaon is situated on the southern side of the brooklet and the field of accused is also situated on southern side and at much distance, more than one and half k.m. from the brooklet and village Loni is situated on northern side of the field where the dead body was found. Thus, Kiran must have come from village Dadahari Vadgaon, from southern side to the field where Mahadev was working. There was no need for her to cross the brooklet and to go to the field of Laxman Sonawane where the dead body was lying. There was also no need for her to enter in the standing Tur crop. The circumstances do not show that any force was used and Kiran was dragged up to that spot. Similarly, accused had no reason to come towards that side or cross the brooklet. In view of these circumstances, the evidence of Mahadev (PW 2) needs to be subjected to close scrutiny and it was necessary for him to say something as to why the deceased had crossed the brooklet and had gone towards the filed of Laxman. It was expected from Mahadev to say as to what he was doing for about three hours, the period for which he was not in the company of Rode. Only because Mahadev gave F.I.R. and he is saying that he saw the accused running away the case is filed against the accused. For many reasons a person can run and even when the person has seen the dead body.15. Though the record shows that for few days after the incident, the accused was not arrested and it is the case of prosecution that he was absconding, there is also circumstance that on the same night accused was in the company of the witnesses examined by the prosecution and they did not notice any suspicious thing. Had the crime not registered against the accused, in ordinary course, police could have registered the crime even against Mahadev (PW 2). His conduct of not admitting the relationship with the accused of the first wife of his brother, not admitting that he was married show that there is something suspicious in respect of Mahadev. The deceased was carrying of four months and that can be seen from the P.M. report. Portion of the Sari of the deceased was found to be gagged in to the mouth of the deceased and there was smothering. Then on the face of the deceased a stone was kept. These circumstances create a probability, there was no resistence and somebody known to the deceased had done the act. In addition to these circumstances, there are circumstances as mentioned above which are not explained by the prosecution. Only because Mahadev was saying that he had seen the accused running away from the brooklet, the crime was registered against him. No allegedly stolen articles are recovered from him and there is no other incriminating circumstance against the accused. The circumstance mentioned in the evidence of Mahadev even if it is accepted can at the most create suspicion against the accused. On the basis of such suspension, conviction cannot be given for offence of murder. 16) In the case reported as AIR 1992 SUPREME COURT 2045 (State of U.P. Vs. Dr. R.P. Mittal), the Apex Court has given essential ingredients to prove the guilt by circumstantial evidence and they are as under:-"(1) Circumstances from which conclusion is drawn should be fully proved.(2) Circumstances should be conclusive.(3) All facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence of the accused.(4) Circumstances should exclude the possibility of guilt of a person other than the accused."It is true that the circumstances quoted are evidence in view of section 3 of Evidence Act and are relevant under section 8 of Evidence Act and circumstantial evidence can be used for conviction, but chain of evidence must be so complete, that it does not leave any reasonable ground for the conclusion consistent with the innocence of the accused. The circumstances must show that in all human probability, the act must have been done by the accused. The relevant circumstances of the present matter are already quoted and they have created other probabilities. This Court holds that the Trial Court has committed grave error in convicting the accused for the offence of murder. | 1[ds]These circumstances create probability that incident was not disclosed by Mahadev immediately to anybody and delay was caused in giving F.I.R. The probability that Mahadev was not in the company of Bhimrao Rode for about three hours can create another probability that there was opportunity for commission of offence to Mahadev. The absence of injuries on the dead body is a circumstance in support of this probability. The circumstance of non recovery of ornaments is also supporting suchprobability. When her ear rings were there, Mahadev falsely contended that ear rings were also stolen. Due to these circumstances Mahadev cannot be believed.Though the record shows that for few days after the incident, the accused was not arrested and it is the case of prosecution that he was absconding, there is also circumstance that on the same night accused was in the company of the witnesses examined by the prosecution and they did not notice any suspicious thing. Had the crime not registered against the accused, in ordinary course, police could have registered the crime even against Mahadev (PW 2). His conduct of not admitting the relationship with the accused of the first wife of his brother, not admitting that he was married show that there is something suspicious in respect of Mahadev. The deceased was carrying of four months and that can be seen from the P.M. report. Portion of the Sari of the deceased was found to be gagged in to the mouth of the deceased and there was smothering. Then on the face of the deceased a stone was kept. These circumstances create a probability, there was no resistence and somebody known to the deceased had done the act. In addition to these circumstances, there are circumstances as mentioned above which are not explained by the prosecution. Only because Mahadev was saying that he had seen the accused running away from the brooklet, the crime was registered against him. No allegedly stolen articles are recovered from him and there is no other incriminating circumstance against the accused. The circumstance mentioned in the evidence of Mahadev even if it is accepted can at the most create suspicion against the accused. On the basis of such suspension, conviction cannot be given for offence of murder. 16) In the case reported as AIR 1992 SUPREME COURT 2045 (State of U.P. Vs. Dr. R.P. Mittal), the Apex Court has given essential ingredients to prove the guilt by circumstantial evidence and they are asCircumstances from which conclusion is drawn should be fully proved.(2) Circumstances should be conclusive.(3) All facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence of the accused.(4) Circumstances should exclude the possibility of guilt of a person other than the accused."It is true that the circumstances quoted are evidence in view of section 3 of Evidence Act and are relevant under section 8 of Evidence Act and circumstantial evidence can be used for conviction, but chain of evidence must be so complete, that it does not leave any reasonable ground for the conclusion consistent with the innocence of the accused. The circumstances must show that in all human probability, the act must have been done by the accused. The relevant circumstances of the present matter are already quoted and they have created other probabilities. This Court holds that the Trial Court has committed grave error in convicting the accused for the offence of murder. | 1 | 3,657 | 633 | ### Instruction:
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they had seen accused at about 4.00 p.m. Considering the distance between their field and the spot of incident, it does not look probable that accused had taken 30 minutes to reach that spot. The distance between the lands of first informant and these witnesses is given as one and half k.m. and the land of father of the accused is adjacent to the lands of these witnesses. If accused was proceeding towards his field, it was not incriminating circumstance. Their statements were recorded on 8th, after about 3 days of the incident. Due to these circumstances also, it can be said that they had not noticed anything abnormal on that day. Everybody of that locality had learnt about the murder of Kiran on that day and if there was anything abnormal in the conduct of accused, the witnesses would have approached police immediately. Thus, not much weight can be given to the evidence given by these two witnesses of aforesaid nature.14. The spot panchanama at Exh. 13 is admitted by the accused. Police have given handsketch map of scene of offence. The map shows that on southern side of the field where the dead body was found, there is brooklet and on the south of that brooklet, there is Dadahari Vadgaon Shivar. On north of the brooklet, there is Loni Shivar. The dead body was lying in the standing crop of Tur and it was at the distance of 9 ft. from the crop of gram. Evidence is given by Mahadev that he had seen the accused running away from the brooklet. The evidence of all the witnesses shows that the village Dadahari Vadgaon is situated on the southern side of the brooklet and the field of accused is also situated on southern side and at much distance, more than one and half k.m. from the brooklet and village Loni is situated on northern side of the field where the dead body was found. Thus, Kiran must have come from village Dadahari Vadgaon, from southern side to the field where Mahadev was working. There was no need for her to cross the brooklet and to go to the field of Laxman Sonawane where the dead body was lying. There was also no need for her to enter in the standing Tur crop. The circumstances do not show that any force was used and Kiran was dragged up to that spot. Similarly, accused had no reason to come towards that side or cross the brooklet. In view of these circumstances, the evidence of Mahadev (PW 2) needs to be subjected to close scrutiny and it was necessary for him to say something as to why the deceased had crossed the brooklet and had gone towards the filed of Laxman. It was expected from Mahadev to say as to what he was doing for about three hours, the period for which he was not in the company of Rode. Only because Mahadev gave F.I.R. and he is saying that he saw the accused running away the case is filed against the accused. For many reasons a person can run and even when the person has seen the dead body.15. Though the record shows that for few days after the incident, the accused was not arrested and it is the case of prosecution that he was absconding, there is also circumstance that on the same night accused was in the company of the witnesses examined by the prosecution and they did not notice any suspicious thing. Had the crime not registered against the accused, in ordinary course, police could have registered the crime even against Mahadev (PW 2). His conduct of not admitting the relationship with the accused of the first wife of his brother, not admitting that he was married show that there is something suspicious in respect of Mahadev. The deceased was carrying of four months and that can be seen from the P.M. report. Portion of the Sari of the deceased was found to be gagged in to the mouth of the deceased and there was smothering. Then on the face of the deceased a stone was kept. These circumstances create a probability, there was no resistence and somebody known to the deceased had done the act. In addition to these circumstances, there are circumstances as mentioned above which are not explained by the prosecution. Only because Mahadev was saying that he had seen the accused running away from the brooklet, the crime was registered against him. No allegedly stolen articles are recovered from him and there is no other incriminating circumstance against the accused. The circumstance mentioned in the evidence of Mahadev even if it is accepted can at the most create suspicion against the accused. On the basis of such suspension, conviction cannot be given for offence of murder. 16) In the case reported as AIR 1992 SUPREME COURT 2045 (State of U.P. Vs. Dr. R.P. Mittal), the Apex Court has given essential ingredients to prove the guilt by circumstantial evidence and they are as under:-"(1) Circumstances from which conclusion is drawn should be fully proved.(2) Circumstances should be conclusive.(3) All facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence of the accused.(4) Circumstances should exclude the possibility of guilt of a person other than the accused."It is true that the circumstances quoted are evidence in view of section 3 of Evidence Act and are relevant under section 8 of Evidence Act and circumstantial evidence can be used for conviction, but chain of evidence must be so complete, that it does not leave any reasonable ground for the conclusion consistent with the innocence of the accused. The circumstances must show that in all human probability, the act must have been done by the accused. The relevant circumstances of the present matter are already quoted and they have created other probabilities. This Court holds that the Trial Court has committed grave error in convicting the accused for the offence of murder.
### Response:
1
### Explanation:
These circumstances create probability that incident was not disclosed by Mahadev immediately to anybody and delay was caused in giving F.I.R. The probability that Mahadev was not in the company of Bhimrao Rode for about three hours can create another probability that there was opportunity for commission of offence to Mahadev. The absence of injuries on the dead body is a circumstance in support of this probability. The circumstance of non recovery of ornaments is also supporting suchprobability. When her ear rings were there, Mahadev falsely contended that ear rings were also stolen. Due to these circumstances Mahadev cannot be believed.Though the record shows that for few days after the incident, the accused was not arrested and it is the case of prosecution that he was absconding, there is also circumstance that on the same night accused was in the company of the witnesses examined by the prosecution and they did not notice any suspicious thing. Had the crime not registered against the accused, in ordinary course, police could have registered the crime even against Mahadev (PW 2). His conduct of not admitting the relationship with the accused of the first wife of his brother, not admitting that he was married show that there is something suspicious in respect of Mahadev. The deceased was carrying of four months and that can be seen from the P.M. report. Portion of the Sari of the deceased was found to be gagged in to the mouth of the deceased and there was smothering. Then on the face of the deceased a stone was kept. These circumstances create a probability, there was no resistence and somebody known to the deceased had done the act. In addition to these circumstances, there are circumstances as mentioned above which are not explained by the prosecution. Only because Mahadev was saying that he had seen the accused running away from the brooklet, the crime was registered against him. No allegedly stolen articles are recovered from him and there is no other incriminating circumstance against the accused. The circumstance mentioned in the evidence of Mahadev even if it is accepted can at the most create suspicion against the accused. On the basis of such suspension, conviction cannot be given for offence of murder. 16) In the case reported as AIR 1992 SUPREME COURT 2045 (State of U.P. Vs. Dr. R.P. Mittal), the Apex Court has given essential ingredients to prove the guilt by circumstantial evidence and they are asCircumstances from which conclusion is drawn should be fully proved.(2) Circumstances should be conclusive.(3) All facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence of the accused.(4) Circumstances should exclude the possibility of guilt of a person other than the accused."It is true that the circumstances quoted are evidence in view of section 3 of Evidence Act and are relevant under section 8 of Evidence Act and circumstantial evidence can be used for conviction, but chain of evidence must be so complete, that it does not leave any reasonable ground for the conclusion consistent with the innocence of the accused. The circumstances must show that in all human probability, the act must have been done by the accused. The relevant circumstances of the present matter are already quoted and they have created other probabilities. This Court holds that the Trial Court has committed grave error in convicting the accused for the offence of murder.
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Just Society Vs. Union of India | Ranjan Gogoi, J.1. The petitioner seeks a declaration to the effect that certain provisions of the Lokpal and Lokayuktas Act, 2013 (hereinafter for short `the Act) namely, Sections 3(2)(a) and 4(1)(d), 4(1) (e), 4(2), the second proviso to Section 4(3), Section 10, the proviso to Section 14(3), Section 16, Section 37(2) and Section 63 are ultra vires Articles 14 and 50 of the Constitution of India. The challenge in the aforesaid transferred case (No.25 of 2015) is primarily founded on the ground that the Chief Justice of India or his nominee Judge of the Supreme Court, under Section 4(1)(d) of the Act, is a mere Member of the Selection Committee and the opinion rendered either by the Chief Justice of India or his nominee judge has no primacy in the matter of selection of Chairperson and Members of the Lokpal. The aforesaid contention is sought to be fortified on the basis that four former judges of this Court had exercised their option to be considered for the post of Chairperson and in such a situation it is the Honble the Chief Justice of India or his nominee Judge alone who would be best situated to decide on the suitability of any such former judge of this Court who has/may have opted to be considered for appointment. It is also contended on behalf of the petitioner, that there are no norms/criterion laid down for appointment of an eminent jurist under Section 4(1)(e) of the Act thereby rendering the aforesaid provision of the Act legally and constitutionally fragile.2. We fail to see how any of the aforesaid contentions can establish any infirmity or fragility of the provisions of the Act in the light of any of the constitutional provisions so as to render the relevant sections of the Act ultra vires.3. The fact that primacy of the opinion of the Chief Justice or his nominee is accorded by certain statutes by use of the expression "in consultation", which expression has been understood by judicial opinion to confer primacy to the opinion of the Chief Justice, the absence thereof in the Act, by itself, will not render Section 4(1) (d) thereof ultra vires the basic structure of the Constitution. If the Legislature in its wisdom had thought it proper not to accord primacy to the opinion of the Chief Justice or his nominee and accord equal status to the opinion rendered by the Chief Justice or his nominee and treat such opinion at par with the opinion rendered by other members of the Selection Committee, we do not see how such legislative wisdom can be questioned on the ground of constitutional infirmity. It is not the mandate of the Constitution that in all matters concerning the appointment to various Offices in different bodies, primacy must be accorded to the opinion of the Chief Justice or his nominee. Whether such primacy should be accorded or not is for the legislature to decide and if the legislative opinion engrafted in the present Act is in contrast to what is provided for in other Statute(s), such legislative intention, by itself, cannot be understood to be constitutionally impermissible.4. Insofar as the appointment of an eminent jurist is concerned, we do not consider it necessary to delve into the issue except to say that the decision being left to a high power body consisting of high Constitutional functionaries enumerated in Section 4(1)(a) to 4(1)(d) of the Act, no ex-facie illegality can be discerned in the provisions contained in Section 4(1)(e) of the Act. Even if the Act is to lay down norms, it would be difficult to understand the same to be all comprehensive, satisfying all concerned. No declaration of infirmity of the provisions contained in Section 4(1)(e) of the Act can be made on the basis of the grounds urged. | 0[ds]2. We fail to see how any of the aforesaid contentions can establish any infirmity or fragility of the provisions of the Act in the light of any of the constitutional provisions so as to render the relevant sections of the Act ultra vires.3. The fact that primacy of the opinion of the Chief Justice or his nominee is accorded by certain statutes by use of the expression "in consultation", which expression has been understood by judicial opinion to confer primacy to the opinion of the Chief Justice, the absence thereof in the Act, by itself, will not render Section 4(1) (d) thereof ultra vires the basic structure of the Constitution. If the Legislature in its wisdom had thought it proper not to accord primacy to the opinion of the Chief Justice or his nominee and accord equal status to the opinion rendered by the Chief Justice or his nominee and treat such opinion at par with the opinion rendered by other members of the Selection Committee, we do not see how such legislative wisdom can be questioned on the ground of constitutional infirmity. It is not the mandate of the Constitution that in all matters concerning the appointment to various Offices in different bodies, primacy must be accorded to the opinion of the Chief Justice or his nominee. Whether such primacy should be accorded or not is for the legislature to decide and if the legislative opinion engrafted in the present Act is in contrast to what is provided for in other Statute(s), such legislative intention, by itself, cannot be understood to be constitutionally impermissible.4. Insofar as the appointment of an eminent jurist is concerned, we do not consider it necessary to delve into the issue except to say that the decision being left to a high power body consisting of high Constitutional functionaries enumerated in Section 4(1)(a) to 4(1)(d) of the Act, no ex-facie illegality can be discerned in the provisions contained in Section 4(1)(e) of the Act. Even if the Act is to lay down norms, it would be difficult to understand the same to be all comprehensive, satisfying all concerned. No declaration of infirmity of the provisions contained in Section 4(1)(e) of the Act can be made on the basis of the grounds urged. | 0 | 753 | 439 | ### 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:
Ranjan Gogoi, J.1. The petitioner seeks a declaration to the effect that certain provisions of the Lokpal and Lokayuktas Act, 2013 (hereinafter for short `the Act) namely, Sections 3(2)(a) and 4(1)(d), 4(1) (e), 4(2), the second proviso to Section 4(3), Section 10, the proviso to Section 14(3), Section 16, Section 37(2) and Section 63 are ultra vires Articles 14 and 50 of the Constitution of India. The challenge in the aforesaid transferred case (No.25 of 2015) is primarily founded on the ground that the Chief Justice of India or his nominee Judge of the Supreme Court, under Section 4(1)(d) of the Act, is a mere Member of the Selection Committee and the opinion rendered either by the Chief Justice of India or his nominee judge has no primacy in the matter of selection of Chairperson and Members of the Lokpal. The aforesaid contention is sought to be fortified on the basis that four former judges of this Court had exercised their option to be considered for the post of Chairperson and in such a situation it is the Honble the Chief Justice of India or his nominee Judge alone who would be best situated to decide on the suitability of any such former judge of this Court who has/may have opted to be considered for appointment. It is also contended on behalf of the petitioner, that there are no norms/criterion laid down for appointment of an eminent jurist under Section 4(1)(e) of the Act thereby rendering the aforesaid provision of the Act legally and constitutionally fragile.2. We fail to see how any of the aforesaid contentions can establish any infirmity or fragility of the provisions of the Act in the light of any of the constitutional provisions so as to render the relevant sections of the Act ultra vires.3. The fact that primacy of the opinion of the Chief Justice or his nominee is accorded by certain statutes by use of the expression "in consultation", which expression has been understood by judicial opinion to confer primacy to the opinion of the Chief Justice, the absence thereof in the Act, by itself, will not render Section 4(1) (d) thereof ultra vires the basic structure of the Constitution. If the Legislature in its wisdom had thought it proper not to accord primacy to the opinion of the Chief Justice or his nominee and accord equal status to the opinion rendered by the Chief Justice or his nominee and treat such opinion at par with the opinion rendered by other members of the Selection Committee, we do not see how such legislative wisdom can be questioned on the ground of constitutional infirmity. It is not the mandate of the Constitution that in all matters concerning the appointment to various Offices in different bodies, primacy must be accorded to the opinion of the Chief Justice or his nominee. Whether such primacy should be accorded or not is for the legislature to decide and if the legislative opinion engrafted in the present Act is in contrast to what is provided for in other Statute(s), such legislative intention, by itself, cannot be understood to be constitutionally impermissible.4. Insofar as the appointment of an eminent jurist is concerned, we do not consider it necessary to delve into the issue except to say that the decision being left to a high power body consisting of high Constitutional functionaries enumerated in Section 4(1)(a) to 4(1)(d) of the Act, no ex-facie illegality can be discerned in the provisions contained in Section 4(1)(e) of the Act. Even if the Act is to lay down norms, it would be difficult to understand the same to be all comprehensive, satisfying all concerned. No declaration of infirmity of the provisions contained in Section 4(1)(e) of the Act can be made on the basis of the grounds urged.
### Response:
0
### Explanation:
2. We fail to see how any of the aforesaid contentions can establish any infirmity or fragility of the provisions of the Act in the light of any of the constitutional provisions so as to render the relevant sections of the Act ultra vires.3. The fact that primacy of the opinion of the Chief Justice or his nominee is accorded by certain statutes by use of the expression "in consultation", which expression has been understood by judicial opinion to confer primacy to the opinion of the Chief Justice, the absence thereof in the Act, by itself, will not render Section 4(1) (d) thereof ultra vires the basic structure of the Constitution. If the Legislature in its wisdom had thought it proper not to accord primacy to the opinion of the Chief Justice or his nominee and accord equal status to the opinion rendered by the Chief Justice or his nominee and treat such opinion at par with the opinion rendered by other members of the Selection Committee, we do not see how such legislative wisdom can be questioned on the ground of constitutional infirmity. It is not the mandate of the Constitution that in all matters concerning the appointment to various Offices in different bodies, primacy must be accorded to the opinion of the Chief Justice or his nominee. Whether such primacy should be accorded or not is for the legislature to decide and if the legislative opinion engrafted in the present Act is in contrast to what is provided for in other Statute(s), such legislative intention, by itself, cannot be understood to be constitutionally impermissible.4. Insofar as the appointment of an eminent jurist is concerned, we do not consider it necessary to delve into the issue except to say that the decision being left to a high power body consisting of high Constitutional functionaries enumerated in Section 4(1)(a) to 4(1)(d) of the Act, no ex-facie illegality can be discerned in the provisions contained in Section 4(1)(e) of the Act. Even if the Act is to lay down norms, it would be difficult to understand the same to be all comprehensive, satisfying all concerned. No declaration of infirmity of the provisions contained in Section 4(1)(e) of the Act can be made on the basis of the grounds urged.
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Homi Jehangir Gheesta Vs. The Commissioner Of Income-Tax, Bombay | The Tribunal also rightly pointed out that the fact that Bai Allo was not assessed did not make the story any more probable.9. The Tribunal stated in its order that a summons was issued to the father by the Income-tax Officer to appear before the latter on June 23, 1950. The father failed to comply with the summons. This circumstance, it is argued, should not have been used against the appellant, because the record showed that the summons was served on the father on June 22, 1950, for attendance on the next day and the father wrote a letter stating that it was not possible for him to attend on the next day and, therefore, asked for another date. We do not think that this circumstance vitiates the order of the Tribunal which was based on grounds much more substantial than the failure of the father to attend on a particular date in obedience to the summons issued against him. The father was actually examined later and his statements were taken into consideration. One point made by the Tribunal was that no explanation was forthcoming as to why the uncle took charge of the share of the appellant and his sister when their father was alive and why the father allowed himself to be effaced in the matter of custody and management of the funds belonging to his children. We consider that this circumstance was also a relevant consideration and if the father was in a position to give an explanation, he should have done so when he made his statement before the Income-tax Officer D-II Ward, Bombay, on February 8, 1952.10. The Tribunal states : "We were also told that the assessee was taking his education between 1943 and 1950 as such he had no opportunity to earn any income. In a place like Bombay and particularly in the family of a businessman, a person may earn even when he learns." These observations of the Tribunal have been very seriously commented on by learned Counsel for the appellant. Learned Counsel has stated that certificates from the school, college and university authorities were produced by the appellant right upto 1950 which showed that the appellant was a student till 1950 and after seeing the certificates the Tribunal should not have said - "We were also told etc". According to learned Counsel this showed that the finding of the Tribunal was coloured by prejudice. We are unable to agree. Even if it be taken that the appellant satisfactorily proved that he was a student till 1950, we do not think that it makes any real difference as to the main question at issue, which was whether the appellant received the sum of Rs. 70,000/- from the estate of his mother, later increased by investments to Rs. 87,500/- in 1945. The Tribunal rightly pointed out that no evidence was given of the value of the estate left by the mother, though there was some evidence of what the mother received from the estate of her father Sanjana; nor there any evidence of the investments said to have been made which led to a addition to the original sum of Rs. 70,000/-. It has been argued that it was a mere surmise on the part of the Tribunal to say that in a place like Bombay a person may earn when he learns. Even if the Tribunal is wrong in this respect, we do not think that it is a matter of any consequence.11. We must read the order of the Tribunal as a whole to determine whether every material fact, for and against the assessee, has been considered fairly and with due care; whether the evidence pro and con has been considered in reaching the final conclusion; and whether the conclusion reached by the Tribunal has been coloured by irrelevant considerations or matters of prejudice. Learned Counsel for the appellant has taken us through the entire order of the Tribunal as also the relevant materials on which it is based. Having examined the order of the Tribunal and those materials, we are unable to agree with learned Counsel for the appellant that the order of the Tribunal is vitiated by any of the defects adverted to in 1954-26 ITR 736 : ((S) AIR 1955 SC 271 ) or Omar Salary Mohamed Sait v. Commissioner of Income-tax, Madras, 1959-37 ITR 151 : (AIR 1959 SC 1238 ). We must make it clear that we do not think that those decisions require that the order of the Tribunal must be examined sentence by sentence, through a microscope as it were, so as to discover a minor lapse here or an incautious opinion there to be used as a peg on which to hang an issue of law. In view of the arguments advanced before us it is perhaps necessary to add that in considering probabilities properly arising from the facts alleged or proved, the Tribunal does not indulge in conjectures, surmises or suspicions.12. It has also been argued before us that even if the explanation of the appellant as to the sum of Rs. 87,500/- is not accepted, the Department did not prove by any direct evidence that the amount was income in the hands of the appellant. We do not think that in a case like the one before us the Department was required to prove by direct evidence that the sum of Rs. 87,500/- was income in the hands of the appellant. Indeed, we agree that it is not in all cases that by mere rejection of the explanation of the assessee, the character of a particular receipt as income can be said to have been established; but where the circumstances of the rejection are such that the only proper inference is that the receipt must be treated as income in the hands of the assessee, there is no reason why the assessing authorities should not draw such an inference. Such an inference is an inference of fact and not of law. | 0[ds]The argument of learned Counsel for the appellant is that it was not a relevant consideration as to why Phirozeshaw did not hand over the money to Bai Aloo in 1939 or in 1944, and if Bai Aloos statements were to be taken into consideration, they were in favour of the appellant inasmuch as no assessment was made on Bai Aloo in respect of the sum she had received. We do not consider that the circumstances referred to by the Tribunal in connexion with Bai Aloos statement were irrelevant. What the Tribunal had to consider was the correctness or otherwise of a story in which the mother was stated to have left Rs. 2,10,000 out of which the heirs got one-third share each. The Tribunal had to consider each aspect of the story in order to judge of its probability and from that point of view it was relevant consideration as to why Bai Aloos money was not paid when she became major or when she got married. It was also a relevant consideration as to what the father of the appellant did with his share of the money and the Tribunal rightly pointed out that the father took cover under mixing of investments." These were relevant considerations for judging the probability of he story. The Tribunal also rightly pointed out that the fact that Bai Allo was not assessed did not make the story any more probable.The Tribunal stated in its order that a summons was issued to the father by the Income-tax Officer to appear before the latter on June 23,must make it clear that we do not think that those decisions require that the order of the Tribunal must be examined sentence by sentence, through a microscope as it were, so as to discover a minor lapse here or an incautious opinion there to be used as a peg on which to hang an issue of law. In view of the arguments advanced before us it is perhaps necessary to add that in considering probabilities properly arising from the facts alleged or proved, the Tribunal does not indulge in conjectures, surmises or suspicions.12. It has also been argued before us that even if the explanation of the appellant as to the sum of Rs. 87,500/- is not accepted, the Department did not prove by any direct evidence that the amount was income in the hands of the appellant. We do not think that in a case like the one before us the Department was required to prove by direct evidence that the sum of Rs. 87,500/- was income in the hands of the appellant. Indeed, we agree that it is not in all cases that by mere rejection of the explanation of the assessee, the character of a particular receipt as income can be said to have been established; but where the circumstances of the rejection are such that the only proper inference is that the receipt must be treated as income in the hands of the assessee, there is no reason why the assessing authorities should not draw such an inference. Such an inference is an inference of fact and not of law. | 0 | 2,914 | 560 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
The Tribunal also rightly pointed out that the fact that Bai Allo was not assessed did not make the story any more probable.9. The Tribunal stated in its order that a summons was issued to the father by the Income-tax Officer to appear before the latter on June 23, 1950. The father failed to comply with the summons. This circumstance, it is argued, should not have been used against the appellant, because the record showed that the summons was served on the father on June 22, 1950, for attendance on the next day and the father wrote a letter stating that it was not possible for him to attend on the next day and, therefore, asked for another date. We do not think that this circumstance vitiates the order of the Tribunal which was based on grounds much more substantial than the failure of the father to attend on a particular date in obedience to the summons issued against him. The father was actually examined later and his statements were taken into consideration. One point made by the Tribunal was that no explanation was forthcoming as to why the uncle took charge of the share of the appellant and his sister when their father was alive and why the father allowed himself to be effaced in the matter of custody and management of the funds belonging to his children. We consider that this circumstance was also a relevant consideration and if the father was in a position to give an explanation, he should have done so when he made his statement before the Income-tax Officer D-II Ward, Bombay, on February 8, 1952.10. The Tribunal states : "We were also told that the assessee was taking his education between 1943 and 1950 as such he had no opportunity to earn any income. In a place like Bombay and particularly in the family of a businessman, a person may earn even when he learns." These observations of the Tribunal have been very seriously commented on by learned Counsel for the appellant. Learned Counsel has stated that certificates from the school, college and university authorities were produced by the appellant right upto 1950 which showed that the appellant was a student till 1950 and after seeing the certificates the Tribunal should not have said - "We were also told etc". According to learned Counsel this showed that the finding of the Tribunal was coloured by prejudice. We are unable to agree. Even if it be taken that the appellant satisfactorily proved that he was a student till 1950, we do not think that it makes any real difference as to the main question at issue, which was whether the appellant received the sum of Rs. 70,000/- from the estate of his mother, later increased by investments to Rs. 87,500/- in 1945. The Tribunal rightly pointed out that no evidence was given of the value of the estate left by the mother, though there was some evidence of what the mother received from the estate of her father Sanjana; nor there any evidence of the investments said to have been made which led to a addition to the original sum of Rs. 70,000/-. It has been argued that it was a mere surmise on the part of the Tribunal to say that in a place like Bombay a person may earn when he learns. Even if the Tribunal is wrong in this respect, we do not think that it is a matter of any consequence.11. We must read the order of the Tribunal as a whole to determine whether every material fact, for and against the assessee, has been considered fairly and with due care; whether the evidence pro and con has been considered in reaching the final conclusion; and whether the conclusion reached by the Tribunal has been coloured by irrelevant considerations or matters of prejudice. Learned Counsel for the appellant has taken us through the entire order of the Tribunal as also the relevant materials on which it is based. Having examined the order of the Tribunal and those materials, we are unable to agree with learned Counsel for the appellant that the order of the Tribunal is vitiated by any of the defects adverted to in 1954-26 ITR 736 : ((S) AIR 1955 SC 271 ) or Omar Salary Mohamed Sait v. Commissioner of Income-tax, Madras, 1959-37 ITR 151 : (AIR 1959 SC 1238 ). We must make it clear that we do not think that those decisions require that the order of the Tribunal must be examined sentence by sentence, through a microscope as it were, so as to discover a minor lapse here or an incautious opinion there to be used as a peg on which to hang an issue of law. In view of the arguments advanced before us it is perhaps necessary to add that in considering probabilities properly arising from the facts alleged or proved, the Tribunal does not indulge in conjectures, surmises or suspicions.12. It has also been argued before us that even if the explanation of the appellant as to the sum of Rs. 87,500/- is not accepted, the Department did not prove by any direct evidence that the amount was income in the hands of the appellant. We do not think that in a case like the one before us the Department was required to prove by direct evidence that the sum of Rs. 87,500/- was income in the hands of the appellant. Indeed, we agree that it is not in all cases that by mere rejection of the explanation of the assessee, the character of a particular receipt as income can be said to have been established; but where the circumstances of the rejection are such that the only proper inference is that the receipt must be treated as income in the hands of the assessee, there is no reason why the assessing authorities should not draw such an inference. Such an inference is an inference of fact and not of law.
### Response:
0
### Explanation:
The argument of learned Counsel for the appellant is that it was not a relevant consideration as to why Phirozeshaw did not hand over the money to Bai Aloo in 1939 or in 1944, and if Bai Aloos statements were to be taken into consideration, they were in favour of the appellant inasmuch as no assessment was made on Bai Aloo in respect of the sum she had received. We do not consider that the circumstances referred to by the Tribunal in connexion with Bai Aloos statement were irrelevant. What the Tribunal had to consider was the correctness or otherwise of a story in which the mother was stated to have left Rs. 2,10,000 out of which the heirs got one-third share each. The Tribunal had to consider each aspect of the story in order to judge of its probability and from that point of view it was relevant consideration as to why Bai Aloos money was not paid when she became major or when she got married. It was also a relevant consideration as to what the father of the appellant did with his share of the money and the Tribunal rightly pointed out that the father took cover under mixing of investments." These were relevant considerations for judging the probability of he story. The Tribunal also rightly pointed out that the fact that Bai Allo was not assessed did not make the story any more probable.The Tribunal stated in its order that a summons was issued to the father by the Income-tax Officer to appear before the latter on June 23,must make it clear that we do not think that those decisions require that the order of the Tribunal must be examined sentence by sentence, through a microscope as it were, so as to discover a minor lapse here or an incautious opinion there to be used as a peg on which to hang an issue of law. In view of the arguments advanced before us it is perhaps necessary to add that in considering probabilities properly arising from the facts alleged or proved, the Tribunal does not indulge in conjectures, surmises or suspicions.12. It has also been argued before us that even if the explanation of the appellant as to the sum of Rs. 87,500/- is not accepted, the Department did not prove by any direct evidence that the amount was income in the hands of the appellant. We do not think that in a case like the one before us the Department was required to prove by direct evidence that the sum of Rs. 87,500/- was income in the hands of the appellant. Indeed, we agree that it is not in all cases that by mere rejection of the explanation of the assessee, the character of a particular receipt as income can be said to have been established; but where the circumstances of the rejection are such that the only proper inference is that the receipt must be treated as income in the hands of the assessee, there is no reason why the assessing authorities should not draw such an inference. Such an inference is an inference of fact and not of law.
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MRS. UMADEVI NAMBIAR Vs. THAMARASSERI ROMAN CATHOLIC DIOCESE REP BY ITS PROCURATOR DEVSSIA?S SON REV. FATHER JOSEPH KAPPIL | ought to have made, or gross negligence, he would have known it. Explanation I-Where any transaction relating to immoveable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub-section (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated: Provided that-- (1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908 (16 of 1908) and the rules made thereunder, (2) the instrument or memorandum has been duly entered or filed, as the case may be, in books kept under section 51 of that Act, and (3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under section 55 of that Act. Explanation II.--Any person acquiring any immoveable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof. Explanation III.--A person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material: Provided that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud. 13. Two things are important for the above interpretation clause to come into effect. They are: (i) wilful abstention from an enquiry or search; and (ii) gross negligence. Explanation I and Explanation II under the above interpretation clause are applicable to the person acquiring an immovable property, the transaction relating to which is required by law to be effected by a registered instrument. The High Court has turned the above interpretation clause upside down and held the Principal in relation to a deed of Power of Attorney, to have had constructive notice in terms of Section 3, of a sale effected by the agent. 14. The reasoning given by the High Court for holding that the appellant ought to have challenged the alienations, is that the appellant was out of possession. Here again, the High Court failed to appreciate that the possession of an agent under a deed of Power of Attorney is also the possession of the Principal and that any unauthorized sale made by the agent will not tantamount to the Principal parting with possession. 15. It is not always necessary for a plaintiff in a suit for partition to seek the cancellation of the alienations. There are several reasons behind this principle. One is that the alienees as well as the co- sharer are still entitled to sustain the alienation to the extent of the share of the co--sharer. It may also be open to the alienee, in the final decree proceedings, to seek the allotment of the transferred property, to the share of the transferor, so that equities are worked out in a fair manner. Therefore, the High Court was wrong in putting against the appellant, her failure to challenge the alienations. 16. The learned counsel for respondent relied upon the decision of this Court in Delhi Development Authority vs. Durga Chand Kaushish (1973) 2 SCC 825, in support of his argument about the rule of interpretation to be adopted while construing Exhibit A--1, the deed of general Power of Attorney. He also relied upon the Judgment of this Court in Syed Abdul Khader vs. Rami Reddy and Others (1979) 2 SCC 601 for driving home the question as to how the deed of Power of Attorney should be construed. 17. We do not know how the ratio laid down in the aforesaid decisions could be applied to the advantage of the respondent. As a matter of plain and simple fact, Exhibit A--1, deed of Power of Attorney did not contain a clause authorizing the agent to sell the property though it contained two express provisions, one for leasing out the property and another for executing necessary documents if a security had to be offered for any borrowal made by the agent. Therefore, by convoluted logic, punctuation marks cannot be made to convey a power of sale. Even the very decision relied upon by the learned counsel for the respondent, makes it clear that ordinarily a Power of Attorney is to be construed strictly by the Court. Neither Ramanatha Aiyars Law Lexicon nor Section 49 of the Registration Act can amplify or magnify the clauses contained in the deed of Power of Attorney. 18. As held by this Court in Church of Christ Charitable Trust and Educational Charitable Society vs. Ponniamman Educational Trust (2012) 8 SCC 706 the document should expressly authorize the agent, (i) to execute a sale deed; (ii) to present it for registration; and (iii) to admit execution before the Registering Authority. 19. It is a fundamental principle of the law of transfer of property that no one can confer a better title than what he himself has (Nemo dat quod non habet). The appellants sister did not have the power to sell the property to the vendors of the respondent. Therefore, the vendors of the respondent could not have derived any valid title to the property. If the vendors of the respondent themselves did not have any title, they had nothing to convey to the respondent, except perhaps the litigation. | 1[ds]9. But we do not agree with the above submissions of the learned counsel for the respondent. It remains a plain and simple fact that the deed of Power of Attorney executed by the appellant on 21.07.1971 in favour of her sister contained provisions empowering the agent: (i) to grant leases under Clause 15; (ii) to make borrowals if and when necessary with or without security, and to execute and if necessary, register all documents in connection therewith, under Clause 20; and (iii) to sign in her own name, documents for and on behalf of the appellant and present them for registration, under Clause 22. But there was no clause in the deed authorizing and empowering the agent to sell the property. The argument that the deed was drafted by a doyen of the Bar, is an argument not in favour of the respondent. This is for the reason that the draftsman has chosen to include, (i) an express power to lease out the property; and (ii) an express power to execute any document offering the property as security for any borrowal, but not an express power to sell the property. Therefore, the draftsman appears to have had clear instructions and he carried out those instructions faithfully. The power to sell is not to be inferred from a document of Power of Attorney. The trial Court as well as the High Court were ad idem on the finding that the document did not confer any power of sale.11. The High Court has held and in our view rightly so, that if the respondent had exercised reasonable care as required by the proviso to Section 41, they could have easily found out that there was no power of sale.12. Unfortunately after finding (i) that the Power of Attorney did not contain authorization to sell; and (ii) that the respondent cannot claim the benefit of Section 41 of the Act, the High Court fell into an error in attributing constructive notice to the appellant in terms of Section 3 of the Act.13. Two things are important for the above interpretation clause to come into effect. They are: (i) wilful abstention from an enquiry or search; and (ii) gross negligence. Explanation I and Explanation II under the above interpretation clause are applicable to the person acquiring an immovable property, the transaction relating to which is required by law to be effected by a registered instrument. The High Court has turned the above interpretation clause upside down and held the Principal in relation to a deed of Power of Attorney, to have had constructive notice in terms of Section 3, of a sale effected by the agent.14. The reasoning given by the High Court for holding that the appellant ought to have challenged the alienations, is that the appellant was out of possession. Here again, the High Court failed to appreciate that the possession of an agent under a deed of Power of Attorney is also the possession of the Principal and that any unauthorized sale made by the agent will not tantamount to the Principal parting with possession.15. It is not always necessary for a plaintiff in a suit for partition to seek the cancellation of the alienations. There are several reasons behind this principle. One is that the alienees as well as the co- sharer are still entitled to sustain the alienation to the extent of the share of the co--sharer. It may also be open to the alienee, in the final decree proceedings, to seek the allotment of the transferred property, to the share of the transferor, so that equities are worked out in a fair manner. Therefore, the High Court was wrong in putting against the appellant, her failure to challenge the alienations.17. We do not know how the ratio laid down in the aforesaid decisions could be applied to the advantage of the respondent. As a matter of plain and simple fact, Exhibit A--1, deed of Power of Attorney did not contain a clause authorizing the agent to sell the property though it contained two express provisions, one for leasing out the property and another for executing necessary documents if a security had to be offered for any borrowal made by the agent. Therefore, by convoluted logic, punctuation marks cannot be made to convey a power of sale. Even the very decision relied upon by the learned counsel for the respondent, makes it clear that ordinarily a Power of Attorney is to be construed strictly by the Court. Neither Ramanatha Aiyars Law Lexicon nor Section 49 of the Registration Act can amplify or magnify the clauses contained in the deed of Power of Attorney.18. As held by this Court in Church of Christ Charitable Trust and Educational Charitable Society vs. Ponniamman Educational Trust (2012) 8 SCC 706 the document should expressly authorize the agent, (i) to execute a sale deed; (ii) to present it for registration; and (iii) to admit execution before the Registering Authority.19. It is a fundamental principle of the law of transfer of property that no one can confer a better title than what he himself has (Nemo dat quod non habet). The appellants sister did not have the power to sell the property to the vendors of the respondent. Therefore, the vendors of the respondent could not have derived any valid title to the property. If the vendors of the respondent themselves did not have any title, they had nothing to convey to the respondent, except perhaps the litigation. | 1 | 2,968 | 1,026 | ### Instruction:
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ought to have made, or gross negligence, he would have known it. Explanation I-Where any transaction relating to immoveable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub-section (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated: Provided that-- (1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908 (16 of 1908) and the rules made thereunder, (2) the instrument or memorandum has been duly entered or filed, as the case may be, in books kept under section 51 of that Act, and (3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under section 55 of that Act. Explanation II.--Any person acquiring any immoveable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof. Explanation III.--A person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material: Provided that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud. 13. Two things are important for the above interpretation clause to come into effect. They are: (i) wilful abstention from an enquiry or search; and (ii) gross negligence. Explanation I and Explanation II under the above interpretation clause are applicable to the person acquiring an immovable property, the transaction relating to which is required by law to be effected by a registered instrument. The High Court has turned the above interpretation clause upside down and held the Principal in relation to a deed of Power of Attorney, to have had constructive notice in terms of Section 3, of a sale effected by the agent. 14. The reasoning given by the High Court for holding that the appellant ought to have challenged the alienations, is that the appellant was out of possession. Here again, the High Court failed to appreciate that the possession of an agent under a deed of Power of Attorney is also the possession of the Principal and that any unauthorized sale made by the agent will not tantamount to the Principal parting with possession. 15. It is not always necessary for a plaintiff in a suit for partition to seek the cancellation of the alienations. There are several reasons behind this principle. One is that the alienees as well as the co- sharer are still entitled to sustain the alienation to the extent of the share of the co--sharer. It may also be open to the alienee, in the final decree proceedings, to seek the allotment of the transferred property, to the share of the transferor, so that equities are worked out in a fair manner. Therefore, the High Court was wrong in putting against the appellant, her failure to challenge the alienations. 16. The learned counsel for respondent relied upon the decision of this Court in Delhi Development Authority vs. Durga Chand Kaushish (1973) 2 SCC 825, in support of his argument about the rule of interpretation to be adopted while construing Exhibit A--1, the deed of general Power of Attorney. He also relied upon the Judgment of this Court in Syed Abdul Khader vs. Rami Reddy and Others (1979) 2 SCC 601 for driving home the question as to how the deed of Power of Attorney should be construed. 17. We do not know how the ratio laid down in the aforesaid decisions could be applied to the advantage of the respondent. As a matter of plain and simple fact, Exhibit A--1, deed of Power of Attorney did not contain a clause authorizing the agent to sell the property though it contained two express provisions, one for leasing out the property and another for executing necessary documents if a security had to be offered for any borrowal made by the agent. Therefore, by convoluted logic, punctuation marks cannot be made to convey a power of sale. Even the very decision relied upon by the learned counsel for the respondent, makes it clear that ordinarily a Power of Attorney is to be construed strictly by the Court. Neither Ramanatha Aiyars Law Lexicon nor Section 49 of the Registration Act can amplify or magnify the clauses contained in the deed of Power of Attorney. 18. As held by this Court in Church of Christ Charitable Trust and Educational Charitable Society vs. Ponniamman Educational Trust (2012) 8 SCC 706 the document should expressly authorize the agent, (i) to execute a sale deed; (ii) to present it for registration; and (iii) to admit execution before the Registering Authority. 19. It is a fundamental principle of the law of transfer of property that no one can confer a better title than what he himself has (Nemo dat quod non habet). The appellants sister did not have the power to sell the property to the vendors of the respondent. Therefore, the vendors of the respondent could not have derived any valid title to the property. If the vendors of the respondent themselves did not have any title, they had nothing to convey to the respondent, except perhaps the litigation.
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9. But we do not agree with the above submissions of the learned counsel for the respondent. It remains a plain and simple fact that the deed of Power of Attorney executed by the appellant on 21.07.1971 in favour of her sister contained provisions empowering the agent: (i) to grant leases under Clause 15; (ii) to make borrowals if and when necessary with or without security, and to execute and if necessary, register all documents in connection therewith, under Clause 20; and (iii) to sign in her own name, documents for and on behalf of the appellant and present them for registration, under Clause 22. But there was no clause in the deed authorizing and empowering the agent to sell the property. The argument that the deed was drafted by a doyen of the Bar, is an argument not in favour of the respondent. This is for the reason that the draftsman has chosen to include, (i) an express power to lease out the property; and (ii) an express power to execute any document offering the property as security for any borrowal, but not an express power to sell the property. Therefore, the draftsman appears to have had clear instructions and he carried out those instructions faithfully. The power to sell is not to be inferred from a document of Power of Attorney. The trial Court as well as the High Court were ad idem on the finding that the document did not confer any power of sale.11. The High Court has held and in our view rightly so, that if the respondent had exercised reasonable care as required by the proviso to Section 41, they could have easily found out that there was no power of sale.12. Unfortunately after finding (i) that the Power of Attorney did not contain authorization to sell; and (ii) that the respondent cannot claim the benefit of Section 41 of the Act, the High Court fell into an error in attributing constructive notice to the appellant in terms of Section 3 of the Act.13. Two things are important for the above interpretation clause to come into effect. They are: (i) wilful abstention from an enquiry or search; and (ii) gross negligence. Explanation I and Explanation II under the above interpretation clause are applicable to the person acquiring an immovable property, the transaction relating to which is required by law to be effected by a registered instrument. The High Court has turned the above interpretation clause upside down and held the Principal in relation to a deed of Power of Attorney, to have had constructive notice in terms of Section 3, of a sale effected by the agent.14. The reasoning given by the High Court for holding that the appellant ought to have challenged the alienations, is that the appellant was out of possession. Here again, the High Court failed to appreciate that the possession of an agent under a deed of Power of Attorney is also the possession of the Principal and that any unauthorized sale made by the agent will not tantamount to the Principal parting with possession.15. It is not always necessary for a plaintiff in a suit for partition to seek the cancellation of the alienations. There are several reasons behind this principle. One is that the alienees as well as the co- sharer are still entitled to sustain the alienation to the extent of the share of the co--sharer. It may also be open to the alienee, in the final decree proceedings, to seek the allotment of the transferred property, to the share of the transferor, so that equities are worked out in a fair manner. Therefore, the High Court was wrong in putting against the appellant, her failure to challenge the alienations.17. We do not know how the ratio laid down in the aforesaid decisions could be applied to the advantage of the respondent. As a matter of plain and simple fact, Exhibit A--1, deed of Power of Attorney did not contain a clause authorizing the agent to sell the property though it contained two express provisions, one for leasing out the property and another for executing necessary documents if a security had to be offered for any borrowal made by the agent. Therefore, by convoluted logic, punctuation marks cannot be made to convey a power of sale. Even the very decision relied upon by the learned counsel for the respondent, makes it clear that ordinarily a Power of Attorney is to be construed strictly by the Court. Neither Ramanatha Aiyars Law Lexicon nor Section 49 of the Registration Act can amplify or magnify the clauses contained in the deed of Power of Attorney.18. As held by this Court in Church of Christ Charitable Trust and Educational Charitable Society vs. Ponniamman Educational Trust (2012) 8 SCC 706 the document should expressly authorize the agent, (i) to execute a sale deed; (ii) to present it for registration; and (iii) to admit execution before the Registering Authority.19. It is a fundamental principle of the law of transfer of property that no one can confer a better title than what he himself has (Nemo dat quod non habet). The appellants sister did not have the power to sell the property to the vendors of the respondent. Therefore, the vendors of the respondent could not have derived any valid title to the property. If the vendors of the respondent themselves did not have any title, they had nothing to convey to the respondent, except perhaps the litigation.
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Nishan Developers & Properties Limited Vs. Commissioner, Sanchaita Investments | 1. On August 4, 1988, this Court on the application made by Nishan Developers Properties Private Limited (hereinafter Nishan for short) and Sanchaita Commissioner and upon hearing Mr. Gobinda Mukhoty for the small depositors made the following orderHeard learned counsel for the petitioner/proposed purchaser. Mr. Gobinda Mukhoty is for the small depositors and Mr. H. K. Puri appears for the Commissioner. We have also perused the terms contained in Schedule A which are the terms of the settlement. We are of the view that the arrangement is the interest of the depositors and would benefit his State. Accordingly the proposal is accepted and the Commissioner is permitted to sell the property strictly in accordance with the terms contained in Schedule A. We are old that an amount of Rs. 2, 62, 500 is paid and the balance of Rs. 7, 87, 500 is undertaken to be paid within six months from the date of settlement. On failure of payment as stipulated the arrangement shall be withdrawn and the money already deposited shall stand forfeited 2. The present application is by two small depositors and they have asked for recalling the order on the allegation that(i) there were pre-existing directions of the nominated Bench of the Calcutta High Court asking the Commissioner to put the property to public auction;(ii) there was a pre-existing offer of Rs. 20 lakhs for the property from one Narayan Karmarkar;(iii) by the time the matter was placed before this Court on August 4, 1988, there was also an application before the nominated Bench fixed for the same day wherein an application for injunction against the alienation which by the impugned order has been sanctioned had been prayed for : and(iv) the effect of the order of the nominated Bench of the Calcutta High Court in regard to the Kaikhali property had not been properly indicated in the application made to this Court 3. This Court evolved a scheme in the Sanchaita matter with a view to protecting the interest of the small depositors. The scheme contemplated the appointment of a commissioner, an Advisory Committee and a nominated Bench the Commissioner with a view to gathering the assets of Sanchaita and converting the same into liquid money to pay up the small depositions to the whole extent of their dues, if possible 4. After Special Leave Petition No. 4372 of 1982 was dismissed possibly the petition for compromise could even have been moved before the nominated Bench itself. When the application registered in CMP No. 22210 of 1988 was placed before this Court, we were not aware of the fact that an offer of Rs. 20 lakhs for the property in question had already been made to the Commissioner; nor were we told that there had been pre-existing directions of the nominated bench that the property could be sold by public auction. We accepted the representation contained in paragraph 8 of Schedule A of the compromise petition to the following effectIt is ordered and declared by the Honble Special Division Bench of the Calcutta high Court that appellant company is the absolute owner is the properties in question situated and laying at Mouza Mondalgathi, J. L. No. 6 R. S. Dag Nos. 247, 478, 470 480 248 471, acre of land on V. I. P. Road Police Station, Rajarhat in the District of 24-Parganas (North) under Sub-Registry Office, BidhannagarWhen the order is now placed, we do not find any categorical declaration as was mentioned in the paragraph5. At the time application was placed for consideration before us Mr. Puri appearing for the Commissioner and Mr. Mukhoty appearing for the small depositors gave us the impression that the arrangement envisaged in the petition was in the best interest of the depositors and we acted upon the submissions made at the Bar and accorded approval to the settlement 6. In the background of what has transpired now, we think it would not be appropriate to entertain the application for sanction the compromise directly in this Court. It is in the fitness of things that the application for acceptance of the settlement should be considered by the nominated Bench of the Calcutta High Court and it should dispose of the same after hearing parties in the backdrop of facts and in accordance with law. There has been no dispute before us nor can there by any that all such steps as are necessary should be taken to protect the interests of the depositors and give effect to the scheme evolved by this Court7. Counsel appearing for Narayan Karamakar has given an undertaking before us that his client and his associates are prepared to offer Rs. 20 lakhs to buy the land with whatever interest Sanchaita has therein and to prove the bona fides of the offer he has deposited with the Registry of this Court a bank draft for a sum of Rs. 5 lakhs. The draft shall be sent by insured post to the Commissioner for being credited to his account to be held as earnest money until final orders are made by the High Court | 1[ds]4. After Special Leave Petition No. 4372 of 1982 was dismissed possibly the petition for compromise could even have been moved before the nominated Bench itself. When the application registered in CMP No. 22210 of 1988 was placed before this Court, we were not aware of the fact that an offer of Rs. 20 lakhs for the property in question had already been made to the Commissioner; nor were we told that there had beendirections of the nominated bench that the property could be sold by public auction. We accepted the representation contained in paragraph 8 of Schedule A of the compromise petition to the following effectIt is ordered and declared by the Honble Special Division Bench of the Calcutta high Court that appellant company is the absolute owner is the properties in question situated and laying at Mouza Mondalgathi, J. L. No. 6 R. S. Dag Nos. 247, 478, 470 480 248 471, acre of land on V. I. P. Road Police Station, Rajarhat in the District oftry Office, BidhannagarWhen the order is now placed, we do not find any categorical declaration as was mentioned in theIn the background of what has transpired now, we think it would not be appropriate to entertain the application for sanction the compromise directly in this Court. It is in the fitness of things that the application for acceptance of the settlement should be considered by the nominated Bench of the Calcutta High Court and it should dispose of the same after hearing parties in the backdrop of facts and in accordance with law. There has been no dispute before us nor can there by any that all such steps as are necessary should be taken to protect the interests of the depositors and give effect to the scheme evolved by this | 1 | 914 | 323 | ### Instruction:
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1. On August 4, 1988, this Court on the application made by Nishan Developers Properties Private Limited (hereinafter Nishan for short) and Sanchaita Commissioner and upon hearing Mr. Gobinda Mukhoty for the small depositors made the following orderHeard learned counsel for the petitioner/proposed purchaser. Mr. Gobinda Mukhoty is for the small depositors and Mr. H. K. Puri appears for the Commissioner. We have also perused the terms contained in Schedule A which are the terms of the settlement. We are of the view that the arrangement is the interest of the depositors and would benefit his State. Accordingly the proposal is accepted and the Commissioner is permitted to sell the property strictly in accordance with the terms contained in Schedule A. We are old that an amount of Rs. 2, 62, 500 is paid and the balance of Rs. 7, 87, 500 is undertaken to be paid within six months from the date of settlement. On failure of payment as stipulated the arrangement shall be withdrawn and the money already deposited shall stand forfeited 2. The present application is by two small depositors and they have asked for recalling the order on the allegation that(i) there were pre-existing directions of the nominated Bench of the Calcutta High Court asking the Commissioner to put the property to public auction;(ii) there was a pre-existing offer of Rs. 20 lakhs for the property from one Narayan Karmarkar;(iii) by the time the matter was placed before this Court on August 4, 1988, there was also an application before the nominated Bench fixed for the same day wherein an application for injunction against the alienation which by the impugned order has been sanctioned had been prayed for : and(iv) the effect of the order of the nominated Bench of the Calcutta High Court in regard to the Kaikhali property had not been properly indicated in the application made to this Court 3. This Court evolved a scheme in the Sanchaita matter with a view to protecting the interest of the small depositors. The scheme contemplated the appointment of a commissioner, an Advisory Committee and a nominated Bench the Commissioner with a view to gathering the assets of Sanchaita and converting the same into liquid money to pay up the small depositions to the whole extent of their dues, if possible 4. After Special Leave Petition No. 4372 of 1982 was dismissed possibly the petition for compromise could even have been moved before the nominated Bench itself. When the application registered in CMP No. 22210 of 1988 was placed before this Court, we were not aware of the fact that an offer of Rs. 20 lakhs for the property in question had already been made to the Commissioner; nor were we told that there had been pre-existing directions of the nominated bench that the property could be sold by public auction. We accepted the representation contained in paragraph 8 of Schedule A of the compromise petition to the following effectIt is ordered and declared by the Honble Special Division Bench of the Calcutta high Court that appellant company is the absolute owner is the properties in question situated and laying at Mouza Mondalgathi, J. L. No. 6 R. S. Dag Nos. 247, 478, 470 480 248 471, acre of land on V. I. P. Road Police Station, Rajarhat in the District of 24-Parganas (North) under Sub-Registry Office, BidhannagarWhen the order is now placed, we do not find any categorical declaration as was mentioned in the paragraph5. At the time application was placed for consideration before us Mr. Puri appearing for the Commissioner and Mr. Mukhoty appearing for the small depositors gave us the impression that the arrangement envisaged in the petition was in the best interest of the depositors and we acted upon the submissions made at the Bar and accorded approval to the settlement 6. In the background of what has transpired now, we think it would not be appropriate to entertain the application for sanction the compromise directly in this Court. It is in the fitness of things that the application for acceptance of the settlement should be considered by the nominated Bench of the Calcutta High Court and it should dispose of the same after hearing parties in the backdrop of facts and in accordance with law. There has been no dispute before us nor can there by any that all such steps as are necessary should be taken to protect the interests of the depositors and give effect to the scheme evolved by this Court7. Counsel appearing for Narayan Karamakar has given an undertaking before us that his client and his associates are prepared to offer Rs. 20 lakhs to buy the land with whatever interest Sanchaita has therein and to prove the bona fides of the offer he has deposited with the Registry of this Court a bank draft for a sum of Rs. 5 lakhs. The draft shall be sent by insured post to the Commissioner for being credited to his account to be held as earnest money until final orders are made by the High Court
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4. After Special Leave Petition No. 4372 of 1982 was dismissed possibly the petition for compromise could even have been moved before the nominated Bench itself. When the application registered in CMP No. 22210 of 1988 was placed before this Court, we were not aware of the fact that an offer of Rs. 20 lakhs for the property in question had already been made to the Commissioner; nor were we told that there had beendirections of the nominated bench that the property could be sold by public auction. We accepted the representation contained in paragraph 8 of Schedule A of the compromise petition to the following effectIt is ordered and declared by the Honble Special Division Bench of the Calcutta high Court that appellant company is the absolute owner is the properties in question situated and laying at Mouza Mondalgathi, J. L. No. 6 R. S. Dag Nos. 247, 478, 470 480 248 471, acre of land on V. I. P. Road Police Station, Rajarhat in the District oftry Office, BidhannagarWhen the order is now placed, we do not find any categorical declaration as was mentioned in theIn the background of what has transpired now, we think it would not be appropriate to entertain the application for sanction the compromise directly in this Court. It is in the fitness of things that the application for acceptance of the settlement should be considered by the nominated Bench of the Calcutta High Court and it should dispose of the same after hearing parties in the backdrop of facts and in accordance with law. There has been no dispute before us nor can there by any that all such steps as are necessary should be taken to protect the interests of the depositors and give effect to the scheme evolved by this
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P. Sivanandi Vs. Rajeev Kumar | of this Court in G. Mohanasundaram v. R. Nanthagopal & Ors., 2014(3) S.C.T. 623 : (2014) 13 SCC 172. 14. In the aforesaid decision, the provisions of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 were under consideration. The relevant provisions are in pari materia with the provisions of the Indian Police Service (Appointment by Promotion) Regulations, 1955.15. It was held by this Court that in terms of the IAS Regulations, the UPSC is obliged to consider the service record of a candidate who is eligible for promotion and it is on the basis of the overall relative assessment of the service record that an eligible officer may be graded. Consequently, it is quite clear that the entire service record of the eligible candidates is required to be sent to the Select Committee for consideration. For this reason, the ACRs of Sivanandi for 1992-93 and for the period 01.04.1993 to 15.07.1993 were required to be considered by the Review Select Committee. Regulation 5 of the Indian Police Service (Appointment by Promotion) Regulations, 1955 reads as follows:-"5. Preparation of list of suitable officers - (1) Each Committee shall ordinarily meet every year and prepare a list of such members of the State Police Service, as held by them to the suitable for promotion to the Service. The number of members of the State Police Service to be included in the list shall be determined by the Central Government in consultation with the State Government concerned, and shall not exceed the number of substantive vacancies as on the first day of January of the year in which the meeting is held, in the posts available for them under Rule 9 of the Recruitment Rules. The date and venue of the meeting of the Committee to make the Selection shall be determined by the Commission:Provided that ...........(2)..............(2-A)..........(3)..............(3-A).........(4) The Selection Committee shall classify the eligible officers as `outstanding `very good `Good or `Unfit as the case may be, on an overall relative assessment of their service records.(5)..........(6).........."16. In the above-cited decision, one of the submissions made by Mohanasundaram in this Court was that the State Government had declared his ACR invalid merely because it had been written beyond the period of nine months. It was submitted that the ACR could not be held invalid in the absence of any limitation prescribed under any rule or guidelines.17. The State of Tamil Nadu sought to rely upon a Government Order (or GO) dated 4th April, 2007 to deny to the candidate the benefit of the ACR written beyond the period of nine months. Although the GO dated 4th April, 2007 was issued after the decision in the impugned judgment and order, the principle laid down by this Court on the interpretation of that GO would be equally applicable and one of the principles so laid down is that the prescription of a period for writing an ACR is not mandatory but directory. That being the position, the ACR of Sivanandi for the period 01.04.1993 to 15.07.1993 could validly have been considered by the Review Select Committee even if it was written after some delay and there was no error in its consideration.18. This is what this Court had to say:"In the guidelines issued by the State Government, there is nothing to declare any annual confidential report invalid. The period of 90 days prescribed therein is not mandatory but directory. The 90 days period is also to be counted from the date of demitting office by the officer who writes the ACR.In view of the discussion above, we hold that in terms of Regulation 5(4) of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 it was incumbent upon the State Government to forward complete service records of all the eligible candidates including the first respondent to UPSC for considering them for promotion to the IAS cadre. Withholding of ACRs of the year 2003-2009 of the first respondent on a wrong presumption that they were invalid, is illegal and fatal in the case of the first respondent towards his appointment to the post of Indian Administrative Service. The aforesaid fact though came to the notice of UPSC which sought clarification from the Government of Tamil Nadu, the State Government misled UPSC which resulted in wrong assessment of service records of the first respondent in violation of Regulation 5(4) read with Regulation 6 of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955."19. That apart, the fact that the ACR of Sivanandi was written and reviewed by his superior authorities after a considerable delay obviously cannot put him to any disadvantage. The writing and review of his ACR was beyond his control and we do not see any rational basis on which Sivanandi could be disadvantaged merely because his superior officers were lax in the discharge of their responsibilities.20. Under these circumstances, we are of the view that the High Court while upholding the view expressed by the Tribunal was in error in concluding that the Review Select Committee could not consider the ACR of Sivanandi for the period 01.04.1993 to 15.07.1993 and to this extent the decision of the High Court is set aside.21. The question that now remains is whether on a consideration of the entire service record Sivanandi was entitled to be promoted to the IPS with the year of allotment as 1991. There is nothing to suggest that the Review Select Committee with the UPSC did not consider the case of Sivanandi for promotion on merit or that the view of the Review Select Committee was perverse in any manner. That being so we do not think it proper to interfere with the decision arrived at by the Review Select Committee with the UPSC on the basis of the service record of Sivanandi more so when it was the submission of the UPSC that what tilted the scales in his favour was his ACR for the period 1992-93 which was earlier missing and which was not taken into consideration on an earlier occasion. | 1[ds]13. It is been brought to our notice by learned counsel for Sivanandi that the issue raised in these appeals is no longer res integra in view of the decision of this Court in G. Mohanasundaram v. R. Nanthagopal & Ors., 2014(3) S.C.T. 623 : (2014) 13 SCC 172. 14. In the aforesaid decision, the provisions of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 were under consideration. The relevant provisions are in pari materia with the provisions of the Indian Police Service (Appointment by Promotion) Regulations, 1955.15. It was held by this Court that in terms of the IAS Regulations, the UPSC is obliged to consider the service record of a candidate who is eligible for promotion and it is on the basis of the overall relative assessment of the service record that an eligible officer may be graded. Consequently, it is quite clear that the entire service record of the eligible candidates is required to be sent to the Select Committee for consideration. For this reason, the ACRs of Sivanandi for 1992-93 and for the period 01.04.1993 to 15.07.1993 were required to be considered by the Review Select Committee.In the above-cited decision, one of the submissions made by Mohanasundaram in this Court was that the State Government had declared his ACR invalid merely because it had been written beyond the period of nine months. It was submitted that the ACR could not be held invalid in the absence of any limitation prescribed under any rule or guidelines.17. The State of Tamil Nadu sought to rely upon a Government Order (or GO) dated 4th April, 2007 to deny to the candidate the benefit of the ACR written beyond the period of nine months. Although the GO dated 4th April, 2007 was issued after the decision in the impugned judgment and order, the principle laid down by this Court on the interpretation of that GO would be equally applicable and one of the principles so laid down is that the prescription of a period for writing an ACR is not mandatory but directory. That being the position, the ACR of Sivanandi for the period 01.04.1993 to 15.07.1993 could validly have been considered by the Review Select Committee even if it was written after some delay and there was no error in its consideration.18. This is what this Court had tothe guidelines issued by the State Government, there is nothing to declare any annual confidential report invalid. The period of 90 days prescribed therein is not mandatory but directory. The 90 days period is also to be counted from the date of demitting office by the officer who writes the ACR.In view of the discussion above, we hold that in terms of Regulation 5(4) of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 it was incumbent upon the State Government to forward complete service records of all the eligible candidates including the first respondent to UPSC for considering them for promotion to the IAS cadre. Withholding of ACRs of the year 2003-2009 of the first respondent on a wrong presumption that they were invalid, is illegal and fatal in the case of the first respondent towards his appointment to the post of Indian Administrative Service. The aforesaid fact though came to the notice of UPSC which sought clarification from the Government of Tamil Nadu, the State Government misled UPSC which resulted in wrong assessment of service records of the first respondent in violation of Regulation 5(4) read with Regulation 6 of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955.That apart, the fact that the ACR of Sivanandi was written and reviewed by his superior authorities after a considerable delay obviously cannot put him to any disadvantage. The writing and review of his ACR was beyond his control and we do not see any rational basis on which Sivanandi could be disadvantaged merely because his superior officers were lax in the discharge of their responsibilities.20. Under these circumstances, we are of the view that the High Court while upholding the view expressed by the Tribunal was in error in concluding that the Review Select Committee could not consider the ACR of Sivanandi for the period 01.04.1993 to 15.07.1993 and to this extent the decision of the High Court is set aside.21. The question that now remains is whether on a consideration of the entire service record Sivanandi was entitled to be promoted to the IPS with the year of allotment as 1991. There is nothing to suggest that the Review Select Committee with the UPSC did not consider the case of Sivanandi for promotion on merit or that the view of the Review Select Committee was perverse in any manner. That being so we do not think it proper to interfere with the decision arrived at by the Review Select Committee with the UPSC on the basis of the service record of Sivanandi more so when it was the submission of the UPSC that what tilted the scales in his favour was his ACR for the period 1992-93 which was earlier missing and which was not taken into consideration on an earlier occasion. | 1 | 2,137 | 923 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
of this Court in G. Mohanasundaram v. R. Nanthagopal & Ors., 2014(3) S.C.T. 623 : (2014) 13 SCC 172. 14. In the aforesaid decision, the provisions of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 were under consideration. The relevant provisions are in pari materia with the provisions of the Indian Police Service (Appointment by Promotion) Regulations, 1955.15. It was held by this Court that in terms of the IAS Regulations, the UPSC is obliged to consider the service record of a candidate who is eligible for promotion and it is on the basis of the overall relative assessment of the service record that an eligible officer may be graded. Consequently, it is quite clear that the entire service record of the eligible candidates is required to be sent to the Select Committee for consideration. For this reason, the ACRs of Sivanandi for 1992-93 and for the period 01.04.1993 to 15.07.1993 were required to be considered by the Review Select Committee. Regulation 5 of the Indian Police Service (Appointment by Promotion) Regulations, 1955 reads as follows:-"5. Preparation of list of suitable officers - (1) Each Committee shall ordinarily meet every year and prepare a list of such members of the State Police Service, as held by them to the suitable for promotion to the Service. The number of members of the State Police Service to be included in the list shall be determined by the Central Government in consultation with the State Government concerned, and shall not exceed the number of substantive vacancies as on the first day of January of the year in which the meeting is held, in the posts available for them under Rule 9 of the Recruitment Rules. The date and venue of the meeting of the Committee to make the Selection shall be determined by the Commission:Provided that ...........(2)..............(2-A)..........(3)..............(3-A).........(4) The Selection Committee shall classify the eligible officers as `outstanding `very good `Good or `Unfit as the case may be, on an overall relative assessment of their service records.(5)..........(6).........."16. In the above-cited decision, one of the submissions made by Mohanasundaram in this Court was that the State Government had declared his ACR invalid merely because it had been written beyond the period of nine months. It was submitted that the ACR could not be held invalid in the absence of any limitation prescribed under any rule or guidelines.17. The State of Tamil Nadu sought to rely upon a Government Order (or GO) dated 4th April, 2007 to deny to the candidate the benefit of the ACR written beyond the period of nine months. Although the GO dated 4th April, 2007 was issued after the decision in the impugned judgment and order, the principle laid down by this Court on the interpretation of that GO would be equally applicable and one of the principles so laid down is that the prescription of a period for writing an ACR is not mandatory but directory. That being the position, the ACR of Sivanandi for the period 01.04.1993 to 15.07.1993 could validly have been considered by the Review Select Committee even if it was written after some delay and there was no error in its consideration.18. This is what this Court had to say:"In the guidelines issued by the State Government, there is nothing to declare any annual confidential report invalid. The period of 90 days prescribed therein is not mandatory but directory. The 90 days period is also to be counted from the date of demitting office by the officer who writes the ACR.In view of the discussion above, we hold that in terms of Regulation 5(4) of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 it was incumbent upon the State Government to forward complete service records of all the eligible candidates including the first respondent to UPSC for considering them for promotion to the IAS cadre. Withholding of ACRs of the year 2003-2009 of the first respondent on a wrong presumption that they were invalid, is illegal and fatal in the case of the first respondent towards his appointment to the post of Indian Administrative Service. The aforesaid fact though came to the notice of UPSC which sought clarification from the Government of Tamil Nadu, the State Government misled UPSC which resulted in wrong assessment of service records of the first respondent in violation of Regulation 5(4) read with Regulation 6 of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955."19. That apart, the fact that the ACR of Sivanandi was written and reviewed by his superior authorities after a considerable delay obviously cannot put him to any disadvantage. The writing and review of his ACR was beyond his control and we do not see any rational basis on which Sivanandi could be disadvantaged merely because his superior officers were lax in the discharge of their responsibilities.20. Under these circumstances, we are of the view that the High Court while upholding the view expressed by the Tribunal was in error in concluding that the Review Select Committee could not consider the ACR of Sivanandi for the period 01.04.1993 to 15.07.1993 and to this extent the decision of the High Court is set aside.21. The question that now remains is whether on a consideration of the entire service record Sivanandi was entitled to be promoted to the IPS with the year of allotment as 1991. There is nothing to suggest that the Review Select Committee with the UPSC did not consider the case of Sivanandi for promotion on merit or that the view of the Review Select Committee was perverse in any manner. That being so we do not think it proper to interfere with the decision arrived at by the Review Select Committee with the UPSC on the basis of the service record of Sivanandi more so when it was the submission of the UPSC that what tilted the scales in his favour was his ACR for the period 1992-93 which was earlier missing and which was not taken into consideration on an earlier occasion.
### Response:
1
### Explanation:
13. It is been brought to our notice by learned counsel for Sivanandi that the issue raised in these appeals is no longer res integra in view of the decision of this Court in G. Mohanasundaram v. R. Nanthagopal & Ors., 2014(3) S.C.T. 623 : (2014) 13 SCC 172. 14. In the aforesaid decision, the provisions of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 were under consideration. The relevant provisions are in pari materia with the provisions of the Indian Police Service (Appointment by Promotion) Regulations, 1955.15. It was held by this Court that in terms of the IAS Regulations, the UPSC is obliged to consider the service record of a candidate who is eligible for promotion and it is on the basis of the overall relative assessment of the service record that an eligible officer may be graded. Consequently, it is quite clear that the entire service record of the eligible candidates is required to be sent to the Select Committee for consideration. For this reason, the ACRs of Sivanandi for 1992-93 and for the period 01.04.1993 to 15.07.1993 were required to be considered by the Review Select Committee.In the above-cited decision, one of the submissions made by Mohanasundaram in this Court was that the State Government had declared his ACR invalid merely because it had been written beyond the period of nine months. It was submitted that the ACR could not be held invalid in the absence of any limitation prescribed under any rule or guidelines.17. The State of Tamil Nadu sought to rely upon a Government Order (or GO) dated 4th April, 2007 to deny to the candidate the benefit of the ACR written beyond the period of nine months. Although the GO dated 4th April, 2007 was issued after the decision in the impugned judgment and order, the principle laid down by this Court on the interpretation of that GO would be equally applicable and one of the principles so laid down is that the prescription of a period for writing an ACR is not mandatory but directory. That being the position, the ACR of Sivanandi for the period 01.04.1993 to 15.07.1993 could validly have been considered by the Review Select Committee even if it was written after some delay and there was no error in its consideration.18. This is what this Court had tothe guidelines issued by the State Government, there is nothing to declare any annual confidential report invalid. The period of 90 days prescribed therein is not mandatory but directory. The 90 days period is also to be counted from the date of demitting office by the officer who writes the ACR.In view of the discussion above, we hold that in terms of Regulation 5(4) of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 it was incumbent upon the State Government to forward complete service records of all the eligible candidates including the first respondent to UPSC for considering them for promotion to the IAS cadre. Withholding of ACRs of the year 2003-2009 of the first respondent on a wrong presumption that they were invalid, is illegal and fatal in the case of the first respondent towards his appointment to the post of Indian Administrative Service. The aforesaid fact though came to the notice of UPSC which sought clarification from the Government of Tamil Nadu, the State Government misled UPSC which resulted in wrong assessment of service records of the first respondent in violation of Regulation 5(4) read with Regulation 6 of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955.That apart, the fact that the ACR of Sivanandi was written and reviewed by his superior authorities after a considerable delay obviously cannot put him to any disadvantage. The writing and review of his ACR was beyond his control and we do not see any rational basis on which Sivanandi could be disadvantaged merely because his superior officers were lax in the discharge of their responsibilities.20. Under these circumstances, we are of the view that the High Court while upholding the view expressed by the Tribunal was in error in concluding that the Review Select Committee could not consider the ACR of Sivanandi for the period 01.04.1993 to 15.07.1993 and to this extent the decision of the High Court is set aside.21. The question that now remains is whether on a consideration of the entire service record Sivanandi was entitled to be promoted to the IPS with the year of allotment as 1991. There is nothing to suggest that the Review Select Committee with the UPSC did not consider the case of Sivanandi for promotion on merit or that the view of the Review Select Committee was perverse in any manner. That being so we do not think it proper to interfere with the decision arrived at by the Review Select Committee with the UPSC on the basis of the service record of Sivanandi more so when it was the submission of the UPSC that what tilted the scales in his favour was his ACR for the period 1992-93 which was earlier missing and which was not taken into consideration on an earlier occasion.
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Novartis India Ltd Vs. State Of West Bengal | company was valid. The answer to the said issue was answered in the negative. It had attained finality. We have also noticed hereinbefore that there did not exist any justifiable reason as to why such a post haste decision was taken. 36. The workmen had pleaded that they remained unemployed. They stated so in their respective depositions. The fact that they survived and did not die of starvation itself could not be a ground for denying back wages to them. Even an unemployed person has a right to survive. He may survive on his past savings. He may beg or borrow but so long as he has not been employed, back wages, subject to just exceptions, should not be denied. An award of reinstatement in service was denied to them only because in the meanwhile, they attained their age of superannuation. 37. Back wages in a situation of this nature had to be granted to respondents by way of compensation. If the principle of grant of compensation in a case of this nature is to be applied, indisputably having regard to the fact situation obtaining herein, namely, that they were doing a specialized job and were to reach their age of superannuation within a few years, grant of back wages was the only relief which could have been granted. It was furthermore not expected that they would get an alternative employment as they were superannuated. Burden of proof was undoubtedly upon the workmen. The said burden, however, was a negative one. Once they discharged their burden by deposing before the Tribunal, it shifted to the employer to show that their contention that they had not been employed, was incorrect. No witness was examined on behalf of the employer. Even there was no pleading in that behalf. 38. Respondents were in private employment and not in public employment. Their services were permanent in nature. The termination of their services was held to be illegal as prior to issuance of the orders, no enquiry had been conducted. The order of discharge was, thus, void ab initio. Back wages, therefore, could have been granted from the date of termination of service. 39. In Nicks (India) Tools v. Ram Surat [(2004) 8 SCC 222] , this Court held: "19. Reliance placed by the learned counsel for the appellant on the case of P.G.I. of Medical Education & Research in our opinion, does not take the case of the appellant any further. In that case, this Court held that the Labour Court being the final court of facts the superior courts do not normally interfere with such findings of fact unless the said finding of fact is perverse or erroneous or not in accordance with law. In the instant case, we have already noticed that the basic ground on which the Labour Court reduced the back wages was based on a judgment of the High Court of Punjab and Haryana which, as further noticed by us, was overruled by a subsequent judgment of a Division Bench. Therefore, the very foundation of the conclusion of the Labour Court having been destroyed, the appellant could not derive any support from the above cited judgments of that Court. Similarly, in the case of M.P. SEB this Court only said that it is not an inevitable conclusion that every time a reinstatement is ordered, full back wages was the only consequence. This Court, in our opinion, did not conclude that even in cases where full back wages are legally due, the superior courts are precluded from doing so merely because the Labour Court has on an erroneous ground reduced such back wages. In the instant case, we have noticed that the trial court apart from generally observing that in Ludhiana, there must have been job opportunities available, on facts it did not rely upon any particular material to hold that either such job was in fact available to the respondent and he refused to accept the same or he was otherwise gainfully employed during the period he was kept out of work. On the contrary, it is for the first time before the writ court the appellant tried to produce additional evidence which was rightly not considered by the High Court because the same was not brought on record in a manner known to law. Be that as it may, in the instant case we are satisfied that the High Court was justified in coming to the conclusion that the appellant is entitled to full back wages." {See also Jasbir Singh v. Punjab & Sind Bank & Ors. [(2007) 1 SCC 566] . 40. In Madhya Pradesh Administration v. Tribhuvan [(2007) 9 SCC 748] , while reiterating the principle relating to grant of back wages in some of the decisions to which we had adverted to, this Court opined that the court should consider each case on its own merits. So far as the issue that the orders of transfer were not in question, in the case of the parties themselves in Bikash Bhushan Ghosh (supra), it was observed that the orders of transfer were not in issue before the Tribunal. 41. There is another aspect of the matter which cannot be lost sight of. The Industrial Court had directed calculation of back wages on the last pay drawn. Its attention, however, was not drawn to the fact that in the mean time revision in wages had taken place. On the date of their superannuation, they were entitled to a much higher pay as the revision in wages had taken place to which the workman were entitled to. In view of the fact that the same attained finality, this Court is not inclined to exercise its jurisdiction under Article 142 of the Constitution of India for the purpose directing payment of back wages on the basis of revised scale of pay and, thus, it will not be fit and proper to interfere with the impugned judgment while noticing the law in this behalf. 42. For the reasons aforementioned, the | 0[ds]Back wages in a situation of this nature had to be granted to respondents by way of compensation. If the principle of grant of compensation in a case of this nature is to be applied, indisputably having regard to the fact situation obtaining herein, namely, that they were doing a specialized job and were to reach their age of superannuation within a few years, grant of back wages was the only relief which could have been granted. It was furthermore not expected that they would get an alternative employment as they were superannuated. Burden of proof was undoubtedly upon the workmen. The said burden, however, was a negative one. Once they discharged their burden by deposing before the Tribunal, it shifted to the employer to show that their contention that they had not been employed, was incorrect. No witness was examined on behalf of the employer. Even there was no pleading in thatwere in private employment and not in public employment. Their services were permanent in nature. The termination of their services was held to be illegal as prior to issuance of the orders, no enquiry had been conducted. The order of discharge was, thus, void ab initio. Back wages, therefore, could have been granted from the date of termination ofIndustrial Court had directed calculation of back wages on the last pay drawn. Its attention, however, was not drawn to the fact that in the mean time revision in wages had taken place. On the date of their superannuation, they were entitled to a much higher pay as the revision in wages had taken place to which the workman were entitled to. In view of the fact that the same attained finality, this Court is not inclined to exercise its jurisdiction under Article 142 of the Constitution of India for the purpose directing payment of back wages on the basis of revised scale of pay and, thus, it will not be fit and proper to interfere with the impugned judgment while noticing the law in this behalf. | 0 | 6,810 | 375 | ### 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:
company was valid. The answer to the said issue was answered in the negative. It had attained finality. We have also noticed hereinbefore that there did not exist any justifiable reason as to why such a post haste decision was taken. 36. The workmen had pleaded that they remained unemployed. They stated so in their respective depositions. The fact that they survived and did not die of starvation itself could not be a ground for denying back wages to them. Even an unemployed person has a right to survive. He may survive on his past savings. He may beg or borrow but so long as he has not been employed, back wages, subject to just exceptions, should not be denied. An award of reinstatement in service was denied to them only because in the meanwhile, they attained their age of superannuation. 37. Back wages in a situation of this nature had to be granted to respondents by way of compensation. If the principle of grant of compensation in a case of this nature is to be applied, indisputably having regard to the fact situation obtaining herein, namely, that they were doing a specialized job and were to reach their age of superannuation within a few years, grant of back wages was the only relief which could have been granted. It was furthermore not expected that they would get an alternative employment as they were superannuated. Burden of proof was undoubtedly upon the workmen. The said burden, however, was a negative one. Once they discharged their burden by deposing before the Tribunal, it shifted to the employer to show that their contention that they had not been employed, was incorrect. No witness was examined on behalf of the employer. Even there was no pleading in that behalf. 38. Respondents were in private employment and not in public employment. Their services were permanent in nature. The termination of their services was held to be illegal as prior to issuance of the orders, no enquiry had been conducted. The order of discharge was, thus, void ab initio. Back wages, therefore, could have been granted from the date of termination of service. 39. In Nicks (India) Tools v. Ram Surat [(2004) 8 SCC 222] , this Court held: "19. Reliance placed by the learned counsel for the appellant on the case of P.G.I. of Medical Education & Research in our opinion, does not take the case of the appellant any further. In that case, this Court held that the Labour Court being the final court of facts the superior courts do not normally interfere with such findings of fact unless the said finding of fact is perverse or erroneous or not in accordance with law. In the instant case, we have already noticed that the basic ground on which the Labour Court reduced the back wages was based on a judgment of the High Court of Punjab and Haryana which, as further noticed by us, was overruled by a subsequent judgment of a Division Bench. Therefore, the very foundation of the conclusion of the Labour Court having been destroyed, the appellant could not derive any support from the above cited judgments of that Court. Similarly, in the case of M.P. SEB this Court only said that it is not an inevitable conclusion that every time a reinstatement is ordered, full back wages was the only consequence. This Court, in our opinion, did not conclude that even in cases where full back wages are legally due, the superior courts are precluded from doing so merely because the Labour Court has on an erroneous ground reduced such back wages. In the instant case, we have noticed that the trial court apart from generally observing that in Ludhiana, there must have been job opportunities available, on facts it did not rely upon any particular material to hold that either such job was in fact available to the respondent and he refused to accept the same or he was otherwise gainfully employed during the period he was kept out of work. On the contrary, it is for the first time before the writ court the appellant tried to produce additional evidence which was rightly not considered by the High Court because the same was not brought on record in a manner known to law. Be that as it may, in the instant case we are satisfied that the High Court was justified in coming to the conclusion that the appellant is entitled to full back wages." {See also Jasbir Singh v. Punjab & Sind Bank & Ors. [(2007) 1 SCC 566] . 40. In Madhya Pradesh Administration v. Tribhuvan [(2007) 9 SCC 748] , while reiterating the principle relating to grant of back wages in some of the decisions to which we had adverted to, this Court opined that the court should consider each case on its own merits. So far as the issue that the orders of transfer were not in question, in the case of the parties themselves in Bikash Bhushan Ghosh (supra), it was observed that the orders of transfer were not in issue before the Tribunal. 41. There is another aspect of the matter which cannot be lost sight of. The Industrial Court had directed calculation of back wages on the last pay drawn. Its attention, however, was not drawn to the fact that in the mean time revision in wages had taken place. On the date of their superannuation, they were entitled to a much higher pay as the revision in wages had taken place to which the workman were entitled to. In view of the fact that the same attained finality, this Court is not inclined to exercise its jurisdiction under Article 142 of the Constitution of India for the purpose directing payment of back wages on the basis of revised scale of pay and, thus, it will not be fit and proper to interfere with the impugned judgment while noticing the law in this behalf. 42. For the reasons aforementioned, the
### Response:
0
### Explanation:
Back wages in a situation of this nature had to be granted to respondents by way of compensation. If the principle of grant of compensation in a case of this nature is to be applied, indisputably having regard to the fact situation obtaining herein, namely, that they were doing a specialized job and were to reach their age of superannuation within a few years, grant of back wages was the only relief which could have been granted. It was furthermore not expected that they would get an alternative employment as they were superannuated. Burden of proof was undoubtedly upon the workmen. The said burden, however, was a negative one. Once they discharged their burden by deposing before the Tribunal, it shifted to the employer to show that their contention that they had not been employed, was incorrect. No witness was examined on behalf of the employer. Even there was no pleading in thatwere in private employment and not in public employment. Their services were permanent in nature. The termination of their services was held to be illegal as prior to issuance of the orders, no enquiry had been conducted. The order of discharge was, thus, void ab initio. Back wages, therefore, could have been granted from the date of termination ofIndustrial Court had directed calculation of back wages on the last pay drawn. Its attention, however, was not drawn to the fact that in the mean time revision in wages had taken place. On the date of their superannuation, they were entitled to a much higher pay as the revision in wages had taken place to which the workman were entitled to. In view of the fact that the same attained finality, this Court is not inclined to exercise its jurisdiction under Article 142 of the Constitution of India for the purpose directing payment of back wages on the basis of revised scale of pay and, thus, it will not be fit and proper to interfere with the impugned judgment while noticing the law in this behalf.
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Chackolas Spinning and Weaving Mills Ltd Vs. Commissioner of Central Excise, Cochin | 1. The only question of law involved in these appeals is as to whether the provision of Rule 6(b)(ii) of the Central Excise (Valuation) Rules, 1975 (hereinafter referred to as “the Valuation Rules”) are applicable to the case at hand or not. 2. The facts in brief are as follows: The appellant company is engaged in the manufacture of cotton yarn, woven fabrics of cotton, staple fibre yarn and woven fabrics falling under Central Excise tariff headings 5205, 5209, 5510 and 5514 respectively of the Schedule to the Central Excise Tariff Act. The products manufactured by the appellant are leviable to payment of excise duty. The appellant has filed declaration in this behalf with the excise department. It is the admitted case of the appellant that the appellant has been captively using certain counts of yarn produced by them in the manufacture of unprocessed fabrics, which were exempted from the payment of duty. Since the yarn was not sold by the appellant but was consumed captively in the manufacture of fabrics, the question of valuation thereof arises while determining the excise duty that was payable on the manufacture of yarn. The respondent-excise department valued the same by applying the provision of Rule 6(b) (ii) of the Valuation Rules. 3. The relevant provisions of this Rule, as it existed, at the relevant time reads as under:- “6(b) where the excisable goods are not sold by the assessee but are used or consumed by him or on his behalf in the production or manufacture of other articles, the value shall be based-(i) on the value of comparable goods produced or manufactured by the assessee or any other assessee....(ii) if the value cannot be determined under sub-clause (i), on the cost of production or manufacture including profits, if any, which the assessee would have normally earned on the sale of such goods.” 4. As pointed out above, the yarn has been captively consumed by the appellant. In the production/manufacture of unprocessed fabrics, Rule 6(b)(ii) directly applies to such cases where the excisable goods are not sold but are used or consumed captively. Under clause (i) of Rule 6(b), the value is to be based on the value of comparable goods produced or manufactured by the assessee or any other assessee. Since there was no such commodity or material available to show the value of any chargeable goods, the case was covered under sub-rule (ii) of Rule 6(b). That is, thus, the only provision under which the value could be determined. The only statement of the appellant is that since it was incurring losses in the production of yarn in the previous year it did not include any notional profit while dealing with price of goods under Rule 6(b)(ii) by the Department. That cannot be accepted inasmuch as sub-clause (ii) of Rule 6(b) does not deal with the situation where profits should be actually earned which is clear from the language “which the assessee would have normally earned on the sale of such goods”. Thus, the notional profits could be taken into consideration and added while arriving at the value of captive material. This is exactly the exercise that was undertaken by the Department and has been upheld by the CESTAT. We may point out that ten per cent notional profit was added which has been found to be reasonable by the CESTAT relying upon the judgment in Union Carbide India Ltd. vs. CCE, Calcutta [2003 (158) ELT 15 ]. We thus do not find any error in the impugned order passed by the CESTAT. | 0[ds]4. As pointed out above, the yarn has been captively consumed by the appellant. In the production/manufacture of unprocessed fabrics, Rule 6(b)(ii) directly applies to such cases where the excisable goods are not sold but are used or consumed captively. Under clause (i) of Rule 6(b), the value is to be based on the value of comparable goods produced or manufactured by the assessee or any other assessee. Since there was no such commodity or material available to show the value of any chargeable goods, the case was covered under(ii) of Rule 6(b). That is, thus, the only provision under which the value could be determined. The only statement of the appellant is that since it was incurring losses in the production of yarn in the previous year it did not include any notional profit while dealing with price of goods under Rule 6(b)(ii) by the Department. That cannot be accepted inasmuch as(ii) of Rule 6(b) does not deal with the situation where profits should be actually earned which is clear from the languagethe assessee would have normally earned on the sale of suchThus, the notional profits could be taken into consideration and added while arriving at the value of captive material. This is exactly the exercise that was undertaken by the Department and has been upheld by the CESTAT. We may point out that ten per cent notional profit was added which has been found to be reasonable by the CESTAT relying upon the judgment in Union Carbide India Ltd. vs. CCE, Calcutta [2003 (158) ELT 15 ]. We thus do not find any error in the impugned order passed by the CESTAT. | 0 | 702 | 330 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
1. The only question of law involved in these appeals is as to whether the provision of Rule 6(b)(ii) of the Central Excise (Valuation) Rules, 1975 (hereinafter referred to as “the Valuation Rules”) are applicable to the case at hand or not. 2. The facts in brief are as follows: The appellant company is engaged in the manufacture of cotton yarn, woven fabrics of cotton, staple fibre yarn and woven fabrics falling under Central Excise tariff headings 5205, 5209, 5510 and 5514 respectively of the Schedule to the Central Excise Tariff Act. The products manufactured by the appellant are leviable to payment of excise duty. The appellant has filed declaration in this behalf with the excise department. It is the admitted case of the appellant that the appellant has been captively using certain counts of yarn produced by them in the manufacture of unprocessed fabrics, which were exempted from the payment of duty. Since the yarn was not sold by the appellant but was consumed captively in the manufacture of fabrics, the question of valuation thereof arises while determining the excise duty that was payable on the manufacture of yarn. The respondent-excise department valued the same by applying the provision of Rule 6(b) (ii) of the Valuation Rules. 3. The relevant provisions of this Rule, as it existed, at the relevant time reads as under:- “6(b) where the excisable goods are not sold by the assessee but are used or consumed by him or on his behalf in the production or manufacture of other articles, the value shall be based-(i) on the value of comparable goods produced or manufactured by the assessee or any other assessee....(ii) if the value cannot be determined under sub-clause (i), on the cost of production or manufacture including profits, if any, which the assessee would have normally earned on the sale of such goods.” 4. As pointed out above, the yarn has been captively consumed by the appellant. In the production/manufacture of unprocessed fabrics, Rule 6(b)(ii) directly applies to such cases where the excisable goods are not sold but are used or consumed captively. Under clause (i) of Rule 6(b), the value is to be based on the value of comparable goods produced or manufactured by the assessee or any other assessee. Since there was no such commodity or material available to show the value of any chargeable goods, the case was covered under sub-rule (ii) of Rule 6(b). That is, thus, the only provision under which the value could be determined. The only statement of the appellant is that since it was incurring losses in the production of yarn in the previous year it did not include any notional profit while dealing with price of goods under Rule 6(b)(ii) by the Department. That cannot be accepted inasmuch as sub-clause (ii) of Rule 6(b) does not deal with the situation where profits should be actually earned which is clear from the language “which the assessee would have normally earned on the sale of such goods”. Thus, the notional profits could be taken into consideration and added while arriving at the value of captive material. This is exactly the exercise that was undertaken by the Department and has been upheld by the CESTAT. We may point out that ten per cent notional profit was added which has been found to be reasonable by the CESTAT relying upon the judgment in Union Carbide India Ltd. vs. CCE, Calcutta [2003 (158) ELT 15 ]. We thus do not find any error in the impugned order passed by the CESTAT.
### Response:
0
### Explanation:
4. As pointed out above, the yarn has been captively consumed by the appellant. In the production/manufacture of unprocessed fabrics, Rule 6(b)(ii) directly applies to such cases where the excisable goods are not sold but are used or consumed captively. Under clause (i) of Rule 6(b), the value is to be based on the value of comparable goods produced or manufactured by the assessee or any other assessee. Since there was no such commodity or material available to show the value of any chargeable goods, the case was covered under(ii) of Rule 6(b). That is, thus, the only provision under which the value could be determined. The only statement of the appellant is that since it was incurring losses in the production of yarn in the previous year it did not include any notional profit while dealing with price of goods under Rule 6(b)(ii) by the Department. That cannot be accepted inasmuch as(ii) of Rule 6(b) does not deal with the situation where profits should be actually earned which is clear from the languagethe assessee would have normally earned on the sale of suchThus, the notional profits could be taken into consideration and added while arriving at the value of captive material. This is exactly the exercise that was undertaken by the Department and has been upheld by the CESTAT. We may point out that ten per cent notional profit was added which has been found to be reasonable by the CESTAT relying upon the judgment in Union Carbide India Ltd. vs. CCE, Calcutta [2003 (158) ELT 15 ]. We thus do not find any error in the impugned order passed by the CESTAT.
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Dwarampudi Nagaratnamba Vs. Kunuku Ramayya & Another | joint family. In 1947 after the execution of Exts. A-1 and A-2 there was a disruption of the joint family and a severance of the joint status between Venkatacharyulu and his sons. In 1954 his widow and sons instituted O. S. No. 12 of 1954 against the appellant for recovery of possession of the properties alleging that the documents dated April 15, 1946, were executed without consideration or for immoral purposes, and were void. The appellant instituted against his widow and sons O. S. No. 63 of 1954, asking for general partition of the joint family properties and for allotment to her of the properties conveyed by the two deeds. She also instituted O. S. No. 62 of 1954 against one of his sons and another person asking for damages and mesne profits for wrongful trespass on the properties. The trial Court dismissed O. S. No. 12 of 1954 and O. S. No. 62 of 1954 and decreed O. S. No. 63 of 1954. From these decrees appeals were preferred in the High Court of Andhra Pradesh. The High Court confirmed the decree in O. S. No. 62/54, allowed the two other appeals, dismissed O. S. No. 63/54 and decreed O. S. No. 12/54 the decree for possession in respect of the properties covered by Ex. A-1 being conditional on payment by the respondents of the value of improvements made by the appellant to the properties. From the decrees passed by the High Court, the present appeals have been filed by special leave. 2. The High Court found that the transfers under Ex. A-1 and Ex. A-2 were not supported by any consideration by way of cash or delivery of jewels. This finding is not challenged before us. The High Court held that the transfers were made by Venkatacharyulu in favour of the appellant in view of past illicit cohabitation with her such past cohabitation was the motive and not the consideration for the transfers and the two deeds though ostensibly sale deeds, were in reality gift deeds. It held that Venkatacharyulu had no power to make a gift of the joint family properties, the two deeds were invalid and the subsequent severance of joint status in 1947 could not validate them. 3. In this Court, it is common case that future illicit cohabitation was not the object or the consideration for the transfers under Ex. A-1 and Ex. A-2. The appellant contends that Venkatacharyulu agreed to make the transfers in consideration of past cohabitation, having regard to Section 2 (d) of the Indian Contract Act, 1872, her past service was a valuable consideration and Venkatacharyulu was competent to alienate for value his undivided interest in the coparcenary properties. The respondents contend that the transfers where by way of gifts and not in consideration of the past cohabitation, and Venkatacharyulu was not competent to make a gift of the coparcenary properties. In the alternative, the respondents contend that assuming that the transfers were made in consideration of past cohabitation, they were hit by Section 6 (h) of the Transfer of Property Act, 1882. 4. Our findings are as follows :-Venkatacharyulu and the appellant were parties to an illicit intercourse. The two agreed to cohabit. Pursuant to the agreement each rendered services to the other.Her services were given in exchange for his promise under which she obtained similar services. In lieu of her services, he promised to give his services only and not his properties. Having once operated as the consideration for his earlier promise, her past services could not be treated under Section 2 (d) of the Indian Contract Act as a subsisting consideration for his subsequent promise to transfer the properties to her. The past cohabitation was the motive and not the consideration for the transfers under Exts. A-1 and A-2.The transfers were without consideration and were by way of gifts. The gifts were not hit by S. 6 (h) of the Transfer of Property Act, by reason of the fact that they were motivated by a desire to compensate the concubine for her past services. 5. In Balo v. Parbati, ILR (1940) All 371: (AIR 1940 All 385 ) the Court held that the assignment of mortgagees rights to a woman in consideration of past cohabitation was not hit by Section 6 (h) of the Transfer of Property Act and was valid. Properly speaking, the past cohabitation was the motive and not the consideration for the assignment. The assignment was without consideration by way of gift and as such was not hit by S. 6 (h). In Istak Kamu v. Ranchhod Zipru, ILR (1947) Bom 206 at p. 217 (AIR 1947 Bom 198 at p. 202) the Court rightly held that past cohabitation was the motive for the gift under Exhibit 186, and the gift was valid but in holding that the promises to make the gifts under other exhibits were made in consideration of past illicit cohabitation and consequently those gifts were invalid, the Court seems to have too readily assumed that past cohabitation was the consideration for the subsequent promises. 6. Venkatacharyulu was free to make a gift of his own property to his concubine. The gifts under Exts. A-1 and A-2 were not hit by S. 6 (h) of the Transfer of Property Act.But the properties gifted under Exs. A-1 and A-2 were coparcenary properties. Under the Madras school of Mitakshara law by which Venkatacharyulu was governed, he had no power to make a gift of even his undivided interest in the coparcenary properties to his concubine. The gifts were therefore invalid. 7. The invalid gifts were not validated by the disruption of the joint family in 1947.After the disruption of the joint family, Venkatacharyulu was free to make a gift of his divided interest in the coparcenary properties to the appellant, but he did not make any such gift. The transfers under Exts. A-1 and A-2 were and are invalid. We find no ground for interfering with the decrees passed by the High Court. | 0[ds]4. Our findings are as follows :-Venkatacharyulu and the appellant were parties to an illicit intercourse. The two agreed to cohabit. Pursuant to the agreement each rendered services to the other.Her services were given in exchange for his promise under which she obtained similar services. In lieu of her services, he promised to give his services only and not his properties. Having once operated as the consideration for his earlier promise, her past services could not be treated under Section 2 (d) of the Indian Contract Act as a subsisting consideration for his subsequent promise to transfer the properties to her. The past cohabitation was the motive and not the consideration for the transfers under Exts. A-1 and A-2.The transfers were without consideration and were by way of gifts. The gifts were not hit by S. 6 (h) of the Transfer of Property Act, by reason of the fact that they were motivated by a desire to compensate the concubine for her past service6. Venkatacharyulu was free to make a gift of his own property to his concubine. The gifts under Exts. A-1 and A-2 were not hit by S. 6 (h) of the Transfer of Property Act.But the properties gifted under Exs. A-1 and A-2 were coparcenary properties. Under the Madras school of Mitakshara law by which Venkatacharyulu was governed, he had no power to make a gift of even his undivided interest in the coparcenary properties to his concubine. The gifts were therefore invalid7. The invalid gifts were not validated by the disruption of the joint family in 1947.After the disruption of the joint family, Venkatacharyulu was free to make a gift of his divided interest in the coparcenary properties to the appellant, but he did not make any such gift. The transfers under Exts. A-1 and A-2 were and are invalid. We find no ground for interfering with the decrees passed by the High Court. | 0 | 1,183 | 354 | ### 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:
joint family. In 1947 after the execution of Exts. A-1 and A-2 there was a disruption of the joint family and a severance of the joint status between Venkatacharyulu and his sons. In 1954 his widow and sons instituted O. S. No. 12 of 1954 against the appellant for recovery of possession of the properties alleging that the documents dated April 15, 1946, were executed without consideration or for immoral purposes, and were void. The appellant instituted against his widow and sons O. S. No. 63 of 1954, asking for general partition of the joint family properties and for allotment to her of the properties conveyed by the two deeds. She also instituted O. S. No. 62 of 1954 against one of his sons and another person asking for damages and mesne profits for wrongful trespass on the properties. The trial Court dismissed O. S. No. 12 of 1954 and O. S. No. 62 of 1954 and decreed O. S. No. 63 of 1954. From these decrees appeals were preferred in the High Court of Andhra Pradesh. The High Court confirmed the decree in O. S. No. 62/54, allowed the two other appeals, dismissed O. S. No. 63/54 and decreed O. S. No. 12/54 the decree for possession in respect of the properties covered by Ex. A-1 being conditional on payment by the respondents of the value of improvements made by the appellant to the properties. From the decrees passed by the High Court, the present appeals have been filed by special leave. 2. The High Court found that the transfers under Ex. A-1 and Ex. A-2 were not supported by any consideration by way of cash or delivery of jewels. This finding is not challenged before us. The High Court held that the transfers were made by Venkatacharyulu in favour of the appellant in view of past illicit cohabitation with her such past cohabitation was the motive and not the consideration for the transfers and the two deeds though ostensibly sale deeds, were in reality gift deeds. It held that Venkatacharyulu had no power to make a gift of the joint family properties, the two deeds were invalid and the subsequent severance of joint status in 1947 could not validate them. 3. In this Court, it is common case that future illicit cohabitation was not the object or the consideration for the transfers under Ex. A-1 and Ex. A-2. The appellant contends that Venkatacharyulu agreed to make the transfers in consideration of past cohabitation, having regard to Section 2 (d) of the Indian Contract Act, 1872, her past service was a valuable consideration and Venkatacharyulu was competent to alienate for value his undivided interest in the coparcenary properties. The respondents contend that the transfers where by way of gifts and not in consideration of the past cohabitation, and Venkatacharyulu was not competent to make a gift of the coparcenary properties. In the alternative, the respondents contend that assuming that the transfers were made in consideration of past cohabitation, they were hit by Section 6 (h) of the Transfer of Property Act, 1882. 4. Our findings are as follows :-Venkatacharyulu and the appellant were parties to an illicit intercourse. The two agreed to cohabit. Pursuant to the agreement each rendered services to the other.Her services were given in exchange for his promise under which she obtained similar services. In lieu of her services, he promised to give his services only and not his properties. Having once operated as the consideration for his earlier promise, her past services could not be treated under Section 2 (d) of the Indian Contract Act as a subsisting consideration for his subsequent promise to transfer the properties to her. The past cohabitation was the motive and not the consideration for the transfers under Exts. A-1 and A-2.The transfers were without consideration and were by way of gifts. The gifts were not hit by S. 6 (h) of the Transfer of Property Act, by reason of the fact that they were motivated by a desire to compensate the concubine for her past services. 5. In Balo v. Parbati, ILR (1940) All 371: (AIR 1940 All 385 ) the Court held that the assignment of mortgagees rights to a woman in consideration of past cohabitation was not hit by Section 6 (h) of the Transfer of Property Act and was valid. Properly speaking, the past cohabitation was the motive and not the consideration for the assignment. The assignment was without consideration by way of gift and as such was not hit by S. 6 (h). In Istak Kamu v. Ranchhod Zipru, ILR (1947) Bom 206 at p. 217 (AIR 1947 Bom 198 at p. 202) the Court rightly held that past cohabitation was the motive for the gift under Exhibit 186, and the gift was valid but in holding that the promises to make the gifts under other exhibits were made in consideration of past illicit cohabitation and consequently those gifts were invalid, the Court seems to have too readily assumed that past cohabitation was the consideration for the subsequent promises. 6. Venkatacharyulu was free to make a gift of his own property to his concubine. The gifts under Exts. A-1 and A-2 were not hit by S. 6 (h) of the Transfer of Property Act.But the properties gifted under Exs. A-1 and A-2 were coparcenary properties. Under the Madras school of Mitakshara law by which Venkatacharyulu was governed, he had no power to make a gift of even his undivided interest in the coparcenary properties to his concubine. The gifts were therefore invalid. 7. The invalid gifts were not validated by the disruption of the joint family in 1947.After the disruption of the joint family, Venkatacharyulu was free to make a gift of his divided interest in the coparcenary properties to the appellant, but he did not make any such gift. The transfers under Exts. A-1 and A-2 were and are invalid. We find no ground for interfering with the decrees passed by the High Court.
### Response:
0
### Explanation:
4. Our findings are as follows :-Venkatacharyulu and the appellant were parties to an illicit intercourse. The two agreed to cohabit. Pursuant to the agreement each rendered services to the other.Her services were given in exchange for his promise under which she obtained similar services. In lieu of her services, he promised to give his services only and not his properties. Having once operated as the consideration for his earlier promise, her past services could not be treated under Section 2 (d) of the Indian Contract Act as a subsisting consideration for his subsequent promise to transfer the properties to her. The past cohabitation was the motive and not the consideration for the transfers under Exts. A-1 and A-2.The transfers were without consideration and were by way of gifts. The gifts were not hit by S. 6 (h) of the Transfer of Property Act, by reason of the fact that they were motivated by a desire to compensate the concubine for her past service6. Venkatacharyulu was free to make a gift of his own property to his concubine. The gifts under Exts. A-1 and A-2 were not hit by S. 6 (h) of the Transfer of Property Act.But the properties gifted under Exs. A-1 and A-2 were coparcenary properties. Under the Madras school of Mitakshara law by which Venkatacharyulu was governed, he had no power to make a gift of even his undivided interest in the coparcenary properties to his concubine. The gifts were therefore invalid7. The invalid gifts were not validated by the disruption of the joint family in 1947.After the disruption of the joint family, Venkatacharyulu was free to make a gift of his divided interest in the coparcenary properties to the appellant, but he did not make any such gift. The transfers under Exts. A-1 and A-2 were and are invalid. We find no ground for interfering with the decrees passed by the High Court.
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K. Sashidhar Vs. Indian Overseas Bank and Ors | objections raised rather than to ritually reject them and proceed to take drastic measures Under Sub-section (4) of Section 13 of the Act. Once such a duty is envisaged on the part of the creditor it would only be conducive to the principles of fairness on the part of the banks and financial institutions in dealing with their borrowers to apprise them of the reason for not accepting the objections or points raised in reply to the notice served upon them before proceeding to take measures Under Sub-section (4) of Section 13. Such reasons, overruling the objections of the borrower, must also be communicated to the borrower by the secured creditor. It will only be in fulfillment of a requirement of reasonableness and fairness in the dealings of institutional financing which is so important from the point of view of the economy of the country and would serve the purpose in the growth of a healthy economy. It would certainly provide guidance to the secured debtors in general in conducting the affairs in a manner that they may not be found defaulting and being made liable for the unsavoury steps contained Under Sub-section (4) of Section 13. At the same time, more importantly, we must make it clear unequivocally that communication of the reasons for not accepting the objections taken by the secured borrower may not be taken to give occasion to resort to such proceedings which are not permissible under the provisions of the Act. But communication of reasons not to accept the objections of the borrower, would certainly be for the purpose of his knowledge which would be a step forward towards his right to know as to why his objections have not been accepted by the secured creditor who intends to resort to harsh steps of taking over the management/business of viz. secured assets without intervention of the court. Such a person in respect of whom steps Under Section 13(4) of the Act are likely to be taken cannot be denied the right to know the reasons of non-acceptance and of his objections. It is true, as per the provisions under the Act, he may not be entitled to challenge the reasons communicated or the likely action of the secured creditor at that point of time unless his right to approach the Debts Recovery Tribunal as provided Under Section 17 of the Act matures on any measure having been taken Under Sub-section (4) of Section 13 of the Act. (Emphasis supplied) In the present case, however, we are concerned with the provisions of I & B Code dealing with the resolution process. The dispensation provided in the I & B Code is entirely different. In terms of Section 30 of the I & B Code, the decision is taken collectively after due negotiations between the financial creditors who are constituents of the CoC and they express their opinion on the proposed resolution plan in the form of votes, as per their voting share. In the meeting of CoC, the proposed resolution plan is placed for discussion and after full interaction in the presence of all concerned and the resolution professional, the constituents of the CoC finally proceed to exercise their option (business/commercial decision) to approve or not to approve the proposed resolution plan. In such a case, non-recording of reasons would not per se vitiate the collective decision of the financial creditors. The legislature has not envisaged challenge to the "commercial/business decision" of the financial creditors taken collectively or for that matter their individual opinion, as the case may be, on this count. 63. It was then contended that NCLAT committed manifest error in not calling upon the dissenting financial creditors to respond to the applications filed in the concerned appeals pending before it, including with a prayer to allow the resolution applicant to revise the resolution plan. We find no merits in this submission. The reliefs claimed in the stated application filed before the NCLAT would not take the matter any further. For, it is enough for the dissenting financial creditors to disapprove the proposed resolution plan by voting as per its voting share, based on commercial decision. Indeed, if the opposition of the dissenting financial creditors is in regard to matter(s) within the jurisdiction of the Tribunal ascribable to Sections 30(2) or 61(3), then the situation may be somewhat different. But that is not in issue in these cases. 64. As regards the application by the resolution applicant for taking his revised resolution plan on record, the same is also devoid of merits inasmuch as it is not open to the Adjudicating Authority to entertain a revised resolution plan after the expiry of the statutory period of 270 days. Accordingly, no fault can be found with the NCLAT for not entertaining such application. 65. The counsel appearing for the resolution applicant and the stakeholders supporting the resolution plan were at pains to persuade us to exercise powers Under Article 142 of the Constitution of India. Inasmuch as, in both the cases, the vote of approval exceeded more than 66% of the voting share of the financial creditors and yet the benefit of the amended provision could not be availed, as it came only during the pendency of the appeal before the NCLAT. The submission is that this Court may set aside the order passed by the Tribunal and relegate the parties in both the cases, before the NCLT for considering the proceedings afresh in light of the amended provision reducing the threshold requirement of percent of voting share of financial creditors to 66%. We are afraid, it is not possible for us to exercise powers Under Article 142 of the Constitution which will result in issuing directions in the teeth of the provisions as applicable to the cases on hand. We, therefore, decline to accede to this request. Having answered the core issues and to avoid prolixity, we do not wish to dilate on the exposition in other reported decisions relied upon by the counsel. | 0[ds]In the present case, however, our focus must be on the dispensation governing the process of approval or rejection of resolution plan by the CoC. The CoC is called upon to consider the resolution plan Under Section 30(4) of the I & B Code after it is verified and vetted by the resolution professional as being compliant with all the statutory requirements specified in Section 30(2).The CoC is constituted as per Section 21 of the I & B Code, which consists of financial creditors. The term financial creditor has been defined in Section 5(7) of the I & B Code to mean any person to whom a financial debt is owed and includes a person to whom such debt has been legally assigned or transferred to. Be it noted that the process of insolvency resolution and liquidation concerning corporate debtors has been codified in Part II of the I & B Code, comprising of seven Chapters. Chapter I predicates that Part II shall apply in matters relating to the insolvency and liquidation of corporate debtor where the minimum amount of default is Rs. 1,00,000/-. Section 5 in Chapter I is a dictionary Clause specific to Part II of the Code. Chapter II deals with the gamut of procedure to be followed for the corporate insolvency resolution process. For dealing with the issue on hand, the provisions contained in Chapter II will be significant. From the scheme of the provisions, it is clear that the provisions in Part II of the Code are self-contained code, providing for the procedure for consideration of the resolution plan by the CoC.According to the resolution applicant and the stakeholders supporting the concerned resolution plan in respect of the two corporate debtors, the stipulation in Section 30(4) of the I & B Code as applicable at the relevant time in October 2017 is only directory and not mandatory. This argument is founded on the expression "may" occurring in Section 30(4) of the I & B Code. This argument does not commend to us. In that, the word "may" is ascribable to the discretion of the CoC-to approve the resolution plan or not to approve the same. What is significant is the second part of the said provision, which stipulates the requisite threshold of "not less than seventy five percent of voting share of the financial creditors" to treat the resolution plan as duly approved by the CoC. That stipulation is the quintessence and made mandatory for approval of the resolution plan. Any other interpretation would result in rewriting of the provision and doing violence to the legislative intent.It was then contended that the amendment vide Insolvency and Bankruptcy Code Amendment Act, 2018 (Act No. 8 of 2018, dated 18th January, 2018) w.e.f. 23rd November, 2017 was to substitute the amended provision, which means that the amended provision stood incorporated as Section 30(4) from the commencement of I & B Code. This argument will be dealt with a little later while considering the effect of the amended provisions. For the present, we are adverting to the provisions in the I & B Code and the Regulations framed there under, as were in force in October 2017, when the CoC of the concerned corporate debtor was called upon to consider the proposed resolutiona conjoint reading of these provisions it is amply clear that the stipulation is to reckon the percent of "voting share of the financial creditors", for the purposes of determining as to whether the proposed resolution plan has been approved by the CoC or otherwise. When it comes to the method of voting and for determining the outcome of voting with regard to other subjects (other than the approval of the resolution plan), discussed in the meeting of the CoC, the same is governed by Regulation 25 as applicable in OctoberRegulations 25 and 39 must be read in light of Section 30(4) of the I & B Code, concerning the process of approval of a resolution plan. For that, the "percent of voting share of the financial creditors" approving vis-a-vis dissenting-is required to be reckoned. It is not on the basis of members present and voting as such. At any rate, the approving votes must fulfill the threshold percent of voting share of the financial creditors. Keeping this clear distinction in mind, it must follow that the resolution plan concerning the respective corporate debtors, namely, KS & PIPL and IIL, is deemed to have been rejected as it had failed to muster the approval of requisite threshold votes, of not less than 75% of voting share of the financial creditors. It is not possible to countenance any other construction or interpretation, which may run contrary to what has been noted herein before.Thus understood, no fault can be found with the NCLAT for having recorded the fact that the proposed resolution plan in respect of both the corporate debtors was approved by vote of "less than 75%" of voting share of the financial creditors or deemed to have been rejected. In that event, the inevitable corollary is to initiate liquidation process relating to the concerned corporate debtor, as per Section 33 of the I & B Code.Indeed, in terms of Section 31 of the I & B Code, the adjudicating authority (NCLT) is expected to deal with two situations. The first is when it does not receive a resolution plan Under Sub-section (6) of Section 30 or when the resolution plan has been rejected by the resolution professional for non-compliance of Section 30(2) of the I & B Code or also when the resolution plan fails to garner approval of not less than seventy five percent of voting share of the financial creditors, as the case may be; and there is no alternate plan mooted before the expiry of the statutory period. The second is when a resolution plan duly approved by the CoC by not less than 75% of voting share of the financial creditors is submitted before it by the resolution professional Under Section 30(6) of the Code, for its approval.In the present case, we are concerned with a situation where in both the resolution processes under consideration, the resolution plan failed to garner support of not less than 75% of voting share of the financial creditors. That is the first category referred to above. In such a situation, the adjudicating authority can have no other option but to initiate liquidation process in terms of Section 33 (1) of the I & B Code.As aforesaid, upon receipt of a "rejected" resolution plan the adjudicating authority (NCLT) is not expected to do anything more; but is obligated to initiate liquidation process Under Section 33(1) of the I & B Code. The legislature has not endowed the adjudicating authority (NCLT) with the jurisdiction or authority to analyse or evaluate the commercial decision of the CoC much less to enquire into the justness of the rejection of the resolution plan by the dissenting financial creditors. From the legislative history and the background in which the I & B Code has been enacted, it is noticed that a completely new approach has been adopted for speeding up the recovery of the debt due from the defaulting companies. In the new approach, there is a calm period followed by a swift resolution process to be completed within 270 days (outer limit) failing which, initiation of liquidation process has been made inevitable and mandatory. In the earlier regime, the corporate debtor could indefinitely continue to enjoy the protection given Under Section 22 of Sick Industrial Companies Act, 1985 or under other such enactments which has now been forsaken. Besides, the commercial wisdom of the CoC has been given paramount status without any judicial intervention, for ensuring completion of the stated processes within the timelines prescribed by the I & B Code. There is an intrinsic assumption that financial creditors are fully informed about the viability of the corporate debtor and feasibility of the proposed resolution plan. They act on the basis of thorough examination of the proposed resolution plan and assessment made by their team of experts. The opinion on the subject matter expressed by them after due deliberations in the CoC meetings through voting, as per voting shares, is a collective business decision. The legislature, consciously, has not provided any ground to challenge the "commercial wisdom" of the individual financial creditors or their collective decision before the adjudicating authority. That is made non-justiciable.Whereas, the discretion of the adjudicating authority (NCLT) is circumscribed by Section 31 limited to scrutiny of the resolution plan "as approved" by the requisite percent of voting share of financial creditors. Even in that enquiry, the grounds on which the adjudicating authority can reject the resolution plan is in reference to matters specified in Section 30(2), when the resolution plan does not conform to the stated requirements. Reverting to Section 30(2), the enquiry to be done is in respect of whether the resolution plan provides: (i) the payment of insolvency resolution process costs in a specified manner in priority to the repayment of other debts of the corporate debtor, (ii) the repayment of the debts of operational creditors in prescribed manner, (iii) the management of the affairs of the corporate debtor, (iv) the implementation and supervision of the resolution plan, (v) does not contravene any of the provisions of the law for the time being in force, (vi) conforms to such other requirements as may be specified by the Board. The Board referred to is established Under Section 188 of the I & B Code. The powers and functions of the Board have been delineated in Section 196 of the I & B Code. None of the specified functions of the Board, directly or indirectly, pertain to regulating the manner in which the financial creditors ought to or ought not to exercise their commercial wisdom during the voting on the resolution plan Under Section 30(4) of the I & B Code. The subjective satisfaction of the financial creditors at the time of voting is bound to be a mixed baggage of variety of factors. To wit, the feasibility and viability of the proposed resolution plan and including their perceptions about the general capability of the resolution applicant to translate the projected plan into a reality. The resolution applicant may have given projections backed by normative data but still in the opinion of the dissenting financial creditors, it would not be free from being speculative. These aspects are completely within the domain of the financial creditors who are called upon to vote on the resolution plan Under Section 30(4) of the I & B Code.For the same reason, even the jurisdiction of the NCLAT being in continuation of the proceedings would be circumscribed in that regard and more particularly on account of Section 32 of the I & B Code, which envisages that any appeal from an order approving the resolution plan shall be in the manner and on the grounds specified in Section 61(3) of the I & B Code.On a bare reading of the provisions of the I & B Code, it would appear that the remedy of appeal Under Section 61(1) is against an "order passed by the adjudicating authority (NCLT)" - which we will assume may also pertain to recording of the fact that the proposed resolution plan has been rejected or not approved by a vote of not less than 75% of voting share of the financial creditors. Indubitably, the remedy of appeal including the width of jurisdiction of the appellate authority and the grounds of appeal, is a creature of statute. The provisions investing jurisdiction and authority in the NCLT or NCLAT as noticed earlier, has not made the commercial decision exercised by the CoC of not approving the resolution plan or rejecting the same, justiciable. This position is reinforced from the limited grounds specified for instituting an appeal that too against an order "approving a resolution plan" Under Section 31. First, that the approved resolution plan is in contravention of the provisions of any law for the time being in force. Second, there has been material irregularity in exercise of powers "by the resolution professional" during the corporate insolvency resolution period. Third, the debts owed to operational creditors have not been provided for in the resolution plan in the prescribed manner. Fourth, the insolvency resolution plan costs have not been provided for repayment in priority to all other debts. Fifth, the resolution plan does not comply with any other criteria specified by the Board. Significantly, the matters or grounds-be it Under Section 30(2) or Under Section 61(3) of the I & B Code-are regarding testing the validity of the "approved" resolution plan by the CoC; and not for approving the resolution plan which has been disapproved or deemed to have been rejected by the CoC in exercise of its business decision.Indubitably, the inquiry in such an appeal would be limited to the power exercisable by the resolution professional Under Section 30(2) of the I & B Code or, at best, by the adjudicating authority (NCLT) Under Section 31(2) read with 31(1) of the I & B Code. No other inquiry would be permissible. Further, the jurisdiction bestowed upon the appellate authority (NCLAT) is also expressly circumscribed. It can examine the challenge only in relation to the grounds specified in Section 61(3) of the I & B Code, which is limited to matters "other than" enquiry into the autonomy or commercial wisdom of the dissenting financial creditors. Thus, the prescribed authorities (NCLT/NCLAT) have been endowed with limited jurisdiction as specified in the I & B Code and not to act as a court of equity or exercise plenary powers.In our view, neither the adjudicating authority (NCLT) nor the appellate authority (NCLAT) has been endowed with the jurisdiction to reverse the commercial wisdom of the dissenting financial creditors and that too on the specious ground that it is only an opinion of the minority financial creditors. The fact that substantial or majority percent of financial creditors have accorded approval to the resolution plan would be of no avail, unless the approval is by a vote of not less than 75% (after amendment of 2018 w.e.f. 06.06.2018, 66%) of voting share of the financial creditors. To put it differently, the action of liquidation process postulated in Chapter-III of the I & B Code, is avoidable, only if approval of the resolution plan is by a vote of not less than 75% (as in October, 2017) of voting share of the financial creditors. Conversely, the legislative intent is to uphold the opinion or hypothesis of the minority dissenting financial creditors. That must prevail, if it is not less than the specified percent (25% in October, 2017; and now after the amendment w.e.f. 06.06.2018, 44%). The inevitable outcome of voting by not less than requisite percent of voting share of financial creditors to disapprove the proposed resolution plan, de jure, entails in its deemed rejection.Notably, the threshold of voting share of the dissenting financial creditors for rejecting the resolution plan is way below the simple majority mark, namely not less than 25% (and even after amendment w.e.f. 06.06.2018, 44%). Thus, the scrutiny of the resolution plan is required to pass through the litmus test of not less than requisite (75% or 66% as may be applicable) of voting share-a strict regime. That means the resolution plan must appear, to not less than requisite voting share of the financial creditors, to be an overall credible plan, capable of achieving timelines specified in the Code generally, assuring successful revival of the corporate debtor and disavowing endless speculation.The counsel appearing for the resolution applicant and the stakeholders supporting the resolution plan of the concerned corporate debtor, were at pains to persuade us to take a view that voting by the dissenting financial creditors suffers from the vice of being unreasonable, irrational, unintelligible and an abuse of exercise of power. The power bestowed on the financial creditors to cast their vote Under Section 30(4) is coupled with a duty to exercise that power with utmost care, caution and reason, keeping in mind the legislative intent and the spirit of the I & B Code-fullest attempt should be made to revive the corporate debtors and not to mechanically shove them to the brink of liquidation process, which has the inevitable impact on larger public interests and the stakeholders in particular, including workers associated with the company.The argument, though attractive at the first blush, but if accepted, would require us to re-write the provisions of the I & B Code. It would also result in doing violence to the legislative intent of having consciously not stipulated that as a ground-to challenge the commercial wisdom of the minority (dissenting) financial creditors. Concededly, the process of resolution plan is necessitated in respect of corporate debtors in whom their financial creditors have lost hope of recovery and who have turned into non-performer or a chronic defaulter. The fact that the concerned corporate debtor was still able to carry on its business activities does not obligate the financial creditors to postpone the recovery of the debt due or to prolong their losses indefinitely. Be that as it may, the scope of enquiry and the grounds on which the decision of "approval" of the resolution plan by the CoC can be interfered with by the adjudicating authority (NCLT), has been set out in Section 31(1) read with Section 30(2) and by the appellate tribunal (NCLAT) Under Section 32 read with Section 61(3) of the I & B Code. No corresponding provision has been envisaged by the legislature to empower the resolution professional, the adjudicating authority (NCLT) or for that matter the appellate authority (NCLAT), to reverse the "commercial decision" of the CoC much less of the dissenting financial creditors for not supporting the proposed resolution plan. Whereas, from the legislative history there is contra indication that the commercial or business decisions of the financial creditors are not open to any judicial review by the adjudicating authority or the appellate authority.It was argued that the dissenting financial creditors have not assigned any reason for recording their dissent and therefore, their action is vitiated. As per the provisions applicable at the relevant time in October 2017, there was no requirement of recording reasons for the dissent. That requirement has been introduced by an amendment to the Regulations effected in 2018 w.e.f. 4th July, 2018. Whether that amendment is prospective or has retrospective effect is a matter which will be considered a little later.Suffice it to observe that in the I & B Code and the Regulations framed thereunder as applicable in October 2017, there was no need for the dissenting financial creditors to record reasons for disapproving or rejecting a resolution plan. Further, as aforementioned, there is no provision in the I & B Code which empowers the adjudicating authority (NCLT) to oversee the justness of the approach of the dissenting financial creditors in rejecting the proposed resolution plan or to engage in judicial review thereof. Concededly, the inquiry by the resolution professional precedes the consideration of the resolution plan by the CoC. The resolution professional is not required to express his opinion on matters within the domain of the financial creditor(s), to approve or reject the resolution plan, Under Section 30(4) of the I & B Code. At best, the Adjudicating Authority (NCLT) may cause an enquiry into the "approved" resolution plan on limited grounds referred to in Section 30(2) read with Section 31(1) of the I & B Code. It cannot make any other inquiry nor is competent to issue any direction in relation to the exercise of commercial wisdom of the financial creditors-be it for approving, rejecting or abstaining, as the case may be. Even the inquiry before the Appellate Authority (NCLAT) is limited to the grounds Under Section 61(3) of the I & B Code. It does not postulate jurisdiction to undertake scrutiny of the justness of the opinion expressed by financial creditors at the time of voting. To take any other view would enable even the minority dissenting financial creditors to question the logic or justness of the commercial opinion expressed by the majority of the financial creditors albeit by requisite percent of voting share to approve the resolution plan; and in the process authorize the adjudicating authority to reject the approved resolution plan upon accepting such a challenge. That is not the scope of jurisdiction vested in the adjudicating authority Under Section 31 of the I & B Code dealing with approval of the resolution plan.To put it differently, since none of the grounds available Under Section 30(2) or Section 61(3) of the I & B Code are attracted in the fact situation of the present case, the Adjudicating Authority (NCLT) as well as the Appellate Authority (NCLAT) had no other option but to record that the proposed resolution plan concerning the respective corporate debtor (KS & PIPL and IIL) stood rejected. Further, as no alternative resolution plan was approved by the requisite percent of voting share of the financial creditors before the expiry of the statutory period of 270 days, the inevitable sequel is to pass an order directing initiation of liquidation process against the concerned corporate debtor in the manner specified in Chapter III of the I & B Code.Suffice it to observe that the amended provision merely restates as to what the financial creditors are expected to bear in mind whilst expressing their choice during consideration of the proposal for approval of a resolution plan. No more and no less. Indubitably, the legislature has consciously not provided for a ground to challenge the justness of the "commercial decision" expressed by the financial creditors - be it to approve or reject the resolution plan. The opinion so expressed by voting is non-justiciable. Further, in the present cases, there is nothing to indicate as to which other requirements specified by the Board at the relevant time have not been fulfilled by the dissenting financial creditors. As noted earlier, the Board established Under Section 188 of the I & B Code can perform powers and functions specified in Section 196 of the I & B Code. That does not empower the Board to specify requirements for exercising commercial decisions by the financial creditors in the matters of approval of the resolution plan or liquidation process. Viewed thus, the amendment under consideration does not take the matter any further.We may not be understood to have expressed any opinion either way about the effect of the three provisos introduced by the same amendment to Section 30(4) - as to whether it would have retrospective or retroactive effect. That question does not arise for consideration in these appeals. Our discussion is restricted to the efficacy of the amendment to main provision viz., Section 30(4), whereby the above quoted words ("after considering feasibility and viability, and such other requirements as may be specified by the Board") have been inserted.The learned Counsel for the resolution applicant and other stakeholders supporting the resolution plan of the concerned creditors, next relied upon the amendment to Section 30(4) which has come into force w.e.f. 6th day of June, 2018 vide the Insolvency and Bankruptcy Code (Second Amendment) Act, 2018 (No. 8 of 2018). Vide Section 23(iii)(a) of the said amendment Act, the word "seventy-five" in Sub-section (4) of Section 30 has been substituted by the word "sixty-six". Taking clue from this amendment, it was argued that since the amendment substitutes the threshold requirement of 75% to 66% and since the same has been brought into force when appeals were pending, the NCLAT was obliged to consider its effect on the present cases. Further, being substitution, it must be assumed that the amended provision was always there from the beginning of the Code.We are not impressed by this submission. In our opinion, by this amendment, a new norm and qualifying standard for approval of a resolution plan has been introduced. That cannot be treated as a declaratory/clarificatory or stricto sensu procedural matter as such. Whereas, the stated Amendment Act makes it expressly clear that it shall be deemed to have come into force on the 6th day of June, 2018. Thus, by mere use of expression "substituted" in Section 23(iii) (a) of the Amendment Act of 2018, it would not make the provision retrospective in operation or having retroactive effect. This interpretation is reinforced by the fact that there is no indication in the Amendment Act of 2018 that the legislature intended to undo and/or govern the decisions already taken by the CoC of the concerned corporate debtors prior to 6-06-2018.Significantly, the report mentions that the empirical record suggests that the apprehension regarding companies are being put into liquidation by minority creditors is premature and further that the objective of the Code is to respect the commercial wisdom of the CoC. As aforesaid, the amendment of 2018 cannot be considered as clarificatory but it envisages a new norm of threshold for considering the decision of the CoC as approval of the resolution plan. The Amendment Act of 2018 having come into force w.e.f. 6th day of June, 2018, therefore, will have prospective application and apply only to the decisions of CoC taken on or after that date concerning the approval of resolution plan.In the present case, however, the amendment under consideration pertaining to Section 30(4), is to modify the voting share threshold for decisions of the CoC and cannot be treated as clarificatory in nature. It changes the qualifying standards for reckoning the decision of the CoC concerning the process of approval of a resolution plan. The rights/obligations crystallized between the parties and, in particular, the dissenting financial creditors in October 2017, in terms of the governing provisions can be divested or undone only by a law made in that behalf by the legislature. There is no indication either in the report of the Committee or in the Amendment Act of 2018 that the legislature intended to undo the decisions of the CoC already taken prior to 6th day of June, 2018. It is not possible to fathom how the provisions of the amendment Act 2018, reducing the threshold percent of voting share can be perceived as declaratory or clarificatory in nature. In such a situation, the NCLAT could not have examined the case on the basis of the amended provision. For the same reason, the NCLT could not have adopted a different approach in these matters. Hence, no fault can be found with the impugned decision of the NCLAT.In our view, no other contention raised to support the resolution plan of the concerned corporate debtors would be of any avail. Even so, we may advert to the argument regarding the effect of amendment of Regulation 39 which has come into force with effect from 4th July, 2018. Prior to that amendment, Regulation 39(3) merely provided that the Committee may approve any resolution plan with such modifications as it deems fit.In the first place, amendment to Regulation cannot have retrospective effect so as to impact the decision of the CoC of the concerned corporate debtor - taken before the amendment of the said Regulation. There is no indication in the Code as amended or the Regulations to suggest that as a consequence of this amendment the decisions already taken by the concerned CoC prior to 3rd July, 2018 be treated as deemed to have been vitiated or for that matter, necessitating reversion of the proposal to CoC for recording reasons, that too beyond the statutory period of 270 days. A new life cannot be infused in the resolution plan which did not fructify within the statutory period, by such circuitous route.Assuming that this provision was applicable to the cases on hand, non-recording of reasons for approving or rejecting the resolution plan by the concerned financial creditor during the voting in the meeting of CoC, would not render the final collective decision of CoC nullity per se. Concededly, if the objection to the resolution plan is on account of infraction of ground(s) specified in Sections 30(2) and 61(3), that must be specifically and expressly raised at the relevant time. For, the approval of the resolution plan by the CoC can be challenged on those grounds. However, if the opposition to the proposed resolution plan is purely a commercial or business decision, the same, being non-justiciable, is not open to challenge before the Adjudicating Authority (NCLT) or for that matter the Appellate Authority (NCLAT). If so, non-recording of any reason for taking such commercial decision will be of no avail. In the present case, admittedly, the dissenting financial creditors have rejected the resolution plan in exercise of business/commercial decision and not because of non-compliance of the grounds specified in Section 30(2) or Section 61(3), as such. Resultantly, the amended Regulation pressed into service, will be of no avail.Relying on the dictum in Mardia Chemicals (supra), in particular paragraph 45, it was argued that even in regard to the option exercisable by the financial creditors Under Section 30(4), the requirement of giving reasons for approval or disapproval of the proposed resolution plan must be read into it. In that case, the Court had considered the mechanism specified in Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, which provided for giving a notice to the borrower and upon receipt of such notice the borrower could raise objections as to why the proposed action of the secured creditor was uncalledthe present case, however, we are concerned with the provisions of I & B Code dealing with the resolution process. The dispensation provided in the I & B Code is entirely different. In terms of Section 30 of the I & B Code, the decision is taken collectively after due negotiations between the financial creditors who are constituents of the CoC and they express their opinion on the proposed resolution plan in the form of votes, as per their voting share. In the meeting of CoC, the proposed resolution plan is placed for discussion and after full interaction in the presence of all concerned and the resolution professional, the constituents of the CoC finally proceed to exercise their option (business/commercial decision) to approve or not to approve the proposed resolution plan. In such a case, non-recording of reasons would not per se vitiate the collective decision of the financial creditors. The legislature has not envisaged challenge to the "commercial/business decision" of the financial creditors taken collectively or for that matter their individual opinion, as the case may be, on this count.It was then contended that NCLAT committed manifest error in not calling upon the dissenting financial creditors to respond to the applications filed in the concerned appeals pending before it, including with a prayer to allow the resolution applicant to revise the resolution plan. We find no merits in this submission. The reliefs claimed in the stated application filed before the NCLAT would not take the matter any further. For, it is enough for the dissenting financial creditors to disapprove the proposed resolution plan by voting as per its voting share, based on commercial decision. Indeed, if the opposition of the dissenting financial creditors is in regard to matter(s) within the jurisdiction of the Tribunal ascribable to Sections 30(2) or 61(3), then the situation may be somewhat different. But that is not in issue in these cases.As regards the application by the resolution applicant for taking his revised resolution plan on record, the same is also devoid of merits inasmuch as it is not open to the Adjudicating Authority to entertain a revised resolution plan after the expiry of the statutory period of 270 days. Accordingly, no fault can be found with the NCLAT for not entertaining such application.The counsel appearing for the resolution applicant and the stakeholders supporting the resolution plan were at pains to persuade us to exercise powers Under Article 142 of the Constitution of India. Inasmuch as, in both the cases, the vote of approval exceeded more than 66% of the voting share of the financial creditors and yet the benefit of the amended provision could not be availed, as it came only during the pendency of the appeal before the NCLAT. The submission is that this Court may set aside the order passed by the Tribunal and relegate the parties in both the cases, before the NCLT for considering the proceedings afresh in light of the amended provision reducing the threshold requirement of percent of voting share of financial creditors to 66%. We are afraid, it is not possible for us to exercise powers Under Article 142 of the Constitution which will result in issuing directions in the teeth of the provisions as applicable to the cases on hand. We, therefore, decline to accede to this request. Having answered the core issues and to avoid prolixity, we do not wish to dilate on the exposition in other reported decisions relied upon by the counsel. | 0 | 23,371 | 6,192 | ### Instruction:
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objections raised rather than to ritually reject them and proceed to take drastic measures Under Sub-section (4) of Section 13 of the Act. Once such a duty is envisaged on the part of the creditor it would only be conducive to the principles of fairness on the part of the banks and financial institutions in dealing with their borrowers to apprise them of the reason for not accepting the objections or points raised in reply to the notice served upon them before proceeding to take measures Under Sub-section (4) of Section 13. Such reasons, overruling the objections of the borrower, must also be communicated to the borrower by the secured creditor. It will only be in fulfillment of a requirement of reasonableness and fairness in the dealings of institutional financing which is so important from the point of view of the economy of the country and would serve the purpose in the growth of a healthy economy. It would certainly provide guidance to the secured debtors in general in conducting the affairs in a manner that they may not be found defaulting and being made liable for the unsavoury steps contained Under Sub-section (4) of Section 13. At the same time, more importantly, we must make it clear unequivocally that communication of the reasons for not accepting the objections taken by the secured borrower may not be taken to give occasion to resort to such proceedings which are not permissible under the provisions of the Act. But communication of reasons not to accept the objections of the borrower, would certainly be for the purpose of his knowledge which would be a step forward towards his right to know as to why his objections have not been accepted by the secured creditor who intends to resort to harsh steps of taking over the management/business of viz. secured assets without intervention of the court. Such a person in respect of whom steps Under Section 13(4) of the Act are likely to be taken cannot be denied the right to know the reasons of non-acceptance and of his objections. It is true, as per the provisions under the Act, he may not be entitled to challenge the reasons communicated or the likely action of the secured creditor at that point of time unless his right to approach the Debts Recovery Tribunal as provided Under Section 17 of the Act matures on any measure having been taken Under Sub-section (4) of Section 13 of the Act. (Emphasis supplied) In the present case, however, we are concerned with the provisions of I & B Code dealing with the resolution process. The dispensation provided in the I & B Code is entirely different. In terms of Section 30 of the I & B Code, the decision is taken collectively after due negotiations between the financial creditors who are constituents of the CoC and they express their opinion on the proposed resolution plan in the form of votes, as per their voting share. In the meeting of CoC, the proposed resolution plan is placed for discussion and after full interaction in the presence of all concerned and the resolution professional, the constituents of the CoC finally proceed to exercise their option (business/commercial decision) to approve or not to approve the proposed resolution plan. In such a case, non-recording of reasons would not per se vitiate the collective decision of the financial creditors. The legislature has not envisaged challenge to the "commercial/business decision" of the financial creditors taken collectively or for that matter their individual opinion, as the case may be, on this count. 63. It was then contended that NCLAT committed manifest error in not calling upon the dissenting financial creditors to respond to the applications filed in the concerned appeals pending before it, including with a prayer to allow the resolution applicant to revise the resolution plan. We find no merits in this submission. The reliefs claimed in the stated application filed before the NCLAT would not take the matter any further. For, it is enough for the dissenting financial creditors to disapprove the proposed resolution plan by voting as per its voting share, based on commercial decision. Indeed, if the opposition of the dissenting financial creditors is in regard to matter(s) within the jurisdiction of the Tribunal ascribable to Sections 30(2) or 61(3), then the situation may be somewhat different. But that is not in issue in these cases. 64. As regards the application by the resolution applicant for taking his revised resolution plan on record, the same is also devoid of merits inasmuch as it is not open to the Adjudicating Authority to entertain a revised resolution plan after the expiry of the statutory period of 270 days. Accordingly, no fault can be found with the NCLAT for not entertaining such application. 65. The counsel appearing for the resolution applicant and the stakeholders supporting the resolution plan were at pains to persuade us to exercise powers Under Article 142 of the Constitution of India. Inasmuch as, in both the cases, the vote of approval exceeded more than 66% of the voting share of the financial creditors and yet the benefit of the amended provision could not be availed, as it came only during the pendency of the appeal before the NCLAT. The submission is that this Court may set aside the order passed by the Tribunal and relegate the parties in both the cases, before the NCLT for considering the proceedings afresh in light of the amended provision reducing the threshold requirement of percent of voting share of financial creditors to 66%. We are afraid, it is not possible for us to exercise powers Under Article 142 of the Constitution which will result in issuing directions in the teeth of the provisions as applicable to the cases on hand. We, therefore, decline to accede to this request. Having answered the core issues and to avoid prolixity, we do not wish to dilate on the exposition in other reported decisions relied upon by the counsel.
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first place, amendment to Regulation cannot have retrospective effect so as to impact the decision of the CoC of the concerned corporate debtor - taken before the amendment of the said Regulation. There is no indication in the Code as amended or the Regulations to suggest that as a consequence of this amendment the decisions already taken by the concerned CoC prior to 3rd July, 2018 be treated as deemed to have been vitiated or for that matter, necessitating reversion of the proposal to CoC for recording reasons, that too beyond the statutory period of 270 days. A new life cannot be infused in the resolution plan which did not fructify within the statutory period, by such circuitous route.Assuming that this provision was applicable to the cases on hand, non-recording of reasons for approving or rejecting the resolution plan by the concerned financial creditor during the voting in the meeting of CoC, would not render the final collective decision of CoC nullity per se. Concededly, if the objection to the resolution plan is on account of infraction of ground(s) specified in Sections 30(2) and 61(3), that must be specifically and expressly raised at the relevant time. For, the approval of the resolution plan by the CoC can be challenged on those grounds. However, if the opposition to the proposed resolution plan is purely a commercial or business decision, the same, being non-justiciable, is not open to challenge before the Adjudicating Authority (NCLT) or for that matter the Appellate Authority (NCLAT). If so, non-recording of any reason for taking such commercial decision will be of no avail. In the present case, admittedly, the dissenting financial creditors have rejected the resolution plan in exercise of business/commercial decision and not because of non-compliance of the grounds specified in Section 30(2) or Section 61(3), as such. Resultantly, the amended Regulation pressed into service, will be of no avail.Relying on the dictum in Mardia Chemicals (supra), in particular paragraph 45, it was argued that even in regard to the option exercisable by the financial creditors Under Section 30(4), the requirement of giving reasons for approval or disapproval of the proposed resolution plan must be read into it. In that case, the Court had considered the mechanism specified in Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, which provided for giving a notice to the borrower and upon receipt of such notice the borrower could raise objections as to why the proposed action of the secured creditor was uncalledthe present case, however, we are concerned with the provisions of I & B Code dealing with the resolution process. The dispensation provided in the I & B Code is entirely different. In terms of Section 30 of the I & B Code, the decision is taken collectively after due negotiations between the financial creditors who are constituents of the CoC and they express their opinion on the proposed resolution plan in the form of votes, as per their voting share. In the meeting of CoC, the proposed resolution plan is placed for discussion and after full interaction in the presence of all concerned and the resolution professional, the constituents of the CoC finally proceed to exercise their option (business/commercial decision) to approve or not to approve the proposed resolution plan. In such a case, non-recording of reasons would not per se vitiate the collective decision of the financial creditors. The legislature has not envisaged challenge to the "commercial/business decision" of the financial creditors taken collectively or for that matter their individual opinion, as the case may be, on this count.It was then contended that NCLAT committed manifest error in not calling upon the dissenting financial creditors to respond to the applications filed in the concerned appeals pending before it, including with a prayer to allow the resolution applicant to revise the resolution plan. We find no merits in this submission. The reliefs claimed in the stated application filed before the NCLAT would not take the matter any further. For, it is enough for the dissenting financial creditors to disapprove the proposed resolution plan by voting as per its voting share, based on commercial decision. Indeed, if the opposition of the dissenting financial creditors is in regard to matter(s) within the jurisdiction of the Tribunal ascribable to Sections 30(2) or 61(3), then the situation may be somewhat different. But that is not in issue in these cases.As regards the application by the resolution applicant for taking his revised resolution plan on record, the same is also devoid of merits inasmuch as it is not open to the Adjudicating Authority to entertain a revised resolution plan after the expiry of the statutory period of 270 days. Accordingly, no fault can be found with the NCLAT for not entertaining such application.The counsel appearing for the resolution applicant and the stakeholders supporting the resolution plan were at pains to persuade us to exercise powers Under Article 142 of the Constitution of India. Inasmuch as, in both the cases, the vote of approval exceeded more than 66% of the voting share of the financial creditors and yet the benefit of the amended provision could not be availed, as it came only during the pendency of the appeal before the NCLAT. The submission is that this Court may set aside the order passed by the Tribunal and relegate the parties in both the cases, before the NCLT for considering the proceedings afresh in light of the amended provision reducing the threshold requirement of percent of voting share of financial creditors to 66%. We are afraid, it is not possible for us to exercise powers Under Article 142 of the Constitution which will result in issuing directions in the teeth of the provisions as applicable to the cases on hand. We, therefore, decline to accede to this request. Having answered the core issues and to avoid prolixity, we do not wish to dilate on the exposition in other reported decisions relied upon by the counsel.
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Kailash Chandra Vs. Union Of India | left entirely to the authoritys decision. Thus, after the age of 55 is reached by the servant the authority has to exercise its discretion whether or not to retain the servant; and there is no right in the servant to be retained, even if he continues to be efficient.9. Reliance was place by learned counsel on an observation of Mukherjea, J. (as he then was), in Jai Ram v. Union of India, AIR 1954 SC 584 when speaking for the Court as regards this rule his Lordship said:-"We think it is a possible view to take upon the language of this rule that a ministerial servant coming within the purview has normally the right be retained in service till he reaches the age of 60. This is conditional undoubtedly upon his continuing to be efficient. We may assume therefore for purposes of this case that the plaintiff had the right to continue in service till 60 and could not be retired before that except on the ground of inefficiency."10. It would be wholly unreasonable however to consider this as a decision on the question of what this rule means, Dealing with an argument that as the plaintiff under this rule has the right to continue in service till 60 and could not be retired before that except on the ground of inefficiency certain results follow, the Court assumed for the sake of argument that this interpretation was possible and proceeded to deal with the learned counsels argument on that basis. It was not intended to say that this was the correct interpretation that should be put on the words of the rule.11. The correct interpretation of R. 2046 (1) (a) of the Code, in our opinion, is that a railway ministerial servant falling within this clause may be compulsorily retired on attaining the age of 55 but when the servant is between the age of 55 and 60 the appropriate authority has the option to continue him in service, subject to the condition that the servant continues to be efficient but the authority is not bound to retain him even if a servant continues to be efficient.12. It may be mentioned that this interpretation of the rule has been adopted by several High Courts in India: Basant Kumar Pal v. Chief Electrical Engineer, AIR 1956 Cal 93 ; Krishan Dayal v. General Manager, Northern Rly., AIR 1954 Punj 245 and Raghunath Narain v. Union of India, AIR 1953 All 352 .13. We therefore hold that the High Court was right in holding that this rule gave the plaintiff no right to continue in service beyond the age of 55.14. It was next urged by Mr. Aggarwal, though faintly, that the notification of the Railway Board dated October 19, 1948, and the further notification dated April 15, 1952, as a result of which ministerial servants who were retired under R. 2046(1)(a) before attaining the age of 60 after September 8, 1948, have been given special treatment are discriminatory. It appears that on September 8, 1948, the Government of India came to a decision that no ministerial Government servant to whom the fundamental R. 56(b) (i) applied and who has attained the age of 55 years but has not attained the age of 60 years could be required to retire from service unless be has been given a reasonable opportunity to show cause against the proposed retirement and unless any representation that he may desire to make in this connection has been duly considered.15. This decision was communicated to different departments of the Government of India and it was directed that this should be noted "for future guidance". On October 19, 1948, the Ministry of Railways issued a notification for dealing with cases of retirement of ministerial servants governed by R. 2046(2)(a) (which corresponded to fundamental R. 56(b)(i) in the manner as directed by the Government of Indias notification dated September 8, 1948. This notification of October 19, 1948, again made it clear that it had been decided not to take any action in respect of ministerial servants who had already been retired. Again, in a notification dated April 15, 1952, the Railway Board communicated a decision that "such of the ministerial servants who had been retired after 8th September, 1948, but before attaining the age of 60 years without complying with Art. 311 (2) of the Constitution should be taken back to duty" under certain conditions.16. The appellants contention is that the denial of this advantage given to other ministerial servants falling within R. 2046(1) (a) who had been retired after September 8, 1948, is unconstitutional. We do not think that this contention has any substance. What happened was that on September 8, 1948, the Government took a decision that ministerial servants should not be retired under the rule in question on attainment of 55 years of age if they were efficient without giving them an opportunity of showing cause against the action and accordingly from that date it changed its procedure as regards the exercise of the option to retire servants between the age of 55 and 60. The decision that nothing should be done as regards those who had already retired on that date cannot be said to have been arbitrarily made. The formation of a different class of those who retired after September 8, 1948, from those who had retired before that date on which the decision was taken is a reasonable classification and does not offend Art. 14 of the Constitution. This contention is therefore also rejected.17. The High Court was therefore right, in our opinion, in holding that there was a reasonable classification of the ministerial servants who had been retired under R. 2046(2)(a) on attaining the age of 55 into two classes: one class consisting of those who had been retired after September 8, 1948, and the other consisting of those who retired up to September 8, 1948. There is, therefore, no denial of equal protection of laws guaranteed by Art. 14 of the Constitution.18. | 0[ds]It is clear therefore that whereas the authority appropriate to make the order of compulsory retirement or of retention is given no discretion by itself to retain a ministerial railway servant under cl. (b) if he attains the age of 55 years, that is not the position as regards the ministerial servants who fall under cl.are constrained to say that the language used in this rule is unnecessarily involved; but at the same time it is reasonably clear that the defect in the language creates no doubt as regards the intention of the rule-making authority. That intention, in our opinion, is that the right conferred by the first part is not in any way limited or cut down by the second part of the sentence; but the draftsman has thought fit by inserting the second clause to give to the appropriate authority an option to retain the servant for five years more, subject to the condition that he continues to be efficient. If this condition is not satisfied the appropriate authority has no option to retain the servant; where however the condition is satisfied the appropriate authority has the option to do so but is not bound to exercise the option. If the intention had been to cut down the right conferred on the authority to retire a servant at the age of 55 years the proper language to express such intention would have been; ......"may be required to retire at the age of 55 years provided however that he shall be retained in service if he continues to be efficient up to the age of 60 years" or some such similar words. The use of "should ordinarily be retained in service" is sufficient index to the mind of the rule-making authority that the right conferred by the first clause of the sentencethese words without the word "ordinarily" we find it unreasonable to think that it indicates any intention to cut down at all the right to require the servant to retire at the age of 55 years or to create in the servant any right to continue beyond the age of 55 years if he continues to be efficient. They are much more appropriate to express the intention that as soon as the age of 55 years is reached the appropriate authority has the right to require the servant to retire but that between the age of 55 and 60 the appropriate authority is given the option to retain the servant but is not bound to do so.8. This intention is made even more clear and beyond doubt by the use of the word "ordinarily". "Ordinarily" means "in the large majority of cases but not invariably". This itself emphasises the fact that the appropriate authority is not bound to retain the servant after he attains the age of 55 even if he continues to be efficient. The intention of the second clause therefore clearly is that while under the first clause the appropriate authority has the right to retire the servant who falls within cl. (a) as soon as he attains the age of 55, it will, at that stage, consider whether or not to retain him further. This option to retain for the further period of five years can only be exercised if the servant continues to be efficient; but in deciding whether or not to exercise this option the authority has to consider circumstances other than the question of efficiency also; in the absence of special circumstances he "should" retain the servant; but what are special circumstances is left entirely to the authoritys decision. Thus, after the age of 55 is reached by the servant the authority has to exercise its discretion whether or not to retain the servant; and there is no right in the servant to be retained, even if he continues to be efficient.It would be wholly unreasonable however to consider this as a decision on the question of what this rule means, Dealing with an argument that as the plaintiff under this rule has the right to continue in service till 60 and could not be retired before that except on the ground of inefficiency certain results follow, the Court assumed for the sake of argument that this interpretation was possible and proceeded to deal with the learned counsels argument on that basis. It was not intended to say that this was the correct interpretation that should be put on the words of the rule.11. The correct interpretation of R. 2046 (1) (a) of the Code, in our opinion, is that a railway ministerial servant falling within this clause may be compulsorily retired on attaining the age of 55 but when the servant is between the age of 55 and 60 the appropriate authority has the option to continue him in service, subject to the condition that the servant continues to be efficient but the authority is not bound to retain him even if a servant continues to be efficient.We therefore hold that the High Court was right in holding that this rule gave the plaintiff no right to continue in service beyond the age ofappears that on September 8, 1948, the Government of India came to a decision that no ministerial Government servant to whom the fundamental R. 56(b) (i) applied and who has attained the age of 55 years but has not attained the age of 60 years could be required to retire from service unless be has been given a reasonable opportunity to show cause against the proposed retirement and unless any representation that he may desire to make in this connection has been duly considered.This decision was communicated to different departments of the Government of India and it was directed that this should be noted "for future guidance". On October 19, 1948, the Ministry of Railways issued a notification for dealing with cases of retirement of ministerial servants governed by R. 2046(2)(a) (which corresponded to fundamental R. 56(b)(i) in the manner as directed by the Government of Indias notification dated September 8, 1948. This notification of October 19, 1948, again made it clear that it had been decided not to take any action in respect of ministerial servants who had already been retired. Again, in a notification dated April 15, 1952, the Railway Board communicated a decision that "such of the ministerial servants who had been retired after 8th September, 1948, but before attaining the age of 60 years without complying with Art. 311 (2) of the Constitution should be taken back to duty" under certaindo not think that this contention has any substance. What happened was that on September 8, 1948, the Government took a decision that ministerial servants should not be retired under the rule in question on attainment of 55 years of age if they were efficient without giving them an opportunity of showing cause against the action and accordingly from that date it changed its procedure as regards the exercise of the option to retire servants between the age of 55 and 60. The decision that nothing should be done as regards those who had already retired on that date cannot be said to have been arbitrarily made. The formation of a different class of those who retired after September 8, 1948, from those who had retired before that date on which the decision was taken is a reasonable classification and does not offend Art. 14 of the Constitution. This contention is therefore also rejected.The High Court was therefore right, in our opinion, in holding that there was a reasonable classification of the ministerial servants who had been retired under R. 2046(2)(a) on attaining the age of 55 into two classes: one class consisting of those who had been retired after September 8, 1948, and the other consisting of those who retired up to September 8, 1948. There is, therefore, no denial of equal protection of laws guaranteed by Art. 14 of the Constitution. | 0 | 3,044 | 1,450 | ### Instruction:
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left entirely to the authoritys decision. Thus, after the age of 55 is reached by the servant the authority has to exercise its discretion whether or not to retain the servant; and there is no right in the servant to be retained, even if he continues to be efficient.9. Reliance was place by learned counsel on an observation of Mukherjea, J. (as he then was), in Jai Ram v. Union of India, AIR 1954 SC 584 when speaking for the Court as regards this rule his Lordship said:-"We think it is a possible view to take upon the language of this rule that a ministerial servant coming within the purview has normally the right be retained in service till he reaches the age of 60. This is conditional undoubtedly upon his continuing to be efficient. We may assume therefore for purposes of this case that the plaintiff had the right to continue in service till 60 and could not be retired before that except on the ground of inefficiency."10. It would be wholly unreasonable however to consider this as a decision on the question of what this rule means, Dealing with an argument that as the plaintiff under this rule has the right to continue in service till 60 and could not be retired before that except on the ground of inefficiency certain results follow, the Court assumed for the sake of argument that this interpretation was possible and proceeded to deal with the learned counsels argument on that basis. It was not intended to say that this was the correct interpretation that should be put on the words of the rule.11. The correct interpretation of R. 2046 (1) (a) of the Code, in our opinion, is that a railway ministerial servant falling within this clause may be compulsorily retired on attaining the age of 55 but when the servant is between the age of 55 and 60 the appropriate authority has the option to continue him in service, subject to the condition that the servant continues to be efficient but the authority is not bound to retain him even if a servant continues to be efficient.12. It may be mentioned that this interpretation of the rule has been adopted by several High Courts in India: Basant Kumar Pal v. Chief Electrical Engineer, AIR 1956 Cal 93 ; Krishan Dayal v. General Manager, Northern Rly., AIR 1954 Punj 245 and Raghunath Narain v. Union of India, AIR 1953 All 352 .13. We therefore hold that the High Court was right in holding that this rule gave the plaintiff no right to continue in service beyond the age of 55.14. It was next urged by Mr. Aggarwal, though faintly, that the notification of the Railway Board dated October 19, 1948, and the further notification dated April 15, 1952, as a result of which ministerial servants who were retired under R. 2046(1)(a) before attaining the age of 60 after September 8, 1948, have been given special treatment are discriminatory. It appears that on September 8, 1948, the Government of India came to a decision that no ministerial Government servant to whom the fundamental R. 56(b) (i) applied and who has attained the age of 55 years but has not attained the age of 60 years could be required to retire from service unless be has been given a reasonable opportunity to show cause against the proposed retirement and unless any representation that he may desire to make in this connection has been duly considered.15. This decision was communicated to different departments of the Government of India and it was directed that this should be noted "for future guidance". On October 19, 1948, the Ministry of Railways issued a notification for dealing with cases of retirement of ministerial servants governed by R. 2046(2)(a) (which corresponded to fundamental R. 56(b)(i) in the manner as directed by the Government of Indias notification dated September 8, 1948. This notification of October 19, 1948, again made it clear that it had been decided not to take any action in respect of ministerial servants who had already been retired. Again, in a notification dated April 15, 1952, the Railway Board communicated a decision that "such of the ministerial servants who had been retired after 8th September, 1948, but before attaining the age of 60 years without complying with Art. 311 (2) of the Constitution should be taken back to duty" under certain conditions.16. The appellants contention is that the denial of this advantage given to other ministerial servants falling within R. 2046(1) (a) who had been retired after September 8, 1948, is unconstitutional. We do not think that this contention has any substance. What happened was that on September 8, 1948, the Government took a decision that ministerial servants should not be retired under the rule in question on attainment of 55 years of age if they were efficient without giving them an opportunity of showing cause against the action and accordingly from that date it changed its procedure as regards the exercise of the option to retire servants between the age of 55 and 60. The decision that nothing should be done as regards those who had already retired on that date cannot be said to have been arbitrarily made. The formation of a different class of those who retired after September 8, 1948, from those who had retired before that date on which the decision was taken is a reasonable classification and does not offend Art. 14 of the Constitution. This contention is therefore also rejected.17. The High Court was therefore right, in our opinion, in holding that there was a reasonable classification of the ministerial servants who had been retired under R. 2046(2)(a) on attaining the age of 55 into two classes: one class consisting of those who had been retired after September 8, 1948, and the other consisting of those who retired up to September 8, 1948. There is, therefore, no denial of equal protection of laws guaranteed by Art. 14 of the Constitution.18.
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to cut down at all the right to require the servant to retire at the age of 55 years or to create in the servant any right to continue beyond the age of 55 years if he continues to be efficient. They are much more appropriate to express the intention that as soon as the age of 55 years is reached the appropriate authority has the right to require the servant to retire but that between the age of 55 and 60 the appropriate authority is given the option to retain the servant but is not bound to do so.8. This intention is made even more clear and beyond doubt by the use of the word "ordinarily". "Ordinarily" means "in the large majority of cases but not invariably". This itself emphasises the fact that the appropriate authority is not bound to retain the servant after he attains the age of 55 even if he continues to be efficient. The intention of the second clause therefore clearly is that while under the first clause the appropriate authority has the right to retire the servant who falls within cl. (a) as soon as he attains the age of 55, it will, at that stage, consider whether or not to retain him further. This option to retain for the further period of five years can only be exercised if the servant continues to be efficient; but in deciding whether or not to exercise this option the authority has to consider circumstances other than the question of efficiency also; in the absence of special circumstances he "should" retain the servant; but what are special circumstances is left entirely to the authoritys decision. Thus, after the age of 55 is reached by the servant the authority has to exercise its discretion whether or not to retain the servant; and there is no right in the servant to be retained, even if he continues to be efficient.It would be wholly unreasonable however to consider this as a decision on the question of what this rule means, Dealing with an argument that as the plaintiff under this rule has the right to continue in service till 60 and could not be retired before that except on the ground of inefficiency certain results follow, the Court assumed for the sake of argument that this interpretation was possible and proceeded to deal with the learned counsels argument on that basis. It was not intended to say that this was the correct interpretation that should be put on the words of the rule.11. The correct interpretation of R. 2046 (1) (a) of the Code, in our opinion, is that a railway ministerial servant falling within this clause may be compulsorily retired on attaining the age of 55 but when the servant is between the age of 55 and 60 the appropriate authority has the option to continue him in service, subject to the condition that the servant continues to be efficient but the authority is not bound to retain him even if a servant continues to be efficient.We therefore hold that the High Court was right in holding that this rule gave the plaintiff no right to continue in service beyond the age ofappears that on September 8, 1948, the Government of India came to a decision that no ministerial Government servant to whom the fundamental R. 56(b) (i) applied and who has attained the age of 55 years but has not attained the age of 60 years could be required to retire from service unless be has been given a reasonable opportunity to show cause against the proposed retirement and unless any representation that he may desire to make in this connection has been duly considered.This decision was communicated to different departments of the Government of India and it was directed that this should be noted "for future guidance". On October 19, 1948, the Ministry of Railways issued a notification for dealing with cases of retirement of ministerial servants governed by R. 2046(2)(a) (which corresponded to fundamental R. 56(b)(i) in the manner as directed by the Government of Indias notification dated September 8, 1948. This notification of October 19, 1948, again made it clear that it had been decided not to take any action in respect of ministerial servants who had already been retired. Again, in a notification dated April 15, 1952, the Railway Board communicated a decision that "such of the ministerial servants who had been retired after 8th September, 1948, but before attaining the age of 60 years without complying with Art. 311 (2) of the Constitution should be taken back to duty" under certaindo not think that this contention has any substance. What happened was that on September 8, 1948, the Government took a decision that ministerial servants should not be retired under the rule in question on attainment of 55 years of age if they were efficient without giving them an opportunity of showing cause against the action and accordingly from that date it changed its procedure as regards the exercise of the option to retire servants between the age of 55 and 60. The decision that nothing should be done as regards those who had already retired on that date cannot be said to have been arbitrarily made. The formation of a different class of those who retired after September 8, 1948, from those who had retired before that date on which the decision was taken is a reasonable classification and does not offend Art. 14 of the Constitution. This contention is therefore also rejected.The High Court was therefore right, in our opinion, in holding that there was a reasonable classification of the ministerial servants who had been retired under R. 2046(2)(a) on attaining the age of 55 into two classes: one class consisting of those who had been retired after September 8, 1948, and the other consisting of those who retired up to September 8, 1948. There is, therefore, no denial of equal protection of laws guaranteed by Art. 14 of the Constitution.
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JAYPEE KENSINGTON BOULEVARD APARTMENTS WELFARE ASSOCIATION & ORS Vs. NBCC (INDIA) LTD. & ORS | N infra. Point L Other issues requiring clarification/directions 207. In its detailed submissions, NBCC has also raised an issue that in Clause 7 Schedule 3 of the resolution plan, reduction of share capital is being sought for the corporate debtor and not for the companies yet incorporated but the Adjudicating Authority has erroneously made the observations in its order that such reduction was not a part of this resolution. The resolution applicant NBCC has sought clarification in this regard. The relevant clause in the resolution plan reads as under: - 7. The approval of this Plan by the Adjudicating Authority shall be deemed to have waived all the procedural requirements in terms of Section 66, Section 42, Section 62(1), Section 71 of the CA, 2013 and relevant rules made thereunder, in relation to reduction of share capital of the Corporate Debtor, issuance of shares by Expressway SPV, Land Bank SPV, conversion of Admitted Financial Debt due to the Institutional Financial Creditors to equity, subscription of debentures by the Corporate Debtor or transfer of shares of the Land Bank SPV from the Corporate Debtor to Institutional Financial Creditors. 208. The observations by the Adjudicating Authority as regards this clause are that since reduction of the share capital of corporate debtor is not a part of the resolution plan, the Adjudicating Authority cannot waive the procedure for reduction of share capital in relation to the companies not yet incorporated. 209. When the resolution plan with all its reliefs and concessions was approved by CoC and the plan was otherwise being approved by the Adjudicating Authority (albeit with modifications), the aforesaid observations in regard to Clause 7 of reliefs and concessions cannot be said to be of apt dealing with the relief sought. Be that as it may, having regard to the purport and purpose of the said Clause 7 and its approval by CoC, we find no reason as to why the same may not be approved. Hence, the impugned order of the Adjudicating Authority dated 03.03.2020 shall be read as modified and in approval of the said Clause 7 of reliefs and concessions. 210. In the last, NBCC has also prayed for directions to JAL and its sub-contractors or any other person having control over the project sites/lands of JIL to immediately hand over possession/control thereof to JIL and has also prayed for directions to the local administration for necessary support in that regard. We do not find any reason to make any such generalised observations or directions but would leave it open for the resolution applicant to take recourse to the appropriate proceedings in accordance with law, whenever occasion so arise. Point M Modified mechanism for implementation by the Appellate Authority 211. We have formulated this point for determination only in view of the fact that the interim order dated 22.04.2020, as passed by NCLAT while dealing with the appeal filed by NBCC against the said order dated 03.03.2020, has been challenged by the associations and individual homebuyers before this Court. Although in view of what has been discussed and held hereinbefore, all the issues related with the resolution plan and the impugned order of NCLT dated 03.03.2020 stand determined comprehensively and the related appeals before NCLAT, already withdrawn to this Court, shall also come to an end. Therefore, not much of discussion is required on this point but, a few comments in regard to the proposition adopted by the Appellate Authority appear necessary. 212. It appears that the proposition, of providing for Interim Monitoring Committee comprising of the representatives of three institutional financial creditors and the resolution applicant as also the resolution professional, was picked up by the Appellate Authority with reference to the stipulation in Point No. 2(a) of Part A of the resolution plan, where it was provided under the heading Management Team and sub-heading Appointment of Monitoring Agency that on and from the approval date and until the transfer date, the corporate debtor will be managed by a monitoring agency or any other person appointed by the resolution applicant in consultation with a Steering Committee comprising of three major institutional financial creditors. 212.1. In our view, even if the resolution plan carried such a management framework, the Appellate Authority, while dealing with the appeal against approval of the resolution plan, could not have provided for such a mechanism which is not envisaged by the Code. 213. The Code lays down detailed procedure for corporate insolvency resolution process and such a proposition, for constitution of any Interim Monitoring Committee during the pendency of appeal before the Appellate Authority (NCLAT) is neither envisaged by law nor appears justified. It is apparent on a bare perusal of sub-section (3) of Section 61 of the Code that any challenge to the order approving a resolution plan under Section 31 could be maintained only on the grounds specified therein. Obviously, while dealing with such appeals, the Appellate Authority is required to remain within the confines of the boundaries delineated by the Code rather than seeking to provide for a mechanism, for implementation of the plan. 214. Moreover, looking to the peculiar features of this resolution process, which has its own complications, constitution of such a Committee, consisting only of the resolution professional, the resolution applicant and the institutional financial creditors while leaving aside the biggest chunk of stakeholders i.e., the homebuyers (having more than 57% of the voting share in the CoC), would have caused more difficulties in implementation of the resolution plan rather than serving any purpose. 215. While entertaining the captioned appeals and directing transfer of the related cases pending before NCLAT to this Court by our order dated 06.08.2020, we had stayed the operation of the impugned order dated 22.04.2020 while allowing the IRP to continue with the management of the affairs of the corporate debtor. While concluding on these matters, it appears appropriate and necessary that the said order dated 22.04.2020 by NCLAT be disapproved and set aside. Point N Summation of findings; final order and conclusion | 1[ds]61. The factual and background aspects relating to this batch of matters make it evident that the insolvency resolution of the corporate debtor JIL carries with it vexed and strikingly intricate issues where twice over this Court had exercised its plenary powers under Article 142 of the Constitution of India to ensure complete justice in the cause and yet, for a variety of reasons, the insolvency resolution is eluding the corporate debtor JIL; and even when the resolution plan is said to have been approved by a vast majority of 97.36% of the voting share of Committee of Creditors, several issues are still hovering over with an assortment of grievances of different stakeholders and role players. Even the very process taken up by the Committee of Creditors has been questioned apart from several questions over one or the other stipulation in the resolution plan. Further, several questions have spurt up on the order passed by the Adjudicating Authority, wherein some of the objections have been accepted and the plan has been modified while a few other objections have been rejected. Modification of the resolution plan by the Adjudicating Authority has given the resolution applicant and even IRP several causes to be discontented with and at the same time, rejection of some of the objections has also been challenged by the objectors. This apart, some of the stakeholders, who did not raise objections before the Adjudicating Authority, have also raised their grievances against the plan. Put in a nutshell, this process of resolution is yet to pass through a maze of hurdles.61.1. Having regard to the peculiar circumstances of this case, we had withdrawn all the appeals pending before NCLAT to this Court and have heard the entire matter at sufficient length, while extending opportunity of making oral and written submissions to practically all the parties who wished to put their say on record.63.2. In the judgment delivered on 25.01.2019 in the case of Swiss Ribbons Private Limited and Anr. v. Union of India and Ors.: (2019) 4 SCC 17 (Hereinafter also referred to as the case of Swiss Ribbons.), this Court traversed through the historical background and scheme of the Code in the wake of challenge to the constitutional validity of various provisions therein. One part of such challenge had been founded on the ground that the classification between financial creditor and operational creditor was discriminatory and violative of Article 14 of the Constitution of India. This ground as also several other grounds pertaining to various provisions of the Code were rejected by this Court after elaborate dilation on the vast variety of rival contentions. In the course, this Court took note, inter alia, of the pre-existing state of law as also the objects and reasons for enactment of the Code. While observing that focus of the Code was to ensure revival and continuation of the corporate debtor, where liquidation would be the last resort, this Court pointed out that on its scheme and framework, the Code was a beneficial legislation to put the corporate debtor on its feet, and not a mere recovery legislation for the creditors. This Court said, -27. As is discernible, the Preamble gives an insight into what is sought to be achieved by the Code. The Code is first and foremost, a Code for reorganisation and insolvency resolution of corporate debtors. Unless such reorganisation is effected in a time-bound manner, the value of the assets of such persons will deplete. Therefore, maximisation of value of the assets of such persons so that they are efficiently run as going concerns is another very important objective of the Code. This, in turn, will promote entrepreneurship as the persons in management of the corporate debtor are removed and replaced by entrepreneurs. When, therefore, a resolution plan takes off and the corporate debtor is brought back into the economic mainstream, it is able to repay its debts, which, in turn, enhances the viability of credit in the hands of banks and financial institutions. Above all, ultimately, the interests of all stakeholders are looked after as the corporate debtor itself becomes a beneficiary of the resolution scheme—workers are paid, the creditors in the long run will be repaid in full, and shareholders/investors are able to maximise their investment. Timely resolution of a corporate debtor who is in the red, by an effective legal framework, would go a long way to support the development of credit markets. Since more investment can be made with funds that have come back into the economy, business then eases up, which leads, overall, to higher economic growth and development of the Indian economy. What is interesting to note is that the Preamble does not, in any manner, refer to liquidation, which is only availed of as a last resort if there is either no resolution plan or the resolution plans submitted are not up to the mark. Even in liquidation, the liquidator can sell the business of the corporate debtor as a going concern. (See ArcelorMittal(ArcelorMittal (India) (P) Ltd. v. Satish Kumar Gupta & Ors: (2019) 2 SCC 1 ) at para 83, fn 3)28. It can thus be seen that the primary focus of the legislation is to ensure revival and continuation of the corporate debtor by protecting the corporate debtor from its own management and from a corporate death by liquidation. The Code is thus a beneficial legislation which puts the corporate debtor back on its feet, not being a mere recovery legislation for creditors. The interests of the corporate debtor have, therefore, been bifurcated and separated from that of its promoters/those who are in management. Thus, the resolution process is not adversarial to the corporate debtor but, in fact, protective of its interests…..64. Keeping in view the objectives of the Code and observations of this Court, we may now take an overview of the scheme and structure of the relevant parts of the Code. Part I thereof contains the provisions regarding title, extent, commencement and application of the Code as also the definition and meaning of various expressions used in the Code. Different provisions have come into force on different dates, as permissible under proviso to sub-section (3) of Section 1. Part II of the Code deals with insolvency resolution and liquidation for corporate persons. Chapter I of Part II makes provision for its applicability and also defines various expressions used in this Part (Sections 4 and 5). Chapter II of Part II contains the provisions for corporate insolvency resolution process in Sections 6 to 32 whereas Chapter III of this Part II contains the provisions for liquidation process in Sections 33 to 54(Sections 4 to 32 came into force on 01.12.2016 whereas Section 33 to 54 came into force on 15.12.2016.).64.1. A glance at Chapter II of Part II would inform that it contains the blueprint for the process of insolvency resolution in relation to the corporate debtors to whom this Part applies, while specifying the persons who could initiate the process; the manner and impact of such initiation; the roles and rights as also duties of key persons and entities to be involved in the resolution process like the resolution professional, the Committee of Creditors, the authorised representative of financial creditors and the resolution applicant; the matters essential for preparation of the resolution plan; the submission and approval of the resolution plan; and the appeal against approval of the resolution plan.65. As noticed, as per the requirements of the Code read with the orders passed by this Court in the cases of Chitra Sharma and Jaiprakash Associates Ltd. (supra), the insolvency resolution process in relation to the corporate debtor JIL has already passed through the stages of initiation, appointment of interim resolution professional, constitution and reconstitution of the Committee of Creditors, submission and resubmission of resolution plans, approval of the resolution plan of NBCC by the Committee of Creditors, submission of the said resolution plan to the Adjudicating Authority, and its approval by the Adjudicating Authority, albeit with some modifications.Thus, on the issues raised and points arising for determination, the focus in the present case is on the dispensation governing the process of approval of the resolution plan by CoC who, under Section 30(4) of the Code, considers and votes at the resolution plan after it has been verified by the resolution professional as being compliant with the statutory requirements specified in Section 30(2) of the Code; and on the approval of resolution plan by the Adjudicating Authority in terms of Section 31 of the Code.66.1. In the scheme of IBC, the script of corporate insolvency resolution process, to a large extent, revolves around the resolution professional. When CIRP gets initiated with admission of the application by the Adjudicating Authority as per Sections 7, 9 or 10, as the case may be, an interim resolution professional is appointed by the Adjudicating Authority in terms of Section 13(1)(c) and in the manner laid down in Section 16. Collating and admitting the claims of all creditors; appointing and convening the meetings of the Committee of Creditors; and running the business of the corporate debtor as a going concern during the intermediate period are the key tasks assigned to the interim resolution professional, as distinctly appears from Sections 15, 17, 18 and 20 of the Code. Further, in the scheme of IBC, the Committee of Creditors, in its first meeting to be held within seven days of its constitution, has to resolve to appoint the interim resolution professional as a resolution professional or to replace him by another resolution professional (vide Section 22 IBC). In terms of Section 23, the resolution professional is to conduct the entire CIRP and manage the operations of the corporate debtor during the period of CIRP. His duties and responsibilities extend to the conduct of all the meetings of the Committee of Creditors, giving notice of such meetings to the members of CoC, to the members of the suspended Board of Directors and to the operational creditors, if amount of their aggregate dues is not less than 10% of the debt. Akin to the duties of the interim resolution professional under Section 18 of the Code, the resolution professional is also required to preserve and protect the assets of the corporate debtor while continuing with the business operations and while undertaking the actions contemplated by Section 25(2) of the Code. Significantly, the resolution professional is also required to prepare the information memorandum in terms of Section 29 of the Code; invite prospective resolution applicants; and present the resolution plans at the meeting of the Committee of Creditors, while duly examining them as required by Section 30 of the Code. These compliances are duly regulated by Regulations 35, 36, 36A and 36B of the CIRP Regulations.66.1.1. Taking note of the relevant provisions, this Court in the case of Essar Steel (supra) summed up the key role of the resolution professional in the following terms: -48. The detailed provisions that have been stated hereinabove make it clear that the resolution professional is a person who is not only to manage the affairs of the corporate debtor as a going concern from the stage of admission of an application under Sections 7, 9 or 10 of the Code till a resolution plan is approved by the Adjudicating Authority, but is also a key person who is to appoint and convene meetings of the Committee of Creditors, so that they may decide upon resolution plans that are submitted in accordance with the detailed information given to resolution applicants by the resolution professional. Another very important function of the resolution professional is to collect, collate and finally admit claims of all creditors, which must then be examined for payment, in full or in part or not at all, by the resolution applicant and be finally negotiated and decided by the Committee of Creditors.66.2. Further, the role of prospective resolution applicant has also been explained in Essar Steel with reference, inter alia, to UNCITRAL Legislative Guide as also Regulations 37 and 38 of the CIRP Regulations on the contents of a resolution plan, while pointing out the rights of a prospective resolution applicant to receive necessary information as also its duty to prepare the resolution plan providing for necessary measures for insolvency resolution of the corporate debtor with maximisation of the value of its assets.67. While in their representative roles, the resolution professional and the resolution applicant are duty bound to ensure that the resolution plan is prepared in conformity with the requirements of the Code and the CIRP Regulations and is properly presented for consideration, the central role in taking the decision as to whether a resolution plan be adopted or not, in the same form as presented to it or in a modified form; and as to whether the attempt for revival of corporate debtor be made or not, ultimately rests with the pivotal body, comprising of the financial creditors of the corporate debtor and termed as Committee of Creditors. As noticed from the provisions above-quoted, the final decision on a resolution plan is taken by the Committee of Creditors; and, for approval, a resolution plan is required to be voted in favour by not less than 66% of the voting share of the financial creditors, as per Section 30(4) of the Code. It is also relevant to point out that though the resolution professional is to run the business of the corporate debtor as a going concern during the corporate insolvency resolution process but, as per Section 28(3) of the Code, he cannot take certain decisions relating to the management of the corporate debtor without prior approval of the Committee of Creditors by a vote of at least 66% of the voting shares.67.1. It is, therefore, evident that corporate insolvency resolution, with approval of the plan of resolution, is ultimately in the exclusive domain of the Committee of Creditors. Even during the resolution process, major decisions as regards management and finances of the corporate debtor are in the control of the Committee of Creditors. As per the composition delineated in Section 21 of the Code, the Committee of Creditors is comprised of all financial creditors of the corporate debtor; and the frame of Section 21 puts it beyond doubt that the voting share of each financial creditor is determined on the basis of financial debt owed to it. It is also clear from Section 30(4) as also Section 28(3) that the major decisions of approval are to be taken by the Committee of Creditors by a vote of at least 66% of the voting share of the financial creditors and not by a simple majority. The reasons and purpose for assigning such a unique and decisive role in corporate insolvency resolution to the Committee of Creditors and for that matter, to a substantial block of not less than 2/3rd of voting share of the financial creditors, were extensively delineated in the report of the Bankruptcy Law Reforms Committee of November, 2015 while remarking on the essential theme that the appropriate disposition of a defaulting firm is a business decision, and only the creditors should make it.67.2. In the case of K. Sashidhar (supra), while setting out the relevant extracts from the said Report, this Court exposited on the primacy of the commercial wisdom of the Committee of Creditors in the corporate insolvency resolution process in the following terms: -52. As aforesaid, upon receipt of a rejected resolution plan the adjudicating authority (NCLT) is not expected to do anything more; but is obligated to initiate liquidation process under Section 33(1) of the I&B Code. The legislature has not endowed the adjudicating authority (NCLT) with the jurisdiction or authority to analyse or evaluate the commercial decision of CoC much less to enquire into the justness of the rejection of the resolution plan by the dissenting financial creditors. From the legislative history and the background in which the I&B Code has been enacted, it is noticed that a completely new approach has been adopted for speeding up the recovery of the debt due from the defaulting companies. In the new approach, there is a calm period followed by a swift resolution process to be completed within 270 days (outer limit) failing which, initiation of liquidation process has been made inevitable and mandatory. In the earlier regime, the corporate debtor could indefinitely continue to enjoy the protection given under Section 22 of the Sick Industrial Companies Act, 1985 or under other such enactments which has now been forsaken. Besides, the commercial wisdom of CoC has been given paramount status without any judicial intervention, for ensuring completion of the stated processes within the timelines prescribed by the I&B Code. There is an intrinsic assumption that financial creditors are fully informed about the viability of the corporate debtor and feasibility of the proposed resolution plan. They act on the basis of thorough examination of the proposed resolution plan and assessment made by their team of experts. The opinion on the subject-matter expressed by them after due deliberations in CoC meetings through voting, as per voting shares, is a collective business decision. The legislature, consciously, has not provided any ground to challenge the commercial wisdom of the individual financial creditors or their collective decision before the adjudicating authority. That is made non-justiciable.53. In the report of the Bankruptcy Law Reforms Committee of November 2015, primacy has been given to CoC to evaluate the various possibilities and make a decision. It has been observed thus:The key economic question in the bankruptcy processWhen a firm (referred to as the corporate debtor in the draft law) defaults, the question arises about what is to be done. Many possibilities can be envisioned. One possibility is to take the firm into liquidation. Another possibility is to negotiate a debt restructuring, where the creditors accept a reduction of debt on an NPV basis, and hope that the negotiated value exceeds the liquidation value. Another possibility is to sell the firm as a going concern and use the proceeds to pay creditors. Many hybrid structures of these broad categories can be envisioned.The Committee believes that there is only one correct forum for evaluating such possibilities, and making a decision: a creditors committee, where all financial creditors have votes in proportion to the magnitude of debt that they hold. In the past, laws in India have brought arms of the Government (legislature, executive or judiciary) into this question. This has been strictly avoided by the Committee. The appropriate disposition of a defaulting firm is a business decision, and only the creditors should make it.67.3. In Essar Steel (supra), a 3-Judge Bench of this Court surveyed almost all the relevant provisions concerning corporate insolvency resolution process; and, as noticed above, explained the assignments of different role players in this process. In that context, this Court again explained the primacy endowed on the commercial wisdom of the Committee of Creditors and reasons therefor, with a further detailed reference to the aforesaid report of the Bankruptcy Law Reforms Committee of November, 2015. Apart from the passage from the said report that was noticed in K. Sashidhar (reproduced hereinabove), the Court noticed various other passages from this report in Essar Steel; and one part thereof, which further underscores the rationale for only financial creditors handling the process of resolution, could be usefully reproduced as under (part of paragraph 56 at p. 578 of SCC): -5.3.1. Steps at the start of the IRP4. Creation of the creditors committeeThe creditors committee will have the power to decide the final solution by majority vote in the negotiations. The majority vote requires more than or equal to 75 per cent of the creditors committee by weight of the total financial liabilities. The majority vote will also involve a cram down option on any dissenting creditors once the majority vote is obtained. …The Committee deliberated on who should be on the creditors committee, given the power of the creditors committee to ultimately keep the entity as a going concern or liquidate it. The Committee reasoned that members of the creditors committee have to be creditors both with the capability to assess viability, as well as to be willing to modify terms of existing liabilities in negotiations. Typically, operational creditors are neither able to decide on matters regarding the insolvency of the entity, nor willing to take the risk of postponing payments for better future prospects for the entity. The Committee concluded that, for the process to be rapid and efficient, the Code will provide that the creditors committee should be restricted to only the financial creditors.67.4. In Essar Steel, the Court referred to the above-quoted and other passages from the judgement in K. Sashidhar (supra) and explained the decisive role of the commercial wisdom of the Committee of Creditors, inter alia, in the following passages: -54. Since it is the commercial wisdom of the Committee of Creditors that is to decide on whether or not to rehabilitate the corporate debtor by means of acceptance of a particular resolution plan, the provisions of the Code and the Regulations outline in detail the importance of setting up of such Committee, and leaving decisions to be made by the requisite majority of the members of the aforesaid Committee in its discretion.……59. Even though it is the resolution professional who is to run the business of the corporate debtor as a going concern during the intermediate period, yet, such resolution professional cannot take certain decisions relating to management of the corporate debtor without the prior approval of at least 66% of the votes of the Committee of Creditors…….60. Thus, it is clear that since corporate resolution is ultimately in the hands of the majority vote of the Committee of Creditors, nothing can be done qua the management of the corporate debtor by the resolution professional which impacts major decisions to be made in the interregnum between the taking over of management of the corporate debtor and corporate resolution by the acceptance of a resolution plan by the requisite majority of the Committee of Creditors. Most importantly, under Section 30(4), the Committee of Creditors may approve a resolution plan by a vote of not less than 66% of the voting share of the financial creditors, after considering its feasibility and viability, and various other requirements as may be prescribed by the Regulations.64. Thus, what is left to the majority decision of the Committee of Creditors is the feasibility and viability of a resolution plan, which obviously takes into account all aspects of the plan, including the manner of distribution of funds among the various classes of creditors. As an example, take the case of a resolution plan which does not provide for payment of electricity dues. It is certainly open to the Committee of Creditors to suggest a modification to the prospective resolution applicant to the effect that such dues ought to be paid in full, so that the carrying on of the business of the corporate debtor does not become impossible for want of a most basic and essential element for the carrying on of such business, namely, electricity. This may, in turn, be accepted by the resolution applicant with a consequent modification as to distribution of funds, payment being provided to a certain type of operational creditor, namely, the electricity distribution company, out of upfront payment offered by the proposed resolution applicant which may also result in a consequent reduction of amounts payable to other financial and operational creditors. What is important is that it is the commercial wisdom of this majority of creditors which is to determine, through negotiation with the prospective resolution applicant, as to how and in what manner the corporate resolution process is to take place.67.5. In the case of Maharashtra Seamless Ltd. (supra), again, a 3- Judge Bench of this Court referred extensively to the enunciations in Essar Steel (supra) and reiterated the primacy assigned to the commercial wisdom of the Committee of Creditors in the matter of corporate insolvency resolution.68. For what has been noticed hereinabove, it would not be an exaggeration in terms that, in corporate insolvency resolution process, the role of Committee of Creditors is akin to that of a protagonist, giving finality to the process (subject, of course, to approval by the Adjudicating Authority), who takes the key decisions in its commercial wisdom and also takes the consequences thereof. As noticed, the process is aimed at bringing the corporate debtor back on its feet and it is acknowledged that appropriate disposition of a defaulting corporate debtor and the choice of solution, to keep the corporate debtor as a going concern or to liquidate it, is to be made by the financial creditors, who could assess the viability and may take decisions in modification of the terms of the existing liabilities. In other words, the decision as to whether the corporate debtor be resurrected or not, by acceptance of a particular resolution plan, is essentially a business decision and hence, is left to the committee consisting of the financial creditors, that is, the Committee of Creditors but, with the requirement that the resolution plan, for its approval, ought to muster not less than 66% votes of the voting share of the financial creditors.69. The significance of primacy of the Committee of Creditors in the process of corporate insolvency resolution unfolds itself when we examine the contours of the jurisdiction of Adjudicating Authority dealing with a resolution plan after the same has been voted at by the Committee of Creditors. We have formulated the questions relating to such contours as the first point for determination in view of the fact that most of the other questions involved in this batch of matters revolve around the order dated 03.03.2020 as passed by the Adjudicating Authority in approval of the resolution plan of NBCC with certain modifications. The decision on legality and validity of the order passed by the Adjudicating Authority on any particular objection or issue would largely depend on the question as to whether the Adjudicating Authority has acted within its jurisdiction or has overstepped its jurisdiction or has acted illegally or with material irregularity in exercise of its jurisdiction. In fact, contours of the jurisdiction of the Adjudicating Authority are also delineated by this Court in the aforesaid decisions, as shall be noticed infra.71. As noticed, the resolution plan in relation to the corporate debtor JIL, as propounded by NBCC, has been approved by the Committee of Creditors with the votes of 97.36% of the voting share of financial creditors. However, the Adjudicating Authority (NCLT), while passing the impugned order dated 03.03.2020, has modified some of the terms of the resolution plan while also declining modification in relation to some other terms of the resolution plan. In relation to either of the events, whether of modifying the terms of the plan or declining the prayer for modification, invariably the question pertaining to the jurisdiction of the Adjudicating Authority would arise for consideration.72. The contours of the powers and jurisdiction of Adjudicating Authority dealing with a resolution plan approved by the Committee of Creditors have been clearly defined, delineated and described by this Court in the aforesaid decisions in K. Sashidhar, Essar Steel and Maharashtra Seamless Ltd. Appropriate it would be to take note of the principles emanating from these decisions with a brief reference to the relevant factual aspects of each of these cases.73. The first in this series of judgments relating to the process of approval of resolution plan in CIRP proceedings had been the case of K. Sashidhar (supra) where the matters in issue related to two different corporate debtors, Kamineni Steel & Power (India) (P) Ltd. (KSPIPL) and Innovative Industries Ltd. (IIL).74.2. In the given backdrop, the roles of resolution professional, resolution applicant and Committee of Creditors as also the jurisdiction of Adjudicating Authority and Appellate Authority came up for further and fuller exposition by this Court in Essar Steel (supra). We have already noticed the passages from this decision in regard to the scheme of IBC and the pivotal role of Committee of Creditors in the process of insolvency resolution of a corporate debtor. As regards the jurisdiction of Adjudicating Authority and Appellate Authority in this process of insolvency resolution, in Essar Steel, this Court extensively referred to the principles laid down and explained in K. Sashidhar and thereafter held as under: -Thus, it is clear that the limited judicial review available, which can in no circumstance trespass upon a business decision of the majority of the Committee of Creditors, has to be within the four corners of Section 30(2) of the Code, insofar as the Adjudicating Authority is concerned, and Section 32 read with Section 61(3) of the Code, insofar as the Appellate Tribunal is concerned, the parameters of such review having been clearly laid down in K. Sashidhar.74.3. In Essar Steel, it was however argued that sub-section (5) of Section 60 was not considered in K. Sashidhar and in that context, this Court examined the rights of operational creditors and the reasons set forth in the Insolvency Committee Report, 2018 and then, reiterated the primacy of Committee of Creditors while declaring the law in no uncertain terms that the Adjudicating Authority cannot interfere on merits with the commercial decision taken by the Committee of Creditors; the limited judicial review available to it was to see that the Committee of Creditors had taken into account the requirement of keeping the corporate debtor as a going concern with maximisation of the value of assets and the interests of all stakeholders including operational creditors were taken care of. Significantly, in Essar Steel, this Court laid down that if the Adjudicating Authority would find that the requisite parameters had not been kept in view, it may send the resolution plan back to the Committee of Creditors to resubmit the same after satisfying the parameters. This Court laid down as under: -73. There is no doubt whatsoever that the ultimate discretion of what to pay and how much to pay each class or sub-class of creditors is with the Committee of Creditors, but, the decision of such Committee must reflect the fact that it has taken into account maximising the value of the assets of the corporate debtor and the fact that it has adequately balanced the interests of all stakeholders including operational creditors. This being the case, judicial review of the Adjudicating Authority that the resolution plan as approved by the Committee of Creditors has met the requirements referred to in Section 30(2) would include judicial review that is mentioned in Section 30(2)(e), as the provisions of the Code are also provisions of law for the time being in force. Thus, while the Adjudicating Authority cannot interfere on merits with the commercial decision taken by the Committee of Creditors, the limited judicial review available is to see that the Committee of Creditors has taken into account the fact that the corporate debtor needs to keep going as a going concern during the insolvency resolution process; that it needs to maximise the value of its assets; and that the interests of all stakeholders including operational creditors has been taken care of. If the Adjudicating Authority finds, on a given set of facts, that the aforesaid parameters have not been kept in view, it may send a resolution plan back to the Committee of Creditors to re-submit such plan after satisfying the aforesaid parameters. The reasons given by the Committee of Creditors while approving a resolution plan may thus be looked at by the Adjudicating Authority only from this point of view, and once it is satisfied that the Committee of Creditors has paid attention to these key features, it must then pass the resolution plan, other things being equal.74.4. Thereafter, this Court dealt with the matter on merits in relation to certain claims and objections which need not be elaborated; suffice it would be to notice that this Court did not approve the impugned order of NCLAT and directed that CIRP of the corporate debtor shall take place in accordance with the amended resolution plan, as accepted by the Committee of Creditors.75. Maharashtra Seamless Ltd. (supra) has been yet another decision in which interference with the decision of Committee of Creditors by NCLAT met with total disapproval of this Court.75.1. In Maharashtra Seamless Ltd., the matter related to CIRP concerning the corporate debtor United Seamless Tubular Private Ltd. where resolution plans of four different applicants were considered and CoC approved the resolution plan filed by the appellant Maharashtra Seamless Ltd. by a majority of 87.10% of the voting share of financial creditors. Certain differences arose with respect to the liquidation value of the assets of corporate debtor and the CoC took an average of the closest estimate. However, NCLAT ordered re-determination of liquidation value and accordingly, the revised value was arrived at. Thereafter, the CoC again approved the resolution plan of the appellant considering the revised liquidation value. Then, NCLT approved the resolution plan submitted by the appellant which included an upfront payment of INR 477 crores for infusion in the capital of the corporate debtor. A promoter of the corporate debtor and a financial creditor filed appeals before NCLAT contending that the resolution plan gave unfair advantage to the resolution applicant whereupon, the Appellate Authority proceeded to give a direction to the resolution applicant to enhance its fund inflow upfront.75.2. In the aforesaid backdrop, the matter was considered in appeal filed by the resolution applicant. After having examined the relevant provisions of the Code and the CIRP Regulations as also the enunciations in Essar Steel (supra), this Court observed that there was no provision in the Code or Regulations under which the bid of any resolution applicant has to match the liquidation value; that the object behind such valuation process was to assist the CoC to take a proper decision on the resolution plan; and once the plan was approved by CoC, the Adjudicating Authority was only to ascertain if the resolution plan was meeting the requirements of sub-sections (2) and (4) of Section 30. The Court observed that in the given case, the Appellate Authority had proceeded on equitable perceptions rather than commercial wisdom. Even while observing that release of assets at the value 20% below the liquidation value arrived by valuers appeared inequitable, this Court observed that the adjudicatory process ought to cede ground to the commercial wisdom of the creditors rather than assess the resolution plan on the basis of quantitative analysis. While disapproving interference by the Appellate Authority, this Court observed and held as under: -27. Now the question arises as to whether, while approving a resolution plan, the adjudicating authority could reassess a resolution plan approved by the Committee of Creditors, even if the same otherwise complies with the requirement of Section 31 of the Code. The learned counsel appearing for Indian Bank and the said erstwhile promoter of the corporate debtor have emphasised that there could be no reason to release property valued at Rs 597.54 crores to MSL for Rs 477 crores. The learned counsel appearing for these two respondents have sought to strengthen their submission on this point referring to the other resolution applicant whose bid was for Rs 490 crores which is more than that of the appellant MSL.28. No provision in the Code or Regulations has been brought to our notice under which the bid of any resolution applicant has to match liquidation value arrived at in the manner provided in Regulation 35 of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. This point has been dealt with in Essar Steel. We have quoted above the relevant passages from this judgment.29. It appears to us that the object behind prescribing such valuation process is to assist the CoC to take decision on a resolution plan properly. Once, a resolution plan is approved by the CoC, the statutory mandate on the adjudicating authority under Section 31(1) of the Code is to ascertain that a resolution plan meets the requirement of sub-sections (2) and (4) of Section 30 thereof. We, per se, do not find any breach of the said provisions in the order of the adjudicating authority in approving the resolution plan.30. The appellate authority has, in our opinion, proceeded on equitable perception rather than commercial wisdom. On the face of it, release of assets at a value 20% below its liquidation value arrived at by the valuers seems inequitable. Here, we feel the Court ought to cede ground to the commercial wisdom of the creditors rather than assess the resolution plan on the basis of quantitative analysis. Such is the scheme of the Code. Section 31(1) of the Code lays down in clear terms that for final approval of a resolution plan, the adjudicating authority has to be satisfied that the requirement of sub-section (2) of Section 30 of the Code has been complied with. The proviso to Section 31(1) of the Code stipulates the other point on which an adjudicating authority has to be satisfied. That factor is that the resolution plan has provisions for its implementation. The scope of interference by the adjudicating authority in limited judicial review has been laid down in Essar Steel, the relevant passage (para 54) of which we have reproduced in earlier part of this judgment. The case of MSL in their appeal is that they want to run the company and infuse more funds. In such circumstances, we do not think the appellate authority ought to have interfered with the order of the adjudicating authority in directing the successful resolution applicant to enhance their fund inflow upfront.76. The expositions aforesaid make it clear that the decision as to whether corporate debtor should continue as a going concern or should be liquidated is essentially a business decision; and in the scheme of IBC, this decision has been left to the Committee of Creditors, comprising of the financial creditors. Differently put, in regard to the insolvency resolution, the decision as to whether a particular resolution plan is to be accepted or not is ultimately in the hands of the Committee of Creditors; and even in such a decision making process, a resolution plan cannot be taken as approved if the same is not approved by votes of at least 66% of the voting share of financial creditors. Thus, broadly put, a resolution plan is approved only when the collective commercial wisdom of the financial creditors, having at least 2/3rd majority of voting share in the Committee of Creditors, stands in its favour.77. In the scheme of IBC, where approval of resolution plan is exclusively in the domain of the commercial wisdom of CoC, the scope of judicial review is correspondingly circumscribed by the provisions contained in Section 31 as regards approval of the Adjudicating Authority and in Section 32 read with Section 61 as regards the scope of appeal against the order of approval.77.1. Such limitations on judicial review have been duly underscored by this Court in the decisions above-referred, where it has been laid down in explicit terms that the powers of the Adjudicating Authority dealing with the resolution plan do not extend to examine the correctness or otherwise of the commercial wisdom exercised by the CoC. The limited judicial review available to Adjudicating Authority lies within the four corners of Section 30(2) of the Code, which would essentially be to examine that the resolution plan does not contravene any of the provisions of law for the time being in force, it conforms to such other requirements as may be specified by the Board, and it provides for: (a) payment of insolvency resolution process costs in priority; (b) payment of debts of operational creditors; (c) payment of debts of dissenting financial creditors; (d) for management of affairs of corporate debtor after approval of the resolution plan; and (e) implementation and supervision of the resolution plan.77.2. The limitations on the scope of judicial review are reinforced by the limited ground provided for an appeal against an order approving a resolution plan, namely, if the plan is in contravention of the provisions of any law for the time being in force; or there has been material irregularity in exercise of the powers by the resolution professional during the corporate insolvency resolution period; or the debts owed to the operational creditors have not been provided for; or the insolvency resolution process costs have not been provided for repayment in priority; or the resolution plan does not comply with any other criteria specified by the Board.77.3. The material propositions laid down in Essar Steel (supra) on the extent of judicial review are that the Adjudicating Authority would see if CoC has taken into account the fact that the corporate debtor needs to keep going as a going concern during the insolvency resolution process; that it needs to maximise the value of its assets; and that the interests of all stakeholders including operational creditors have been taken care of. And, if the Adjudicating Authority would find on a given set of facts that the requisite parameters have not been kept in view, it may send the resolution plan back to the Committee of Creditors for re-submission after satisfying the parameters. Then, as observed in Maharashtra Seamless Ltd. (supra), there is no scope for the Adjudicating Authority or the Appellate Authority to proceed on any equitable perception or to assess the resolution plan on the basis of quantitative analysis. Thus, the treatment of any debt or asset is essentially required to be left to the collective commercial wisdom of the financial creditors.77.4. During the course of submissions, one of the parties (YEIDA), seeking to support modification of the resolution plan concerning some of the terms and stipulations, has referred to a decision by a learned Single Judge of the Allahabad High Court in the case of Pradumna Kumar Jain v. U.P. Secondary Education Service Commission, Allahabad and Ors.: (1997) 30 ALR 339 to submit that the power to approve or disapprove includes the power to modify; and it has been strongly argued that the power to modify is inherent in the power of approval in terms of Section 31 of the Code. It is noticed that the questions involved in the cited decision related to the powers under Regulation 8 of the U.P. Secondary Education Services Commission (Procedure for Approval of Punishment) Regulations, 1985, which provided that the Commission shall after due consideration approve or disapprove the punishment proposed or may issue any other directions deemed fit in the case. While interpreting the said provision, where the Commission was to act as a superior authority and the provision itself postulated that the said authority could issue any other directions deemed fit, the Court held that the expressions indicated the existence of the power to modify. We are afraid, the principles stated in the said decision or in other decisions of like nature cannot be imported to read the power to modify the resolution plan into Section 31 of the Code.77.5. In fact, the power of approval conferred on the Adjudicating Authority in Section 31 of the Code is required to be visualised with reference to the overall scheme of the Code and the purposes for which such powers have been conferred. The power of judicial review in Section 31 is not akin to the power of a superior authority to deal with the merits of the decision of any inferior or subordinate authority. As succinctly stated in Essar Steel (supra), the limited judicial review available is to see that the Committee of Creditors has adhered to the specified parameters, of keeping the corporate debtor going as a going concern during the resolution process; maximisation of the value of its assets; and taking care of the interests of all stakeholders. This Court has, in no uncertain terms, held that if the specified parameters have not been kept in view, the Adjudicating Authority may send a resolution plan back to the Committee of Creditors to re-submit such plan after satisfying the parameters. The reasons given by the Committee of Creditors are, thus, looked at by the Adjudicating Authority only from this point of view. It is not a jurisdiction to decide as to what ought to be the terms of the resolution plan. That jurisdiction, in the scheme of IBC, is conferred on the Committee of Creditors alone, who has to take such a decision in its commercial wisdom, while keeping in view the applicable provisions and the specified parameters; of course, its decision of approval has to be by the requisite majority of minimum 66% of the voting share.77.6. In yet another set of submissions, on behalf of the erstwhile director of JIL and JAL, it has been repeatedly asserted that the Committee of Creditors had failed in its statutory duty to ensure maximisation of JILs assets and protecting the interests of all stakeholders; and it is submitted that the Committee of Creditors failed to visualise that there was no justification for NBCC seeking to acquire JIL on a meagre amount of INR 120 crores despite the net worth of JIL being much higher.77.6.1. The assessment about maximisation of the value of assets, in the scheme of the Code, would always be subjective in nature and the question, as to whether a particular resolution plan and its propositions are leading to maximisation of value of assets or not, would be the matter of enquiry and assessment of the Committee of Creditors alone. When the Committee of Creditors takes the decision in its commercial wisdom and by the requisite majority; and there is no valid reason in law to question the decision so taken by the Committee of Creditors, the adjudicatory process, whether by the Adjudicating Authority or the Appellate Authority, cannot enter into any quantitative analysis to adjudge as to whether the prescription of the resolution plan results in maximisation of the value of assets or not. The generalised submissions and objections made in relation to this aspect of value maximisation do not, by themselves, make out a case of interference in the decision taken by the Committee of Creditors in its commercial wisdom.78. To put in a nutshell, the Adjudicating Authority has limited jurisdiction in the matter of approval of a resolution plan, which is well- defined and circumscribed by Sections 30(2) and 31 of the Code read with the parameters delineated by this Court in the decisions above- referred. The jurisdiction of the Appellate Authority is also circumscribed by the limited grounds of appeal provided in Section 61 of the Code. In the adjudicatory process concerning a resolution plan under IBC, there is no scope for interference with the commercial aspects of the decision of the CoC; and there is no scope for substituting any commercial term of the resolution plan approved by the CoC. Within its limited jurisdiction, if the Adjudicating Authority or the Appellate Authority, as the case may be, would find any shortcoming in the resolution plan vis-à-vis the specified parameters, it would only send the resolution plan back to the Committee of Creditors, for re-submission after satisfying the parameters delineated by Code and exposited by this Court.80. While dealing with a plethora of disputes and objections concerning the resolution plan of NBCC and the process of its approval, we deem it appropriate to deal, first of all, with a part of objections that approval of the resolution plan of NBCC by CoC is vitiated because of the fact that two resolution plans, of Suraksha Realty and NBCC, were put to simultaneous voting whereas such simultaneous voting on the resolution plans was not permissible. If this part of objections is accepted, perhaps, nothing more would require consideration.82. Having examined the objection against simultaneous voting with reference to the material on record and the law applicable, we are unable to find any substance whatsoever in this objection.83. It is noteworthy that there has not been any prohibition in the scheme of IBC and CIRP Regulations that CoC could not simultaneously consider and vote upon more than one resolution plan at the same time for electing one of the available options. It has rightly been contended on behalf of IRP that in terms of sub-section (3) of Section 30 of the Code, he was obliged to place both the plans before CoC when they were found conforming to the conditions referred to in sub-section (2) of Section 30; and thereafter, it was for the CoC to consider the plans and to vote upon the same. Of course, the CoC could have approved only one resolution plan; and that has precisely been done in the present case. There does not appear any flaw or fault in the process adopted in the present case as regards voting over the resolution plans by the CoC.83.1. Moreover, as noticed, the legislature itself has made the position clear by way of a later amendment with effect from 07.08.2020, by specifically making stipulations for simultaneous voting over more than one resolution plan by the CoC, particularly with amendment of sub- regulation (3) of Regulation 39 of CIRP Regulations and insertion of sub-regulations (3A) and (3B) thereto.(vide second footnote to sub-regulation (3) of Regulation 39 of CIRP Regulations, ibid.) Such an amendment could only be visualised as clarificatory in nature; and, in any case, even before amendment, there had not been any prohibition in putting two or more conforming resolution plans to vote simultaneously.84. It is also noticeable that when the matter was considered in the second round of litigation and this Court issued various necessary directions in the order dated 06.11.2019 in exercise of its plenary powers under Article 142 of the Constitution of India, it was specifically provided that the two applicants viz., Suraksha Realty and NBCC would be invited to submit revised plans for consideration. The minutes of CoC meeting have also been placed before us by IRP and it appears that this very aspect was duly deliberated in the meeting where IDBI Bank proposed for simultaneous voting over the two plans and this suggestion was accepted by almost all CoC members except ICICI Bank Ltd. and Axis Bank Ltd., who were having together the voting share of only about 2.3%. Due deliberations in this regard, in the meeting of Committee of Creditors dated 07.12.2019, read as under: -The IRP enquired from CoC about the Resolution Plan that need to be put for voting by CoC. IDBI Bank on behalf of lenders proposed that given the unique nature of this case both plans should be put to vote as this will provide equal opportunity for individual members of COC to select their preferred Resolution Plan. The main reason for proposing joint vote on both plans was-Specific directions of Honble Supreme Court under its special powers (Article 142) where COC/IRP was required to consider Resolution Plans from only NBCC and Suraksha in accordance with law and regulation.-Ideally it would like to propose the H1 Resolution Plan to vote, but since the total overall evaluation scores were very close and there is no consensus amongst members of COC on the evaluation methodology used.-Giving equal opportunity to all members of COC (including Home buyers and FD holders) to approve the plan most preferred by them.-Given the unique and complex nature of this Resolution process.All CoC members except ICICI Bank Limited, Axis Bank Limited (together having vote share of approx. 2.3%) agreed with the suggestion made by IDBI Bank and decided to put both the Resolution Plans simultaneously to vote. Accordingly, it was decided that both the Resolution Plans will be put to vote simultaneously and in the event both secure the minimum threshold of 66% votes, the plan securing overall higher vote will be considered as the preferred resolution plan. The IRP agreed to follow the COCs instructions and organise the voting.It was pointed out by CAM in the CoC meeting that since both the Resolution Plans are being put to vote, we might end up in a situation where both the Resolution Plans will receive more than 66% votes, thus creating doubts as to whether both resolution applicants are equally entitled to have their plans submitted to the adjudicating authority for approval. Therefore, to avoid such a situation, the CoC members should be allowed to vote on either of the two Resolution Plans only. The Authorised Representative of the Home Buyers informed that almost all home buyer does not want liquidation of the corporate debtor. In case there is a spilt of vote between Home Buyers and other members of COC, there are more chances of no resolution plan getting approved and situation of liquidation may arise. Majority of home buyers who have written to AR of Home Buyers have indicated NBCC as its preferred choice. Home Buyers are also fully aware that without support of other members of COC, none of the resolution plan will get approved by COC. Para 21(i) of Honble Supreme Court judgment dated 06.11.2019 also directed to place the revised plan(s) before the CoC, if so required, after negotiations and submit report to the adjudicating authority NCLT within such time.To avoid scenario of liquidation or non-compliance of Honble Supreme Court direction, AR of Home Buyers insisted that both the Resolution Plans should be put to vote and the CoC members should be allowed to vote on both the Resolution Plans and in the event that both the Resolution Plans receive more than 66% votes, then the successful Resolution Applicant will be decided basis (sic) the Resolution Plan that has received higher number of votes.85. In view of the above, we are unable to find any fault in simultaneous consideration and voting over two resolution plans by CoC for electing one of them; and we would have no hesitation in giving our imprimatur to such a process. The baseless objection in this regard has rightly been rejected by the Adjudicating Authority.87.1. It is not in dispute that under the said Concession Agreement, JIL got the rights: (a) to construct and operate the Expressway and collect toll for a period of 36 years; and (b) to use the land along the Expressway for commercial exploitation for a period of 90 years.88. The issue pertaining to additional amount of land acquisition compensation cropped up in the wake of a decision of the Full Bench of Allahabad High Court dated 21.10.2011 in the case of Gajraj and Ors. v. State of U.P. and Ors.: 2011 SCC OnLine All 1711, wherein the High Court ruled in favour of payment of additional compensation to the land owners involved therein. The said decision in Gajraj was upheld by this Court in the case of Savitri Devi v. State of U.P. & Ors.: (2015) 7 SCC 21 . In sequel, a spate of litigation in Allahabad High Court concerning other parcels of land came up and several other land owners, including whose land stood acquired for the project in question, demanded additional compensation. It is stated by YEIDA that looking to such litigations and agitations, the Government of U.P. proceeded to set up a committee called the Chaudhary Committee; and the said committee recommended for grant of additional compensation (to the extent of 64.7%) to the land owners whose land had been acquired. While accepting these recommendations, the Government of U.P. proceeded to issue G.O. dated 29.08.2014, directing YEIDA to ensure payment of additional compensation to all the land owners. In this turn of events, YEIDA demanded the amount of additional compensation from JIL to the tune of INR 2591.78 crores by its communication dated 20.01.2015 and yet another amount of approximately INR 247 crores by its communication dated 31.05.2017.88.1. The aforesaid communications of YEIDA and the said G.O. dated 29.08.2014 were challenged by JIL by way of a writ petition before the High Court of Allahabad but, later on, JIL sought permission to withdraw with a view to seek recourse to the alternative remedy of arbitration, as provided in the CA. The High Court of Allahabad, by its order dated 03.11.2016, permitted JIL to withdraw and to pursue the alternative remedy of arbitration(As per the facts stated, the said order of High Court was challenged by YEIDA in this Court in D. No. 15058 of 2017, which was dismissed on 01.09.2017.). Thereafter, the concessionaire JIL took up the matter in arbitration which led to the arbitral award dated 02.11.2019 in its favour, holding that the demand made by YEIDA was not sustainable. This award has been challenged by YEIDA under Section 34 of the Arbitration and Conciliation Act, 1996 and those proceedings, being Arbitration Case No. 3 of 2020, are pending in the Court of District Judge, Gautam Budh Nagar. It has also been pointed out that the said G.O. was struck down by the Allahabad High Court in other petitions; and the order so passed by the High Court has been challenged in SLP (Civil) No. 10015-10034 of 2020, pending in this Court.94. As noticed, the Adjudicating Authority observed in regard to these issues concerning YEIDA that looking to the terms of CA, the Committee of Creditors should not have approved the resolution plan stating that the compensation, if awarded, shall be collected from the end-users. However, the Adjudicating Authority proceeded to modulate such terms to make the plan viable and provided that the resolution plan be read to mean that YEIDA shall have a right to collect acquisition cost through the SPVs concerned. With regard to the issue of additional compensation concerning the land of Expressway, the Adjudicating Authority considered it appropriate to read the resolution plan in the way that it is left open to both the parties to have proper recourse over this issue before a competent forum when the time would come for payment of additional compensation. As regards transfer of concessionaires rights and obligations to SPVs, the Adjudicating Authority was of the view that, when JIL as concessionaire was, for the first time, proposing to transfer its rights and obligations to SPVs, the documents involving the concessionaire JIL, YEIDA and the SPV concerned were required to be executed. The NCLT also observed that the CA was based on the statute created by the State Government and, therefore, violation of its terms and conditions would be a violation of the law in force and would not be permissible in terms of Section 30(2) of the Code.94.1. Interestingly, the other reliefs and concessions in regard to YEIDA, as sought for in the aforementioned Clauses 14 and 27, were specifically declined by the Adjudicating Authority (vide the comments on these clauses in paragraph 134 of the order dated 03.03.2020). However, as regards Clause 4 of the reliefs and concessions that YEIDA shall withdraw the arbitration case filed under Section 34 of the Arbitration Act, though the Adjudicating Authority noticed this aspect in the arguments of the parties but, did not make any specific order in that regard and in paragraph 134 of the impugned order dated 03.03.2020, merely observed that Clauses 1 to 5 were covered by the previous discussion.102. Coming to the real questions in controversy, in the first place, we deem it appropriate to observe that the suggestion on behalf of YEIDA and erstwhile director of the corporate debtor, that the Concession Agreement in question is a statutory contract, is not correct and cannot be accepted. It has rightly been pointed out on behalf of the resolution applicant NBCC that the said CA is not a statutory contract; it has only been executed by YEIDA in exercise of its enabling powers conferred by the statute, that is, U.P. Act of 1976 but the same is neither an agreement provided by the statute nor executed under a statute. This Court has clarified the law in this respect in the case of India Thermal Power Ltd. (supra) in the following terms: -11. It was contended by Mr Cooper, learned Senior Counsel appearing for appellant GBL and also by some counsel appearing for other appellants that the appellant/IPPs had entered into PPAs under Sections 43 and 43-A of the Electricity Supply Act and assuch they are statutory contracts and, therefore, MPEB had no power or authority to alter their terms and conditions. This contention has been upheld by the High Court. In our opinionthe said contention is not correct and the High Court was wrong in accepting the same. Section 43 empowers the Electricity Board to enter into an arrangement for purchase of electricity on such terms as may be agreed. Section 43-A(1) provides that a generating company may enter into a contract for the sale of electricity generated by it with the Electricity Board. As regards the determination of tariff for the sale of electricity by a generating company to the Board, Section 43(1)(2) provides that the tariff shall be determined in accordance with the norms regarding operation and plant-load factor as may be laid down by the authority and in accordance with the rates of depreciation and reasonable return and such other factors as may be determined from time to time by the Central Government by a notification in the Official Gazette. These provisions clearly indicate that the agreement can be on such terms as may be agreed by the parties except that the tariff is to be determined in accordance with the provision contained in Section 43-A(2) and notifications issued thereunder. Merely because a contract is entered into in exercise of an enabling power conferred by a statute that by itself cannot render the contract a statutory contract. If entering into a contract containing the prescribed terms and conditions is a must under the statute then that contract becomes a statutory contract. If a contract incorporates certain terms and conditions in it which are statutory then the said contract to that extent is statutory. A contract may contain certain other terms and conditions which may not be of a statutory character and which have been incorporated therein as a result of mutual agreement between the parties. Therefore, the PPAs can be regarded as statutory only to the extent that they contain provisions regarding determination of tariff and other statutory requirements of Section 43-A(2). Opening and maintaining of an escrow account or an escrow agreement are not the statutory requirements and, therefore, merely because PPAs contemplate maintaining escrow accounts that obligation cannot be regarded as statutory.102.1. Applying the principles aforesaid to the facts of the present case, we are clearly of the view that the agreement in question does not acquire the status of a statutory contract merely for having been executed in terms of the powers with YEIDA under Section 6-A of the U.P. Act of 1976.102.2. Apart from above, another part of the submissions on behalf of YEIDA with reference to the case of Nand Kishore Gupta (supra) against incorporation of two SPVs cannot be accepted. The observations of this Court in the case of Nand Kishore Gupta (supra) came in the wake of challenge to the very acquisition process concerning the land parcels for the project in question, that is Yamuna Expressway Project. One of the arguments therein was that about 25 million square kilometres of land was being acquired for 5 parcels of land to be given for commercial exploitation. This Court found the High Court right in commenting that such creation of 5 zones for industry, residence, amusement etc. was going to be complementary to the creation of highway. However, the observations in Nand Kishore Gupta (supra), holding all the parcels of land to be part of integrated and indivisible project, cannot be read to mean that creation of two SPVs by the concessionaire, one for the Expressway and another for the remaining land for commercial development, can never be provided.102.3. However, even if the submissions of YEIDA are not correct in regard to the aforesaid two aspects, all other submissions made on its behalf cannot be discarded and rather, on substance, they deserve acceptance to a large extent.103. The contract in question, the CA, even though not a statutory one, is nevertheless a contract entered into between the concessionaire and statutory authority, that is, YEIDA. It is needless to observe that even if in the scheme of IBC, a resolution plan could modify the terms of a contract, any tinkering with the contract in question, that is, the Concession Agreement, could not have been carried out without the approval and consent of the authority concerned, that is, YEIDA. Any doubt in that regard stands quelled with reference to Regulation 37 of CIRP Regulations that requires a resolution plan to provide for various measures including necessary approvals from the Central and State Governments and other authorities. The authority concerned in the present case, YEIDA, is the one established by the State Government under the U.P. Act of 1976 and its approval remains sine qua non for validity of the resolution plan in question, particularly qua the terms related with YEIDA. The stipulations/assumptions in the resolution plan, that approval by the Adjudicating Authority shall dispense with all the requirements of seeking consent from YEIDA for any business transfer are too far beyond the entitlement of the resolution applicant. Neither any so-called deemed approval could be foisted upon the governmental authority like YEIDA nor such an assumption stands in conformity with Regulation 37 of the CIRP Regulations.104. Furthermore, the suggestion that Clause 18.1 of the CA had been a one-time measure and that stands exhausted with creation of JIL as SPV and transfer of original concessionaires rights to JIL, has its own shortcomings. The concept and purport of Clause 18.1, of course, at the relevant time had been of the obligation on the original concessionaire to execute the documents for creation of SPV and this clause came in operation when JIL was created as an SPV. However, it would be wholly unrealistic to say that once JIL was created as an SPV, the said Clause 18.1 stood exhausted and there remained no obligation on the part of JIL (as the substituted concessionaire) to execute the necessary documents if it would propose to transfer its rights and obligations under the CA to another SPV; and it could do so without the consent of YEIDA. This suggestion carries an inherent fallacy because if Clause 18.1 is removed from the CA, a serious question would arise as to how the rights and obligations of the substituted concessionaire JIL could at all be transferred to another SPV? Looking to the pith and substance of the CA, the said Clause 18.1 has to be applied for creation of any SPV by or on behalf of JIL.104.1. The other clauses in CA permitting creation of sub-lease could hardly be applied for en bloc transfer of land to the SPVs, as proposed in the resolution plan. The referred Clauses 4.3(d) and 4.3(e) were essentially meant for creation of sub-leases when the land given to the concessionaire for development, or part thereof, was to be sub-leased to the end-user/s. Even in that regard, the provisions were made for the concessionaire to make a request to the land providing agency to execute the lease-deed directly in favour of its subsidiaries, assigns or transferees; and in case the agency and the concessionaire would consider it appropriate, tripartite agreement for sub-lease may be executed. Taking all the relevant clauses together with the substance and purport of CA, it is difficult to countenance that the proposed transfer to SPVs could be treated as an ordinary sub-lease for which, no documentation involving YEIDA would be required.104.2. Although, as urged, the proposal to create two separate SPVs may not be impermissible looking to the framework of the CA, where different stipulations were made in relation to the land for constructing Expressway with its allied facilities and the land for commercial exploitation, respectively in Clauses 4.1 and 4.3 of the CA, but the question is as to the method of transfer of concessionaires rights and obligations to such SPVs. That could only be in accordance with the approval of YEIDA and with the execution of necessary tripartite documents as envisaged by CA.104.3. As observed hereinbefore, looking to the terms and purport of the CA, creation of two SPVs, one for Expressway and another for the remaining land for commercial development, is not altogether prohibited but then, it cannot be suggested by NBCC that such creation of SPVs could be even without necessary documentation involving YEIDA. In this regard, YEIDA seems to be right in its contentions that such documentation is even otherwise required for avoiding any ambiguity about the rights and obligations and also for itself (YEIDA) to properly monitor the functioning of SPVs, each of which would stand in the capacity of concessionaire and would be carrying the rights and obligations under the CA.104.4. For what has been discussed above, we need not delve into the decision of this Court in MCGM (supra), where the statutory provision itself required prior approval of the local body before dealing with its properties through lease or by creation of any other interest. Though in the present case, there is no such statutory embargo but for that matter, all the terms of the Concession Agreement cannot be forsaken. Any alteration in the essentials of the Concession Agreement would require the consent of YEIDA.104.5. The Adjudicating Authority (NCLT), while disapproving the stipulations in the resolution plan whereby documentation for such transfer was sought to be avoided, proceeded to order execution of such documents. According to YEIDA, this modification has no commercial effect and therefore, has rightly been ordered by NCLT. Although this modification, prima facie, does not appear to be having any commercial effect, for it being only a matter of proper documentation but, interlaced with this process of documentation are the other stipulations, which do impact the commercial terms of the resolution plan, particularly those relating to the amount of additional compensation, if payable.105.1. Concisely put, as per the resolution plan, the contingent liability concerning additional amount of land acquisition compensation is proposed to be dealt with in the manner that in the event any such amount of additional compensation is to be paid, YEIDA would collect the same from the end-users; and as regards the land of Expressway, such additional compensation shall be payable by YEIDA because YEIDA will be the end-user on getting ownership of the land of Expressway after expiry of the concession period. NBCC has justified these propositions on various grounds as noticed hereinabove. YEIDA takes serious exception to them and particularly to the stipulation that additional compensation in regard to the land of Yamuna Expressway would be payable by it. The Adjudicating Authority has made two-fold modifications in this regard. In paragraph 120 of the impugned order dated 03.03.2020, the Adjudicating Authority has said that to iron out creases and to make the resolution plan viable, it would direct that the plan shall be read to mean that YEIDA has a right to collect acquisition cost through the SPVs concerned. On the other hand, concerning the Expressway land, the Adjudicating Authority has provided in paragraph 122 of the impugned order that the resolution plan would be read to mean that it is left open to both the parties to have proper recourse before competent forum when the time comes for payment of additional compensation. In the submissions of YEIDA, such modifications were necessary to make the plan compliant with the rights and obligations under the CA.105.2. We find the prescriptions in the resolution plan in regard to the contingent liability of additional compensation to be questionable on more than one count.However, the contingency was required to be provided in the plan in case liability would be ultimately fastened on the corporate debtor JIL. It has not been suggested that any such bifurcation of liability, qua the land under Expressway on one hand and other parcels on the other, is a subject matter of the arbitration proceedings. However, going by the terms of the CA, prima facie, we are unable to find any indication therein that the liability for compensation with reference to the land under Expressway is not of the concessionaire. In any case, while making a provision for meeting with this contingent liability of additional amount of compensation, the resolution applicant could not have decided of its own that there will not be any liability of the concessionaire or its assigns towards the land under Expressway.106.1. It appears that while proposing to create two different SPVs, the resolution applicant stumbled on an idea that the liability for additional compensation as regards Expressway land could be simply deflected to YEIDA with reference to the fact that YEIDA will get this land back after 36 years; and reflected this idea by way of the questioned proposition in the resolution plan. The Adjudicating Authority has chosen to leave this issue open, for being litigated at the appropriate time and before the competent forum. In our view, such a prescription as regards Expressway land amounts to alterations of the material terms of CA and cannot be made without the consent of YEIDA. This aspect could have only been disapproved.106.2. Similarly, the resolution applicant, of its own, could not have decided that end-user would mean sub-lessee and thereby deflect even collection of the amount towards this liability on YEIDA and that too when YEIDA was not going to be a party in creation of any sub-lease. The structuring of these propositions regarding contingent liability turns out to be wholly illogical, apart from being at loggerheads with the terms of the Concession Agreement.106.3. It needs no great deal of discussion to find that the said aspect concerning the provision for additional compensation, if not approved on material terms, is of significant commercial impact. Even the other modification by the Adjudicating Authority, that YEIDA shall have a right to collect acquisition cost through SPVs concerned, carry their own commercial implications. These are not the terms which could be taken up for modification without disturbing the financial proposal of the resolution plan. While these prescriptions could not have been approved, in our view, the Adjudicating Authority could not have entered into any process of modification. The only course open for the Adjudicating Authority (NCLT) was to send the plan back to the Committee of Creditors for reconsideration.107. Apart from the aforesaid, the reliefs and concessions as sought for by the resolution applicant in relation to YEIDA in Clauses 4, 14 and 27 of Schedule 3 are also required to be disapproved. We are unable to countenance the proposition that by way of a resolution plan, it could be enjoined upon an agency of the government like YEIDA to give up or withdraw from a pending litigation. Similarly, extinguishment of existing liability qua YEIDA is not a relief that could be given to the resolution applicant for askance. For the same reason, the resolution applicant cannot seek extension of time period of the Concession Agreement by way of a clause of relief in the resolution plan without the consent of a governmental body like YEIDA.108. Before concluding on this point for determination where we have accepted the major parts of the objections of YEIDA, we may, in fairness to all the parties concerned, reiterate that despite stating its objections, YEIDA has consistently maintained before the NCLT as also before this Court(vide paragraphs 47.2, 99 and 99.8 (supra)) that it does not stand to oppose the resolution plan only for the sake of opposition; rather it would like the plan to succeed but, it has a public duty to ensure that the framework under CA is preserved and else, it would be ready to do everything within its power to ensure that the plan is a success. Thus, it would not be out of place to add a sanguine hope that being the owner of the land in question and public authority, YEIDA, who had envisaged and promoted the entire project, would, in future dealing with the matter, act with caution and circumspection, while earnestly reflecting upon the practical impact of its propositions/decisions on various stakeholders, including the homebuyers. | 1 | 115,506 | 13,950 | ### Instruction:
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N infra. Point L Other issues requiring clarification/directions 207. In its detailed submissions, NBCC has also raised an issue that in Clause 7 Schedule 3 of the resolution plan, reduction of share capital is being sought for the corporate debtor and not for the companies yet incorporated but the Adjudicating Authority has erroneously made the observations in its order that such reduction was not a part of this resolution. The resolution applicant NBCC has sought clarification in this regard. The relevant clause in the resolution plan reads as under: - 7. The approval of this Plan by the Adjudicating Authority shall be deemed to have waived all the procedural requirements in terms of Section 66, Section 42, Section 62(1), Section 71 of the CA, 2013 and relevant rules made thereunder, in relation to reduction of share capital of the Corporate Debtor, issuance of shares by Expressway SPV, Land Bank SPV, conversion of Admitted Financial Debt due to the Institutional Financial Creditors to equity, subscription of debentures by the Corporate Debtor or transfer of shares of the Land Bank SPV from the Corporate Debtor to Institutional Financial Creditors. 208. The observations by the Adjudicating Authority as regards this clause are that since reduction of the share capital of corporate debtor is not a part of the resolution plan, the Adjudicating Authority cannot waive the procedure for reduction of share capital in relation to the companies not yet incorporated. 209. When the resolution plan with all its reliefs and concessions was approved by CoC and the plan was otherwise being approved by the Adjudicating Authority (albeit with modifications), the aforesaid observations in regard to Clause 7 of reliefs and concessions cannot be said to be of apt dealing with the relief sought. Be that as it may, having regard to the purport and purpose of the said Clause 7 and its approval by CoC, we find no reason as to why the same may not be approved. Hence, the impugned order of the Adjudicating Authority dated 03.03.2020 shall be read as modified and in approval of the said Clause 7 of reliefs and concessions. 210. In the last, NBCC has also prayed for directions to JAL and its sub-contractors or any other person having control over the project sites/lands of JIL to immediately hand over possession/control thereof to JIL and has also prayed for directions to the local administration for necessary support in that regard. We do not find any reason to make any such generalised observations or directions but would leave it open for the resolution applicant to take recourse to the appropriate proceedings in accordance with law, whenever occasion so arise. Point M Modified mechanism for implementation by the Appellate Authority 211. We have formulated this point for determination only in view of the fact that the interim order dated 22.04.2020, as passed by NCLAT while dealing with the appeal filed by NBCC against the said order dated 03.03.2020, has been challenged by the associations and individual homebuyers before this Court. Although in view of what has been discussed and held hereinbefore, all the issues related with the resolution plan and the impugned order of NCLT dated 03.03.2020 stand determined comprehensively and the related appeals before NCLAT, already withdrawn to this Court, shall also come to an end. Therefore, not much of discussion is required on this point but, a few comments in regard to the proposition adopted by the Appellate Authority appear necessary. 212. It appears that the proposition, of providing for Interim Monitoring Committee comprising of the representatives of three institutional financial creditors and the resolution applicant as also the resolution professional, was picked up by the Appellate Authority with reference to the stipulation in Point No. 2(a) of Part A of the resolution plan, where it was provided under the heading Management Team and sub-heading Appointment of Monitoring Agency that on and from the approval date and until the transfer date, the corporate debtor will be managed by a monitoring agency or any other person appointed by the resolution applicant in consultation with a Steering Committee comprising of three major institutional financial creditors. 212.1. In our view, even if the resolution plan carried such a management framework, the Appellate Authority, while dealing with the appeal against approval of the resolution plan, could not have provided for such a mechanism which is not envisaged by the Code. 213. The Code lays down detailed procedure for corporate insolvency resolution process and such a proposition, for constitution of any Interim Monitoring Committee during the pendency of appeal before the Appellate Authority (NCLAT) is neither envisaged by law nor appears justified. It is apparent on a bare perusal of sub-section (3) of Section 61 of the Code that any challenge to the order approving a resolution plan under Section 31 could be maintained only on the grounds specified therein. Obviously, while dealing with such appeals, the Appellate Authority is required to remain within the confines of the boundaries delineated by the Code rather than seeking to provide for a mechanism, for implementation of the plan. 214. Moreover, looking to the peculiar features of this resolution process, which has its own complications, constitution of such a Committee, consisting only of the resolution professional, the resolution applicant and the institutional financial creditors while leaving aside the biggest chunk of stakeholders i.e., the homebuyers (having more than 57% of the voting share in the CoC), would have caused more difficulties in implementation of the resolution plan rather than serving any purpose. 215. While entertaining the captioned appeals and directing transfer of the related cases pending before NCLAT to this Court by our order dated 06.08.2020, we had stayed the operation of the impugned order dated 22.04.2020 while allowing the IRP to continue with the management of the affairs of the corporate debtor. While concluding on these matters, it appears appropriate and necessary that the said order dated 22.04.2020 by NCLAT be disapproved and set aside. Point N Summation of findings; final order and conclusion
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such amount of additional compensation is to be paid, YEIDA would collect the same from the end-users; and as regards the land of Expressway, such additional compensation shall be payable by YEIDA because YEIDA will be the end-user on getting ownership of the land of Expressway after expiry of the concession period. NBCC has justified these propositions on various grounds as noticed hereinabove. YEIDA takes serious exception to them and particularly to the stipulation that additional compensation in regard to the land of Yamuna Expressway would be payable by it. The Adjudicating Authority has made two-fold modifications in this regard. In paragraph 120 of the impugned order dated 03.03.2020, the Adjudicating Authority has said that to iron out creases and to make the resolution plan viable, it would direct that the plan shall be read to mean that YEIDA has a right to collect acquisition cost through the SPVs concerned. On the other hand, concerning the Expressway land, the Adjudicating Authority has provided in paragraph 122 of the impugned order that the resolution plan would be read to mean that it is left open to both the parties to have proper recourse before competent forum when the time comes for payment of additional compensation. In the submissions of YEIDA, such modifications were necessary to make the plan compliant with the rights and obligations under the CA.105.2. We find the prescriptions in the resolution plan in regard to the contingent liability of additional compensation to be questionable on more than one count.However, the contingency was required to be provided in the plan in case liability would be ultimately fastened on the corporate debtor JIL. It has not been suggested that any such bifurcation of liability, qua the land under Expressway on one hand and other parcels on the other, is a subject matter of the arbitration proceedings. However, going by the terms of the CA, prima facie, we are unable to find any indication therein that the liability for compensation with reference to the land under Expressway is not of the concessionaire. In any case, while making a provision for meeting with this contingent liability of additional amount of compensation, the resolution applicant could not have decided of its own that there will not be any liability of the concessionaire or its assigns towards the land under Expressway.106.1. It appears that while proposing to create two different SPVs, the resolution applicant stumbled on an idea that the liability for additional compensation as regards Expressway land could be simply deflected to YEIDA with reference to the fact that YEIDA will get this land back after 36 years; and reflected this idea by way of the questioned proposition in the resolution plan. The Adjudicating Authority has chosen to leave this issue open, for being litigated at the appropriate time and before the competent forum. In our view, such a prescription as regards Expressway land amounts to alterations of the material terms of CA and cannot be made without the consent of YEIDA. This aspect could have only been disapproved.106.2. Similarly, the resolution applicant, of its own, could not have decided that end-user would mean sub-lessee and thereby deflect even collection of the amount towards this liability on YEIDA and that too when YEIDA was not going to be a party in creation of any sub-lease. The structuring of these propositions regarding contingent liability turns out to be wholly illogical, apart from being at loggerheads with the terms of the Concession Agreement.106.3. It needs no great deal of discussion to find that the said aspect concerning the provision for additional compensation, if not approved on material terms, is of significant commercial impact. Even the other modification by the Adjudicating Authority, that YEIDA shall have a right to collect acquisition cost through SPVs concerned, carry their own commercial implications. These are not the terms which could be taken up for modification without disturbing the financial proposal of the resolution plan. While these prescriptions could not have been approved, in our view, the Adjudicating Authority could not have entered into any process of modification. The only course open for the Adjudicating Authority (NCLT) was to send the plan back to the Committee of Creditors for reconsideration.107. Apart from the aforesaid, the reliefs and concessions as sought for by the resolution applicant in relation to YEIDA in Clauses 4, 14 and 27 of Schedule 3 are also required to be disapproved. We are unable to countenance the proposition that by way of a resolution plan, it could be enjoined upon an agency of the government like YEIDA to give up or withdraw from a pending litigation. Similarly, extinguishment of existing liability qua YEIDA is not a relief that could be given to the resolution applicant for askance. For the same reason, the resolution applicant cannot seek extension of time period of the Concession Agreement by way of a clause of relief in the resolution plan without the consent of a governmental body like YEIDA.108. Before concluding on this point for determination where we have accepted the major parts of the objections of YEIDA, we may, in fairness to all the parties concerned, reiterate that despite stating its objections, YEIDA has consistently maintained before the NCLT as also before this Court(vide paragraphs 47.2, 99 and 99.8 (supra)) that it does not stand to oppose the resolution plan only for the sake of opposition; rather it would like the plan to succeed but, it has a public duty to ensure that the framework under CA is preserved and else, it would be ready to do everything within its power to ensure that the plan is a success. Thus, it would not be out of place to add a sanguine hope that being the owner of the land in question and public authority, YEIDA, who had envisaged and promoted the entire project, would, in future dealing with the matter, act with caution and circumspection, while earnestly reflecting upon the practical impact of its propositions/decisions on various stakeholders, including the homebuyers.
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Kanakarathanammal Vs. V. S. Loganatha Mudaliar And Another | the said co-mortgagors should be allowed to be impleaded before the Privy Council. In support of this plea, reliance was placed on the provisions of O. 1, R. 9 of the Code. In rejecting the said prayer, Sir George Lowndes who spoke for the Board observed that "they are unable to hold that the said Rule has any application to an appeal before the Board in a case where the defect has been brought to the notice of the party concerned from the very outset of the proceedings and he has had ample opportunity of remedying it in India."16. In the result, the appeal fails and is dismissed. The appellant has been granted special leave to file this appeal as a pauper. In the circumstances of this case, however, we direct that she need not pay the Court-fees which she would have had to pay if she had not been allowed to appeal as a pauper. There would be no order as to costs throughout.MUDHOLKAR, J.17. I regret my inability to agree with the conclusion of my learned brother Gajendragadkar J. on the second point and consequently with the ultimate decision of the appeal as proposed by him. My reasons for taking a different view are these :18. The sale deed on which the appellant relies admittedly stands in the name of her mother. It is no longer in dispute that the consideration for the transaction proceeded not from her mother but from her father. It was because of this latter circumstances that the respondents contended that the transaction was benami. After examining the entire evidence adduced by the parties, the trial court negatived the respondents contention. Though the High Court took a different view, my learned brother has held and in my opinion rightly, that the conclusion of the High Court was wrong and that the trial court was correct on this point. The position, therefore, that the property in question was that of the appellants mother at her death. The respondents, however, contended that even so the suit must fail because the appellant had failed to join her brothers as parties to the suit because they were co-heirs of their mother along with her. That would be the correct position under S. 12 of the Mysore Hindu Womens Rights Act provided the property is deemed to have been purchased by the mother herself. The short question, therefore, is whether upon the findings that the property was not purchased by the appellants father benami in the name of her mother and that the consideration for the transaction entirely flowed from the father, the inference must be that the property was purchased by the mother. No doubt, the sale deed stands in her name. But the fact remains that the consideration did not flow from her but from the appellants father. It is interesting to mention that on February, 9, 1948 the respondents counsel made an application under O. VI, Rr. 5 and 11, Code of Civil Procedure calling upon the appellant to furnish further particulars with regard to her claim to the property in question in view of S. 12 of the Mysore Hindu Womens Rights Act. She furnished the following particulars on February 17, 1948 :"The property detailed in Schedules I and II was all conveyed to Rajambal under one sale deed as stated in paragraph 5 of the plaint. She stood by her husband in his adversity sacrificing her possessions for him which she got as presents from her own parents. He was deeply attached to her, and indeed they were a loving couple. Out of love, affection and gratitude and with a view to make herself sufficient, he provided the money to acquire the property for her own absolute use, which she while alive had even decided and announced to give away to the plaintiff ultimately."The appellants case, therefore, clearly is that the purchase money was provided by her father for acquiring property for the absolute use of her mother. By negativing the finding of benami made by the High Court we are in effect holding that the property was acquired by the appellants father with his own money for her mother. In this state of affairs it is difficult to see how the transaction could be split up into two parts, i. e., a gift of the money by the father to the mother in the first instance and the purchase by the mother of that property subsequently with that money. In my judgment, upon the pleadings there is no scope for splitting up the transaction into parts like this. It is not even an alternative contention of the respondents that the transaction was in two parts and that what the father gifted was the money and not the property. It would be indeed an artificial way of looking at the transaction as was done by the trial court as being constituted of two parts. The transaction in my judgment is one indivisible whole, and that is, the father provided the money for acquiring the property in the mothers name. Therefore, in effect it was the father who purchased the property with the intention of conferring the beneficial interest solely upon the mother. Such a transaction must therefore amount to a gift. In that view the property would not fall under Cl. (d) of S. 10 of the Act but under Cl. (b) of that section. Therefore, the appellant would be the sole heir of her mother and the non-joinder of her brothers would not defeat the suit so far as she is concerned. In the result 1 would set aside the decree of the courts below in so far as the property in question, Beverley Estates, is concerned and decree the appellants suit with respect to it in addition to the property with respect to which she has already obtained a decree in the Courts below. I would further direct that the respondents will pay to the appellant proportionate costs in all the courts. | 0[ds]8. It is true that the actual management of the property was done by the appellants father; but that would inevitably be so having regard to the fact that in ordinary Hindu families the property belonging exclusively to a female member would also be normally managed by the Manager of the family; so that the fact that appellants mother did not take actual part in the management of the property would not materially affect the appellants case that the property belonged to her mother. The rent was paid by the tenants and accepted by the appellants father; but that, again, would be consistent with what ordinarily happens in such matters in an undivided Hindu family. If the property belongs to the wife and the husband manages the property on her behalf, it would be idle to contend that the management by the husband of the properties is inconsistent with the title of his wife to the said properties. What we have said about the management of the properties would be equally true about the actual possession of the properties, because even if the wife was the owner of the properties, possession may continue with the husband as a matter of convenience. We are satisfied that the High Court did not correctly appreciate the effect of the several admissions made by the appellants father in respect of the title of his wife to the property in question. Therefore, we hold that the property had been purchased by the appellants mother in her own name though the consideration which was paid by her for the said transaction had been received by her from heris thus clear that all gifts received from the husband at any time would fall under S. 10(2)(b). The appellants argument is that as soon as it is found that the consideration for the sale proceeded solely from the appellants father it must follow that the property purchased with the said consideration is a gift by the husband to his wife. The fact that the property has been purchased in the name of the wife does not make any difference in substance. Two transactions have taken place, one a gift of the money by the husband to his wife, and the other purchase of the property with the said money in the name of the wife. Treating the two transactions as integrally connected, it should be held that the purchase itself was made by the husband in the name of his wife and that can hardly be distinguished from the gift of the said property to theenquiry as to whether the property was purchased with the money given by the husband to the wife would in that sense be foreign to S. 10(2) (d) gift of money which would fall under S. 10(2) (b) if converted into another kind of property would not help to take the property under the same clause, because the converted property assumes a different character and falls under S.10(2) (d). Take a case where the husband gifts a house to his wife, and later, the wife sells the house and purchases land with the proceeds realised from the said sale. It is, we think, difficult to accede to the argument that the land purchased with the sale-proceeds of the house should, like the house itself, be treated as a gift from the husband to the wife; but that is exactly what the appellants argument will inevitably mean. The gift that is contemplated by S. 10(2) (b) must be a gift of the very property in specie made by the husband or other relations therein mentioned. Therefore, we are satisfied that the trial Court was right in coming to the conclusion that even if the property belonged to the appellants mother, her failure to implead her brothers who would inherit the property along with her makes the suit incompetent. It is true that this question had not been considered by the High Court, but since it is a pure point of law depending upon the construction of S. 10 of the Act, we do not think it necessary to remand the case for that purpose to the High Court. Facts which are necessary to decide the question under S.10(2) have been found and there is no dispute aboutfact that the High Court came to the contrary conclusion on the question of title does not matter, because if the appellant wanted to cure the infirmity in her plaint, she should have presented an application in that behalf at the hearing of the appeal itself. In fact, no such application was made even to this Court until the appeal was allowed to stand over after it was heard. Under the circumstances, we do not think it would be possible for us to entertain the said application. In the result, the application for amendment isit is held that the appellants two brothers are co-heirs with her in respect of the properties left intestate by their mother, the present suit filed by the appellant partakes of the character of a suit for partition and in such a suit clearly the appellant alone would not be entitled to claim any relief against the respondents. The estate can be represented only when all the three heirs are before the Court. If the appellant persisted in proceedings with the suit on the basis that she was exclusively entitled to the suit property, she took the risk and it is now too late to allow her to rectify the mistake. In Naba Kumar Hazra v. Radhashyam Mahish, AIR 1931 PC 229 the Privy Council had to deal with a similar situation. In the suit from which that appeal arose, the plaintiff had failed to implead co-mortgagors and persisted in not joining them despite the pleas taken by the defendants that the co-mortgagors were necessary parties and in the end, it was urged on his behalf that the said co-mortgagors should be allowed to be impleaded before the Privy Council. In support of this plea, reliance was placed on the provisions of O. 1, R. 9 of the Code. In rejecting the said prayer, Sir George Lowndes who spoke for the Board observed that "they are unable to hold that the said Rule has any application to an appeal before the Board in a case where the defect has been brought to the notice of the party concerned from the very outset of the proceedings and he has had ample opportunity of remedying it in India." | 0 | 5,631 | 1,181 | ### 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.
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the said co-mortgagors should be allowed to be impleaded before the Privy Council. In support of this plea, reliance was placed on the provisions of O. 1, R. 9 of the Code. In rejecting the said prayer, Sir George Lowndes who spoke for the Board observed that "they are unable to hold that the said Rule has any application to an appeal before the Board in a case where the defect has been brought to the notice of the party concerned from the very outset of the proceedings and he has had ample opportunity of remedying it in India."16. In the result, the appeal fails and is dismissed. The appellant has been granted special leave to file this appeal as a pauper. In the circumstances of this case, however, we direct that she need not pay the Court-fees which she would have had to pay if she had not been allowed to appeal as a pauper. There would be no order as to costs throughout.MUDHOLKAR, J.17. I regret my inability to agree with the conclusion of my learned brother Gajendragadkar J. on the second point and consequently with the ultimate decision of the appeal as proposed by him. My reasons for taking a different view are these :18. The sale deed on which the appellant relies admittedly stands in the name of her mother. It is no longer in dispute that the consideration for the transaction proceeded not from her mother but from her father. It was because of this latter circumstances that the respondents contended that the transaction was benami. After examining the entire evidence adduced by the parties, the trial court negatived the respondents contention. Though the High Court took a different view, my learned brother has held and in my opinion rightly, that the conclusion of the High Court was wrong and that the trial court was correct on this point. The position, therefore, that the property in question was that of the appellants mother at her death. The respondents, however, contended that even so the suit must fail because the appellant had failed to join her brothers as parties to the suit because they were co-heirs of their mother along with her. That would be the correct position under S. 12 of the Mysore Hindu Womens Rights Act provided the property is deemed to have been purchased by the mother herself. The short question, therefore, is whether upon the findings that the property was not purchased by the appellants father benami in the name of her mother and that the consideration for the transaction entirely flowed from the father, the inference must be that the property was purchased by the mother. No doubt, the sale deed stands in her name. But the fact remains that the consideration did not flow from her but from the appellants father. It is interesting to mention that on February, 9, 1948 the respondents counsel made an application under O. VI, Rr. 5 and 11, Code of Civil Procedure calling upon the appellant to furnish further particulars with regard to her claim to the property in question in view of S. 12 of the Mysore Hindu Womens Rights Act. She furnished the following particulars on February 17, 1948 :"The property detailed in Schedules I and II was all conveyed to Rajambal under one sale deed as stated in paragraph 5 of the plaint. She stood by her husband in his adversity sacrificing her possessions for him which she got as presents from her own parents. He was deeply attached to her, and indeed they were a loving couple. Out of love, affection and gratitude and with a view to make herself sufficient, he provided the money to acquire the property for her own absolute use, which she while alive had even decided and announced to give away to the plaintiff ultimately."The appellants case, therefore, clearly is that the purchase money was provided by her father for acquiring property for the absolute use of her mother. By negativing the finding of benami made by the High Court we are in effect holding that the property was acquired by the appellants father with his own money for her mother. In this state of affairs it is difficult to see how the transaction could be split up into two parts, i. e., a gift of the money by the father to the mother in the first instance and the purchase by the mother of that property subsequently with that money. In my judgment, upon the pleadings there is no scope for splitting up the transaction into parts like this. It is not even an alternative contention of the respondents that the transaction was in two parts and that what the father gifted was the money and not the property. It would be indeed an artificial way of looking at the transaction as was done by the trial court as being constituted of two parts. The transaction in my judgment is one indivisible whole, and that is, the father provided the money for acquiring the property in the mothers name. Therefore, in effect it was the father who purchased the property with the intention of conferring the beneficial interest solely upon the mother. Such a transaction must therefore amount to a gift. In that view the property would not fall under Cl. (d) of S. 10 of the Act but under Cl. (b) of that section. Therefore, the appellant would be the sole heir of her mother and the non-joinder of her brothers would not defeat the suit so far as she is concerned. In the result 1 would set aside the decree of the courts below in so far as the property in question, Beverley Estates, is concerned and decree the appellants suit with respect to it in addition to the property with respect to which she has already obtained a decree in the Courts below. I would further direct that the respondents will pay to the appellant proportionate costs in all the courts.
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The rent was paid by the tenants and accepted by the appellants father; but that, again, would be consistent with what ordinarily happens in such matters in an undivided Hindu family. If the property belongs to the wife and the husband manages the property on her behalf, it would be idle to contend that the management by the husband of the properties is inconsistent with the title of his wife to the said properties. What we have said about the management of the properties would be equally true about the actual possession of the properties, because even if the wife was the owner of the properties, possession may continue with the husband as a matter of convenience. We are satisfied that the High Court did not correctly appreciate the effect of the several admissions made by the appellants father in respect of the title of his wife to the property in question. Therefore, we hold that the property had been purchased by the appellants mother in her own name though the consideration which was paid by her for the said transaction had been received by her from heris thus clear that all gifts received from the husband at any time would fall under S. 10(2)(b). The appellants argument is that as soon as it is found that the consideration for the sale proceeded solely from the appellants father it must follow that the property purchased with the said consideration is a gift by the husband to his wife. The fact that the property has been purchased in the name of the wife does not make any difference in substance. Two transactions have taken place, one a gift of the money by the husband to his wife, and the other purchase of the property with the said money in the name of the wife. Treating the two transactions as integrally connected, it should be held that the purchase itself was made by the husband in the name of his wife and that can hardly be distinguished from the gift of the said property to theenquiry as to whether the property was purchased with the money given by the husband to the wife would in that sense be foreign to S. 10(2) (d) gift of money which would fall under S. 10(2) (b) if converted into another kind of property would not help to take the property under the same clause, because the converted property assumes a different character and falls under S.10(2) (d). Take a case where the husband gifts a house to his wife, and later, the wife sells the house and purchases land with the proceeds realised from the said sale. It is, we think, difficult to accede to the argument that the land purchased with the sale-proceeds of the house should, like the house itself, be treated as a gift from the husband to the wife; but that is exactly what the appellants argument will inevitably mean. The gift that is contemplated by S. 10(2) (b) must be a gift of the very property in specie made by the husband or other relations therein mentioned. Therefore, we are satisfied that the trial Court was right in coming to the conclusion that even if the property belonged to the appellants mother, her failure to implead her brothers who would inherit the property along with her makes the suit incompetent. It is true that this question had not been considered by the High Court, but since it is a pure point of law depending upon the construction of S. 10 of the Act, we do not think it necessary to remand the case for that purpose to the High Court. Facts which are necessary to decide the question under S.10(2) have been found and there is no dispute aboutfact that the High Court came to the contrary conclusion on the question of title does not matter, because if the appellant wanted to cure the infirmity in her plaint, she should have presented an application in that behalf at the hearing of the appeal itself. In fact, no such application was made even to this Court until the appeal was allowed to stand over after it was heard. Under the circumstances, we do not think it would be possible for us to entertain the said application. In the result, the application for amendment isit is held that the appellants two brothers are co-heirs with her in respect of the properties left intestate by their mother, the present suit filed by the appellant partakes of the character of a suit for partition and in such a suit clearly the appellant alone would not be entitled to claim any relief against the respondents. The estate can be represented only when all the three heirs are before the Court. If the appellant persisted in proceedings with the suit on the basis that she was exclusively entitled to the suit property, she took the risk and it is now too late to allow her to rectify the mistake. In Naba Kumar Hazra v. Radhashyam Mahish, AIR 1931 PC 229 the Privy Council had to deal with a similar situation. In the suit from which that appeal arose, the plaintiff had failed to implead co-mortgagors and persisted in not joining them despite the pleas taken by the defendants that the co-mortgagors were necessary parties and in the end, it was urged on his behalf that the said co-mortgagors should be allowed to be impleaded before the Privy Council. In support of this plea, reliance was placed on the provisions of O. 1, R. 9 of the Code. In rejecting the said prayer, Sir George Lowndes who spoke for the Board observed that "they are unable to hold that the said Rule has any application to an appeal before the Board in a case where the defect has been brought to the notice of the party concerned from the very outset of the proceedings and he has had ample opportunity of remedying it in India."
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THE EXECUTIVE ENGINEER, M.I.W Vs. VITTHAL DAMODAR PATIL | It is submitted that the witness possessed the necessary qualification and was competent to prepare the subject valuation report. The procedure adopted by him has been explained in his evidence which commended to the High Court and that view being a possible view, needs no interference. It is submitted that this appeal must fail both on the ground of delay as also on merits. 10. We have heard Mr. Sandeep S. Deshmukh, learned counsel for the appellant and Mr. P.S. Patwalia, learned senior counsel for the respondents-claimants. 11. At the outset, we reject the objection regarding the appeal being barred by limitation. In our opinion, in the peculiar facts of the present case, the explanation offered by the appellant for condoning the delay in filing of this appeal is a just and plausible explanation. As regards the merits of the controversy, we agree with the appellant that neither the Reference Court nor the High Court has analysed the evidence of Mr. Ravindra Ghanshyam Chaudhari, witness examined by the claimants in its proper perspective and more particularly in the context of the issues raised by the appellant about his competency, capability and including the procedure followed by him in preparing the valuation report and without providing any proof to justify the opinion formulated by him as regards the valuation of the acquired property. All these points, though raised by the appellant, as is manifest from the tenor of his cross-examination by the appellant, have not received proper attention of the High Court which was dealing with the first appeal, both on facts and on law. 12. The High Court, in our opinion, misapplied the decision in the case of Chindha Fakira Patil (supra). We say so because in that case, the principal argument was regarding discarding of Exhibit-28, concerning the relied-upon sale instance for the purpose of determining the market value. That can be discerned from paragraph 7 of the reported judgment, which reads as follows:?7. Shri Pallav Shishodia, learned Senior Counsel appearing for the appellants assailed the impugned judgment mainly on the ground that the reasons assigned by the High Court for discarding Exhibit 28 are not only irrelevant but are based on pure conjectures. He emphasised that while determining the amount of compensation, the Reference Court was entitled to take into consideration the sale instance which represented highest value paid for similar land and the High Court committed an error by basing its judgment on the average value of the sale instances referred to in the award passed by the respondent. In support of this argument, Shri Shishodia relied upon the judgments of this Court in M. Vijayalakshmamma Rao Bahadur v. Collector of Madras, State of Punjab v. Hans Raj and Anjani Molu Dessai v. State of Goa.?13. The judgment essentially deals with that contention. Indeed, the reported decision has adverted to the observation made by the Reference Court concerning the testimony of Mr. Ravindra Ghanshyam Chaudhari, who is the same witness. That has been noted in paragraph 11 of the reported judgment. The Court, no doubt, in paragraph 22 of the reported decision, has noted that there was no reason to discard the valuation report of Mr. Ravindra Ghanshyam Chaudhari. However, what is significant to bear in mind is that neither the Reference Court nor this Court in the aforesaid decision was called upon to consider the question about the eligibility and competency of the witness examined by the claimants. That issue has been specifically raised by the appellant in the present case, relying on the purported admission of the witness. Whether this contention raised by the appellant deserves acceptance or otherwise, is a matter which ought to have been examined at least by the High Court on its own merits. In other words, the reported decision is of no avail because every reference proceeding must be decided on the basis of the evidence produced and the issues raised by the parties in the concerned proceeding. Thus, the evidence of the witness examined by the claimants and the analysis thereof by this Court in some other reference case arising from an independent notification issued in earlier point of time concerning another village/Taluka cannot be the basis to mechanically hold that since the valuation report has been prepared by the same witness, it must be accepted as duly proved in all respects in the reference under consideration, moreso in respect of the justness of the valuation of the subject property. 14. As aforesaid, in the present case, the Reference Court discarded the valuation report on the finding that the valuer did not explain or bring on record how he made categories of custard apple. The High Court overturned that finding but failed to examine the nuances of the cross-examination of the witness brought on record by the appellant and the purported admission given by him, including the contention that he had failed to produce any proof to establish that he was ever been approved by the Government at the relevant time as an approved valuer and also to justify the valuation of the subject property. The High Court relied upon the subject valuation report essentially because the same witness had prepared a similar valuation report and submitted it in some other reference proceeding, which came to be accepted by this Court in the case of Chindha Fakira Patil (supra). There is no proper analysis of the oral evidence which has come on record in the present case and moreso the efficacy of lengthy cross- examination of the said witness by the appellant in respect of matters such as his eligibility, competence and including credibility, reliability and admissibility of the evidence given by him regarding the contents of the valuation report. We do not wish to analyse the said evidence and the contentions raised by the appellant in that regard for the first time in the present appeal. That ought to have been done by the High Court which was considering the first appeal, both on facts and on law. | 1[ds]11. At the outset, we reject the objection regarding the appeal being barred by limitation. In our opinion, in the peculiar facts of the present case, the explanation offered by the appellant for condoning the delay in filing of this appeal is a just and plausible explanation. As regards the merits of the controversy, we agree with the appellant that neither the Reference Court nor the High Court has analysed the evidence of Mr. Ravindra Ghanshyam Chaudhari, witness examined by the claimants in its proper perspective and more particularly in the context of the issues raised by the appellant about his competency, capability and including the procedure followed by him in preparing the valuation report and without providing any proof to justify the opinion formulated by him as regards the valuation of the acquired property. All these points, though raised by the appellant, as is manifest from the tenor of his cross-examination by the appellant, have not received proper attention of the High Court which was dealing with the first appeal, both on facts and on law.The High Court, in our opinion, misapplied the decision in the case of Chindha Fakira Patil (supra). We say so because in that case, the principal argument was regarding discarding of Exhibit-28, concerning the relied-upon sale instance for the purpose of determining the market value.The judgment essentially deals with that contention. Indeed, the reported decision has adverted to the observation made by the Reference Court concerning the testimony of Mr. Ravindra Ghanshyam Chaudhari, who is the same witness. That has been noted in paragraph 11 of the reported judgment. The Court, no doubt, in paragraph 22 of the reported decision, has noted that there was no reason to discard the valuation report of Mr. Ravindra Ghanshyam Chaudhari. However, what is significant to bear in mind is that neither the Reference Court nor this Court in the aforesaid decision was called upon to consider the question about the eligibility and competency of the witness examined by the claimants. That issue has been specifically raised by the appellant in the present case, relying on the purported admission of the witness. Whether this contention raised by the appellant deserves acceptance or otherwise, is a matter which ought to have been examined at least by the High Court on its own merits. In other words, the reported decision is of no avail because every reference proceeding must be decided on the basis of the evidence produced and the issues raised by the parties in the concerned proceeding. Thus, the evidence of the witness examined by the claimants and the analysis thereof by this Court in some other reference case arising from an independent notification issued in earlier point of time concerning another village/Taluka cannot be the basis to mechanically hold that since the valuation report has been prepared by the same witness, it must be accepted as duly proved in all respects in the reference under consideration, moreso in respect of the justness of the valuation of the subject property.As aforesaid, in the present case, the Reference Court discarded the valuation report on the finding that the valuer did not explain or bring on record how he made categories of custard apple. The High Court overturned that finding but failed to examine the nuances of the cross-examination of the witness brought on record by the appellant and the purported admission given by him, including the contention that he had failed to produce any proof to establish that he was ever been approved by the Government at the relevant time as an approved valuer and also to justify the valuation of the subject property. The High Court relied upon the subject valuation report essentially because the same witness had prepared a similar valuation report and submitted it in some other reference proceeding, which came to be accepted by this Court in the case of Chindha Fakira Patil (supra). There is no proper analysis of the oral evidence which has come on record in the present case and moreso the efficacy of lengthy cross- examination of the said witness by the appellant in respect of matters such as his eligibility, competence and including credibility, reliability and admissibility of the evidence given by him regarding the contents of the valuation report. We do not wish to analyse the said evidence and the contentions raised by the appellant in that regard for the first time in the present appeal. That ought to have been done by the High Court which was considering the first appeal, both on facts and on law. | 1 | 3,240 | 820 | ### Instruction:
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It is submitted that the witness possessed the necessary qualification and was competent to prepare the subject valuation report. The procedure adopted by him has been explained in his evidence which commended to the High Court and that view being a possible view, needs no interference. It is submitted that this appeal must fail both on the ground of delay as also on merits. 10. We have heard Mr. Sandeep S. Deshmukh, learned counsel for the appellant and Mr. P.S. Patwalia, learned senior counsel for the respondents-claimants. 11. At the outset, we reject the objection regarding the appeal being barred by limitation. In our opinion, in the peculiar facts of the present case, the explanation offered by the appellant for condoning the delay in filing of this appeal is a just and plausible explanation. As regards the merits of the controversy, we agree with the appellant that neither the Reference Court nor the High Court has analysed the evidence of Mr. Ravindra Ghanshyam Chaudhari, witness examined by the claimants in its proper perspective and more particularly in the context of the issues raised by the appellant about his competency, capability and including the procedure followed by him in preparing the valuation report and without providing any proof to justify the opinion formulated by him as regards the valuation of the acquired property. All these points, though raised by the appellant, as is manifest from the tenor of his cross-examination by the appellant, have not received proper attention of the High Court which was dealing with the first appeal, both on facts and on law. 12. The High Court, in our opinion, misapplied the decision in the case of Chindha Fakira Patil (supra). We say so because in that case, the principal argument was regarding discarding of Exhibit-28, concerning the relied-upon sale instance for the purpose of determining the market value. That can be discerned from paragraph 7 of the reported judgment, which reads as follows:?7. Shri Pallav Shishodia, learned Senior Counsel appearing for the appellants assailed the impugned judgment mainly on the ground that the reasons assigned by the High Court for discarding Exhibit 28 are not only irrelevant but are based on pure conjectures. He emphasised that while determining the amount of compensation, the Reference Court was entitled to take into consideration the sale instance which represented highest value paid for similar land and the High Court committed an error by basing its judgment on the average value of the sale instances referred to in the award passed by the respondent. In support of this argument, Shri Shishodia relied upon the judgments of this Court in M. Vijayalakshmamma Rao Bahadur v. Collector of Madras, State of Punjab v. Hans Raj and Anjani Molu Dessai v. State of Goa.?13. The judgment essentially deals with that contention. Indeed, the reported decision has adverted to the observation made by the Reference Court concerning the testimony of Mr. Ravindra Ghanshyam Chaudhari, who is the same witness. That has been noted in paragraph 11 of the reported judgment. The Court, no doubt, in paragraph 22 of the reported decision, has noted that there was no reason to discard the valuation report of Mr. Ravindra Ghanshyam Chaudhari. However, what is significant to bear in mind is that neither the Reference Court nor this Court in the aforesaid decision was called upon to consider the question about the eligibility and competency of the witness examined by the claimants. That issue has been specifically raised by the appellant in the present case, relying on the purported admission of the witness. Whether this contention raised by the appellant deserves acceptance or otherwise, is a matter which ought to have been examined at least by the High Court on its own merits. In other words, the reported decision is of no avail because every reference proceeding must be decided on the basis of the evidence produced and the issues raised by the parties in the concerned proceeding. Thus, the evidence of the witness examined by the claimants and the analysis thereof by this Court in some other reference case arising from an independent notification issued in earlier point of time concerning another village/Taluka cannot be the basis to mechanically hold that since the valuation report has been prepared by the same witness, it must be accepted as duly proved in all respects in the reference under consideration, moreso in respect of the justness of the valuation of the subject property. 14. As aforesaid, in the present case, the Reference Court discarded the valuation report on the finding that the valuer did not explain or bring on record how he made categories of custard apple. The High Court overturned that finding but failed to examine the nuances of the cross-examination of the witness brought on record by the appellant and the purported admission given by him, including the contention that he had failed to produce any proof to establish that he was ever been approved by the Government at the relevant time as an approved valuer and also to justify the valuation of the subject property. The High Court relied upon the subject valuation report essentially because the same witness had prepared a similar valuation report and submitted it in some other reference proceeding, which came to be accepted by this Court in the case of Chindha Fakira Patil (supra). There is no proper analysis of the oral evidence which has come on record in the present case and moreso the efficacy of lengthy cross- examination of the said witness by the appellant in respect of matters such as his eligibility, competence and including credibility, reliability and admissibility of the evidence given by him regarding the contents of the valuation report. We do not wish to analyse the said evidence and the contentions raised by the appellant in that regard for the first time in the present appeal. That ought to have been done by the High Court which was considering the first appeal, both on facts and on law.
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11. At the outset, we reject the objection regarding the appeal being barred by limitation. In our opinion, in the peculiar facts of the present case, the explanation offered by the appellant for condoning the delay in filing of this appeal is a just and plausible explanation. As regards the merits of the controversy, we agree with the appellant that neither the Reference Court nor the High Court has analysed the evidence of Mr. Ravindra Ghanshyam Chaudhari, witness examined by the claimants in its proper perspective and more particularly in the context of the issues raised by the appellant about his competency, capability and including the procedure followed by him in preparing the valuation report and without providing any proof to justify the opinion formulated by him as regards the valuation of the acquired property. All these points, though raised by the appellant, as is manifest from the tenor of his cross-examination by the appellant, have not received proper attention of the High Court which was dealing with the first appeal, both on facts and on law.The High Court, in our opinion, misapplied the decision in the case of Chindha Fakira Patil (supra). We say so because in that case, the principal argument was regarding discarding of Exhibit-28, concerning the relied-upon sale instance for the purpose of determining the market value.The judgment essentially deals with that contention. Indeed, the reported decision has adverted to the observation made by the Reference Court concerning the testimony of Mr. Ravindra Ghanshyam Chaudhari, who is the same witness. That has been noted in paragraph 11 of the reported judgment. The Court, no doubt, in paragraph 22 of the reported decision, has noted that there was no reason to discard the valuation report of Mr. Ravindra Ghanshyam Chaudhari. However, what is significant to bear in mind is that neither the Reference Court nor this Court in the aforesaid decision was called upon to consider the question about the eligibility and competency of the witness examined by the claimants. That issue has been specifically raised by the appellant in the present case, relying on the purported admission of the witness. Whether this contention raised by the appellant deserves acceptance or otherwise, is a matter which ought to have been examined at least by the High Court on its own merits. In other words, the reported decision is of no avail because every reference proceeding must be decided on the basis of the evidence produced and the issues raised by the parties in the concerned proceeding. Thus, the evidence of the witness examined by the claimants and the analysis thereof by this Court in some other reference case arising from an independent notification issued in earlier point of time concerning another village/Taluka cannot be the basis to mechanically hold that since the valuation report has been prepared by the same witness, it must be accepted as duly proved in all respects in the reference under consideration, moreso in respect of the justness of the valuation of the subject property.As aforesaid, in the present case, the Reference Court discarded the valuation report on the finding that the valuer did not explain or bring on record how he made categories of custard apple. The High Court overturned that finding but failed to examine the nuances of the cross-examination of the witness brought on record by the appellant and the purported admission given by him, including the contention that he had failed to produce any proof to establish that he was ever been approved by the Government at the relevant time as an approved valuer and also to justify the valuation of the subject property. The High Court relied upon the subject valuation report essentially because the same witness had prepared a similar valuation report and submitted it in some other reference proceeding, which came to be accepted by this Court in the case of Chindha Fakira Patil (supra). There is no proper analysis of the oral evidence which has come on record in the present case and moreso the efficacy of lengthy cross- examination of the said witness by the appellant in respect of matters such as his eligibility, competence and including credibility, reliability and admissibility of the evidence given by him regarding the contents of the valuation report. We do not wish to analyse the said evidence and the contentions raised by the appellant in that regard for the first time in the present appeal. That ought to have been done by the High Court which was considering the first appeal, both on facts and on law.
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STATE OF RAJASTHAN Vs. ASHOK KHETOLIYA & ANR | with the constitutional provisions or without committing a breach thereof, the courts cannot interfere with the same. We may, in this connection, refer to a decision of this Court in Hingir-Rampur Coal Co. Ltd. v. State of Orissa [(1961) 2 SCR 537 : AIR 1961 SC 459] . In this case, the petitioner-mineowners, had among others, challenged the method prescribed by the legislature for recovering the cess under the Orissa Mining Areas Development Fund Act, 1952 on the ground that it was unconstitutional. The majority of the Bench held that the method is a matter of convenience and, though relevant, has to be tested in the light of other relevant circumstances. It is not permissible to challenge the vires of a statute solely on the ground that the method adopted for the recovery of the impost can and generally is adopted in levying a duty of excise. 16. Since the local Government falls in entry 5 of List II of the Seventh Schedule, therefore, it is the State Legislature alone which is competent to legislate in respect of the municipalities with only one limitation that the provisions of the State Act cannot be inconsistent with the mandate of the Scheme of Part IXA of the Constitution. The scheme of Part IXA of the Municipalities Act does not contemplate a separate notification under Article 243Q of the Constitution and thereafter under Section 5 of the Municipalities Act. As Section 5 of the Municipalities Act is not inconsistent with any provisions of Article 243Q of the Constitution, therefore, two notifications are not contemplated or warranted under the Scheme of Part IXA or the Municipalities Act as reproduced in the table above. 17. The State Government is competent to divide the Municipalities in the State into classes according to their income or other factors like population or importance of the local area and other circumstances as provided under Section 329 of the Municipalities Act. In terms of Section 329, a notification was issued on 30.4.2012 determining the category of the Municipal Corporation/Municipal Council/Municipal Board. The said notification reads as under: No. P .8 (Ga) ( ) Rule/Category/LSG/12/3825 Dated 30/4/12 :- Notification:- In connection with the partition of the category of municipalities and superseding all the notifications issued earlier in relation to the categorization of Municipal Councils by exercising the powers rendered in Section 329 read with Section 337 of Rajasthan Municipal Act, 2009 (Act No. 18 of year 2009), the State Government hem by determines the category of all the Municipal Corporation/Councils/Board which follows as under:- (1) Greater Urbanized area (Municipal Corporation) - Urbanized area of population of 5 lacs (2) Small urbanized area (Municipal Council) - All urbanized area and all district headquarters (except Municipal Corporation) having population of more than 1 lac and less than 5 lacs. (3) Transitional area (Municipality Board) - Urbanized area of 1 lac population But State Government would have right to convert any municipal council into any category keeping in view its historical/religious/archaeological importance or in any special circumstances. As per order of Governor Sd. Deputy Government Secretary. 18. Thereafter, the impugned notification dated 12.8.2014 was issued in exercise of the powers conferred on the State Government under Section 3 read with Section 329 of the Municipalities Act. The said notification reads thus: No.F.10(ka)Est./Category( )/DLB/14/2591 Dated 12/8/14 :- Notification:- State Government by exercising its power U/S 3 read with Section 329 of Rajasthan Municipal Act 2009 (Act No.18 year 2009) and Notification No.P.8(.G)()Rule/Category/LSG/12/3825- 4090 dated 30/4/12 hereby declares all the following Gram Panchayat areas into fourth class Municipal Councils with immediate effect. S. No. District Name of Gram Panchayat Newly constituted forth class Municipal Councils 1 Bharatpur Roopbas Municipal Board Roopbas Existing Boundaries of the said Gram Panchyat (Barbar -in the north, Gram Samahad in the south, Bhidyani and Rudh Roopwas in the east and Dorda in the west) would remain the local boundaries of newly constituted Municipal Board. As per order of Governor Sd. Government Deputy Secretary. 19. The above notifications would show that the State Government had exercised powers to establish Municipality in terms of Section 5 of the Municipalities Act. Such notifications cannot be said to be illegal or arbitrary in any manner and were rightly issued in exercise of the statutory powers conferred on the State by the Legislature. 20. The argument of Ms. Yadav is that the notification is arbitrary and unreasonable, therefore, the High Court has rightly struck down the notification. Reliance is placed on the judgment reported as Pune Municipal Corporation to support such contention. In the said case, the notification amending the Development Control Rules sanctioned by the State Government under Section 37 of the Maharashtra Regional and Town Planning Act, 1966 was the subject matter of challenge. The High Court had struck down the notification amending the Development Control Rules. It was held that the Development Control Rules were legislative function, therefore, Section 36 has to be viewed as repository of legislative powers for effecting amendments to Development Control Rules. It was observed that such Rules can be challenged on the ground of it being arbitrary or unreasonable. We do not find that the said judgment in any way support the arguments raised by the learned counsel. 21. In MGR Industries Association, the appellant was claiming to be part of the industrial township so as to be exempt from the jurisdiction of Zila Panchayat. This Court examined that there has to be a notification under Section 12-A of the U.P. Industrial Area Development Act, 1976 before it is excluded from Panchayat area. Therefore, two notifications were required, one to constitute an industrial township under Section 12-A of the 1976 Act and then exclusion of Panchayat area under the Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961. The said judgment is again not helpful for the arguments raised. 22. In fact, the High Court has struck down the notification only for the reason that the notification under Article 243Q(2) was not published. Such reasoning is not tenable. | 0[ds]8. We find that the High Court has misread the scope of Part IXA of the Constitution and Article 243Q of the Constitution contemplating that the transitional area has to be notified under such provision. The scheme of the Constitutional Amendment is not to take away legislative competence of the State Legislatures to legislate on the subject of local Government but it is more to ensure that the three tiers of governance are strengthened as part of democratic set up.11. This Court in Tulsipur Sugar Co. Ltd. held as under:7. We are concerned in the present case with the power of the State Government to make a declaration constituting a geographical area into a town area under Section 3 of the Act which does not require the State Government to make such declaration after giving notice of its intention so to do to the members of the public and inviting their representations regarding such action. The power of the State Government to make a declaration under Section 3 of the Act is legislative in character because the application of the rest of the provisions of the Act to the geographical area which is declared as a town area is dependent upon such declaration. Section 3 of the Act is in the nature of a conditional legislation. Dealing with the nature of functions of a non-judicial authority, Prof. S.A. De Smith in Judicial Review of Administrative Action (3rd Edn.) observes at p. 163:However, the analytical classification of a function may be a conclusive factor in excluding the operation of the audi alteram partem rule. It is generally assumed that in English law the making of a subordinate legislative instrument need not be preceded by notice or hearing unless the parent Act so provides.xx xx xx9. We are, therefore, of the view that the maxim audi alteram partem does not become applicable to the case by necessary implication.xx xx xx17. We are, therefore, of the view that a notification issued under Section 3 of the Act which has the effect of making the Act applicable to a geographical area is in the nature of a conditional legislation and that it cannot be characterised as a piece of subordinate legislation. In view of the foregoing, we hold that the contention of the plaintiff that the declaration made by the State Government under Section 3 of the Act declaring the area in which the sugar factory of the plaintiff is situated as a part of the Tulsipur town area is invalid is not tenable.12. In Sundarjas Kanyalal Bhatija, a draft notification proposed the formation of a Kalyan Corporation by merging municipal areas of Kalyan, Ambarnath, Dombivali and Ulhasnagar. The State Government issued a notification excluding Ulhasnagar from the proposed corporation. The High Court found that the decision to exclude Ulhasnagar was taken by the Government abruptly and in an irrational manner. This Court held as under:27. Reverting to the case, we find that the conclusion of the High Court as to the need to reconsider the proposal to form the Corporation has neither the attraction of logic nor the support of law. It must be noted that the function of the Government in establishing a Corporation under the Act is neither executive nor administrative. Counsel for the appellants was right in his submission that it is legislative process indeed. No judicial duty is laid on the Government in discharge of the statutory duties. The only question to be examined is whether the statutory provisions have been complied with. If they are complied with, then, the court could say no more. In the present case the Government did publish the proposal by a draft notification and also considered the representations received. It was only thereafter, a decision was taken to exclude Ulhasnagar for the time being. That decision became final when it was notified under Section 3(2). The court cannot sit in judgment over such decision. It cannot lay down norms for the exercise of that power. It cannot substitute even its juster will for theirs.14. We find that such judgment is not in tune with the scheme of the Constitution and is contrary to a three-Judge Bench judgment of this Court reported as Parmar Samantsinh Umedsinh v. State of Gujarat & Ors. 2021 SCC OnLine SC 138 wherein the vires of the Gujarat Provincial Municipal Corporation Act, 1949 were subject matter of challenge on the ground that the State law has provided more than one representative from a single Ward and, thus, this provision is inconsistent with the provisions of Article 243R and Article 243S of the Constitution. This Court held as under:19. The power of competent Legislature, i.e., State Legislature in the light of enabling provisions provided in the Constitution with regard to framing of laws concerning Legislature cannot be whittled down by way of restrictive interpretation as contended by the appellants. The State Legislature in federal set up specially in the matter of local Government are to enable enough seats to adopt the reservation based on local body.35. The ratio which can be culled out from the above judgment is that power of the State to legislate within its legislative competence is plenary and the same cannot be curtailed in the absence of an express limitation placed on such power in the Constitution itself.36. Article 243ZF provides that any law relating to municipalities in force in a State immediately before the commencement of the Constitution (Seventy-fourth Amendment) Act, 1992, which is inconsistent with the provisions of Part IXA, shall not continue beyond expiration of one year from commencement of the constitutional amendment. Thus, Part IXA of the Constitution categorically contemplated that any law made by State Legislature, which is inconsistent with the provisions of Part IXA shall cease to operate on the expiration of one year or till amended or repealed by a competent Legislature, whichever is earlier. The Constitution provisions, thus, mandates that any law of the State, which is inconsistent, cannot continue. Thus, this limitation shall also govern any law made after enforcement of Constitution (Seventyfourth Amendment) Act. Thus, a law, which is inconsistent with Part IXA cannot be framed by the State Legislature.38. One of the meanings of expression inconsistent as approved by this Court is mutually repugnant or contradictory. Article 254 of the Constitution contains a heading inconsistency between laws made by the Parliament and the laws made by the Legislature of the State whereas under Article 254(1) and Article 254(2) the words used are repugnant. The Constitution itself, thus, has used the words inconsistency and repugnancy interchangeably. To find out as to whether a law made by State Legislature is inconsistent with provisions of Part IXA of the Constitution, the principles which have been laid down by this Court to determine the repugnancy between the law made by the Legislature of a State and law made by Parliament can be profitably relied on. We, thus, need to notice the principles on which the repugnancy of law made by State and law made by the Parliament is found out.50. Thus, the Legislature of a State may by law has to provide all matters relating to or in connection with election to the Municipalities, which includes filling of the seats in the Municipality by person chosen by direct election. Articles 243R and 243ZA does not give any indication as to whether from territorial constituency, i.e., the Wards, whether only one member has to be elected in the Municipality or it can be multiple member constituency. The constitutional provisions of Article 243R, which provides for composition of Municipalities and that of Article 243ZA does not give any indication to the above. The provisions of Article 243ZG, which deals with bar to interference by courts in electoral matters throws some light…59. We have analysed the provisions of Article 243R, 243S and have come to the definite conclusion that no limitation in Article 243S can be found of which contains any prohibition of having more than one member for a Ward.63. We, in the present case, after analysing the relevant provisions of Part IXA of the Constitution has come to the conclusion that there is no prohibition or limitation in Part IXA of the Constitution prohibiting the State Legislature from making a law providing for election of more than one member from one territorial constituency, i.e., Ward.16. Since the local Government falls in entry 5 of List II of the Seventh Schedule, therefore, it is the State Legislature alone which is competent to legislate in respect of the municipalities with only one limitation that the provisions of the State Act cannot be inconsistent with the mandate of the Scheme of Part IXA of the Constitution. The scheme of Part IXA of the Municipalities Act does not contemplate a separate notification under Article 243Q of the Constitution and thereafter under Section 5 of the Municipalities Act. As Section 5 of the Municipalities Act is not inconsistent with any provisions of Article 243Q of the Constitution, therefore, two notifications are not contemplated or warranted under the Scheme of Part IXA or the Municipalities Act as reproduced in the table above.19. The above notifications would show that the State Government had exercised powers to establish Municipality in terms of Section 5 of the Municipalities Act. Such notifications cannot be said to be illegal or arbitrary in any manner and were rightly issued in exercise of the statutory powers conferred on the State by the Legislature.In the said case, the notification amending the Development Control Rules sanctioned by the State Government under Section 37 of the Maharashtra Regional and Town Planning Act, 1966 was the subject matter of challenge. The High Court had struck down the notification amending the Development Control Rules. It was held that the Development Control Rules were legislative function, therefore, Section 36 has to be viewed as repository of legislative powers for effecting amendments to Development Control Rules. It was observed that such Rules can be challenged on the ground of it being arbitrary or unreasonable. We do not find that the said judgment in any way support the arguments raised by the learned counsel.21. In MGR Industries Association, the appellant was claiming to be part of the industrial township so as to be exempt from the jurisdiction of Zila Panchayat. This Court examined that there has to be a notification under Section 12-A of the U.P. Industrial Area Development Act, 1976 before it is excluded from Panchayat area. Therefore, two notifications were required, one to constitute an industrial township under Section 12-A of the 1976 Act and then exclusion of Panchayat area under the Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961. The said judgment is again not helpful for the arguments raised.22. In fact, the High Court has struck down the notification only for the reason that the notification under Article 243Q(2) was not published. Such reasoning is not tenable. | 0 | 5,494 | 1,975 | ### Instruction:
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with the constitutional provisions or without committing a breach thereof, the courts cannot interfere with the same. We may, in this connection, refer to a decision of this Court in Hingir-Rampur Coal Co. Ltd. v. State of Orissa [(1961) 2 SCR 537 : AIR 1961 SC 459] . In this case, the petitioner-mineowners, had among others, challenged the method prescribed by the legislature for recovering the cess under the Orissa Mining Areas Development Fund Act, 1952 on the ground that it was unconstitutional. The majority of the Bench held that the method is a matter of convenience and, though relevant, has to be tested in the light of other relevant circumstances. It is not permissible to challenge the vires of a statute solely on the ground that the method adopted for the recovery of the impost can and generally is adopted in levying a duty of excise. 16. Since the local Government falls in entry 5 of List II of the Seventh Schedule, therefore, it is the State Legislature alone which is competent to legislate in respect of the municipalities with only one limitation that the provisions of the State Act cannot be inconsistent with the mandate of the Scheme of Part IXA of the Constitution. The scheme of Part IXA of the Municipalities Act does not contemplate a separate notification under Article 243Q of the Constitution and thereafter under Section 5 of the Municipalities Act. As Section 5 of the Municipalities Act is not inconsistent with any provisions of Article 243Q of the Constitution, therefore, two notifications are not contemplated or warranted under the Scheme of Part IXA or the Municipalities Act as reproduced in the table above. 17. The State Government is competent to divide the Municipalities in the State into classes according to their income or other factors like population or importance of the local area and other circumstances as provided under Section 329 of the Municipalities Act. In terms of Section 329, a notification was issued on 30.4.2012 determining the category of the Municipal Corporation/Municipal Council/Municipal Board. The said notification reads as under: No. P .8 (Ga) ( ) Rule/Category/LSG/12/3825 Dated 30/4/12 :- Notification:- In connection with the partition of the category of municipalities and superseding all the notifications issued earlier in relation to the categorization of Municipal Councils by exercising the powers rendered in Section 329 read with Section 337 of Rajasthan Municipal Act, 2009 (Act No. 18 of year 2009), the State Government hem by determines the category of all the Municipal Corporation/Councils/Board which follows as under:- (1) Greater Urbanized area (Municipal Corporation) - Urbanized area of population of 5 lacs (2) Small urbanized area (Municipal Council) - All urbanized area and all district headquarters (except Municipal Corporation) having population of more than 1 lac and less than 5 lacs. (3) Transitional area (Municipality Board) - Urbanized area of 1 lac population But State Government would have right to convert any municipal council into any category keeping in view its historical/religious/archaeological importance or in any special circumstances. As per order of Governor Sd. Deputy Government Secretary. 18. Thereafter, the impugned notification dated 12.8.2014 was issued in exercise of the powers conferred on the State Government under Section 3 read with Section 329 of the Municipalities Act. The said notification reads thus: No.F.10(ka)Est./Category( )/DLB/14/2591 Dated 12/8/14 :- Notification:- State Government by exercising its power U/S 3 read with Section 329 of Rajasthan Municipal Act 2009 (Act No.18 year 2009) and Notification No.P.8(.G)()Rule/Category/LSG/12/3825- 4090 dated 30/4/12 hereby declares all the following Gram Panchayat areas into fourth class Municipal Councils with immediate effect. S. No. District Name of Gram Panchayat Newly constituted forth class Municipal Councils 1 Bharatpur Roopbas Municipal Board Roopbas Existing Boundaries of the said Gram Panchyat (Barbar -in the north, Gram Samahad in the south, Bhidyani and Rudh Roopwas in the east and Dorda in the west) would remain the local boundaries of newly constituted Municipal Board. As per order of Governor Sd. Government Deputy Secretary. 19. The above notifications would show that the State Government had exercised powers to establish Municipality in terms of Section 5 of the Municipalities Act. Such notifications cannot be said to be illegal or arbitrary in any manner and were rightly issued in exercise of the statutory powers conferred on the State by the Legislature. 20. The argument of Ms. Yadav is that the notification is arbitrary and unreasonable, therefore, the High Court has rightly struck down the notification. Reliance is placed on the judgment reported as Pune Municipal Corporation to support such contention. In the said case, the notification amending the Development Control Rules sanctioned by the State Government under Section 37 of the Maharashtra Regional and Town Planning Act, 1966 was the subject matter of challenge. The High Court had struck down the notification amending the Development Control Rules. It was held that the Development Control Rules were legislative function, therefore, Section 36 has to be viewed as repository of legislative powers for effecting amendments to Development Control Rules. It was observed that such Rules can be challenged on the ground of it being arbitrary or unreasonable. We do not find that the said judgment in any way support the arguments raised by the learned counsel. 21. In MGR Industries Association, the appellant was claiming to be part of the industrial township so as to be exempt from the jurisdiction of Zila Panchayat. This Court examined that there has to be a notification under Section 12-A of the U.P. Industrial Area Development Act, 1976 before it is excluded from Panchayat area. Therefore, two notifications were required, one to constitute an industrial township under Section 12-A of the 1976 Act and then exclusion of Panchayat area under the Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961. The said judgment is again not helpful for the arguments raised. 22. In fact, the High Court has struck down the notification only for the reason that the notification under Article 243Q(2) was not published. Such reasoning is not tenable.
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### Explanation:
Legislature in federal set up specially in the matter of local Government are to enable enough seats to adopt the reservation based on local body.35. The ratio which can be culled out from the above judgment is that power of the State to legislate within its legislative competence is plenary and the same cannot be curtailed in the absence of an express limitation placed on such power in the Constitution itself.36. Article 243ZF provides that any law relating to municipalities in force in a State immediately before the commencement of the Constitution (Seventy-fourth Amendment) Act, 1992, which is inconsistent with the provisions of Part IXA, shall not continue beyond expiration of one year from commencement of the constitutional amendment. Thus, Part IXA of the Constitution categorically contemplated that any law made by State Legislature, which is inconsistent with the provisions of Part IXA shall cease to operate on the expiration of one year or till amended or repealed by a competent Legislature, whichever is earlier. The Constitution provisions, thus, mandates that any law of the State, which is inconsistent, cannot continue. Thus, this limitation shall also govern any law made after enforcement of Constitution (Seventyfourth Amendment) Act. Thus, a law, which is inconsistent with Part IXA cannot be framed by the State Legislature.38. One of the meanings of expression inconsistent as approved by this Court is mutually repugnant or contradictory. Article 254 of the Constitution contains a heading inconsistency between laws made by the Parliament and the laws made by the Legislature of the State whereas under Article 254(1) and Article 254(2) the words used are repugnant. The Constitution itself, thus, has used the words inconsistency and repugnancy interchangeably. To find out as to whether a law made by State Legislature is inconsistent with provisions of Part IXA of the Constitution, the principles which have been laid down by this Court to determine the repugnancy between the law made by the Legislature of a State and law made by Parliament can be profitably relied on. We, thus, need to notice the principles on which the repugnancy of law made by State and law made by the Parliament is found out.50. Thus, the Legislature of a State may by law has to provide all matters relating to or in connection with election to the Municipalities, which includes filling of the seats in the Municipality by person chosen by direct election. Articles 243R and 243ZA does not give any indication as to whether from territorial constituency, i.e., the Wards, whether only one member has to be elected in the Municipality or it can be multiple member constituency. The constitutional provisions of Article 243R, which provides for composition of Municipalities and that of Article 243ZA does not give any indication to the above. The provisions of Article 243ZG, which deals with bar to interference by courts in electoral matters throws some light…59. We have analysed the provisions of Article 243R, 243S and have come to the definite conclusion that no limitation in Article 243S can be found of which contains any prohibition of having more than one member for a Ward.63. We, in the present case, after analysing the relevant provisions of Part IXA of the Constitution has come to the conclusion that there is no prohibition or limitation in Part IXA of the Constitution prohibiting the State Legislature from making a law providing for election of more than one member from one territorial constituency, i.e., Ward.16. Since the local Government falls in entry 5 of List II of the Seventh Schedule, therefore, it is the State Legislature alone which is competent to legislate in respect of the municipalities with only one limitation that the provisions of the State Act cannot be inconsistent with the mandate of the Scheme of Part IXA of the Constitution. The scheme of Part IXA of the Municipalities Act does not contemplate a separate notification under Article 243Q of the Constitution and thereafter under Section 5 of the Municipalities Act. As Section 5 of the Municipalities Act is not inconsistent with any provisions of Article 243Q of the Constitution, therefore, two notifications are not contemplated or warranted under the Scheme of Part IXA or the Municipalities Act as reproduced in the table above.19. The above notifications would show that the State Government had exercised powers to establish Municipality in terms of Section 5 of the Municipalities Act. Such notifications cannot be said to be illegal or arbitrary in any manner and were rightly issued in exercise of the statutory powers conferred on the State by the Legislature.In the said case, the notification amending the Development Control Rules sanctioned by the State Government under Section 37 of the Maharashtra Regional and Town Planning Act, 1966 was the subject matter of challenge. The High Court had struck down the notification amending the Development Control Rules. It was held that the Development Control Rules were legislative function, therefore, Section 36 has to be viewed as repository of legislative powers for effecting amendments to Development Control Rules. It was observed that such Rules can be challenged on the ground of it being arbitrary or unreasonable. We do not find that the said judgment in any way support the arguments raised by the learned counsel.21. In MGR Industries Association, the appellant was claiming to be part of the industrial township so as to be exempt from the jurisdiction of Zila Panchayat. This Court examined that there has to be a notification under Section 12-A of the U.P. Industrial Area Development Act, 1976 before it is excluded from Panchayat area. Therefore, two notifications were required, one to constitute an industrial township under Section 12-A of the 1976 Act and then exclusion of Panchayat area under the Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961. The said judgment is again not helpful for the arguments raised.22. In fact, the High Court has struck down the notification only for the reason that the notification under Article 243Q(2) was not published. Such reasoning is not tenable.
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Azmat Khan Vs. Khillan Singh & Others | FAZAL ALI, J.1. This election appeal arises out of the election held in 1980 from the constituency No. 56 called Hathin to the Legislative Assembly of the State of Haryana. At the counting held by t he Returning Officer, the Appellant secured 12, 828 votes whereas respondent No. 1 Khillan Singh got 12, 655 votes and one Ramjilal got 12, 213 votes. Accordingly the appellant was declared as elected. Aggrieved by the result of the election, Khillan Singh and Ramjilal filed election petitions in the High Court. In the course of the election petition, the appellant filed a recrimination petition in which one of the grounds related to the errors committed in the counting of votes of respondent No. 1. All the parties agreed that the court should order a recount and that the parties would be bound by the result of the recount. The recount was accordingly held as a result of which Khillan Singh respondent No. 1 got 12, 751 i.e. the highest number of valid votes and the appellant got 12, 698 votes. In view of the higher votes secured by Khillan Singh respondent No. 1 at the recount ordered by the High Court, his petition was allowed, the election of the appellant was set aside and Khillan Singh was declared as elected. This appeal is filed against the decision of the High Court.2. In support of the appeal, Mr. Bhandare with the usual ingenuity pressed only one point before us. He submitted on the basis of the Judgment of this Court in Jabar Singh v. Genda Lal that even if the result had gone in favour of respondent No. 1 he could not have been declared elected. We have gone through this authority and we find that the facts of the present case are clearly distinguishable. In the decision referred to above the returned candidate did not recriminate as provided under section 97 of the Representation of the People Act, 1951 and this was the important ground on which the Court said that it could not make any attack against the alternative claim made by the petitioner. In the instant case, the appellant had admittedly recriminated and in the recrimination petition one of the grounds taken related to the errors committed at the time of the counting of votes of the 1st respondent by the Returning Officer. The appellant had also agreed to the recounting of the votes secured by all the parties. In these circumstances, this case does not appear to be of any assistance to the appellant. The decision of the High Court is in accordance with the result of the recount ordered by it. Fo | 0[ds]We have gone through this authority and we find that the facts of the present case are clearly distinguishable. In the decision referred to above the returned candidate did not recriminate as provided under section 97 of the Representation of the People Act, 1951 and this was the important ground on which the Court said that it could not make any attack against the alternative claim made by the petitioner. In the instant case, the appellant had admittedly recriminated and in the recrimination petition one of the grounds taken related to the errors committed at the time of the counting of votes of the 1st respondent by the Returning Officer. The appellant had also agreed to the recounting of the votes secured by all the parties. In these circumstances, this case does not appear to be of any assistance to the appellant. The decision of the High Court is in accordance with the result of the recount ordered by it. | 0 | 482 | 173 | ### 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:
FAZAL ALI, J.1. This election appeal arises out of the election held in 1980 from the constituency No. 56 called Hathin to the Legislative Assembly of the State of Haryana. At the counting held by t he Returning Officer, the Appellant secured 12, 828 votes whereas respondent No. 1 Khillan Singh got 12, 655 votes and one Ramjilal got 12, 213 votes. Accordingly the appellant was declared as elected. Aggrieved by the result of the election, Khillan Singh and Ramjilal filed election petitions in the High Court. In the course of the election petition, the appellant filed a recrimination petition in which one of the grounds related to the errors committed in the counting of votes of respondent No. 1. All the parties agreed that the court should order a recount and that the parties would be bound by the result of the recount. The recount was accordingly held as a result of which Khillan Singh respondent No. 1 got 12, 751 i.e. the highest number of valid votes and the appellant got 12, 698 votes. In view of the higher votes secured by Khillan Singh respondent No. 1 at the recount ordered by the High Court, his petition was allowed, the election of the appellant was set aside and Khillan Singh was declared as elected. This appeal is filed against the decision of the High Court.2. In support of the appeal, Mr. Bhandare with the usual ingenuity pressed only one point before us. He submitted on the basis of the Judgment of this Court in Jabar Singh v. Genda Lal that even if the result had gone in favour of respondent No. 1 he could not have been declared elected. We have gone through this authority and we find that the facts of the present case are clearly distinguishable. In the decision referred to above the returned candidate did not recriminate as provided under section 97 of the Representation of the People Act, 1951 and this was the important ground on which the Court said that it could not make any attack against the alternative claim made by the petitioner. In the instant case, the appellant had admittedly recriminated and in the recrimination petition one of the grounds taken related to the errors committed at the time of the counting of votes of the 1st respondent by the Returning Officer. The appellant had also agreed to the recounting of the votes secured by all the parties. In these circumstances, this case does not appear to be of any assistance to the appellant. The decision of the High Court is in accordance with the result of the recount ordered by it. Fo
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### Explanation:
We have gone through this authority and we find that the facts of the present case are clearly distinguishable. In the decision referred to above the returned candidate did not recriminate as provided under section 97 of the Representation of the People Act, 1951 and this was the important ground on which the Court said that it could not make any attack against the alternative claim made by the petitioner. In the instant case, the appellant had admittedly recriminated and in the recrimination petition one of the grounds taken related to the errors committed at the time of the counting of votes of the 1st respondent by the Returning Officer. The appellant had also agreed to the recounting of the votes secured by all the parties. In these circumstances, this case does not appear to be of any assistance to the appellant. The decision of the High Court is in accordance with the result of the recount ordered by it.
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Yuvraj Digvijay Singh Vs. Yuvrani Pratap Kumari | from the finding of the trial Court on issue no. 2. The learned Judges however held that it had not been proved that the appellant was impotent, but, on the material issue regarding the impotency of the respondent-wife the learned Judges were of the view that there were various factors and circumstances throwing a serious doubt on the allegation made by the appellant. The High Court held that it had not been established by the appellant that non-consummation of the marriage was due to the impotency of the respondent. If further held that on the state of evidence it did not believe that the respondent-wife had been proved to be impotent. The High Court also declined be believe the case of the appellant that the respondent had persisted in her attitude of exhibiting repulsion to the sexual act.8. It is not really necessary for us to deal elaborately with the evidence in the case on the basis of which concurrent findings have been recorded by the District Court and the High Court, rejecting the case of the appellant that his wife the respondent, was impotent at the time of the marriage and continued to be so until the institution of the proceedings.9. Mr. Shroff, learned counsel for the appellant, found considerable difficulty in satisfying us that the finding recorded by the two Courts on this aspect was erroneous or not supported by the evidence. No doubt, there was a feeble attempt made by the learned counsel to urge that the evidence of the respondent that she had always been ready and willing to allow her husband to consummate the marriage should not be believed. When the two Courts have accepted her evidence, it is futile on the part of the appellant to urge this contention.10. The reliance placed by Mr. Shroff on the decision of this Court in Earnest John White v. Kathleen Olive White, 1958 SCR 1410 = (AIR 1958 SC 441 ) is misplaced. In that decision, it has been laid down that though it is not usual for this Court to interfere on questions of fact, nevertheless, if the Courts below ignore or mis-construe important pieces of evidence in arriving at their finding, such finding is liable to be interfered with by this Court. We are satisfied that the Courts below, in the instant case, have neither ignored nor mis-construed important pieces of evidence when they came to the conclusion that the appellants case, regarding the impotency of the respondent, could not be believed.11. On the findings that both the appellant and the respondent were not impotent and the marriage had not been admittedly consummated, counsel urged that the conclusion to be drawn was that such consummation was not possible because of an invincible repugnance on the part of the wife. Counsel further urged that taking into account the practical impossibility of consummation, the application filed by the appellant should be allowed.12. So far as the charge of invincible repugnance to the sexual act on the part of the respondent is concerned, it is only necessary to refer to the finding of the High Court that the allegation had not been proved but that, on the other hand, lack of proper approach by the appellant for consummating the marriage might have been responsible for non-consummation. It is the further view of the High Court that the evidence of the appellant that he went on making attempts on several occasions for consummation of the marriage cannot be believed.13. Mr. Shroff referred us to the decision of the House of Lords in G. v. G., 1924 AC 349. That was an action by a husband against his wife for a decree of nullity of marriage on the ground of impotency. It was establish that the husband was potent and had made frequent attempts to consummate the marriage but he could not succeed in owing to the unreasoning resistance of the wife. The wife was declared, on medical examination not to suffer from any structural incapacity. Under those circumstances the House of Lords held that the conclusion to be drawn from the evidence was that the wifes refusal was due to an invincible repugnance to the act of consummation and, as such, the husband was entitled to a decree of nullity. This decision does not assist the appellant, as we have already referred to the finding of the High Court disbelieving the evidence of the appellant on this aspect.14. Mr. Shroff next relied on the decision in G. v. G., 1912 P 173 holding that a Court would be justified in annulling a marriage if it was found that the marriage had not been and could not be consummated by the parties thereto, though no reason for non-consummation was manifest or apparent. In that decision both the husband and the wife were perfectly normal and each charged the other as being responsible for non-consummation of the marriage. The court held that without going into the question as to who was the guilty party, it was evident that the marriage had not been consummated and could not be consummated in future also. Accordingly the Court annulled the marriage for the reason that it was satisfied that -"quoad hunc et quoad hunc, these people cannot consummate the marriage."The Court further held that the two people should not be tied up together for the rest of their lives in a state of misery. The position in the case before us is entirely different. Neither of the two Courts have found that the marriage cannot be consummated in future and they have not also accepted the appellants plea that the respondent had always resisted his attempts to consummate the marriage.15. When once the finding has been arrived at that the appellant has not established that the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceeding, the inevitable result is the dismissal of the appellants application under Section 12 (1) (a) of the Act. | 0[ds]y is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility. The condition must be one, according to the statute, which existed at the time of the marriage and continued to be so until the institution of the proceedings. In order to entitle the appellant to obtain a decree of nullity, as prayed for by him, he will have to establish that his wife, the respondent, was impotent at the time of the marriage and continued to be so until the institution of thethe two Courts have accepted her evidence, it is futile on the part of the appellant to urge this contention.15. When once the finding has been arrived at that the appellant has not established that the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceeding, the inevitable result is the dismissal of the appellants application under Section 12 (1) (a) of the Act.The reliance placed by Mr. Shroff on the decision of this Court in Earnest John White v. Kathleen Olive White, 1958 SCR 1410 = (AIR 1958 SC 441 ) is misplaced. In that decision, it has been laid down that though it is not usual for this Court to interfere on questions of fact, nevertheless, if the Courts below ignore orimportant pieces of evidence in arriving at their finding, such finding is liable to be interfered with by this Court. We are satisfied that the Courts below, in the instant case, have neither ignored norimportant pieces of evidence when they came to the conclusion that the appellants case, regarding the impotency of the respondent, could not be believed.So far as the charge of invincible repugnance to the sexual act on the part of the respondent is concerned, it is only necessary to refer to the finding of the High Court that the allegation had not been proved but that, on the other hand, lack of proper approach by the appellant for consummating the marriage might have been responsible forIt is the further view of the High Court that the evidence of the appellant that he went on making attempts on several occasions for consummation of the marriage cannot be believed.Mr. Shroff, learned counsel for the appellant, found considerable difficulty in satisfying us that the finding recorded by the two Courts on this aspect was erroneous or not supported by the evidence. No doubt, there was a feeble attempt made by the learned counsel to urge that the evidence of the respondent that she had always been ready and willing to allow her husband to consummate the marriage should not be believed. Whenthe two Courts have accepted her evidence, it is futile on the part of the appellant to urge thisdecision does not assist the appellant, as we have already referred to the finding of the High Court disbelieving the evidence of the appellant on thisthat decision both the husband and the wife were perfectly normal and each charged the other as being responsible forof the marriage. The court held that without going into the question as to who was the guilty party, it was evident that the marriage had not been consummated and could not be consummated in future also. Accordingly the Court annulled the marriage for the reason that it was satisfied that"quoad hunc et quoad hunc, these people cannot consummate theCourt further held that the two people should not be tied up together for the rest of their lives in a state of misery. The position in the case before us is entirely different. Neither of the two Courts have found that the marriage cannot be consummated in future and they have not also accepted the appellants plea that the respondent had always resisted his attempts to consummate the marriage.When once the finding has been arrived at that the appellant has not established that the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceeding, the inevitable result is the dismissal of the appellants application under Section 12 (1) (a) of the Act. | 0 | 2,181 | 748 | ### 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:
from the finding of the trial Court on issue no. 2. The learned Judges however held that it had not been proved that the appellant was impotent, but, on the material issue regarding the impotency of the respondent-wife the learned Judges were of the view that there were various factors and circumstances throwing a serious doubt on the allegation made by the appellant. The High Court held that it had not been established by the appellant that non-consummation of the marriage was due to the impotency of the respondent. If further held that on the state of evidence it did not believe that the respondent-wife had been proved to be impotent. The High Court also declined be believe the case of the appellant that the respondent had persisted in her attitude of exhibiting repulsion to the sexual act.8. It is not really necessary for us to deal elaborately with the evidence in the case on the basis of which concurrent findings have been recorded by the District Court and the High Court, rejecting the case of the appellant that his wife the respondent, was impotent at the time of the marriage and continued to be so until the institution of the proceedings.9. Mr. Shroff, learned counsel for the appellant, found considerable difficulty in satisfying us that the finding recorded by the two Courts on this aspect was erroneous or not supported by the evidence. No doubt, there was a feeble attempt made by the learned counsel to urge that the evidence of the respondent that she had always been ready and willing to allow her husband to consummate the marriage should not be believed. When the two Courts have accepted her evidence, it is futile on the part of the appellant to urge this contention.10. The reliance placed by Mr. Shroff on the decision of this Court in Earnest John White v. Kathleen Olive White, 1958 SCR 1410 = (AIR 1958 SC 441 ) is misplaced. In that decision, it has been laid down that though it is not usual for this Court to interfere on questions of fact, nevertheless, if the Courts below ignore or mis-construe important pieces of evidence in arriving at their finding, such finding is liable to be interfered with by this Court. We are satisfied that the Courts below, in the instant case, have neither ignored nor mis-construed important pieces of evidence when they came to the conclusion that the appellants case, regarding the impotency of the respondent, could not be believed.11. On the findings that both the appellant and the respondent were not impotent and the marriage had not been admittedly consummated, counsel urged that the conclusion to be drawn was that such consummation was not possible because of an invincible repugnance on the part of the wife. Counsel further urged that taking into account the practical impossibility of consummation, the application filed by the appellant should be allowed.12. So far as the charge of invincible repugnance to the sexual act on the part of the respondent is concerned, it is only necessary to refer to the finding of the High Court that the allegation had not been proved but that, on the other hand, lack of proper approach by the appellant for consummating the marriage might have been responsible for non-consummation. It is the further view of the High Court that the evidence of the appellant that he went on making attempts on several occasions for consummation of the marriage cannot be believed.13. Mr. Shroff referred us to the decision of the House of Lords in G. v. G., 1924 AC 349. That was an action by a husband against his wife for a decree of nullity of marriage on the ground of impotency. It was establish that the husband was potent and had made frequent attempts to consummate the marriage but he could not succeed in owing to the unreasoning resistance of the wife. The wife was declared, on medical examination not to suffer from any structural incapacity. Under those circumstances the House of Lords held that the conclusion to be drawn from the evidence was that the wifes refusal was due to an invincible repugnance to the act of consummation and, as such, the husband was entitled to a decree of nullity. This decision does not assist the appellant, as we have already referred to the finding of the High Court disbelieving the evidence of the appellant on this aspect.14. Mr. Shroff next relied on the decision in G. v. G., 1912 P 173 holding that a Court would be justified in annulling a marriage if it was found that the marriage had not been and could not be consummated by the parties thereto, though no reason for non-consummation was manifest or apparent. In that decision both the husband and the wife were perfectly normal and each charged the other as being responsible for non-consummation of the marriage. The court held that without going into the question as to who was the guilty party, it was evident that the marriage had not been consummated and could not be consummated in future also. Accordingly the Court annulled the marriage for the reason that it was satisfied that -"quoad hunc et quoad hunc, these people cannot consummate the marriage."The Court further held that the two people should not be tied up together for the rest of their lives in a state of misery. The position in the case before us is entirely different. Neither of the two Courts have found that the marriage cannot be consummated in future and they have not also accepted the appellants plea that the respondent had always resisted his attempts to consummate the marriage.15. When once the finding has been arrived at that the appellant has not established that the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceeding, the inevitable result is the dismissal of the appellants application under Section 12 (1) (a) of the Act.
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0
### Explanation:
y is impotent if his or her mental or physical condition makes consummation of the marriage a practical impossibility. The condition must be one, according to the statute, which existed at the time of the marriage and continued to be so until the institution of the proceedings. In order to entitle the appellant to obtain a decree of nullity, as prayed for by him, he will have to establish that his wife, the respondent, was impotent at the time of the marriage and continued to be so until the institution of thethe two Courts have accepted her evidence, it is futile on the part of the appellant to urge this contention.15. When once the finding has been arrived at that the appellant has not established that the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceeding, the inevitable result is the dismissal of the appellants application under Section 12 (1) (a) of the Act.The reliance placed by Mr. Shroff on the decision of this Court in Earnest John White v. Kathleen Olive White, 1958 SCR 1410 = (AIR 1958 SC 441 ) is misplaced. In that decision, it has been laid down that though it is not usual for this Court to interfere on questions of fact, nevertheless, if the Courts below ignore orimportant pieces of evidence in arriving at their finding, such finding is liable to be interfered with by this Court. We are satisfied that the Courts below, in the instant case, have neither ignored norimportant pieces of evidence when they came to the conclusion that the appellants case, regarding the impotency of the respondent, could not be believed.So far as the charge of invincible repugnance to the sexual act on the part of the respondent is concerned, it is only necessary to refer to the finding of the High Court that the allegation had not been proved but that, on the other hand, lack of proper approach by the appellant for consummating the marriage might have been responsible forIt is the further view of the High Court that the evidence of the appellant that he went on making attempts on several occasions for consummation of the marriage cannot be believed.Mr. Shroff, learned counsel for the appellant, found considerable difficulty in satisfying us that the finding recorded by the two Courts on this aspect was erroneous or not supported by the evidence. No doubt, there was a feeble attempt made by the learned counsel to urge that the evidence of the respondent that she had always been ready and willing to allow her husband to consummate the marriage should not be believed. Whenthe two Courts have accepted her evidence, it is futile on the part of the appellant to urge thisdecision does not assist the appellant, as we have already referred to the finding of the High Court disbelieving the evidence of the appellant on thisthat decision both the husband and the wife were perfectly normal and each charged the other as being responsible forof the marriage. The court held that without going into the question as to who was the guilty party, it was evident that the marriage had not been consummated and could not be consummated in future also. Accordingly the Court annulled the marriage for the reason that it was satisfied that"quoad hunc et quoad hunc, these people cannot consummate theCourt further held that the two people should not be tied up together for the rest of their lives in a state of misery. The position in the case before us is entirely different. Neither of the two Courts have found that the marriage cannot be consummated in future and they have not also accepted the appellants plea that the respondent had always resisted his attempts to consummate the marriage.When once the finding has been arrived at that the appellant has not established that the respondent was impotent at the time of the marriage and continued to be so until the institution of the proceeding, the inevitable result is the dismissal of the appellants application under Section 12 (1) (a) of the Act.
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Man Singh Vs. Delhi Administration | Fazal Ali, J. 1. In this appeal by special, leave, against the judgment of the Delhi High Court, the appellant has been convicted under Sections 5(1)(d) and 5(2) of the Prevention of Corruption Act read with Section 161, I.P.C. and sentenced to R.I. for one year on each count. The appellant was also sen?tenced to pay a fine of Rs. 100 under Section 5(2) in default R.I. for one month. A detailed narrative of the prosecution case has been given in the judgment of the High Court and it is not necessary for us to repeat the same all over again. 2. We have heard learned counsel for the parties and have gone through the judgment of the High Court and the evidence on record. In our opinion, the appeal must succeed on a short point. The facts leading to the recovery of a sum of Rs. 5 which the appellant is said to have received as bribe from the complainant is proved beyond doubt and the only question is as to whether or not the appellant gave a reasonable explanation for the recovery of the money from his person. According to the prosecution, the money was paid to the appellant by P.W. 2 as illegal gratification to prevent his shop from being challenged. The complainant was a Khoncha Wala and used to sell fruit juice and other articles. According to P.W 2 the appellant demanded Rs. 5 so as to enable P.W. 2 to carry on his business failing which the appellant threatened to get him challenged. Ultimately it was settled that a sum of Rs. 5 would be paid per week to the appellant as bribe. The complainant then informed the Vigilance Department and a raid was arranged and in the presence of some of the independent witnesses, the complainant offered a sum of Rs. 5 to the appellant who took the money and put it into his pocket. Thereafter the Vigilance Inspector recovered the money from the person of the accused. Fingers of the accused were dipped in the solution of sodium carbonate and they became pink. The accused did not dispute that P.W. 2 had paid Rs. 5 on the day of the occurrence. But his defence was that this amount was due from the complai?nant on account of the balance of Rs. 10 which had been paid to the com?plainant for the fruit juice supplied to the appellant which cost Rs. 1 only. The appellant stated that he received Rs. 4 and Rs. 5 remained to be paid by the complainant and he promised to pay the same at some other time. The Courts below held that the prosecution case was proved and in view of the provisions of Section 4 of the Prevention of Corruption Act, a presumption could be drawn against the appellant that the money recovered from him was received as illegal gratification. The defence was held to be false by both the Courts. We have gone through the evidence and we find that there are intrinsic circumstances in the case which fully probabilise the defence of appellant and show that the explanation given by him is reasonable. To begin with the complainant himself categorically stated at page 6 of his evidence that there was undoubtedly a dispute between him and the appellant regard?ing the return of money which has been paid to the appellant. In this con?nection, the witness stated as follows: ?It is correct that about 3/4 days before the date of incident, the accused had taken a glass of juice from my shop. He had given me a Rs.10 G. C Note and I had returned Rs. 9 to him then. It is further correct that the accused came on a subsequent date and told me that I had paid Rs. 5 less but I told him that I had returned him Rs. 9. There was an altercation between us on that issue. It is also correct that then he threatened to get me challenged?. 3. P.W. 3 another witness who was present at the time when the raid was conducted, also admitted that at the time when the note was recovered the appellant did explain something regarding the recovery of the money be?fore the Inspector but he did not hear. The witness further added that he could not confirm or deny if the accused told the Inspector that he has taken back his money. It is well-settled that in such cases the accused is not required to prove his defence by the strict standard of proof of reasonable doubt but it is sufficient if he offers an explanation or defence which is pro?bable and once this is done, the presumption under Section 4 stands rebutted. In the instant case from the evidence referred to above, the defence of the appellant has been clearly proved under Section 3 of the Evidence Act. | 1[ds]In our opinion, the appeal must succeed on a short point3. P.W. 3 another witness who was present at the time when the raid was conducted, also admitted that at the time when the note was recovered the appellant did explain something regarding the recovery of the moneye the Inspector but he did not hear. The witness further added that he could not confirm or deny if the accused told the Inspector that he has taken back his money. It isd that in such cases the accused is not required to prove his defence by the strict standard of proof of reasonable doubt but it is sufficient if he offers an explanation or defence which ise and once this is done, the presumption under Section 4 stands rebutted. In the instant case from the evidence referred to above, the defence of the appellant has been clearly proved under Section 3 of the Evidence Act. | 1 | 907 | 168 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
Fazal Ali, J. 1. In this appeal by special, leave, against the judgment of the Delhi High Court, the appellant has been convicted under Sections 5(1)(d) and 5(2) of the Prevention of Corruption Act read with Section 161, I.P.C. and sentenced to R.I. for one year on each count. The appellant was also sen?tenced to pay a fine of Rs. 100 under Section 5(2) in default R.I. for one month. A detailed narrative of the prosecution case has been given in the judgment of the High Court and it is not necessary for us to repeat the same all over again. 2. We have heard learned counsel for the parties and have gone through the judgment of the High Court and the evidence on record. In our opinion, the appeal must succeed on a short point. The facts leading to the recovery of a sum of Rs. 5 which the appellant is said to have received as bribe from the complainant is proved beyond doubt and the only question is as to whether or not the appellant gave a reasonable explanation for the recovery of the money from his person. According to the prosecution, the money was paid to the appellant by P.W. 2 as illegal gratification to prevent his shop from being challenged. The complainant was a Khoncha Wala and used to sell fruit juice and other articles. According to P.W 2 the appellant demanded Rs. 5 so as to enable P.W. 2 to carry on his business failing which the appellant threatened to get him challenged. Ultimately it was settled that a sum of Rs. 5 would be paid per week to the appellant as bribe. The complainant then informed the Vigilance Department and a raid was arranged and in the presence of some of the independent witnesses, the complainant offered a sum of Rs. 5 to the appellant who took the money and put it into his pocket. Thereafter the Vigilance Inspector recovered the money from the person of the accused. Fingers of the accused were dipped in the solution of sodium carbonate and they became pink. The accused did not dispute that P.W. 2 had paid Rs. 5 on the day of the occurrence. But his defence was that this amount was due from the complai?nant on account of the balance of Rs. 10 which had been paid to the com?plainant for the fruit juice supplied to the appellant which cost Rs. 1 only. The appellant stated that he received Rs. 4 and Rs. 5 remained to be paid by the complainant and he promised to pay the same at some other time. The Courts below held that the prosecution case was proved and in view of the provisions of Section 4 of the Prevention of Corruption Act, a presumption could be drawn against the appellant that the money recovered from him was received as illegal gratification. The defence was held to be false by both the Courts. We have gone through the evidence and we find that there are intrinsic circumstances in the case which fully probabilise the defence of appellant and show that the explanation given by him is reasonable. To begin with the complainant himself categorically stated at page 6 of his evidence that there was undoubtedly a dispute between him and the appellant regard?ing the return of money which has been paid to the appellant. In this con?nection, the witness stated as follows: ?It is correct that about 3/4 days before the date of incident, the accused had taken a glass of juice from my shop. He had given me a Rs.10 G. C Note and I had returned Rs. 9 to him then. It is further correct that the accused came on a subsequent date and told me that I had paid Rs. 5 less but I told him that I had returned him Rs. 9. There was an altercation between us on that issue. It is also correct that then he threatened to get me challenged?. 3. P.W. 3 another witness who was present at the time when the raid was conducted, also admitted that at the time when the note was recovered the appellant did explain something regarding the recovery of the money be?fore the Inspector but he did not hear. The witness further added that he could not confirm or deny if the accused told the Inspector that he has taken back his money. It is well-settled that in such cases the accused is not required to prove his defence by the strict standard of proof of reasonable doubt but it is sufficient if he offers an explanation or defence which is pro?bable and once this is done, the presumption under Section 4 stands rebutted. In the instant case from the evidence referred to above, the defence of the appellant has been clearly proved under Section 3 of the Evidence Act.
### Response:
1
### Explanation:
In our opinion, the appeal must succeed on a short point3. P.W. 3 another witness who was present at the time when the raid was conducted, also admitted that at the time when the note was recovered the appellant did explain something regarding the recovery of the moneye the Inspector but he did not hear. The witness further added that he could not confirm or deny if the accused told the Inspector that he has taken back his money. It isd that in such cases the accused is not required to prove his defence by the strict standard of proof of reasonable doubt but it is sufficient if he offers an explanation or defence which ise and once this is done, the presumption under Section 4 stands rebutted. In the instant case from the evidence referred to above, the defence of the appellant has been clearly proved under Section 3 of the Evidence Act.
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M/s. Aspinwall and Co. Ltd Vs. The Commissioner of Income Tax, Ernakulam | and polishing is done. Thereafter gradation is done. The process of gradation requires separation of good coffee for the purpose of grading by a process of what is known as garbling/manual grading. At times, the process of gradation is done by mechanical means as well. After grading the polishing is done on the basis of grading. The Tribunal held that in this process assessee was involved in the activity of manufacturing the coffee beans from the raw material plucked from the plant.10. The High Court accepted the factual matrix but in conclusion as to whether it amounts to manufacturing activity differed with the Tribunal and held : "We find that all the nine stages of the process do not show any kind of change or a commercially different commodity is not seen to be passing through the various stages of the process. It cannot be ignored that in common parlance, `coffee means, coffee powder, a beverage consumed as either a hot or cold drink. At no stage, this colour combination between manufacture and production has its manifestation". The relevant portion of Section 32-A is reproduced below : "32-A. (1) In respect of a ship or an aircraft or machinery or plant specified in sub-section (2), which is owned by the assessee and is wholly used for the purposes of the business carried on by him, there shall, in accordance with and subject to the provisions of this section, be allowed a deduction, in respect of the previous year in which the ship or aircraft was acquired or the machinery or plant was installed or, if the ship, aircraft, machinery or plant is first put to use in the immediately succeeding previous year, then, in respect of that previous year, of a sum by way of investment allowance equal to twenty-five per cent of the actual cost of the ship, aircraft, machinery or plant to the assessee :Provided that no deduction shall be allowed under this Section in respect of -(a) xxx xxx xxx(b) xxx xxx xxx(c) xxx xxx xxx(d) xxx xxx xxx(2) The ship or aircraft or machinery or plant referred to in sub-section (1) shall be the following, namely :-(a) xxx xxx xxx(b) xxx xxx xxx(i) xxx xxx xxx(ii) xxx xxx xxx(iii) in any other industrial undertaking for the purposes of business of construction, manufacture or production of any article or thing, not being an article or thing specified in the list in the Eleventh Schedule.)". The short point for consideration is whether the High Court was right in coming to the conclusion that the assessee was not involved in any manufacturing or production activity in the process of curing the coffee. 11. The word `manufacture has not been defined in the Act. In the absence of a definition of the word `manufacture it has to be given a meaning as is understood in common parlance. It is to be understood as meaning the production of articles for use from raw or prepared materials by giving such materials new forms, qualities or combinations whether by hand labour or machines. If the change made in the article results in a new and different article then it would amount to a manufacturing activity.12. This Court while determining as to what would amount to a manufacturing activity held in Deputy Commissioner of Sales Tax v. M/s. Pio Food Packers, 1980 Supp. SCC 174 : that the test for determination whether manufacture can be said to have taken place is whether the commodity which is subjected to the process of manufacture can no longer be regarded as the original commodity, but is recognized in the trade as a new and distinct commodity. It was observed : "Commonly manufacture is the end result of one or more processes through which the original commodity is made to pass. The nature and extent of processing may vary from one case to another, and indeed there may be several stages of processing an perhaps a different kind of processing at each stage. With each process suffered, the original commodity experiences a change. But it is only when the change, or a series of changes, take the commodity to the point where commercially it can no longer be regarded as the original commodity but instead is recognized as a new and distinct article that a manufacture can be said to take place." 13. Adverting to facts of the present case, the assessee after plucking or receiving the raw coffee berries makes it undergo nine processes to give it the shape of coffee beans. The net product is absolutely different and separate from the input. The change made in the article results in a new and different article which is recognized in the trade as a new and distinct commodity. The coffee beans have an independent identity distinct from raw material from which it was manufactured. A distinct change comes about in the finished product.14. Submission of the learned counsel for the Revenue that the assessee was doing only the processing work and was not involved in the manufacture and producing of a new article cannot be accepted. The process is a manufacturing process when it brings out a complete transformation in the original article so as to produce a commercially different article or commodity. That process itself may consist of several processes. The different processes are integrally connected which result in the production of a commercially different article. If a commercially different article or commodity results after processing then it would be a manufacturing activity. The assessee after processing the raw berries converts them into coffee beans which is commercially different commodity. Conversion of the raw berry into coffee beans would be a manufacturing activity. 15. For the reason stated above, we are of the opinion that the High Court was wrong in its opinion that the processing of the raw berries into coffee beans ready for consumption would not be a manufacturing activity disentitling the assessee to the investment allowance provided under Section 32-A of the Act. | 1[ds]11. The word `manufacture has not been defined in the Act. In the absence of a definition of the word `manufacture it has to be given a meaning as is understood in common parlance. It is to be understood as meaning the production of articles for use from raw or prepared materials by giving such materials new forms, qualities or combinations whether by hand labour or machines. If the change made in the article results in a new and different article then it would amount to a manufacturing activity.12. This Court while determining as to what would amount to a manufacturing activity held in Deputy Commissioner of Sales Tax v. M/s. Pio Food Packers, 1980 Supp. SCC 174 : that the test for determination whether manufacture can be said to have taken place is whether the commodity which is subjected to the process of manufacture can no longer be regarded as the original commodity, but is recognized in the trade as a new and distinct commodity. It was observedmanufacture is the end result of one or more processes through which the original commodity is made to pass. The nature and extent of processing may vary from one case to another, and indeed there may be several stages of processing an perhaps a different kind of processing at each stage. With each process suffered, the original commodity experiences a change. But it is only when the change, or a series of changes, take the commodity to the point where commercially it can no longer be regarded as the original commodity but instead is recognized as a new and distinct article that a manufacture can be said to take place.Adverting to facts of the present case, the assessee after plucking or receiving the raw coffee berries makes it undergo nine processes to give it the shape of coffee beans. The net product is absolutely different and separate from the input. The change made in the article results in a new and different article which is recognized in the trade as a new and distinct commodity. The coffee beans have an independent identity distinct from raw material from which it was manufactured. A distinct change comes about in the finished product.14. Submission of the learned counsel for the Revenue that the assessee was doing only the processing work and was not involved in the manufacture and producing of a new article cannot be accepted. The process is a manufacturing process when it brings out a complete transformation in the original article so as to produce a commercially different article or commodity. That process itself may consist of several processes. The different processes are integrally connected which result in the production of a commercially different article. If a commercially different article or commodity results after processing then it would be a manufacturing activity. The assessee after processing the raw berries converts them into coffee beans which is commercially different commodity. Conversion of the raw berry into coffee beans would be a manufacturing activity. | 1 | 2,162 | 537 | ### 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:
and polishing is done. Thereafter gradation is done. The process of gradation requires separation of good coffee for the purpose of grading by a process of what is known as garbling/manual grading. At times, the process of gradation is done by mechanical means as well. After grading the polishing is done on the basis of grading. The Tribunal held that in this process assessee was involved in the activity of manufacturing the coffee beans from the raw material plucked from the plant.10. The High Court accepted the factual matrix but in conclusion as to whether it amounts to manufacturing activity differed with the Tribunal and held : "We find that all the nine stages of the process do not show any kind of change or a commercially different commodity is not seen to be passing through the various stages of the process. It cannot be ignored that in common parlance, `coffee means, coffee powder, a beverage consumed as either a hot or cold drink. At no stage, this colour combination between manufacture and production has its manifestation". The relevant portion of Section 32-A is reproduced below : "32-A. (1) In respect of a ship or an aircraft or machinery or plant specified in sub-section (2), which is owned by the assessee and is wholly used for the purposes of the business carried on by him, there shall, in accordance with and subject to the provisions of this section, be allowed a deduction, in respect of the previous year in which the ship or aircraft was acquired or the machinery or plant was installed or, if the ship, aircraft, machinery or plant is first put to use in the immediately succeeding previous year, then, in respect of that previous year, of a sum by way of investment allowance equal to twenty-five per cent of the actual cost of the ship, aircraft, machinery or plant to the assessee :Provided that no deduction shall be allowed under this Section in respect of -(a) xxx xxx xxx(b) xxx xxx xxx(c) xxx xxx xxx(d) xxx xxx xxx(2) The ship or aircraft or machinery or plant referred to in sub-section (1) shall be the following, namely :-(a) xxx xxx xxx(b) xxx xxx xxx(i) xxx xxx xxx(ii) xxx xxx xxx(iii) in any other industrial undertaking for the purposes of business of construction, manufacture or production of any article or thing, not being an article or thing specified in the list in the Eleventh Schedule.)". The short point for consideration is whether the High Court was right in coming to the conclusion that the assessee was not involved in any manufacturing or production activity in the process of curing the coffee. 11. The word `manufacture has not been defined in the Act. In the absence of a definition of the word `manufacture it has to be given a meaning as is understood in common parlance. It is to be understood as meaning the production of articles for use from raw or prepared materials by giving such materials new forms, qualities or combinations whether by hand labour or machines. If the change made in the article results in a new and different article then it would amount to a manufacturing activity.12. This Court while determining as to what would amount to a manufacturing activity held in Deputy Commissioner of Sales Tax v. M/s. Pio Food Packers, 1980 Supp. SCC 174 : that the test for determination whether manufacture can be said to have taken place is whether the commodity which is subjected to the process of manufacture can no longer be regarded as the original commodity, but is recognized in the trade as a new and distinct commodity. It was observed : "Commonly manufacture is the end result of one or more processes through which the original commodity is made to pass. The nature and extent of processing may vary from one case to another, and indeed there may be several stages of processing an perhaps a different kind of processing at each stage. With each process suffered, the original commodity experiences a change. But it is only when the change, or a series of changes, take the commodity to the point where commercially it can no longer be regarded as the original commodity but instead is recognized as a new and distinct article that a manufacture can be said to take place." 13. Adverting to facts of the present case, the assessee after plucking or receiving the raw coffee berries makes it undergo nine processes to give it the shape of coffee beans. The net product is absolutely different and separate from the input. The change made in the article results in a new and different article which is recognized in the trade as a new and distinct commodity. The coffee beans have an independent identity distinct from raw material from which it was manufactured. A distinct change comes about in the finished product.14. Submission of the learned counsel for the Revenue that the assessee was doing only the processing work and was not involved in the manufacture and producing of a new article cannot be accepted. The process is a manufacturing process when it brings out a complete transformation in the original article so as to produce a commercially different article or commodity. That process itself may consist of several processes. The different processes are integrally connected which result in the production of a commercially different article. If a commercially different article or commodity results after processing then it would be a manufacturing activity. The assessee after processing the raw berries converts them into coffee beans which is commercially different commodity. Conversion of the raw berry into coffee beans would be a manufacturing activity. 15. For the reason stated above, we are of the opinion that the High Court was wrong in its opinion that the processing of the raw berries into coffee beans ready for consumption would not be a manufacturing activity disentitling the assessee to the investment allowance provided under Section 32-A of the Act.
### Response:
1
### Explanation:
11. The word `manufacture has not been defined in the Act. In the absence of a definition of the word `manufacture it has to be given a meaning as is understood in common parlance. It is to be understood as meaning the production of articles for use from raw or prepared materials by giving such materials new forms, qualities or combinations whether by hand labour or machines. If the change made in the article results in a new and different article then it would amount to a manufacturing activity.12. This Court while determining as to what would amount to a manufacturing activity held in Deputy Commissioner of Sales Tax v. M/s. Pio Food Packers, 1980 Supp. SCC 174 : that the test for determination whether manufacture can be said to have taken place is whether the commodity which is subjected to the process of manufacture can no longer be regarded as the original commodity, but is recognized in the trade as a new and distinct commodity. It was observedmanufacture is the end result of one or more processes through which the original commodity is made to pass. The nature and extent of processing may vary from one case to another, and indeed there may be several stages of processing an perhaps a different kind of processing at each stage. With each process suffered, the original commodity experiences a change. But it is only when the change, or a series of changes, take the commodity to the point where commercially it can no longer be regarded as the original commodity but instead is recognized as a new and distinct article that a manufacture can be said to take place.Adverting to facts of the present case, the assessee after plucking or receiving the raw coffee berries makes it undergo nine processes to give it the shape of coffee beans. The net product is absolutely different and separate from the input. The change made in the article results in a new and different article which is recognized in the trade as a new and distinct commodity. The coffee beans have an independent identity distinct from raw material from which it was manufactured. A distinct change comes about in the finished product.14. Submission of the learned counsel for the Revenue that the assessee was doing only the processing work and was not involved in the manufacture and producing of a new article cannot be accepted. The process is a manufacturing process when it brings out a complete transformation in the original article so as to produce a commercially different article or commodity. That process itself may consist of several processes. The different processes are integrally connected which result in the production of a commercially different article. If a commercially different article or commodity results after processing then it would be a manufacturing activity. The assessee after processing the raw berries converts them into coffee beans which is commercially different commodity. Conversion of the raw berry into coffee beans would be a manufacturing activity.
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Sanwat Vs. Deputy Director of Consolidation and Others | 1. This appeal arises out of a proceeding for consolidation of holdings commenced under U. P. Consolidation of Holdings Act, 1954 in respect of Khata No. 23 in village Rasulpur Mafi in District Moradabad in the State of U. P. The dispute is whether Smt. Hardai respondent 2 had inherited the share of her husband and was entitled to retain it as a co-sharer. Mr. Sanwat, the present appellant filed an objection in consolidation proceedings urging that Smt. Hardai was not entitled to a share in the land because on the death of her husband Darya who was admittedly a co-sharer she had contracted a kareva form of marriage with one Govinda. After a remand at one stage, it was ultimately held that the present appellant had failed to prove that after the death of Darya, the first respondent, Smt. Hardai had ever contracted Kareva form of marriage. This finding led to the upholding of the right claimed by Smt. Hardai that she had a share as co-sharer in Khata No. 23. The present appellant filed Writ Petition No. 4217 of 1965 in the Allahabad High Court questioning the correctness of the decision of Deputy Director of Consolidation exercising revisional power that Smt. Hardai was a co-sharer as the widow of Darya. A Division Bench of the High Court dismissed the petition in limine observing that "neither a question of law nor an error in exercise of jurisdiction was brought to the notice of the an error in exercise of jurisdiction was brought to the notice of the High Court". But as the valuation of the land involved in the dispute was over Rs. 20, 000, this appeal was filed by certificate under Article 133(1) (a) granted by the High Court on the basis of valuation of the property first involved in the dispute and continued to be the same till the matter reached this Court. 2. Mr. D. D. Sharma, learned counsel for the appellant drew our attention to a statement purporting to be in the name of Smt. Hardai dated August 24, 1967 and urged that a certified copy of the statement was annexed to the petition for obtaining certificate and that once the statement is taken into consideration it is satisfactorily established on the admission of Smt. Hardai is dated August 24, 1967. The writ petition was dismissed in limine by a Division Bench of the High Court on January 6, 1966. During the initial journey of the proceedings on the first occasion and second journey after the remand till its culmination in the dismissal of the writ petition in limine the statement now relied upon did not see the light of the day. The explanation for production at a very late stage is that the appellant did not know about the existence of the statement. This does not carry conviction because the appellant has been contending that Smt. Hardai cannot claim to be a co-sharer since the inception of the proceedings for consolidation somewhere in 1960. It is not possible to believer that he would have no inkling of other proceeding in which Smt. Hardai had to appear and give her statement. This is one of the reasons for which we are not inclined to look into the statement. Additionally there are numerous infirmities in the statement which leave us guessing about the genuineness of the statement. To start with the first infirmity which flies in the face is that the statement appears to have been recorded in a court proceeding but in the cause title the name of the court or its place of sitting is kept blank. Further while recording the statement there is blank in the fist line about the caste of Smt. Hardai. It appears that she was permitted to be cross- examined by the learned advocate for the plaintiff. Then follows the cross-examination on behalf of the defendants. Was she a court witness? How can both sides enjoy the privilege of cross-examining her unless she was declared hostile. The cause title of the statement shows that the proceeding was between Mallu and Attar Singh. But no attempt is made to connect them or either of them with the parties to the present proceedings. Further this statement appears to have been recorded by one Baldev Singh, whose status and designation are initially recorded as a peon. The question is whether a peon was entitled to administer the both and record the statement. At the foot of the statement there is an endorsement :"Recorded on my dictation in open court." Below the endorsement it is stated that it was signed by the persons whose signature, designation and status are illegible. Smt. Hardai was admittedly illiterate. Her thumb-mark is also illegible. Who attested her thumb is not indicated. But the major infirmity is that Smt. Hardai was never confronted with her alleged statement and she was not given an opportunity to affirm, deny or explain the statement. When this was pointed out Mr. Sharma suggested a remand. After a quarter of a century during which these proceedings are pending we consider the request unjust and unfair and reject it. 3. If all the infirmities enumerated here are summed up, it would be impossible to place any reliance on this so-called statement of Smt. Hardai which contains an admission. We, therefore, propose to place no reliance on it. 4. Now if the alleged statement of Smt. Hardai is excluded from any or further consideration no case is made out for interference with order under challenge. 5. | 0[ds]Below the endorsement it is stated that it was signed by the persons whose signature, designation and status are illegible. Smt. Hardai was admittedly illiterate. Herk is also illegible. Who attested her thumb is not indicated. But the major infirmity is that Smt. Hardai was never confronted with her alleged statement and she was not given an opportunity to affirm, deny or explain the statement. When this was pointed out Mr. Sharma suggested a remand. After a quarter of a century during which these proceedings are pending we consider the request unjust and unfair and reject it3. If all the infirmities enumerated here are summed up, it would be impossible to place any reliance on thisd statement of Smt. Hardai which contains an admission. We, therefore, propose to place no reliance on it4. Now if the alleged statement of Smt. Hardai is excluded from any or further consideration no case is made out for interference with order under challenge. | 0 | 1,008 | 182 | ### 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:
1. This appeal arises out of a proceeding for consolidation of holdings commenced under U. P. Consolidation of Holdings Act, 1954 in respect of Khata No. 23 in village Rasulpur Mafi in District Moradabad in the State of U. P. The dispute is whether Smt. Hardai respondent 2 had inherited the share of her husband and was entitled to retain it as a co-sharer. Mr. Sanwat, the present appellant filed an objection in consolidation proceedings urging that Smt. Hardai was not entitled to a share in the land because on the death of her husband Darya who was admittedly a co-sharer she had contracted a kareva form of marriage with one Govinda. After a remand at one stage, it was ultimately held that the present appellant had failed to prove that after the death of Darya, the first respondent, Smt. Hardai had ever contracted Kareva form of marriage. This finding led to the upholding of the right claimed by Smt. Hardai that she had a share as co-sharer in Khata No. 23. The present appellant filed Writ Petition No. 4217 of 1965 in the Allahabad High Court questioning the correctness of the decision of Deputy Director of Consolidation exercising revisional power that Smt. Hardai was a co-sharer as the widow of Darya. A Division Bench of the High Court dismissed the petition in limine observing that "neither a question of law nor an error in exercise of jurisdiction was brought to the notice of the an error in exercise of jurisdiction was brought to the notice of the High Court". But as the valuation of the land involved in the dispute was over Rs. 20, 000, this appeal was filed by certificate under Article 133(1) (a) granted by the High Court on the basis of valuation of the property first involved in the dispute and continued to be the same till the matter reached this Court. 2. Mr. D. D. Sharma, learned counsel for the appellant drew our attention to a statement purporting to be in the name of Smt. Hardai dated August 24, 1967 and urged that a certified copy of the statement was annexed to the petition for obtaining certificate and that once the statement is taken into consideration it is satisfactorily established on the admission of Smt. Hardai is dated August 24, 1967. The writ petition was dismissed in limine by a Division Bench of the High Court on January 6, 1966. During the initial journey of the proceedings on the first occasion and second journey after the remand till its culmination in the dismissal of the writ petition in limine the statement now relied upon did not see the light of the day. The explanation for production at a very late stage is that the appellant did not know about the existence of the statement. This does not carry conviction because the appellant has been contending that Smt. Hardai cannot claim to be a co-sharer since the inception of the proceedings for consolidation somewhere in 1960. It is not possible to believer that he would have no inkling of other proceeding in which Smt. Hardai had to appear and give her statement. This is one of the reasons for which we are not inclined to look into the statement. Additionally there are numerous infirmities in the statement which leave us guessing about the genuineness of the statement. To start with the first infirmity which flies in the face is that the statement appears to have been recorded in a court proceeding but in the cause title the name of the court or its place of sitting is kept blank. Further while recording the statement there is blank in the fist line about the caste of Smt. Hardai. It appears that she was permitted to be cross- examined by the learned advocate for the plaintiff. Then follows the cross-examination on behalf of the defendants. Was she a court witness? How can both sides enjoy the privilege of cross-examining her unless she was declared hostile. The cause title of the statement shows that the proceeding was between Mallu and Attar Singh. But no attempt is made to connect them or either of them with the parties to the present proceedings. Further this statement appears to have been recorded by one Baldev Singh, whose status and designation are initially recorded as a peon. The question is whether a peon was entitled to administer the both and record the statement. At the foot of the statement there is an endorsement :"Recorded on my dictation in open court." Below the endorsement it is stated that it was signed by the persons whose signature, designation and status are illegible. Smt. Hardai was admittedly illiterate. Her thumb-mark is also illegible. Who attested her thumb is not indicated. But the major infirmity is that Smt. Hardai was never confronted with her alleged statement and she was not given an opportunity to affirm, deny or explain the statement. When this was pointed out Mr. Sharma suggested a remand. After a quarter of a century during which these proceedings are pending we consider the request unjust and unfair and reject it. 3. If all the infirmities enumerated here are summed up, it would be impossible to place any reliance on this so-called statement of Smt. Hardai which contains an admission. We, therefore, propose to place no reliance on it. 4. Now if the alleged statement of Smt. Hardai is excluded from any or further consideration no case is made out for interference with order under challenge. 5.
### Response:
0
### Explanation:
Below the endorsement it is stated that it was signed by the persons whose signature, designation and status are illegible. Smt. Hardai was admittedly illiterate. Herk is also illegible. Who attested her thumb is not indicated. But the major infirmity is that Smt. Hardai was never confronted with her alleged statement and she was not given an opportunity to affirm, deny or explain the statement. When this was pointed out Mr. Sharma suggested a remand. After a quarter of a century during which these proceedings are pending we consider the request unjust and unfair and reject it3. If all the infirmities enumerated here are summed up, it would be impossible to place any reliance on thisd statement of Smt. Hardai which contains an admission. We, therefore, propose to place no reliance on it4. Now if the alleged statement of Smt. Hardai is excluded from any or further consideration no case is made out for interference with order under challenge.
|
Rabindranath Bose & Others Vs. Union of India & Others | are hit by Article 14 and Article 16 of the Constitution, the petitioners would have the right to complain of the breach of their fundamental rights under these Articles.33. But in so far as the attack is based on the 1952 Seniority Rules, it must fail on another ground. The ground being that this petition under Article 32 of the Constitution has been brought about 15 years after the 1952 Rules were promulgated and effect given to them in the Seniority List prepared on August 1, 1953. Learned Counsel for the petitioners says that this Court has no discretion and cannot dismiss the petition under Article 32 on the ground that it has been brought after inordinate delay. We are unable to accept this contention. This Court by majority in M/s. Trilokchand and Moti Chands case, (1969) 1 SCC 110 held that delay can be fatal in certain circumstances. We may mention that in Laxmanappa Hanumantappa Jamkhandi v. Union of India, 1955 SCR 769 = (AIR 1955 SC 3 ), Mahajan, C. J. observed as follows:-"From the facts stated above it is plain that the proceedings taken under the impugned Act XXX of 1947 concluded so far as the Investigation Commission is concerned in September 1952, more than two years before this petition was presented in this Court. The assessment orders under the Income-tax Act itself were made against the petitioner in November 1953.In these circumstances, we are of the opinion that he is entitled to no relief under the provisions of Article 32 of the Constitution. It was held by this Court in Ramjilal v. Income-tax Officer, Mohindergarh, AIR 1951 SC 97 that as there is a special provision in Article 265 of the Constitution that no tax shall be levied or collected except by authority of law, Clause (1) of Article 31 must therefore be regarded as concerned with deprivation of property otherwise than by the imposition or collection of tax, and inasmuch as the right conferred by Article 265 is not a right conferred by Part III of the Constitution, it could not be enforced under Article 32. In view of this decision it has to be held that the petition under Article 32 is not maintainable in the situation that has arisen and that even otherwise in the peculiar circumstances that have arisen, it would not be just and proper to direct the issue of any of the writs the issue of which is discretionary with this Court" (emphasis here in supplied).34. The learned counsel for the petitioners strongly urges that the decision of this Court in Trilokchand and Motichands case, (1969) 1 SCC 110 (Supra) needs review.But after carefully considering the matter, we are of the view that no relief should be given to petitioners who without any reasonable explanation, approach this Court under Article 32 of the Constitution after inordinate delay. The highest Court in this land has been given Original Jurisdiction to entertain petitions under Article 32 of the Constitution. It could not have been the intention that this Court would go into stale demands after a lapse of years. It is said that Article 32 is itself a guaranteed right. So it is, but it does not follow from this that it was the intention of the Constitution makers that this Court should discard all principles and grant relief in petitions filed after inordinate delay.35. We are not anxious to throw out petitions on this ground, but we must administer justice in accordance with law and principles of equity, justice and good conscience.It would be unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after the lapse of a number of years.It was on the ground that this Court in Jaisinghanis case, 1967-2 SCR 703 = (AIR 1967 SC 1427 ) observed that Class II officers who have been appointed permanently as Assistant Commissioners. In that case, the Court was only considering the challenge to appointments and promotions made after 1950. In this case we are asked to consider the validity of appointments and promotions made during the periods of 1945 to 1950. If there was adequate reason in that case to leave out Class II officers, who had been appointed permanently Assistant Commissioners, there is much more reason in this case that the officers who are now permanent Assistant Commissioners of Income-tax and who were appointed and promoted to their original posts during 1945 to 1950, should be left alone.36. Learned Counsel for the petitioners, however, says that there has been no undue delay. He says that the representations were being received by the Government all the time.But there is a limit to the time which can be considered reasonable for making representations. If the Government has turned down one representation, the making of another representation on similar lines would not enable the petitioners to explain the delay. Learned counsel for the petitioners says that the petitioners were under the impression that the Departmental Promotion Committee had held a meeting in 1948 and not on April 29, 1949, and the real true facts came to be known in 1961, when the Government mentioned these facts in their letter dated December 28, 1961.We are unable to accept this explanation. This fact has been mentioned in the minutes of the meeting of the Committee which met in February 1952 and we are unable to believe that the petitioners did not come to know all these facts till 1961. But even assuming that the petitioners came to know all these facts only in December 1961, even then there has been inordinate delay in presenting the present petition. The fact that Jaisinghanis case, 1967-2 SCR 703 = (AIR 1967 SC 1427 ) was pending before the High Court and later in this Court is also no excuse for the delay in presenting the present petition. | 0[ds]As we read, this scheme, it is quite clear that the intention was not to confine recruitment to the Service through these sources because from Para 3 General, which we have reproduced above, it is quite evident that selections were to be made also from the existing Grade I Income-tax Officers Class II Service. This method of recruitment did not come within Para 2 (d) of the Scheme set out above as it was neither direct recruitment through combined competitive examination nor promotion from Class II Grade III Service. Therefore, the statement in the counter-affidavit of Mr. M. G. Thomas Ministry of Finance, "Recruitment to Grade II of Class I was to be made partly by direct recruitment (through the combined Competitive Examination as also selection from existing Grade I of Class II Service) and partly by promotion on the basis of selection from Class II (Grade III) Service", is quite correct. It is further stated that, 80 per cent of the vacancies were to be filled by direct recruitment and the remanining 20 per cent were to be filled by promotion by selection from Class II (Grade III) Service".It appears that selection from the existing Grade I of Class II Service was treated as a form of direct recruitment within the quota of 80 per cent mentioned above. This constitution of the New Service was by an executive order and there were no statutory rules governing the Service at this stage. On 29-9-1944 the Government wrote to the Federal Public Service Commission to approve of 100 officers considered suitable for selection to the new Class I Service of Income-tax Officers (Grade I). The Government also requested the Commission to recruit for the Class I, Grade II Income-tax Service 10 Officers on the result of the competitive examination that will be held in October 1944. Considering that there were 183 posts, permanent and temporary to be filled in by Income-tax officers Grade II, the number was insignificant. The idea seems to have been to take the officers from existing Grade I of Class II as far as possible as they had experience and the direct recruits would not be able to cope with the work for some years to come. On 26-5-1945, the Government framed rules for recruitment to the Income-tax Officers (Class I, Grade II)seems to us that apart from the above limited concession, we cannot at this time declare that the appointments were ivalid in any respect. Assuming that these appointments were made contrary to statutory Rules, the petitioners are incompetent to challenge the validity of these appointments for various reasons. Firstly these appointments were pre-Constitution appointments and they cannot be challenged in a petition under Article 32 of the Constitution. Secondly, there has been inordinate delay. A suit to challenge the validity of the appointments would be hopelessly time-barred, and the respondents have acquired various rights since their appointments. Thirdly, in Jaisinghanis case, 1967-2 SCR 703 = (AIR 1967 SC 1427 ) (Supra), this Court said that the order in thatnot affect such Class II officers who have been appointed permanently as Assistant Commissioners of Income Tax."We will presently give our reasons in detail for coming to this conclusion. To resume the narrative, the petitioners completed their probationary periods on different dates in 1949 and were confirmed as I. T. Os Class I, Grade II in 1949 and 1950, except petitioner No. 9 Shri D. N. Pande, who was confirmed on 22-12-51. Most of the respondents had already been confirmed on various dates in 1946, 1947 and 1948.It seems to us that the petitioners cannot complain of the breach of Articles 14 and 16 of the Constitution in respect of acts done before the Constitution came into force. These acts in this case were (1) appointments of the respondents to Income Tax Officers Class I, Grade II Service; (2) Seniority List as existing on 1-1-1950; and (3) the Seniority Rules of 1949 and 1950, in so far as they had effect upto January 26, 1950. It will be recalled that the first seniority list was prepared as on January 1, 1950 and even if the seniority list was finally settled after the Constitution came into force, the Rules to be applied were the Seniority Rues of 1949 and 1950.In other words, if the list had been finally settled on January 1, 1950, it is clear that no appeal could be made to Articles 14 and 16 of the Constitution. The fact that the List was prepared after the Constitution came into force would not enable the petitioners to appeal to Articles 14 and 16. The position is however, different in so far as changes were made in the seniority List as a result of change in the 1952 Seniority Rules.These changes were post-Constitution and if they are hit by Article 14 and Article 16 of the Constitution, the petitioners would have the right to complain of the breach of their fundamental rights under these Articles.33. But in so far as the attack is based on the 1952 Seniority Rules, it must fail on another ground. The ground being that this petition under Article 32 of the Constitution has been brought about 15 years after the 1952 Rules were promulgated and effect given to them in the Seniority List prepared on August 1, 1953. Learned Counsel for the petitioners says that this Court has no discretion and cannot dismiss the petition under Article 32 on the ground that it has been brought after inordinate delay. We are unable to accept this contention. This Court by majority in M/s. Trilokchand and Moti Chands case, (1969) 1 SCC 110 held that delay can be fatal in certain circumstances. We may mention that in Laxmanappa Hanumantappa Jamkhandi v. Union of India, 1955 SCR 769 = (AIR 1955 SC 3 ), Mahajan, C. J. observed asthe facts stated above it is plain that the proceedings taken under the impugned Act XXX of 1947 concluded so far as the Investigation Commission is concerned in September 1952, more than two years before this petition was presented in this Court. The assessment orders under the Income-tax Act itself were made against the petitioner in November 1953.In these circumstances, we are of the opinion that he is entitled to no relief under the provisions of Article 32 of the Constitution. It was held by this Court in Ramjilal v. Income-tax Officer, Mohindergarh, AIR 1951 SC 97 that as there is a special provision in Article 265 of the Constitution that no tax shall be levied or collected except by authority of law, Clause (1) of Article 31 must therefore be regarded as concerned with deprivation of property otherwise than by the imposition or collection of tax, and inasmuch as the right conferred by Article 265 is not a right conferred by Part III of the Constitution, it could not be enforced under Article 32. In view of this decision it has to be held that the petition under Article 32 is not maintainable in the situation that has arisen and that even otherwise in the peculiar circumstances that have arisen, it would not be just and proper to direct the issue of any of the writs the issue of which is discretionary with this Court" (emphasis here in highest Court in this land has been given Original Jurisdiction to entertain petitions under Article 32 of the Constitution. It could not have been the intention that this Court would go into stale demands after a lapse of years. It is said that Article 32 is itself a guaranteed right. So it is, but it does not follow from this that it was the intention of the Constitution makers that this Court should discard all principles and grant relief in petitions filed after inordinate delay.We are not anxious to throw out petitions on this ground, but we must administer justice in accordance with law and principles of equity, justice and good conscience.It would be unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after the lapse of a number of years.It was on the ground that this Court in Jaisinghanis case, 1967-2 SCR 703 = (AIR 1967 SC 1427 ) observed that Class II officers who have been appointed permanently as Assistant Commissioners. In that case, the Court was only considering the challenge to appointments and promotions made after 1950. In this case we are asked to consider the validity of appointments and promotions made during the periods of 1945 to 1950. If there was adequate reason in that case to leave out Class II officers, who had been appointed permanently Assistant Commissioners, there is much more reason in this case that the officers who are now permanent Assistant Commissioners of Income-tax and who were appointed and promoted to their original posts during 1945 to 1950, should be leftare unable to accept this explanation. This fact has been mentioned in the minutes of the meeting of the Committee which met in February 1952 and we are unable to believe that the petitioners did not come to know all these facts till 1961. But even assuming that the petitioners came to know all these facts only in December 1961, even then there has been inordinate delay in presenting the present petition. The fact that Jaisinghanis case, 1967-2 SCR 703 = (AIR 1967 SC 1427 ) was pending before the High Court and later in this Court is also no excuse for the delay in presenting the present petition. | 0 | 6,726 | 1,758 | ### 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 hit by Article 14 and Article 16 of the Constitution, the petitioners would have the right to complain of the breach of their fundamental rights under these Articles.33. But in so far as the attack is based on the 1952 Seniority Rules, it must fail on another ground. The ground being that this petition under Article 32 of the Constitution has been brought about 15 years after the 1952 Rules were promulgated and effect given to them in the Seniority List prepared on August 1, 1953. Learned Counsel for the petitioners says that this Court has no discretion and cannot dismiss the petition under Article 32 on the ground that it has been brought after inordinate delay. We are unable to accept this contention. This Court by majority in M/s. Trilokchand and Moti Chands case, (1969) 1 SCC 110 held that delay can be fatal in certain circumstances. We may mention that in Laxmanappa Hanumantappa Jamkhandi v. Union of India, 1955 SCR 769 = (AIR 1955 SC 3 ), Mahajan, C. J. observed as follows:-"From the facts stated above it is plain that the proceedings taken under the impugned Act XXX of 1947 concluded so far as the Investigation Commission is concerned in September 1952, more than two years before this petition was presented in this Court. The assessment orders under the Income-tax Act itself were made against the petitioner in November 1953.In these circumstances, we are of the opinion that he is entitled to no relief under the provisions of Article 32 of the Constitution. It was held by this Court in Ramjilal v. Income-tax Officer, Mohindergarh, AIR 1951 SC 97 that as there is a special provision in Article 265 of the Constitution that no tax shall be levied or collected except by authority of law, Clause (1) of Article 31 must therefore be regarded as concerned with deprivation of property otherwise than by the imposition or collection of tax, and inasmuch as the right conferred by Article 265 is not a right conferred by Part III of the Constitution, it could not be enforced under Article 32. In view of this decision it has to be held that the petition under Article 32 is not maintainable in the situation that has arisen and that even otherwise in the peculiar circumstances that have arisen, it would not be just and proper to direct the issue of any of the writs the issue of which is discretionary with this Court" (emphasis here in supplied).34. The learned counsel for the petitioners strongly urges that the decision of this Court in Trilokchand and Motichands case, (1969) 1 SCC 110 (Supra) needs review.But after carefully considering the matter, we are of the view that no relief should be given to petitioners who without any reasonable explanation, approach this Court under Article 32 of the Constitution after inordinate delay. The highest Court in this land has been given Original Jurisdiction to entertain petitions under Article 32 of the Constitution. It could not have been the intention that this Court would go into stale demands after a lapse of years. It is said that Article 32 is itself a guaranteed right. So it is, but it does not follow from this that it was the intention of the Constitution makers that this Court should discard all principles and grant relief in petitions filed after inordinate delay.35. We are not anxious to throw out petitions on this ground, but we must administer justice in accordance with law and principles of equity, justice and good conscience.It would be unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after the lapse of a number of years.It was on the ground that this Court in Jaisinghanis case, 1967-2 SCR 703 = (AIR 1967 SC 1427 ) observed that Class II officers who have been appointed permanently as Assistant Commissioners. In that case, the Court was only considering the challenge to appointments and promotions made after 1950. In this case we are asked to consider the validity of appointments and promotions made during the periods of 1945 to 1950. If there was adequate reason in that case to leave out Class II officers, who had been appointed permanently Assistant Commissioners, there is much more reason in this case that the officers who are now permanent Assistant Commissioners of Income-tax and who were appointed and promoted to their original posts during 1945 to 1950, should be left alone.36. Learned Counsel for the petitioners, however, says that there has been no undue delay. He says that the representations were being received by the Government all the time.But there is a limit to the time which can be considered reasonable for making representations. If the Government has turned down one representation, the making of another representation on similar lines would not enable the petitioners to explain the delay. Learned counsel for the petitioners says that the petitioners were under the impression that the Departmental Promotion Committee had held a meeting in 1948 and not on April 29, 1949, and the real true facts came to be known in 1961, when the Government mentioned these facts in their letter dated December 28, 1961.We are unable to accept this explanation. This fact has been mentioned in the minutes of the meeting of the Committee which met in February 1952 and we are unable to believe that the petitioners did not come to know all these facts till 1961. But even assuming that the petitioners came to know all these facts only in December 1961, even then there has been inordinate delay in presenting the present petition. The fact that Jaisinghanis case, 1967-2 SCR 703 = (AIR 1967 SC 1427 ) was pending before the High Court and later in this Court is also no excuse for the delay in presenting the present petition.
### Response:
0
### Explanation:
acts in this case were (1) appointments of the respondents to Income Tax Officers Class I, Grade II Service; (2) Seniority List as existing on 1-1-1950; and (3) the Seniority Rules of 1949 and 1950, in so far as they had effect upto January 26, 1950. It will be recalled that the first seniority list was prepared as on January 1, 1950 and even if the seniority list was finally settled after the Constitution came into force, the Rules to be applied were the Seniority Rues of 1949 and 1950.In other words, if the list had been finally settled on January 1, 1950, it is clear that no appeal could be made to Articles 14 and 16 of the Constitution. The fact that the List was prepared after the Constitution came into force would not enable the petitioners to appeal to Articles 14 and 16. The position is however, different in so far as changes were made in the seniority List as a result of change in the 1952 Seniority Rules.These changes were post-Constitution and if they are hit by Article 14 and Article 16 of the Constitution, the petitioners would have the right to complain of the breach of their fundamental rights under these Articles.33. But in so far as the attack is based on the 1952 Seniority Rules, it must fail on another ground. The ground being that this petition under Article 32 of the Constitution has been brought about 15 years after the 1952 Rules were promulgated and effect given to them in the Seniority List prepared on August 1, 1953. Learned Counsel for the petitioners says that this Court has no discretion and cannot dismiss the petition under Article 32 on the ground that it has been brought after inordinate delay. We are unable to accept this contention. This Court by majority in M/s. Trilokchand and Moti Chands case, (1969) 1 SCC 110 held that delay can be fatal in certain circumstances. We may mention that in Laxmanappa Hanumantappa Jamkhandi v. Union of India, 1955 SCR 769 = (AIR 1955 SC 3 ), Mahajan, C. J. observed asthe facts stated above it is plain that the proceedings taken under the impugned Act XXX of 1947 concluded so far as the Investigation Commission is concerned in September 1952, more than two years before this petition was presented in this Court. The assessment orders under the Income-tax Act itself were made against the petitioner in November 1953.In these circumstances, we are of the opinion that he is entitled to no relief under the provisions of Article 32 of the Constitution. It was held by this Court in Ramjilal v. Income-tax Officer, Mohindergarh, AIR 1951 SC 97 that as there is a special provision in Article 265 of the Constitution that no tax shall be levied or collected except by authority of law, Clause (1) of Article 31 must therefore be regarded as concerned with deprivation of property otherwise than by the imposition or collection of tax, and inasmuch as the right conferred by Article 265 is not a right conferred by Part III of the Constitution, it could not be enforced under Article 32. In view of this decision it has to be held that the petition under Article 32 is not maintainable in the situation that has arisen and that even otherwise in the peculiar circumstances that have arisen, it would not be just and proper to direct the issue of any of the writs the issue of which is discretionary with this Court" (emphasis here in highest Court in this land has been given Original Jurisdiction to entertain petitions under Article 32 of the Constitution. It could not have been the intention that this Court would go into stale demands after a lapse of years. It is said that Article 32 is itself a guaranteed right. So it is, but it does not follow from this that it was the intention of the Constitution makers that this Court should discard all principles and grant relief in petitions filed after inordinate delay.We are not anxious to throw out petitions on this ground, but we must administer justice in accordance with law and principles of equity, justice and good conscience.It would be unjust to deprive the respondents of the rights which have accrued to them. Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after the lapse of a number of years.It was on the ground that this Court in Jaisinghanis case, 1967-2 SCR 703 = (AIR 1967 SC 1427 ) observed that Class II officers who have been appointed permanently as Assistant Commissioners. In that case, the Court was only considering the challenge to appointments and promotions made after 1950. In this case we are asked to consider the validity of appointments and promotions made during the periods of 1945 to 1950. If there was adequate reason in that case to leave out Class II officers, who had been appointed permanently Assistant Commissioners, there is much more reason in this case that the officers who are now permanent Assistant Commissioners of Income-tax and who were appointed and promoted to their original posts during 1945 to 1950, should be leftare unable to accept this explanation. This fact has been mentioned in the minutes of the meeting of the Committee which met in February 1952 and we are unable to believe that the petitioners did not come to know all these facts till 1961. But even assuming that the petitioners came to know all these facts only in December 1961, even then there has been inordinate delay in presenting the present petition. The fact that Jaisinghanis case, 1967-2 SCR 703 = (AIR 1967 SC 1427 ) was pending before the High Court and later in this Court is also no excuse for the delay in presenting the present petition.
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State Of Maharashtra Vs. Reliance Industries Ltd | be the interest of the owners thereof may have therein the purpose of acquisition is to acquire all interest which clog the right of the Government to full ownership of the land. In the instant cases, as the ownership of the land does not lie with the respondents, thus, it was not necessary to acquire the land. The fact in the said case does not help at all. It has been laid down that acquisition of entire interest in the part is required and there cannot be acquisition of the part of interest in part of the building, house or manufactory. The entire interest of the owner has to be acquired and that has been precisely done in the instant case.58. Reliance has also been placed on the decision of this Court in Kiran Tandon v. Allahabad Development Authority, (2004) 10 SCC 745 thus :"11. A question which arises here is as to what method for determining the value of the property should be adopted when the land is comprised of buildings, trees or some other additions of like nature. In Parks, J.A.: Principles & Practice of Valuation (published by Eastern Law House, 1998 Edn.) the following paragraph on p. 332 illustrates the different aspects of the problem:"Land with buildings is viewed in a different perspective than bare land as such. Land and buildings once married become one unit, and neither land nor building can thereafter be valued separately. A building once erected on or married to the site, as it is technicallv often termed takes unto itself a value which may be either greater or less than the cost of erection depending upon the market situation. If the building properly and economically develops the land, the total value of the complete entity may be worth more than the sum of the individual valuer. In such cases, the excess of the composite value over the sum of the individual values is ascribable as the builder`s profit. But there may also be instances to the contrary. It is generally impossible to arrive at the true value of the whole by addition of the parts."12. In Abdullah Jan Mohd. Ganjee v. State of Bihar [(1967) l SCWR 214] it was observed that a building standing on the land and the land on which it stands may not for the purposes of the Land Acquisition Act ordinarily be regarded as separate units capable of being separately valued and the Reference Court in the normal course should have valued the land and building as composite property by the evidence furnished by the value of similar and comparable properties in the neighborhood by capitalisation of rent or other income received out of the property.13. This principle was reiterated in State of Kerala v. P.P. Hassan Koya [AIR 1968 SC 1201 ] wherein it was held as under: (AIR p. 1202, para 5)"In determining compensation payable in respect of land with buildings, compensation cannot be determined by ascertaining the value of the land and the `break-up value of the building separately. The land and the building constitute one unit, and the value of the entire unit must be determined with all its advantages and its potentialities."14. In O. Janardhan Reddy v. Spl. Dy. Collector [(1994) 6 SCC 456] it was held that where there are irrigation wells in the land, estimated construction cost of the wells cannot be separately assessed apart from assessment of market value of the land and the value of the land has to be assessed having regard to the availability of irrigation facility on the land as a prime factor. This view has been reiterated in State of Bihar v. Madheshwar Prasad [(1996) 6 SCC 197] and State of Bihar v. Ratan Lal Sahu [(1996) 10 SCC 635] . But there is no hard-and-fast rule that land and building must be valued as one unit. They can be separately assessed if the large portion of the land is lying vacant and is capable of better use as stated by Venkatachaliah J. as His Lordship then was in Administrator General of W.B v. Collector, Varanasi [(1988) 2 SCC 150 : AIR 1988 SC 943 ] and it will be useful to extract the relevant part of AIR para 8 of the Report: (SCC pp. 159-60, para 17)"Usually. land and building thereon constitute one unit. Land is one kind of property; land and building together constitute an altogether different kind of property. They must be valued as one unit. But where however the property comprises extensive land and the structures thereon do not indicate a realisation of the full developmental potential of the land it might not be impermissible to value the property estimating separately the market value of the land with reference to the date of the preliminary notification and to add to it the value of the structures as at that time. In this method, building value is estimated on the basis of the prime cost or replacement cost less depreciation. The rate of depreciation is, generally, arrived at by dividing the cost of construction (less the salvage value at the end of the period of utility) by the number of years of utility of the building. The factors that prolong the life and utility of the building, such as good maintenance, necessarily influence and bring down the rate of depreciation."(Emphasis supplied)The question in the above matter was as to the method for determining the value of property that has to be adopted in the facts of each case. No doubt about it when land and building once married becomes one unit, neither land nor building can thereafter be valued separately. But this would not come in the way of determining the valuation of a particular floor, all the aspects of the owners interest and the bundle of other rights can be taken into consideration including support provided by the land and value of the land in the locality etc. Value of the part of the building can also be accordingly assessed. | 1[ds]15. The provision contained in section 49 makes it clear that there can be acquisition of part of house or building but if the owner thereof desires that whole of his house or manufactory or building shall be so acquired, the provisions can not be used for the purpose of acquiring a part only of any house, manufactory or other building and when a part is proposed to be acquired, owner has right to object that the whole building or house should be acquired and not the part, and the owner at any time before the Collector has made his award under section 11, by notice in writing, withdraw or modify, his expressed desire that the whole of such house, manufactory or building shall be so acquired. Second proviso makes it clear that if any question arises whether any land proposed to be taken under the Act does or does not form part of a house, manufactory or building within the meaning of section 49(1), the Collector shall refer the determination of such question to the court and shall not take possession of it until after the question has been determined, and the court while deciding such a question whether the land proposed to be taken is reasonably required for the full and unimpaired use of the house, manufactory or building.16. In our opinion, provisions of section 49 of the Act make it clear besides the inclusive definition under section 3(a), that there can be acquisition of part of building or house and owner has the option to express his desire that the whole of it should be acquired and not the part, as the case may be. The court has the power to decide on a question being referred under the second proviso, whether land proposed to be taken forms part of the house, manufactory or building. The court has to take into consideration the question whether land proposed to be taken is reasonably required for the full and unimpaired use of the house, manufactory or building. If the court holds otherwise, obviously the possession of the land shall not be taken. There can be acquisition of the house or building or manufactory under the provisions of section 49(1) or acquisition of part. It is not a case where any of the owners of the building has desired that whole of building be acquired. In case such intention would have been expressed, it would have been incumbent to acquire the whole of thedefinition of land is of wide connotation. It cannot be construed in narrow sense to render provisions of the Act otiose or impracticable.Having regard to the true intent of the meaning of the word `land, the only interpretation possible in the context is the interpretation as made by us, inasmuch as such interpretation will not take away the very meaning of the land. In the matter on hand, owner of the land is the State whereas the owner of the building is a respondent. Since, building cannot stand without the land, the building also becomes part of the land. However, since the owner of the building is different from the owner of the land, and if a portion of the building is required for public purpose, it is open for the State to acquire that portion of the building by paying adequate compensation in respect of that portion of the building, as well as, in respect of proportionate diminution of the user if any of the land under Section 23 of the Land Acquisition Act, 1894, in accordance with law.In our opinion, the submission with respect to object and scheme as discussed in Girnar Traders (supra) and T.L. Prakash Ram Rao (supra) does not come in the way of acquisition. The object is to compensate the owner adequately. There is no doubt that pendency of acquisition proceedings are not to cause hardship to the affected parties. The purpose of the Act is to make additions for the public purpose and to award to the owners/ interested persons compensation in accordance with the provisions of the Act. The acquisition has been made for the public purpose in the instant case. The decision in the case of T.L. Prakash Ram Rao (supra) does not come in the way of acquisition. The court has observed that definition of the land is not exhaustive, but is inclusive definition; but by stretching any far it cannot be deduced that the dominant purpose need not be acquisition of land and the things attached to the said land can also be part of the acquisition. But if the dominant purpose is only to acquire a water source and then to notify the land involving the same, the said acquisition does not amount to acquisition of land and the Act is not at all applicable. That situation was totally different from the instant case as the entire floors are being acquired for the purpose of housing of the offices and there is acute paucity of such spaces particularly in Mumbai and nearby places. When flats can be sold independently, obviously they can be acquired also. As all the rights in the floor are being acquired and the land beneath it need not be acquired more so it belongs to the Government there can be valid acquisition of such floors independently without land in such cases.The instant matters are of dual ownership. In both the cases owners of the building are not the owners of the land. The land belongs to State of Maharashtra or Port Trust. In such a situation where the Government is the owner of the site, obviously Government could not have acquired the land and in the case of its own ownership, there was no necessity for the acquisition of land.In view of the authoritative pronouncement made by this Court in Special Land Acquisition Officer and Rehabilitation Officer, Sagar v. M.S. Seshagiri Rao & Anr. (supra), Collector of Bombay v. Nusserwanji Rattanji Mistri and Ors. (supra), the decision in Raja Shyam Chunder Mardraj v. Secretary of State for India Council (supra) of Calcutta High Court, Dasarath Sahu v. Secy. of State (supra) by Patna High Court (supra), Makhan Lal v. Secy of State (supra) of Allahabad High Court which was followed in Dasarath Sahu (supra) and also the decision of Secretary of State v. Allahabad Bank Ltd. (supra) of the same High Court following Dasarath Sahu (supra) can no longer be said to be laying down a good law and are herebysubmission to that effect to be accepted would require ownership of the land with owner of the building and owner has required by expressing desire that the whole of the building with land be acquired is not the factual scenario in the instant case. The land upon which the building is standing need not be acquired and there is no necessity to acquire it. There can be acquisition of part of the building or the house or manufactory as the owners have not exercised their option to insist for acquisition for whole of the building as such only the rights which they have in the particular floors are being acquired. No doubt about it that under proviso to Section 49(1) there can be acquisition of land beside the part of the building, house or manufactory and when the land is proposed to be taken, the dispute as to whether it does or does not form part of the house, manufactory or building, the Collector shall refer the determination of such question to thedecision in Harsook Das Bal Krishan Das (supra) does not at all help the respondents. In the said case it has been laid down that there can be acquisition of land or part of building, In our opinion, when State is the owner then it is not necessary to acquire such an interest in the land.There is no dispute with aforesaid proposition but where part of building that too abuilding is being acquired, the land need not be acquired more so when the owner of building is not the owner of land and his entire interest in part of building can be acquired.The aforesaid submission is simply to be rejected. In case the building or portion is acquired without acquiring the underlying land there is no question of overreach of the States power to the eminent domain. Article 300A interdict taking of the property for a public purpose without compensating the owner for its loss. In case entire ownership of the land does not lie with the owner only the right which is capable of being acquired would be acquired not something which isThe building or part can be acquired and there is no question of acquisition of the land in such cases. In adjudication of the compensation as per the provisions of Section 23, the State is not depriving the respondents of their property. There is acquisition of land by fair procedure along with reasonable compensation. The action has been taken by the State in accordance with law. The action is legally justified. Thus, there is no question of eminent domain being misused or violation of provisions of Article 300A of the Constitution ofsubmission cannot be accepted as the respondents are not the owner of the underlying land. Secondly, the acquisition of a particular floor as per the provision of section 49 of the act is permissible and the entire interest of owner in a particular portion has been acquired for that he would to be compensated. It is not the case of partial acquisition of the interest on a particular floor. When without selling the land, in a building, a particular floor can be sold why there could not be acquisition of particular floor for publicis no dispute that in the aforesaid proposition. The owner has the right to use and enjoy a particular portion but owner cannot set up a plea for acquisition of an interest when he does not have that particular right or interest or title. His right to manage it, right to decide, how it shall be used, right to income from it has to be in accordance with the law. Right of individual has to give way to the public purpose on being duly compensated by way of fair procedure.We find no merit in the aforesaid submission. Firstly, it presupposes ownership of land also is with owner of building, if that be so, the owner can exercise the option for acquisition of the entire building and land which is available under Section 49 of the Act and besides that the owner can be compensated also in case he is having any interest in the land and in case his land is rendered of less utility obviously he can claim compensation under the provisions of the Land Acquisition Act. If the land is rendered value less then also adequate compensation can be claimed under the provisions of Section 23 in accordance with law. In case right is affected in land which is not acquired by severance, for that also compensation can be claimed. Thus, the submission so placed is factually incorrect and legallythe aforesaid case there was notification under section 4 of the Act for acquisition of seven units of land with buildings. The buildings constructed on the land belonged to the respondent and were let out to tenants on rent. This Court has held that when notification is of a single unit whatever may be the interest of the owners thereof may have therein the purpose of acquisition is to acquire all interest which clog the right of the Government to full ownership of the land. In the instant cases, as the ownership of the land does not lie with the respondents, thus, it was not necessary to acquire the land. The fact in the said case does not help at all. It has been laid down that acquisition of entire interest in the part is required and there cannot be acquisition of the part of interest in part of the building, house or manufactory. The entire interest of the owner has to be acquired and that has been precisely done in the instantquestion in the above matter was as to the method for determining the value of property that has to be adopted in the facts of each case. No doubt about it when land and building once married becomes one unit, neither land nor building can thereafter be valued separately. But this would not come in the way of determining the valuation of a particular floor, all the aspects of the owners interest and the bundle of other rights can be taken into consideration including support provided by the land and value of the land in the locality etc. Value of the part of the building can also be accordingly assessed. | 1 | 22,846 | 2,314 | ### Instruction:
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be the interest of the owners thereof may have therein the purpose of acquisition is to acquire all interest which clog the right of the Government to full ownership of the land. In the instant cases, as the ownership of the land does not lie with the respondents, thus, it was not necessary to acquire the land. The fact in the said case does not help at all. It has been laid down that acquisition of entire interest in the part is required and there cannot be acquisition of the part of interest in part of the building, house or manufactory. The entire interest of the owner has to be acquired and that has been precisely done in the instant case.58. Reliance has also been placed on the decision of this Court in Kiran Tandon v. Allahabad Development Authority, (2004) 10 SCC 745 thus :"11. A question which arises here is as to what method for determining the value of the property should be adopted when the land is comprised of buildings, trees or some other additions of like nature. In Parks, J.A.: Principles & Practice of Valuation (published by Eastern Law House, 1998 Edn.) the following paragraph on p. 332 illustrates the different aspects of the problem:"Land with buildings is viewed in a different perspective than bare land as such. Land and buildings once married become one unit, and neither land nor building can thereafter be valued separately. A building once erected on or married to the site, as it is technicallv often termed takes unto itself a value which may be either greater or less than the cost of erection depending upon the market situation. If the building properly and economically develops the land, the total value of the complete entity may be worth more than the sum of the individual valuer. In such cases, the excess of the composite value over the sum of the individual values is ascribable as the builder`s profit. But there may also be instances to the contrary. It is generally impossible to arrive at the true value of the whole by addition of the parts."12. In Abdullah Jan Mohd. Ganjee v. State of Bihar [(1967) l SCWR 214] it was observed that a building standing on the land and the land on which it stands may not for the purposes of the Land Acquisition Act ordinarily be regarded as separate units capable of being separately valued and the Reference Court in the normal course should have valued the land and building as composite property by the evidence furnished by the value of similar and comparable properties in the neighborhood by capitalisation of rent or other income received out of the property.13. This principle was reiterated in State of Kerala v. P.P. Hassan Koya [AIR 1968 SC 1201 ] wherein it was held as under: (AIR p. 1202, para 5)"In determining compensation payable in respect of land with buildings, compensation cannot be determined by ascertaining the value of the land and the `break-up value of the building separately. The land and the building constitute one unit, and the value of the entire unit must be determined with all its advantages and its potentialities."14. In O. Janardhan Reddy v. Spl. Dy. Collector [(1994) 6 SCC 456] it was held that where there are irrigation wells in the land, estimated construction cost of the wells cannot be separately assessed apart from assessment of market value of the land and the value of the land has to be assessed having regard to the availability of irrigation facility on the land as a prime factor. This view has been reiterated in State of Bihar v. Madheshwar Prasad [(1996) 6 SCC 197] and State of Bihar v. Ratan Lal Sahu [(1996) 10 SCC 635] . But there is no hard-and-fast rule that land and building must be valued as one unit. They can be separately assessed if the large portion of the land is lying vacant and is capable of better use as stated by Venkatachaliah J. as His Lordship then was in Administrator General of W.B v. Collector, Varanasi [(1988) 2 SCC 150 : AIR 1988 SC 943 ] and it will be useful to extract the relevant part of AIR para 8 of the Report: (SCC pp. 159-60, para 17)"Usually. land and building thereon constitute one unit. Land is one kind of property; land and building together constitute an altogether different kind of property. They must be valued as one unit. But where however the property comprises extensive land and the structures thereon do not indicate a realisation of the full developmental potential of the land it might not be impermissible to value the property estimating separately the market value of the land with reference to the date of the preliminary notification and to add to it the value of the structures as at that time. In this method, building value is estimated on the basis of the prime cost or replacement cost less depreciation. The rate of depreciation is, generally, arrived at by dividing the cost of construction (less the salvage value at the end of the period of utility) by the number of years of utility of the building. The factors that prolong the life and utility of the building, such as good maintenance, necessarily influence and bring down the rate of depreciation."(Emphasis supplied)The question in the above matter was as to the method for determining the value of property that has to be adopted in the facts of each case. No doubt about it when land and building once married becomes one unit, neither land nor building can thereafter be valued separately. But this would not come in the way of determining the valuation of a particular floor, all the aspects of the owners interest and the bundle of other rights can be taken into consideration including support provided by the land and value of the land in the locality etc. Value of the part of the building can also be accordingly assessed.
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need not be acquired and there is no necessity to acquire it. There can be acquisition of part of the building or the house or manufactory as the owners have not exercised their option to insist for acquisition for whole of the building as such only the rights which they have in the particular floors are being acquired. No doubt about it that under proviso to Section 49(1) there can be acquisition of land beside the part of the building, house or manufactory and when the land is proposed to be taken, the dispute as to whether it does or does not form part of the house, manufactory or building, the Collector shall refer the determination of such question to thedecision in Harsook Das Bal Krishan Das (supra) does not at all help the respondents. In the said case it has been laid down that there can be acquisition of land or part of building, In our opinion, when State is the owner then it is not necessary to acquire such an interest in the land.There is no dispute with aforesaid proposition but where part of building that too abuilding is being acquired, the land need not be acquired more so when the owner of building is not the owner of land and his entire interest in part of building can be acquired.The aforesaid submission is simply to be rejected. In case the building or portion is acquired without acquiring the underlying land there is no question of overreach of the States power to the eminent domain. Article 300A interdict taking of the property for a public purpose without compensating the owner for its loss. In case entire ownership of the land does not lie with the owner only the right which is capable of being acquired would be acquired not something which isThe building or part can be acquired and there is no question of acquisition of the land in such cases. In adjudication of the compensation as per the provisions of Section 23, the State is not depriving the respondents of their property. There is acquisition of land by fair procedure along with reasonable compensation. The action has been taken by the State in accordance with law. The action is legally justified. Thus, there is no question of eminent domain being misused or violation of provisions of Article 300A of the Constitution ofsubmission cannot be accepted as the respondents are not the owner of the underlying land. Secondly, the acquisition of a particular floor as per the provision of section 49 of the act is permissible and the entire interest of owner in a particular portion has been acquired for that he would to be compensated. It is not the case of partial acquisition of the interest on a particular floor. When without selling the land, in a building, a particular floor can be sold why there could not be acquisition of particular floor for publicis no dispute that in the aforesaid proposition. The owner has the right to use and enjoy a particular portion but owner cannot set up a plea for acquisition of an interest when he does not have that particular right or interest or title. His right to manage it, right to decide, how it shall be used, right to income from it has to be in accordance with the law. Right of individual has to give way to the public purpose on being duly compensated by way of fair procedure.We find no merit in the aforesaid submission. Firstly, it presupposes ownership of land also is with owner of building, if that be so, the owner can exercise the option for acquisition of the entire building and land which is available under Section 49 of the Act and besides that the owner can be compensated also in case he is having any interest in the land and in case his land is rendered of less utility obviously he can claim compensation under the provisions of the Land Acquisition Act. If the land is rendered value less then also adequate compensation can be claimed under the provisions of Section 23 in accordance with law. In case right is affected in land which is not acquired by severance, for that also compensation can be claimed. Thus, the submission so placed is factually incorrect and legallythe aforesaid case there was notification under section 4 of the Act for acquisition of seven units of land with buildings. The buildings constructed on the land belonged to the respondent and were let out to tenants on rent. This Court has held that when notification is of a single unit whatever may be the interest of the owners thereof may have therein the purpose of acquisition is to acquire all interest which clog the right of the Government to full ownership of the land. In the instant cases, as the ownership of the land does not lie with the respondents, thus, it was not necessary to acquire the land. The fact in the said case does not help at all. It has been laid down that acquisition of entire interest in the part is required and there cannot be acquisition of the part of interest in part of the building, house or manufactory. The entire interest of the owner has to be acquired and that has been precisely done in the instantquestion in the above matter was as to the method for determining the value of property that has to be adopted in the facts of each case. No doubt about it when land and building once married becomes one unit, neither land nor building can thereafter be valued separately. But this would not come in the way of determining the valuation of a particular floor, all the aspects of the owners interest and the bundle of other rights can be taken into consideration including support provided by the land and value of the land in the locality etc. Value of the part of the building can also be accordingly assessed.
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Gurdit Singh Aulakh (Deceased) Through L.R.S Vs. The State Of Punjab & Others | remove a member once appointed except on the grounds specified therein and the fact that the High Court declared that the removal of Aulakh from the membership of the Tribunal was bad would not have warranted the removal of Kahla from the membership of the Tribunal under that provision. To put it differently, the contention of the counsel for the State of Punjab was that S.12(5) provides for all cases of removal of a member of the Tribunal once appointed and since the removal of Kahla would not have been justified on any of the grounds mentioned in that section, the State Government could not have removed him from the membership and, therefore, an impossible situation was created which justified the dissolution of the Tribunal under S.12(1) of the Act. 5. We think that the contention urged on behalf of the State of Punjab must prevail. From the fact that the judgment of the High Court declared that the removal of Aulakh was bad in law, it would not follow that the appointment of Kahla in the vacancy by the removal of the Aulakh was void. Assuming that the appointment was void, it was void only as against Aulakh. There is nothing strange in the notion of the appointment being void as against Aulakh only, for, it was his rights that were affected by the appointment of Kahla and as Aulakh did not challenge the validity of the appointment, the appointment became valid, even on the assumption that it was originally void. The appointment of Kahla, however void in the eyes of a Court will prevail unless Aulakh challenged it successfully. Unless the law upheld the challenge, Aulakh must accept whatever the Government had done as valid and effectual.The fact that Aulakh successfully challenged the order removing him from the membership as against the Government is of no consequence as Kahla was not bound by that decision. The validity of his appointment was not challenged in the writ petition filed by Aulakh; Kahla was not even made a party to that writ petition. His appointment, therefore, remained unchallenged. That apart, he was functioning as a member of the Tribunal and was participating in the decision of cases. Section 12 (1) of the Act provides for the constitution of one or more Tribunals by the State Government for deciding claims made in accordance with the provisions of the Act. The Tribunal so constituted should consist of a President and two other members appointed by the State Government. Therefore, it was essential that on the removal of Aulakh, there should be an appointment to the vacancy as the business of the Tribunal could not have been carried on without filling the vacancy created by the removal. We, therefore, find it difficult to hold on the ground of practical expediency also that the appointment of Kahla as a member of the Tribunal was void and, therefore, non est in the eye of law. Kahla having been appointed as a member of the Tribunal, he could have been removed only in accordance with the provisions of Section 12 (3). That section provides: The local Government may be notification remove any member of a Tribunal, other than the President- (i) If he refused to act or becomes in the opinion of the local Government incapable of acting, or unfit to act, as a member or (ii) If he has absented himself from more than three consecutive meetings of the Tribunal, or (iii) If he is an undischarged insolvent. The High Court has considered the question whether the sub-section was in force on the relevant date and its conclusion was that it continued to be operative notwithstanding the purported repeal. The provisions of the sub-section did not contemplate a removal in the contingency created by the facts of the case and so the State Government had no power to remove him under the sub-section. The Tribunal could not have functioned with both of them as members in the teeth of the provisions of Section 12(2). The grounds for dissolution of the Tribunal are not enumerated in the Act. We, therefore, agree with the view of the High Court that the dissolution of the Tribunal was not for a collateral purpose. 6. The other contention raised by Mr. Garg to the validity of the notification dissolving the Tribunal was that the notification dissolving the Tribunal was that the notification was issued by S. K. Chibber, Secretary, Home Department, and not by the Governor. 7. At the relevant time, Punjab was under the Presidents Rule and according to Mr. Garg, the only person competent to issue the notification in question was the Governor. In support of this contention, he relied upon the Governors Secretariat Order dated July 6, 1966, which allocated the business of the Government among various functionaries. In paragraph 3 of that Order, it was provided that the Secretaries to the Government would dispose of the business relating to their respective Departments except cases which, under the Rules of Business of the Government of Punjab, 1953, were required to be submitted to the Governor, the Council of Ministers or the Chief Minister, and as the business in question should have been submitted to the Chief Minister before issuing orders, the Governor alone was competent to sanction the issue of the notification. Counsel relied on Rule 26, sub-rule (1) (xxii) of the Rules of Business which reads: 28 (1) The following classes of cases shall be submitted to the Chief Minister before the issue of orders: (xxii) Proposals for the creation, for a period exceeding six months or abolition of any public office, the maximum remuneration of which is between Rs.800 and Rs.2,000/-. 8.We do not think that the notification dissolving the Tribunal abolished any public office of the description specified in the sub-rule. The Tribunal was not abolished. It was only re-constituted. There was no abolition of any public office. Abolition means, to destroy, extinguish, abrogate or annihilate. We, therefore overrule the contention of the counsel. | 0[ds]5. We think that the contention urged on behalf of the State of Punjab must prevail. From the fact that the judgment of the High Court declared that the removal of Aulakh was bad in law, it would not follow that the appointment of Kahla in the vacancy by the removal of the Aulakh was void. Assuming that the appointment was void, it was void only as against Aulakh. There is nothing strange in the notion of the appointment being void as against Aulakh only, for, it was his rights that were affected by the appointment of Kahla and as Aulakh did not challenge the validity of the appointment, the appointment became valid, even on the assumption that it was originally void. The appointment of Kahla, however void in the eyes of a Court will prevail unless Aulakh challenged it successfully. Unless the law upheld the challenge, Aulakh must accept whatever the Government had done as valid and effectual.The fact that Aulakh successfully challenged the order removing him from the membership as against the Government is of no consequence as Kahla was not bound by that decision. The validity of his appointment was not challenged in the writ petition filed by Aulakh; Kahla was not even made a party to that writ petition. His appointment, therefore, remained unchallenged. That apart, he was functioning as a member of the Tribunal and was participating in the decision of cases. Section 12 (1) of the Act provides for the constitution of one or more Tribunals by the State Government for deciding claims made in accordance with the provisions of the Act. The Tribunal so constituted should consist of a President and two other members appointed by the State Government. Therefore, it was essential that on the removal of Aulakh, there should be an appointment to the vacancy as the business of the Tribunal could not have been carried on without filling the vacancy created by the removal. We, therefore, find it difficult to hold on the ground of practical expediency also that the appointment of Kahla as a member of the Tribunal was void and, therefore, non est in the eye of law. Kahla having been appointed as a member of the Tribunal, he could have been removed only in accordance with the provisions of Section 12 (3)The High Court has considered the question whether the sub-section was in force on the relevant date and its conclusion was that it continued to be operative notwithstanding the purported repeal. The provisions of the sub-section did not contemplate a removal in the contingency created by the facts of the case and so the State Government had no power to remove him under the sub-section. The Tribunal could not have functioned with both of them as members in the teeth of the provisions of Section 12(2). The grounds for dissolution of the Tribunal are not enumerated in the Act. We, therefore, agree with the view of the High Court that the dissolution of the Tribunal was not for a collateral purpose8.We do not think that the notification dissolving the Tribunal abolished any public office of the description specified in the sub-rule. The Tribunal was not abolished. It was only re-constituted. There was no abolition of any public office. Abolition means, to destroy, extinguish, abrogate or annihilate. We, therefore overrule the contention of the counsel. | 0 | 1,706 | 619 | ### Instruction:
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remove a member once appointed except on the grounds specified therein and the fact that the High Court declared that the removal of Aulakh from the membership of the Tribunal was bad would not have warranted the removal of Kahla from the membership of the Tribunal under that provision. To put it differently, the contention of the counsel for the State of Punjab was that S.12(5) provides for all cases of removal of a member of the Tribunal once appointed and since the removal of Kahla would not have been justified on any of the grounds mentioned in that section, the State Government could not have removed him from the membership and, therefore, an impossible situation was created which justified the dissolution of the Tribunal under S.12(1) of the Act. 5. We think that the contention urged on behalf of the State of Punjab must prevail. From the fact that the judgment of the High Court declared that the removal of Aulakh was bad in law, it would not follow that the appointment of Kahla in the vacancy by the removal of the Aulakh was void. Assuming that the appointment was void, it was void only as against Aulakh. There is nothing strange in the notion of the appointment being void as against Aulakh only, for, it was his rights that were affected by the appointment of Kahla and as Aulakh did not challenge the validity of the appointment, the appointment became valid, even on the assumption that it was originally void. The appointment of Kahla, however void in the eyes of a Court will prevail unless Aulakh challenged it successfully. Unless the law upheld the challenge, Aulakh must accept whatever the Government had done as valid and effectual.The fact that Aulakh successfully challenged the order removing him from the membership as against the Government is of no consequence as Kahla was not bound by that decision. The validity of his appointment was not challenged in the writ petition filed by Aulakh; Kahla was not even made a party to that writ petition. His appointment, therefore, remained unchallenged. That apart, he was functioning as a member of the Tribunal and was participating in the decision of cases. Section 12 (1) of the Act provides for the constitution of one or more Tribunals by the State Government for deciding claims made in accordance with the provisions of the Act. The Tribunal so constituted should consist of a President and two other members appointed by the State Government. Therefore, it was essential that on the removal of Aulakh, there should be an appointment to the vacancy as the business of the Tribunal could not have been carried on without filling the vacancy created by the removal. We, therefore, find it difficult to hold on the ground of practical expediency also that the appointment of Kahla as a member of the Tribunal was void and, therefore, non est in the eye of law. Kahla having been appointed as a member of the Tribunal, he could have been removed only in accordance with the provisions of Section 12 (3). That section provides: The local Government may be notification remove any member of a Tribunal, other than the President- (i) If he refused to act or becomes in the opinion of the local Government incapable of acting, or unfit to act, as a member or (ii) If he has absented himself from more than three consecutive meetings of the Tribunal, or (iii) If he is an undischarged insolvent. The High Court has considered the question whether the sub-section was in force on the relevant date and its conclusion was that it continued to be operative notwithstanding the purported repeal. The provisions of the sub-section did not contemplate a removal in the contingency created by the facts of the case and so the State Government had no power to remove him under the sub-section. The Tribunal could not have functioned with both of them as members in the teeth of the provisions of Section 12(2). The grounds for dissolution of the Tribunal are not enumerated in the Act. We, therefore, agree with the view of the High Court that the dissolution of the Tribunal was not for a collateral purpose. 6. The other contention raised by Mr. Garg to the validity of the notification dissolving the Tribunal was that the notification dissolving the Tribunal was that the notification was issued by S. K. Chibber, Secretary, Home Department, and not by the Governor. 7. At the relevant time, Punjab was under the Presidents Rule and according to Mr. Garg, the only person competent to issue the notification in question was the Governor. In support of this contention, he relied upon the Governors Secretariat Order dated July 6, 1966, which allocated the business of the Government among various functionaries. In paragraph 3 of that Order, it was provided that the Secretaries to the Government would dispose of the business relating to their respective Departments except cases which, under the Rules of Business of the Government of Punjab, 1953, were required to be submitted to the Governor, the Council of Ministers or the Chief Minister, and as the business in question should have been submitted to the Chief Minister before issuing orders, the Governor alone was competent to sanction the issue of the notification. Counsel relied on Rule 26, sub-rule (1) (xxii) of the Rules of Business which reads: 28 (1) The following classes of cases shall be submitted to the Chief Minister before the issue of orders: (xxii) Proposals for the creation, for a period exceeding six months or abolition of any public office, the maximum remuneration of which is between Rs.800 and Rs.2,000/-. 8.We do not think that the notification dissolving the Tribunal abolished any public office of the description specified in the sub-rule. The Tribunal was not abolished. It was only re-constituted. There was no abolition of any public office. Abolition means, to destroy, extinguish, abrogate or annihilate. We, therefore overrule the contention of the counsel.
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5. We think that the contention urged on behalf of the State of Punjab must prevail. From the fact that the judgment of the High Court declared that the removal of Aulakh was bad in law, it would not follow that the appointment of Kahla in the vacancy by the removal of the Aulakh was void. Assuming that the appointment was void, it was void only as against Aulakh. There is nothing strange in the notion of the appointment being void as against Aulakh only, for, it was his rights that were affected by the appointment of Kahla and as Aulakh did not challenge the validity of the appointment, the appointment became valid, even on the assumption that it was originally void. The appointment of Kahla, however void in the eyes of a Court will prevail unless Aulakh challenged it successfully. Unless the law upheld the challenge, Aulakh must accept whatever the Government had done as valid and effectual.The fact that Aulakh successfully challenged the order removing him from the membership as against the Government is of no consequence as Kahla was not bound by that decision. The validity of his appointment was not challenged in the writ petition filed by Aulakh; Kahla was not even made a party to that writ petition. His appointment, therefore, remained unchallenged. That apart, he was functioning as a member of the Tribunal and was participating in the decision of cases. Section 12 (1) of the Act provides for the constitution of one or more Tribunals by the State Government for deciding claims made in accordance with the provisions of the Act. The Tribunal so constituted should consist of a President and two other members appointed by the State Government. Therefore, it was essential that on the removal of Aulakh, there should be an appointment to the vacancy as the business of the Tribunal could not have been carried on without filling the vacancy created by the removal. We, therefore, find it difficult to hold on the ground of practical expediency also that the appointment of Kahla as a member of the Tribunal was void and, therefore, non est in the eye of law. Kahla having been appointed as a member of the Tribunal, he could have been removed only in accordance with the provisions of Section 12 (3)The High Court has considered the question whether the sub-section was in force on the relevant date and its conclusion was that it continued to be operative notwithstanding the purported repeal. The provisions of the sub-section did not contemplate a removal in the contingency created by the facts of the case and so the State Government had no power to remove him under the sub-section. The Tribunal could not have functioned with both of them as members in the teeth of the provisions of Section 12(2). The grounds for dissolution of the Tribunal are not enumerated in the Act. We, therefore, agree with the view of the High Court that the dissolution of the Tribunal was not for a collateral purpose8.We do not think that the notification dissolving the Tribunal abolished any public office of the description specified in the sub-rule. The Tribunal was not abolished. It was only re-constituted. There was no abolition of any public office. Abolition means, to destroy, extinguish, abrogate or annihilate. We, therefore overrule the contention of the counsel.
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SHANTABEN Vs. NATIONAL POWER TRANSPORT | process of assessment of the amount of compensation. In this regard, the Tribunal found that the flour mill in question belonged to the father of the deceased and no documentary evidence (like income tax returns or books of accounts etc.) as regards income of the deceased was adduced to substantiate the claim as made but, on an overall appreciation of the evidence on record, the Tribunal observed that the deceased was running the flour mill in the capacity of a manager and put an estimate on the gross earning of the deceased at Rs. 3,000/- p.m. However, the Tribunal provided for the elements of share of the father of deceased as also the expenditure on maintenance etc. and took the income of the deceased at Rs. 1462.50 p.m. and then, while making a few observations regarding inflationary trend of economy and prospective increase in income of the deceased, finally assessed his income at Rs. 1,800/- p.m.. Thereafter, the Tribunal deducted 1/3 rd on the personal expenses and hence, took the loss of dependency for the claimants at Rs. 1,200/- per month i.e., Rs. 14,400/- per annum. The Tribunal applied the multiplier of 20 and in this manner, ultimately awarded Rs. 2,88,000/- towards pecuniary loss. With addition of Rs. 12,000/- towards conventional heads, the Tribunal awarded a total sum of Rs. 3,00,000/- towards compensation to the claimants together with interest @ 12% per annum from the date of filing the claim application.(d) Against the award so made by the Tribunal, the claimants preferred an appeal before the High Court of Gujarat, seeking enhancement of compensation. It is noticed, as per the submissions made, that the parents of the deceased Shri Narshibhai Dhanji Sathwara expired during the pendency of the said appeal. The High Court, in its impugned judgment dated 14.03.2018, took the view that the Tribunal had calculated the income of the deceased rather on the higher side and found it not justified to provide for any enhancement. Hence this appeal. 5. Assailing the impugned judgment of the High Court, learned counsel for the appellants has strenuously argued that the High Court has erred in not applying the principles enunciated in Pranay Sethi?s case (supra) as also in the case of Magma General Insurance Co. Ltd. V. Nanu Ram: 2018 SCC Online SC 1546 and in not awarding just compensation in this case. Per contra, learned counsel for the contesting respondent has duly supported the judgment of the High Court. 6. We have heard learned counsel for the parties and have examined the record with reference to the law applicable.7. In a comprehension of the award made by the Tribunal as also the judgment passed by the High Court, we are constrained to observe that the process of assessment of compensation in the present case had been too uncertain, rather vague, and unreasonably restrictive; and the amount as awarded to the appellants cannot be said to be that of just compensation. The Tribunal in the first place took the gross income of the deceased at Rs. 3,000/- p.m. and thereafter, deducted 15% as return of investment to the father of the deceased and further deducted 35% towards maintenance and break down etc., and estimated his income at Rs. 1462.50 p.m. and then, with reference to inflationary trends of economy and prospective increase in income, took it at Rs. 1,800/- p.m.; and after deduction of 1/3 rd on personal expenses, finally assessed the loss of dependency at Rs. 1,200/- p.m. The Tribunal, thereafter, applied the multiplier of 20 and in this manner, awarded Rs. 2,88,000/- towards pecuniary loss. The High Court proceeded in a moreover cursory manner by observing that the Tribunal had taken the income of deceased at Rs. 3,000/- p.m. and considered it to be rather on the higher side for the year 1987 while referring to the salary in other employments; and for this reason, the High Court found it not justified to allow any enhancement. Obvious it is that the considerations of the Tribunal as also of the High Court have gone too astray and the matter calls for interference. However, as observed, notice in the present case has been issued only on the question of consideration of future prospects.8. As regards making a reasonable provision towards future prospects of enhancement in the income of the deceased, in this case, where the deceased was self-employed and was 23 years of age, an addition of 40% of the established income is required to be provided in view of the decision in Praney Sethi (supra). Further, for determination of multiplicand, it is noticed that the deceased had left behind his wife, mother and two minor sisters apart from his father. Even if father of the deceased is not taken as dependent, it appears reasonable to take the number of his dependents as 4 and to provide for deduction of 1/4 th for personal and living expenses. The deceased being 23 years of age and in the overall circumstances, multiplier of 18 would be appropriate in the present case.9. Hence, even while taking the estimated income of the deceased at Rs. 1,800/- p.m. as assessed by the Tribunal and providing for 40% enhancement towards future prospects, the expected income of the deceased is taken at Rs. 2,520/- p.m and, after deducting 1/4 th towards personal expenses, the loss of income for the claimants comes to Rs. 1,890/- p.m. i.e., Rs. 22,680/- per annum; and further, with application of multiplier of 18, the final figure towards loss of dependency comes to Rs. 4,08,240/- (22,680 x 18). The Tribunal, on this score, has awarded a sum of Rs. 2,88,000/- only. The claimants-appellants, therefore, would be entitled to further an amount of Rs. 1,20,240/-.9.1 As noticed, the accident in question took place in the year 1987. The parents of the deceased had expired during the pendency of appeal before the High Court and the claimants-appellants in this appeal are the wife (appellant No. 1) and sisters (appellant Nos. 2 and 3) of the deceased. | 1[ds]7. In a comprehension of the award made by the Tribunal as also the judgment passed by the High Court, we are constrained to observe that the process of assessment of compensation in the present case had been too uncertain, rather vague, and unreasonably restrictive; and the amount as awarded to the appellants cannot be said to be that of just compensation. The Tribunal in the first place took the gross income of the deceased at Rs. 3,000/- p.m. and thereafter, deducted 15% as return of investment to the father of the deceased and further deducted 35% towards maintenance and break down etc., and estimated his income at Rs. 1462.50 p.m. and then, with reference to inflationary trends of economy and prospective increase in income, took it at Rs. 1,800/- p.m.; and after deduction of 1/3 rd on personal expenses, finally assessed the loss of dependency at Rs. 1,200/- p.m. The Tribunal, thereafter, applied the multiplier of 20 and in this manner, awarded Rs. 2,88,000/- towards pecuniary loss. The High Court proceeded in a moreover cursory manner by observing that the Tribunal had taken the income of deceased at Rs. 3,000/- p.m. and considered it to be rather on the higher side for the year 1987 while referring to the salary in other employments; and for this reason, the High Court found it not justified to allow any enhancement. Obvious it is that the considerations of the Tribunal as also of the High Court have gone too astray and the matter calls for interference. However, as observed, notice in the present case has been issued only on the question of consideration of future prospects.8. As regards making a reasonable provision towards future prospects of enhancement in the income of the deceased, in this case, where the deceased was self-employed and was 23 years of age, an addition of 40% of the established income is required to be provided in view of the decision in Praney Sethi (supra). Further, for determination of multiplicand, it is noticed that the deceased had left behind his wife, mother and two minor sisters apart from his father. Even if father of the deceased is not taken as dependent, it appears reasonable to take the number of his dependents as 4 and to provide for deduction of 1/4 th for personal and living expenses. The deceased being 23 years of age and in the overall circumstances, multiplier of 18 would be appropriate in the present case.9. Hence, even while taking the estimated income of the deceased at Rs. 1,800/- p.m. as assessed by the Tribunal and providing for 40% enhancement towards future prospects, the expected income of the deceased is taken at Rs. 2,520/- p.m and, after deducting 1/4 th towards personal expenses, the loss of income for the claimants comes to Rs. 1,890/- p.m. i.e., Rs. 22,680/- per annum; and further, with application of multiplier of 18, the final figure towards loss of dependency comes to Rs. 4,08,240/- (22,680 x 18). The Tribunal, on this score, has awarded a sum of Rs. 2,88,000/- only. The claimants-appellants, therefore, would be entitled to further an amount of Rs. 1,20,240/-.9.1 As noticed, the accident in question took place in the year 1987. The parents of the deceased had expired during the pendency of appeal before the High Court and the claimants-appellants in this appeal are the wife (appellant No. 1) and sisters (appellant Nos. 2 and 3) of the deceased. | 1 | 1,567 | 658 | ### Instruction:
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process of assessment of the amount of compensation. In this regard, the Tribunal found that the flour mill in question belonged to the father of the deceased and no documentary evidence (like income tax returns or books of accounts etc.) as regards income of the deceased was adduced to substantiate the claim as made but, on an overall appreciation of the evidence on record, the Tribunal observed that the deceased was running the flour mill in the capacity of a manager and put an estimate on the gross earning of the deceased at Rs. 3,000/- p.m. However, the Tribunal provided for the elements of share of the father of deceased as also the expenditure on maintenance etc. and took the income of the deceased at Rs. 1462.50 p.m. and then, while making a few observations regarding inflationary trend of economy and prospective increase in income of the deceased, finally assessed his income at Rs. 1,800/- p.m.. Thereafter, the Tribunal deducted 1/3 rd on the personal expenses and hence, took the loss of dependency for the claimants at Rs. 1,200/- per month i.e., Rs. 14,400/- per annum. The Tribunal applied the multiplier of 20 and in this manner, ultimately awarded Rs. 2,88,000/- towards pecuniary loss. With addition of Rs. 12,000/- towards conventional heads, the Tribunal awarded a total sum of Rs. 3,00,000/- towards compensation to the claimants together with interest @ 12% per annum from the date of filing the claim application.(d) Against the award so made by the Tribunal, the claimants preferred an appeal before the High Court of Gujarat, seeking enhancement of compensation. It is noticed, as per the submissions made, that the parents of the deceased Shri Narshibhai Dhanji Sathwara expired during the pendency of the said appeal. The High Court, in its impugned judgment dated 14.03.2018, took the view that the Tribunal had calculated the income of the deceased rather on the higher side and found it not justified to provide for any enhancement. Hence this appeal. 5. Assailing the impugned judgment of the High Court, learned counsel for the appellants has strenuously argued that the High Court has erred in not applying the principles enunciated in Pranay Sethi?s case (supra) as also in the case of Magma General Insurance Co. Ltd. V. Nanu Ram: 2018 SCC Online SC 1546 and in not awarding just compensation in this case. Per contra, learned counsel for the contesting respondent has duly supported the judgment of the High Court. 6. We have heard learned counsel for the parties and have examined the record with reference to the law applicable.7. In a comprehension of the award made by the Tribunal as also the judgment passed by the High Court, we are constrained to observe that the process of assessment of compensation in the present case had been too uncertain, rather vague, and unreasonably restrictive; and the amount as awarded to the appellants cannot be said to be that of just compensation. The Tribunal in the first place took the gross income of the deceased at Rs. 3,000/- p.m. and thereafter, deducted 15% as return of investment to the father of the deceased and further deducted 35% towards maintenance and break down etc., and estimated his income at Rs. 1462.50 p.m. and then, with reference to inflationary trends of economy and prospective increase in income, took it at Rs. 1,800/- p.m.; and after deduction of 1/3 rd on personal expenses, finally assessed the loss of dependency at Rs. 1,200/- p.m. The Tribunal, thereafter, applied the multiplier of 20 and in this manner, awarded Rs. 2,88,000/- towards pecuniary loss. The High Court proceeded in a moreover cursory manner by observing that the Tribunal had taken the income of deceased at Rs. 3,000/- p.m. and considered it to be rather on the higher side for the year 1987 while referring to the salary in other employments; and for this reason, the High Court found it not justified to allow any enhancement. Obvious it is that the considerations of the Tribunal as also of the High Court have gone too astray and the matter calls for interference. However, as observed, notice in the present case has been issued only on the question of consideration of future prospects.8. As regards making a reasonable provision towards future prospects of enhancement in the income of the deceased, in this case, where the deceased was self-employed and was 23 years of age, an addition of 40% of the established income is required to be provided in view of the decision in Praney Sethi (supra). Further, for determination of multiplicand, it is noticed that the deceased had left behind his wife, mother and two minor sisters apart from his father. Even if father of the deceased is not taken as dependent, it appears reasonable to take the number of his dependents as 4 and to provide for deduction of 1/4 th for personal and living expenses. The deceased being 23 years of age and in the overall circumstances, multiplier of 18 would be appropriate in the present case.9. Hence, even while taking the estimated income of the deceased at Rs. 1,800/- p.m. as assessed by the Tribunal and providing for 40% enhancement towards future prospects, the expected income of the deceased is taken at Rs. 2,520/- p.m and, after deducting 1/4 th towards personal expenses, the loss of income for the claimants comes to Rs. 1,890/- p.m. i.e., Rs. 22,680/- per annum; and further, with application of multiplier of 18, the final figure towards loss of dependency comes to Rs. 4,08,240/- (22,680 x 18). The Tribunal, on this score, has awarded a sum of Rs. 2,88,000/- only. The claimants-appellants, therefore, would be entitled to further an amount of Rs. 1,20,240/-.9.1 As noticed, the accident in question took place in the year 1987. The parents of the deceased had expired during the pendency of appeal before the High Court and the claimants-appellants in this appeal are the wife (appellant No. 1) and sisters (appellant Nos. 2 and 3) of the deceased.
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7. In a comprehension of the award made by the Tribunal as also the judgment passed by the High Court, we are constrained to observe that the process of assessment of compensation in the present case had been too uncertain, rather vague, and unreasonably restrictive; and the amount as awarded to the appellants cannot be said to be that of just compensation. The Tribunal in the first place took the gross income of the deceased at Rs. 3,000/- p.m. and thereafter, deducted 15% as return of investment to the father of the deceased and further deducted 35% towards maintenance and break down etc., and estimated his income at Rs. 1462.50 p.m. and then, with reference to inflationary trends of economy and prospective increase in income, took it at Rs. 1,800/- p.m.; and after deduction of 1/3 rd on personal expenses, finally assessed the loss of dependency at Rs. 1,200/- p.m. The Tribunal, thereafter, applied the multiplier of 20 and in this manner, awarded Rs. 2,88,000/- towards pecuniary loss. The High Court proceeded in a moreover cursory manner by observing that the Tribunal had taken the income of deceased at Rs. 3,000/- p.m. and considered it to be rather on the higher side for the year 1987 while referring to the salary in other employments; and for this reason, the High Court found it not justified to allow any enhancement. Obvious it is that the considerations of the Tribunal as also of the High Court have gone too astray and the matter calls for interference. However, as observed, notice in the present case has been issued only on the question of consideration of future prospects.8. As regards making a reasonable provision towards future prospects of enhancement in the income of the deceased, in this case, where the deceased was self-employed and was 23 years of age, an addition of 40% of the established income is required to be provided in view of the decision in Praney Sethi (supra). Further, for determination of multiplicand, it is noticed that the deceased had left behind his wife, mother and two minor sisters apart from his father. Even if father of the deceased is not taken as dependent, it appears reasonable to take the number of his dependents as 4 and to provide for deduction of 1/4 th for personal and living expenses. The deceased being 23 years of age and in the overall circumstances, multiplier of 18 would be appropriate in the present case.9. Hence, even while taking the estimated income of the deceased at Rs. 1,800/- p.m. as assessed by the Tribunal and providing for 40% enhancement towards future prospects, the expected income of the deceased is taken at Rs. 2,520/- p.m and, after deducting 1/4 th towards personal expenses, the loss of income for the claimants comes to Rs. 1,890/- p.m. i.e., Rs. 22,680/- per annum; and further, with application of multiplier of 18, the final figure towards loss of dependency comes to Rs. 4,08,240/- (22,680 x 18). The Tribunal, on this score, has awarded a sum of Rs. 2,88,000/- only. The claimants-appellants, therefore, would be entitled to further an amount of Rs. 1,20,240/-.9.1 As noticed, the accident in question took place in the year 1987. The parents of the deceased had expired during the pendency of appeal before the High Court and the claimants-appellants in this appeal are the wife (appellant No. 1) and sisters (appellant Nos. 2 and 3) of the deceased.
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Messrs. Howrah Trading Co., Ltd, Vs. The Commissioner Of Income-Tax, Calcutta | the expression "shareholder or "holder of a share" in so far as that Act is concerned, denotes no other person except a "member." The question that arises in the present case is whether by reason of Ss. 16(2) and 18(5) the assessee, who was a transferee on a blank transfer is entitled to the benefits of the grossing up of the dividend income. Learned counsel for the assessed strenuously contends that the assessee being an owner in equity of the shares and thus also of the dividend is entitled to this benefit. He refers to the use of the word assessee in S. 16(2). The Department, on the other hand, says that the dividend can be increased under S. 16(2) and credit allowed under S. 18(5) if the assessee is a shareholder, because the benefit of S. 18(5) can go only to the shareholder, i.e., a person with his name on the register of members, and not to a person holding an equity, against such shareholder. The assessee contends that the word "shareholder" includes even a person who holds a share as a result of a blank transfer, and does not necessarily mean a member of the company, whose name is on the register of members.12. Authorities on this point are not wanting, and indeed, in the judgment of the Calcutta High Court they have all been referred to. They are all against the assessee. See Shree Shakti Mills Ltd. v. Commissioner of Income-tax, 1948-16 ITR 187 : (AIR 1948 Bom 394 ), Jaluram Bhikulal Firm v. Commissioner of Income-tax, 1952-22 ITR 490: (AIR 1953 Nag 187); Arvind M. Mafatlal v. Income-tax Officer, North Satara, 1957-32 ITR 350 : ((S) AIR 1957 Bom 134 ) and Bikaner Trading Co., Calcutta v. Commissioner of Income-tax, 1953-24 ITR 419 (Cal).13. The question that falls for consideration is whether the meaning given to the expression "shareholder" used in S. 18(5) of the Act by these cases is correct.No valid reason exists why "shareholder" as used in S. 18(5) should mean a person other than the one denoted by the same expression in the Indian Companies Act, 1913.In In re, Wala Wynaad Indian Gold Mining Co-, 1882-21 Ch D 849 at p. 854, Chitty, J. observed:"I use now myself the term which is common in the Courts, a shareholder, that means the holder of the shares. It is the common term used, and only means the person who holds the shares by having his name on the register."Learned counsel for the assessee cited a number of authorities in which the ownership of the dividend was in question, and it was old that the transferee whose name was not registered, was entitled to the dividend after transfer had been made. These cases are Commissioners of Inland Revenue v. Sir John Oakley, 1925-9 Tay Cas 582; Spence v. Commissioners of Inland Revenue, (1941) 24 Tax Cas 311 and others cited at page 367 in Multipar Syndicate, Ltd. v. Devitt, 1945-26 Tax Cas 359.14. No one can doubt the correctness of the proposition in these cases, but from an equitable right to compel the transferor to give up the dividend to the transferee, to a claim to the dividend by him as a "shareholder" against the Company is a, wide jump.In so far as the company is concerned, it does not even issue the certificate under S. 20 of the Income-tax Act in the name of an unregistered transferee but only in the name of the transferor whom it recognises, because his name is borne on its books. Section 20 lays down:"The principal officer of every company shall, at the time of distribution of dividends, furnish to every person receiving dividend a certificate to the effect that the company has paid or will pay income-tax on the profits which are being distributed, and specifying such other particulars as may be prescribed."The meaning of S. 20 as also of S. 18(5) is clear if they are read with S. 19A, under which information regarding dividends has to be supplied by the company when demanded by the Income-tax Officer. It lays down;"The principal officer of every company.... shall, on or before the 15th day of June in each year, furnish to the prescribed officer a return in the prescribed form and verified in the prescribe manner of the names and of the addresses, as entered in the register of shareholders maintained by the company, of the shareholders to whom a dividend or aggregate dividends exceeding such amount as may be prescribed in this behalf has or have been distributed during the preceding year and of the amount so distributed to each such shareholder." (Italics (here in ) supplied).Section 19-A makes it clear, if any doubt existed, that by the term "shareholder" is meant the person whose name and address are entered in the register of "shareholders" maintained by the company. There is but one register maintained by the Company. There is no separate register of "shareholders" such as the assessee claims to be but only a register of "members". This takes us immediately to the register of members, and demonstrates that even for the purpose of the Indian Income-tax Act, the words "member" and "shareholder" can be read synonymous.15. The words of S. 18(5) must accordingly be read in the light in which the word "shareholder" has been used in the subsequent sections, and read in that manner, the present assessee, notwithstanding the equitable right to the dividend, was not entitled to be regarded as a "shareholder" for the purpose of S. 18(5) of the Act. That benefit can only go to the person who, both in law and in equity, is to be regarded as the owner of the shares and between whom and the company exists the bond of membership and ownership of a share in the share capital of the company.16. In view of this, we are satisfied that the answer given by the Calcutta High Court on the question posed by the Tribunal was correct. | 0[ds]14. No one can doubt the correctness of the proposition in these cases, but from an equitable right to compel the transferor to give up the dividend to the transferee, to a claim to the dividend by him as a "shareholder" against the Company is a, wide jump.In so far as the company is concerned, it does not even issue the certificate under S. 20 of the Income-tax Act in the name of an unregistered transferee but only in the name of the transferor whom it recognises, because his name is borne on its books. Section 20 laysprincipal officer of every company shall, at the time of distribution of dividends, furnish to every person receiving dividend a certificate to the effect that the company has paid or will pay income-tax on the profits which are being distributed, and specifying such other particulars as may bemeaning of S. 20 as also of S. 18(5) is clear if they are read with S. 19A, under which information regarding dividends has to be supplied by the company when demanded by the Income-tax Officer. It laysprincipal officer of every company.... shall, on or before the 15th day of June in each year, furnish to the prescribed officer a return in the prescribed form and verified in the prescribe manner of the names and of the addresses, as entered in the register of shareholders maintained by the company, of the shareholders to whom a dividend or aggregate dividends exceeding such amount as may be prescribed in this behalf has or have been distributed during the preceding year and of the amount so distributed to each such shareholder." (Italics (here in )19-A makes it clear, if any doubt existed, that by the term "shareholder" is meant the person whose name and address are entered in the register of "shareholders" maintained by the company. There is but one register maintained by the Company. There is no separate register of "shareholders" such as the assessee claims to be but only a register of "members". This takes us immediately to the register of members, and demonstrates that even for the purpose of the Indian Income-tax Act, the words "member" and "shareholder" can be read synonymous.15. The words of S. 18(5) must accordingly be read in the light in which the word "shareholder" has been used in the subsequent sections, and read in that manner, the present assessee, notwithstanding the equitable right to the dividend, was not entitled to be regarded as a "shareholder" for the purpose of S. 18(5) of the Act. That benefit can only go to the person who, both in law and in equity, is to be regarded as the owner of the shares and between whom and the company exists the bond of membership and ownership of a share in the share capital of the company. | 0 | 3,750 | 540 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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the expression "shareholder or "holder of a share" in so far as that Act is concerned, denotes no other person except a "member." The question that arises in the present case is whether by reason of Ss. 16(2) and 18(5) the assessee, who was a transferee on a blank transfer is entitled to the benefits of the grossing up of the dividend income. Learned counsel for the assessed strenuously contends that the assessee being an owner in equity of the shares and thus also of the dividend is entitled to this benefit. He refers to the use of the word assessee in S. 16(2). The Department, on the other hand, says that the dividend can be increased under S. 16(2) and credit allowed under S. 18(5) if the assessee is a shareholder, because the benefit of S. 18(5) can go only to the shareholder, i.e., a person with his name on the register of members, and not to a person holding an equity, against such shareholder. The assessee contends that the word "shareholder" includes even a person who holds a share as a result of a blank transfer, and does not necessarily mean a member of the company, whose name is on the register of members.12. Authorities on this point are not wanting, and indeed, in the judgment of the Calcutta High Court they have all been referred to. They are all against the assessee. See Shree Shakti Mills Ltd. v. Commissioner of Income-tax, 1948-16 ITR 187 : (AIR 1948 Bom 394 ), Jaluram Bhikulal Firm v. Commissioner of Income-tax, 1952-22 ITR 490: (AIR 1953 Nag 187); Arvind M. Mafatlal v. Income-tax Officer, North Satara, 1957-32 ITR 350 : ((S) AIR 1957 Bom 134 ) and Bikaner Trading Co., Calcutta v. Commissioner of Income-tax, 1953-24 ITR 419 (Cal).13. The question that falls for consideration is whether the meaning given to the expression "shareholder" used in S. 18(5) of the Act by these cases is correct.No valid reason exists why "shareholder" as used in S. 18(5) should mean a person other than the one denoted by the same expression in the Indian Companies Act, 1913.In In re, Wala Wynaad Indian Gold Mining Co-, 1882-21 Ch D 849 at p. 854, Chitty, J. observed:"I use now myself the term which is common in the Courts, a shareholder, that means the holder of the shares. It is the common term used, and only means the person who holds the shares by having his name on the register."Learned counsel for the assessee cited a number of authorities in which the ownership of the dividend was in question, and it was old that the transferee whose name was not registered, was entitled to the dividend after transfer had been made. These cases are Commissioners of Inland Revenue v. Sir John Oakley, 1925-9 Tay Cas 582; Spence v. Commissioners of Inland Revenue, (1941) 24 Tax Cas 311 and others cited at page 367 in Multipar Syndicate, Ltd. v. Devitt, 1945-26 Tax Cas 359.14. No one can doubt the correctness of the proposition in these cases, but from an equitable right to compel the transferor to give up the dividend to the transferee, to a claim to the dividend by him as a "shareholder" against the Company is a, wide jump.In so far as the company is concerned, it does not even issue the certificate under S. 20 of the Income-tax Act in the name of an unregistered transferee but only in the name of the transferor whom it recognises, because his name is borne on its books. Section 20 lays down:"The principal officer of every company shall, at the time of distribution of dividends, furnish to every person receiving dividend a certificate to the effect that the company has paid or will pay income-tax on the profits which are being distributed, and specifying such other particulars as may be prescribed."The meaning of S. 20 as also of S. 18(5) is clear if they are read with S. 19A, under which information regarding dividends has to be supplied by the company when demanded by the Income-tax Officer. It lays down;"The principal officer of every company.... shall, on or before the 15th day of June in each year, furnish to the prescribed officer a return in the prescribed form and verified in the prescribe manner of the names and of the addresses, as entered in the register of shareholders maintained by the company, of the shareholders to whom a dividend or aggregate dividends exceeding such amount as may be prescribed in this behalf has or have been distributed during the preceding year and of the amount so distributed to each such shareholder." (Italics (here in ) supplied).Section 19-A makes it clear, if any doubt existed, that by the term "shareholder" is meant the person whose name and address are entered in the register of "shareholders" maintained by the company. There is but one register maintained by the Company. There is no separate register of "shareholders" such as the assessee claims to be but only a register of "members". This takes us immediately to the register of members, and demonstrates that even for the purpose of the Indian Income-tax Act, the words "member" and "shareholder" can be read synonymous.15. The words of S. 18(5) must accordingly be read in the light in which the word "shareholder" has been used in the subsequent sections, and read in that manner, the present assessee, notwithstanding the equitable right to the dividend, was not entitled to be regarded as a "shareholder" for the purpose of S. 18(5) of the Act. That benefit can only go to the person who, both in law and in equity, is to be regarded as the owner of the shares and between whom and the company exists the bond of membership and ownership of a share in the share capital of the company.16. In view of this, we are satisfied that the answer given by the Calcutta High Court on the question posed by the Tribunal was correct.
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14. No one can doubt the correctness of the proposition in these cases, but from an equitable right to compel the transferor to give up the dividend to the transferee, to a claim to the dividend by him as a "shareholder" against the Company is a, wide jump.In so far as the company is concerned, it does not even issue the certificate under S. 20 of the Income-tax Act in the name of an unregistered transferee but only in the name of the transferor whom it recognises, because his name is borne on its books. Section 20 laysprincipal officer of every company shall, at the time of distribution of dividends, furnish to every person receiving dividend a certificate to the effect that the company has paid or will pay income-tax on the profits which are being distributed, and specifying such other particulars as may bemeaning of S. 20 as also of S. 18(5) is clear if they are read with S. 19A, under which information regarding dividends has to be supplied by the company when demanded by the Income-tax Officer. It laysprincipal officer of every company.... shall, on or before the 15th day of June in each year, furnish to the prescribed officer a return in the prescribed form and verified in the prescribe manner of the names and of the addresses, as entered in the register of shareholders maintained by the company, of the shareholders to whom a dividend or aggregate dividends exceeding such amount as may be prescribed in this behalf has or have been distributed during the preceding year and of the amount so distributed to each such shareholder." (Italics (here in )19-A makes it clear, if any doubt existed, that by the term "shareholder" is meant the person whose name and address are entered in the register of "shareholders" maintained by the company. There is but one register maintained by the Company. There is no separate register of "shareholders" such as the assessee claims to be but only a register of "members". This takes us immediately to the register of members, and demonstrates that even for the purpose of the Indian Income-tax Act, the words "member" and "shareholder" can be read synonymous.15. The words of S. 18(5) must accordingly be read in the light in which the word "shareholder" has been used in the subsequent sections, and read in that manner, the present assessee, notwithstanding the equitable right to the dividend, was not entitled to be regarded as a "shareholder" for the purpose of S. 18(5) of the Act. That benefit can only go to the person who, both in law and in equity, is to be regarded as the owner of the shares and between whom and the company exists the bond of membership and ownership of a share in the share capital of the company.
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U. Ponnappa Moothan Sons, Palghat Vs. Catholic Syrian Bank Ltd. And Others | the customer account does not by itself alter his position but that however is a question of fact in each case namely whether there was such a contract express or implied that the customer should be entitled to draw against the amount of cheque before it is cleared. ( 15. ) In A. L. Underwood Ltd. v. Bank of Liverpool and Martins, Same v. Barclays Bank (1924) All ER (Reprint) 230 at page 241, Atkin, LJ dealing with the protection that can be availed by a banker in such case, observed as under: "It is sufficient to say that the mere fact that the bank, in their books, enter the value of the cheques on the credit side of the account on the day on which they receive the cheques for collection does not, without more, constitute the bank a holder for value. To constitute value there must be in such a case a contract between banker and customer, express or implied, that the bank will, before receipt of the proceeds, honour cheques of the customer drawn against the cheques. Such a contract can be established by course of business and may be established by entry in the customers pass book, communicated to the customer and acted upon by him. Here there is no evidence of any, such contract." (Emphasis supplied) To the same effect is the ratio laid down in Baker v. Barclays Bank Ltd. (1955) 2 All ER 571. After applying the dictum of Atkin, LJ in Underwoods case, it is observed therein that "it was not enough to show merely that the bank had entered the value of the cheques on the credit side of the account on which the bank received the cheques. To constitute value there must be in such a case a contract between banker and customer, express or , implied, that the bank will before receipt of the proceeds honour cheques of the customer drawn against the cheques." ( 16. ) We find another passage in the above decision at page 581 which reads thus: "What is suggested is that the bank did not give value, and the question arises which often arises in cases of this sort, namely, whether, when a cheque is given to a bank in these circumstances, the bank takes the cheque giving value for it, and then becoming a holder in due course, or whether the bank takes the cheque merely to collect the amount of the cheque for someone else. That is a question of fact. The true relationship has to be inferred from the acts of the parties." (Emphasis supplied) ( 17. ) From the above discussion it emerges that the Indian definition imposes a more stringent condition on the holder in due course than the English definition and as the learned authors have noted the definition is based on Gills case (1824 (107) ER 806). Under the Indian law, a holder, to be a holder in due course, must not only have acquired the bill, note or cheque for valid consideration but should have acquired the cheque without having sufficient cause to believe that any defect existed in the title of the person from whom he derived his title. This condition requires that he should act in good faith and with reasonable caution. However, mere failure to prove bona fide or absence of negligence on his part would not negative his claim. But in a given case it is left to the Court to decide whether the negligence on part of the holder is so gross and extraordinary as to presume that he had sufficient cause to believe that such title was defective. However, when the presumption in his favour as provided under S. 118(g) gets rebutted under the circumstances mentioned therein then the burden of proving that he is a holder in due course lies upon him. In a given case, the Court. while examining these requirements including valid consideration must also go into the question whether there was a contract express or implied for crediting the proceeds to the account of the bearer before receiving the same. The enquiry regarding the satisfaction of this requirement invariably depends upon the facts and circumstances in each case. The words "without having sufficient cause to believe" have to be understood in this back-ground. ( 18. ) In the instant case there is sufficient evidence establishing the fact that the defendants were allowed credit facilities up to a limit of Rs. 35,00,000.00 by the Bank and this fact is not in dispute. The pledging of the title deed by 5th defendant of her properties with the Bank with an intention to create an equitable mortgage to secure the repayment of the amounts due from Ist defendant and the fact that a pronote for an amount of Rs. 35,00,000.00 executed by defendants Nos. 2 to 4 in favour of the 5th defendant was endorsed in favour of the plaintiff Bank would establish that there was an express contract for providing the credit facilities. It should therefore necessarily be inferred that there is also an implied contract to credit the proceeds of the cheques in favour of defendant No. 1 to his account before actually receiving them. As a question of fact this aspect is established by the evidence on record. In such a situation the plaintiff need not make enquiries about the transactions of supply of goods etc. that were going on between defendants Nos. 1 and 6. Even if defendant No. 1 has not supplied the goods in respect of which the cheque in question were issued by defendant No. 6 there was no cause at any rate sufficient cause for the plaintiff to doubt the title of defendant No. 1 nor can it be said that the plaintiff acted negligently disregarding red flag raising suspicion. Viewed from this background it cannot be said that there was sufficient cause to doubt the title nor there is scope to infer gross negligence on the part of the plaintiff. | 0[ds]The above two passages indicate that the Banker who is asked to collect a cheque can credit the customer with the amount before the proceeds are received and if he has acted in good faith he has the necessary statutory protection and crediting the customer account does not by itself alter his position but that however is a question of fact in each case namely whether there was such a contract express or implied that the customer should be entitled to draw against the amount of cheque before it is16. ) We find another passage in the above decision at page 581 which reads thus:"What is suggested is that the bank did not give value, and the question arises which often arises in cases of this sort, namely, whether, when a cheque is given to a bank in these circumstances, the bank takes the cheque giving value for it, and then becoming a holder in due course, or whether the bank takes the cheque merely to collect the amount of the cheque for someone else. That is a question of fact. The true relationship has to be inferred from the acts of the parties." (Emphasis17. ) From the above discussion it emerges that the Indian definition imposes a more stringent condition on the holder in due course than the English definition and as the learned authors have noted the definition is based on Gills case (1824 (107) ER 806). Under the Indian law, a holder, to be a holder in due course, must not only have acquired the bill, note or cheque for valid consideration but should have acquired the cheque without having sufficient cause to believe that any defect existed in the title of the person from whom he derived his title. This condition requires that he should act in good faith and with reasonable caution. However, mere failure to prove bona fide or absence of negligence on his part would not negative his claim. But in a given case it is left to the Court to decide whether the negligence on part of the holder is so gross and extraordinary as to presume that he had sufficient cause to believe that such title was defective. However, when the presumption in his favour as provided under S. 118(g) gets rebutted under the circumstances mentioned therein then the burden of proving that he is a holder in due course lies upon him. In a given case, the Court. while examining these requirements including valid consideration must also go into the question whether there was a contract express or implied for crediting the proceeds to the account of the bearer before receiving the same. The enquiry regarding the satisfaction of this requirement invariably depends upon the facts and circumstances in each case. The words "without having sufficient cause to believe" have to be understood in this18. ) In the instant case there is sufficient evidence establishing the fact that the defendants were allowed credit facilities up to a limit of Rs. 35,00,000.00 by the Bank and this fact is not in dispute. The pledging of the title deed by 5th defendant of her properties with the Bank with an intention to create an equitable mortgage to secure the repayment of the amounts due from Ist defendant and the fact that a pronote for an amount of Rs. 35,00,000.00 executed by defendants Nos. 2 to 4 in favour of the 5th defendant was endorsed in favour of the plaintiff Bank would establish that there was an express contract for providing the credit facilities. It should therefore necessarily be inferred that there is also an implied contract to credit the proceeds of the cheques in favour of defendant No. 1 to his account before actually receiving them. As a question of fact this aspect is established by the evidence on record. In such a situation the plaintiff need not make enquiries about the transactions of supply of goods etc. that were going on between defendants Nos. 1 and 6. Even if defendant No. 1 has not supplied the goods in respect of which the cheque in question were issued by defendant No. 6 there was no cause at any rate sufficient cause for the plaintiff to doubt the title of defendant No. 1 nor can it be said that the plaintiff acted negligently disregarding red flag raising suspicion. Viewed from this background it cannot be said that there was sufficient cause to doubt the title nor there is scope to infer gross negligence on the part of the plaintiff. | 0 | 7,095 | 820 | ### 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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the customer account does not by itself alter his position but that however is a question of fact in each case namely whether there was such a contract express or implied that the customer should be entitled to draw against the amount of cheque before it is cleared. ( 15. ) In A. L. Underwood Ltd. v. Bank of Liverpool and Martins, Same v. Barclays Bank (1924) All ER (Reprint) 230 at page 241, Atkin, LJ dealing with the protection that can be availed by a banker in such case, observed as under: "It is sufficient to say that the mere fact that the bank, in their books, enter the value of the cheques on the credit side of the account on the day on which they receive the cheques for collection does not, without more, constitute the bank a holder for value. To constitute value there must be in such a case a contract between banker and customer, express or implied, that the bank will, before receipt of the proceeds, honour cheques of the customer drawn against the cheques. Such a contract can be established by course of business and may be established by entry in the customers pass book, communicated to the customer and acted upon by him. Here there is no evidence of any, such contract." (Emphasis supplied) To the same effect is the ratio laid down in Baker v. Barclays Bank Ltd. (1955) 2 All ER 571. After applying the dictum of Atkin, LJ in Underwoods case, it is observed therein that "it was not enough to show merely that the bank had entered the value of the cheques on the credit side of the account on which the bank received the cheques. To constitute value there must be in such a case a contract between banker and customer, express or , implied, that the bank will before receipt of the proceeds honour cheques of the customer drawn against the cheques." ( 16. ) We find another passage in the above decision at page 581 which reads thus: "What is suggested is that the bank did not give value, and the question arises which often arises in cases of this sort, namely, whether, when a cheque is given to a bank in these circumstances, the bank takes the cheque giving value for it, and then becoming a holder in due course, or whether the bank takes the cheque merely to collect the amount of the cheque for someone else. That is a question of fact. The true relationship has to be inferred from the acts of the parties." (Emphasis supplied) ( 17. ) From the above discussion it emerges that the Indian definition imposes a more stringent condition on the holder in due course than the English definition and as the learned authors have noted the definition is based on Gills case (1824 (107) ER 806). Under the Indian law, a holder, to be a holder in due course, must not only have acquired the bill, note or cheque for valid consideration but should have acquired the cheque without having sufficient cause to believe that any defect existed in the title of the person from whom he derived his title. This condition requires that he should act in good faith and with reasonable caution. However, mere failure to prove bona fide or absence of negligence on his part would not negative his claim. But in a given case it is left to the Court to decide whether the negligence on part of the holder is so gross and extraordinary as to presume that he had sufficient cause to believe that such title was defective. However, when the presumption in his favour as provided under S. 118(g) gets rebutted under the circumstances mentioned therein then the burden of proving that he is a holder in due course lies upon him. In a given case, the Court. while examining these requirements including valid consideration must also go into the question whether there was a contract express or implied for crediting the proceeds to the account of the bearer before receiving the same. The enquiry regarding the satisfaction of this requirement invariably depends upon the facts and circumstances in each case. The words "without having sufficient cause to believe" have to be understood in this back-ground. ( 18. ) In the instant case there is sufficient evidence establishing the fact that the defendants were allowed credit facilities up to a limit of Rs. 35,00,000.00 by the Bank and this fact is not in dispute. The pledging of the title deed by 5th defendant of her properties with the Bank with an intention to create an equitable mortgage to secure the repayment of the amounts due from Ist defendant and the fact that a pronote for an amount of Rs. 35,00,000.00 executed by defendants Nos. 2 to 4 in favour of the 5th defendant was endorsed in favour of the plaintiff Bank would establish that there was an express contract for providing the credit facilities. It should therefore necessarily be inferred that there is also an implied contract to credit the proceeds of the cheques in favour of defendant No. 1 to his account before actually receiving them. As a question of fact this aspect is established by the evidence on record. In such a situation the plaintiff need not make enquiries about the transactions of supply of goods etc. that were going on between defendants Nos. 1 and 6. Even if defendant No. 1 has not supplied the goods in respect of which the cheque in question were issued by defendant No. 6 there was no cause at any rate sufficient cause for the plaintiff to doubt the title of defendant No. 1 nor can it be said that the plaintiff acted negligently disregarding red flag raising suspicion. Viewed from this background it cannot be said that there was sufficient cause to doubt the title nor there is scope to infer gross negligence on the part of the plaintiff.
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The above two passages indicate that the Banker who is asked to collect a cheque can credit the customer with the amount before the proceeds are received and if he has acted in good faith he has the necessary statutory protection and crediting the customer account does not by itself alter his position but that however is a question of fact in each case namely whether there was such a contract express or implied that the customer should be entitled to draw against the amount of cheque before it is16. ) We find another passage in the above decision at page 581 which reads thus:"What is suggested is that the bank did not give value, and the question arises which often arises in cases of this sort, namely, whether, when a cheque is given to a bank in these circumstances, the bank takes the cheque giving value for it, and then becoming a holder in due course, or whether the bank takes the cheque merely to collect the amount of the cheque for someone else. That is a question of fact. The true relationship has to be inferred from the acts of the parties." (Emphasis17. ) From the above discussion it emerges that the Indian definition imposes a more stringent condition on the holder in due course than the English definition and as the learned authors have noted the definition is based on Gills case (1824 (107) ER 806). Under the Indian law, a holder, to be a holder in due course, must not only have acquired the bill, note or cheque for valid consideration but should have acquired the cheque without having sufficient cause to believe that any defect existed in the title of the person from whom he derived his title. This condition requires that he should act in good faith and with reasonable caution. However, mere failure to prove bona fide or absence of negligence on his part would not negative his claim. But in a given case it is left to the Court to decide whether the negligence on part of the holder is so gross and extraordinary as to presume that he had sufficient cause to believe that such title was defective. However, when the presumption in his favour as provided under S. 118(g) gets rebutted under the circumstances mentioned therein then the burden of proving that he is a holder in due course lies upon him. In a given case, the Court. while examining these requirements including valid consideration must also go into the question whether there was a contract express or implied for crediting the proceeds to the account of the bearer before receiving the same. The enquiry regarding the satisfaction of this requirement invariably depends upon the facts and circumstances in each case. The words "without having sufficient cause to believe" have to be understood in this18. ) In the instant case there is sufficient evidence establishing the fact that the defendants were allowed credit facilities up to a limit of Rs. 35,00,000.00 by the Bank and this fact is not in dispute. The pledging of the title deed by 5th defendant of her properties with the Bank with an intention to create an equitable mortgage to secure the repayment of the amounts due from Ist defendant and the fact that a pronote for an amount of Rs. 35,00,000.00 executed by defendants Nos. 2 to 4 in favour of the 5th defendant was endorsed in favour of the plaintiff Bank would establish that there was an express contract for providing the credit facilities. It should therefore necessarily be inferred that there is also an implied contract to credit the proceeds of the cheques in favour of defendant No. 1 to his account before actually receiving them. As a question of fact this aspect is established by the evidence on record. In such a situation the plaintiff need not make enquiries about the transactions of supply of goods etc. that were going on between defendants Nos. 1 and 6. Even if defendant No. 1 has not supplied the goods in respect of which the cheque in question were issued by defendant No. 6 there was no cause at any rate sufficient cause for the plaintiff to doubt the title of defendant No. 1 nor can it be said that the plaintiff acted negligently disregarding red flag raising suspicion. Viewed from this background it cannot be said that there was sufficient cause to doubt the title nor there is scope to infer gross negligence on the part of the plaintiff.
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Nagubai Ammal & Others Vs. B. Shama Rao & Others | Privy Council in Kala Chand Banerjee v. Jagannath Marwari, 1927 PC 108 (AIR V14) (G), that when in execution of a mortgage decree properties are sold without notice to the Official Receiver in whom the equity of redemption had vested prior to the sale, such sale would not be binding on him. But here, it is not the Official Receiver, who impeaches the sale as bad. In fact, he was a party to O. S. No. 8 of 1933-34 and would be bound by the sale in execution of the decree therein, under which the plaintiff claims. It is the purchaser pendente lite in the charge suit, O. S. No. 100 of 1919-20, that now attacks the sale held on 2-8-1928 as null and void. Is he entitled to do so? Counsel for the respondent has invited our attention to the decision in Wood v. Surr, (1954) 19 Beav 551(H). There, the mortgagor filed a suit for redemption in 1838. A preliminary decree for accounts was passed in 1843 and pursuant thereto, a final decree was made in 1848 declaring the amount payable, and time for payment was given till 1849. The amount not having been paid, the mortgage became foreclosed. During the pendency of these proceedings, the mortgagor was adjudicated bankrupt in 1844, but the Official Assignee, in whom the equity of redemption had vested, was not impleaded in the mortgage action. In 1841, the mortgagor had created a further mortgage in favour of one Mrs. Cuppage, and she was not made a party in the redemption suit. After the foreclosure of the mortgage in 1849, one Mr. Wood claiming in the rights of Mrs. Cuppage instituted an action to redeem the mortgage. The question was whether being transferee pendente lite he was bound by the foreclosure proceedings. The contention on his behalf was that as the official assignee was not a party to those proceedings, there had been no proper foreclosure, and that the whole matter was at large. In negativing this contention, Sir John Romily, M. R. observed:"There can be no question but that the suit (Daviss suit) was defective by reason of no notice having been taken of the insolvency. The proceeding having gone exactly as if no insolvency had taken place, the subsequent proceedings would, in my opinion, be wholly inoperative against the assignee-in-insolvency and if he thought fit to contest the validity of the decree of foreclosure against Davis, it could not be held to be binding on such assignee. But that does not conclude the question, which really is, whether the plaintiff who, but for this, would in truth have been bound, can take advantage of this objection.I am of opinion that although the suit was undoubtedly defective, by reason of this insolvency, the assignee alone could take advantage of this defect. It is obvious that Davis himself could not take advantage of it, or if from any subsequent cause, or any subsequent circumstance, the insolvency or bankruptcy had been superseded or annulled, he could not have said that the foreclosure was not absolute against him".These observations directly cover the point now in controversy, and they embody a principle adopted in the law of this country as to the effect of a sale in execution of a decree passed in a defectively constituted mortgage suit. Such a sale, it has been held, does not affect the rights of redemption of persons interested in the equity of redemption, who have not been impleaded as parties to the action as they should have been under O. 34, R. 1, Civil P. C. but that it is valid and effective as against parties to the action. This rule has been affirmed even when the person in whom the equity of redemption has vested is the Official Receiver, and he had not been made a party to the proceedings resulting in sale.Vide Inamullah Khan v. Shambhu Dayal, 1931 All 159 (AIR V18) (I) and Subbaiah Goundan v. Ramasami Goundan, 1954 Mad 604 (AIR V41) (J). We should accordingly hold that even assuming that the equity of redemption in the suit properties vested in the Official Receiver on the adjudication of Keshavananda, his nonjoinder in the execution proceedings did not render the purchase by Devamma a nullity, and that under the sale she acquired a good and impeccable title, subject to any right which the Official Receiver might elect to exercise, and it is not open to attack by the transferee pendente lite under the deed dated 30-1-1920 and his representatives, the present appellants.In the result, we agree with the courts below that the title of the appellants has been extinguished under S. 52, T. P. Act, by the court sale dated 2-8-1928.27. It must be mentioned that the appellants also pleaded that the suit was barred by limitation under Art. 142 on the ground that the plaintiff and his predecessors had not been in possession within 12 years of the suit, and that further the defendant had acquired title by adverse possession commencing from 1920. The learned District Judge, found on both the issues in favour of the plaintiff, and though the correctness of these findings was attacked in the grounds of appeal to the High Court, there is no discussion of the question in the judgment of the learned Judges, and we must take it that the point has been abandoned by the appellants. We accordingly declined to hear them on this question. We may add that the question of limitation cannot really arise on the facts of this case, inasmuch as the possession which is claimed to be adverse is stated to have commenced in 1920, and it is well settled that such possession cannot affect the right of a prior mortgagee to bring the properties, to sale, and adverse possession against the purchaser under that sale cannot commence prior to the date of that sale, and the present suit was instituted on 8-1-1945 within 12 years of the sale, which took place in 1936. | 0[ds]If it is, it is not in dispute that it becomes avoided by the purchase by Devamma on 2-8-1928. If it is not, it is equally indisputable that the appellants as purchasers of the equity of redemption from Keshvananda have a right to redeem the mortgage dated 1-9-1918, and not having been impleaded in O. S. No. 8 of 1933-34 are not bound either by the decree passed therein or by the sale in execution thereof.9. On this question, as the plaint in O. S. No. 100 of 1919-20 praying for a charge was presented on 6-6-1919, the sale to Dr. Nanjunda Rao subsequent thereto on 30-1-1920 would prima facie fall within the mischief of S. 52 T. P. Act, and would be hit by the purchase by Devamma on 2-8-1928 in execution of the charge decree.1. We see no substance in the contention that the plea of lis pendents is not open to the plaintiff on the ground that it had not been raised in the pleadings. It is true that neither the plaint nor the reply statement of the plaintiff contains any averment that the sale is affected by the rule of lis pendens. Nor is there any issue specifically directed to thatif the plaintiff meant by the above allegations to raise the plea of lis pendens, he has not expressed himself with sufficient clearness for the defendants to know his mind and if the matter had rested there, there would be much to be said in favour of the appellants contention. But it does not restare satisfied that the defendants went to trial with full knowledge that the question of lis pendens was in issue, had ample opportunity to adduce their evidence thereon, and fully availed themselves of the same, and that in the circumstances, the absence of a specific pleading on the question was a mere irregularity, which resulted in no prejudice totrue scope of this rule is that evidence let in on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they had no opportunity of adducing evidence. But that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon, and adduce evidence relatingapart from that, the statements of the plaintiff in his plaint in O. S. No. 92 of 1938-39 considered purely as admissions, do not carry the matter beyond the point to which the statements made by Abdul Huq and his legal representatives in the prior proceedings takethe present case, there is no question of estoppel, as the title of Dr. Nanjunda Rao arose under a purchase which was long prior to the admissions made in 1932 and in the subsequenthas been already pointed out that the tenor of the statements made by Abdul Huq, his legal representatives and the plaintiff was to suggest that the proceedings in O. S. No. 100 of 1919-20 were fraudulent and not collusive in character. Those statements would not, in our opinion, be sufficient, without more, to sustain a finding that the proceedings were collusive.19. But assuming that they are sufficient to shift the burden on to the plaintiff of proving that the decree and sale in O. S. No. 100 of 1919-20 were not collusive, the evidence adduced by him is, in our opinion, ample to discharge that burden. He has filed Exhibit J series, which gave a complete picture of the proceedings in O. S. No. 100 ofthe partition deed, Ex K, it will be remembered, the brothers agreed to pay a monthly maintenance of Rs. 8 each to their step-mother, Chellammal. This, however, was not charged on the family properties. With reference to their stepsisters, Srikantamma and Devamma, the provision was simply that the brothers should protect them. It will also be remembered that under the partition Keshavananda and Brahmananda each got two vacant sites in full quit of theirappears from Ex J-10, para 2, that the two brothers were contemplating the disposal of their plots, in which case the claim of Chellammal and the stepsisters to maintenance would be defeated. It became accordingly necessary for them to safeguard their rights, and for that purpose, to file suits for maintenance and claim a charge therefor on the family properties. That the apprehensions of Chellammal were will-founded is established by the fact that the two brothers entered into agreements for the sale of their vacant sites to Dr. Nanjunda Rao on 20-10-1919, and sale deeds were actually executed pursuant thereto on 30-1-1920. There cannot be any doubt, therefore, that the suits were bonawas open to the defendants to have further cross-examined him about the materials, which led him to change his opinion, but they chose not to pursue the matter. Bot the courts below have, on a careful consideration of the record, come to the conclusion that the proceedings in O. S. No. 100 of 1919-20 were not collusive, and we do not see sufficient grounds for disturbing that finding, which must beis difficult to say on these facts that the allegation of the plaintiff that the proceedings in O. S. No. 100 of 1919-20 were collusive was either the foundation of his claim, or that he obtained any benefit under the decree on thatas that judgment was no inter parties, the findings therein are inadmissible in this litigation, and, moreover, there having been an appeal against that judgment, the findings in Ex E lost their finality, and when the parties settled their claim by granting to Garudachar another property in substitution, they ceased to possess any force even interis immaterial that the present appellants were not partiesis clear from the above observations that the maxim that a person cannot approbate and reprobate is only one application of the doctrine of election, and that its operation must be confined to reliefs claimed in respect of the same transaction and to the persons who are partiesplaintiff obtained no advantage against the appellants by pleading in O. S. No. 92 of 1938-39 that the proceedings in O. S. No. 100 of 1919-20 were collusive; nor did they acting on those pleadings acquire rights to the suit properties. Nor is there any question of election, because they only relief which the plaintiff claimed in O. S. No. 92 of 1938-39 and which he now claims is that he is entitled to the suit properties. Only, the ground on which that relief is claimed is different and, it is true, inconsistent. But the principle of election does not forbid, it, and there being no question of estoppel, the plea that the proceedings in O. S. No. 100 of 1919-20 are not collusive is open to theobvious answer to this contention is that the properties which were sold on 2-8-1928 did not vest in the Official Receiver on the making of the order of adjudication on 19-2-1926, as they had been transferred by the mortgagor, long prior to the presentation of Insolvency Case No. 4 of 1925-26 under the very sale deed dated 30-1-1920, which forms the root of the appellants, title.That sale was no doubt pendente lite, but the effect of S. 52 is not to wipe it out altogether but to subordinate it on the rights based on the decree in thebetween the parties to the transaction, however, it was perfectly valid, and operated to vest the title of the transferor in the transferee. Under S. 28 (2) of the Insolvency Act, what vests in the Official Receiver is only the property of the insolvent, and as the suit properties had ceased to be his properties by reason of the sale deed dated 30-1-1920, they did not vest in the Official Receiver, and the sale held on 2-8-1928 is not liable to be attacked on the ground that he had not been impleaded as a partycontention gives no effect to the words "so as to affect the rights of any other party thereto under any decree or order which may be made therein", which make it clear that the transfer is good except to the extent that it might conflict with rights decreed under the decree or order. It is in this view that transfers pendente lite have been held to be valid and operative as between the partieswill be inconsistent to hold that the sale deed dated 30-1-1920 is effective to convey the title to the properties to Dr. Nanjunda Rao, and that, at the same time, it was Keshavananda who must be deemed to possess that title. We are, therefore, unable to accede to the contention of the appellants that a transferor pendente lite must, for purposes of S. 52, be treated as still retaining title to theobservations directly cover the point now in controversy, and they embody a principle adopted in the law of this country as to the effect of a sale in execution of a decree passed in a defectively constituted mortgage suit. Such a sale, it has been held, does not affect the rights of redemption of persons interested in the equity of redemption, who have not been impleaded as parties to the action as they should have been under O. 34, R. 1, Civil P. C. but that it is valid and effective as against parties to the action. This rule has been affirmed even when the person in whom the equity of redemption has vested is the Official Receiver, and he had not been made a party to the proceedings resulting inshould accordingly hold that even assuming that the equity of redemption in the suit properties vested in the Official Receiver on the adjudication of Keshavananda, his nonjoinder in the execution proceedings did not render the purchase by Devamma a nullity, and that under the sale she acquired a good and impeccable title, subject to any right which the Official Receiver might elect to exercise, and it is not open to attack by the transferee pendente lite under the deed dated 30-1-1920 and his representatives, the present appellants.In the result, we agree with the courts below that the title of the appellants has been extinguished under S. 52, T. P. Act, by the court sale dated 2-8-1928.27. It must be mentioned that the appellants also pleaded that the suit was barred by limitation under Art. 142 on the ground that the plaintiff and his predecessors had not been in possession within 12 years of the suit, and that further the defendant had acquired title by adverse possession commencing from 1920. The learned District Judge, found on both the issues in favour of the plaintiff, and though the correctness of these findings was attacked in the grounds of appeal to the High Court, there is no discussion of the question in the judgment of the learned Judges, and we must take it that the point has been abandoned by theaccordingly declined to hear them on this question. We may add that the question of limitation cannot really arise on the facts of this case, inasmuch as the possession which is claimed to be adverse is stated to have commenced in 1920, and it is well settled that such possession cannot affect the right of a prior mortgagee to bring the properties, to sale, and adverse possession against the purchaser under that sale cannot commence prior to the date of that sale, and the present suit was instituted on 8-1-1945 within 12 years of the sale, which took place inthey were so or not is essentially a question of fact, and both the courts before have concurred in answering it in the negative. It is contended for the appellants that this finding is the result of an error into which the learned Judges of the High Court fell as to the incidence of burden of proof; and it should not therefore be accepted. | 0 | 8,989 | 2,171 | ### Instruction:
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Privy Council in Kala Chand Banerjee v. Jagannath Marwari, 1927 PC 108 (AIR V14) (G), that when in execution of a mortgage decree properties are sold without notice to the Official Receiver in whom the equity of redemption had vested prior to the sale, such sale would not be binding on him. But here, it is not the Official Receiver, who impeaches the sale as bad. In fact, he was a party to O. S. No. 8 of 1933-34 and would be bound by the sale in execution of the decree therein, under which the plaintiff claims. It is the purchaser pendente lite in the charge suit, O. S. No. 100 of 1919-20, that now attacks the sale held on 2-8-1928 as null and void. Is he entitled to do so? Counsel for the respondent has invited our attention to the decision in Wood v. Surr, (1954) 19 Beav 551(H). There, the mortgagor filed a suit for redemption in 1838. A preliminary decree for accounts was passed in 1843 and pursuant thereto, a final decree was made in 1848 declaring the amount payable, and time for payment was given till 1849. The amount not having been paid, the mortgage became foreclosed. During the pendency of these proceedings, the mortgagor was adjudicated bankrupt in 1844, but the Official Assignee, in whom the equity of redemption had vested, was not impleaded in the mortgage action. In 1841, the mortgagor had created a further mortgage in favour of one Mrs. Cuppage, and she was not made a party in the redemption suit. After the foreclosure of the mortgage in 1849, one Mr. Wood claiming in the rights of Mrs. Cuppage instituted an action to redeem the mortgage. The question was whether being transferee pendente lite he was bound by the foreclosure proceedings. The contention on his behalf was that as the official assignee was not a party to those proceedings, there had been no proper foreclosure, and that the whole matter was at large. In negativing this contention, Sir John Romily, M. R. observed:"There can be no question but that the suit (Daviss suit) was defective by reason of no notice having been taken of the insolvency. The proceeding having gone exactly as if no insolvency had taken place, the subsequent proceedings would, in my opinion, be wholly inoperative against the assignee-in-insolvency and if he thought fit to contest the validity of the decree of foreclosure against Davis, it could not be held to be binding on such assignee. But that does not conclude the question, which really is, whether the plaintiff who, but for this, would in truth have been bound, can take advantage of this objection.I am of opinion that although the suit was undoubtedly defective, by reason of this insolvency, the assignee alone could take advantage of this defect. It is obvious that Davis himself could not take advantage of it, or if from any subsequent cause, or any subsequent circumstance, the insolvency or bankruptcy had been superseded or annulled, he could not have said that the foreclosure was not absolute against him".These observations directly cover the point now in controversy, and they embody a principle adopted in the law of this country as to the effect of a sale in execution of a decree passed in a defectively constituted mortgage suit. Such a sale, it has been held, does not affect the rights of redemption of persons interested in the equity of redemption, who have not been impleaded as parties to the action as they should have been under O. 34, R. 1, Civil P. C. but that it is valid and effective as against parties to the action. This rule has been affirmed even when the person in whom the equity of redemption has vested is the Official Receiver, and he had not been made a party to the proceedings resulting in sale.Vide Inamullah Khan v. Shambhu Dayal, 1931 All 159 (AIR V18) (I) and Subbaiah Goundan v. Ramasami Goundan, 1954 Mad 604 (AIR V41) (J). We should accordingly hold that even assuming that the equity of redemption in the suit properties vested in the Official Receiver on the adjudication of Keshavananda, his nonjoinder in the execution proceedings did not render the purchase by Devamma a nullity, and that under the sale she acquired a good and impeccable title, subject to any right which the Official Receiver might elect to exercise, and it is not open to attack by the transferee pendente lite under the deed dated 30-1-1920 and his representatives, the present appellants.In the result, we agree with the courts below that the title of the appellants has been extinguished under S. 52, T. P. Act, by the court sale dated 2-8-1928.27. It must be mentioned that the appellants also pleaded that the suit was barred by limitation under Art. 142 on the ground that the plaintiff and his predecessors had not been in possession within 12 years of the suit, and that further the defendant had acquired title by adverse possession commencing from 1920. The learned District Judge, found on both the issues in favour of the plaintiff, and though the correctness of these findings was attacked in the grounds of appeal to the High Court, there is no discussion of the question in the judgment of the learned Judges, and we must take it that the point has been abandoned by the appellants. We accordingly declined to hear them on this question. We may add that the question of limitation cannot really arise on the facts of this case, inasmuch as the possession which is claimed to be adverse is stated to have commenced in 1920, and it is well settled that such possession cannot affect the right of a prior mortgagee to bring the properties, to sale, and adverse possession against the purchaser under that sale cannot commence prior to the date of that sale, and the present suit was instituted on 8-1-1945 within 12 years of the sale, which took place in 1936.
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must be confined to reliefs claimed in respect of the same transaction and to the persons who are partiesplaintiff obtained no advantage against the appellants by pleading in O. S. No. 92 of 1938-39 that the proceedings in O. S. No. 100 of 1919-20 were collusive; nor did they acting on those pleadings acquire rights to the suit properties. Nor is there any question of election, because they only relief which the plaintiff claimed in O. S. No. 92 of 1938-39 and which he now claims is that he is entitled to the suit properties. Only, the ground on which that relief is claimed is different and, it is true, inconsistent. But the principle of election does not forbid, it, and there being no question of estoppel, the plea that the proceedings in O. S. No. 100 of 1919-20 are not collusive is open to theobvious answer to this contention is that the properties which were sold on 2-8-1928 did not vest in the Official Receiver on the making of the order of adjudication on 19-2-1926, as they had been transferred by the mortgagor, long prior to the presentation of Insolvency Case No. 4 of 1925-26 under the very sale deed dated 30-1-1920, which forms the root of the appellants, title.That sale was no doubt pendente lite, but the effect of S. 52 is not to wipe it out altogether but to subordinate it on the rights based on the decree in thebetween the parties to the transaction, however, it was perfectly valid, and operated to vest the title of the transferor in the transferee. Under S. 28 (2) of the Insolvency Act, what vests in the Official Receiver is only the property of the insolvent, and as the suit properties had ceased to be his properties by reason of the sale deed dated 30-1-1920, they did not vest in the Official Receiver, and the sale held on 2-8-1928 is not liable to be attacked on the ground that he had not been impleaded as a partycontention gives no effect to the words "so as to affect the rights of any other party thereto under any decree or order which may be made therein", which make it clear that the transfer is good except to the extent that it might conflict with rights decreed under the decree or order. It is in this view that transfers pendente lite have been held to be valid and operative as between the partieswill be inconsistent to hold that the sale deed dated 30-1-1920 is effective to convey the title to the properties to Dr. Nanjunda Rao, and that, at the same time, it was Keshavananda who must be deemed to possess that title. We are, therefore, unable to accede to the contention of the appellants that a transferor pendente lite must, for purposes of S. 52, be treated as still retaining title to theobservations directly cover the point now in controversy, and they embody a principle adopted in the law of this country as to the effect of a sale in execution of a decree passed in a defectively constituted mortgage suit. Such a sale, it has been held, does not affect the rights of redemption of persons interested in the equity of redemption, who have not been impleaded as parties to the action as they should have been under O. 34, R. 1, Civil P. C. but that it is valid and effective as against parties to the action. This rule has been affirmed even when the person in whom the equity of redemption has vested is the Official Receiver, and he had not been made a party to the proceedings resulting inshould accordingly hold that even assuming that the equity of redemption in the suit properties vested in the Official Receiver on the adjudication of Keshavananda, his nonjoinder in the execution proceedings did not render the purchase by Devamma a nullity, and that under the sale she acquired a good and impeccable title, subject to any right which the Official Receiver might elect to exercise, and it is not open to attack by the transferee pendente lite under the deed dated 30-1-1920 and his representatives, the present appellants.In the result, we agree with the courts below that the title of the appellants has been extinguished under S. 52, T. P. Act, by the court sale dated 2-8-1928.27. It must be mentioned that the appellants also pleaded that the suit was barred by limitation under Art. 142 on the ground that the plaintiff and his predecessors had not been in possession within 12 years of the suit, and that further the defendant had acquired title by adverse possession commencing from 1920. The learned District Judge, found on both the issues in favour of the plaintiff, and though the correctness of these findings was attacked in the grounds of appeal to the High Court, there is no discussion of the question in the judgment of the learned Judges, and we must take it that the point has been abandoned by theaccordingly declined to hear them on this question. We may add that the question of limitation cannot really arise on the facts of this case, inasmuch as the possession which is claimed to be adverse is stated to have commenced in 1920, and it is well settled that such possession cannot affect the right of a prior mortgagee to bring the properties, to sale, and adverse possession against the purchaser under that sale cannot commence prior to the date of that sale, and the present suit was instituted on 8-1-1945 within 12 years of the sale, which took place inthey were so or not is essentially a question of fact, and both the courts before have concurred in answering it in the negative. It is contended for the appellants that this finding is the result of an error into which the learned Judges of the High Court fell as to the incidence of burden of proof; and it should not therefore be accepted.
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Hyderabad Asbestos Cement Products Limited Vs. State of Andhra Pradesh | by railway under railway receipts with freight to pay. The company made out an invoice at the catalgue rate, and the customer paid the amount of the invoice less the freight for releasing the railway receipt and took delivery of the goods on payment of the railway freight. The result was that the net price received by the company was the catalgoue rate less the railway freight charged in respect of the goods transported to the destination.2. The Deputy Commissioner of Commercial Taxes held that since in the invoices the company had not shown the freight separately, the company was liable to pay sales tax on the price inclusive of freight. The Tribunal were of the opinion that the freight was borne by the purchasers and the price received by the company was only the catalogue rate minus the freight and that formed part of the turnover for the purpose of levying sales tax. In the view of the High Court the terms of the contract between the company and the purchasers, and the form of the invoice established that goods were sold at catalogue rate and that in paying the freight at the destination after the goods were received, the purchasers acted on behalf of the company.The relevant provisions of the Andhra Pradesh General Sales Tax Act (6 of 1957) may be noticed. The expression "total turnover" is defined in section 2(r) as meaning "the aggregate turnover in all goods of a dealer at all places of business in the State, whether or not the whole or any portion of such turnover is liable to tax." The expression "turnover" is defined in section 2(9) as :"turnover means the total amount set out in the bill of sale (or if there is no bill of sale, the total amount charged) as the consideration for the sale or purchase of goods (whether such consideration be cash, deferred payment or any other thing of value) including any sums charged by the dealer for anything done in respect of goods sold at the time of or before the delivery of the goods and any other sums charged by the dealer, whatever be the description, name or object thereof :Provided, ....."By section 5 tax is payable on the total turnover; and "total turnover" is the aggregate of the consideration received for sale or purchase of the goods inclusive of any sums charged by the dealer for anything done in respect of the goods sold at the time of or before the delivery of the goods.Clauses (4) and (16) of the terms of contract, on which reliance was placed by the High Court, read as follows :"(4) The price of the said productions supplied to the stockists shall be the current general gross list price charged by the company, free on rail, less such discount as may be fixed by the company from time to time; but the terms and the times of delivery and the payments therefor shall be in the absolute discretion of the company who may vary the same from time to time.""(16) The conditions of any railway receipt shall be binding on the stockists and the date of delivery shall mean the date of the railway receipt and in the case of consignments sold free on rail destination, the railway freight shall be nevertheless payable by the stockists at the destinations and the amount of freight shown on the railway receipt shall be deducted from the invoice of the company."If clause (4) stood alone the price charged by the company may be deemed to be the catalogue rate less the discount payable to the purchasers. But by clause (16) the purchasers clearly undertook to pay railway freight which was deducted from the invoice made out by the company. By clause (16) the company received the catalogue rate less the railway freight as price of the goods sold. We are unable to agree with the High Court that "the term relating to the price in the contract between the company and the stockist envisaged by this clause [clause (16)] implies an obligation on the part of the company to pay the railway freight". In our judgment, under the terms of the contract there is no obligation on the company to pay the freight, and under the terms of the contract the price received by the company for sale of goods is the invoice amount less the freight.Strong reliance was placed by the State upon the following sample invoice :"Invoice No. 3 dated 2-1-1960. M/s. Asbestos Cement Products Limited, Hyderabad (Dn.). M/s. Sirpur Paper Mills Limited, Sirpur, Kagajnagar. Order No. LD/B. LBC/377 of 28-12-1959. Freight to pay/paid Rs. 274.40 R.R. 21543 of 3-1-1960 through the Central Bank of India Limited, Hyderabad.Description of Goods :Charminar Corrugated A.C. Sheets Less Rs. 5, 167.49 10 per cent discount Rs. 516.75Rs. 4, 650.74 Sales tax on Rs. 4, 650.74 plus Rs. 93.02 = Rs. 4, 743.76 Rs. 94.88Rs. 4, 745.62 Less railage Rs. 274.40Rs. 4, 471.22 Bank Charges Rs. 8.49 ------------- Total .... Rs. 4, 479.71"3. Railway freight being Rs. 274.40 was added to the value of the goods and sales tax was collected by the company from the purchasers. That indicated, according to counsel for the respondent, that the true effect of the agreement between the parties was that the price was inclusive of the railway freight. But the form in which the invoice is mode out is not determinative of the contract between the company and its customers. If, apprehending that it may have to pay sales tax on the freight, the company collected sales tax on the freight, the true nature of the contract between the company and the purchasers cannot on that account be altered. The company may be liable to refund the amount of excess sales tax to its purchasers. But that is a matter between the company and the purchasers and the State cannot seek to levy tax on railway freight if it is nor made a part of the price.4. | 1[ds]Clauses (4) and (16) of the terms of contract, on which reliance was placed by the High Court, read as followsThe price of the said productions supplied to the stockists shall be the current general gross list price charged by the company, free on rail, less such discount as may be fixed by the company from time to time; but the terms and the times of delivery and the payments therefor shall be in the absolute discretion of the company who may vary the same from time to time.""(16) The conditions of any railway receipt shall be binding on the stockists and the date of delivery shall mean the date of the railway receipt and in the case of consignments sold free on rail destination, the railway freight shall be nevertheless payable by the stockists at the destinations and the amount of freight shown on the railway receipt shall be deducted from the invoice of theclause (4) stood alone the price charged by the company may be deemed to be the catalogue rate less the discount payable to the purchasers. But by clause (16) the purchasers clearly undertook to pay railway freight which was deducted from the invoice made out by the company. By clause (16) the company received the catalogue rate less the railway freight as price of the goods sold. We are unable to agree with the High Court that "the term relating to the price in the contract between the company and the stockist envisaged by this clause [clause (16)] implies an obligation on the part of the company to pay the railway freight". In our judgment, under the terms of the contract there is no obligation on the company to pay the freight, and under the terms of the contract the price received by the company for sale of goods is the invoice amount less thethe form in which the invoice is mode out is not determinative of the contract between the company and its customers. If, apprehending that it may have to pay sales tax on the freight, the company collected sales tax on the freight, the true nature of the contract between the company and the purchasers cannot on that account be altered. The company may be liable to refund the amount of excess sales tax to its purchasers. But that is a matter between the company and the purchasers and the State cannot seek to levy tax on railway freight if it is nor made a part of the price. | 1 | 1,369 | 464 | ### Instruction:
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by railway under railway receipts with freight to pay. The company made out an invoice at the catalgue rate, and the customer paid the amount of the invoice less the freight for releasing the railway receipt and took delivery of the goods on payment of the railway freight. The result was that the net price received by the company was the catalgoue rate less the railway freight charged in respect of the goods transported to the destination.2. The Deputy Commissioner of Commercial Taxes held that since in the invoices the company had not shown the freight separately, the company was liable to pay sales tax on the price inclusive of freight. The Tribunal were of the opinion that the freight was borne by the purchasers and the price received by the company was only the catalogue rate minus the freight and that formed part of the turnover for the purpose of levying sales tax. In the view of the High Court the terms of the contract between the company and the purchasers, and the form of the invoice established that goods were sold at catalogue rate and that in paying the freight at the destination after the goods were received, the purchasers acted on behalf of the company.The relevant provisions of the Andhra Pradesh General Sales Tax Act (6 of 1957) may be noticed. The expression "total turnover" is defined in section 2(r) as meaning "the aggregate turnover in all goods of a dealer at all places of business in the State, whether or not the whole or any portion of such turnover is liable to tax." The expression "turnover" is defined in section 2(9) as :"turnover means the total amount set out in the bill of sale (or if there is no bill of sale, the total amount charged) as the consideration for the sale or purchase of goods (whether such consideration be cash, deferred payment or any other thing of value) including any sums charged by the dealer for anything done in respect of goods sold at the time of or before the delivery of the goods and any other sums charged by the dealer, whatever be the description, name or object thereof :Provided, ....."By section 5 tax is payable on the total turnover; and "total turnover" is the aggregate of the consideration received for sale or purchase of the goods inclusive of any sums charged by the dealer for anything done in respect of the goods sold at the time of or before the delivery of the goods.Clauses (4) and (16) of the terms of contract, on which reliance was placed by the High Court, read as follows :"(4) The price of the said productions supplied to the stockists shall be the current general gross list price charged by the company, free on rail, less such discount as may be fixed by the company from time to time; but the terms and the times of delivery and the payments therefor shall be in the absolute discretion of the company who may vary the same from time to time.""(16) The conditions of any railway receipt shall be binding on the stockists and the date of delivery shall mean the date of the railway receipt and in the case of consignments sold free on rail destination, the railway freight shall be nevertheless payable by the stockists at the destinations and the amount of freight shown on the railway receipt shall be deducted from the invoice of the company."If clause (4) stood alone the price charged by the company may be deemed to be the catalogue rate less the discount payable to the purchasers. But by clause (16) the purchasers clearly undertook to pay railway freight which was deducted from the invoice made out by the company. By clause (16) the company received the catalogue rate less the railway freight as price of the goods sold. We are unable to agree with the High Court that "the term relating to the price in the contract between the company and the stockist envisaged by this clause [clause (16)] implies an obligation on the part of the company to pay the railway freight". In our judgment, under the terms of the contract there is no obligation on the company to pay the freight, and under the terms of the contract the price received by the company for sale of goods is the invoice amount less the freight.Strong reliance was placed by the State upon the following sample invoice :"Invoice No. 3 dated 2-1-1960. M/s. Asbestos Cement Products Limited, Hyderabad (Dn.). M/s. Sirpur Paper Mills Limited, Sirpur, Kagajnagar. Order No. LD/B. LBC/377 of 28-12-1959. Freight to pay/paid Rs. 274.40 R.R. 21543 of 3-1-1960 through the Central Bank of India Limited, Hyderabad.Description of Goods :Charminar Corrugated A.C. Sheets Less Rs. 5, 167.49 10 per cent discount Rs. 516.75Rs. 4, 650.74 Sales tax on Rs. 4, 650.74 plus Rs. 93.02 = Rs. 4, 743.76 Rs. 94.88Rs. 4, 745.62 Less railage Rs. 274.40Rs. 4, 471.22 Bank Charges Rs. 8.49 ------------- Total .... Rs. 4, 479.71"3. Railway freight being Rs. 274.40 was added to the value of the goods and sales tax was collected by the company from the purchasers. That indicated, according to counsel for the respondent, that the true effect of the agreement between the parties was that the price was inclusive of the railway freight. But the form in which the invoice is mode out is not determinative of the contract between the company and its customers. If, apprehending that it may have to pay sales tax on the freight, the company collected sales tax on the freight, the true nature of the contract between the company and the purchasers cannot on that account be altered. The company may be liable to refund the amount of excess sales tax to its purchasers. But that is a matter between the company and the purchasers and the State cannot seek to levy tax on railway freight if it is nor made a part of the price.4.
### Response:
1
### Explanation:
Clauses (4) and (16) of the terms of contract, on which reliance was placed by the High Court, read as followsThe price of the said productions supplied to the stockists shall be the current general gross list price charged by the company, free on rail, less such discount as may be fixed by the company from time to time; but the terms and the times of delivery and the payments therefor shall be in the absolute discretion of the company who may vary the same from time to time.""(16) The conditions of any railway receipt shall be binding on the stockists and the date of delivery shall mean the date of the railway receipt and in the case of consignments sold free on rail destination, the railway freight shall be nevertheless payable by the stockists at the destinations and the amount of freight shown on the railway receipt shall be deducted from the invoice of theclause (4) stood alone the price charged by the company may be deemed to be the catalogue rate less the discount payable to the purchasers. But by clause (16) the purchasers clearly undertook to pay railway freight which was deducted from the invoice made out by the company. By clause (16) the company received the catalogue rate less the railway freight as price of the goods sold. We are unable to agree with the High Court that "the term relating to the price in the contract between the company and the stockist envisaged by this clause [clause (16)] implies an obligation on the part of the company to pay the railway freight". In our judgment, under the terms of the contract there is no obligation on the company to pay the freight, and under the terms of the contract the price received by the company for sale of goods is the invoice amount less thethe form in which the invoice is mode out is not determinative of the contract between the company and its customers. If, apprehending that it may have to pay sales tax on the freight, the company collected sales tax on the freight, the true nature of the contract between the company and the purchasers cannot on that account be altered. The company may be liable to refund the amount of excess sales tax to its purchasers. But that is a matter between the company and the purchasers and the State cannot seek to levy tax on railway freight if it is nor made a part of the price.
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General Manager, South Central Rlys. and Another Vs. T. Venkata Rao and Others | Untwalia, J.1. This is an appeal by certificate granted by the Andhra Pradesh High Court. The facts of this case are almost identical to those in the case of General Manager, South Central Railway, Secunderabad and another, etc. v. A. V. R., Siddhanti and others, etc. [1974-I L.L.J. 312]. All the 33 respondents in this case at the relevant time, as in the other case, were the employees of the Grain Shop Establishment of the Railway Administration-in this case the Southern Railway. After the closing of the Grain Shop Establishment, all the respondents were allotted to South Central Railway with the formation of that zone. They belonged to either one or the other of the three categories of the different sources from which the staff for the temporary grain shop complex was drawn. In the case of Central Railway v. Siddhanti (supra) the employees had prayed under Art. 226 of the Constitution in the High Court for the issue of a writ of mandamus directing the Railway authorities to fix the inter seniority of the writ petitioners as per original proceedings, dated October 16, 1952 of the Railway Board and not to give effect to the subsequent proceedings, dated November 2, 1957 and January 13, 1961 of the Board issued by way of modifications and clarifications of its earlier proceedings of 1952. A learned single Judge of the Andhra Pradesh High Court in Siddhantis case had allowed the writ petition. The Letters Patent Appeal was dismissed by a Division Bench. The decision of the High Court was affirmed by this Court with slight modification and it was held "that the discrimination envisaged in the impugned directions, dated November 2, 1957 and January 13, 1961, excepting in so far as they pertain to personnel of category (i) is arbitrary and violative of Arts. 14 and 16 of the Constitution."2. In the present case also the learned single Judge allowed the writ application and following the Bench decision of the High Court in Siddhantis case the writ appeal was dismissed in this case also.3. We do not consider it necessary to narrate the facts of this case except in regard to a few respondents, as by and large, the facts are also identical to those in Siddhantis case. The judgment of the High Court is affirmed except to the extent indicated in the judgment of this Court in Siddhantis case and subject to the clarifications made below.4. With respect to the case of Shri K. S. Venkataraman respondent No. 10 who was petitioner No. 10 in the writ petition, it was pointed out before the learned single Judge on behalf of the appellant that he was originally appointed as a peon in regular department on 26-6-1942 and was confirmed as such. He was then transferred to the Grain Shop Department on 13-10-1944 on promotion as a clerk. It was also pointed out that after reverting from the Grain Shop Department the respondents was working in his substantive post of peon.5. As in respect to the cases of respondents 4, 5 & 33 who were respectively petitioners 4, 5 and 34 in the writ petition the appellants case was that they had been drafted into other cadres. They were originally given their seniority in the cadre of commercial clerks as it was given to the other Grain Shop clerks. But later they volunteered for promotion as assistant station masters in the years 1955 and 1956 earlier to the receipt of the revised instructions of the Railway Board in the years 1957 and 1961. They were confirmed as assistant station masters and thereupon they ceased to have any lien in the cadre of commercial clerks. As regards respondent No. 27 who was petitioner No. 28 in the writ petition, certain other facts were pleaded showing that he had also gone to a different cadre. The learned single Judge did not make any clarification or distinction in the application of the instructions issued in the year 1952 in cases or respondents 10, 4, 5, 27 and 33. Argument out forward by learned counsel for the appellant is that determination of seniority on the basis of the decision of this Court in Sidhantis case would be only applicable in the cadre of clerks and not in by other cadre lower or higher. The grievance is justified to some extent. Primarily the instructions issued in the year 1952 which were held to govern the cases of the employees like the respondents were for determination of seniority in the cadre of clerks. It was not meant to override any other instruction, rule or directions concerning the determination of seniority in any other cadre. For instance if a person had become a confirmed assistant station master earlier than any of the respondents 4, 5 and 34 the latter could not count his entire period of working in the clerks post for getting seniority over the former. If, however, the seniority, determined on the basis of the decision of this Court in Siddhantis case was to be reflected in determination of the seniority in any other cadre to which any of the respondents might have gone, then the seniority in the cadre of the clerk will have to be determined on the principles laid down in Siddhantis case. | 0[ds]5. As in respect to the cases of respondents 4, 5 & 33 who were respectively petitioners 4, 5 and 34 in the writ petition the appellants case was that they had been drafted into other cadres. They were originally given their seniority in the cadre of commercial clerks as it was given to the other Grain Shop clerks. But later they volunteered for promotion as assistant station masters in the years 1955 and 1956 earlier to the receipt of the revised instructions of the Railway Board in the years 1957 and 1961. They were confirmed as assistant station masters and thereupon they ceased to have any lien in the cadre of commercial clerks. As regards respondent No. 27 who was petitioner No. 28 in the writ petition, certain other facts were pleaded showing that he had also gone to a different cadre. The learned single Judge did not make any clarification or distinction in the application of the instructions issued in the year 1952 in cases or respondents 10, 4, 5, 27 and 33. Argument out forward by learned counsel for the appellant is that determination of seniority on the basis of the decision of this Court in Sidhantis case would be only applicable in the cadre of clerks and not in by other cadre lower or higher. The grievance is justified to some extent. Primarily the instructions issued in the year 1952 which were held to govern the cases of the employees like the respondents were for determination of seniority in the cadre of clerks. It was not meant to override any other instruction, rule or directions concerning the determination of seniority in any other cadre. For instance if a person had become a confirmed assistant station master earlier than any of the respondents 4, 5 and 34 the latter could not count his entire period of working in the clerks post for getting seniority over the former. If, however, the seniority, determined on the basis of the decision of this Court in Siddhantis case was to be reflected in determination of the seniority in any other cadre to which any of the respondents might have gone, then the seniority in the cadre of the clerk will have to be determined on the principles laid down in Siddhantis case. | 0 | 957 | 412 | ### 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:
Untwalia, J.1. This is an appeal by certificate granted by the Andhra Pradesh High Court. The facts of this case are almost identical to those in the case of General Manager, South Central Railway, Secunderabad and another, etc. v. A. V. R., Siddhanti and others, etc. [1974-I L.L.J. 312]. All the 33 respondents in this case at the relevant time, as in the other case, were the employees of the Grain Shop Establishment of the Railway Administration-in this case the Southern Railway. After the closing of the Grain Shop Establishment, all the respondents were allotted to South Central Railway with the formation of that zone. They belonged to either one or the other of the three categories of the different sources from which the staff for the temporary grain shop complex was drawn. In the case of Central Railway v. Siddhanti (supra) the employees had prayed under Art. 226 of the Constitution in the High Court for the issue of a writ of mandamus directing the Railway authorities to fix the inter seniority of the writ petitioners as per original proceedings, dated October 16, 1952 of the Railway Board and not to give effect to the subsequent proceedings, dated November 2, 1957 and January 13, 1961 of the Board issued by way of modifications and clarifications of its earlier proceedings of 1952. A learned single Judge of the Andhra Pradesh High Court in Siddhantis case had allowed the writ petition. The Letters Patent Appeal was dismissed by a Division Bench. The decision of the High Court was affirmed by this Court with slight modification and it was held "that the discrimination envisaged in the impugned directions, dated November 2, 1957 and January 13, 1961, excepting in so far as they pertain to personnel of category (i) is arbitrary and violative of Arts. 14 and 16 of the Constitution."2. In the present case also the learned single Judge allowed the writ application and following the Bench decision of the High Court in Siddhantis case the writ appeal was dismissed in this case also.3. We do not consider it necessary to narrate the facts of this case except in regard to a few respondents, as by and large, the facts are also identical to those in Siddhantis case. The judgment of the High Court is affirmed except to the extent indicated in the judgment of this Court in Siddhantis case and subject to the clarifications made below.4. With respect to the case of Shri K. S. Venkataraman respondent No. 10 who was petitioner No. 10 in the writ petition, it was pointed out before the learned single Judge on behalf of the appellant that he was originally appointed as a peon in regular department on 26-6-1942 and was confirmed as such. He was then transferred to the Grain Shop Department on 13-10-1944 on promotion as a clerk. It was also pointed out that after reverting from the Grain Shop Department the respondents was working in his substantive post of peon.5. As in respect to the cases of respondents 4, 5 & 33 who were respectively petitioners 4, 5 and 34 in the writ petition the appellants case was that they had been drafted into other cadres. They were originally given their seniority in the cadre of commercial clerks as it was given to the other Grain Shop clerks. But later they volunteered for promotion as assistant station masters in the years 1955 and 1956 earlier to the receipt of the revised instructions of the Railway Board in the years 1957 and 1961. They were confirmed as assistant station masters and thereupon they ceased to have any lien in the cadre of commercial clerks. As regards respondent No. 27 who was petitioner No. 28 in the writ petition, certain other facts were pleaded showing that he had also gone to a different cadre. The learned single Judge did not make any clarification or distinction in the application of the instructions issued in the year 1952 in cases or respondents 10, 4, 5, 27 and 33. Argument out forward by learned counsel for the appellant is that determination of seniority on the basis of the decision of this Court in Sidhantis case would be only applicable in the cadre of clerks and not in by other cadre lower or higher. The grievance is justified to some extent. Primarily the instructions issued in the year 1952 which were held to govern the cases of the employees like the respondents were for determination of seniority in the cadre of clerks. It was not meant to override any other instruction, rule or directions concerning the determination of seniority in any other cadre. For instance if a person had become a confirmed assistant station master earlier than any of the respondents 4, 5 and 34 the latter could not count his entire period of working in the clerks post for getting seniority over the former. If, however, the seniority, determined on the basis of the decision of this Court in Siddhantis case was to be reflected in determination of the seniority in any other cadre to which any of the respondents might have gone, then the seniority in the cadre of the clerk will have to be determined on the principles laid down in Siddhantis case.
### Response:
0
### Explanation:
5. As in respect to the cases of respondents 4, 5 & 33 who were respectively petitioners 4, 5 and 34 in the writ petition the appellants case was that they had been drafted into other cadres. They were originally given their seniority in the cadre of commercial clerks as it was given to the other Grain Shop clerks. But later they volunteered for promotion as assistant station masters in the years 1955 and 1956 earlier to the receipt of the revised instructions of the Railway Board in the years 1957 and 1961. They were confirmed as assistant station masters and thereupon they ceased to have any lien in the cadre of commercial clerks. As regards respondent No. 27 who was petitioner No. 28 in the writ petition, certain other facts were pleaded showing that he had also gone to a different cadre. The learned single Judge did not make any clarification or distinction in the application of the instructions issued in the year 1952 in cases or respondents 10, 4, 5, 27 and 33. Argument out forward by learned counsel for the appellant is that determination of seniority on the basis of the decision of this Court in Sidhantis case would be only applicable in the cadre of clerks and not in by other cadre lower or higher. The grievance is justified to some extent. Primarily the instructions issued in the year 1952 which were held to govern the cases of the employees like the respondents were for determination of seniority in the cadre of clerks. It was not meant to override any other instruction, rule or directions concerning the determination of seniority in any other cadre. For instance if a person had become a confirmed assistant station master earlier than any of the respondents 4, 5 and 34 the latter could not count his entire period of working in the clerks post for getting seniority over the former. If, however, the seniority, determined on the basis of the decision of this Court in Siddhantis case was to be reflected in determination of the seniority in any other cadre to which any of the respondents might have gone, then the seniority in the cadre of the clerk will have to be determined on the principles laid down in Siddhantis case.
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National Iron And Steel Co. Ltd. & Ors Vs. The State Of West Bengal & Anr | the Tribunal to call upon a particular employer to produce any document which was within its possession or power. Balance sheets and profit and loss accounts have to be maintained by all the companies and it goes without saying that the other three concerns could, if they were so minded, have produced these documents before the Tribunal. They could also have prepared statements to show the number of workmen who had retired during several years past and who were due to retire in the years to come. It seems to us that the three concerns were content to make the National Iron and Steel Co Ltd. their mouth-piece in this respect, or they must have felt that the facts and figures, if disclosed, would have been such as would go against them and they deliberately refrained from producing them. On the materials placed before us, we hold that the scheme of gratuity as framed is quite a reasonable one on the facts and figures presented by the National Iron and Steel Co. Ltd. We have no material to hold that the scheme would work hardship on the other companies and the findings of the Tribunal cannot therefore be disturbed.9. The third point raised by the Additional Solicitor General is also not one of substance. According to him, retrenchment could only be struck down if it was mala fide or if it was shown that there was victimisation of the workman etc. Learned counsel further argued that the Tribunal had gone wrong in holding that the retrenchment was illegal as S. 25 F of the Industrial Disputes Act had not been complied with. Under that section, a workman employed in any industry should not be retrenched until he had been given one months notice in writing indicating the reasons for retrenchment and the period of notice had expired, or the workman had been paid in lien of such notice, wages for the period of the notice. The notice in this case bears the date November 15, l958. It is to the effect that the addressees services were terminated with effect from the 17th November and that he would get one months wages in lieu of notice of termination of his service. The workman was further asked to collect his dues from the cash office on. November 20, 1908 or thereafter during the working hours. Manifestly, S. 25 F, had not been complied with under which it was incumbent on the employer to pay the workman, the wages for the period of the notice in lien of the notice. That is to say, if he was asked to go forthwith he had to be paid at the time when he was asked to go and could not be asked to collect his dues afterwards. As there was no compliance with S. 25F, we need not consider the other points raised by the learned counsel. This conclusion receives support from the observations of this Court in Bombay Union of Journalists v. State of Bombay, (1964) 6 SCR 22 at pp. 31-32: (AIR l964 SC 1617 at p. 1623). Incidentally it may also be pointed out that the retrenchment of Sushil does not seem to be otherwise justified in that following the principle of last come first to go, Sushil could not be called upon to leave the companys service. Another employee by name Joy Kishen, junior to Sushil, was retained in service. No doubt, the Labour Officer, Jha, tried to make out a case in his oral evidence that Joy Kishen was retained in service because he was doing a special job at the time while Sushil was not. The Tribunal rejected this contention on the ground that this plea had not been put forward in the written statements of the company and we do not see any reason why we should take a different view.10. The last point urged was that the Tribunal had gone wrong in ordering the abolition of contract labour employed by Tatanagar Foundry Co. Ltd. There is no doubt that the other three concerns did not employ such labour. It was argued that railways gave contracts for supply of sleepers to a number of concerns including Tatanagar Foundry Co. Ltd. The employment of contract labour served to keep down the costs as there would not be sufficient work for all the workmen if permanent labour were employed. It was on this ground that Tatanagar Foundry Co. Ltd. had made an application at the early stages of the enquiry and pressed for a number of engineering concerns to be made parties to the dispute but the Tribunal had not acceded to this prayer. After dealing with the point in some detail, the Tribunal directed Tatanagar Foundry Co. Ltd. to abolish the system of contract labour excepting for the purpose of loading, unloading and for removing slags, ashes, burnt sand etc. and waste products. It was not argued before us that the Tribunals appraisal of the evidence and the direction to abolish contract labour were fundamentally wrong. What was urged before us was that such a direction would be discriminatory as between concerns engaged in the manufacture of railway sleepers and the abolition of contract labour in Tatanagar Foundry Co. Ltd. would mean an increase in its working expenses while the other concerns similarly engaged would be free to employ contract labour and thus oust Tatanagar Foundry Co. Ltd. from competition. As we have not the material before us to come to such a conclusion, we do not feel competent to express any opinion on this point and can only add that abolition of contract system of labour can be ordered by an Industrial Tribunal if the facts justify it. Industrial adjudication should not encourage the employment of contract labour is a principle which was laid down by this Court as far back as 1960 in Standard Vacuum Refining Co. of India Ltd. v. Its Workmen (1960) 3 SCR 466 at p. 473: (AIR 1960 SC 948 at p. 952). | 0[ds]6. The contention that all the employers were not interested in all the reliefs claimed is not a matter of any moment in the circumstances of the case. All the four concerns filed written statements which appear to have been drafted by the same draftsman. They were represented by the same set of lawyers. At no point of time was it ever shown to the Tribunal that there was any possibility of conflict of interest between them. It is admitted that some of the issues were common to all the establishments. The fact that some of the establishments were not interested in some of the other issues did not cause any prejudice to anybody. After all, when all the facts were placed before the Tribunal by the same set of lawyers the Tribunal had no difficulty in appreciating the different points of view and granting appropriate reliefs. In our opinion, making separate orders of reference in the cases of the four establishments would only have multiplied costs enormously without any corresponding benefit to anybody. It is also patent from the course of the proceedings that it was only National Iron and Steel Co. Ltd. which played a major part in the adjudication before the Tribunal. The other three concerns were content to abide by what was done by the first named concern.7. In our opinion, there is no substance in the firstare not impressed by this argument. No doubt it was open to the Tribunal to call upon a particular employer to produce any document which was within its possession or power. Balance sheets and profit and loss accounts have to be maintained by all the companies and it goes without saying that the other three concerns could, if they were so minded, have produced these documents before the Tribunal. They could also have prepared statements to show the number of workmen who had retired during several years past and who were due to retire in the years to come. It seems to us that the three concerns were content to make the National Iron and Steel Co Ltd. their mouth-piece in this respect, or they must have felt that the facts and figures, if disclosed, would have been such as would go against them and they deliberately refrained from producing them. On the materials placed before us, we hold that the scheme of gratuity as framed is quite a reasonable one on the facts and figures presented by the National Iron and Steel Co. Ltd. We have no material to hold that the scheme would work hardship on the other companies and the findings of the Tribunal cannot therefore bethere was no compliance with S. 25F, we need not consider the other points raised by the learned counsel. This conclusion receives support from the observations of this Court in Bombay Union of Journalists v. State of Bombay, (1964) 6 SCR 22 at pp. 31-32: (AIR l964 SC 1617 at p. 1623). Incidentally it may also be pointed out that the retrenchment of Sushil does not seem to be otherwise justified in that following the principle of last come first to go, Sushil could not be called upon to leave the companys service. Another employee by name Joy Kishen, junior to Sushil, was retained in service. No doubt, the Labour Officer, Jha, tried to make out a case in his oral evidence that Joy Kishen was retained in service because he was doing a special job at the time while Sushil was not. The Tribunal rejected this contention on the ground that this plea had not been put forward in the written statements of the company and we do not see any reason why we should take a differentwe have not the material before us to come to such a conclusion, we do not feel competent to express any opinion on this point and can only add that abolition of contract system of labour can be ordered by an Industrial Tribunal if the facts justify it. Industrial adjudication should not encourage the employment of contract labour is a principle which was laid down by this Court as far back as 1960 in Standard Vacuum Refining Co. of India Ltd. v. Its Workmen (1960) 3 SCR 466 at p. 473: (AIR 1960 SC 948 at p.this case, we find that all the four establishments were engineering concerns producing iron and steel goods though of different types. They had a common General Manager who later on became their Works Manager, they had a common time office, a common canteen and a common Labour Officer. That their Standing Orders were the same may be due to the fact that they were all members of the Engineering Association. But the things they had in common are sufficient to show a commonalty of interests so far as industrial disputes are concerned. If the wages, the dearness allowance or benefit of gratuity or leave rules were altered in one without affecting the others, the industrial peace and harmony in the other establishments were bound to be disturbed. The workmen, of all the four concerns were so closely associated that it would be asking for trouble if the conditions of employment in one concern were varied to the benefit of the workmen of that particular establishment, leaving the conditions of service in the other three concerns undisturbed. In our opinion the observations of this Court in Wenger and Co. v. Their Workmen,Lab LJ 403 at p. 408 : (AIR 1964 SC 864 at p. 869) apply with equal force to the facts of the case before us. In that case, there were two orders of reference of industrial dispute in regard to service conditions of the employees in a number of hotels and restaurants in the city of New Delhi. The Tribunal heard both the references together and did not make any classification between restaurants and hotels for the purpose of fixing the service conditions. Negativing the contention of the employers, it was observed by this Courtthe situation of the restaurants and the hotels which have been included in the present reference shows that they are carrying on the same business in about the same locality and it is desirable that the terms and conditions of service of the employees working in them should, as far as possible, be uniform. Such uniformity is not only conducive to peace and harmony amongst the employees and their employers, but would be helpful to the managements themselves because it would tend to avoid migration of labour from one establishment tothat case, some of the hotels and restaurants were situated in Connaught Place while one restaurant was situated in Karolbagh and another hotel was situated in Aurangzeb Road at some distance from Connaught Place. In the case before us, all the concerns are housed in the same premises and the workmen of the different establishments have ample opportunity of getting together during the day and discussing things which are to their commonthe light of the above observations and on the materials placed before the Tribunal it is not possible to hold that a wrong, conclusion had been arrived at. The Tribunal scrutinised the balance sheets of the National Iron and Steel Co. Ltd., for the years 1953 to 1960 and found that excepting in the solitary case of the year 1960, the company had been making substantial amounts of profit every year. The companys balance sheets further show that it had substantial reserves. The Tribunal found that the number of workmen who retired during the 11 years under consideration was only 77, that is to say, 7 workmen per year. According to the scheme framed, the companys liability would be only Rs. 7,500 per year and this amount could easily be provided out of the funds of the company. The learned Additional Solicitor General referred to a statement of the number of workmen who would be due to retire during, the years to come and according to this statement, the financial burden would be much heavier than that found by the Tribunal. Unfortunately, we cannot take this statement into account which was not before the Tribunal. Again, we are not impressed by the argument of the learned counsel that if a scheme for gratuity could, on the materials before the Tribunal, be introduced in National Iron and Steel Co. Ltd., the Tribunal had no material whereby it could introduce the same scheme with regard to the other three companies. It was further argued that the Tribunal should have compelled the other three companies to produce the relevant documents in this connection. Weare not impressed by this argument. No doubt it was open to the Tribunal to call upon a particular employer to produce any document which was within its possession or power. Balance sheets and profit and loss accounts have to be maintained by all the companies and it goes without saying that the other three concerns could, if they were so minded, have produced these documents before the Tribunal. They could also have prepared statements to show the number of workmen who had retired during several years past and who were due to retire in the years to come. It seems to us that the three concerns were content to make the National Iron and Steel Co Ltd. theirin this respect, or they must have felt that the facts and figures, if disclosed, would have been such as would go against them and they deliberately refrained from producing them. On the materials placed before us, we hold that the scheme of gratuity as framed is quite a reasonable one on the facts and figures presented by the National Iron and Steel Co. Ltd. We have no material to hold that the scheme would work hardship on the other companies and the findings of the Tribunal cannot therefore bethat section, a workman employed in any industry should not be retrenched until he had been given one months notice in writing indicating the reasons for retrenchment and the period of notice had expired, or the workman had been paid in lien of such notice, wages for the period of the notice. The notice in this case bears the date November 15, l958. It is to the effect that the addressees services were terminated with effect from the 17th November and that he would get one months wages in lieu of notice of termination of his service. The workman was further asked to collect his dues from the cash office on. November 20, 1908 or thereafter during the working hours. Manifestly, S. 25 F, had not been complied with under which it was incumbent on the employer to pay the workman, the wages for the period of the notice in lien of the notice. That is to say, if he was asked to go forthwith he had to be paid at the time when he was asked to go and could not be asked to collect his dues afterwards. Asthere was no compliance with S. 25F, we need not consider the other points raised by the learned counsel. This conclusion receives support from the observations of this Court in Bombay Union of Journalists v. State of Bombay, (1964) 6 SCR 22 at pp.(AIR l964 SC 1617 at p. 1623). Incidentally it may also be pointed out that the retrenchment of Sushil does not seem to be otherwise justified in that following the principle of last come first to go, Sushil could not be called upon to leave the companys service. Another employee by name Joy Kishen, junior to Sushil, was retained in service. No doubt, the Labour Officer, Jha, tried to make out a case in his oral evidence that Joy Kishen was retained in service because he was doing a special job at the time while Sushil was not. The Tribunal rejected this contention on the ground that this plea had not been put forward in the written statements of the company and we do not see any reason why we should take a differentwas on this ground that Tatanagar Foundry Co. Ltd. had made an application at the early stages of the enquiry and pressed for a number of engineering concerns to be made parties to the dispute but the Tribunal had not acceded to this prayer. After dealing with the point in some detail, the Tribunal directed Tatanagar Foundry Co. Ltd. to abolish the system of contract labour excepting for the purpose of loading, unloading and for removing slags, ashes, burnt sand etc. and waste products. It was not argued before us that the Tribunals appraisal of the evidence and the direction to abolish contract labour were fundamentally wrong. What was urged before us was that such a direction would be discriminatory as between concerns engaged in the manufacture of railway sleepers and the abolition of contract labour in Tatanagar Foundry Co. Ltd. would mean an increase in its working expenses while the other concerns similarly engaged would be free to employ contract labour and thus oust Tatanagar Foundry Co. Ltd. from competition. Aswe have not the material before us to come to such a conclusion, we do not feel competent to express any opinion on this point and can only add that abolition of contract system of labour can be ordered by an Industrial Tribunal if the facts justify it. Industrial adjudication should not encourage the employment of contract labour is a principle which was laid down by this Court as far back as 1960 in Standard Vacuum Refining Co. of India Ltd. v. Its Workmen (1960) 3 SCR 466 at p. 473: (AIR 1960 SC 948 at p. | 0 | 4,143 | 2,441 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
the Tribunal to call upon a particular employer to produce any document which was within its possession or power. Balance sheets and profit and loss accounts have to be maintained by all the companies and it goes without saying that the other three concerns could, if they were so minded, have produced these documents before the Tribunal. They could also have prepared statements to show the number of workmen who had retired during several years past and who were due to retire in the years to come. It seems to us that the three concerns were content to make the National Iron and Steel Co Ltd. their mouth-piece in this respect, or they must have felt that the facts and figures, if disclosed, would have been such as would go against them and they deliberately refrained from producing them. On the materials placed before us, we hold that the scheme of gratuity as framed is quite a reasonable one on the facts and figures presented by the National Iron and Steel Co. Ltd. We have no material to hold that the scheme would work hardship on the other companies and the findings of the Tribunal cannot therefore be disturbed.9. The third point raised by the Additional Solicitor General is also not one of substance. According to him, retrenchment could only be struck down if it was mala fide or if it was shown that there was victimisation of the workman etc. Learned counsel further argued that the Tribunal had gone wrong in holding that the retrenchment was illegal as S. 25 F of the Industrial Disputes Act had not been complied with. Under that section, a workman employed in any industry should not be retrenched until he had been given one months notice in writing indicating the reasons for retrenchment and the period of notice had expired, or the workman had been paid in lien of such notice, wages for the period of the notice. The notice in this case bears the date November 15, l958. It is to the effect that the addressees services were terminated with effect from the 17th November and that he would get one months wages in lieu of notice of termination of his service. The workman was further asked to collect his dues from the cash office on. November 20, 1908 or thereafter during the working hours. Manifestly, S. 25 F, had not been complied with under which it was incumbent on the employer to pay the workman, the wages for the period of the notice in lien of the notice. That is to say, if he was asked to go forthwith he had to be paid at the time when he was asked to go and could not be asked to collect his dues afterwards. As there was no compliance with S. 25F, we need not consider the other points raised by the learned counsel. This conclusion receives support from the observations of this Court in Bombay Union of Journalists v. State of Bombay, (1964) 6 SCR 22 at pp. 31-32: (AIR l964 SC 1617 at p. 1623). Incidentally it may also be pointed out that the retrenchment of Sushil does not seem to be otherwise justified in that following the principle of last come first to go, Sushil could not be called upon to leave the companys service. Another employee by name Joy Kishen, junior to Sushil, was retained in service. No doubt, the Labour Officer, Jha, tried to make out a case in his oral evidence that Joy Kishen was retained in service because he was doing a special job at the time while Sushil was not. The Tribunal rejected this contention on the ground that this plea had not been put forward in the written statements of the company and we do not see any reason why we should take a different view.10. The last point urged was that the Tribunal had gone wrong in ordering the abolition of contract labour employed by Tatanagar Foundry Co. Ltd. There is no doubt that the other three concerns did not employ such labour. It was argued that railways gave contracts for supply of sleepers to a number of concerns including Tatanagar Foundry Co. Ltd. The employment of contract labour served to keep down the costs as there would not be sufficient work for all the workmen if permanent labour were employed. It was on this ground that Tatanagar Foundry Co. Ltd. had made an application at the early stages of the enquiry and pressed for a number of engineering concerns to be made parties to the dispute but the Tribunal had not acceded to this prayer. After dealing with the point in some detail, the Tribunal directed Tatanagar Foundry Co. Ltd. to abolish the system of contract labour excepting for the purpose of loading, unloading and for removing slags, ashes, burnt sand etc. and waste products. It was not argued before us that the Tribunals appraisal of the evidence and the direction to abolish contract labour were fundamentally wrong. What was urged before us was that such a direction would be discriminatory as between concerns engaged in the manufacture of railway sleepers and the abolition of contract labour in Tatanagar Foundry Co. Ltd. would mean an increase in its working expenses while the other concerns similarly engaged would be free to employ contract labour and thus oust Tatanagar Foundry Co. Ltd. from competition. As we have not the material before us to come to such a conclusion, we do not feel competent to express any opinion on this point and can only add that abolition of contract system of labour can be ordered by an Industrial Tribunal if the facts justify it. Industrial adjudication should not encourage the employment of contract labour is a principle which was laid down by this Court as far back as 1960 in Standard Vacuum Refining Co. of India Ltd. v. Its Workmen (1960) 3 SCR 466 at p. 473: (AIR 1960 SC 948 at p. 952).
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Rs. 7,500 per year and this amount could easily be provided out of the funds of the company. The learned Additional Solicitor General referred to a statement of the number of workmen who would be due to retire during, the years to come and according to this statement, the financial burden would be much heavier than that found by the Tribunal. Unfortunately, we cannot take this statement into account which was not before the Tribunal. Again, we are not impressed by the argument of the learned counsel that if a scheme for gratuity could, on the materials before the Tribunal, be introduced in National Iron and Steel Co. Ltd., the Tribunal had no material whereby it could introduce the same scheme with regard to the other three companies. It was further argued that the Tribunal should have compelled the other three companies to produce the relevant documents in this connection. Weare not impressed by this argument. No doubt it was open to the Tribunal to call upon a particular employer to produce any document which was within its possession or power. Balance sheets and profit and loss accounts have to be maintained by all the companies and it goes without saying that the other three concerns could, if they were so minded, have produced these documents before the Tribunal. They could also have prepared statements to show the number of workmen who had retired during several years past and who were due to retire in the years to come. It seems to us that the three concerns were content to make the National Iron and Steel Co Ltd. theirin this respect, or they must have felt that the facts and figures, if disclosed, would have been such as would go against them and they deliberately refrained from producing them. On the materials placed before us, we hold that the scheme of gratuity as framed is quite a reasonable one on the facts and figures presented by the National Iron and Steel Co. Ltd. We have no material to hold that the scheme would work hardship on the other companies and the findings of the Tribunal cannot therefore bethat section, a workman employed in any industry should not be retrenched until he had been given one months notice in writing indicating the reasons for retrenchment and the period of notice had expired, or the workman had been paid in lien of such notice, wages for the period of the notice. The notice in this case bears the date November 15, l958. It is to the effect that the addressees services were terminated with effect from the 17th November and that he would get one months wages in lieu of notice of termination of his service. The workman was further asked to collect his dues from the cash office on. November 20, 1908 or thereafter during the working hours. Manifestly, S. 25 F, had not been complied with under which it was incumbent on the employer to pay the workman, the wages for the period of the notice in lien of the notice. That is to say, if he was asked to go forthwith he had to be paid at the time when he was asked to go and could not be asked to collect his dues afterwards. Asthere was no compliance with S. 25F, we need not consider the other points raised by the learned counsel. This conclusion receives support from the observations of this Court in Bombay Union of Journalists v. State of Bombay, (1964) 6 SCR 22 at pp.(AIR l964 SC 1617 at p. 1623). Incidentally it may also be pointed out that the retrenchment of Sushil does not seem to be otherwise justified in that following the principle of last come first to go, Sushil could not be called upon to leave the companys service. Another employee by name Joy Kishen, junior to Sushil, was retained in service. No doubt, the Labour Officer, Jha, tried to make out a case in his oral evidence that Joy Kishen was retained in service because he was doing a special job at the time while Sushil was not. The Tribunal rejected this contention on the ground that this plea had not been put forward in the written statements of the company and we do not see any reason why we should take a differentwas on this ground that Tatanagar Foundry Co. Ltd. had made an application at the early stages of the enquiry and pressed for a number of engineering concerns to be made parties to the dispute but the Tribunal had not acceded to this prayer. After dealing with the point in some detail, the Tribunal directed Tatanagar Foundry Co. Ltd. to abolish the system of contract labour excepting for the purpose of loading, unloading and for removing slags, ashes, burnt sand etc. and waste products. It was not argued before us that the Tribunals appraisal of the evidence and the direction to abolish contract labour were fundamentally wrong. What was urged before us was that such a direction would be discriminatory as between concerns engaged in the manufacture of railway sleepers and the abolition of contract labour in Tatanagar Foundry Co. Ltd. would mean an increase in its working expenses while the other concerns similarly engaged would be free to employ contract labour and thus oust Tatanagar Foundry Co. Ltd. from competition. Aswe have not the material before us to come to such a conclusion, we do not feel competent to express any opinion on this point and can only add that abolition of contract system of labour can be ordered by an Industrial Tribunal if the facts justify it. Industrial adjudication should not encourage the employment of contract labour is a principle which was laid down by this Court as far back as 1960 in Standard Vacuum Refining Co. of India Ltd. v. Its Workmen (1960) 3 SCR 466 at p. 473: (AIR 1960 SC 948 at p.
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Marachalil Pakku & Another Vs. State of Madras | whether accused 3 to 7 were the five among the seven persons who entered the house that day. That is the reason why their names do not appear in Ex. P-1. If their names also had appeared in Ex. P-1 we would have held that they are as much guilty as accused 1 and 2 are. The absence of their names in Ex. P-1 does not give us sufficient confidence to hold that since seven persons took part in the murder of whom accused 1 and 2 decidedly participated, the remaining five should necessarily be accused 3 to 7.We cannot therefore feel an abiding conviction of a moral certainty about the truth of the participation of he other five accused. Though it is a case where we may be morally convinced, from the evidence of P. Ws. 3, 4, 5 and 6, that these accused were also there, we are inclined to give them the benefit of the doubt. We are fully convinced that seven persons took part in this crime. But in regard to the identity of five of the seven persons, an element of doubt has occurred in our mind in view of the absence of their names in Ex. P-1 and their non-mention by P. W. 1. When we weigh the evidence of P. Ws. 3 to 6 in the scale along with that of P. W.1 and Ex. P-1, it seems to us that greater weight should be given to that of P. W. 1 and Ex. P-1. In those circumstances we have to give the benefit of the doubt to accused 3 to 7".7. It is this inconsistency in which the learned Judges fell that led us to the granting of special leave to appeal. The learned Judges positively held that seven persons took part in the crime. Witnesses whom they believed definitely named those seven persons. Their names were not give by P. W. 1 and P. W. 2 in Ex. P-1 because they had not identified the five with certainty, P. Ws. 5 and 6 whose evidence has been held to be true gave their names and identified them.It was nobodys case that the five who took part in this murder along with the two appellants were some others than those who had been charged and tried for the offence. In this situation the learned counsel for the appellants urged that their conviction was illegal as the charge was that the appellants and other five accused constituted an unlawful assembly and the said five accused having been acquitted, and in the absence of a charge that five other unknown persons constituted an unlawful assembly, the two appellants could not be held members of the unlawful assembly which had the above common object. It was also urged that there was misjoinder of charges and the trial was vitiated on that ground as well.8. In our judgment, none of the contentions raised by the learned counsel has any force. It is true, as stated in - Dalip Singh v. State of Punjab, AIR 1953 SC 364 (A),that unless a mistaken identity is suggested or where the circumstances shut out any reasonable possibility of mistaken identity, then the hesitation on the part of the judge can only be ascribed, not to any doubt about identity but to a doubt about the number taking part. This proposition has no application here where in very firm language a finding has been given that seven persons took part in the crime. Owing to the names of accused 3 to 7 not having been included in Ex. P-1 the High Court was not prepared to hold that the five named by P. Ws. 5 and 6 were necessarily the persons who participated in the crime.In view of this finding the contention that the two appellants could not be convicted under section 302 read with section 149 cannot be sustained. Be that as it may, after hearing Mr. Sethi on the merits of the case, we are satisfied that the High Court was in error in acquitting accused 3 to 7 and giving them the benefit of doubt. P. W. 2 who was responsible for Ex. P-1 was not sure about the identity of these five persons. In Ex. P-1 it was said that Pakku, Moosa and five other Muslims had stabbed Kannan with Knife. P. Ws. 5 and 6 were not present at the time when Ex. P-1 was dictated and therefore their evidence could not be affected by the circumstance that the names of accused 3 to 7 were not mentioned in Ex. P-1, and there was no reason to doubt the evidence of P. Ws. 5 and 6 on any grounds whatsoever.9. We have not been able to understand how the High Court could acquit these persons having held that the evidence of P. Ws. 5 and 6 as to how Kannan was murdered by accused 1 and 2 stabbing him and the others holding him by his hands and legs, was true. It also said that with regard to participation of accused 3 to 7 they could not say that the prosecution evidence was unreliable.On these findings, in our opinion, no scope was left for introducing into the case the theory of the benefit of doubt. We think that accused 3 to 7 were wrongfully acquitted. Though their acquittal stands, that circumstance cannot affect the conviction of the appellants under section 302 read with section 140, I. P. C.10. In this case there can be no doubt whatsoever that the two appellants along with five others came with the purpose and with the common object of putting an end to the life of Kannan. That being so, the conviction of appellants 1 and 2 for murder under section 302 read with section 149 is fully justified. We do not think that there has been any misjoinder of charges in this case. But even if it be so, that misjoinder has not caused any prejudice in the case. | 0[ds]7. It is this inconsistency in which the learned Judges fell that led us to the granting of special leave to appeal. The learned Judges positively held that seven persons took part in the crime. Witnesses whom they believed definitely named those seven persons. Their names were not give by P. W. 1 and P. W. 2 in Ex.because they had not identified the five with certainty, P. Ws. 5 and 6 whose evidence has been held to be true gave their names and identified them.It was nobodys case that the five who took part in this murder along with the two appellants were some others than those who had been charged and tried for the offence. In this situation the learned counsel for the appellants urged that their conviction was illegal as the charge was that the appellants and other five accused constituted an unlawful assembly and the said five accused having been acquitted, and in the absence of a charge that five other unknown persons constituted an unlawful assembly, the two appellants could not be held members of the unlawful assembly which had the above common object. It was also urged that there was misjoinder of charges and the trial was vitiated on that ground as well.8. In our judgment, none of the contentions raised by the learned counsel has any force. It is true, as stated inDalip Singh v. State of Punjab, AIR 1953 SC 364 (A),that unless a mistaken identity is suggested or where the circumstances shut out any reasonable possibility of mistaken identity, then the hesitation on the part of the judge can only be ascribed, not to any doubt about identity but to a doubt about the number taking part. This proposition has no application here where in very firm language a finding has been given that seven persons took part in the crime. Owing to the names of accused 3 to 7 not having been included in Ex.the High Court was not prepared to hold that the five named by P. Ws. 5 and 6 were necessarily the persons who participated in the crime.In view of this finding the contention that the two appellants could not be convicted under section 302 read with section 149 cannot be sustained. Be that as it may, after hearing Mr. Sethi on the merits of the case, we are satisfied that the High Court was in error in acquitting accused 3 to 7 and giving them the benefit of doubt. P. W. 2 who was responsible for Ex.was not sure about the identity of these five persons. In Ex.it was said that Pakku, Moosa and five other Muslims had stabbed Kannan with Knife. P. Ws. 5 and 6 were not present at the time when Ex.was dictated and therefore their evidence could not be affected by the circumstance that the names of accused 3 to 7 were not mentioned in Ex.and there was no reason to doubt the evidence of P. Ws. 5 and 6 on any grounds whatsoever.9. We have not been able to understand how the High Court could acquit these persons having held that the evidence of P. Ws. 5 and 6 as to how Kannan was murdered by accused 1 and 2 stabbing him and the others holding him by his hands and legs, was true. It also said that with regard to participation of accused 3 to 7 they could not say that the prosecution evidence was unreliable.On these findings, in our opinion, no scope was left for introducing into the case the theory of the benefit of doubt. We think that accused 3 to 7 were wrongfully acquitted. Though their acquittal stands, that circumstance cannot affect the conviction of the appellants under section 302 read with section 140, I. P. C.10. In this case there can be no doubt whatsoever that the two appellants along with five others came with the purpose and with the common object of putting an end to the life of Kannan. That being so, the conviction of appellants 1 and 2 for murder under section 302 read with section 149 is fully justified. We do not think that there has been any misjoinder of charges in this case. But even if it be so, that misjoinder has not caused any prejudice in the case. | 0 | 2,907 | 774 | ### 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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whether accused 3 to 7 were the five among the seven persons who entered the house that day. That is the reason why their names do not appear in Ex. P-1. If their names also had appeared in Ex. P-1 we would have held that they are as much guilty as accused 1 and 2 are. The absence of their names in Ex. P-1 does not give us sufficient confidence to hold that since seven persons took part in the murder of whom accused 1 and 2 decidedly participated, the remaining five should necessarily be accused 3 to 7.We cannot therefore feel an abiding conviction of a moral certainty about the truth of the participation of he other five accused. Though it is a case where we may be morally convinced, from the evidence of P. Ws. 3, 4, 5 and 6, that these accused were also there, we are inclined to give them the benefit of the doubt. We are fully convinced that seven persons took part in this crime. But in regard to the identity of five of the seven persons, an element of doubt has occurred in our mind in view of the absence of their names in Ex. P-1 and their non-mention by P. W. 1. When we weigh the evidence of P. Ws. 3 to 6 in the scale along with that of P. W.1 and Ex. P-1, it seems to us that greater weight should be given to that of P. W. 1 and Ex. P-1. In those circumstances we have to give the benefit of the doubt to accused 3 to 7".7. It is this inconsistency in which the learned Judges fell that led us to the granting of special leave to appeal. The learned Judges positively held that seven persons took part in the crime. Witnesses whom they believed definitely named those seven persons. Their names were not give by P. W. 1 and P. W. 2 in Ex. P-1 because they had not identified the five with certainty, P. Ws. 5 and 6 whose evidence has been held to be true gave their names and identified them.It was nobodys case that the five who took part in this murder along with the two appellants were some others than those who had been charged and tried for the offence. In this situation the learned counsel for the appellants urged that their conviction was illegal as the charge was that the appellants and other five accused constituted an unlawful assembly and the said five accused having been acquitted, and in the absence of a charge that five other unknown persons constituted an unlawful assembly, the two appellants could not be held members of the unlawful assembly which had the above common object. It was also urged that there was misjoinder of charges and the trial was vitiated on that ground as well.8. In our judgment, none of the contentions raised by the learned counsel has any force. It is true, as stated in - Dalip Singh v. State of Punjab, AIR 1953 SC 364 (A),that unless a mistaken identity is suggested or where the circumstances shut out any reasonable possibility of mistaken identity, then the hesitation on the part of the judge can only be ascribed, not to any doubt about identity but to a doubt about the number taking part. This proposition has no application here where in very firm language a finding has been given that seven persons took part in the crime. Owing to the names of accused 3 to 7 not having been included in Ex. P-1 the High Court was not prepared to hold that the five named by P. Ws. 5 and 6 were necessarily the persons who participated in the crime.In view of this finding the contention that the two appellants could not be convicted under section 302 read with section 149 cannot be sustained. Be that as it may, after hearing Mr. Sethi on the merits of the case, we are satisfied that the High Court was in error in acquitting accused 3 to 7 and giving them the benefit of doubt. P. W. 2 who was responsible for Ex. P-1 was not sure about the identity of these five persons. In Ex. P-1 it was said that Pakku, Moosa and five other Muslims had stabbed Kannan with Knife. P. Ws. 5 and 6 were not present at the time when Ex. P-1 was dictated and therefore their evidence could not be affected by the circumstance that the names of accused 3 to 7 were not mentioned in Ex. P-1, and there was no reason to doubt the evidence of P. Ws. 5 and 6 on any grounds whatsoever.9. We have not been able to understand how the High Court could acquit these persons having held that the evidence of P. Ws. 5 and 6 as to how Kannan was murdered by accused 1 and 2 stabbing him and the others holding him by his hands and legs, was true. It also said that with regard to participation of accused 3 to 7 they could not say that the prosecution evidence was unreliable.On these findings, in our opinion, no scope was left for introducing into the case the theory of the benefit of doubt. We think that accused 3 to 7 were wrongfully acquitted. Though their acquittal stands, that circumstance cannot affect the conviction of the appellants under section 302 read with section 140, I. P. C.10. In this case there can be no doubt whatsoever that the two appellants along with five others came with the purpose and with the common object of putting an end to the life of Kannan. That being so, the conviction of appellants 1 and 2 for murder under section 302 read with section 149 is fully justified. We do not think that there has been any misjoinder of charges in this case. But even if it be so, that misjoinder has not caused any prejudice in the case.
### Response:
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### Explanation:
7. It is this inconsistency in which the learned Judges fell that led us to the granting of special leave to appeal. The learned Judges positively held that seven persons took part in the crime. Witnesses whom they believed definitely named those seven persons. Their names were not give by P. W. 1 and P. W. 2 in Ex.because they had not identified the five with certainty, P. Ws. 5 and 6 whose evidence has been held to be true gave their names and identified them.It was nobodys case that the five who took part in this murder along with the two appellants were some others than those who had been charged and tried for the offence. In this situation the learned counsel for the appellants urged that their conviction was illegal as the charge was that the appellants and other five accused constituted an unlawful assembly and the said five accused having been acquitted, and in the absence of a charge that five other unknown persons constituted an unlawful assembly, the two appellants could not be held members of the unlawful assembly which had the above common object. It was also urged that there was misjoinder of charges and the trial was vitiated on that ground as well.8. In our judgment, none of the contentions raised by the learned counsel has any force. It is true, as stated inDalip Singh v. State of Punjab, AIR 1953 SC 364 (A),that unless a mistaken identity is suggested or where the circumstances shut out any reasonable possibility of mistaken identity, then the hesitation on the part of the judge can only be ascribed, not to any doubt about identity but to a doubt about the number taking part. This proposition has no application here where in very firm language a finding has been given that seven persons took part in the crime. Owing to the names of accused 3 to 7 not having been included in Ex.the High Court was not prepared to hold that the five named by P. Ws. 5 and 6 were necessarily the persons who participated in the crime.In view of this finding the contention that the two appellants could not be convicted under section 302 read with section 149 cannot be sustained. Be that as it may, after hearing Mr. Sethi on the merits of the case, we are satisfied that the High Court was in error in acquitting accused 3 to 7 and giving them the benefit of doubt. P. W. 2 who was responsible for Ex.was not sure about the identity of these five persons. In Ex.it was said that Pakku, Moosa and five other Muslims had stabbed Kannan with Knife. P. Ws. 5 and 6 were not present at the time when Ex.was dictated and therefore their evidence could not be affected by the circumstance that the names of accused 3 to 7 were not mentioned in Ex.and there was no reason to doubt the evidence of P. Ws. 5 and 6 on any grounds whatsoever.9. We have not been able to understand how the High Court could acquit these persons having held that the evidence of P. Ws. 5 and 6 as to how Kannan was murdered by accused 1 and 2 stabbing him and the others holding him by his hands and legs, was true. It also said that with regard to participation of accused 3 to 7 they could not say that the prosecution evidence was unreliable.On these findings, in our opinion, no scope was left for introducing into the case the theory of the benefit of doubt. We think that accused 3 to 7 were wrongfully acquitted. Though their acquittal stands, that circumstance cannot affect the conviction of the appellants under section 302 read with section 140, I. P. C.10. In this case there can be no doubt whatsoever that the two appellants along with five others came with the purpose and with the common object of putting an end to the life of Kannan. That being so, the conviction of appellants 1 and 2 for murder under section 302 read with section 149 is fully justified. We do not think that there has been any misjoinder of charges in this case. But even if it be so, that misjoinder has not caused any prejudice in the case.
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Jay Electric Wire Corporation Employees Union & Another Vs. Pravin Gada & Others | a matter of some significance that within a period of a little over a month thereafter, an offer was made to the Recovery Officer for the same property for Rs.6.45 crores. Even that offer, it must be noted, was without a public advertisement being issued and an opportunity being granted to the public at large to bid for the property. The amount of Rs.6.45 crores was deposited by the bidder, who had submitted a bid on 5 December 2006. That bid was, however, withdrawn as a result of the fact that the process of conducting a fresh auction came to be stalled as a result of the order of stay passed by the DRAT. The bid amount was permitted to be withdrawn under orders of the Court, specifically in view of the fact that as a result of the delay that had taken place in the conduct of the fresh auction, the process had been brought to a stand still. Significantly, the Recovery Officer after confirming the sale on 27 October 2006, proceeded to hand over possession of the property on 31 October 2006. On 30 October 2006, the previous day, Central Bank had moved an application for setting aside the confirmation of sale. There has been a material irregularity in the sale which vitiates the sale.22. Counsel appearing on behalf of the First and Second Respondents submitted that the Court ought not to interfere in exercise of its writ jurisdiction under Article 226 of the Constitution because otherwise, the sanctity of the sale process would be lost. The sanctity of a properly conducted sale has to be preserved, and a sale would not be set aside merely because, as a result of a lapse of time, a higher price is being realized. The Supreme Court in NGEF Ltd. v. Chandra Developers Pvt. Ltd. (2005) 8 SCC 219 at 50held as much saying:The satisfaction as regard adequacy of the price is one of the relevant factors for proper and reasonable exercise of the judicial discretion vested in it. There cannot be any doubt or dispute that when an auction is held upon compliance of the statutory provisions, withholding of auction on the ground that still higher price may be obtained may prove to be self-defeating exercise as has been held in KayjayIndustries Pvt. Ltd. v. Asnew Drums Pvt. Ltd. AIR 1974 SC 1331 and State of Punjab v. Yoginder Sharma Onkar Rai & Co. and Ors. (1996)6SCC173Equities which are created in favour of a bidder who submits a bona fide bid which is found at the end of a transparent sale process to be the highest bid have to be preserved. At the same time, it is necessary that the sale process must be conducted with transparency and in accordance with law. In the present case, we find that the element of transparency was completely lacking. The grounds which weighed with the DRAT in setting aside the order of the Tribunal are misconceived. The DRAT, as we have noted earlier, was of the view that the powers of the Liquidator were restricted by the Company Court to participate at the stage of disbursement of the dues. This exfacie is an incorrect reading of the orders passed by the Company Court. The DRAT has found fault with the Central Bank for having remained absent before the Recovery Officer on 9 August 2006 and 21 August 2006. This absence of the Central Bank at two hearings which took place before the Receiver can furnish no justification whatsoever for the conduct of the sale in a manner which is not consistent with fair dealing. Further, in Union Bank of India v. Official Liquidator AIR 2000 SC 3642 , the Supreme Court has taken cognisance of the fact that a judge must attempt to verify the reliability of a valuation report. The court had stated that it appears that learned Judge has not applied his mind to the valuation report itself. He has only considered the last figures given in the valuation report which says that total valuation of the property was Rs. 66,19,032/. Had the Court considered the report it would have immediately noticed that valuation report was not at all reliable.Id. at 14In Allahabad Bank v. Bengal Paper Mills Co. Ltd., AIR 1999 SC 1715 the Supreme Court had observed that:Upon liquidation, the assets and properties of the company in liquidation vest in the Official Liquidator for the benefit of its creditors. It is only from out of the sale proceeds of these assets and properties that the creditors of the company can hope to recoup their dues. To ensure that the best possible price is realised upon the sale of these assets and properties, the sale thereof by the liquidator is required to be confirmed by the High Court. It is the obligation of the High Court to the creditors of the company in liquidation to make sure that the best possible price has been realised.Thereafter, the court quoted the judgment of Navalkha& Sons v. Sri Ramanya Das (1970) 3 SCR 1 :The condition of confirmation by the Court operates as a safeguard against the property being sold at inadequate price whether or not it is a consequence of any irregularity or fraud in the conduct of the sale. In every case it is the duty of the Court to satisfy itself that having regard to the market value of the property the price offered is reasonable. Unless the Court is satisfied about the adequacy of the price the act of confirmation of the sale would not be proper exercise of judicial discretion.In the present case, the authenticity of the valuation report is another factor that ought to have been weighed by the DRAT, especially in light of the fact that higher offers were received days after the sale. In light of all the above, the conclusion of the DRAT that there was no material irregularity is specious. A case for interference under the jurisdiction of this Court is made out. | 1[ds]19. The record of the case reveals that the principal borrower, which is a Company incorporated under the Companies Act, 1956, has been ordered to be wound up. A provisional Liquidator was initially appointed by an order of the Company Judge dated 6 October 2005. While passing an order of winding up on 15 October 2008, the Company Judge directed that the Liquidator shall act in accordance with law in relation to the assets of the Company in liquidation. The Official Liquidator placed his report dated 1 December 2006 on the file of the DRT contending that the sale which has been effected in favour of the First and Second Respondents ought to be set aside for the reason that no notice had been furnished to him. The DRAT in the course of its impugned order observed that the Liquidator who was appointed under the orders passed by the Company Court only had restricted powers to participate at the stage of the disbursement of the dues of the workmen. This exfacie is not a correct reading either of the order of the Company Judge dated 6 October 2005 by which a provisional Liquidator came to be appointed or of the final order dated 15 October 2008 when a Liquidator was appointed upon an order of winding up being passed. As a matter of fact, the record before the Court would indicate that initially it was on 26 February 2004 that the Official Liquidator was appointed as provisional Liquidator in Company Petition 336 of 2006. The powers of the Liquidator were not restricted by the orders of the Companywithout a public notice inviting offers, the price for the property had more than doubled. The process adopted by the Recovery Officer was, however, faulty for the reason that when the earlier sale was set aside on 5 December 2006, no fresh notice was issued to enable participation amongst bidders drawn from the public at large. This was noticed in the order of the DRT dated 6 February 2007. The DRT directed that a fresh process of bidding be concluded after the issuance of a public notice. The reasons which weighed with the DRT were eminently proper. The Tribunal found that the valuation was flawed, and that instead of a private negotiation, a fair public auction should be held. It is this order of the DRT which was carried in appeal to the DRAT and which was setare of the view that the manner in which the sale process was conducted is anything but fair. The Receivers have cast aside every norm of prudence. They failed to act in a transparent manner and elevated a private preference to an overriding priority. As a result, the necessity of selling property at a public auction at which the best possible price could be realised has been an unfortunate casualty. The sale has been conducted evidently without following any principles of transparency or fair dealing. Admittedly no public notice has been issued before the sale which culminated in favour of the First and Second Respondents was held. The price which was offered by the First and Second Respondents was Rs.2.50 crores. The sale was confirmed on 27 October 2006 and it is a matter of some significance that within a period of a little over a month thereafter, an offer was made to the Recovery Officer for the same property for Rs.6.45 crores. Even that offer, it must be noted, was without a public advertisement being issued and an opportunity being granted to the public at large to bid for the property. The amount of Rs.6.45 crores was deposited by the bidder, who had submitted a bid on 5 December 2006. That bid was, however, withdrawn as a result of the fact that the process of conducting a fresh auction came to be stalled as a result of the order of stay passed by the DRAT. The bid amount was permitted to be withdrawn under orders of the Court, specifically in view of the fact that as a result of the delay that had taken place in the conduct of the fresh auction, the process had been brought to a stand still. Significantly, the Recovery Officer after confirming the sale on 27 October 2006, proceeded to hand over possession of the property on 31 October 2006. On 30 October 2006, the previous day, Central Bank had moved an application for setting aside the confirmation of sale. There has been a material irregularity in the sale which vitiates thethe present case, the authenticity of the valuation report is another factor that ought to have been weighed by the DRAT, especially in light of the fact that higher offers were received days after the sale. In light of all the above, the conclusion of the DRAT that there was no material irregularity is specious. A case for interference under the jurisdiction of this Court is made out. | 1 | 6,852 | 881 | ### 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 matter of some significance that within a period of a little over a month thereafter, an offer was made to the Recovery Officer for the same property for Rs.6.45 crores. Even that offer, it must be noted, was without a public advertisement being issued and an opportunity being granted to the public at large to bid for the property. The amount of Rs.6.45 crores was deposited by the bidder, who had submitted a bid on 5 December 2006. That bid was, however, withdrawn as a result of the fact that the process of conducting a fresh auction came to be stalled as a result of the order of stay passed by the DRAT. The bid amount was permitted to be withdrawn under orders of the Court, specifically in view of the fact that as a result of the delay that had taken place in the conduct of the fresh auction, the process had been brought to a stand still. Significantly, the Recovery Officer after confirming the sale on 27 October 2006, proceeded to hand over possession of the property on 31 October 2006. On 30 October 2006, the previous day, Central Bank had moved an application for setting aside the confirmation of sale. There has been a material irregularity in the sale which vitiates the sale.22. Counsel appearing on behalf of the First and Second Respondents submitted that the Court ought not to interfere in exercise of its writ jurisdiction under Article 226 of the Constitution because otherwise, the sanctity of the sale process would be lost. The sanctity of a properly conducted sale has to be preserved, and a sale would not be set aside merely because, as a result of a lapse of time, a higher price is being realized. The Supreme Court in NGEF Ltd. v. Chandra Developers Pvt. Ltd. (2005) 8 SCC 219 at 50held as much saying:The satisfaction as regard adequacy of the price is one of the relevant factors for proper and reasonable exercise of the judicial discretion vested in it. There cannot be any doubt or dispute that when an auction is held upon compliance of the statutory provisions, withholding of auction on the ground that still higher price may be obtained may prove to be self-defeating exercise as has been held in KayjayIndustries Pvt. Ltd. v. Asnew Drums Pvt. Ltd. AIR 1974 SC 1331 and State of Punjab v. Yoginder Sharma Onkar Rai & Co. and Ors. (1996)6SCC173Equities which are created in favour of a bidder who submits a bona fide bid which is found at the end of a transparent sale process to be the highest bid have to be preserved. At the same time, it is necessary that the sale process must be conducted with transparency and in accordance with law. In the present case, we find that the element of transparency was completely lacking. The grounds which weighed with the DRAT in setting aside the order of the Tribunal are misconceived. The DRAT, as we have noted earlier, was of the view that the powers of the Liquidator were restricted by the Company Court to participate at the stage of disbursement of the dues. This exfacie is an incorrect reading of the orders passed by the Company Court. The DRAT has found fault with the Central Bank for having remained absent before the Recovery Officer on 9 August 2006 and 21 August 2006. This absence of the Central Bank at two hearings which took place before the Receiver can furnish no justification whatsoever for the conduct of the sale in a manner which is not consistent with fair dealing. Further, in Union Bank of India v. Official Liquidator AIR 2000 SC 3642 , the Supreme Court has taken cognisance of the fact that a judge must attempt to verify the reliability of a valuation report. The court had stated that it appears that learned Judge has not applied his mind to the valuation report itself. He has only considered the last figures given in the valuation report which says that total valuation of the property was Rs. 66,19,032/. Had the Court considered the report it would have immediately noticed that valuation report was not at all reliable.Id. at 14In Allahabad Bank v. Bengal Paper Mills Co. Ltd., AIR 1999 SC 1715 the Supreme Court had observed that:Upon liquidation, the assets and properties of the company in liquidation vest in the Official Liquidator for the benefit of its creditors. It is only from out of the sale proceeds of these assets and properties that the creditors of the company can hope to recoup their dues. To ensure that the best possible price is realised upon the sale of these assets and properties, the sale thereof by the liquidator is required to be confirmed by the High Court. It is the obligation of the High Court to the creditors of the company in liquidation to make sure that the best possible price has been realised.Thereafter, the court quoted the judgment of Navalkha& Sons v. Sri Ramanya Das (1970) 3 SCR 1 :The condition of confirmation by the Court operates as a safeguard against the property being sold at inadequate price whether or not it is a consequence of any irregularity or fraud in the conduct of the sale. In every case it is the duty of the Court to satisfy itself that having regard to the market value of the property the price offered is reasonable. Unless the Court is satisfied about the adequacy of the price the act of confirmation of the sale would not be proper exercise of judicial discretion.In the present case, the authenticity of the valuation report is another factor that ought to have been weighed by the DRAT, especially in light of the fact that higher offers were received days after the sale. In light of all the above, the conclusion of the DRAT that there was no material irregularity is specious. A case for interference under the jurisdiction of this Court is made out.
### Response:
1
### Explanation:
19. The record of the case reveals that the principal borrower, which is a Company incorporated under the Companies Act, 1956, has been ordered to be wound up. A provisional Liquidator was initially appointed by an order of the Company Judge dated 6 October 2005. While passing an order of winding up on 15 October 2008, the Company Judge directed that the Liquidator shall act in accordance with law in relation to the assets of the Company in liquidation. The Official Liquidator placed his report dated 1 December 2006 on the file of the DRT contending that the sale which has been effected in favour of the First and Second Respondents ought to be set aside for the reason that no notice had been furnished to him. The DRAT in the course of its impugned order observed that the Liquidator who was appointed under the orders passed by the Company Court only had restricted powers to participate at the stage of the disbursement of the dues of the workmen. This exfacie is not a correct reading either of the order of the Company Judge dated 6 October 2005 by which a provisional Liquidator came to be appointed or of the final order dated 15 October 2008 when a Liquidator was appointed upon an order of winding up being passed. As a matter of fact, the record before the Court would indicate that initially it was on 26 February 2004 that the Official Liquidator was appointed as provisional Liquidator in Company Petition 336 of 2006. The powers of the Liquidator were not restricted by the orders of the Companywithout a public notice inviting offers, the price for the property had more than doubled. The process adopted by the Recovery Officer was, however, faulty for the reason that when the earlier sale was set aside on 5 December 2006, no fresh notice was issued to enable participation amongst bidders drawn from the public at large. This was noticed in the order of the DRT dated 6 February 2007. The DRT directed that a fresh process of bidding be concluded after the issuance of a public notice. The reasons which weighed with the DRT were eminently proper. The Tribunal found that the valuation was flawed, and that instead of a private negotiation, a fair public auction should be held. It is this order of the DRT which was carried in appeal to the DRAT and which was setare of the view that the manner in which the sale process was conducted is anything but fair. The Receivers have cast aside every norm of prudence. They failed to act in a transparent manner and elevated a private preference to an overriding priority. As a result, the necessity of selling property at a public auction at which the best possible price could be realised has been an unfortunate casualty. The sale has been conducted evidently without following any principles of transparency or fair dealing. Admittedly no public notice has been issued before the sale which culminated in favour of the First and Second Respondents was held. The price which was offered by the First and Second Respondents was Rs.2.50 crores. The sale was confirmed on 27 October 2006 and it is a matter of some significance that within a period of a little over a month thereafter, an offer was made to the Recovery Officer for the same property for Rs.6.45 crores. Even that offer, it must be noted, was without a public advertisement being issued and an opportunity being granted to the public at large to bid for the property. The amount of Rs.6.45 crores was deposited by the bidder, who had submitted a bid on 5 December 2006. That bid was, however, withdrawn as a result of the fact that the process of conducting a fresh auction came to be stalled as a result of the order of stay passed by the DRAT. The bid amount was permitted to be withdrawn under orders of the Court, specifically in view of the fact that as a result of the delay that had taken place in the conduct of the fresh auction, the process had been brought to a stand still. Significantly, the Recovery Officer after confirming the sale on 27 October 2006, proceeded to hand over possession of the property on 31 October 2006. On 30 October 2006, the previous day, Central Bank had moved an application for setting aside the confirmation of sale. There has been a material irregularity in the sale which vitiates thethe present case, the authenticity of the valuation report is another factor that ought to have been weighed by the DRAT, especially in light of the fact that higher offers were received days after the sale. In light of all the above, the conclusion of the DRAT that there was no material irregularity is specious. A case for interference under the jurisdiction of this Court is made out.
|
F.C.I Vs. M/S. Chandu Construction | change of circumstances, "completely outside the contemplation of parties" at the time when the contract was entered into will justify a Court, while holding the parties bound by the contract, in departing from the express terms thereof. Similarly, in The Naihati Jute Mills Ltd. Vs. Khyaliram Jagannath , this Court had observed that where there is an express term, the Court cannot find, on construction of the contract, an implied term inconsistent with such express term. 13. In Continental Construction Co. Ltd. Vs. State of Madhya Pradesh, it was emphasised that not being a conciliator, an arbitrator cannot ignore the law or misapply it in order to do what he thinks is just and reasonable. He is a tribunal selected by the parties to decide their disputes according to law and so is bound to follow and apply the law, and if he does not, he can be set right by the court provided his error appears on the face of the award.14. In Bharat Coking Coal Ltd. Vs. Annapurna Construction while inter alia, observing that the arbitrator cannot act arbitrarily, irrationally, capriciously or independent of the contract, it was observed, thus: "There lies a clear distinction between an error within the jurisdiction and error in excess of jurisdiction. Thus, the role of the arbitrator is to arbitrate within the terms of the contract. He has no power apart from what the parties have given him under the contract. If he has travelled beyond the contract, he would be acting without jurisdiction, whereas if he has remained inside the parameters of the contract, his award cannot be questioned on the ground that it contains an error apparent on the face of the record." 15. Therefore, it needs little emphasis that an arbitrator derives his authority from the contract and if he acts in disregard of the contract, he acts without jurisdiction. A deliberate departure from contract amounts to not only manifest disregard of his authority or a misconduct on his part, but it may tantamount to a mala fide action [Also see: Associated Engineering Co. Vs. Government of Andhra Pradesh & Anr. (supra)]. 16. Thus, the issue, which arises for determination, is whether in awarding Claim No.9, the arbitrator has disregarded the agreement between the parties and in the process exceeded his jurisdiction and has, thus, committed legal misconduct? 17. For deciding the controversy, it would be necessary to refer to the relevant clauses of the contract, which read thus: "1. GENERAL SPECIFICATIONS:1.1. The civil sanitary, water supply and road works shall be carried out as per Central Public Works Department specification of works at Delhi 1967 Volume I & II with correction slips upto date-In the case of civil, sanitary, water supply and road works and electrical works should there be any difference between the Central Public Works Department specifications mentioned above and the specifications of schedule of quantities, the latter i.e. the specification of schedule of quantities, shall prevail. For items of work not covered in the C.P.W.D. specifications or where the C.P.W.D. specifications are silent on any particular point, the relevant specifications or code of practice of the Indian Standard Institution shall be followed.1.2. Should any clarification be needed regarding the specifications for any work the written instructions from the Engineer-in-Charge shall be obtained." 18. Paragraph 2.9.4 of the C.P.W.D. specifications insofar as it is relevant for the present appeal, reads as follows: "Rate:- It includes the cost of materials and labour involved in all the operations described above." 19. From the above extracted terms of the agreement between the FCI and the claimants, it is manifest that the contract was to be executed in accordance with the C.P.W.D. specifications. As per para 2.9.4 of the said specifications, the rate quoted by the bidder had to be for both the items required for construction of the godowns, namely, the labour as well as the materials, particularly when it was a turn key project. It is to be borne in mind that filling up of the plinth with sand under the floors for completion of the project was contemplated under the agreement but there was neither any stipulation in the tender document for splitting of the quotation for labour and material nor was it done by the claimants in their bid. The claimants had submitted their tender with eyes wide open and if according to them the cost of sand was not included in the quoted rates, they would have protested at some stage of execution of the contract, which is not the case here. Having accepted the terms of the agreement dated 19th September, 1989, they were bound by its terms and so was the arbitrator. It is, thus, clear that the claim awarded by the arbitrator is contrary to the unambiguous terms of the contract. We are of the view that the arbitrator was not justified in ignoring the express terms of the contract merely on the ground that in another contract for a similar work, extra payment for material was provided for. It was not open to the arbitrator to travel beyond the terms of the contract even if he was convinced that the rate quoted by the claimants was low and another contractor, namely, M/s Gupta and Company had been separately paid for the material. Claimants claim had to be adjudicated by the specific terms of their agreement with the FCI and no other.20. Therefore, in our view, by awarding extra payment for supply of sand the arbitrator has out-stepped confines of the contract. This error on his part cannot be said to be on account of misconstruing of the terms of the contract but it was by way of disregarding the contract, manifestly ignoring the clear stipulation in the contract. In our opinion, by doing so, the arbitrator misdirected and misconducted himself. Hence, the award made by the arbitration in respect of claim No.9, on the face of it, is beyond his jurisdiction; is illegal and needs being set aside. 21. Consequently, the | 1[ds]11. It is trite to say that the arbitrator being a creature of the agreement between the parties, he has to operate within the four corners of the agreement and if he ignores the specific terms of the contract, it would be a question of jurisdictional error on the face of the award, falling within the ambit of legal misconduct which could be corrected by the Court. We may, however, hasten to add that if the arbitrator commits an error in the construction of contract, that is an error within his jurisdiction.In Continental Construction Co. Ltd. Vs. State of Madhya Pradesh, it was emphasised that not being a conciliator, an arbitrator cannot ignore the law or misapply it in order to do what he thinks is just and reasonable. He is a tribunal selected by the parties to decide their disputes according to law and so is bound to follow and apply the law, and if he does not, he can be set right by the court provided his error appears on the face of the award.14. In Bharat Coking Coal Ltd. Vs. Annapurna Construction while inter alia, observing that the arbitrator cannot act arbitrarily, irrationally, capriciously or independent of the contract, it was observed,lies a clear distinction between an error within the jurisdiction and error in excess of jurisdiction. Thus, the role of the arbitrator is to arbitrate within the terms of the contract. He has no power apart from what the parties have given him under the contract. If he has travelled beyond the contract, he would be acting without jurisdiction, whereas if he has remained inside the parameters of the contract, his award cannot be questioned on the ground that it contains an error apparent on the face of the record.Therefore, it needs little emphasis that an arbitrator derives his authority from the contract and if he acts in disregard of the contract, he acts without jurisdiction. A deliberate departure from contract amounts to not only manifest disregard of his authority or a misconduct on his part, but it may tantamount to a mala fide action [Also see: Associated Engineering Co. Vs. Government of Andhra Pradesh & Anr. (supra)].From the above extracted terms of the agreement between the FCI and the claimants, it is manifest that the contract was to be executed in accordance with the C.P.W.D. specifications. As per para 2.9.4 of the said specifications, the rate quoted by the bidder had to be for both the items required for construction of the godowns, namely, the labour as well as the materials, particularly when it was a turn key project. It is to be borne in mind that filling up of the plinth with sand under the floors for completion of the project was contemplated under the agreement but there was neither any stipulation in the tender document for splitting of the quotation for labour and material nor was it done by the claimants in their bid. The claimants had submitted their tender with eyes wide open and if according to them the cost of sand was not included in the quoted rates, they would have protested at some stage of execution of the contract, which is not the case here. Having accepted the terms of the agreement dated 19th September, 1989, they were bound by its terms and so was the arbitrator. It is, thus, clear that the claim awarded by the arbitrator is contrary to the unambiguous terms of the contract. We are of the view that the arbitrator was not justified in ignoring the express terms of the contract merely on the ground that in another contract for a similar work, extra payment for material was provided for. It was not open to the arbitrator to travel beyond the terms of the contract even if he was convinced that the rate quoted by the claimants was low and another contractor, namely, M/s Gupta and Company had been separately paid for the material. Claimants claim had to be adjudicated by the specific terms of their agreement with the FCI and no other.20. Therefore, in our view, by awarding extra payment for supply of sand the arbitrator hasconfines of the contract. This error on his part cannot be said to be on account of misconstruing of the terms of the contract but it was by way of disregarding the contract, manifestly ignoring the clear stipulation in the contract. In our opinion, by doing so, the arbitrator misdirected and misconductedthe award made by the arbitration in respect of claim No.9, on the face of it, is beyond his jurisdiction; is illegal and needs being set aside. | 1 | 3,123 | 854 | ### 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:
change of circumstances, "completely outside the contemplation of parties" at the time when the contract was entered into will justify a Court, while holding the parties bound by the contract, in departing from the express terms thereof. Similarly, in The Naihati Jute Mills Ltd. Vs. Khyaliram Jagannath , this Court had observed that where there is an express term, the Court cannot find, on construction of the contract, an implied term inconsistent with such express term. 13. In Continental Construction Co. Ltd. Vs. State of Madhya Pradesh, it was emphasised that not being a conciliator, an arbitrator cannot ignore the law or misapply it in order to do what he thinks is just and reasonable. He is a tribunal selected by the parties to decide their disputes according to law and so is bound to follow and apply the law, and if he does not, he can be set right by the court provided his error appears on the face of the award.14. In Bharat Coking Coal Ltd. Vs. Annapurna Construction while inter alia, observing that the arbitrator cannot act arbitrarily, irrationally, capriciously or independent of the contract, it was observed, thus: "There lies a clear distinction between an error within the jurisdiction and error in excess of jurisdiction. Thus, the role of the arbitrator is to arbitrate within the terms of the contract. He has no power apart from what the parties have given him under the contract. If he has travelled beyond the contract, he would be acting without jurisdiction, whereas if he has remained inside the parameters of the contract, his award cannot be questioned on the ground that it contains an error apparent on the face of the record." 15. Therefore, it needs little emphasis that an arbitrator derives his authority from the contract and if he acts in disregard of the contract, he acts without jurisdiction. A deliberate departure from contract amounts to not only manifest disregard of his authority or a misconduct on his part, but it may tantamount to a mala fide action [Also see: Associated Engineering Co. Vs. Government of Andhra Pradesh & Anr. (supra)]. 16. Thus, the issue, which arises for determination, is whether in awarding Claim No.9, the arbitrator has disregarded the agreement between the parties and in the process exceeded his jurisdiction and has, thus, committed legal misconduct? 17. For deciding the controversy, it would be necessary to refer to the relevant clauses of the contract, which read thus: "1. GENERAL SPECIFICATIONS:1.1. The civil sanitary, water supply and road works shall be carried out as per Central Public Works Department specification of works at Delhi 1967 Volume I & II with correction slips upto date-In the case of civil, sanitary, water supply and road works and electrical works should there be any difference between the Central Public Works Department specifications mentioned above and the specifications of schedule of quantities, the latter i.e. the specification of schedule of quantities, shall prevail. For items of work not covered in the C.P.W.D. specifications or where the C.P.W.D. specifications are silent on any particular point, the relevant specifications or code of practice of the Indian Standard Institution shall be followed.1.2. Should any clarification be needed regarding the specifications for any work the written instructions from the Engineer-in-Charge shall be obtained." 18. Paragraph 2.9.4 of the C.P.W.D. specifications insofar as it is relevant for the present appeal, reads as follows: "Rate:- It includes the cost of materials and labour involved in all the operations described above." 19. From the above extracted terms of the agreement between the FCI and the claimants, it is manifest that the contract was to be executed in accordance with the C.P.W.D. specifications. As per para 2.9.4 of the said specifications, the rate quoted by the bidder had to be for both the items required for construction of the godowns, namely, the labour as well as the materials, particularly when it was a turn key project. It is to be borne in mind that filling up of the plinth with sand under the floors for completion of the project was contemplated under the agreement but there was neither any stipulation in the tender document for splitting of the quotation for labour and material nor was it done by the claimants in their bid. The claimants had submitted their tender with eyes wide open and if according to them the cost of sand was not included in the quoted rates, they would have protested at some stage of execution of the contract, which is not the case here. Having accepted the terms of the agreement dated 19th September, 1989, they were bound by its terms and so was the arbitrator. It is, thus, clear that the claim awarded by the arbitrator is contrary to the unambiguous terms of the contract. We are of the view that the arbitrator was not justified in ignoring the express terms of the contract merely on the ground that in another contract for a similar work, extra payment for material was provided for. It was not open to the arbitrator to travel beyond the terms of the contract even if he was convinced that the rate quoted by the claimants was low and another contractor, namely, M/s Gupta and Company had been separately paid for the material. Claimants claim had to be adjudicated by the specific terms of their agreement with the FCI and no other.20. Therefore, in our view, by awarding extra payment for supply of sand the arbitrator has out-stepped confines of the contract. This error on his part cannot be said to be on account of misconstruing of the terms of the contract but it was by way of disregarding the contract, manifestly ignoring the clear stipulation in the contract. In our opinion, by doing so, the arbitrator misdirected and misconducted himself. Hence, the award made by the arbitration in respect of claim No.9, on the face of it, is beyond his jurisdiction; is illegal and needs being set aside. 21. Consequently, the
### Response:
1
### Explanation:
11. It is trite to say that the arbitrator being a creature of the agreement between the parties, he has to operate within the four corners of the agreement and if he ignores the specific terms of the contract, it would be a question of jurisdictional error on the face of the award, falling within the ambit of legal misconduct which could be corrected by the Court. We may, however, hasten to add that if the arbitrator commits an error in the construction of contract, that is an error within his jurisdiction.In Continental Construction Co. Ltd. Vs. State of Madhya Pradesh, it was emphasised that not being a conciliator, an arbitrator cannot ignore the law or misapply it in order to do what he thinks is just and reasonable. He is a tribunal selected by the parties to decide their disputes according to law and so is bound to follow and apply the law, and if he does not, he can be set right by the court provided his error appears on the face of the award.14. In Bharat Coking Coal Ltd. Vs. Annapurna Construction while inter alia, observing that the arbitrator cannot act arbitrarily, irrationally, capriciously or independent of the contract, it was observed,lies a clear distinction between an error within the jurisdiction and error in excess of jurisdiction. Thus, the role of the arbitrator is to arbitrate within the terms of the contract. He has no power apart from what the parties have given him under the contract. If he has travelled beyond the contract, he would be acting without jurisdiction, whereas if he has remained inside the parameters of the contract, his award cannot be questioned on the ground that it contains an error apparent on the face of the record.Therefore, it needs little emphasis that an arbitrator derives his authority from the contract and if he acts in disregard of the contract, he acts without jurisdiction. A deliberate departure from contract amounts to not only manifest disregard of his authority or a misconduct on his part, but it may tantamount to a mala fide action [Also see: Associated Engineering Co. Vs. Government of Andhra Pradesh & Anr. (supra)].From the above extracted terms of the agreement between the FCI and the claimants, it is manifest that the contract was to be executed in accordance with the C.P.W.D. specifications. As per para 2.9.4 of the said specifications, the rate quoted by the bidder had to be for both the items required for construction of the godowns, namely, the labour as well as the materials, particularly when it was a turn key project. It is to be borne in mind that filling up of the plinth with sand under the floors for completion of the project was contemplated under the agreement but there was neither any stipulation in the tender document for splitting of the quotation for labour and material nor was it done by the claimants in their bid. The claimants had submitted their tender with eyes wide open and if according to them the cost of sand was not included in the quoted rates, they would have protested at some stage of execution of the contract, which is not the case here. Having accepted the terms of the agreement dated 19th September, 1989, they were bound by its terms and so was the arbitrator. It is, thus, clear that the claim awarded by the arbitrator is contrary to the unambiguous terms of the contract. We are of the view that the arbitrator was not justified in ignoring the express terms of the contract merely on the ground that in another contract for a similar work, extra payment for material was provided for. It was not open to the arbitrator to travel beyond the terms of the contract even if he was convinced that the rate quoted by the claimants was low and another contractor, namely, M/s Gupta and Company had been separately paid for the material. Claimants claim had to be adjudicated by the specific terms of their agreement with the FCI and no other.20. Therefore, in our view, by awarding extra payment for supply of sand the arbitrator hasconfines of the contract. This error on his part cannot be said to be on account of misconstruing of the terms of the contract but it was by way of disregarding the contract, manifestly ignoring the clear stipulation in the contract. In our opinion, by doing so, the arbitrator misdirected and misconductedthe award made by the arbitration in respect of claim No.9, on the face of it, is beyond his jurisdiction; is illegal and needs being set aside.
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Special Officer, Commerce, North Eastern Electricity Company of Orissa and Anr Vs. Raghunath Paper Mills Private Limited and Anr | from the tabulated statement above set out, the auction-purchasers came to purchase the property after disconnection but they cannot be ?consumer or occupier? within the meaning of the above provisions till a contract is entered into. 63. We are clearly of the opinion that there is great reason and justice in holding as above. Electricity is public property. Law, in its majesty, benignly protects public property and behoves everyone to respect public property. Hence, the courts must be zealous in this regard. But, the law, as it stands, is inadequate to enforce the liability of the previous contracting party against the auction- purchaser who is a third party and is in no way connected with the previous owner/occupier. It may not be correct to state, if we hold as we have done above, it would permit dishonest consumers transferring their units from one hand to another, from time to time, infinitum without the payment of the dues to the extent of lakhs and lakhs of rupees and each one of them can easily say that he is not liable for the liability of the predecessor in interest…..? 17) In Paschimanchal Vidyut Vitran Nigam Ltd. & Ors. vs. DVS Steels & Alloys Pvt. Ltd. & Ors. AIR 2009 SC 647 = (2009) 1 SCC 210 , the question whether the supplier can recover electricity dues from the purchaser of a sub-divided plot was considered by this Court. The following conclusion is relevant:- ?9. The supply of electricity by a distributor to a consumer is ?sale of goods?. The distributor as the supplier, and the owner/occupier of a premises with whom it enters into a contract for supply of electricity are the parties to the contract. A transferee of the premises or a subsequent occupant of a premises with whom the supplier has no privity of contract cannot obviously be asked to pay the dues of his predecessor-in-title or possession, as the amount payable towards supply of electricity does not constitute a ?charge? on the premises. A purchaser of a premises, cannot be foisted with the electricity dues of any previous occupant, merely because he happens to be the current owner of the premises. The supplier can therefore neither file a suit nor initiate revenue recovery proceedings against a purchaser of a premises for the outstanding electricity dues of the vendor of the premises in the absence of any contract to the contrary. Learned counsel for the appellant heavily relied on para 10 of the very same judgment which reads as under:- 10. But the above legal position is not of any practical help to a purchaser of premises. When the purchaser of a premises approaches the distributor seeking a fresh electricity connection to its premises for supply of electricity, the distributor can stipulate the terms subject to which it would supply electricity. It can stipulate as one of the conditions for supply, that the arrears due in regard to the supply of electricity made to the premises when it was in the occupation of the previous owner/occupant, should be cleared before the electricity supply is restored to the premises or a fresh connection is provided to the premises. If any statutory rules govern the conditions relating to sanction of a connection or supply of electricity, the distributor can insist upon fulfilment of the requirements of such rules and regulations. If the rules are silent, it can stipulate such terms and conditions as it deems fit and proper to regulate its transactions and dealings. So long as such rules and regulations or the terms and conditions are not arbitrary and unreasonable, courts will not interfere with them.? If we apply the above principles as pointed out by Mr. Tripathy, learned counsel for the appellant, undoubtedly, respondent No. 1-purchaser of the premises is liable to pay entire arrears or outstanding of power dues. However, as pointed out by Mr. P.P. Rao, learned senior counsel, respondent No. 1 is not a party to the contract with the supplier, i.e., the NESCO. We have already quoted the relevant clauses, particularly, sub-Clause 10(b) of Regulation 13 of the Electricity Supply Code, which is not applicable to respondent No. 1 herein. In other words, as mentioned in the earlier paras, in the case on hand, respondent No. 1 has not applied for transfer of service connection from the name of the erstwhile company to its name but applied for a fresh connection to its Unit after purchasing the same from the Official Liquidator. 18) It is also relevant to refer a decision of a three-Judge Bench of this Court reported in Ahmedabad Electricity Co. Ltd. vs. Gujarat Inns Pvt. Ltd. and Others, (2004) 3 SCC 587. This Court, after finding that the cases are of fresh connection, in para 3, held as under:- ?3…..We are clearly of the opinion that in case of a fresh connection though the premises are the same, the auction-purchasers cannot be held liable to clear the arrears incurred by the previous owners in respect of power supply to the premises in the absence of there being a specific statutory provision in that regard…..? 19) In a recent decision, i.e. in Haryana State Electricity Board vs. Hanuman Rice Mills, Dhanauri and Others, (2010) 9 SCC 145 , this Court, after referring to all the earlier decisions including Isha Marbles (supra) and Paschimanchal Vidyut Vitran Nigam Ltd. (supra) etc., summarized the position in the following manner which is as under:- ?12. …. (i) Electricity arrears do not constitute a charge over the property. Therefore in general law, a transferee of a premises cannot be made liable for the dues of the previous owner/occupier. (ii) Where the statutory rules or terms and conditions of supply which are statutory in character, authorise the supplier of electricity to demand from the purchaser of a property claiming reconnection or fresh connection of electricity, the arrears due by the previous owner/occupier in regard to supply of electricity to such premises, the supplier can recover the arrears from a purchaser.? | 0[ds]We are of the view that the reading of the abovee makes it clear that the said provision is not applicable to respondent No. 1. We have already quoted that respondent No. 1, after purchase of the said Unit in an auction sale conducted by the Official Liquidator on ?as is where is? and ?whatever there is? basis has applied for a fresh service connection for supply of energy (emphasis supplied). In other words, respondent No. 1 has not applied for transfer of service connection from the name of the erstwhile company to its name. To make it clear, respondent No. 1 applied for a fresh connection for its Unit after purchasing the same from the Official Liquidator. It is also not in dispute that the arrears of electricity dues were levied against the premises in question, on the other hand, it was levied against the erstwhile company12) From the above factual details in the case on hand and in the light ofe 10(b) of Regulation 13 of the Electricity Supply Code, we hold that the said clause applies to a request for transfer of service connection but not to a fresh connection. The interpretation of this clause by learned single Judge as well as by the Division Bench was correct being reasonable, just and fairIf we apply the above principles as pointed out by Mr. Tripathy, learned counsel for the appellant, undoubtedly, respondent No.r of the premises is liable to pay entire arrears or outstanding of power dues. However, as pointed out by Mr. P.P. Rao, learned senior counsel, respondent No. 1 is not a party to the contract with the supplier, i.e., the NESCO. We have already quoted the relevant clauses, particularly,e 10(b) of Regulation 13 of the Electricity Supply Code, which is not applicable to respondent No. 1 herein. In other words, as mentioned in the earlier paras, in the case on hand, respondent No. 1 has not applied for transfer of service connection from the name of the erstwhile company to its name but applied for a fresh connection to its Unit after purchasing the same from the Official Liquidator. | 0 | 3,609 | 410 | ### 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:
from the tabulated statement above set out, the auction-purchasers came to purchase the property after disconnection but they cannot be ?consumer or occupier? within the meaning of the above provisions till a contract is entered into. 63. We are clearly of the opinion that there is great reason and justice in holding as above. Electricity is public property. Law, in its majesty, benignly protects public property and behoves everyone to respect public property. Hence, the courts must be zealous in this regard. But, the law, as it stands, is inadequate to enforce the liability of the previous contracting party against the auction- purchaser who is a third party and is in no way connected with the previous owner/occupier. It may not be correct to state, if we hold as we have done above, it would permit dishonest consumers transferring their units from one hand to another, from time to time, infinitum without the payment of the dues to the extent of lakhs and lakhs of rupees and each one of them can easily say that he is not liable for the liability of the predecessor in interest…..? 17) In Paschimanchal Vidyut Vitran Nigam Ltd. & Ors. vs. DVS Steels & Alloys Pvt. Ltd. & Ors. AIR 2009 SC 647 = (2009) 1 SCC 210 , the question whether the supplier can recover electricity dues from the purchaser of a sub-divided plot was considered by this Court. The following conclusion is relevant:- ?9. The supply of electricity by a distributor to a consumer is ?sale of goods?. The distributor as the supplier, and the owner/occupier of a premises with whom it enters into a contract for supply of electricity are the parties to the contract. A transferee of the premises or a subsequent occupant of a premises with whom the supplier has no privity of contract cannot obviously be asked to pay the dues of his predecessor-in-title or possession, as the amount payable towards supply of electricity does not constitute a ?charge? on the premises. A purchaser of a premises, cannot be foisted with the electricity dues of any previous occupant, merely because he happens to be the current owner of the premises. The supplier can therefore neither file a suit nor initiate revenue recovery proceedings against a purchaser of a premises for the outstanding electricity dues of the vendor of the premises in the absence of any contract to the contrary. Learned counsel for the appellant heavily relied on para 10 of the very same judgment which reads as under:- 10. But the above legal position is not of any practical help to a purchaser of premises. When the purchaser of a premises approaches the distributor seeking a fresh electricity connection to its premises for supply of electricity, the distributor can stipulate the terms subject to which it would supply electricity. It can stipulate as one of the conditions for supply, that the arrears due in regard to the supply of electricity made to the premises when it was in the occupation of the previous owner/occupant, should be cleared before the electricity supply is restored to the premises or a fresh connection is provided to the premises. If any statutory rules govern the conditions relating to sanction of a connection or supply of electricity, the distributor can insist upon fulfilment of the requirements of such rules and regulations. If the rules are silent, it can stipulate such terms and conditions as it deems fit and proper to regulate its transactions and dealings. So long as such rules and regulations or the terms and conditions are not arbitrary and unreasonable, courts will not interfere with them.? If we apply the above principles as pointed out by Mr. Tripathy, learned counsel for the appellant, undoubtedly, respondent No. 1-purchaser of the premises is liable to pay entire arrears or outstanding of power dues. However, as pointed out by Mr. P.P. Rao, learned senior counsel, respondent No. 1 is not a party to the contract with the supplier, i.e., the NESCO. We have already quoted the relevant clauses, particularly, sub-Clause 10(b) of Regulation 13 of the Electricity Supply Code, which is not applicable to respondent No. 1 herein. In other words, as mentioned in the earlier paras, in the case on hand, respondent No. 1 has not applied for transfer of service connection from the name of the erstwhile company to its name but applied for a fresh connection to its Unit after purchasing the same from the Official Liquidator. 18) It is also relevant to refer a decision of a three-Judge Bench of this Court reported in Ahmedabad Electricity Co. Ltd. vs. Gujarat Inns Pvt. Ltd. and Others, (2004) 3 SCC 587. This Court, after finding that the cases are of fresh connection, in para 3, held as under:- ?3…..We are clearly of the opinion that in case of a fresh connection though the premises are the same, the auction-purchasers cannot be held liable to clear the arrears incurred by the previous owners in respect of power supply to the premises in the absence of there being a specific statutory provision in that regard…..? 19) In a recent decision, i.e. in Haryana State Electricity Board vs. Hanuman Rice Mills, Dhanauri and Others, (2010) 9 SCC 145 , this Court, after referring to all the earlier decisions including Isha Marbles (supra) and Paschimanchal Vidyut Vitran Nigam Ltd. (supra) etc., summarized the position in the following manner which is as under:- ?12. …. (i) Electricity arrears do not constitute a charge over the property. Therefore in general law, a transferee of a premises cannot be made liable for the dues of the previous owner/occupier. (ii) Where the statutory rules or terms and conditions of supply which are statutory in character, authorise the supplier of electricity to demand from the purchaser of a property claiming reconnection or fresh connection of electricity, the arrears due by the previous owner/occupier in regard to supply of electricity to such premises, the supplier can recover the arrears from a purchaser.?
### Response:
0
### Explanation:
We are of the view that the reading of the abovee makes it clear that the said provision is not applicable to respondent No. 1. We have already quoted that respondent No. 1, after purchase of the said Unit in an auction sale conducted by the Official Liquidator on ?as is where is? and ?whatever there is? basis has applied for a fresh service connection for supply of energy (emphasis supplied). In other words, respondent No. 1 has not applied for transfer of service connection from the name of the erstwhile company to its name. To make it clear, respondent No. 1 applied for a fresh connection for its Unit after purchasing the same from the Official Liquidator. It is also not in dispute that the arrears of electricity dues were levied against the premises in question, on the other hand, it was levied against the erstwhile company12) From the above factual details in the case on hand and in the light ofe 10(b) of Regulation 13 of the Electricity Supply Code, we hold that the said clause applies to a request for transfer of service connection but not to a fresh connection. The interpretation of this clause by learned single Judge as well as by the Division Bench was correct being reasonable, just and fairIf we apply the above principles as pointed out by Mr. Tripathy, learned counsel for the appellant, undoubtedly, respondent No.r of the premises is liable to pay entire arrears or outstanding of power dues. However, as pointed out by Mr. P.P. Rao, learned senior counsel, respondent No. 1 is not a party to the contract with the supplier, i.e., the NESCO. We have already quoted the relevant clauses, particularly,e 10(b) of Regulation 13 of the Electricity Supply Code, which is not applicable to respondent No. 1 herein. In other words, as mentioned in the earlier paras, in the case on hand, respondent No. 1 has not applied for transfer of service connection from the name of the erstwhile company to its name but applied for a fresh connection to its Unit after purchasing the same from the Official Liquidator.
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Larsen and Toubro Limited Scomi Engineering BHD Vs. Mumbai Metropolitan Region Development Authority | this count was "whether the claimants are entitled to file this claim as Claimant No. 1 and Claimant No. 2 or only as the Consortium of L&T and Scomi Engineering Bhd?" The High Court of Bombay, agreed with the interim Award of the Arbitrators, and held as follows: "8. Considering the terms and conditions of the contract as well as the decision cited by Mr. Ankhad, in my opinion, in the facts and circumstances of the present case, it is not open for the Petitioners to rely upon their independent identities while dealing with the Respondent and that they will have to deal with the Respondent as a Consortium only. Therefore, there is no infirmity in the impugned order. For the same reason, the present petition as filed would also not been maintainable. Hence, the same is dismissed." 8. Shri Gopal Jain did not dispute the fact that this judgment was final inter-parties as no appeal has been preferred. Therefore, to stress the fact that it pertains only to "this claim" and would therefore, not apply to a different set of claims under the arbitration Clause is not an argument that appeals to us. 9. It is clear, as has been held by the judgment of the High Court of Bombay, and which is binding inter-parties, that it is not open for the Petitioner to rely upon their status as independent entities while dealing with the Respondent and they will have to deal with the Respondent as a Consortium only. 10. This being the case, it is clear that the un-incorporated "association" referred to in Section 2(1)(f)(iii) would be attracted on the facts of this case and not Section 2(1)(f)(ii) as the Malaysian body cannot be referred to as an independent entity following the judgment of the High Court of Bombay. 11. Section 2(1)(f)(iii) of the Act refers to two different sets of persons: an "association" as distinct and separate from a "body of individuals". For example, Under Section 2(31) of the Income Tax Act, 1961, "person" is defined as including, Under Sub-clause (v), an association of persons, or body of individuals, whether incorporated or not. It is in this sense, that an association is referred to in Section 2(1)(f)(iii) which would therefore include a consortium consisting of two or more bodies corporate, at least one of whom is a body corporate incorporated in a country other than India. 12. Further, the expression "a company or" which was originally at the beginning of Section 2(1)(f)(iii) was omitted by Act 3 of 2016. This was for the reason that the judgment of this Court, in TDM Infrastructure Private Ltd. v. UE Development India Private Ltd. (2008) 14 SCC 271 , held that the expression "a company or" in Section 2(1)(f)(iii) of the Act cannot possibly be said to refer to a company registered and incorporated in India which may be controlled by persons in a country outside India. The Court held: "20. The learned Counsel contends that the word "or" being disjunctive, Sub-clause (iii) of Section 2(1)(f) of the 1996 Act shall apply in a case where Sub-clause (ii) shall not apply. We do not agree. The question of taking recourse to Sub-clause (iii) would come into play only in a case where Sub-clause (ii) otherwise does not apply in its entirety and not where by reason of an exclusion clause, consideration for construing an agreement to be an international commercial arbitration agreement goes outside the purview of its definition. Once it is held that both the companies are incorporated in India, and, thus, they have been domiciled in India, the arbitration agreement entered into by and between them would not be an international commercial arbitration agreement and, thus, the question of applicability of Sub-clause (iii) of Section 2(1)(f) would not arise." The Law Commission Report No. 246 of August 2014, which made several amendments to the Arbitration and Conciliation Act, 1996, gave the following reason for deleting the words "a company or": "(iii) In Sub-section (1), Clause (f), Sub-clause (iii), delete the words "a company or" before the words "an association or a body of individuals. [NOTE: The reference to "a company" In Sub-section (iii) has been removed since the same is already covered Under Sub-section (ii). The intention is to determine the residence of a company based on its place of incorporation and not the place of central management/control. This further re-enforces the "place of incorporation" principle laid down by the Supreme Court in TDM Infrastructure Private Limited v. UE Development India Private Limited, (2008) 14 SCC 271 , and adds greater certainty in case of companies having a different place of incorporation and place of exercise of central management and control]" It would become clear that prior to the deletion of the expression "a company or", there were three sets of persons referred to in Section 2(1)(f)(iii) as separate and distinct persons who would fall within the said sub-clause. This does not change due to the deletion of the phrase "a company or" for the reason given by the Law Commission. This is another reason as to why "an association" cannot be read with "body of individuals" which follows it but is a separate and distinct category by itself, as is understood from the definition of "person" as defined in the Income Tax Act referred to above. 13. This being the case, coupled with the fact, as correctly argued by Shri Diwan, that the Indian company is the lead partner, and that the Supervisory Board constituted under the Consortium Agreement makes it clear that the lead partner really has the determining voice in that it appoints the Chairman of the said Board (undoubtedly, with the consent of other members); and the fact that the Consortiums office is in Wadala, Mumbai as also that the lead member shall lead the arbitration proceedings, would all point to the fact that the central management and control of this Consortium appears to be exercised in India and not in any foreign nation. | 0[ds]When we come to the consortium agreement that is entered into between the Indian company and the Malaysian company as aforestated, we find in the definition Clause that "Consortium" shall mean L&T and Scomi Engineering Bhd, acting in collaboration, for the purpose of this agreement and shall be called "the L&T-SEB" Consortium "un-incorporated." The contract is defined in sub-Clause 6 as meaning, "the contract to be entered by the Consortium with the employer for the execution of the Project". Under sub-Clause 7, "the lead Member of the Consortium" or "Consortium Leader" shall mean L&T, that is, the Indian Company. Under sub-Clause 8, the "Supervisory Board" (hereinafter referred to as the SB) shall mean a Board constituted under Clause 11 of the GCC. When we come to Clause 11.2, it is clear that the Members of this Supervisory Board will consist of four members, two appointed by each Member. One of the Members nominated by the Consortium Leader and agreed to by all members shall then act as the Chairman of the Supervisory Board, which is, by Clause 11.5, to decide on various matters relating to the execution of the contract. Clause 21.1(g) provides that the Consortium leader shall lead all arbitration proceedings6. As correctly pointed out by Shri Jain, separate claims were made by the Indian company and the Malaysian company which were rejected by the Respondent. Nonetheless, by a letter dated 22.04.2016, the Respondent referred to these various rejection letters, and stated that documents in support of the list of "delayed events" had not yet been given, and therefore, necessary information and clarification, in response to certain observations, together with all documents in support of the claim, was requested to be furnished8. Shri Gopal Jain did not dispute the fact that this judgment was final inter-parties as no appeal has been preferred. Therefore, to stress the fact that it pertains only to "this claim" and would therefore, not apply to a different set of claims under the arbitration Clause is not an argument that appeals to us9. It is clear, as has been held by the judgment of the High Court of Bombay, and which is binding inter-parties, that it is not open for the Petitioner to rely upon their status as independent entities while dealing with the Respondent and they will have to deal with the Respondent as a Consortium only10. This being the case, it is clear that the un-incorporated "association" referred to in Section 2(1)(f)(iii) would be attracted on the facts of this case and not Section 2(1)(f)(ii) as the Malaysian body cannot be referred to as an independent entity following the judgment of the High Court of BombayIt would become clear that prior to the deletion of the expression "a company or", there were three sets of persons referred to in Section 2(1)(f)(iii) as separate and distinct persons who would fall within the said sub-clause. This does not change due to the deletion of the phrase "a company or" for the reason given by the Law Commission. This is another reason as to why "an association" cannot be read with "body of individuals" which follows it but is a separate and distinct category by itself, as is understood from the definition of "person" as defined in the Income Tax Act referred to above13. This being the case, coupled with the fact, as correctly argued by Shri Diwan, that the Indian company is the lead partner, and that the Supervisory Board constituted under the Consortium Agreement makes it clear that the lead partner really has the determining voice in that it appoints the Chairman of the said Board (undoubtedly, with the consent of other members); and the fact that the Consortiums office is in Wadala, Mumbai as also that the lead member shall lead the arbitration proceedings, would all point to the fact that the central management and control of this Consortium appears to be exercised in India and not in any foreign nation. | 0 | 2,833 | 788 | ### 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:
this count was "whether the claimants are entitled to file this claim as Claimant No. 1 and Claimant No. 2 or only as the Consortium of L&T and Scomi Engineering Bhd?" The High Court of Bombay, agreed with the interim Award of the Arbitrators, and held as follows: "8. Considering the terms and conditions of the contract as well as the decision cited by Mr. Ankhad, in my opinion, in the facts and circumstances of the present case, it is not open for the Petitioners to rely upon their independent identities while dealing with the Respondent and that they will have to deal with the Respondent as a Consortium only. Therefore, there is no infirmity in the impugned order. For the same reason, the present petition as filed would also not been maintainable. Hence, the same is dismissed." 8. Shri Gopal Jain did not dispute the fact that this judgment was final inter-parties as no appeal has been preferred. Therefore, to stress the fact that it pertains only to "this claim" and would therefore, not apply to a different set of claims under the arbitration Clause is not an argument that appeals to us. 9. It is clear, as has been held by the judgment of the High Court of Bombay, and which is binding inter-parties, that it is not open for the Petitioner to rely upon their status as independent entities while dealing with the Respondent and they will have to deal with the Respondent as a Consortium only. 10. This being the case, it is clear that the un-incorporated "association" referred to in Section 2(1)(f)(iii) would be attracted on the facts of this case and not Section 2(1)(f)(ii) as the Malaysian body cannot be referred to as an independent entity following the judgment of the High Court of Bombay. 11. Section 2(1)(f)(iii) of the Act refers to two different sets of persons: an "association" as distinct and separate from a "body of individuals". For example, Under Section 2(31) of the Income Tax Act, 1961, "person" is defined as including, Under Sub-clause (v), an association of persons, or body of individuals, whether incorporated or not. It is in this sense, that an association is referred to in Section 2(1)(f)(iii) which would therefore include a consortium consisting of two or more bodies corporate, at least one of whom is a body corporate incorporated in a country other than India. 12. Further, the expression "a company or" which was originally at the beginning of Section 2(1)(f)(iii) was omitted by Act 3 of 2016. This was for the reason that the judgment of this Court, in TDM Infrastructure Private Ltd. v. UE Development India Private Ltd. (2008) 14 SCC 271 , held that the expression "a company or" in Section 2(1)(f)(iii) of the Act cannot possibly be said to refer to a company registered and incorporated in India which may be controlled by persons in a country outside India. The Court held: "20. The learned Counsel contends that the word "or" being disjunctive, Sub-clause (iii) of Section 2(1)(f) of the 1996 Act shall apply in a case where Sub-clause (ii) shall not apply. We do not agree. The question of taking recourse to Sub-clause (iii) would come into play only in a case where Sub-clause (ii) otherwise does not apply in its entirety and not where by reason of an exclusion clause, consideration for construing an agreement to be an international commercial arbitration agreement goes outside the purview of its definition. Once it is held that both the companies are incorporated in India, and, thus, they have been domiciled in India, the arbitration agreement entered into by and between them would not be an international commercial arbitration agreement and, thus, the question of applicability of Sub-clause (iii) of Section 2(1)(f) would not arise." The Law Commission Report No. 246 of August 2014, which made several amendments to the Arbitration and Conciliation Act, 1996, gave the following reason for deleting the words "a company or": "(iii) In Sub-section (1), Clause (f), Sub-clause (iii), delete the words "a company or" before the words "an association or a body of individuals. [NOTE: The reference to "a company" In Sub-section (iii) has been removed since the same is already covered Under Sub-section (ii). The intention is to determine the residence of a company based on its place of incorporation and not the place of central management/control. This further re-enforces the "place of incorporation" principle laid down by the Supreme Court in TDM Infrastructure Private Limited v. UE Development India Private Limited, (2008) 14 SCC 271 , and adds greater certainty in case of companies having a different place of incorporation and place of exercise of central management and control]" It would become clear that prior to the deletion of the expression "a company or", there were three sets of persons referred to in Section 2(1)(f)(iii) as separate and distinct persons who would fall within the said sub-clause. This does not change due to the deletion of the phrase "a company or" for the reason given by the Law Commission. This is another reason as to why "an association" cannot be read with "body of individuals" which follows it but is a separate and distinct category by itself, as is understood from the definition of "person" as defined in the Income Tax Act referred to above. 13. This being the case, coupled with the fact, as correctly argued by Shri Diwan, that the Indian company is the lead partner, and that the Supervisory Board constituted under the Consortium Agreement makes it clear that the lead partner really has the determining voice in that it appoints the Chairman of the said Board (undoubtedly, with the consent of other members); and the fact that the Consortiums office is in Wadala, Mumbai as also that the lead member shall lead the arbitration proceedings, would all point to the fact that the central management and control of this Consortium appears to be exercised in India and not in any foreign nation.
### Response:
0
### Explanation:
When we come to the consortium agreement that is entered into between the Indian company and the Malaysian company as aforestated, we find in the definition Clause that "Consortium" shall mean L&T and Scomi Engineering Bhd, acting in collaboration, for the purpose of this agreement and shall be called "the L&T-SEB" Consortium "un-incorporated." The contract is defined in sub-Clause 6 as meaning, "the contract to be entered by the Consortium with the employer for the execution of the Project". Under sub-Clause 7, "the lead Member of the Consortium" or "Consortium Leader" shall mean L&T, that is, the Indian Company. Under sub-Clause 8, the "Supervisory Board" (hereinafter referred to as the SB) shall mean a Board constituted under Clause 11 of the GCC. When we come to Clause 11.2, it is clear that the Members of this Supervisory Board will consist of four members, two appointed by each Member. One of the Members nominated by the Consortium Leader and agreed to by all members shall then act as the Chairman of the Supervisory Board, which is, by Clause 11.5, to decide on various matters relating to the execution of the contract. Clause 21.1(g) provides that the Consortium leader shall lead all arbitration proceedings6. As correctly pointed out by Shri Jain, separate claims were made by the Indian company and the Malaysian company which were rejected by the Respondent. Nonetheless, by a letter dated 22.04.2016, the Respondent referred to these various rejection letters, and stated that documents in support of the list of "delayed events" had not yet been given, and therefore, necessary information and clarification, in response to certain observations, together with all documents in support of the claim, was requested to be furnished8. Shri Gopal Jain did not dispute the fact that this judgment was final inter-parties as no appeal has been preferred. Therefore, to stress the fact that it pertains only to "this claim" and would therefore, not apply to a different set of claims under the arbitration Clause is not an argument that appeals to us9. It is clear, as has been held by the judgment of the High Court of Bombay, and which is binding inter-parties, that it is not open for the Petitioner to rely upon their status as independent entities while dealing with the Respondent and they will have to deal with the Respondent as a Consortium only10. This being the case, it is clear that the un-incorporated "association" referred to in Section 2(1)(f)(iii) would be attracted on the facts of this case and not Section 2(1)(f)(ii) as the Malaysian body cannot be referred to as an independent entity following the judgment of the High Court of BombayIt would become clear that prior to the deletion of the expression "a company or", there were three sets of persons referred to in Section 2(1)(f)(iii) as separate and distinct persons who would fall within the said sub-clause. This does not change due to the deletion of the phrase "a company or" for the reason given by the Law Commission. This is another reason as to why "an association" cannot be read with "body of individuals" which follows it but is a separate and distinct category by itself, as is understood from the definition of "person" as defined in the Income Tax Act referred to above13. This being the case, coupled with the fact, as correctly argued by Shri Diwan, that the Indian company is the lead partner, and that the Supervisory Board constituted under the Consortium Agreement makes it clear that the lead partner really has the determining voice in that it appoints the Chairman of the said Board (undoubtedly, with the consent of other members); and the fact that the Consortiums office is in Wadala, Mumbai as also that the lead member shall lead the arbitration proceedings, would all point to the fact that the central management and control of this Consortium appears to be exercised in India and not in any foreign nation.
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Gurjeewan Garewal Vs. Sumitra Dash | expiry of granted leave period.18. This Court dealt with similar situations in Aligarh Muslim University vs. Mansoor Ali Khan (2000) 7 SCC 529. In this case an employee of Aligarh Muslim University obtained ex-India leave for two years. Then he applied for an extension of leave for another three years. But University granted an extension of leave for only one year and clearly conveyed to him that no further extension will be allowed. Later he applied for another extension. Rejecting his request the University informed him that in case of overstay he would be deemed to have vacated his post and cease to be in University service. However University extended the joining time. Yet he failed to join. Consequently the University deemed him to have vacated the office. His writ before Single Bench was dismissed but Division Bench allowed the same mainly on the ground of non-compliance of natural justice. University preferred an appeal before this Court. Allowing the Appeal, this Court, following S.L. Kapoor (1980) 4 SCC 379 holds that based on admitted and indisputable facts, only one view is possible. In that event no prejudice can be said to have been caused to Mr. Mansoor Ali Khan though notice has not been issued." 19. Elaborating this aspect it was observed that: "We may state that the University has not acted unreasonably in informing him in advance - while granting one year extension, in addition to the initial absence of 2 years - that no further extension will be given. We have noticed that when the extension is sought for three years, the Department has given extension only for one year as he had already availed 2 years extraordinary leave by that time. It has to be noticed that when employees go on foreign assignments which are secured by them at their own instance, in case they do not come back within the original period stipulated or before the expiration of the extended period, the employer in the parent country would be put to serious inconvenience and will find it difficult to make temporary alternative appointments to fill up the post during the period of absence of those who have gone abroad. However, when rules permit and provide for an employee to go abroad discretion must be exercised reasonably while refusing extension. In this case, giving of further extension only for one year out of the further period of three years sought for is not reasonable. In such a situation, if the employee has entangled himself into further commitments abroad, he has to blame himself." 20. On the above facts, the absence of a notice to show cause does not make any difference for the employee has been told that if his further overstay is for continuing in the job in Libya, it is bound to be refused. (Emphasis supplied) 21. Recently in another case of a very similar nature Dr. Anil Bajaj vs. PGIMER JT 2002 (1) SC 245 this Court held: "A person who gets an advantage, namely, of a sanction to go abroad on service on the condition that he will come back within two years and if does not come back, his lien will automatically be regarded as being terminated, he cannot turn around and challenge the said condition on the basis of which sanction to go abroad was granted... but where the facts are not in dispute, the inquiry would be an empty formality. In any case principle of estoppel would clearly apply and the High Court was right in dismissing the writ petition filed by the appellant wherein he had challenged his termination." (Emphasis supplied) 22. Similarly, in the case in hand the 1st Respondent was originally granted an ex-India leave for two years on the express condition that she will be deemed to have vacated the post if she opts not to join after the leave period. But she preferred to remain in the greener pastures for a pretty long time in spite of the repeated reminders from PGIMER. She employed the case before the High Court as a dilatory tactic to continue with her foreign assignment and evaded herself from joining under some pretext or other.23. Crucial aspect to be noted in this case is that the Respondent No.1, on 6/9/1994 obtained a stay of disciplinary action against her vide an Application bearing No. 8535 of 1994 in CWP No. 16212 of 1992. In the face of law, such a stay ought not to have been granted by the High Court since the prayer in that CWP cannot have any bearing upon the Ex-India leave obtained by R-1 or on its subsequent extensions or on the out come of disciplinary action. The disciplinary proceedings against her and the case filed by her are separate actions. It could proceed separately. Thus that stay is liable to be vacated. But the judgment impugned in this case arises from CWP No. 8504 of 2000 wherein R-1 essentially challenges her rejection of her Application to join duty under Rule 36 of the PGIMER Rules on the ground of violation of the principles of Natural Justice. In the facts of this case that issue will not arise if the original disciplinary proceedings are completed. Therefore, exercising our extraordinary powers, we vacate the stay granted by the High Court in CWP No. 16212 of 1992 and direct the PGIMER authorities to proceed with the disciplinary proceedings against R-1 regarding her unauthorized absence from duty. Since R-1 is allowed to rejoin her duty under the Orders of High Court, in the meanwhile she may continue in service subject to the outcome of disciplinary enquiry. PGIMER may complete the enquiry as expeditiously as possible. If necessary the PGIMER is at liberty to consider whether her continuance in the service during pendency of the inquiry is appropriate or not, and place her under suspension, if necessary, and in which event also consider whether the appellant before us should be given appointment in her place and pass appropriate orders, if necessary. | 1[ds]12. At the outset it is to be mentioned that Article 311 cannot be automatically invoked in all the instances where a person is not given an opportunity of hearing. Article 311 confers certain safeguards upon persons employed in civil capacities under the Union of India or a State. Only persons who are holding civil posts can claim the protection provided under Article 311. The 1st Respondent could claim the protection of Article 311 only if she holds a civil post.Reverting back to the case in hand, Section 4 of The Post Graduate Institute of Medical Education & Research, Chandigarh Act, 1966 (PGIMER Act) says that PGIMER is a body corporate which is having a perpetual succession and a common seal with power. This clearly provides that PGIMER is a separate entity in itself. Admittedly the employees of any authority which is a legal entity separate from the State, cannot claim to be holders of civil posts under the State in order to attract the protection of Article 311. There is also no master and servant relationship between the State and an employee of PGIMER, which is a separate legal entity in itself. It is a settled position that a person cannot be said to have a status of holding a civil post under State merely because his salary is paid from the State fund or that the State exercises a certain amount of control over the post. The PGIMER Act might have provided for some control over the institution but this doesnt mean that the same is a State for the purpose of Article 311. Therefore the employees of PGIMER cannot avail the protection of Article 311 since the same can be claimed only by the members of a civil service of the Union or of All India Service or of a civil service of a State or by persons who hold a civil post under the Union or a State. PGIMER cannot be treated as a State for the purpose of Article 311 and the employees therein are not holding any civil post. In result, the 1st Respondent is not holding a civil post and she cannot claim the guard of Article 311.Similarly, in the case in hand the 1st Respondent was originally granted an ex-India leave for two years on the express condition that she will be deemed to have vacated the post if she opts not to join after the leave period. But she preferred to remain in the greener pastures for a pretty long time in spite of the repeated reminders from PGIMER. She employed the case before the High Court as a dilatory tactic to continue with her foreign assignment and evaded herself from joining under some pretext or other.23. Crucial aspect to be noted in this case is that the Respondent No.1, on 6/9/1994 obtained a stay of disciplinary action against her vide an Application bearing No. 8535 of 1994 in CWP No. 16212 of 1992. In the face of law, such a stay ought not to have been granted by the High Court since the prayer in that CWP cannot have any bearing upon the Ex-India leave obtained by R-1 or on its subsequent extensions or on the out come of disciplinary action. The disciplinary proceedings against her and the case filed by her are separate actions. It could proceed separately. Thus that stay is liable to be vacated. But the judgment impugned in this case arises from CWP No. 8504 of 2000 wherein R-1 essentially challenges her rejection of her Application to join duty under Rule 36 of the PGIMER Rules on the ground of violation of the principles of Natural Justice. In the facts of this case that issue will not arise if the original disciplinary proceedings are completed. Therefore, exercising our extraordinary powers, we vacate the stay granted by the High Court in CWP No. 16212 of 1992 and direct the PGIMER authorities to proceed with the disciplinary proceedings against R-1 regarding her unauthorized absence from duty. Since R-1 is allowed to rejoin her duty under the Orders of High Court, in the meanwhile she may continue in service subject to the outcome of disciplinary enquiry. PGIMER may complete the enquiry as expeditiously as possible. If necessary the PGIMER is at liberty to consider whether her continuance in the service during pendency of the inquiry is appropriate or not, and place her under suspension, if necessary, and in which event also consider whether the appellant before us should be given appointment in her place and pass appropriate orders, if necessary. | 1 | 3,506 | 820 | ### 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:
expiry of granted leave period.18. This Court dealt with similar situations in Aligarh Muslim University vs. Mansoor Ali Khan (2000) 7 SCC 529. In this case an employee of Aligarh Muslim University obtained ex-India leave for two years. Then he applied for an extension of leave for another three years. But University granted an extension of leave for only one year and clearly conveyed to him that no further extension will be allowed. Later he applied for another extension. Rejecting his request the University informed him that in case of overstay he would be deemed to have vacated his post and cease to be in University service. However University extended the joining time. Yet he failed to join. Consequently the University deemed him to have vacated the office. His writ before Single Bench was dismissed but Division Bench allowed the same mainly on the ground of non-compliance of natural justice. University preferred an appeal before this Court. Allowing the Appeal, this Court, following S.L. Kapoor (1980) 4 SCC 379 holds that based on admitted and indisputable facts, only one view is possible. In that event no prejudice can be said to have been caused to Mr. Mansoor Ali Khan though notice has not been issued." 19. Elaborating this aspect it was observed that: "We may state that the University has not acted unreasonably in informing him in advance - while granting one year extension, in addition to the initial absence of 2 years - that no further extension will be given. We have noticed that when the extension is sought for three years, the Department has given extension only for one year as he had already availed 2 years extraordinary leave by that time. It has to be noticed that when employees go on foreign assignments which are secured by them at their own instance, in case they do not come back within the original period stipulated or before the expiration of the extended period, the employer in the parent country would be put to serious inconvenience and will find it difficult to make temporary alternative appointments to fill up the post during the period of absence of those who have gone abroad. However, when rules permit and provide for an employee to go abroad discretion must be exercised reasonably while refusing extension. In this case, giving of further extension only for one year out of the further period of three years sought for is not reasonable. In such a situation, if the employee has entangled himself into further commitments abroad, he has to blame himself." 20. On the above facts, the absence of a notice to show cause does not make any difference for the employee has been told that if his further overstay is for continuing in the job in Libya, it is bound to be refused. (Emphasis supplied) 21. Recently in another case of a very similar nature Dr. Anil Bajaj vs. PGIMER JT 2002 (1) SC 245 this Court held: "A person who gets an advantage, namely, of a sanction to go abroad on service on the condition that he will come back within two years and if does not come back, his lien will automatically be regarded as being terminated, he cannot turn around and challenge the said condition on the basis of which sanction to go abroad was granted... but where the facts are not in dispute, the inquiry would be an empty formality. In any case principle of estoppel would clearly apply and the High Court was right in dismissing the writ petition filed by the appellant wherein he had challenged his termination." (Emphasis supplied) 22. Similarly, in the case in hand the 1st Respondent was originally granted an ex-India leave for two years on the express condition that she will be deemed to have vacated the post if she opts not to join after the leave period. But she preferred to remain in the greener pastures for a pretty long time in spite of the repeated reminders from PGIMER. She employed the case before the High Court as a dilatory tactic to continue with her foreign assignment and evaded herself from joining under some pretext or other.23. Crucial aspect to be noted in this case is that the Respondent No.1, on 6/9/1994 obtained a stay of disciplinary action against her vide an Application bearing No. 8535 of 1994 in CWP No. 16212 of 1992. In the face of law, such a stay ought not to have been granted by the High Court since the prayer in that CWP cannot have any bearing upon the Ex-India leave obtained by R-1 or on its subsequent extensions or on the out come of disciplinary action. The disciplinary proceedings against her and the case filed by her are separate actions. It could proceed separately. Thus that stay is liable to be vacated. But the judgment impugned in this case arises from CWP No. 8504 of 2000 wherein R-1 essentially challenges her rejection of her Application to join duty under Rule 36 of the PGIMER Rules on the ground of violation of the principles of Natural Justice. In the facts of this case that issue will not arise if the original disciplinary proceedings are completed. Therefore, exercising our extraordinary powers, we vacate the stay granted by the High Court in CWP No. 16212 of 1992 and direct the PGIMER authorities to proceed with the disciplinary proceedings against R-1 regarding her unauthorized absence from duty. Since R-1 is allowed to rejoin her duty under the Orders of High Court, in the meanwhile she may continue in service subject to the outcome of disciplinary enquiry. PGIMER may complete the enquiry as expeditiously as possible. If necessary the PGIMER is at liberty to consider whether her continuance in the service during pendency of the inquiry is appropriate or not, and place her under suspension, if necessary, and in which event also consider whether the appellant before us should be given appointment in her place and pass appropriate orders, if necessary.
### Response:
1
### Explanation:
12. At the outset it is to be mentioned that Article 311 cannot be automatically invoked in all the instances where a person is not given an opportunity of hearing. Article 311 confers certain safeguards upon persons employed in civil capacities under the Union of India or a State. Only persons who are holding civil posts can claim the protection provided under Article 311. The 1st Respondent could claim the protection of Article 311 only if she holds a civil post.Reverting back to the case in hand, Section 4 of The Post Graduate Institute of Medical Education & Research, Chandigarh Act, 1966 (PGIMER Act) says that PGIMER is a body corporate which is having a perpetual succession and a common seal with power. This clearly provides that PGIMER is a separate entity in itself. Admittedly the employees of any authority which is a legal entity separate from the State, cannot claim to be holders of civil posts under the State in order to attract the protection of Article 311. There is also no master and servant relationship between the State and an employee of PGIMER, which is a separate legal entity in itself. It is a settled position that a person cannot be said to have a status of holding a civil post under State merely because his salary is paid from the State fund or that the State exercises a certain amount of control over the post. The PGIMER Act might have provided for some control over the institution but this doesnt mean that the same is a State for the purpose of Article 311. Therefore the employees of PGIMER cannot avail the protection of Article 311 since the same can be claimed only by the members of a civil service of the Union or of All India Service or of a civil service of a State or by persons who hold a civil post under the Union or a State. PGIMER cannot be treated as a State for the purpose of Article 311 and the employees therein are not holding any civil post. In result, the 1st Respondent is not holding a civil post and she cannot claim the guard of Article 311.Similarly, in the case in hand the 1st Respondent was originally granted an ex-India leave for two years on the express condition that she will be deemed to have vacated the post if she opts not to join after the leave period. But she preferred to remain in the greener pastures for a pretty long time in spite of the repeated reminders from PGIMER. She employed the case before the High Court as a dilatory tactic to continue with her foreign assignment and evaded herself from joining under some pretext or other.23. Crucial aspect to be noted in this case is that the Respondent No.1, on 6/9/1994 obtained a stay of disciplinary action against her vide an Application bearing No. 8535 of 1994 in CWP No. 16212 of 1992. In the face of law, such a stay ought not to have been granted by the High Court since the prayer in that CWP cannot have any bearing upon the Ex-India leave obtained by R-1 or on its subsequent extensions or on the out come of disciplinary action. The disciplinary proceedings against her and the case filed by her are separate actions. It could proceed separately. Thus that stay is liable to be vacated. But the judgment impugned in this case arises from CWP No. 8504 of 2000 wherein R-1 essentially challenges her rejection of her Application to join duty under Rule 36 of the PGIMER Rules on the ground of violation of the principles of Natural Justice. In the facts of this case that issue will not arise if the original disciplinary proceedings are completed. Therefore, exercising our extraordinary powers, we vacate the stay granted by the High Court in CWP No. 16212 of 1992 and direct the PGIMER authorities to proceed with the disciplinary proceedings against R-1 regarding her unauthorized absence from duty. Since R-1 is allowed to rejoin her duty under the Orders of High Court, in the meanwhile she may continue in service subject to the outcome of disciplinary enquiry. PGIMER may complete the enquiry as expeditiously as possible. If necessary the PGIMER is at liberty to consider whether her continuance in the service during pendency of the inquiry is appropriate or not, and place her under suspension, if necessary, and in which event also consider whether the appellant before us should be given appointment in her place and pass appropriate orders, if necessary.
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Shyamal Kumar Sarkar Vs. State of West Bengal | Mathew, J. 1. This is an application under Article 32 of the Constitution for the issue of a writ in the nature of habeas corpus and for the release of the petitioner alleged to be in illegal custody. 2. The petitioner was arrested on April 13, 1971, under an order of detention passed by the District Magistrate, Howrah, in the exercise of his powers under sub-section (1), read with sub-section (3) of Section 3 of the West Bengal (Prevention of Violent Activities) Act, 1970 (Presidents Act No. 19 of 1970) (hereinafter referred to as the Act), with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. The petitioner was served with the order of detention and also the grounds of detention together with a vernacular translation thereof on April 13, 1971. The District Magistrate reported to the State Government on April 8, 1971, about the passing of the detention order together with the grounds of detention and all other particulars relating to the case. The State Government considered the report and approved the detention order on April 17, 1971, under sub-section (4) of Section 3 of the said Act. The State Government submitted its report to the Central Government on April 19, 1971, in accordance with the provisions of sub-section (5) of Section 3 of the said Act together with the grounds of detention and the other particulars. The State Government placed the case of the detenu before the Advisory Board under Section 10 of the Act on May 12, 1971. The representation of the petitioner received on May 11, 1971, by the State Government was considered by the State Government and it was rejected on June 9, 1971. The Advisory Board, after considering the materials placed before it and after hearing the petitioner submitted its report to the State Government on June 18, 1971, recording its opinion that there was sufficient cause for detaining the petitioner. The State Government, in the exercise of the powers conferred by sub-section (1) of Section 12 of the Act confirmed the order of detention of the petitioner on July 9, 1971, and that was communicated to the petitioner by a Memorandum, dated July 26, 1971. 3. The grounds of detention communicated to the petitioner are : "(1) On February 5, 1971, at about 13.45 hours you and your associates Nepal Hait, Chandi Mukherjee, Khoka, Arup Kumar Ghose alias Bhaba and others being armed with bombs formed an unlawful assembly at Kaliprasad Chakravarty Lane, P. S. Bantra and hurled bombs upon Kadamtala Milan Sangha Club. You and your associates thereafter set fire to the said club room as a result of which the room turned to ashes. You and your associates also terrorised the local people by hurling bombs towards them and managed to escape. (2) On February 27, 1971, at about 19.30 hours you and your associates Melo alias Lal Mohan Das, Prodyut Adhikary, Raghu, Shyamal Dey, Ashoke Mukherjee, Nepal Hait, Chandi Mukherjee, Khoka, Bhaba alias Arup Kumar Ghosh being armed with knives and bombs formed an unlawful assembly at Lakshminarayan Chakraborty Lane and caused severe injury to one Santi Sarkar by throwing a bomb towards him. You and your associates also terrorised the local people and managed to escape. Consequently, the local people became panicky." 4. In the writ petition field before this Court no specify ground has been taken challenging the validity of the order of detention. Nor did counsel for the petitioner put forward any ground to show that the order of detention is in any way vitiated. 5. According to the grounds of detention, the petitioner committed offences under the Explosive Substances Act, 1908 (VI of 1908), which were likely to disturb public order under Section 3(2)(d) of the Act. | 0[ds]4. In the writ petition field before this Court no specify ground has been taken challenging the validity of the order of detention. Nor did counsel for the petitioner put forward any ground to show that the order of detention is in any way vitiated5. According to the grounds of detention, the petitioner committed offences under the Explosive Substances Act, 1908 (VI of 1908), which were likely to disturb public order under Section 3(2)(d) of the Act. | 0 | 732 | 96 | ### 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:
Mathew, J. 1. This is an application under Article 32 of the Constitution for the issue of a writ in the nature of habeas corpus and for the release of the petitioner alleged to be in illegal custody. 2. The petitioner was arrested on April 13, 1971, under an order of detention passed by the District Magistrate, Howrah, in the exercise of his powers under sub-section (1), read with sub-section (3) of Section 3 of the West Bengal (Prevention of Violent Activities) Act, 1970 (Presidents Act No. 19 of 1970) (hereinafter referred to as the Act), with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. The petitioner was served with the order of detention and also the grounds of detention together with a vernacular translation thereof on April 13, 1971. The District Magistrate reported to the State Government on April 8, 1971, about the passing of the detention order together with the grounds of detention and all other particulars relating to the case. The State Government considered the report and approved the detention order on April 17, 1971, under sub-section (4) of Section 3 of the said Act. The State Government submitted its report to the Central Government on April 19, 1971, in accordance with the provisions of sub-section (5) of Section 3 of the said Act together with the grounds of detention and the other particulars. The State Government placed the case of the detenu before the Advisory Board under Section 10 of the Act on May 12, 1971. The representation of the petitioner received on May 11, 1971, by the State Government was considered by the State Government and it was rejected on June 9, 1971. The Advisory Board, after considering the materials placed before it and after hearing the petitioner submitted its report to the State Government on June 18, 1971, recording its opinion that there was sufficient cause for detaining the petitioner. The State Government, in the exercise of the powers conferred by sub-section (1) of Section 12 of the Act confirmed the order of detention of the petitioner on July 9, 1971, and that was communicated to the petitioner by a Memorandum, dated July 26, 1971. 3. The grounds of detention communicated to the petitioner are : "(1) On February 5, 1971, at about 13.45 hours you and your associates Nepal Hait, Chandi Mukherjee, Khoka, Arup Kumar Ghose alias Bhaba and others being armed with bombs formed an unlawful assembly at Kaliprasad Chakravarty Lane, P. S. Bantra and hurled bombs upon Kadamtala Milan Sangha Club. You and your associates thereafter set fire to the said club room as a result of which the room turned to ashes. You and your associates also terrorised the local people by hurling bombs towards them and managed to escape. (2) On February 27, 1971, at about 19.30 hours you and your associates Melo alias Lal Mohan Das, Prodyut Adhikary, Raghu, Shyamal Dey, Ashoke Mukherjee, Nepal Hait, Chandi Mukherjee, Khoka, Bhaba alias Arup Kumar Ghosh being armed with knives and bombs formed an unlawful assembly at Lakshminarayan Chakraborty Lane and caused severe injury to one Santi Sarkar by throwing a bomb towards him. You and your associates also terrorised the local people and managed to escape. Consequently, the local people became panicky." 4. In the writ petition field before this Court no specify ground has been taken challenging the validity of the order of detention. Nor did counsel for the petitioner put forward any ground to show that the order of detention is in any way vitiated. 5. According to the grounds of detention, the petitioner committed offences under the Explosive Substances Act, 1908 (VI of 1908), which were likely to disturb public order under Section 3(2)(d) of the Act.
### Response:
0
### Explanation:
4. In the writ petition field before this Court no specify ground has been taken challenging the validity of the order of detention. Nor did counsel for the petitioner put forward any ground to show that the order of detention is in any way vitiated5. According to the grounds of detention, the petitioner committed offences under the Explosive Substances Act, 1908 (VI of 1908), which were likely to disturb public order under Section 3(2)(d) of the Act.
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Sameer Kapoor and Ors Vs. The State and Ors | estate, and the applicant for probate or letters of administration only seeks the permission of the court to perform that duty. There is only a seeking of recognition from the court to perform the duty. That duty is only moral and it is not legal. There is no law which compels the applicant to file the proceedings for probate or letters of administration. With a view to discharge the moral duty, the applicant seeks recognition from the court to perform the duty. It will be legitimate to conclude that the proceedings filed for grant of probate or letters of administration is not an action in law. Hence, it is very difficult to and it will not be in order to construe the proceedings for grant of probate or letters of administration as applications coming within the meaning of an application under Article 137 if the Limitation Act, 1963. 16.1 This Court approved the observations made in paragraph 17 by the Madras High Court in the case of S. Krishnaswami (supra) insofar as the nature of the petition for grant of probate or letter of administration is concerned. However, this Court did not agree with the finding that the application for grant of probate or letters of administration is not covered by Article 137 of the Limitation Act. 16.2 In the aforesaid decision, this Court also considered and referred to paragraph 16 of the decision of the Bombay High Court in the case of Vasudev Daulatram Sadarangani (supra) in paragraph 15, which reads as follows: 16. Rejecting Mr. Dalpatrais contention, I summarise my conclusions thus – (a) Under the Limitation Act no period is advisedly prescribed within which an application for probate, letters of administration or succession certificate must be made; (b) The assumption that under Article 137 the right to apply necessarily accrues on the date of the death of the deceased, is unwarranted; (c) Such an application is for the courts permission to perform a legal duty created by a will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed; (d) The right to apply would accrue when it becomes necessary to apply which may not necessarily be within 3 years from the date of the deceaseds death; (e) Delay beyond 3 years after the deceaseds death would arouse suspicion and greater the delay, greater would be the suspicion; (f) Such delay must be explained, but cannot be equated with the absolute bar of limitation; and (g) Once execution and attestation are proved, suspicion of delay no longer operates. This Court did not agree with/approve conclusion (b). However, approved conclusion (c), reproduced hereinabove. 17. Therefore, considering the law laid down by this Court in the case of Kunvarjeet Singh Khandpur (supra), it can be said that in a proceeding, or in other words, in an application filed for grant of probate or letters of administration, no right is asserted or claimed by the applicant. The applicant only seeks recognition of the court to perform a duty. Probate or letters of administration issued by a competent court is conclusive proof of the legal character throughout the world. That the proceedings filed for grant of probate or letters of administration is not an action in law but it is an action in rem. As held by this Court in the case of Kunvarjeet Singh Khandpur (supra), an application for grant of probate or letters of administration is for the courts permission to perform a legal duty created by a will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed. Therefore, even if the will is probated by any court mentioned in Section 228 of the Act, right to get the letters of administration is a continuous right which can be exercised any time, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed. 18. Applying the law laid down by this Court in the aforesaid decision and the observations made hereinabove, the submission on behalf of the appellants that Probate Case No. 15/2001 filed by respondent no.2 for letters of administration under Section 228 of the Act, read with Section 276 of the Act is barred by law of limitation, cannot be accepted. At this stage, it is required to be noted that even in the plaint, it is specifically pleaded that after passing away of the father of the parties in the year 2000, the appellants started intermeddling with properties bequeathed to respondent no.2, which were situated in Delhi and, therefore, left with no option, he was compelled to apply for letters of administration. Therefore, even as per the pleadings in the application, the cause of action started from the date on which the appellants started intermeddling with the properties bequeathed to respondent no.2, after passing away of the father of the parties in the year 2000. Therefore, in the facts and circumstances of the case, both the learned Single Judge and the Division Bench have rightly refused to reject the application in exercise of powers under Order VII Rule 11 of the CPC. In the facts and circumstances of the case and as observed hereinabove, it cannot be said that the application for letters of administration was clearly barred by the law of limitation which was required to be rejected in exercise of powers under Order VII rule 11(d) of the CPC. We are in complete agreement with the view taken by the High Court. | 0[ds]10. Now so far as the first question is concerned, the same is now not res integra in view of the direct decision of this Court in the case of Kunvarjeet Singh Khandpur (supra) and in the case of Krishan Kumar Sharma v. Rajesh Kumar Sharma reported in (2009) 11 SCC 537. In both the aforesaid decisions, this Court has specifically observed and held that Article 137 of the Limitation Act shall be applicable to the petitions for grant of probate or letters of administration also. Therefore, question no.1 is answered in the affirmative and it is observed and held that Article 137 of the Limitation Act, 1963 shall be applicable to the applications for grant of probate or letters of administration11. Now so far as question no.2 is concerned, it is the specific case on behalf of the appellants that the application submitted by respondent No.2 for letters of administration under Section 228 of the Act is barred by the law of limitation as provided under Article 137 of the Limitation Act. As observed and held hereinabove, Article 137 of the Limitation Act shall be applicable to the application for grant of probate or letters of administration submitted under Section 276 of the Act. Similarly, even the application under Section 228 of the Act shall also be covered by Article 137 of the Limitation Act. Therefore, it is observed and held that Article 137 of the Limitation Act shall be applicable to the applications under Section 228 of the Act also12.1 As per Article 137 of the Limitation Act, the period of limitation prescribed is three years and the three years begin to run when the right to apply accrues. The crucial expression under Article 137 of the Limitation Act is right to apply. It is the case on behalf of the appellants that in the present case the right to apply for letters of administration had accrued in the year 1997, more particularly on 21.11.1997 when the High Court of Justice, District Probate Registry, Birmingham (UK) passed an order for grant of probate of will dated 16.05.1990 in favour of respondent no.2. It is the case on behalf of the appellants that therefore right to apply under Section 228 of the Act had accrued in favour of respondent no.2 on 21.11.1997 and, therefore, respondent no.2 was required to submit an application for letters of administration within a period of three years from 21.11.1997. However, the application for letters of administration has been submitted on 28.02.2001, i.e., after a lapse of limitation of three years as prescribed under Article 137 of the Limitation Act and therefore Probate Case No. 15/2001 is clearly barred by law of limitation and, therefore, the same was required to be rejected in exercise of powers under Order VII Rule 11 of the CPC. It is also the case on behalf of the appellants that so long as the will is not probated, the period of limitation would not start running. However, once the will is probated, in that case, the period of limitation as provided under Article 137 of the Limitation Act would begin to run from the date on which the will is probated14.1 When an application under Section 276 of the Act is submitted for probate or for letters of administration with will, if any objection is raised by any body with respect to execution of the will, in that case, the applicant is required to prove the will and thereafter the will shall be probated and the court may pass an order for letters of administration. However, in a case where a will has been proved or deposited in a court of competent jurisdiction situated beyond the limits of the State, whether within or beyond the limits of India, in that case, as provided under Section 228 of the Act, when a properly authenticated copy of the will is produced, the letters of administration may be granted in favour of such person. Meaning thereby, in such a situation, the will is not required to be proved again and it shall be conclusive. Therefore, Section 228 of the Act shall be an enabling provision and it confers an additional right to apply for letters of administration on the basis of such authenticated copy of the will. Therefore, as rightly observed by the learned Single Judge and the Division Bench that Section 228 is akin to Section 276 of the Act16.1 This Court approved the observations made in paragraph 17 by the Madras High Court in the case of S. Krishnaswami (supra) insofar as the nature of the petition for grant of probate or letter of administration is concerned. However, this Court did not agree with the finding that the application for grant of probate or letters of administration is not covered by Article 137 of the Limitation ActThis Court did not agree with/approve conclusion (b). However, approved conclusion (c), reproduced hereinabove17. Therefore, considering the law laid down by this Court in the case of Kunvarjeet Singh Khandpur (supra), it can be said that in a proceeding, or in other words, in an application filed for grant of probate or letters of administration, no right is asserted or claimed by the applicant. The applicant only seeks recognition of the court to perform a duty. Probate or letters of administration issued by a competent court is conclusive proof of the legal character throughout the world. That the proceedings filed for grant of probate or letters of administration is not an action in law but it is an action in rem. As held by this Court in the case of Kunvarjeet Singh Khandpur (supra), an application for grant of probate or letters of administration is for the courts permission to perform a legal duty created by a will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executedTherefore, even if the will is probated by any court mentioned in Section 228 of the Act, right to get the letters of administration is a continuous right which can be exercised any time, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed18. Applying the law laid down by this Court in the aforesaid decision and the observations made hereinabove, the submission on behalf of the appellants that Probate Case No. 15/2001 filed by respondent no.2 for letters of administration under Section 228 of the Act, read with Section 276 of the Act is barred by law of limitation, cannot be accepted. At this stage, it is required to be noted that even in the plaint, it is specifically pleaded that after passing away of the father of the parties in the year 2000, the appellants started intermeddling with properties bequeathed to respondent no.2, which were situated in Delhi and, therefore, left with no option, he was compelled to apply for letters of administration. Therefore, even as per the pleadings in the application, the cause of action started from the date on which the appellants started intermeddling with the properties bequeathed to respondent no.2, after passing away of the father of the parties in the year 2000. Therefore, in the facts and circumstances of the case, both the learned Single Judge and the Division Bench have rightly refused to reject the application in exercise of powers under Order VII Rule 11 of the CPC. In the facts and circumstances of the case and as observed hereinabove, it cannot be said that the application for letters of administration was clearly barred by the law of limitation which was required to be rejected in exercise of powers under Order VII rule 11(d) of the CPC. We are in complete agreement with the view taken by the High Court. | 0 | 5,136 | 1,466 | ### Instruction:
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estate, and the applicant for probate or letters of administration only seeks the permission of the court to perform that duty. There is only a seeking of recognition from the court to perform the duty. That duty is only moral and it is not legal. There is no law which compels the applicant to file the proceedings for probate or letters of administration. With a view to discharge the moral duty, the applicant seeks recognition from the court to perform the duty. It will be legitimate to conclude that the proceedings filed for grant of probate or letters of administration is not an action in law. Hence, it is very difficult to and it will not be in order to construe the proceedings for grant of probate or letters of administration as applications coming within the meaning of an application under Article 137 if the Limitation Act, 1963. 16.1 This Court approved the observations made in paragraph 17 by the Madras High Court in the case of S. Krishnaswami (supra) insofar as the nature of the petition for grant of probate or letter of administration is concerned. However, this Court did not agree with the finding that the application for grant of probate or letters of administration is not covered by Article 137 of the Limitation Act. 16.2 In the aforesaid decision, this Court also considered and referred to paragraph 16 of the decision of the Bombay High Court in the case of Vasudev Daulatram Sadarangani (supra) in paragraph 15, which reads as follows: 16. Rejecting Mr. Dalpatrais contention, I summarise my conclusions thus – (a) Under the Limitation Act no period is advisedly prescribed within which an application for probate, letters of administration or succession certificate must be made; (b) The assumption that under Article 137 the right to apply necessarily accrues on the date of the death of the deceased, is unwarranted; (c) Such an application is for the courts permission to perform a legal duty created by a will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed; (d) The right to apply would accrue when it becomes necessary to apply which may not necessarily be within 3 years from the date of the deceaseds death; (e) Delay beyond 3 years after the deceaseds death would arouse suspicion and greater the delay, greater would be the suspicion; (f) Such delay must be explained, but cannot be equated with the absolute bar of limitation; and (g) Once execution and attestation are proved, suspicion of delay no longer operates. This Court did not agree with/approve conclusion (b). However, approved conclusion (c), reproduced hereinabove. 17. Therefore, considering the law laid down by this Court in the case of Kunvarjeet Singh Khandpur (supra), it can be said that in a proceeding, or in other words, in an application filed for grant of probate or letters of administration, no right is asserted or claimed by the applicant. The applicant only seeks recognition of the court to perform a duty. Probate or letters of administration issued by a competent court is conclusive proof of the legal character throughout the world. That the proceedings filed for grant of probate or letters of administration is not an action in law but it is an action in rem. As held by this Court in the case of Kunvarjeet Singh Khandpur (supra), an application for grant of probate or letters of administration is for the courts permission to perform a legal duty created by a will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed. Therefore, even if the will is probated by any court mentioned in Section 228 of the Act, right to get the letters of administration is a continuous right which can be exercised any time, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed. 18. Applying the law laid down by this Court in the aforesaid decision and the observations made hereinabove, the submission on behalf of the appellants that Probate Case No. 15/2001 filed by respondent no.2 for letters of administration under Section 228 of the Act, read with Section 276 of the Act is barred by law of limitation, cannot be accepted. At this stage, it is required to be noted that even in the plaint, it is specifically pleaded that after passing away of the father of the parties in the year 2000, the appellants started intermeddling with properties bequeathed to respondent no.2, which were situated in Delhi and, therefore, left with no option, he was compelled to apply for letters of administration. Therefore, even as per the pleadings in the application, the cause of action started from the date on which the appellants started intermeddling with the properties bequeathed to respondent no.2, after passing away of the father of the parties in the year 2000. Therefore, in the facts and circumstances of the case, both the learned Single Judge and the Division Bench have rightly refused to reject the application in exercise of powers under Order VII Rule 11 of the CPC. In the facts and circumstances of the case and as observed hereinabove, it cannot be said that the application for letters of administration was clearly barred by the law of limitation which was required to be rejected in exercise of powers under Order VII rule 11(d) of the CPC. We are in complete agreement with the view taken by the High Court.
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an order for grant of probate of will dated 16.05.1990 in favour of respondent no.2. It is the case on behalf of the appellants that therefore right to apply under Section 228 of the Act had accrued in favour of respondent no.2 on 21.11.1997 and, therefore, respondent no.2 was required to submit an application for letters of administration within a period of three years from 21.11.1997. However, the application for letters of administration has been submitted on 28.02.2001, i.e., after a lapse of limitation of three years as prescribed under Article 137 of the Limitation Act and therefore Probate Case No. 15/2001 is clearly barred by law of limitation and, therefore, the same was required to be rejected in exercise of powers under Order VII Rule 11 of the CPC. It is also the case on behalf of the appellants that so long as the will is not probated, the period of limitation would not start running. However, once the will is probated, in that case, the period of limitation as provided under Article 137 of the Limitation Act would begin to run from the date on which the will is probated14.1 When an application under Section 276 of the Act is submitted for probate or for letters of administration with will, if any objection is raised by any body with respect to execution of the will, in that case, the applicant is required to prove the will and thereafter the will shall be probated and the court may pass an order for letters of administration. However, in a case where a will has been proved or deposited in a court of competent jurisdiction situated beyond the limits of the State, whether within or beyond the limits of India, in that case, as provided under Section 228 of the Act, when a properly authenticated copy of the will is produced, the letters of administration may be granted in favour of such person. Meaning thereby, in such a situation, the will is not required to be proved again and it shall be conclusive. Therefore, Section 228 of the Act shall be an enabling provision and it confers an additional right to apply for letters of administration on the basis of such authenticated copy of the will. Therefore, as rightly observed by the learned Single Judge and the Division Bench that Section 228 is akin to Section 276 of the Act16.1 This Court approved the observations made in paragraph 17 by the Madras High Court in the case of S. Krishnaswami (supra) insofar as the nature of the petition for grant of probate or letter of administration is concerned. However, this Court did not agree with the finding that the application for grant of probate or letters of administration is not covered by Article 137 of the Limitation ActThis Court did not agree with/approve conclusion (b). However, approved conclusion (c), reproduced hereinabove17. Therefore, considering the law laid down by this Court in the case of Kunvarjeet Singh Khandpur (supra), it can be said that in a proceeding, or in other words, in an application filed for grant of probate or letters of administration, no right is asserted or claimed by the applicant. The applicant only seeks recognition of the court to perform a duty. Probate or letters of administration issued by a competent court is conclusive proof of the legal character throughout the world. That the proceedings filed for grant of probate or letters of administration is not an action in law but it is an action in rem. As held by this Court in the case of Kunvarjeet Singh Khandpur (supra), an application for grant of probate or letters of administration is for the courts permission to perform a legal duty created by a will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executedTherefore, even if the will is probated by any court mentioned in Section 228 of the Act, right to get the letters of administration is a continuous right which can be exercised any time, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed18. Applying the law laid down by this Court in the aforesaid decision and the observations made hereinabove, the submission on behalf of the appellants that Probate Case No. 15/2001 filed by respondent no.2 for letters of administration under Section 228 of the Act, read with Section 276 of the Act is barred by law of limitation, cannot be accepted. At this stage, it is required to be noted that even in the plaint, it is specifically pleaded that after passing away of the father of the parties in the year 2000, the appellants started intermeddling with properties bequeathed to respondent no.2, which were situated in Delhi and, therefore, left with no option, he was compelled to apply for letters of administration. Therefore, even as per the pleadings in the application, the cause of action started from the date on which the appellants started intermeddling with the properties bequeathed to respondent no.2, after passing away of the father of the parties in the year 2000. Therefore, in the facts and circumstances of the case, both the learned Single Judge and the Division Bench have rightly refused to reject the application in exercise of powers under Order VII Rule 11 of the CPC. In the facts and circumstances of the case and as observed hereinabove, it cannot be said that the application for letters of administration was clearly barred by the law of limitation which was required to be rejected in exercise of powers under Order VII rule 11(d) of the CPC. We are in complete agreement with the view taken by the High Court.
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PATEL ENGINEERING LTD. Vs. NORTH EASTERN ELECTRIC POWER CORPORATION LTD. (NEEPCO) | 3.4 of the BoQ are applicable. The provisional payment was an interim arrangement and was preceded by meetings dated 07.12.2012 and 08.12.2012 wherein it was specifically agreed between the parties that HoP, NEEPCO would take steps for referring the dispute to arbitration and that till the arbitral award, the payment would be made as per the prevailing provisional rate without any escalation and that final rate payable for transportation of sand and boulder shall be done on implementation of the arbitral award. As such the fact that provisional payment was made by deducting initial lead of 3.0 km was an irrelevant fact for deciding the issue. The findings of the learned Arbitrator having been arrived at by taking into account irrelevant factors and by ignoring vital clauses, the same suffers from vice of irrationality and perversity. It must be borne in mind that the Arbitral Awards in question are Declaratory Arbitral Awards and involved interpretation of Clauses 2.7 and 3.4 of the BoQ and Clauses 32(ii)(a) and 33(iii) of the Conditions of Contract and the learned arbitrator was required to interpret the same in accordance with the established rules of interpretation. The findings of the learned Additional Deputy Commissioner (Judicial), Shillong while upholding the arbitral awards of the learned Arbitrator also suffer from the similar vice. We are, therefore, of the considered view that that the common order dated 27.04.2018 passed by the learned Additional Deputy Commissioner (Judicial), Shillong in Arbitration Case No. 5 (T) 2016, Arbitration Case No. 6 (T) 2016 and Arbitration Case No. 7 (T) 2016 as well as the 3 (three) Arbitral Awards dated 29.03.2016 passed by the learned Arbitrator warrant interference in these appeals under Sec. 37 of the Arbitration and Conciliation Act, 1996. 53. There are additional reasons for interfering with order dated 27.04.2018 passed by the learned Additional Deputy Commissioner (Judicial), Shillong and the Arbitral Awards dated 29.03.2016 passed by the learned Arbitrator. As the learned counsel for the appellant has submitted, the potential effect of the Arbitral Award on public exchequer is that the appellant, which is a public sector undertaking, will have to pay a sum of about Rs. 3.56 Lakh for every truckload of 10 cubic metre of sand or boulder (travelling for 100 km) and the total potential effect would be about Rs. 1,000 Crore. We are of the considered view that payment of Rs. 3.56 Lakh per truck (10 Cubic Metre) of sand or boulder (100 km distance) is definitely a case of unjust enrichment which is contrary to the Fundamental Policy of Indian Law. Unjust enrichment being contrary to the Fundamental Policy of Indian Law is a ground for interference with an Arbitral Award under Sec. 34(2) of the Act. The Bombay High Court in Angerlehner Structural and Civil Engineering co. v. Municipal Corporation of Greater Mumbai has recognized unjust enrichment of a party at the cost of public exchequer as being against the fundamental policy of Indian law. The Bombay High Court has held: If the argument of the Contractors is accepted, it lead to them blatantly enriching themselves over and above what they are entitled. Such completely unjust enrichment, that too at the cost of public funds, is abhorrent under the fundamental policy of Indian Law. The award in AJECT, which permits such blatant enrichment is therefore is also vitiated on the ground that it is against the fundamental policy of Indian Law. We are also of the considered view that the Arbitral Award which would potentially result in unjust enrichment of the respondent to the extent of about Rs. 1,000 Crores is against the fundamental policy of Indian law and, therefore, warrant interference on this count as well. Though this court is not sitting in appeal over the award of the arbitral tribunal, the presence of grounds under Section 34[2] of the Act and the satisfaction arrived at by this Court in this regard, warrants interference more so, as the Arbitral Awards in question are Declaratory Arbitral Awards and involved interpretation of Clauses 2.7 and 3.4 of the BoQ and Clauses 32(ii)(a) and 33(iii) of the Conditions of Contract and the learned arbitrator was required to interpret the same in accordance with the established rules of interpretation and in line with the fundamental policy of Indian law. (emphasis supplied) 26. Even though the High Court in paragraph (44) of the judgment referred to various judgments, including Western Geco (supra) [which is now no longer good law], the case has been decided on the ground that the arbitral award is a perverse award and on a holistic reading of all the terms and conditions of the contract, the view taken by the arbitrator is not even a possible view. The High Court has rightly followed the test set out in paragraph (42.3) of Associate Builders (supra), which was reiterated in paragraph (40) of the Ssangyong Engineering judgment (supra). 27. In our view, while dealing with the appeal under Section 37 of the Act, the High Court has considered the matter at length, and held that while interpreting the terms of the contract, no reasonable person could have arrived at a different conclusion and that the awards passed by the arbitrator suffer from the vice of irrationality and perversity. 28. The learned Solicitor General Mr. Tushar Mehta and Mr. H. Ahmadi, Senior Advocate for the respondent, submitted that all these contentions were raised in the earlier round when challenge to the substantive Judgment dated 26.02.2019 was made. The said challenge was repelled by this Court vide Order dated 19.07.2019 by dismissal of the earlier SLPs. It is now not open to re-open the matter by filing a review petition on the same grounds, which have been rightly dismissed by the High Court. The Petitioner has failed to make out any error on the face of the judgment dated 26.02.2019. The High Court by the impugned order dated 10.10.2019 rightly dismissed the review petitions and we do not find any ground warranting interference with the impugned order. | 0[ds]12. In our considered view, it is not necessary to go into the question of maintainability of these SLPs preferred against the order rejecting the review, after the challenge to the main judgment had been rejected in the earlier SLPs. As noted earlier, in this case, the judgment of the High Court under Section 37 of the Act was challenged before the Supreme Court and the SLPs were dismissed by the Supreme Court after hearing the Senior Counsel for the parties vide order dated 19.07.2019. Be it noted when the earlier SLPs were dismissed, no liberty was taken to file the review before the High Court. Be that as it may, we are not inclined to go into this aspect any furtherIn the present case, admittedly, after the arbitral awards are dated 29.03.2016, the applications under Section 34 of the Act were filed before the Judicial Commissioner, Shillong as per the decision in Board of Control for Cricket in India (Board of Control for Cricket in India v. Kochi Cricket Private Limited and Others (2018) 6 SCC 287 ) , the provisions of the Amendment Act would apply20. In Ssangyong Engineering and Construction Company Limited (Ssangyong Engineering and Construction Company Limited v. National Highways Authority of India (NHAI) (2019) 15 SCC 131 ) , this Court was considering a challenge to an award passed in an international commercial arbitration, between the Appellant – company a foreign entity registered under the laws of Korea, and the Respondent, a Government of India undertaking. In paragraph (19) of the judgment, this Court noted that the expansive interpretation given to public policy of India in the Saw Pipes (supra) and Western Geco International Limited (Oil & Natural Gas Corporation Ltd. v. Western Geco International Limited (2014) 9 SCC 263 ) cases, which had been done away with, and a new ground of patent illegality was introduced which would apply to applications under Section 34 made on or after 23.10.2015. In paragraphs (36) and (37) of the judgment, this Court held that insofar as domestic awards are concerned, the additional ground of patent illegality was now available under sub-section (2A) to Section 34. However, re-appreciation of evidence was not permitted under the ground of patent illegality appearing on the face of the award21. In paragraphs (39) and (40) of Ssangyong Engineering (supra), the Court reiterated paragraphs (42.2) and (42.3) of Associate Builders (supra) wherein, it was held that the construction of the terms of a contract is primarily for an arbitrator to decide, unless the arbitrator construes a contract in a manner which no fair minded or reasonable person would take i.e. if the view taken by the arbitrator is not even a possible view to take. In paragraphs (39) and (40), the Supreme Court held as under:-39. To elucidate, para 42.1 of Associate Builders v. Delhi Development Authority (2015) 3 SCC 49 , namely, a mere contravention of the substantive law of India, by itself, is no longer a ground available to set aside an arbitral award. Para 42.2 of Associate Builders v. Delhi Development Authority (2015) 3 SCC 49 , however, would remain, for if an arbitrator gives no reasons for an award and contravenes Section 31(3) of the 1996 Act, that would certainly amount to a patent illegality on the face of the award40. The change made in Section 28(3) by the Amendment Act really follows what is stated in paras 42.3 to 45 in Associate Builders v. Delhi Development Authority (2015) 3 SCC 49 , namely, that the construction of the terms of a contract is primarily for an arbitrator to decide, unless the arbitrator construes the contract in a manner that no fair-minded or reasonable person would; in short, that the arbitrators view is not even a possible view to take. Also, if the arbitrator wanders outside the contract and deals with matters not allotted to him, he commits an error of jurisdiction. This ground of challenge will now fall within the new ground added under Section 34(2-A). (emphasis supplied)22. The present case arises out of a domestic award between two Indian entities. The ground of patent illegality is a ground available under the statute for setting aside a domestic award, if the decision of the arbitrator is found to be perverse, or, so irrational that no reasonable person would have arrived at the same; or, the construction of the contract is such that no fair or reasonable person would take; or, that the view of the arbitrator is not even a possible view23. In the present case, the High Court has referred to the judgment in Associated Builders (supra) at length in paragraph (42) of its judgment dated 26.02.2019 and arrived at the correct conclusion that an arbitral award can be set aside under Section 34 if it is patently illegal or perverse. This finding of the High Court is in conformity with paragraph (40) of the judgment of this Court in Ssangyong Engineering (supra)24. In the present case, the High Court in paragraph (51) has held that no reasonable person could have arrived at a different conclusion while interpreting Clauses 2.7 and 3.4 of the BoQ and Clauses 32(ii)(a) and 33(iii) of the Conditions of Contract. Any other interpretation of the above clauses would definitely be irrational and in defiance of all logic26. Even though the High Court in paragraph (44) of the judgment referred to various judgments, including Western Geco (supra) [which is now no longer good law], the case has been decided on the ground that the arbitral award is a perverse award and on a holistic reading of all the terms and conditions of the contract, the view taken by the arbitrator is not even a possible view. The High Court has rightly followed the test set out in paragraph (42.3) of Associate Builders (supra), which was reiterated in paragraph (40) of the Ssangyong Engineering judgment (supra)27. In our view, while dealing with the appeal under Section 37 of the Act, the High Court has considered the matter at length, and held that while interpreting the terms of the contract, no reasonable person could have arrived at a different conclusion and that the awards passed by the arbitrator suffer from the vice of irrationality and perversityThe said challenge was repelled by this Court vide Order dated 19.07.2019 by dismissal of the earlier SLPs. It is now not open to re-open the matter by filing a review petition on the same grounds, which have been rightly dismissed by the High Court. The Petitioner has failed to make out any error on the face of the judgment dated 26.02.2019. The High Court by the impugned order dated 10.10.2019 rightly dismissed the review petitions and we do not find any ground warranting interference with the impugned order | 0 | 6,209 | 1,308 | ### 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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3.4 of the BoQ are applicable. The provisional payment was an interim arrangement and was preceded by meetings dated 07.12.2012 and 08.12.2012 wherein it was specifically agreed between the parties that HoP, NEEPCO would take steps for referring the dispute to arbitration and that till the arbitral award, the payment would be made as per the prevailing provisional rate without any escalation and that final rate payable for transportation of sand and boulder shall be done on implementation of the arbitral award. As such the fact that provisional payment was made by deducting initial lead of 3.0 km was an irrelevant fact for deciding the issue. The findings of the learned Arbitrator having been arrived at by taking into account irrelevant factors and by ignoring vital clauses, the same suffers from vice of irrationality and perversity. It must be borne in mind that the Arbitral Awards in question are Declaratory Arbitral Awards and involved interpretation of Clauses 2.7 and 3.4 of the BoQ and Clauses 32(ii)(a) and 33(iii) of the Conditions of Contract and the learned arbitrator was required to interpret the same in accordance with the established rules of interpretation. The findings of the learned Additional Deputy Commissioner (Judicial), Shillong while upholding the arbitral awards of the learned Arbitrator also suffer from the similar vice. We are, therefore, of the considered view that that the common order dated 27.04.2018 passed by the learned Additional Deputy Commissioner (Judicial), Shillong in Arbitration Case No. 5 (T) 2016, Arbitration Case No. 6 (T) 2016 and Arbitration Case No. 7 (T) 2016 as well as the 3 (three) Arbitral Awards dated 29.03.2016 passed by the learned Arbitrator warrant interference in these appeals under Sec. 37 of the Arbitration and Conciliation Act, 1996. 53. There are additional reasons for interfering with order dated 27.04.2018 passed by the learned Additional Deputy Commissioner (Judicial), Shillong and the Arbitral Awards dated 29.03.2016 passed by the learned Arbitrator. As the learned counsel for the appellant has submitted, the potential effect of the Arbitral Award on public exchequer is that the appellant, which is a public sector undertaking, will have to pay a sum of about Rs. 3.56 Lakh for every truckload of 10 cubic metre of sand or boulder (travelling for 100 km) and the total potential effect would be about Rs. 1,000 Crore. We are of the considered view that payment of Rs. 3.56 Lakh per truck (10 Cubic Metre) of sand or boulder (100 km distance) is definitely a case of unjust enrichment which is contrary to the Fundamental Policy of Indian Law. Unjust enrichment being contrary to the Fundamental Policy of Indian Law is a ground for interference with an Arbitral Award under Sec. 34(2) of the Act. The Bombay High Court in Angerlehner Structural and Civil Engineering co. v. Municipal Corporation of Greater Mumbai has recognized unjust enrichment of a party at the cost of public exchequer as being against the fundamental policy of Indian law. The Bombay High Court has held: If the argument of the Contractors is accepted, it lead to them blatantly enriching themselves over and above what they are entitled. Such completely unjust enrichment, that too at the cost of public funds, is abhorrent under the fundamental policy of Indian Law. The award in AJECT, which permits such blatant enrichment is therefore is also vitiated on the ground that it is against the fundamental policy of Indian Law. We are also of the considered view that the Arbitral Award which would potentially result in unjust enrichment of the respondent to the extent of about Rs. 1,000 Crores is against the fundamental policy of Indian law and, therefore, warrant interference on this count as well. Though this court is not sitting in appeal over the award of the arbitral tribunal, the presence of grounds under Section 34[2] of the Act and the satisfaction arrived at by this Court in this regard, warrants interference more so, as the Arbitral Awards in question are Declaratory Arbitral Awards and involved interpretation of Clauses 2.7 and 3.4 of the BoQ and Clauses 32(ii)(a) and 33(iii) of the Conditions of Contract and the learned arbitrator was required to interpret the same in accordance with the established rules of interpretation and in line with the fundamental policy of Indian law. (emphasis supplied) 26. Even though the High Court in paragraph (44) of the judgment referred to various judgments, including Western Geco (supra) [which is now no longer good law], the case has been decided on the ground that the arbitral award is a perverse award and on a holistic reading of all the terms and conditions of the contract, the view taken by the arbitrator is not even a possible view. The High Court has rightly followed the test set out in paragraph (42.3) of Associate Builders (supra), which was reiterated in paragraph (40) of the Ssangyong Engineering judgment (supra). 27. In our view, while dealing with the appeal under Section 37 of the Act, the High Court has considered the matter at length, and held that while interpreting the terms of the contract, no reasonable person could have arrived at a different conclusion and that the awards passed by the arbitrator suffer from the vice of irrationality and perversity. 28. The learned Solicitor General Mr. Tushar Mehta and Mr. H. Ahmadi, Senior Advocate for the respondent, submitted that all these contentions were raised in the earlier round when challenge to the substantive Judgment dated 26.02.2019 was made. The said challenge was repelled by this Court vide Order dated 19.07.2019 by dismissal of the earlier SLPs. It is now not open to re-open the matter by filing a review petition on the same grounds, which have been rightly dismissed by the High Court. The Petitioner has failed to make out any error on the face of the judgment dated 26.02.2019. The High Court by the impugned order dated 10.10.2019 rightly dismissed the review petitions and we do not find any ground warranting interference with the impugned order.
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### Explanation:
34 of the Act were filed before the Judicial Commissioner, Shillong as per the decision in Board of Control for Cricket in India (Board of Control for Cricket in India v. Kochi Cricket Private Limited and Others (2018) 6 SCC 287 ) , the provisions of the Amendment Act would apply20. In Ssangyong Engineering and Construction Company Limited (Ssangyong Engineering and Construction Company Limited v. National Highways Authority of India (NHAI) (2019) 15 SCC 131 ) , this Court was considering a challenge to an award passed in an international commercial arbitration, between the Appellant – company a foreign entity registered under the laws of Korea, and the Respondent, a Government of India undertaking. In paragraph (19) of the judgment, this Court noted that the expansive interpretation given to public policy of India in the Saw Pipes (supra) and Western Geco International Limited (Oil & Natural Gas Corporation Ltd. v. Western Geco International Limited (2014) 9 SCC 263 ) cases, which had been done away with, and a new ground of patent illegality was introduced which would apply to applications under Section 34 made on or after 23.10.2015. In paragraphs (36) and (37) of the judgment, this Court held that insofar as domestic awards are concerned, the additional ground of patent illegality was now available under sub-section (2A) to Section 34. However, re-appreciation of evidence was not permitted under the ground of patent illegality appearing on the face of the award21. In paragraphs (39) and (40) of Ssangyong Engineering (supra), the Court reiterated paragraphs (42.2) and (42.3) of Associate Builders (supra) wherein, it was held that the construction of the terms of a contract is primarily for an arbitrator to decide, unless the arbitrator construes a contract in a manner which no fair minded or reasonable person would take i.e. if the view taken by the arbitrator is not even a possible view to take. In paragraphs (39) and (40), the Supreme Court held as under:-39. To elucidate, para 42.1 of Associate Builders v. Delhi Development Authority (2015) 3 SCC 49 , namely, a mere contravention of the substantive law of India, by itself, is no longer a ground available to set aside an arbitral award. Para 42.2 of Associate Builders v. Delhi Development Authority (2015) 3 SCC 49 , however, would remain, for if an arbitrator gives no reasons for an award and contravenes Section 31(3) of the 1996 Act, that would certainly amount to a patent illegality on the face of the award40. The change made in Section 28(3) by the Amendment Act really follows what is stated in paras 42.3 to 45 in Associate Builders v. Delhi Development Authority (2015) 3 SCC 49 , namely, that the construction of the terms of a contract is primarily for an arbitrator to decide, unless the arbitrator construes the contract in a manner that no fair-minded or reasonable person would; in short, that the arbitrators view is not even a possible view to take. Also, if the arbitrator wanders outside the contract and deals with matters not allotted to him, he commits an error of jurisdiction. This ground of challenge will now fall within the new ground added under Section 34(2-A). (emphasis supplied)22. The present case arises out of a domestic award between two Indian entities. The ground of patent illegality is a ground available under the statute for setting aside a domestic award, if the decision of the arbitrator is found to be perverse, or, so irrational that no reasonable person would have arrived at the same; or, the construction of the contract is such that no fair or reasonable person would take; or, that the view of the arbitrator is not even a possible view23. In the present case, the High Court has referred to the judgment in Associated Builders (supra) at length in paragraph (42) of its judgment dated 26.02.2019 and arrived at the correct conclusion that an arbitral award can be set aside under Section 34 if it is patently illegal or perverse. This finding of the High Court is in conformity with paragraph (40) of the judgment of this Court in Ssangyong Engineering (supra)24. In the present case, the High Court in paragraph (51) has held that no reasonable person could have arrived at a different conclusion while interpreting Clauses 2.7 and 3.4 of the BoQ and Clauses 32(ii)(a) and 33(iii) of the Conditions of Contract. Any other interpretation of the above clauses would definitely be irrational and in defiance of all logic26. Even though the High Court in paragraph (44) of the judgment referred to various judgments, including Western Geco (supra) [which is now no longer good law], the case has been decided on the ground that the arbitral award is a perverse award and on a holistic reading of all the terms and conditions of the contract, the view taken by the arbitrator is not even a possible view. The High Court has rightly followed the test set out in paragraph (42.3) of Associate Builders (supra), which was reiterated in paragraph (40) of the Ssangyong Engineering judgment (supra)27. In our view, while dealing with the appeal under Section 37 of the Act, the High Court has considered the matter at length, and held that while interpreting the terms of the contract, no reasonable person could have arrived at a different conclusion and that the awards passed by the arbitrator suffer from the vice of irrationality and perversityThe said challenge was repelled by this Court vide Order dated 19.07.2019 by dismissal of the earlier SLPs. It is now not open to re-open the matter by filing a review petition on the same grounds, which have been rightly dismissed by the High Court. The Petitioner has failed to make out any error on the face of the judgment dated 26.02.2019. The High Court by the impugned order dated 10.10.2019 rightly dismissed the review petitions and we do not find any ground warranting interference with the impugned order
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Shrimant Sardar Chandrojirao Angre Vs. State Of Madhya Pradesh | Dictionary, P. 641, a grove has been defined as a small wood; groups of trees standing together without undergrowth. The Shorter (Oxford English Dictionary, Vol. l, 838 also defines it as a small wood, a group of trees affording shade or forming avenues or walks. In Corpus Juris Secundum, Vol. 98, P. 688 a grove is defined to mean a cluster of trees not sufficiently extensive to be called a wood; a group of trees of indefinite extent but not large enough to constitute a forest; especially such a group considered as furnishing shade for avenues and walks. Though a grove in this sense may consist of a group of trees of indefinite extent it cannot be divorced from the idea of a homogeneous or at any rate a substantially homogeneous unit consisting of a cluster of trees close to each other so as to serve as a shade to walks or avenues. Apart from the meaning that the dictionaries offer, the word "grove" has also been the subject-matter of a number of decisions. The case of Daropadi v. Mannu Lal, AIR 1929 All 557 was, of course, an extreme case of only 4 fruit trees in an area of 3 bighas and that too on the boundaries. Ashworth J. could therefore easily discard the contention that the said trees formed a grove or that the land on which they stood was a grove land within the meaning of Section 3 of the Agra Tenancy Act, 1926 which provided that so long as any considerable portion of a plot had a sufficient number of trees to prevent that plot from being cultivated, assuming the trees to have reached their full size, the entire plot would retain the character of grove but not otherwise. It is true that when the learned Judge made this observation he had in mind the definition of grove in S. 3 of that Act, but he also observed that that was the sense in which a "grove" and "grove land" were ordinarily understood and that the definition did no more than to bring out the sense in which them terms were generally understood. In Kashi v. Jagoo Bai, AIR 1934 All 290 also, Bennet J. held that isolated trees cannot be said to constitute a grove. But unlike these two cases, the land in Shiv Sahai v. Har Nandan, AIR 1963 All 413 had 13 mango trees full grown big in size and covering a major part of it. It was held that the land was a grove land within the meaning of Section 3 (5) of the U. P. Tenancy Act, 1939, in spite of the fact that there was some cultivation on the land. The Court there observed that the definition merely required that the trees must be in sufficiently large number to preclude the land from being used primarily for a purpose other than as grove-land. In Hasan v. State of Bombay, (1960) 62 Bom LR 617 the High Court was concerned with S. 5 (h) of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1 of 1951 which is in almost identical terms as S. 5 (b) (iv) of the present Act. The Court interpreted the word "grove" to mean an area covered by a cluster of trees specially planted by human agency but not large enough to constitute a forest.6.It would seem therefore that the word "grove" conveys compactness or at any rate substantial compactness to be recognised as a unit by itself which must consist of a group of trees in sufficient number to preclude the land on which they stand from being primarily used for a purpose, such as cultivation, other than as a grove-land. The language of Section 5 (b) (iv) does not require however that the trees need be fruit-bearing trees nor coca it require that they should have been planted by human labour or agency. But they must be sufficient in number and so standing in a group as to give them the character of a grove and to retain that character the trees would or when fully grown preclude the land on which they stand from being primarily used for a purpose other than that of a groveland. Cultivation of a patch here and a patch there would have no significance to deprive it of its character as a grove. Therefore, trees standing in a file on the road side intended to furnish shade to the road would not fulfil the requirement of a grove even as understood in ordinary parlance.7. Counsel, however, contended that although the trees in question are situate on the road side along the said road there may at some places be a group or groups of trees sufficiently large in number and closely standing together to preclude that particular area from being used for cultivation or for any other purpose. In that case, he argued, there was nothing in sub-cl. (iv) to prevent such a duster of trees from being regarded as a grove. We think there is some force in this argument which requires consideration. Neither the revenue authorities nor the High Court approached the question from this point of view and no inquiry at any stage seems to have been made whether there are at any place or places such group or groups of trees to constitute a grove or groves. All of them appear to have dismissed the appellants claim only because of the fact that the trees stand along the two sides of the road. It is possible that the road might have been constructed in this particular area because of a number of trees standing on both sides of it which would provide shade over it and form an avenue. In fairness to the appellant, we think it necessary that he should have an opportunity to establish that at some place or places along the said road there are trees sufficient in number and proximity to constitute a grove or groves. | 1[ds]4. These provisions show clearly that the legislature has used the word "trees" at three places in three different contexts: in secs. 4 (a), 5 (b) and 5 (c) apart from the expression "all groves wherever situate" in sub-cl. (iv) of sec. 5 (b). Whereas under sec. 4 (a) the trees are to vest in the State Government along with the forests, fisheries etc., the trees mentioned in sec. 5(b) (iii) and (c) are allowed to continue to belong to and be held by the jagirdar. Obviously the word "trees" in these provisions has not been used in any uniform sense and therefore has to be construed in the context in which it is used. For instance, the word "trees" in sec. 5(b) (iii) and (c) is placed in juxtaposition with other properties such as private buildings, places of worship, wells situated in lands included in the said enclosures and house sites referred to in sub-cls. (i) and (ii). It appears that the policy of the legislature was that jagir lands including forests, trees in such forests, fisheries wells, tanks, ponds, ferries, pathways, village sites etc., which were used by the public and in which the members of the public were interested were resumed while the land in personae cultivation of the jagirdar, enclosures used for agricultural and domestic purposes, house sites purchased for valuable consideration, private buildings places of worship, wells, trees standing on lands in such enclosures and house sites and tanks, trees, private wells and buildings in or on occupied land belonging to or held by the jagirdar were allowed to continue to belong to and be held by him. It will he seen that groves in sub-cl. (iv) of sec. (b) are included amongst properties allowed to continue to belong to and be held by the jagirdar. Sub-clause (iv) also shows that such groves need not be of fruit trees nor need the trees thereof have been planted by the jagirdar. The words "wherever situate" indicate that it is not necessary that they should be on lands or properties allowed to be retained by the jagirdar under S. 5. If a grove belonged to or was held by him, whether planted by him or of natural growth and wherever situate it is allowed to continue to belong to him and be held by him. The intention of the legislature appears therefore to be that properties which the jagirdar was in personal use and possession of or in respect of which he had paid valuable consideration are to be retained by him. It is in this context that we should construe sub-cl. (iv) of sec. 5 (b). A grove irrespective of where it is situate, but be belonging to or held by the jagirdar is to continue to belong to or to be held by him. To secure the fun and proper use and enjoyment of such a grove, if it is on land other than that which is allowed to be retained by him, sub-clause (iv) further provides that the land on which such a grove stands with the areas appurtenant thereto also shall be settled upon him in accordance with the M. B. Revenue Administration and Ryotwari Land Revenue and Tenancy Act Samvat 2007.t would seem therefore that the word "grove" conveys compactness or at any rate substantial compactness to be recognised as a unit by itself which must consist of a group of trees in sufficient number to preclude the land on which they stand from being primarily used for a purpose, such as cultivation, other than as a grove-land. The language of Section 5 (b) (iv) does not require however that the trees need be fruit-bearing trees nor coca it require that they should have been planted by human labour or agency. But they must be sufficient in number and so standing in a group as to give them the character of a grove and to retain that character the trees would or when fully grown preclude the land on which they stand from being primarily used for a purpose other than that of a groveland. Cultivation of a patch here and a patch there would have no significance to deprive it of its character as a grove. Therefore, trees standing in a file on the road side intended to furnish shade to the road would not fulfil the requirement of a grove even as understood in ordinary parlance.We think there is some force in this argument which requires consideration. Neither the revenue authorities nor the High Court approached the question from this point of view and no inquiry at any stage seems to have been made whether there are at any place or places such group or groups of trees to constitute a grove or groves. All of them appear to have dismissed the appellants claim only because of the fact that the trees stand along the two sides of the road. It is possible that the road might have been constructed in this particular area because of a number of trees standing on both sides of it which would provide shade over it and form an avenue. In fairness to the appellant, we think it necessary that he should have an opportunity to establish that at some place or places along the said road there are trees sufficient in number and proximity to constitute a grove or groves. | 1 | 2,472 | 1,023 | ### 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:
Dictionary, P. 641, a grove has been defined as a small wood; groups of trees standing together without undergrowth. The Shorter (Oxford English Dictionary, Vol. l, 838 also defines it as a small wood, a group of trees affording shade or forming avenues or walks. In Corpus Juris Secundum, Vol. 98, P. 688 a grove is defined to mean a cluster of trees not sufficiently extensive to be called a wood; a group of trees of indefinite extent but not large enough to constitute a forest; especially such a group considered as furnishing shade for avenues and walks. Though a grove in this sense may consist of a group of trees of indefinite extent it cannot be divorced from the idea of a homogeneous or at any rate a substantially homogeneous unit consisting of a cluster of trees close to each other so as to serve as a shade to walks or avenues. Apart from the meaning that the dictionaries offer, the word "grove" has also been the subject-matter of a number of decisions. The case of Daropadi v. Mannu Lal, AIR 1929 All 557 was, of course, an extreme case of only 4 fruit trees in an area of 3 bighas and that too on the boundaries. Ashworth J. could therefore easily discard the contention that the said trees formed a grove or that the land on which they stood was a grove land within the meaning of Section 3 of the Agra Tenancy Act, 1926 which provided that so long as any considerable portion of a plot had a sufficient number of trees to prevent that plot from being cultivated, assuming the trees to have reached their full size, the entire plot would retain the character of grove but not otherwise. It is true that when the learned Judge made this observation he had in mind the definition of grove in S. 3 of that Act, but he also observed that that was the sense in which a "grove" and "grove land" were ordinarily understood and that the definition did no more than to bring out the sense in which them terms were generally understood. In Kashi v. Jagoo Bai, AIR 1934 All 290 also, Bennet J. held that isolated trees cannot be said to constitute a grove. But unlike these two cases, the land in Shiv Sahai v. Har Nandan, AIR 1963 All 413 had 13 mango trees full grown big in size and covering a major part of it. It was held that the land was a grove land within the meaning of Section 3 (5) of the U. P. Tenancy Act, 1939, in spite of the fact that there was some cultivation on the land. The Court there observed that the definition merely required that the trees must be in sufficiently large number to preclude the land from being used primarily for a purpose other than as grove-land. In Hasan v. State of Bombay, (1960) 62 Bom LR 617 the High Court was concerned with S. 5 (h) of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1 of 1951 which is in almost identical terms as S. 5 (b) (iv) of the present Act. The Court interpreted the word "grove" to mean an area covered by a cluster of trees specially planted by human agency but not large enough to constitute a forest.6.It would seem therefore that the word "grove" conveys compactness or at any rate substantial compactness to be recognised as a unit by itself which must consist of a group of trees in sufficient number to preclude the land on which they stand from being primarily used for a purpose, such as cultivation, other than as a grove-land. The language of Section 5 (b) (iv) does not require however that the trees need be fruit-bearing trees nor coca it require that they should have been planted by human labour or agency. But they must be sufficient in number and so standing in a group as to give them the character of a grove and to retain that character the trees would or when fully grown preclude the land on which they stand from being primarily used for a purpose other than that of a groveland. Cultivation of a patch here and a patch there would have no significance to deprive it of its character as a grove. Therefore, trees standing in a file on the road side intended to furnish shade to the road would not fulfil the requirement of a grove even as understood in ordinary parlance.7. Counsel, however, contended that although the trees in question are situate on the road side along the said road there may at some places be a group or groups of trees sufficiently large in number and closely standing together to preclude that particular area from being used for cultivation or for any other purpose. In that case, he argued, there was nothing in sub-cl. (iv) to prevent such a duster of trees from being regarded as a grove. We think there is some force in this argument which requires consideration. Neither the revenue authorities nor the High Court approached the question from this point of view and no inquiry at any stage seems to have been made whether there are at any place or places such group or groups of trees to constitute a grove or groves. All of them appear to have dismissed the appellants claim only because of the fact that the trees stand along the two sides of the road. It is possible that the road might have been constructed in this particular area because of a number of trees standing on both sides of it which would provide shade over it and form an avenue. In fairness to the appellant, we think it necessary that he should have an opportunity to establish that at some place or places along the said road there are trees sufficient in number and proximity to constitute a grove or groves.
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### Explanation:
4. These provisions show clearly that the legislature has used the word "trees" at three places in three different contexts: in secs. 4 (a), 5 (b) and 5 (c) apart from the expression "all groves wherever situate" in sub-cl. (iv) of sec. 5 (b). Whereas under sec. 4 (a) the trees are to vest in the State Government along with the forests, fisheries etc., the trees mentioned in sec. 5(b) (iii) and (c) are allowed to continue to belong to and be held by the jagirdar. Obviously the word "trees" in these provisions has not been used in any uniform sense and therefore has to be construed in the context in which it is used. For instance, the word "trees" in sec. 5(b) (iii) and (c) is placed in juxtaposition with other properties such as private buildings, places of worship, wells situated in lands included in the said enclosures and house sites referred to in sub-cls. (i) and (ii). It appears that the policy of the legislature was that jagir lands including forests, trees in such forests, fisheries wells, tanks, ponds, ferries, pathways, village sites etc., which were used by the public and in which the members of the public were interested were resumed while the land in personae cultivation of the jagirdar, enclosures used for agricultural and domestic purposes, house sites purchased for valuable consideration, private buildings places of worship, wells, trees standing on lands in such enclosures and house sites and tanks, trees, private wells and buildings in or on occupied land belonging to or held by the jagirdar were allowed to continue to belong to and be held by him. It will he seen that groves in sub-cl. (iv) of sec. (b) are included amongst properties allowed to continue to belong to and be held by the jagirdar. Sub-clause (iv) also shows that such groves need not be of fruit trees nor need the trees thereof have been planted by the jagirdar. The words "wherever situate" indicate that it is not necessary that they should be on lands or properties allowed to be retained by the jagirdar under S. 5. If a grove belonged to or was held by him, whether planted by him or of natural growth and wherever situate it is allowed to continue to belong to him and be held by him. The intention of the legislature appears therefore to be that properties which the jagirdar was in personal use and possession of or in respect of which he had paid valuable consideration are to be retained by him. It is in this context that we should construe sub-cl. (iv) of sec. 5 (b). A grove irrespective of where it is situate, but be belonging to or held by the jagirdar is to continue to belong to or to be held by him. To secure the fun and proper use and enjoyment of such a grove, if it is on land other than that which is allowed to be retained by him, sub-clause (iv) further provides that the land on which such a grove stands with the areas appurtenant thereto also shall be settled upon him in accordance with the M. B. Revenue Administration and Ryotwari Land Revenue and Tenancy Act Samvat 2007.t would seem therefore that the word "grove" conveys compactness or at any rate substantial compactness to be recognised as a unit by itself which must consist of a group of trees in sufficient number to preclude the land on which they stand from being primarily used for a purpose, such as cultivation, other than as a grove-land. The language of Section 5 (b) (iv) does not require however that the trees need be fruit-bearing trees nor coca it require that they should have been planted by human labour or agency. But they must be sufficient in number and so standing in a group as to give them the character of a grove and to retain that character the trees would or when fully grown preclude the land on which they stand from being primarily used for a purpose other than that of a groveland. Cultivation of a patch here and a patch there would have no significance to deprive it of its character as a grove. Therefore, trees standing in a file on the road side intended to furnish shade to the road would not fulfil the requirement of a grove even as understood in ordinary parlance.We think there is some force in this argument which requires consideration. Neither the revenue authorities nor the High Court approached the question from this point of view and no inquiry at any stage seems to have been made whether there are at any place or places such group or groups of trees to constitute a grove or groves. All of them appear to have dismissed the appellants claim only because of the fact that the trees stand along the two sides of the road. It is possible that the road might have been constructed in this particular area because of a number of trees standing on both sides of it which would provide shade over it and form an avenue. In fairness to the appellant, we think it necessary that he should have an opportunity to establish that at some place or places along the said road there are trees sufficient in number and proximity to constitute a grove or groves.
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New Kaiser-I-Hind Spinning and Weaving Company Limited (In Liquidation) Vs. State of Maharastra | take over the company by offering to sell them their controlling share holding at the low price of Rs. 10 per share. Perhaps that attracted the Jalan group which for a time felt that they were making an easy bargain and would be able to set the company on its feet again by procuring finances and running it to their profit in which case the value of the shares would have also risen, but after the controlling shares were transferred and the Jalan group took over the company the expectations of the Jalan group were not realised and they found that the company was in a worse commercial position than they had thought it was in, before they entered into the agreement with the J. K. group. What is more, it does appear that a period of severe depression in the textile industry and want of cotton worsened the position. In that predicament the attitude of the authorities who had controlled the purchases of cotton and fixed its price was most unhelpful and contributed to further losses of the company, with the result that the Jalan group found it impossible to implement the scheme and decided to give a go-by to their agreement with the J. K. group. We think that the only proper thing they could do in the circumstances was to apply for liquidation of the company. They also had sought their own advantage but their calculations failed. Neither of these two groups can be credited with seeking the advantage of the company or its workers or the interests of the other unsecured creditors of the company. ( 91 ) IN the several proceedings which commenced no doubt each of the two groups started violently to blame the others making all kinds of allegations against each other, the J. K. group charging the Jalan with deliberate breach of their agreement and fraudulent conduct and an attempt to make money for themselves by mismanaging the company. The Jalan group retorted that the position of the company was brought on by the fraudulent conduct of the J. K. group in the past and by their obstructionist attitude in the implementation of the scheme. These charges and counter charges are all at the stage of allegations and counter allegations and there is no proof of them as such. We have come to our conclusions only on the face of the affidavits filed. If a case is made out for the winding-up of a company, as we have held has been made out in the present case, upon such material as has been placed before us, we do not think that these allegations and counter-allegations can affect the issue; nor can the motives of either of the two groups, the one in presenting the application for winding up of the company and the other in seeking to enforce the scheme, can be taken into consideration. In Bachharaj Factories Ltd. v. Hirjee Mills Ltd. ([1955] 25 Comp. Cas. 227 251; 57 Bom. L. R. 378), there were also similar allegations made against the directors of the company and Chief Justice Chagla disposed of the allegations at page 392 as follows : but as we read the judgment of the learned judge, the main reason which has weighed with him is that the petitioners have not come to this court with clean hands, and Mr. Mathalone wanted to satisfy us that the motive of the petitioners in closing down the mills was selfish, that they were largely responsible for bringing about an impasse in the affairs of the mills, and the court will not make an order at the instance of a party which is guilty of mala fides. We have not permitted Mr. Mathalone to go into the merits of these allegations about the mala fides of the petitioners because in our opinion these allegations are entirely irrelevant. If the petitioners have made out a case of for the winding-up of the company, if they have placed materials before the court which satisfy the court that the company is insolvent, if they have placed materials before the court which satisfy the court that the substratum of the company is gone, it is difficult to understand what the motive of the petitioners has got to do with the question whether an order of winding-up should be made or not. If the petitioners were to stand to benefit by the order, undoubtedly the court would say that a party cannot derive benefit by its own wrong. But when an order of winding-up is made and the liquidator is appointed, the court passes that order in the interest of the company, in the interest of the shareholders, and in the interest of the creditors, and except for the rather doubtful benefit that ordinarily the petitioners solicitors are in conduct of the proceedings no benefit whatever accrues to the petitioners. Therefore, in our opinion, what the learned judge should have considered was whether on the materials placed before him by the petitioners - and the materials in this case are overwhelming and they are indisputable - a case had been made out or not for the winding-up of the company. The learned judge should not have taken into consideration how wicked the petitioners were or how evil their actions had been. ( 92 ) IN a later passage the Chief Justice observed (page 393) ([1955] 25 Comp. Cas. 227, 252; 57 bom. L. R. 378) : there is not the slightest possibility of the working ever being resumed under the present dispensation. We take it that the learned judge was thinking of the allegations of the company that the mills suddenly came to a standstill because of the machinations of the petitioners. But the stark truth remains, for which there is no answer or no explanation, that the mills have no money whatsoever which would enable them to be run. ( 93 ) THAT, in our opinion, exactly sums up the position in the present case also. | 1[ds]In his order on Company Application No. 21 of 1967, also the learned judge made a similar remark : it may be mentioned that, in the course of the hearing of this judges summons, the parties have freely used the affidavits filed in the different applications relating to the, as the same have been referred to and incorporated in the affidavits filed in the said applications.in view of this conduct of the cases before the learned single judge we do not think that at the appellate stage counsel for one of the parties can claim that the other party shall now be confined exclusively to the pleadings contained in the affidavits filed in that petition alone and not refer to the affidavits filed in the other applications. Moreover, even the paper books which have been prepared are so prepared that it would be impossible to argue a particular appeal upon the pleadings and documents in that appeal. In fact, Mr. Bhatt himself was compelled to refer to several affidavits in the connected appeals in arguing a particular appeal. We are unable to accept this submission of counselThe clause in our opinion lays down nothing more than the normal duty of a managing agent or other person in charge of management of a company to make financial provision to run the companyThe provisions of clause 4 (e) of schedule C also contemplate the borrowing of loans from any other firm, company or person because by that clause safeguards are laid own for the security of the second mortgagees. These clauses therefore show that though the provision was that the Jalans should provide the necessary finance the parties contemplated that they would try to raise the finances like any ordinary business house from financial institutions and other persons, firms or companies and that they were under no legal obligation to pay themselves to provide finance in any event, even if negotiations failedIn that view we think that the learned judge erred in his construction of clause 4 and in the order which he passed( 39 ) THE order, moreover, in our opinion, is incapable of being carried out and is incapable of supervision and enforcement. The new management, we shall, presently show, have stated that they made efforts to procure finance, were able to procure it to some extent, but not to the extent that the large indebtedness of the company required. They have also alleged that in this respect the J. K. group were responsible for foiling their efforts to procure the finance, and that the position of the company is such that no reasonable financier would advance moneys to such a company. We shall presently show that having regard to all the circumstances and the conduct of the parties this contention is borne out( 45 ) BUT we do not propose to rest our decision on only that admission, but to examine the position of the company as it appears on the recordThese affidavits deal mostly with the charges ands flung at each other by the two rival groups, the facts and figures pertaining to the company being only incidentally givenThe workers, we are told, have in satisfaction of their claims taken possession of the factory premises and are squatting on it and preventing any director from going in. From 14th june, 1967, tillthese overhead and capital charges must run into several lakhs of rupees. The company does not appear to have any reserve or other funds from which its indebtedness can be paid. Its machinery, which has been lying idle, will cost several lakhs of rupees to be put in order again. When the new managementrestarted the mills on 1st April, 1966,it cost the new management Rs. 5 lakhs to put 60% of the machinery, in order. We cannot imagine that any reasonable or prudent businessman would decide to sink money into or run such a mill. It is clear that the company is insolvent, its entire capital wiped out and its substratum goneWe do not think, therefore, that it was a reasonable inference to draw from the letter of the 25th April 1967, that the new management had failed to purchase the cotton requisitioned for them. Their objection to quality appears to be reasonable and if so, they had a right to reject inferior cotton and to ask that the proper quality be supplied to them. It is not suggested. . . . . . . . . . . . anywhere that they deliberately or dishonestly declined the offer. At any rate, this letter in isolation, picked out from a bunch of about 25 letters, cannot furnish a true picture as to the conduct of the new management, even assuming that that conduct was material, which in our opinion it was not, as we shall presently showWe are unable to accept the charge that the company failed to lift the cotton deliberately and cannot be heard to say that the mills could not make profits for want of cotton. The letter dated 25th April, 1967, moreover does not establish that till then the management could be blamed, which is a charge levelled against the new management by the J. K. group. The position of the company must have further deteriorated since the closure in April, 1967, for we are informed that further amounts of compensation to labour have accumulated and other liabilities in the shape of recurring charges have arisen. How such a company could possibly continue to work at a profit it is difficult to see. It is only it runs at a profit that the scheme can be implementedThe new management after restarting the mills rationalised the spinning and weaving departments and also effected substantial economies. In spite of economies and for reasons and factors beyond the control of the new management the mill is runing at a monthly loss of Rs. 1 to 1 1/2 lakhs. The agreement entered into by the company with Badriprasad Jhunjhunwala and others is a leave and licence agreement and not a lease. They have denied the allegations of fraud, invalidity, illegality and mala fides. They also made an offer that they were ready and willing to offer the working of the processing unit to Gopalkrishna Singhania on a leave and licence agreement similar in terms and conditions to that given to Badriprasad Jhunjhunwalla and others. They have denied that the latter are their nominees or that the son of Nandlal Jalan is managing the processing plantBut we do not think that these allegations and counter allegations are of much relevance since in our view there was no binding obligation or dutyJalans to pay anything to the company or to compulsorily provide financeWe have no doubt that it would not affect the powers vested in the High Court under the Companies Act, nor especially would it affect the transactions already sanctioned and in force before the notification under section 13 was issuedWe do not propose to enter into that discussion, for in our opinion where the powers under section 391 or section 392 are being invoked we do not think that any provision of the Securities Contracts (Regulation) Act affects any of those powers of the court. If the provisions of that Act of not apply, the question whether a scheme is a contact or not, to which these provisions would be attracted, would not arise. With respect we uphold the decision of the learned single judges on this questionUpon the finding we have reached there is no question of giving direction as to a part of the scheme. We do not propose to implement the scheme at all for the simple reason that the company is not a company which can possibly work. It is insolvent and its substratum is gone, quite apart from the fact that in its present condition to allow a second mortgage to be given to the J. K. group would mean completely depriving the remaining unsecured creditors of any share or dividend in the liquidation( 76 ) WE are unable to accept this construction of section of 392. Section 392 appears in an independent chapter dealing with arbitration, compromises, arrangements and reconstructions and was obviously intended to make comprehensive provisions on that subject. So far as compromise and arrangements are concerned, the provisions which govern are sections 391, 392 and 393. These sections have to be read together, because section 392 refers back to a compromise or arrangement sanctioned under section 391 and makes provision for its enforcement. We cannot also readn (1) of section 392 divorced fromn (2)as was urged. The two provisions are complementaryBoth the above powers are for the proper working of the compromise or arrangement. It will thus be seen thatn (1) deals with the cases where a compromise or arrangement sanctioned under section 391 can be worked fully or partially by modifications or giving of directions.n (2) however contemplates a case where the scheme cannot be worked satisfactorily with or without modifications, that is to say, where the scheme (sic) despite any endeavour to modity it or any endeavour to implement by proper supervision or giving suitable directions, in such a case the court is given the power to make an order winding up the company. This power is a discretionary power, because of the use of the word may inn (2), and having regard to the context in which it is used. It is not essential that the company should be wound up even if the scheme does not work satisfactorily, but it is clear that the court must consider the question whether the company ought to be wound up in such a contingency. This power of course can be exercised suo motu by the court or on the application of a person interested in the affairs of the companyThe effect of these provisions is that where a compromise or arrangement is sanctioned under section 391 and the court comes to the conclusion that the scheme cannot be worked satisfactorily with or without modifications, the court has a discretion to wind up the company. In doing so it will have regard to the normal principles governing, particularly those laid down in section 433 and 434. We cannot, therefore, accept the contention of Mr. Bhatt that his clients application for implementation of the scheme must be looked at on its own and in isolation and the position of the company and its capacity to fulfil that scheme ought not to enter into computationWe also hold that the court would not exceed its powers if in a case like this where an application is made for winding up the company in answer to an application to enforce the scheme, to consider the circumstances of the company and order its winding upIn our opinion, since the company is financially not in position to implement the scheme at all, it is not necessary to consider whether implementing a part of it would be legal or illegalThe contention, therefore, must failIt does not follow that the parties cannot, relying upon the subsequent developments and the changed situation, say that the scheme should not be implemented. Were we to accept any such contention, the provision of section 392 would be rendered largely ineffective. It was urged that Lalji Thakersey, the creditor, had actually taken advantage under the scheme in so far as he had got one instalment of the amount paid to him out of the amount due to him. Nevertheless we do not think that in the face of the positive provisions of section 392 we can bar him from pleading that on the date on which Company Application no. 14 of 1967 was filed, the company ought to be wound up and the scheme not implemented. In view of this it is unnecessary to go into the question whether the scheme as passed by Mr. Justice Mody was illegal and void in the inception or it was merely contrary to law. We have however already shown that in our opinion there is no illegalityWe do not think, therefore, that the Rangoon case can support the argument that in the present case the J. K. group have already become secured creditors. They had merely an agreement that a second mortgage would be executed in their favour and nothing moreRelying on this clause Mr. Bhatt urged that if the company is to be wound up, the J. K. group must to be held to be secured creditors as upon a second mortgage and therefore in the event of an order being passed for winding up, in thep proceedings the J. K. group must be classed as secured creditors in terms of the scheme. The argument begs the entire question. The question first of all is, is the scheme enforceable and that necessarily implies that the scheme including the schedule C has not yet come into force. The question is whether it should be brought into force and yet it is sought to be argued that one of its terms must be forthwith enforced, as if it had been brought into force. We cannot accept this argumentThere is no question, therefore, of supervising the carrying out of the compromise or arrangement or of carrying out the same with any modifications. The compromise or arrangement sanctioned and contained in the scheme cannot be worked satisfactorily at all with or without modifications and the only proper order to pass in the present case is to wind up the company known as the Newd Spinning and Weaving Co. Ltd( 90 ) THE result may be unfortunate to one or the others party, but that cannot be helped, though we may say that in our opinion there is little to choose between the two contending groups who were fighting for control of the company. Each group was seeking its own benefit and was hardly interested in the benefit of the company qua the company. The J. K. group having managed the company for a long time had seen its inter workings and realised that it was impossible bring up the company to a healthier position and work it for profit. They, therefore, decided to clear out of the company so long as they could recover their debts from the company in preference to other creditors. It was a substantial sum of Rs. 48,38,899 and they managed to persuade the Jalan group to take over the company stipulating for themselves to get a security for themselves at the cost of the unsecured creditors of more than twice the value. They also persuaded the Jalan group to take over the company by offering to sell them their controlling share holding at the low price of Rs. 10 per share. Perhaps that attracted the Jalan group which for a time felt that they were making an easy bargain and would be able to set the company on its feet again by procuring finances and running it to their profit in which case the value of the shares would have also risen, but after the controlling shares were transferred and the Jalan group took over the company the expectations of the Jalan group were not realised and they found that the company was in a worse commercial position than they had thought it was in, before they entered into the agreement with the J. K. group. What is more, it does appear that a period of severe depression in the textile industry and want of cotton worsened the position. In that predicament the attitude of the authorities who had controlled the purchases of cotton and fixed its price was most unhelpful and contributed to further losses of the company, with the result that the Jalan group found it impossible to implement the scheme and decided to give ay to their agreement with the J. K. group. We think that the only proper thing they could do in the circumstances was to apply for liquidation of the company. They also had sought their own advantage but their calculations failed. Neither of these two groups can be credited with seeking the advantage of the company or its workers or the interests of the other unsecured creditors of the companyWe have come to our conclusions only on the face of the affidavits filed. If a case is made out for thep of a company, as we have held has been made out in the present case, upon such material as has been placed before us, we do not think that these allegations ands can affect the issue; nor can the motives of either of the two groups, the one in presenting the application for winding up of the company and the other in seeking to enforce the scheme, can be taken into consideration. In Bachharaj Factories Ltd. v. Hirjee Mills Ltd. ([1955] 25 Comp. Cas. 227 251; 57 Bom. L. R. 378), there were also similar allegations made against the directors of the company and Chief Justice Chagla disposed of the allegations at page 392 as follows :but as we read the judgment of the learned judge, the main reason which has weighed with him is that the petitioners have not come to this court with clean hands, and Mr. Mathalone wanted to satisfy us that the motive of the petitioners in closing down the mills was selfish, that they were largely responsible for bringing about an impasse in the affairs of the mills, and the court will not make an order at the instance of a party which is guilty of mala fides. We have not permitted Mr. Mathalone to go into the merits of these allegations about the mala fides of the petitioners because in our opinion these allegations are entirely irrelevant. If the petitioners have made out a case of for thep of the company, if they have placed materials before the court which satisfy the court that the company is insolvent, if they have placed materials before the court which satisfy the court that the substratum of the company is gone, it is difficult to understand what the motive of the petitioners has got to do with the question whether an order ofp should be made or not. If the petitioners were to stand to benefit by the order, undoubtedly the court would say that a party cannot derive benefit by its own wrong. But when an order ofp is made and the liquidator is appointed, the court passes that order in the interest of the company, in the interest of the shareholders, and in the interest of the creditors, and except for the rather doubtful benefit that ordinarily the petitioners solicitors are in conduct of the proceedings no benefit whatever accrues to the petitioners. Therefore, in our opinion, what the learned judge should have considered was whether on the materials placed before him by the petitionersand the materials in this case are overwhelming and they are indisputablea case had been made out or not for thep of the company. The learned judge should not have taken into consideration how wicked the petitioners were or how evil their actions had been.( 92 ) IN a later passage the Chief Justice observed (page 393) ([1955] 25 Comp. Cas. 227, 252; 57 bom. L. R. 378) :there is not the slightest possibility of the working ever being resumed under the present dispensation. We take it that the learned judge was thinking of the allegations of the company that the mills suddenly came to a standstill because of the machinations of the petitioners. But the stark truth remains, for which there is no answer or no explanation, that the mills have no money whatsoever which would enable them to be run.( 93 ) THAT, in our opinion, exactly sums up the position in the present case also. | 1 | 26,564 | 3,557 | ### Instruction:
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take over the company by offering to sell them their controlling share holding at the low price of Rs. 10 per share. Perhaps that attracted the Jalan group which for a time felt that they were making an easy bargain and would be able to set the company on its feet again by procuring finances and running it to their profit in which case the value of the shares would have also risen, but after the controlling shares were transferred and the Jalan group took over the company the expectations of the Jalan group were not realised and they found that the company was in a worse commercial position than they had thought it was in, before they entered into the agreement with the J. K. group. What is more, it does appear that a period of severe depression in the textile industry and want of cotton worsened the position. In that predicament the attitude of the authorities who had controlled the purchases of cotton and fixed its price was most unhelpful and contributed to further losses of the company, with the result that the Jalan group found it impossible to implement the scheme and decided to give a go-by to their agreement with the J. K. group. We think that the only proper thing they could do in the circumstances was to apply for liquidation of the company. They also had sought their own advantage but their calculations failed. Neither of these two groups can be credited with seeking the advantage of the company or its workers or the interests of the other unsecured creditors of the company. ( 91 ) IN the several proceedings which commenced no doubt each of the two groups started violently to blame the others making all kinds of allegations against each other, the J. K. group charging the Jalan with deliberate breach of their agreement and fraudulent conduct and an attempt to make money for themselves by mismanaging the company. The Jalan group retorted that the position of the company was brought on by the fraudulent conduct of the J. K. group in the past and by their obstructionist attitude in the implementation of the scheme. These charges and counter charges are all at the stage of allegations and counter allegations and there is no proof of them as such. We have come to our conclusions only on the face of the affidavits filed. If a case is made out for the winding-up of a company, as we have held has been made out in the present case, upon such material as has been placed before us, we do not think that these allegations and counter-allegations can affect the issue; nor can the motives of either of the two groups, the one in presenting the application for winding up of the company and the other in seeking to enforce the scheme, can be taken into consideration. In Bachharaj Factories Ltd. v. Hirjee Mills Ltd. ([1955] 25 Comp. Cas. 227 251; 57 Bom. L. R. 378), there were also similar allegations made against the directors of the company and Chief Justice Chagla disposed of the allegations at page 392 as follows : but as we read the judgment of the learned judge, the main reason which has weighed with him is that the petitioners have not come to this court with clean hands, and Mr. Mathalone wanted to satisfy us that the motive of the petitioners in closing down the mills was selfish, that they were largely responsible for bringing about an impasse in the affairs of the mills, and the court will not make an order at the instance of a party which is guilty of mala fides. We have not permitted Mr. Mathalone to go into the merits of these allegations about the mala fides of the petitioners because in our opinion these allegations are entirely irrelevant. If the petitioners have made out a case of for the winding-up of the company, if they have placed materials before the court which satisfy the court that the company is insolvent, if they have placed materials before the court which satisfy the court that the substratum of the company is gone, it is difficult to understand what the motive of the petitioners has got to do with the question whether an order of winding-up should be made or not. If the petitioners were to stand to benefit by the order, undoubtedly the court would say that a party cannot derive benefit by its own wrong. But when an order of winding-up is made and the liquidator is appointed, the court passes that order in the interest of the company, in the interest of the shareholders, and in the interest of the creditors, and except for the rather doubtful benefit that ordinarily the petitioners solicitors are in conduct of the proceedings no benefit whatever accrues to the petitioners. Therefore, in our opinion, what the learned judge should have considered was whether on the materials placed before him by the petitioners - and the materials in this case are overwhelming and they are indisputable - a case had been made out or not for the winding-up of the company. The learned judge should not have taken into consideration how wicked the petitioners were or how evil their actions had been. ( 92 ) IN a later passage the Chief Justice observed (page 393) ([1955] 25 Comp. Cas. 227, 252; 57 bom. L. R. 378) : there is not the slightest possibility of the working ever being resumed under the present dispensation. We take it that the learned judge was thinking of the allegations of the company that the mills suddenly came to a standstill because of the machinations of the petitioners. But the stark truth remains, for which there is no answer or no explanation, that the mills have no money whatsoever which would enable them to be run. ( 93 ) THAT, in our opinion, exactly sums up the position in the present case also.
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of the company. Each group was seeking its own benefit and was hardly interested in the benefit of the company qua the company. The J. K. group having managed the company for a long time had seen its inter workings and realised that it was impossible bring up the company to a healthier position and work it for profit. They, therefore, decided to clear out of the company so long as they could recover their debts from the company in preference to other creditors. It was a substantial sum of Rs. 48,38,899 and they managed to persuade the Jalan group to take over the company stipulating for themselves to get a security for themselves at the cost of the unsecured creditors of more than twice the value. They also persuaded the Jalan group to take over the company by offering to sell them their controlling share holding at the low price of Rs. 10 per share. Perhaps that attracted the Jalan group which for a time felt that they were making an easy bargain and would be able to set the company on its feet again by procuring finances and running it to their profit in which case the value of the shares would have also risen, but after the controlling shares were transferred and the Jalan group took over the company the expectations of the Jalan group were not realised and they found that the company was in a worse commercial position than they had thought it was in, before they entered into the agreement with the J. K. group. What is more, it does appear that a period of severe depression in the textile industry and want of cotton worsened the position. In that predicament the attitude of the authorities who had controlled the purchases of cotton and fixed its price was most unhelpful and contributed to further losses of the company, with the result that the Jalan group found it impossible to implement the scheme and decided to give ay to their agreement with the J. K. group. We think that the only proper thing they could do in the circumstances was to apply for liquidation of the company. They also had sought their own advantage but their calculations failed. Neither of these two groups can be credited with seeking the advantage of the company or its workers or the interests of the other unsecured creditors of the companyWe have come to our conclusions only on the face of the affidavits filed. If a case is made out for thep of a company, as we have held has been made out in the present case, upon such material as has been placed before us, we do not think that these allegations ands can affect the issue; nor can the motives of either of the two groups, the one in presenting the application for winding up of the company and the other in seeking to enforce the scheme, can be taken into consideration. In Bachharaj Factories Ltd. v. Hirjee Mills Ltd. ([1955] 25 Comp. Cas. 227 251; 57 Bom. L. R. 378), there were also similar allegations made against the directors of the company and Chief Justice Chagla disposed of the allegations at page 392 as follows :but as we read the judgment of the learned judge, the main reason which has weighed with him is that the petitioners have not come to this court with clean hands, and Mr. Mathalone wanted to satisfy us that the motive of the petitioners in closing down the mills was selfish, that they were largely responsible for bringing about an impasse in the affairs of the mills, and the court will not make an order at the instance of a party which is guilty of mala fides. We have not permitted Mr. Mathalone to go into the merits of these allegations about the mala fides of the petitioners because in our opinion these allegations are entirely irrelevant. If the petitioners have made out a case of for thep of the company, if they have placed materials before the court which satisfy the court that the company is insolvent, if they have placed materials before the court which satisfy the court that the substratum of the company is gone, it is difficult to understand what the motive of the petitioners has got to do with the question whether an order ofp should be made or not. If the petitioners were to stand to benefit by the order, undoubtedly the court would say that a party cannot derive benefit by its own wrong. But when an order ofp is made and the liquidator is appointed, the court passes that order in the interest of the company, in the interest of the shareholders, and in the interest of the creditors, and except for the rather doubtful benefit that ordinarily the petitioners solicitors are in conduct of the proceedings no benefit whatever accrues to the petitioners. Therefore, in our opinion, what the learned judge should have considered was whether on the materials placed before him by the petitionersand the materials in this case are overwhelming and they are indisputablea case had been made out or not for thep of the company. The learned judge should not have taken into consideration how wicked the petitioners were or how evil their actions had been.( 92 ) IN a later passage the Chief Justice observed (page 393) ([1955] 25 Comp. Cas. 227, 252; 57 bom. L. R. 378) :there is not the slightest possibility of the working ever being resumed under the present dispensation. We take it that the learned judge was thinking of the allegations of the company that the mills suddenly came to a standstill because of the machinations of the petitioners. But the stark truth remains, for which there is no answer or no explanation, that the mills have no money whatsoever which would enable them to be run.( 93 ) THAT, in our opinion, exactly sums up the position in the present case also.
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Calcutta State Transport Corporation Vs. Md. Noor Alam | Grover, J.1. This is an appeal by special leave from an order of the Second Labour Court, West Bengal, rejecting an application under S. 33 (2) (b) of the Industrial Disputes Act 1947, hereinafter called the Act, filed by the appellant seeking approval of an order of removal from service passed against the respondent.2. The facts may be shortly stated. The respondent was an employee of the appellant. Certain disciplinary proceedings were taken against the respondent who was working as conductor on charges which it is not necessary to mention. These charges were inquired into by the Disciplinary Officer of the appellant. That officer found the charges proved against the respondent and submitted his report to the competent authority i. e. Special Officer (Discipline). On May 18, 1967 the competent authority, after considering the report of the Inquiry Officer, recorded a note on the file expressing agreement with the report of the Inquiry Officer that the respondent be removed from service after giving him one months wages. The last part of his order is reproduced below:"The delinquent is removed from the service of the Corporation. He will be given one months wages and simultaneously an application may he filed in the Tribunal, seeking approval of the action taken, as required under Section 33 (2) of the I. D Act".It may be mentioned that such an approval was necessary because proceedings were pending before the 5th Industrial Tribunal, West Bengal, on account of a reference made under Section 10 of the Act with regard to several disputes between the appellant and its workmen. A note dated June 22, 1967 was sent to the respondent in which he was informed that he was being removed from service with effect from July 1, 1967. This note reached him on June 26, 1967. One months wages were remitted to him on June 28, 1967 by money order which he received on July 1, 1967. An application under S. 33 (2) (b) of the Act was made on July 3, 1967 which was a Monday.3. The Labour Court, while finding that the report of the domestic enquiry and the finding therein as also the punishment awarded on the basis of that enquiry was justified did not call for any interference. But it was of the view that the filing of the application under Section 33 (2) (b) of the Act on July 3, 1967 did not satisfy the requirements of the proviso thereto. In other words the passing of the order of removal on May 18, 1967, the tendering of one months wages and the filing of the application before the Tribunal on July 3 1967 did not constitute part and parcel of the same transaction.4. It has been argued before us and rightly that the Labour Court wholly misunderstood the true position both on facts and in law. Firstly the order of removal was merely recorded on the official file on May 18, 1967 and it was to be effective only from July 1, 1967.Before that period it was open to the competent authority to withdraw the order. Therefore the date of dismissal of the workman could only be July 1, 1967 and not any prior date on which the order was recorded on the file. The wages were also received by the workman i.e. the respondent on the same date which was a Saturday. It was wholly immaterial when the Money Order was sent. The application was filed for approval on July 3, 1967 which was a Monday. It is obvious that no application could have been filed on a Sunday which was a holiday. The proviso to Section 33 (2) (b) contemplates three things; (i) dismissal or discharge; (ii) payment of wages and (iii) making of an application for approval to be simultaneous and to be part of the same transaction. The object is that when the employer takes action under S. 33 (2) (b) by dismissing or discharging an employee he should immediately make payment to him or offer payment of wages for one month and also make an application to the Tribunal or the Labour Court, as the case may be, for approval. The employers conduct should show that the three things contemplated under the proviso are parts of the same transaction.(See Strawboard Manufacturing Co. v. Govind, (1962) Supp 3 SCR 618 = (AIR 1962 SC 1500 ). In P H. Kalyani v. M/s. Air France, Calcutta, (1964) 2 SCR 104 = (AIR 1963 SC 1756 ) the order of dismissal was passed on May 28, 1960 and was communicated to the employee on May 30, 1960. The wages were offered to him at the same time when the order was communicated. An application was made under S. 33 (2) (b) on the same day. It was held that the application was in accordance with the proviso to S. 33 (2) (b). This decision shows that similar action has to be taken in these matters but that does not mean that all the three things mentioned before should be done on the same day.It is the conduct of the employer that has to be considered from the point of view of finding out whether the dismissal or discharge, payment of wages and making of the application for approval form a part of the same transaction. A difference of a day in doing one thing or the other may not be of material consequence so long as it is clear that the employer meant to do all the three things as part of one and the same transaction. No hard and fast rule can be laid down in these matters. Each case must be decided on its own facts. | 1[ds]4. It has been argued before us and rightly that the Labour Court wholly misunderstood the true position both on facts and in law. Firstly the order of removal was merely recorded on the official file on May 18, 1967 and it was to be effective only from July 1, 1967.Before that period it was open to the competent authority to withdraw the order. Therefore the date of dismissal of the workman could only be July 1, 1967 and not any prior date on which the order was recorded on the file. The wages were also received by the workman i.e. the respondent on the same date which was a Saturday. It was wholly immaterial when the Money Order was sent. The application was filed for approval on July 3, 1967 which was a Monday. It is obvious that no application could have been filed on a Sunday which was a holiday. The proviso to Section 33 (2) (b) contemplates three things; (i) dismissal or discharge; (ii) payment of wages and (iii) making of an application for approval to be simultaneous and to be part of the same transaction. The object is that when the employer takes action under S. 33 (2) (b) by dismissing or discharging an employee he should immediately make payment to him or offer payment of wages for one month and also make an application to the Tribunal or the Labour Court, as the case may be, for approval. The employers conduct should show that the three things contemplated under the proviso are parts of the sameis the conduct of the employer that has to be considered from the point of view of finding out whether the dismissal or discharge, payment of wages and making of the application for approval form a part of the same transaction. A difference of a day in doing one thing or the other may not be of material consequence so long as it is clear that the employer meant to do all the three things as part of one and the same transaction. No hard and fast rule can be laid down in these matters. Each case must be decided on its own facts. | 1 | 1,074 | 406 | ### 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:
Grover, J.1. This is an appeal by special leave from an order of the Second Labour Court, West Bengal, rejecting an application under S. 33 (2) (b) of the Industrial Disputes Act 1947, hereinafter called the Act, filed by the appellant seeking approval of an order of removal from service passed against the respondent.2. The facts may be shortly stated. The respondent was an employee of the appellant. Certain disciplinary proceedings were taken against the respondent who was working as conductor on charges which it is not necessary to mention. These charges were inquired into by the Disciplinary Officer of the appellant. That officer found the charges proved against the respondent and submitted his report to the competent authority i. e. Special Officer (Discipline). On May 18, 1967 the competent authority, after considering the report of the Inquiry Officer, recorded a note on the file expressing agreement with the report of the Inquiry Officer that the respondent be removed from service after giving him one months wages. The last part of his order is reproduced below:"The delinquent is removed from the service of the Corporation. He will be given one months wages and simultaneously an application may he filed in the Tribunal, seeking approval of the action taken, as required under Section 33 (2) of the I. D Act".It may be mentioned that such an approval was necessary because proceedings were pending before the 5th Industrial Tribunal, West Bengal, on account of a reference made under Section 10 of the Act with regard to several disputes between the appellant and its workmen. A note dated June 22, 1967 was sent to the respondent in which he was informed that he was being removed from service with effect from July 1, 1967. This note reached him on June 26, 1967. One months wages were remitted to him on June 28, 1967 by money order which he received on July 1, 1967. An application under S. 33 (2) (b) of the Act was made on July 3, 1967 which was a Monday.3. The Labour Court, while finding that the report of the domestic enquiry and the finding therein as also the punishment awarded on the basis of that enquiry was justified did not call for any interference. But it was of the view that the filing of the application under Section 33 (2) (b) of the Act on July 3, 1967 did not satisfy the requirements of the proviso thereto. In other words the passing of the order of removal on May 18, 1967, the tendering of one months wages and the filing of the application before the Tribunal on July 3 1967 did not constitute part and parcel of the same transaction.4. It has been argued before us and rightly that the Labour Court wholly misunderstood the true position both on facts and in law. Firstly the order of removal was merely recorded on the official file on May 18, 1967 and it was to be effective only from July 1, 1967.Before that period it was open to the competent authority to withdraw the order. Therefore the date of dismissal of the workman could only be July 1, 1967 and not any prior date on which the order was recorded on the file. The wages were also received by the workman i.e. the respondent on the same date which was a Saturday. It was wholly immaterial when the Money Order was sent. The application was filed for approval on July 3, 1967 which was a Monday. It is obvious that no application could have been filed on a Sunday which was a holiday. The proviso to Section 33 (2) (b) contemplates three things; (i) dismissal or discharge; (ii) payment of wages and (iii) making of an application for approval to be simultaneous and to be part of the same transaction. The object is that when the employer takes action under S. 33 (2) (b) by dismissing or discharging an employee he should immediately make payment to him or offer payment of wages for one month and also make an application to the Tribunal or the Labour Court, as the case may be, for approval. The employers conduct should show that the three things contemplated under the proviso are parts of the same transaction.(See Strawboard Manufacturing Co. v. Govind, (1962) Supp 3 SCR 618 = (AIR 1962 SC 1500 ). In P H. Kalyani v. M/s. Air France, Calcutta, (1964) 2 SCR 104 = (AIR 1963 SC 1756 ) the order of dismissal was passed on May 28, 1960 and was communicated to the employee on May 30, 1960. The wages were offered to him at the same time when the order was communicated. An application was made under S. 33 (2) (b) on the same day. It was held that the application was in accordance with the proviso to S. 33 (2) (b). This decision shows that similar action has to be taken in these matters but that does not mean that all the three things mentioned before should be done on the same day.It is the conduct of the employer that has to be considered from the point of view of finding out whether the dismissal or discharge, payment of wages and making of the application for approval form a part of the same transaction. A difference of a day in doing one thing or the other may not be of material consequence so long as it is clear that the employer meant to do all the three things as part of one and the same transaction. No hard and fast rule can be laid down in these matters. Each case must be decided on its own facts.
### Response:
1
### Explanation:
4. It has been argued before us and rightly that the Labour Court wholly misunderstood the true position both on facts and in law. Firstly the order of removal was merely recorded on the official file on May 18, 1967 and it was to be effective only from July 1, 1967.Before that period it was open to the competent authority to withdraw the order. Therefore the date of dismissal of the workman could only be July 1, 1967 and not any prior date on which the order was recorded on the file. The wages were also received by the workman i.e. the respondent on the same date which was a Saturday. It was wholly immaterial when the Money Order was sent. The application was filed for approval on July 3, 1967 which was a Monday. It is obvious that no application could have been filed on a Sunday which was a holiday. The proviso to Section 33 (2) (b) contemplates three things; (i) dismissal or discharge; (ii) payment of wages and (iii) making of an application for approval to be simultaneous and to be part of the same transaction. The object is that when the employer takes action under S. 33 (2) (b) by dismissing or discharging an employee he should immediately make payment to him or offer payment of wages for one month and also make an application to the Tribunal or the Labour Court, as the case may be, for approval. The employers conduct should show that the three things contemplated under the proviso are parts of the sameis the conduct of the employer that has to be considered from the point of view of finding out whether the dismissal or discharge, payment of wages and making of the application for approval form a part of the same transaction. A difference of a day in doing one thing or the other may not be of material consequence so long as it is clear that the employer meant to do all the three things as part of one and the same transaction. No hard and fast rule can be laid down in these matters. Each case must be decided on its own facts.
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Kotak Mahindra Bank Ltd Vs. Hindustan National Glass & Ind.Ltd | or other authority shall compel the bank or any banking company to produce or to give inspection of any statement submitted by that banking company under section 45C or to disclose any credit information furnished by the bank to that banking company under Section 45D.” We have already held that information relating to a party who has defaulted in payment of its dues under derivative transactions to the bank is credit information within the meaning of Section 45A(c)(v) of the 1934 Act. Sub- section (1) of Section 45C of the 1934 Act provides that the RBI may at any time direct any banking company to submit to it such statements relating to such credit information and in such form and within such time as may be specified by the RBI from time to time. Hence, information relating to a party, who has defaulted in payment of its dues under derivative transactions being credit information may be called for from the banking company by the RBI under sub-section (1) of Section 45C of the 1934 Act. Sub-section (2) of Section 45C of the 1934 Act further provides that the banking company shall, notwithstanding anything to the contrary contained in any law for time being in force or in any instrument regulating the constitution thereof or in any agreement executed by it, relating to the secrecy of its dealings with its constituents, be bound to comply with any direction issued under sub-section (1). Sub-section (1) of Section 45E says that such credit information shall be treated as confidential and shall not be published or otherwise disclosed “except for the purposes of this Chapter”, but sub-section (2)(a) of Section 45E clearly provides that nothing in Section 45E shall apply to the disclosure by any banking company, with the previous permission of the RBI, of any information furnished to the RBI under Section 45C. Thus, confidentiality of any credit information either by virtue of any other law or by virtue of any agreement between the bank and its constituent cannot be a bar for disclosure of such credit information including information relating to a derivative transaction of the RBI under sub-section (1) of Section 45C. 38. We do not also find any force in the submission of Mr. Mr. Bhaskar P. Gupta that the Master Circular has penal consequences and, therefore, has to be literally and strictly construed. Clause 4.3 of the Master Circular, which contemplates criminal action by banks/financial institutions, is extracted hereinbelow: “4.3 Criminal Action by Banks/FlsIt is essential to recognize that there is scope even under the exiting legislations to initiate criminal action against wilful defaulters depending upon the facts and circumstances of the case under the provisions of Sections 403 and 415 of the Indian Penal Code (IPC) 1860. Banks/Fls are, therefore, advised to seriously and promptly consider initiating criminal action against wilful defaulters or wrong certification by borrowers, wherever considered necessary, based on the facts and circumstances of each case under the above provisions of the IPC to comply with our instructions and the recommendations of JPC.It should also be ensured that the penal provisions are used effectively and determinedly but after careful consideration and due caution. Towards this end, banks/Fls are advised to put in place a transparent mechanism, with the approval of their Board, for initiating criminal proceedings based on the facts of individual case.” All that the aforesaid clause 4.3 of the Master Circular states is that there is scope even under the exiting legislations to initiate criminal action against wilful defaulters depending upon the facts and circumstances of the case under the provisions of Sections 403 and 415 of the Indian Penal Code, 1860 and the banks and financial institutions are strictly advised to seriously and promptly consider initiating criminal action based on the facts and circumstances of each case under the above provisions of the IPC. Thus, the Master Circular by itself does not have penal consequences, whereas Sections 403 and 415 of the IPC have penal consequences. The provisions of Sections 403 and 415 of the IPC obviously have to be strictly construed as these are penal provisions and will get attracted depending on the facts and circumstances of each case, but the provisions of the Master Circular need not be strictly construed. As we have held, the Master Circular has to be construed not literally but in its context and the words used in the definition of “wilful defaulter” in the Master Circular have to draw their meaning from the context in which the Master Circular has been issued. 39. We are also not impressed with the argument of Mr. Soli J. Sorabjee that the Master Circular contemplates grave consequences affecting the right of a person under Article 19(1)(g) of the Constitution of India to carry on any trade, business or occupation and should be strictly construed as otherwise it will be exposed to the challenge of unconstitutionality. No challenge was made by the writ petitioners before the Bombay High Court to the constitutionality of the Master Circular and the challenge by the writ petitioners before the Calcutta High Court was to the constitutionality of only Paragraph 3 of the Master Circular relating to the Grievance Redressal Mechanism. Hence, we are not called upon to decide in these appeals whether the Master Circular violates the right of a person under Article 19(1)(g) of the Constitution of India. Similarly, we cannot consider in these appeals, the contention raised by Dr. A. M. Singhvi that the Master Circular has the effect of black listing a bank’s client and would, therefore, be arbitrary and violative of Article 14 of the Constitution. In these Civil Appeals, we are concerned with the interpretation of the Master Circular and on interpretation of the Master Circular, we find that the Master Circular covers not only wilful defaults of dues by a borrower to the bank but also covers wilful defaults of dues by a client of the bank under other banking transactions such as bank guarantees and derivative transactions. | 1[ds]of the Calcutta High Court in interpreting the Master Circular, in our considered opinion, is not correct because it is a settled principle of interpretation that the words in a statute or a document are to be interpreted in the context or subject-matter in which the words are used and not according to its literal meaning.On a reading of the paragraph in the Master Circular titledwe find that pursuant to the instructions of the Central Vigilance Commission for collection of information on wilful defaults of Rs.25 lakhs and above, a scheme was framed by the RBI with effect from 01.04.1999 under which the banks and notified All India Financial Institutions were required to submit to the RBI the details of the willful defaulters. Hence, the Master Circular originated pursuant to the instructions of the Central Vigilance Commission and these instructions are contained in a communication dated 27.11.1998 of the Central Vigilance Commission on the subjectvigilance administration inThe instructions have been issued by the Central Vigilance Commission in exercise of its powers under Section 8(1)(h) of the Central Vigilance Commission Ordinance, 1998, whereunder it exercises superintendence over the vigilance administration of the various Ministries of the Central Government or Corporations established by or under any Central Act, Government Companies, Societies and local authorities owned or controlled by the Central Government.have already held that information relating to a party who has defaulted in payment of its dues under derivative transactions to the bank is credit informationwithin the meaning ofSection 45A(c)(v) of the 1934 Act. Sub- section (1) of Section 45C of the 1934 Act provides that the RBI may at any time direct any banking company to submit to it such statements relating to such credit information and in such form and within such time as may be specified by the RBI from time to time. Hence, information relating to a party, who has defaulted in payment of its dues under derivative transactions being credit information may be called for from the banking company by the RBI under sub-section (1) of Section 45C of the 1934 Act. Sub-section (2) of Section 45C of the 1934 Act further provides that the banking company shall, notwithstanding anything to the contrary contained in any law for time being in force or in any instrument regulating the constitution thereof or in any agreement executed by it, relating to the secrecy of its dealings with its constituents, be bound to comply with any direction issued under sub-section (1). Sub-section (1) of Section 45E says that such credit information shall be treated as confidential and shall not be published or otherwise disclosedfor the purposes of thisbut sub-section (2)(a) of Section 45E clearly provides that nothing in Section 45E shall apply to the disclosure by any banking company, with the previous permission of the RBI, of any information furnished to the RBI under Section 45C. Thus, confidentiality of any credit information either by virtue of any other law or by virtue of any agreement between the bank and its constituent cannot be a bar for disclosure of such credit information including information relating to a derivative transaction of the RBI under sub-section (1) of Section | 1 | 12,879 | 582 | ### 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:
or other authority shall compel the bank or any banking company to produce or to give inspection of any statement submitted by that banking company under section 45C or to disclose any credit information furnished by the bank to that banking company under Section 45D.” We have already held that information relating to a party who has defaulted in payment of its dues under derivative transactions to the bank is credit information within the meaning of Section 45A(c)(v) of the 1934 Act. Sub- section (1) of Section 45C of the 1934 Act provides that the RBI may at any time direct any banking company to submit to it such statements relating to such credit information and in such form and within such time as may be specified by the RBI from time to time. Hence, information relating to a party, who has defaulted in payment of its dues under derivative transactions being credit information may be called for from the banking company by the RBI under sub-section (1) of Section 45C of the 1934 Act. Sub-section (2) of Section 45C of the 1934 Act further provides that the banking company shall, notwithstanding anything to the contrary contained in any law for time being in force or in any instrument regulating the constitution thereof or in any agreement executed by it, relating to the secrecy of its dealings with its constituents, be bound to comply with any direction issued under sub-section (1). Sub-section (1) of Section 45E says that such credit information shall be treated as confidential and shall not be published or otherwise disclosed “except for the purposes of this Chapter”, but sub-section (2)(a) of Section 45E clearly provides that nothing in Section 45E shall apply to the disclosure by any banking company, with the previous permission of the RBI, of any information furnished to the RBI under Section 45C. Thus, confidentiality of any credit information either by virtue of any other law or by virtue of any agreement between the bank and its constituent cannot be a bar for disclosure of such credit information including information relating to a derivative transaction of the RBI under sub-section (1) of Section 45C. 38. We do not also find any force in the submission of Mr. Mr. Bhaskar P. Gupta that the Master Circular has penal consequences and, therefore, has to be literally and strictly construed. Clause 4.3 of the Master Circular, which contemplates criminal action by banks/financial institutions, is extracted hereinbelow: “4.3 Criminal Action by Banks/FlsIt is essential to recognize that there is scope even under the exiting legislations to initiate criminal action against wilful defaulters depending upon the facts and circumstances of the case under the provisions of Sections 403 and 415 of the Indian Penal Code (IPC) 1860. Banks/Fls are, therefore, advised to seriously and promptly consider initiating criminal action against wilful defaulters or wrong certification by borrowers, wherever considered necessary, based on the facts and circumstances of each case under the above provisions of the IPC to comply with our instructions and the recommendations of JPC.It should also be ensured that the penal provisions are used effectively and determinedly but after careful consideration and due caution. Towards this end, banks/Fls are advised to put in place a transparent mechanism, with the approval of their Board, for initiating criminal proceedings based on the facts of individual case.” All that the aforesaid clause 4.3 of the Master Circular states is that there is scope even under the exiting legislations to initiate criminal action against wilful defaulters depending upon the facts and circumstances of the case under the provisions of Sections 403 and 415 of the Indian Penal Code, 1860 and the banks and financial institutions are strictly advised to seriously and promptly consider initiating criminal action based on the facts and circumstances of each case under the above provisions of the IPC. Thus, the Master Circular by itself does not have penal consequences, whereas Sections 403 and 415 of the IPC have penal consequences. The provisions of Sections 403 and 415 of the IPC obviously have to be strictly construed as these are penal provisions and will get attracted depending on the facts and circumstances of each case, but the provisions of the Master Circular need not be strictly construed. As we have held, the Master Circular has to be construed not literally but in its context and the words used in the definition of “wilful defaulter” in the Master Circular have to draw their meaning from the context in which the Master Circular has been issued. 39. We are also not impressed with the argument of Mr. Soli J. Sorabjee that the Master Circular contemplates grave consequences affecting the right of a person under Article 19(1)(g) of the Constitution of India to carry on any trade, business or occupation and should be strictly construed as otherwise it will be exposed to the challenge of unconstitutionality. No challenge was made by the writ petitioners before the Bombay High Court to the constitutionality of the Master Circular and the challenge by the writ petitioners before the Calcutta High Court was to the constitutionality of only Paragraph 3 of the Master Circular relating to the Grievance Redressal Mechanism. Hence, we are not called upon to decide in these appeals whether the Master Circular violates the right of a person under Article 19(1)(g) of the Constitution of India. Similarly, we cannot consider in these appeals, the contention raised by Dr. A. M. Singhvi that the Master Circular has the effect of black listing a bank’s client and would, therefore, be arbitrary and violative of Article 14 of the Constitution. In these Civil Appeals, we are concerned with the interpretation of the Master Circular and on interpretation of the Master Circular, we find that the Master Circular covers not only wilful defaults of dues by a borrower to the bank but also covers wilful defaults of dues by a client of the bank under other banking transactions such as bank guarantees and derivative transactions.
### Response:
1
### Explanation:
of the Calcutta High Court in interpreting the Master Circular, in our considered opinion, is not correct because it is a settled principle of interpretation that the words in a statute or a document are to be interpreted in the context or subject-matter in which the words are used and not according to its literal meaning.On a reading of the paragraph in the Master Circular titledwe find that pursuant to the instructions of the Central Vigilance Commission for collection of information on wilful defaults of Rs.25 lakhs and above, a scheme was framed by the RBI with effect from 01.04.1999 under which the banks and notified All India Financial Institutions were required to submit to the RBI the details of the willful defaulters. Hence, the Master Circular originated pursuant to the instructions of the Central Vigilance Commission and these instructions are contained in a communication dated 27.11.1998 of the Central Vigilance Commission on the subjectvigilance administration inThe instructions have been issued by the Central Vigilance Commission in exercise of its powers under Section 8(1)(h) of the Central Vigilance Commission Ordinance, 1998, whereunder it exercises superintendence over the vigilance administration of the various Ministries of the Central Government or Corporations established by or under any Central Act, Government Companies, Societies and local authorities owned or controlled by the Central Government.have already held that information relating to a party who has defaulted in payment of its dues under derivative transactions to the bank is credit informationwithin the meaning ofSection 45A(c)(v) of the 1934 Act. Sub- section (1) of Section 45C of the 1934 Act provides that the RBI may at any time direct any banking company to submit to it such statements relating to such credit information and in such form and within such time as may be specified by the RBI from time to time. Hence, information relating to a party, who has defaulted in payment of its dues under derivative transactions being credit information may be called for from the banking company by the RBI under sub-section (1) of Section 45C of the 1934 Act. Sub-section (2) of Section 45C of the 1934 Act further provides that the banking company shall, notwithstanding anything to the contrary contained in any law for time being in force or in any instrument regulating the constitution thereof or in any agreement executed by it, relating to the secrecy of its dealings with its constituents, be bound to comply with any direction issued under sub-section (1). Sub-section (1) of Section 45E says that such credit information shall be treated as confidential and shall not be published or otherwise disclosedfor the purposes of thisbut sub-section (2)(a) of Section 45E clearly provides that nothing in Section 45E shall apply to the disclosure by any banking company, with the previous permission of the RBI, of any information furnished to the RBI under Section 45C. Thus, confidentiality of any credit information either by virtue of any other law or by virtue of any agreement between the bank and its constituent cannot be a bar for disclosure of such credit information including information relating to a derivative transaction of the RBI under sub-section (1) of Section
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Bharat Sanchar Nigam Ltd Vs. Union Of India | there were about 100 taxable services including the service of a telephone connection. The question is - is the sale element is each of these several services and in particular the service of a telephone connection taxable by the States? As we have said Art. 366(29A) has no doubt served to extend the meaning of the word sale to the extent stated but no further. We cannot presume that the Constitutional Amendment was loosely drawn and must proceed on the basis that the parameters of sale were carefully defined. But having said that, it is sufficient for the purposes of this judgment to find, as we do, that a telephone service is nothing but a service. There is no sales element apart from the obvious one relating to the hand set if any. That and any other accessory supplied by the service provider in our opinion remain to be taxed under the State Sales Tax Laws. We have given the reasons earlier why we have reached this conclusion. This brings us to the decision of the Kerala High Court in Escotel. In that case Escotel was admittedly engaged in selling cellular telephone instruments, SIM cards and other accessories and was also paying Central Sales Tax and Sales Tax under the Kerala General Sales Tax Act, 1963 as applicable. The question was one of the valuation of these goods. State Sales Tax Authorities had sought to include the activation charges in the cost of the SIM card. It is contended by Escotel that the activation was part of the service on which service tax was being paid and could not be included within the purview of the sale. The Kerala High Court also dealt with the case of BPL, a service provider. 44. According to BPL, it did not sell cellular telephones. As far as SIM cards were concerned, it was submitted that they had no sale value. A SIM card merely represented a means of the access and identified the subscribers. This was part of the service of a telephone connection. The Court rejected this submission finding that the SIM card was goods within the definition of the word in the State Sales Tax Act. It is not possible for this Court to opine finally on the issue. What a SIM card represents is ultimately a question of fact as has been correctly submitted by the States. In determining the issue, however the Assessing Authorities will have to keep in mind the following principles: If the SIM Card is not sold by the assessee to the subscribers but is merely part of the services rendered by the service providers, then a SIM card cannot be charged separately to sales tax. It would depend ultimately upon the intention of the parties. If the parties intended that the SIM card would be a separate object of sale, it would be open to the Sales Tax Authorities to levy sales tax thereon. There is insufficient material on the basis of which we can reach a decision. However we emphasise that if the sale of a SIM card is merely incidental to the service being provided and only facilitates the identification of the subscribers, their credit and other details, it would not be assessable to sales tax. In our opinion the High Court ought not to have finally determined the issue. In any event, the High Court erred in including the cost of the service in the value of the SIM card by relying on the aspects doctrine. That doctrine merely deals with legislative competence. As has been succinctly stated in Federation of Hotel & Restaurant Association of India Vs. Union of India (1989) 3 SCC 634 - subjects which in one aspect and for one purpose fall within the power of a particular legislature may in another aspect and for another purpose fall within another legislative power. 45. They might be overlapping; but the overlapping must be in law. The same transaction may involve two or more taxable events in its different aspects. But the fact that there is overlapping does not detract from the distinctiveness of the aspects. No one denies the legislative competence of States to levy sales tax on sales provided that the necessary concomitants of a sale are present in the transaction and the sale is distinctly discernible in the transaction. This does not however allow State to entrench upon the Union list and tax services by including the cost of such service in the value of the goods. Even in those composite contracts which are by legal fiction deemed to be divisible under Art. 366(29A), the value of the goods involved in the execution of the whole transaction cannot be assessed to Sales Tax. As was said in Larsen & Toubro Vs. Union of India (supra):- The cost of establishment of the contractor which is relatable to supply of labour and services cannot be included in the value of the goods involved in the execution of a contract and the cost of establishment which is relatable to supply of materials involved in the execution of the works contract only can be included in the value of the goods. 46. For the same reason the Centre cannot include the value of the SIM cards, if they are found ultimately to be goods, in the cost of the service. As was held by us in Gujarat Ambuja Cements Ltd. Vs. Union of India (2005) 4 SCC 214 ,228. This mutual exclusivity which has been reflected in Article 246(1) means that taxing entries must be construed so as to maintain exclusivity. Although generally speaking, a liberal interpretation must be given to taxing entries, this would not bring within its purview a tax on subject- matter which a fair reading of the entry does not cover. If in substance, the statute is not referable to a field given to the State, the Court will not by any principle of interpretation allow a statute not covered by it to intrude upon this field. | 1[ds]The decisions cited have uniformly held that res judicata does not apply in matters pertaining to tax for different assessment years because res judicata applies to debar Courts from entertaining issues on the same cause of action whereas the cause of action for each assessment year is distinct. The Courts will generally adopt an earlier pronouncement of the law or a conclusion of fact unless there is a new ground urged or a material change in the factual position. The reason why Courts have held parties to the opinion expressed in a decision in one assessment year to the same opinion in a subsequent year is not because of any principle of res judicata but because of the theory of precedent or the precedential value of the earlier pronouncement. Where facts and law in a subsequent assessment year are the same, no authority whether quasi judicial or judicial can generally be permitted to take a different view. This mandate is subject only to the usual gateways of distinguishing the earlier decision or where the earlier decision is per incuriam. However, these are fetters only on a coordinate bench which, failing the possibility of availing of either of these gateways, may yet differ with the view expressed and refer the matter to a bench of superior strength or in some cases to a bench of superior jurisdiction. In our opinion, the preliminary objection raised by the State of U.P. therefore, rests on a faulty premise. The contention of the petitioners/appellants in these matters is not that the decision in State of U.P. vs. U.O.I (supra) for that assessment year should be set aside, but that it should be overruled as an authority or precedent. Therefore, the decisions in Devi Lal Modi vs. Sales Tax Officer (supra) and in Hurra vs Hurra (supra) are not germane. A decision can be set aside in the same lis on a prayer for review or an application for recall or Under Art. 32 in the peculiar circumstances mentioned in Hurra vs. Hurra. As we have said overruling of a decision takes place in a subsequent lis where the precedential value of the decision is called in question. No one can dispute that in our judicial system it is open to a Court of superior jurisdiction or strength before which a decision of a Bench of lower strength is cited as an authority, to overrule it. This overruling would not operate to upset the binding nature of the decision on the parties to an earlier lis in that lis, for whom the principle of res judicata would continue to operate. But in tax cases relating to a subsequent year involving the same issue as an earlier year, the court can differ from the view expressed if the case is distinguishable or per incuriam.In State of U.P. v. Union of India and Anr. the two learned Judges of this Court had construed the definition of business, dealer, goods and sale under Sections 2(aa), (c), (d) and (h) of the U.P. Trade Tax Act respectively to come to the conclusion that the DoT was a dealer under the U.P. Act. This Court also held that a telephone communication and other accessories which gave access to the telephone exchange with or without instruments were goods and that transferring the right to use the telephone instrument/apparatus and the whole system fell within the extended meaning of sale under clause (h) of Section 2 of the U.P. Act. A consideration of the correctness of this conclusion would arise only if we reject the preliminary objection of the State of U.P. that we are precluded from reopening the issues so concluded by reason of the principles of res judicata. Several decisions have been cited in support of their contention. In Amalgamated Coalfields Ltd., Vs. Janapada Sabha 1962 (1) SCR 10 tax was claimed in respect of coal by the respondents therein. Notices of demand were sent to the appellant. The validity of these notices was challenged by the appellant by filing a writ petition before this Court. The writ petition was dismissed and it was held that the notices served on the appellant were valid. Notices of demand were again served on the appellant in respect of a subsequent period. The appellant filed another writ petition this time before the High Court, challenging the validity of these notices. The High Court held that the appellants claims were barred by res judicata by reason of the earlier decision of this Court. Challenging the decision of the High Court the appellants approached this Court under Article 136. In Amalgamated Coalfields Ltd., Vs. Janapada Sabha (1963) Supp.1 SCR 172 (referred to hereafter as Amalgamated Coalfields No.(2)), the issue was whether the doctrine of res judicata applied to writ petitions filed under Article 226 or to petitions under Article 32. The Court noted that the judicial view was that even petitions filed under Article 32 were subject to the general principle of res judicata. The Court then considered whether the principle would apply to tax cases when the earlier decision was in respect of a different period and said:- In a sense, the liability to pay tax from year to year is a separate and distinct liability; it is based on a different cause of action from year to year, and if any points of fact or law are considered in determining the liability for a given year, they can generally be deemed to have been considered and decided in a collateral and incidental way.3. After considering various earlier authorities on the issue, it was held that:-If for instance, the validity of a taxing statute is impeached by an assessee who is called upon to pay a tax for a particular year and the matter is taken to the High Court or brought before this Court and it is held that the taxing statute is valid, it may not be easy to hold that the decision on this basic and material issue would not operate as res judicata against the assessee for a subsequent year. That, however, is a matter on which it is unnecessary for us to pronounce a definite opinion in the present case. In this connection, it would be relevant to add that even if a direct decision of this Court on a point of law does not operate as res judicata in a dispute for a subsequent year, such a decision would, under Art. 141, have a binding effect not only on the parties to it, but also on all courts in India as a precedent in which the law is declared by this Court. The question about the applicability of res judicata to such a decision would thus be a matter of merely academic significance. (Emphasis ours)4. After refraining from expressing any final opinion on the applicability of res judicata to assessment orders for successive years, the Court was quite unequivocal in expressing an opinion on the applicability of the principles of constructive res judicata.5. In our opinion, constructive res judicata which is a special and artificial form of res judicata enacted by S. 11 of the Civil Procedure Code should not generally be applied to writ petitions filed under Art.32 or Art.226. We would be reluctant to apply this principle to the present appeals all the more because we are dealing with cases where the impugned tax liability is for different years.6. It was held that in any event:The appellants cannot be precluded from raising the new contentions on which their challenge against the validity of the notices is based.8. Amalgamated Coalfields case No.2 (supra) was distinguished in the case of Devi Lal Modi Vs. Sales Tax Officer 1965 (1) SCR 86 in which the challenge was to assessment proceedings under the Madhya Bharat Sales Tax Act, 1950. The writ petition was dismissed by the High Court. The special leave petition was also dismissed. The same order of assessment was challenged by filing a second writ petition before the High Court. This was also dismissed by the High Court. The question, before this Court was whether it was open to the appellant to challenge the validity of the same order of assessment twice by two consecutive writ petitions under Article 226. The Court acknowledged that in regard to the orders of assessment for different years, the position may be different and said:-Even if the said orders are passed under the same provisions of law, it may theoretically be open to the party to contend that the liability being recurring from year to year, the cause of action is not the same; and so, even if a citizens petition challenging the order of assessment passed against him for one year is rejected, it may be open to him to challenge a similar assessment order passed for the next year. In that case, the court may ultimately adopt the same view which had been adopted on the earlier occasion; but if a new ground is urged, the court may have to consider it on the merits, because, strictly speaking the principle of res judicata may not apply to such a case. That, in fact, is the effect of the decision of this Court in the Amalgamated Coalfields Ltd. and Anr. V. The Janapada Sabha, Chhindwara (1963) Supp.1 SCR.172 In our opinion, the said general observations must be read in the light of the important fact that the order which was challenged in the second writ petition was in relation to a different period and not for the same period as was covered by the earlier petition.9. But as far as a challenge to the same assessment order is concerned, it was held:-that if constructive res judicata is not applied to such proceedings a party can file as many writ petitions as he likes and take one or two points every time. That clearly is opposed to considerations of public policy on which res judicata is based and would mean harassment and hardship to the opponent. Besides, if such a course is allowed to be adopted, the doctrine of finality of judgments pronounced by this Court would also be materially affected. We are, therefore, satisfied that the second writ petition filed by the appellant in the present case is barred by constructive res judicata.10. Rupa Ashok Hurra vs. Ashok Hurra (2002) 4 SCC 388 considered whether this Court can set aside its earlier decision inter partes under Article 32. In paragraph 14, the Court said:On the analysis of the ratio laid down in the aforementioned cases, we reaffirm our considered view that a final judgment/order passed by this Court cannot be assailed in an application under Article 32 of the Constitution of India by an aggrieved person, whether he was a party to the case or not.Nevertheless, we think that a petitioner is entitled to relief ex debito justitiae if he establishes (1) violation of the principles of natural justice in that he was not a party to the lis but the judgment adversely affected his interests or, if he was a party to the lis, he was not served with notice of the proceedings and the matter proceeded as if he had notice, and (2) where in the proceedings a learned Judge failed to disclose his connection with the subject-matter or the parties giving scope for an apprehension of bias and the judgment adversely affects the petitioner.11. To a similar effect is the case of Junior Telecom Officers Forum and Ors. vs. Union of India & Ors (1993) Supp. 4 SCC 693 where the appellants had intervened in earlier proceedings. After the controversy was decided in those proceedings the appellants sought to reagitate the same issues in respect of the same matter contending that they had no opportunity of being heard. The submission was rejected and it was held that the second round was impermissible.12. The decision in State of U.P. vs. Union of India related to the year 1988. Admittedly, the present dispute relates to a subsequent period. Here a coordinate Bench has referred the matter to a Larger Bench. This Bench being of superior strength, we can, if we so find, declare that the earlier decision does not represent the law. None of the decisions cited by the State of U.P. are authorities for the proposition that we cannot, in the circumstances of this case, do so. This preliminary objection of the State of U.P. is therefore rejected.Regarding the first of such objections that the writ petitions have become infructuous - it may be true that in relation to the U.P. Trade Tax Act,1948, the challenge to Section 2(h) and 3F which have basically re-produced Article 366(29A) has not been pressed by the petitioners. What has been argued however, is for a construction of Article 366(29A) particularly, clause (d) thereof. That construction, if accepted by the Court, would be sufficient to grant the petitioners the relief claimed.The writ petitions raised questions relating to the competence of the States to levy sales tax on telecommunication service. This is not an issue which could have been raised and decided by the assessing authorities. If the State Legislatures are incompetent to levy the tax, it would not only be an arbitrary exercise of power by the State authorities in violation of Article 14, it would also constitute an unreasonable restriction upon the right of the service providers to carry on trade under Article 19(1)(g). (See Bengal Immunity Company V. State of Bihar 1955 (2) SCR 603 ; Himmatlal Harilal Mehta V. State of Madras 1954 SCR 1122.) We are consequently unable to accept either of these contentions of the respondents.24. All the clauses of Article 366 (29A) serve to bring transactions where one or more of the essential ingredients of a sale as defined in the Sale of Goods Act 1930 are absent, within the ambit of purchase and sales for the purposes of levy of sales tax. To this extent only is the principle enunciated in Gannon Dunkerly limited. The amendment especially allows specific composite contracts viz. works contracts (Clause (b)), hire purchase contracts (Clause (c)), catering contracts (Clause (e)) by legal fiction to be divisible contracts where the sale element could be isolated and be subjected to sales tax.25. Gannon Dunkerley survived the 46th Constitutional Amendment in two respects. First with regard to the definition of sale for the purposes of the Constitution in general and for the purposes of Entry 54 of List II in particular except to the extent that the clauses in Art.366(29A) operate. By introducing separate categories of deemed sales, the meaning of the word goods was not altered. Thus the definitions of the composite elements of a sale such as intention of the parties, goods, delivery etc. would continue to be defined according to known legal connotations. This does not mean that the content of the concepts remain static. Courts must move with the times. But the 46th Amendment does not give a licence for example to assume that a transaction is a sale and then to look around for what could be the goods. The word goods has not been altered by the 46th Amendment. That ingredient of a sale continues to have the same definition. The second respect in which Gannon Dunkerley has survived is with reference to the dominant nature test to be applied to a composite transaction not covered by Article 366(29A). Transactions which are mutant sales are limited to the clauses of Article 366(29A). All other transactions would have to qualify as sales within the meaning of Sales of Goods Act 1930 for the purpose of levy of sales tax. Of all the different kinds of composite transactions the drafters of the 46th Amendment chose three specific situations, a works contract, a hire purchase contract and a catering contract to bring within the fiction of a deemed sale. Of these three, the first and third involve a kind of service and sale at the same time. Apart from these two cases where splitting of the service and supply has been Constitutionally permitted in clauses (b) and (g) of Clause 29A of Art. 366, there is no other service which has been permitted to be so split. For example the clauses of Art. 366(29A) do not cover hospital services. Therefore, if during the treatment of a patient in a hospital, he or she is given a pill, can the sales tax authorities tax the transaction as a sale? Doctors, lawyers and other professionals render service in the course of which can it be said that there is a sale of goods when a doctor writes out and hands over a prescription or a lawyer drafts a document and delivers it to his/her client? Strictly speaking with the payment of fees, consideration does pass from the patient or client to the doctor or lawyer for the documents in both cases. The reason why these services do not involve a sale for the purposes of Entry 54 of List II is, as we see it, for reasons ultimately attributable to the principles enunciated in Gannon Dunkerleys case, namely, if there is an instrument of contract which may be composite in form in any case other than the exceptions in Article 366(29-A), unless the transaction in truth represents two distinct and separate contracts and is discernible as such, then the State would not have the power to separate the agreement to sell from the agreement to render service, and impose tax on the sale.26. The test therefore for composite contracts other than those mentioned in Article 366 (29A) continues to be - did the parties have in mind or intend separate rights arising out of the sale of goods. If there was no such intention there is no sale even if the contract could be disintegrated. The test for deciding whether a contract falls into one category or the other is to as what is the substance of the contract . We will, for the want of a better phrase, call this the dominant nature test.The locus classicus holding the field was State of Madras V. Gannon Dunkerley & Co. IX STC 353 (SC). There this Court held that the words sale of goods in Entry 48 of List II, Schedule VII to the Government of India Act, 1935 did not cover the sale sought to be taxed by the State Government under the Madras General Sales Tax Act, 1939. The classical concept of sale was held to apply to the entry in the legislative list in that there had to be three essential components to constitute a transaction of salenamely, (i) an agreement to transfer title (ii) supported by consideration, and (iii) an actual transfer of title in the goods. In the absence of any one of these elements it was held that there was no sale. Therefore, a contract under which a contractor agreed to set up a building would not be a contract for sale. It was one contract, entire and indivisible and there was no separate agreement for sale of goods justifying the levy of sales tax by the provincial legislatures.Under the law, therefore, there cannot be an agreement relating to one kind of property and a sale as regards another. Parties could have provided for two independent agreements, one relating to the labour and work involved in the execution of the work and erection of the building and the second relating to the sale of the material used in the building in which case the latter would be an agreement to sell and the supply of materials thereunder, a sale. Where there was no such separation, the contract was a composite one. It was not classifiable as a sale. The Court accepted the submission of the assessee that the expression sale of goods was, at the time when the Government of India Act, 1935 was enacted, a term of well recognized legal import in the general law relating to sale of goods and must be interpreted in Entry 48 in List II of Schedule VII of the 1935 Act as having the same meaning as in the Sale of Goods Act, 1930. According to this decision if the words sale of goods have to be interpreted in their legal sense, that sense can only be what it has in the law relating to sale of goods. To use the language of the Court:To sum up, the expression sale of goods in Entry 48 is a nomen juris, its essential ingredients being an agreement to sell movables for a price and property passing therein pursuant to that agreement. In a building contract which is, as in the present case, one, entire and indivisible - and that is its norm, there is no sale of goods, and it is not within the competence of the Provincial Legislature under Entry 48 to impose a tax on the supply of the materials used in such a contract treating it as a sale.21. Following the ratio in Gannon Dunkerley, that sale in Entry 48 must be construed as having the same meaning which it has in the Sale of Goods Act, 1930, this Court as well as the High Courts held that several composite transactions in which there was an element of sale were not liable to sales tax.26. The test therefore for composite contracts other than those mentioned in Article 366 (29A) continues to be - did the parties have in mind or intend separate rights arising out of the sale of goods. If there was no such intention there is no sale even if the contract could be disintegrated. The test for deciding whether a contract falls into one category or the other is to as what is the substance of the contract . We will, for the want of a better phrase, call this the dominant nature test.In Rainbow Colour Lab & Anr. vs. State of M.P. & Ors. (2000) 2 SCC 385, the question involved was whether the job rendered by the photographer in taking photographs, developing and printing films would amount to a work contract as contemplated under Article 366 (29A) (b) of the Constitution read with Section 2(n) of the M.P. General Sales Tax Act for the purpose of levy of sales tax on the business turnover of the photographers. The Court answered the questions in the negative because, according to the Court:-Prior to the amendment of Article 366, in view of the judgment of this Court in State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd. (1958) 9 STC 353 : AIR 1958 SC 560 the States could not levy sales tax on sale of goods involved in a works contract because the contract was indivisible. All that has happened in law after the 46th Amendment and the judgment of this Court in Builders case (1989) 2 SCC 645 is that it is now open to the States to divide the works contract into two separate contracts by a legal fiction: (i) contract for sale of goods involved in the said works contract, and (ii) for supply of labour and service. This division of contract under the amended law can be made only if the works contract involved a dominant intention to transfer the property in goods and not in contracts where the transfer in property takes place as an incident of contract of service.27. What is pertinent to ascertain in this connection is what was the dominant intention of the contract.28. On facts as we have noticed that the work done by the photographer which as held by this Court in STO vs. B.C. Kame (1977) 1 SCC 634 is only in the nature of a service contract not involving any sale of goods, we are of the opinion that the stand taken by the respondent State cannot be sustained.29. This conclusion was doubted in Associated Cement Companies Ltd. Vs. Commissioner of Customs (2001) 4 SCC 593 saying: -The conclusion arrived at in Rainbow Colour Lab case [(2000) 2 SCC 385) ], in our opinion, runs counter to the express provision contained in Article 366(29-A) as also of the Constitution Bench decision of this Court in Builders Assn. of India vs. Union of India (1989) 2 SCC 645 .30. We agree. After the 46th Amendment, the sale element of those contracts which are covered by the six sub-clauses of clause (29A) of Article 366 are separable and may be subjected to sales tax by the States under Entry 54 of List II and there is no question of the dominant nature test applying. Therefore when in 2005, C.K. Jidheesh vs. Union of India (2005) 8 SCALE 784 held that the aforesaid observations in Associated Cement (supra) were merely obiter and that Rainbow Colour Lab (supra) was still good law, it was not correct. It is necessary to note that Associated Cement did not say that in all cases of composite transactions the 46th Amendment would apply. What are the goods in a sales transaction, therefore, remains primarily a matter of contract and intention. The seller and such purchaser would have to be ad idem as to the subject matter of sale or purchase. The Court would have to arrive at the conclusion as to what the parties had intended when they entered into a particular transaction of sale, as being the subject matter of sale or purchase. In arriving at a conclusion the Court would have to approach the matter from the point of view of a reasonable person of average intelligence. Article 366(12) has defined the word goods for the purpose of the Constitution as including all materials, commodities, and articles. The word goods has also been defined in Section 2(7) of the Sales of Goods Act, 1930 as meaning every kind of movable property other than actionable claims and money; and includes stock and shares, growing crops, grass, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale. The U.P. Trade Tax defines goods as meaning: every kind or class of movable property and includes all material commodities and articles involved in the execution of a works contract, and growing crops, grass, trees and things attached to or fastened to anything permanently attached to the earth which under the contract of sale are agreed to be severed but does not include actionable claims, stocks, shares, securities or postal stationery sold by the Postal Department. The State Sales Tax legislations have, subject to minor variations, adopted substantially a similar definition of goods for the purpose of their Sales Tax Acts. There have been several decisions of this Court on the interpretation of the word goods in the context of different State sales tax enactments.we will assume that an incorporeal right is goods, In fact the question whether goods for the purpose of sales tax may be intangible or incorporeal need not detain us. In Associated Cement Companies Ltd. Vs. Commissioner of Customs (2001)4 SCC 593 , the value of drawings was added to their cost since they contained and formed part of the technical know-how which was part of a technical collaboration between the importer of the drawings and their exporter. It was recognized knowledge in the abstract may not come within the definition of goods in Section 2(22) of the Customs Act. This view was adopted in Tata Consultancy Services Vs. State of Andhra Pradesh (supra) for the purposes of levy of sales tax on computer software. It was held:- A goods may be a tangible property or an intangible one. It would become goods provided it has the attributes thereof having regard to (a) its utility; (b) capable of being bought and sold; and (c) capable of being transmitted, transferred, delivered, stored and possessed. If a software whether customized or non- customised satisfies these attributes, the same would be goods.33. This in our opinion is the correct approach to the question as to what are goods for the purposes of sales tax. We respectfully adopt the same.The inspiration for the argument has been derived from the provisions of the Indian Telegraph Act, 1885 which defines telegraph as meaning: telegraph means any appliance, instrument, material or apparatus used or capable of use for transmission or reception of signs, signals, writings, images and sound or intelligence of any nature by wire, visual or other electro-magnetic emissions, Radio waves or Hertzian waves, galvanic, electric or magnetic means.34. Section 4 of the 1885 Act gives exclusive privilege in respect of telecommunication and the power to grant licences to the Central Government. Pursuant to such power, licences have been granted to service providers.We will proceed on the basis that incorporeal rights may be goods for the purposes of levying sales tax.Assuming it to be so, the question is whether these electro magnetic waves can fulfill the criteria laid down in Tata Consultancy for goods.In our opinion the question must be answered in the negative.36. It is clear, electromagnetic waves are neither abstracted nor are they consumed in the sense that they are not extinguished by their user. They are not delivered, stored or possessed. Nor are they marketable. They are merely the medium of communication. What is transmitted is not an electromagnetic wave but the signal through such means. The signals are generated by the subscribers themselves. In telecommunication what is transmitted is the message by means of the telegraph. No part of the telegraph itself is transferable or deliverable to the subscribers. The second reason is more basic. A subscriber to a telephone service could not reasonably be taken to have intended to purchase or obtain any right to use electromagnetic waves or radio frequencies when a telephone connection is given. Nor does the subscriber intend to use any portion of the wiring, the cable, the satellite, the telephone exchange etc. At the most the concept of the sale in a subscribers mind would be limited to the handset that may have been purchased for the purposes of getting a telephone connection. As far as the subscriber is concerned, no right to the use of any other goods, incorporeal or corporeal, is given to him or her with the telephone connection. We cannot anticipate what may be achieved by scientific and technological advances in future. No one has argued that at present electromagnetic waves are abstractable or are capable of delivery. It would, therefore, appear that an electro-magnetic wave (or radio frequency as contended by one of the counsel for the respondents), does not fulfill the parameters applied by the Supreme Court in Tata Consultancy for determining whether they are goods, right to use of which would be a sale for the purpose of Article 366(29-A)(d).37. The learned Judges in State of U.P. V. Union of India (supra) held that telephone instruments and other appliances including wiring, cable etc. are undoubtedly goods within the definition of the word in Section 2(d) of the U.P. Act. It was also held a telephone exchange being housed in immovable properties would make no difference because a tangible object like electricity which is generated in projects and transmitted through sub-stations housed in building has been held in CST V. M.P. Electricity Board (1969) 1 SCC 200 and State of A.P. V. National Thermal Power Corpn. Ltd. (2002) 5 SCC 203 to be goods. Had the learned Judges limited their observations to the telephone instruments we could have had no quarrel with the opinion stated. But they have in a subsequent portion of their judgment clarified that there a telephone connection along with all other accessories to the telephone exchange with or without instruments are goods within the meaning of Section 2(d) of the U.P. Act. The essence of the goods therefore, according to the learned Judges, lay in the entire system. To arrive at this conclusion, the reliance on the two cited judgments was inapposite. It was the sale and purchase of electricity which was being considered in those cases. The goods was the electrical energy. What the customers were being charged for was not the medium that was being used to transfer the electricity, but the electrical energy itself. In the case of telecommunications on the other hand, if the decision in State of U.P. vs. Union of India and the respondents submission are correct, the customers are not to be charged for what is being transferred through the medium but the use of the medium itself. Additionally in the State of Andhra Pradesh V. National Thermal Power Corporation (supra), the issue before the Constitution Bench was not whether electricity was goods for the purposes of sales tax but the situs of the sale of electricity.38. The learned Judges also in State of U.P. Vs. Union of India drew support from the decision of the Supreme Court of Wisconsin (USA) in McKinley Telephone Co. v. Cumberland Telephone Co. 152 Wis 359: 140 NW 39: 1913 Wisc Lexis 77 which had held that the furnishing of the telephone services might be classed as the supplying of a commodity constituting a subject of commerce. The decision in Mckinley Telephone, even if it were to be held of persuasive value, is not really relevant. That was a case where two competing telephone companies contracted that one should confine its business to the city and the other to rural lines out of the city. The rural company had the option to buy the rural lines of the other. Two questions fell for consideration. The first question was whether the contract was specifically enforceable. This question was also answered in the affirmative. The second question was whether the contract was in violation of the anti-trust laws. This was answered in the affirmative. It was in that context that the Court opined that:It is obvious that the statute is directed against contracts which are violative of the public policy of the state respecting restraints of trade and competition in the supply of any commodity in general use constituting a subject of commerce. The furnishing of telephone services may be classed within the general terms of the statute as the supplying of a commodity constituting a subject of commerce.39. Apart from the fact that the context was wholly different, the question whether a telephone service was goods or not was not really in issue. Incidentally, the decision in Mckinley Telephones has been distinguished in several subsequent decisions of the United States. [See Fleetway, Inc. Vs. Public Service Interstate Transport Co. 72 F.2d 761 (1934). State Broadcasting Co. Vs. United Press Intern. Inc. 369 F 2d 268 (1966), Columbia Broadcasting System, Inc. V. Amana Refrigeration Inc. 295 F.2d 375 (1961)] For the reasons stated by us earlier we hold that the electromagnetic waves are not goods within the meaning of the word either in Art. 366(12) or in the State Legislations. It is not in the circumstances necessary for us to determine whether the telephone system including the telephone exchange was not goods but immoveable property as contended by some of the petitioners. In the State of U.P. Vs. Union of India (supra) it was also held:- Handing over of possession is not sine qua non of completing the transfer of the right to use any goods, as was held by a Constitution Bench of this Court in 20th Century Finance Corpn. Ltd. V. State of Maharashtra (2000) 6 SCC 12 . Once DoT connects the telephone line of the assigned number of the subscriber to the area exchange, access to other telephones is established. There cannot be denial of the fact that giving such an access would complete the transfer of the right to use the goods.40. With respect, the decision in 20th Century Finance Corporation Limited Vs. State of Maharashtra, cannot be cited as authority for the proposition that delivery of possession of the goods is not a necessary concomitant for completing a transaction of sale for the purposes of Article 366 (29A) (d) of the Constitution. In that decision the Court had to determine where the taxable event for the purposes of sales tax took place in the context of sub-clause (d) of Article 366 (29A). Some States had levied tax on the transfer of the right to use goods on the location of goods at the time of their use irrespective of the place where the agreement for such transfer of right to use such goods was made. Other States levied tax upon delivery of the goods in the State pursuant to agreements of transfer while some other States levied tax on deemed sales on the premise that the agreement for transfer of the right to use had been executed within that State (vide paragraph 2 of the judgment as reported). This Court upheld the third view namely merely that the transfer of the right to use took place where the agreements were executed. In these circumstances the Court said that:-No authority of this Court has been shown on behalf of respondents that there would be no completed transfer of right to use goods unless the goods are delivered. Thus, the delivery of goods cannot constitute a basis for levy of tax on the transfer of right to use any goods. We are, therefore, of the view that where the goods are in existence, the taxable event on the transfer of the right to use goods occurs when a contract is executed between the lessor and the lessee and situs of sale of such a deemed sale would be the place where the contract in respect thereof is executed. Thus, where goods to be transferred are available and a written contract, is executed between the parties, it is at that point situs of taxable event on the transfer of right to use goods would occur and situs of sale of such a transaction would be the place where the contract is executed.41. In determining the situs of the transfer of the right to use the goods, the Court did not say that delivery of the goods was inessential for the purposes of completing the transfer of the right to use. The emphasized portions in the quoted passage evidences that the goods must be available when the transfer of the right to use the goods take place. The Court also recognized that for oral contracts the situs of the transfer may be where the goods are delivered (see para 26 of the judgment) In our opinion, the essence of the right under Article 366 (29A) (d) is that it relates to user of goods. It may be that the actual delivery of the goods is not necessary for effecting the transfer of the right to use the goods but the goods must be available at the time of transfer must be deliverable and delivered at some stage. It is assumed, at the time of execution of any agreement to transfer the right to use, that the goods are available and deliverable. If the goods, or what is claimed to be goods by the respondents, are not deliverable at all by the service providers to the subscribers, the question of the right to use those goods, would not arise. In State of of Andhra Pradesh and Anr. Vs. Rastriya Ispat Nigam Ltd. (2003) 3 SCC 214, it was claimed by the Sales Tax Authorities that the transaction by which the owner of certain machinery had made them available to the contractors was a sale. The Court rejected the submission saying that:- the transaction did not involve transfer of right to use the machinery in favour of contractors. The effective control of the machinery even while the machinery was in use of the contractor was that of the respondent Company; the contractor was not free to make use of the machinery for the works other than the project work of the respondent or. (para 4 page 315)42. But in the case of Agrawal Brothers Vs. State of Haryana and Anr. (1999) 9 SCC 182 when the assessee had hired shuttering to favour of contractors to use it in the course of construction of buildings it was found that possession of the shuttering materials was transferred by the assessee to the customers for their use and therefore, there was a deemed sale within the meaning of sub-clause (d) of Clause 29-A of Article 366. What is noteworthy is that in both the cases there were goods in existence which were delivered to the contractors for their use. In one case there was no intention to transfer the right to use while in the other there was. But if there are no deliverable goods in existence as in this case, there is no transfer of user at all. Providing access or telephone connection does not put the subscriber in possession of the electromagnetic waves any more than a toll collector puts a road or bridge into the possession of the toll payer by lifting a toll gate. Ofcourse the toll payer will use the road or bridge in one sense. But the distinction with a sale of goods is that the user would be of the thing or goods delivered. The delivery may not be simultaneous with the transfer of the right to use. But the goods must be in existence and deliverable when the right is sought to be transferred. Therefore whether goods are incorporeal or corporeal, tangible or intangible, they must be deliverable. To the extent that the decision in State of U.P. Vs. Union of India held otherwise, it was, in our humble opinion erroneous. It has been held in Builders Association of India Vs. Union of India (1989) 2 SCC 645 that the clauses in Article 366 (29A) do not amount to a separate entry in List II of the 7th Schedule to the Constitution enabling the States to levy tax on sales and purchase independent of Entry 54 thereof.(see also Larsen & Toubro Ltd. Vs. Union of India (1993) 1 SCC 365, 383). Article 366 (29A) as introduced by the 46th Amendment not being equivalent to a separate entry in List II is subject to the same limitations as Entry 54 of that List. At the time of amending Article 366, Article 286 was also amended by the introduction of clause (3)43. Therefore the deemed sales included in Entry 54 List II would also be subject to the limitations of Art. 286, Art. 366(29-A). Being aware of the dangers of allowing the residuary powers Parliament under Entry 97 of List I to swamp the legislative entries in the State list, we have interpreted Entry 54, List II together with Article 366 (29A) without whittling down the interpretation by referring to the residuary provision. Having completed the exercise, we now turn our attention to the latter. In 1994, service tax was introduced by Parliament under Chapter V of the Finance Act, 1994 with reference to its residuary power under Entry 97 List I of the Seventh Schedule to the Constitution. Under the 1994 Act, taxable services which were subject to levy of service tax were defined. Several different services were included in the definition. Section 65(16)(b) included service provided to a subscriber by the telegraph authority in relation to a telephone connection with effect from the coming into force of the 1994 as a taxable service. Under Section 66, tax was imposed at the rate of five percent of the value of the taxable services provided to any person by the person responsible for collecting the service tax. The value of the taxable service in relation to a telephone connection provided to the subscribers, was to be the gross total amount received by the telegraph authority from the subscribers. The 1994 Act was amended from time to time by extending the meaning of taxable service. We are concerned with two amendments, one made in 2002 and the other in 2003. By Section 149(90)(b) of the Finance Act, 2002, service to a subscriber by a telephone authority was continued as a taxable service. Telegraph was defined in Section 149(92) as having the same meaning assigned to it in clause (1) of Section 3 of the Indian Telegraph Act, 1885. Telegraph authority was defined incorporating the definition of the phrase Section 3(6) of the 1885 Act and included a person who has been granted a licence under the first proviso in Section 4(1) of that Act. The liability of service providers to service tax was continued under Section 159(105)(110) (b) and (111) of the Finance Act, 2003. The definition of subscriber was added in sub section (104) as meaning a person to whom any service of a telephone connection or a facsimile (Fax) or a leased circuit or a pager or a telegraph or telex has been provided by a telegraph authority. Finally in 2003, List II of the Seventh Schedule to the Constitution was amended by including taxes on service under Entry 92C. By this time there were about 100 taxable services including the service of a telephone connection.As we have said Art. 366(29A) has no doubt served to extend the meaning of the word sale to the extent stated but no further. We cannot presume that the Constitutional Amendment was loosely drawn and must proceed on the basis that the parameters of sale were carefully defined. But having said that, it is sufficient for the purposes of this judgment to find, as we do, that a telephone service is nothing but a service. There is no sales element apart from the obvious one relating to the hand set if any. That and any other accessory supplied by the service provider in our opinion remain to be taxed under the State Sales Tax Laws. We have given the reasons earlier why we have reached this conclusion. This brings us to the decision of the Kerala High Court in Escotel. In that case Escotel was admittedly engaged in selling cellular telephone instruments, SIM cards and other accessories and was also paying Central Sales Tax and Sales Tax under the Kerala General Sales Tax Act, 1963 as applicable. The question was one of the valuation of these goods. State Sales Tax Authorities had sought to include the activation charges in the cost of the SIM card. It is contended by Escotel that the activation was part of the service on which service tax was being paid and could not be included within the purview of the sale. The Kerala High Court also dealt with the case of BPL, a service provider.44. According to BPL, it did not sell cellular telephones. As far as SIM cards were concerned, it was submitted that they had no sale value. A SIM card merely represented a means of the access and identified the subscribers. This was part of the service of a telephone connection. The Court rejected this submission finding that the SIM card was goods within the definition of the word in the State Sales Tax Act. It is not possible for this Court to opine finally on the issue. What a SIM card represents is ultimately a question of fact as has been correctly submitted by the States. In determining the issue, however the Assessing Authorities will have to keep in mind the following principles: If the SIM Card is not sold by the assessee to the subscribers but is merely part of the services rendered by the service providers, then a SIM card cannot be charged separately to sales tax. It would depend ultimately upon the intention of the parties. If the parties intended that the SIM card would be a separate object of sale, it would be open to the Sales Tax Authorities to levy sales tax thereon. There is insufficient material on the basis of which we can reach a decision. However we emphasise that if the sale of a SIM card is merely incidental to the service being provided and only facilitates the identification of the subscribers, their credit and other details, it would not be assessable to sales tax. In our opinion the High Court ought not to have finally determined the issue. In any event, the High Court erred in including the cost of the service in the value of the SIM card by relying on the aspects doctrine. That doctrine merely deals with legislative competence. As has been succinctly stated in Federation of Hotel & Restaurant Association of India Vs. Union of India (1989) 3 SCC 634 - subjects which in one aspect and for one purpose fall within the power of a particular legislature may in another aspect and for another purpose fall within another legislative power.45. They might be overlapping; but the overlapping must be in law. The same transaction may involve two or more taxable events in its different aspects. But the fact that there is overlapping does not detract from the distinctiveness of the aspects. No one denies the legislative competence of States to levy sales tax on sales provided that the necessary concomitants of a sale are present in the transaction and the sale is distinctly discernible in the transaction. This does not however allow State to entrench upon the Union list and tax services by including the cost of such service in the value of the goods. Even in those composite contracts which are by legal fiction deemed to be divisible under Art. 366(29A), the value of the goods involved in the execution of the whole transaction cannot be assessed to Sales Tax. As was said in Larsen & Toubro Vs. Union of India (supra):-The cost of establishment of the contractor which is relatable to supply of labour and services cannot be included in the value of the goods involved in the execution of a contract and the cost of establishment which is relatable to supply of materials involved in the execution of the works contract only can be included in the value of the goods.46. For the same reason the Centre cannot include the value of the SIM cards, if they are found ultimately to be goods, in the cost of the service. As was held by us in Gujarat Ambuja Cements Ltd. Vs. Union of India (2005) 4 SCC 214 ,228. This mutual exclusivity which has been reflected in Article 246(1) means that taxing entries must be construed so as to maintain exclusivity. Although generally speaking, a liberal interpretation must be given to taxing entries, this would not bring within its purview a tax on subject- matter which a fair reading of the entry does not cover. If in substance, the statute is not referable to a field given to the State, the Court will not by any principle of interpretation allow a statute not covered by it to intrude upon this field. | 1 | 15,124 | 9,403 | ### 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:
there were about 100 taxable services including the service of a telephone connection. The question is - is the sale element is each of these several services and in particular the service of a telephone connection taxable by the States? As we have said Art. 366(29A) has no doubt served to extend the meaning of the word sale to the extent stated but no further. We cannot presume that the Constitutional Amendment was loosely drawn and must proceed on the basis that the parameters of sale were carefully defined. But having said that, it is sufficient for the purposes of this judgment to find, as we do, that a telephone service is nothing but a service. There is no sales element apart from the obvious one relating to the hand set if any. That and any other accessory supplied by the service provider in our opinion remain to be taxed under the State Sales Tax Laws. We have given the reasons earlier why we have reached this conclusion. This brings us to the decision of the Kerala High Court in Escotel. In that case Escotel was admittedly engaged in selling cellular telephone instruments, SIM cards and other accessories and was also paying Central Sales Tax and Sales Tax under the Kerala General Sales Tax Act, 1963 as applicable. The question was one of the valuation of these goods. State Sales Tax Authorities had sought to include the activation charges in the cost of the SIM card. It is contended by Escotel that the activation was part of the service on which service tax was being paid and could not be included within the purview of the sale. The Kerala High Court also dealt with the case of BPL, a service provider. 44. According to BPL, it did not sell cellular telephones. As far as SIM cards were concerned, it was submitted that they had no sale value. A SIM card merely represented a means of the access and identified the subscribers. This was part of the service of a telephone connection. The Court rejected this submission finding that the SIM card was goods within the definition of the word in the State Sales Tax Act. It is not possible for this Court to opine finally on the issue. What a SIM card represents is ultimately a question of fact as has been correctly submitted by the States. In determining the issue, however the Assessing Authorities will have to keep in mind the following principles: If the SIM Card is not sold by the assessee to the subscribers but is merely part of the services rendered by the service providers, then a SIM card cannot be charged separately to sales tax. It would depend ultimately upon the intention of the parties. If the parties intended that the SIM card would be a separate object of sale, it would be open to the Sales Tax Authorities to levy sales tax thereon. There is insufficient material on the basis of which we can reach a decision. However we emphasise that if the sale of a SIM card is merely incidental to the service being provided and only facilitates the identification of the subscribers, their credit and other details, it would not be assessable to sales tax. In our opinion the High Court ought not to have finally determined the issue. In any event, the High Court erred in including the cost of the service in the value of the SIM card by relying on the aspects doctrine. That doctrine merely deals with legislative competence. As has been succinctly stated in Federation of Hotel & Restaurant Association of India Vs. Union of India (1989) 3 SCC 634 - subjects which in one aspect and for one purpose fall within the power of a particular legislature may in another aspect and for another purpose fall within another legislative power. 45. They might be overlapping; but the overlapping must be in law. The same transaction may involve two or more taxable events in its different aspects. But the fact that there is overlapping does not detract from the distinctiveness of the aspects. No one denies the legislative competence of States to levy sales tax on sales provided that the necessary concomitants of a sale are present in the transaction and the sale is distinctly discernible in the transaction. This does not however allow State to entrench upon the Union list and tax services by including the cost of such service in the value of the goods. Even in those composite contracts which are by legal fiction deemed to be divisible under Art. 366(29A), the value of the goods involved in the execution of the whole transaction cannot be assessed to Sales Tax. As was said in Larsen & Toubro Vs. Union of India (supra):- The cost of establishment of the contractor which is relatable to supply of labour and services cannot be included in the value of the goods involved in the execution of a contract and the cost of establishment which is relatable to supply of materials involved in the execution of the works contract only can be included in the value of the goods. 46. For the same reason the Centre cannot include the value of the SIM cards, if they are found ultimately to be goods, in the cost of the service. As was held by us in Gujarat Ambuja Cements Ltd. Vs. Union of India (2005) 4 SCC 214 ,228. This mutual exclusivity which has been reflected in Article 246(1) means that taxing entries must be construed so as to maintain exclusivity. Although generally speaking, a liberal interpretation must be given to taxing entries, this would not bring within its purview a tax on subject- matter which a fair reading of the entry does not cover. If in substance, the statute is not referable to a field given to the State, the Court will not by any principle of interpretation allow a statute not covered by it to intrude upon this field.
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1
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has been provided by a telegraph authority. Finally in 2003, List II of the Seventh Schedule to the Constitution was amended by including taxes on service under Entry 92C. By this time there were about 100 taxable services including the service of a telephone connection.As we have said Art. 366(29A) has no doubt served to extend the meaning of the word sale to the extent stated but no further. We cannot presume that the Constitutional Amendment was loosely drawn and must proceed on the basis that the parameters of sale were carefully defined. But having said that, it is sufficient for the purposes of this judgment to find, as we do, that a telephone service is nothing but a service. There is no sales element apart from the obvious one relating to the hand set if any. That and any other accessory supplied by the service provider in our opinion remain to be taxed under the State Sales Tax Laws. We have given the reasons earlier why we have reached this conclusion. This brings us to the decision of the Kerala High Court in Escotel. In that case Escotel was admittedly engaged in selling cellular telephone instruments, SIM cards and other accessories and was also paying Central Sales Tax and Sales Tax under the Kerala General Sales Tax Act, 1963 as applicable. The question was one of the valuation of these goods. State Sales Tax Authorities had sought to include the activation charges in the cost of the SIM card. It is contended by Escotel that the activation was part of the service on which service tax was being paid and could not be included within the purview of the sale. The Kerala High Court also dealt with the case of BPL, a service provider.44. According to BPL, it did not sell cellular telephones. As far as SIM cards were concerned, it was submitted that they had no sale value. A SIM card merely represented a means of the access and identified the subscribers. This was part of the service of a telephone connection. The Court rejected this submission finding that the SIM card was goods within the definition of the word in the State Sales Tax Act. It is not possible for this Court to opine finally on the issue. What a SIM card represents is ultimately a question of fact as has been correctly submitted by the States. In determining the issue, however the Assessing Authorities will have to keep in mind the following principles: If the SIM Card is not sold by the assessee to the subscribers but is merely part of the services rendered by the service providers, then a SIM card cannot be charged separately to sales tax. It would depend ultimately upon the intention of the parties. If the parties intended that the SIM card would be a separate object of sale, it would be open to the Sales Tax Authorities to levy sales tax thereon. There is insufficient material on the basis of which we can reach a decision. However we emphasise that if the sale of a SIM card is merely incidental to the service being provided and only facilitates the identification of the subscribers, their credit and other details, it would not be assessable to sales tax. In our opinion the High Court ought not to have finally determined the issue. In any event, the High Court erred in including the cost of the service in the value of the SIM card by relying on the aspects doctrine. That doctrine merely deals with legislative competence. As has been succinctly stated in Federation of Hotel & Restaurant Association of India Vs. Union of India (1989) 3 SCC 634 - subjects which in one aspect and for one purpose fall within the power of a particular legislature may in another aspect and for another purpose fall within another legislative power.45. They might be overlapping; but the overlapping must be in law. The same transaction may involve two or more taxable events in its different aspects. But the fact that there is overlapping does not detract from the distinctiveness of the aspects. No one denies the legislative competence of States to levy sales tax on sales provided that the necessary concomitants of a sale are present in the transaction and the sale is distinctly discernible in the transaction. This does not however allow State to entrench upon the Union list and tax services by including the cost of such service in the value of the goods. Even in those composite contracts which are by legal fiction deemed to be divisible under Art. 366(29A), the value of the goods involved in the execution of the whole transaction cannot be assessed to Sales Tax. As was said in Larsen & Toubro Vs. Union of India (supra):-The cost of establishment of the contractor which is relatable to supply of labour and services cannot be included in the value of the goods involved in the execution of a contract and the cost of establishment which is relatable to supply of materials involved in the execution of the works contract only can be included in the value of the goods.46. For the same reason the Centre cannot include the value of the SIM cards, if they are found ultimately to be goods, in the cost of the service. As was held by us in Gujarat Ambuja Cements Ltd. Vs. Union of India (2005) 4 SCC 214 ,228. This mutual exclusivity which has been reflected in Article 246(1) means that taxing entries must be construed so as to maintain exclusivity. Although generally speaking, a liberal interpretation must be given to taxing entries, this would not bring within its purview a tax on subject- matter which a fair reading of the entry does not cover. If in substance, the statute is not referable to a field given to the State, the Court will not by any principle of interpretation allow a statute not covered by it to intrude upon this field.
|
Balchand Vs. Income-Tax Officer, Sagar | computed, or if (b) in cases not mentioned in Clause (a) the Income-tax Officer had in consequence of information in his possession reason to believe that income, profits or gains chargeable to income-tax had escaped assessment for any year, or had been under-assessed, or assessed at too low a rate, or had been made the subject of excessive relief under the Act or that excessive loss or depreciation allowance had been computed, and to proceed to re-assess the income of the assessee.5. The appellant was already assessed to income-tax for the years 1945-46 and 1946-47 under the Act of 1922. Counsel for the appellant concedes that the appellant did not comply with the notice dated June 24, 1959, and filed first a return for the assessment year 1946-47 and thereafter a return for the assessment year 1945-46. He, however, submits that even if the return was not demanded, since the return for 1946-47 was filed by the appellant the Income-tax Officer was bound to consider that return according to law and to pass appropriate Orders of assessment thereon an so long as he did not do so, he was incompetent to issue a notice of reassement either under Section 34 of the Income-tax Act of 1922 or Section 148 of the Income-tax Act, 1961. We are unable to accept that contention. The Act does not provide for any machinery for dealing with voluntary returns filed by an assessee after assessment of in-come for the year of assessment is completed. Such a voluntary return does not operate as a bar to the Income-tax Officer issuing a notice of assessment.6. This Court has held in Ranchhoddass case, 1959-36 ITR 569 = (AIR 1959SC 1154) that where no return has been filed by the assessee within the period prescribed by Section 22 (1) of the Income-tax Act, 1922, the assessee is entitled in law to submit a voluntary return in answer to the general notice under Section 22 (1) before assessment is competed, for a return in answer to the general notice can under Section 22 (3) be filed at any time before assessment and for filing such a return there is no limit of time, and when such a voluntary return is filed, the Income-tax Officer cannot ignore that return voluntarily filed and issue a notice of re-assessment under Sec. 34 of the income-tax 1922 A notice of reassessment before the voluntary return is disposed of is therefore invalid. But the principle of Ranchhoddas Case, 1959-36 ITR 569 = (AIR 1959 SC 1154 ) only apaplies to cases where no assessment of the income of the assessee has been made.Where the income of the assessee has been assessed to tax, it is not open to the assessee on coming to learn or apprehending that proceedings under Section 34 of the Act will be taken against him to file a voluntary return and avoid the issue of a notice under Section 34 against him.In S. Raman Chettiars case, 1965-55 ITR 630 = (AIR 1965 SC 1031 ) also a Hindu undivided family had not filed any return for the assessment year 1944-45. The Income-tax Officer issued a notice under Section 34 of the Indian Income-tax Act, 1922, in April 1948 calling upon the assessee to file a return of income and the assessee complied with the notice and filed a return on September 4, 1948. In the course of the proceeding, it was discovered that the notice under Section 34 was invalid, because the Commissioners sanction was not obtained. The Income-tax Officer then issued a fresh notice on February 27, 1953, in respect of the assessment year 1944-45 and passed an order of assessment in respect of the income which had not been assessed. This Court held that the return submitted on September 4, 1948, by the assessee in response to the invalid notice under Section 34 was a return within the meaning of Section 22 (3) of the Act, and the Income-tax Officer could not ignore it and issue a notice under Section 34 on the assumption that there had been omission or failure by the assessee to make a return of his income under Section 22, and on that account the assessment under Section 34 was invalid. In that case also no return had been filed by the assessee pursuant to Section 22 and no order of assessment of the income of the assessee for the year 1944-45 was recorded. The principle of Ranchhoddass case, 1959-36 ITR 569 = (AIR 1959 SC 1154 ) and S.Raman Chetttiars case 1965-55 ITR 630 = )AIR 1965 SC 1031 ) has in our judgment, no application to cases where a return has been filed by the assessee and assessment made and thereafter apprehending proceedings under Section 34 of the Indian Income-tax Act, 1922, the assessee files another return.Unless a notice of reassessment is issued by the Income-tax Officer, the assessee cannot after an order of assessment is made submit a return of his income for the year for which he is already assessed and call upon the Income-tax Officer to assess his income. Such a proceeding would be futile. It is true that a notice under Section 34 is also a notice of assessment, but relying upon S. 22 (3) the asseessee may furnish a revised return to rectify an omission or wrong statement, or furnish a return pursuant to a requisition under Section 34, he cannot seek to rectify his return on which assessment has already been made.7. The return filed on August 17, 1959, therefore did not deprive the Income-tax Officer of his jurisdiction to start proceedings under Section 34 of the Indian Income-tax Act, 1922, against the assessee. there is no dispute that after the repeal of the Act of 1922, it was competent to the Income-tax Officer to issue a notice under Section 148 of the Income-tax Act, 1961, for assessment of the income of the assessee if no proceeding for assessment had been commenced prior to April 1, 1962. | 0[ds]4. Under S. 22 (1) of the Income-tax Act, 1922, the Income-tax Officer was required before the 1st day of May in each year to five notice, by publication in the press and calling publication in the prescribed manner, calling upon every person whose total income during the previous year exceeded the maximum amount not chargeable to income-tax to furnish, within such period not being less than sixty days as may be specified in the notice, a return in the prescribed form. Sub-section (2) authorised the Income-tax Officer to serve a notice upon my person whose total income was in the opinion of the Income-tax Officer of such an amount as to render such person liable to incame-tax, requiring him to furnishing within such period, not being less than thirty days, as may be specified in the notice, a return of his total income during the previous year.The appellant was already assessed to income-tax for the years 1945-46 and 1946-47 under the Act of 1922. Counsel for the appellant concedes that the appellant did not comply with the notice dated June 24, 1959, and filed first a return for the assessment year 1946-47 and thereafter a return for the assessment year 1945-46. He, however, submits that even if the return was not demanded, since the return for 1946-47 was filed by the appellant the Income-tax Officer was bound to consider that return according to law and to pass appropriate Orders of assessment thereon an so long as he did not do so, he was incompetent to issue a notice of reassement either under Section 34 of the Income-tax Act of 1922 or Section 148 ofthe Income-tax Act, 1961. We are unable to accept that contention. The Act does not provide for any machinery for dealing with voluntary returns filed by an assessee after assessment of in-come for the year of assessment is completed. Such a voluntary return does not operate as a bar to the Income-tax Officer issuing a notice of assessment.The return filed on August 17, 1959, therefore did not deprive theOfficer of his jurisdiction to start proceedings under Section 34 of the IndianAct, 1922, against the assessee. there is no dispute that after the repeal of the Act of 1922, it was competent to theOfficer to issue a notice under Section 148 ofx Act, 1961, for assessment of the income of the assessee if no proceeding for assessment had been commenced prior to April 1, 1962. | 0 | 2,183 | 450 | ### 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:
computed, or if (b) in cases not mentioned in Clause (a) the Income-tax Officer had in consequence of information in his possession reason to believe that income, profits or gains chargeable to income-tax had escaped assessment for any year, or had been under-assessed, or assessed at too low a rate, or had been made the subject of excessive relief under the Act or that excessive loss or depreciation allowance had been computed, and to proceed to re-assess the income of the assessee.5. The appellant was already assessed to income-tax for the years 1945-46 and 1946-47 under the Act of 1922. Counsel for the appellant concedes that the appellant did not comply with the notice dated June 24, 1959, and filed first a return for the assessment year 1946-47 and thereafter a return for the assessment year 1945-46. He, however, submits that even if the return was not demanded, since the return for 1946-47 was filed by the appellant the Income-tax Officer was bound to consider that return according to law and to pass appropriate Orders of assessment thereon an so long as he did not do so, he was incompetent to issue a notice of reassement either under Section 34 of the Income-tax Act of 1922 or Section 148 of the Income-tax Act, 1961. We are unable to accept that contention. The Act does not provide for any machinery for dealing with voluntary returns filed by an assessee after assessment of in-come for the year of assessment is completed. Such a voluntary return does not operate as a bar to the Income-tax Officer issuing a notice of assessment.6. This Court has held in Ranchhoddass case, 1959-36 ITR 569 = (AIR 1959SC 1154) that where no return has been filed by the assessee within the period prescribed by Section 22 (1) of the Income-tax Act, 1922, the assessee is entitled in law to submit a voluntary return in answer to the general notice under Section 22 (1) before assessment is competed, for a return in answer to the general notice can under Section 22 (3) be filed at any time before assessment and for filing such a return there is no limit of time, and when such a voluntary return is filed, the Income-tax Officer cannot ignore that return voluntarily filed and issue a notice of re-assessment under Sec. 34 of the income-tax 1922 A notice of reassessment before the voluntary return is disposed of is therefore invalid. But the principle of Ranchhoddas Case, 1959-36 ITR 569 = (AIR 1959 SC 1154 ) only apaplies to cases where no assessment of the income of the assessee has been made.Where the income of the assessee has been assessed to tax, it is not open to the assessee on coming to learn or apprehending that proceedings under Section 34 of the Act will be taken against him to file a voluntary return and avoid the issue of a notice under Section 34 against him.In S. Raman Chettiars case, 1965-55 ITR 630 = (AIR 1965 SC 1031 ) also a Hindu undivided family had not filed any return for the assessment year 1944-45. The Income-tax Officer issued a notice under Section 34 of the Indian Income-tax Act, 1922, in April 1948 calling upon the assessee to file a return of income and the assessee complied with the notice and filed a return on September 4, 1948. In the course of the proceeding, it was discovered that the notice under Section 34 was invalid, because the Commissioners sanction was not obtained. The Income-tax Officer then issued a fresh notice on February 27, 1953, in respect of the assessment year 1944-45 and passed an order of assessment in respect of the income which had not been assessed. This Court held that the return submitted on September 4, 1948, by the assessee in response to the invalid notice under Section 34 was a return within the meaning of Section 22 (3) of the Act, and the Income-tax Officer could not ignore it and issue a notice under Section 34 on the assumption that there had been omission or failure by the assessee to make a return of his income under Section 22, and on that account the assessment under Section 34 was invalid. In that case also no return had been filed by the assessee pursuant to Section 22 and no order of assessment of the income of the assessee for the year 1944-45 was recorded. The principle of Ranchhoddass case, 1959-36 ITR 569 = (AIR 1959 SC 1154 ) and S.Raman Chetttiars case 1965-55 ITR 630 = )AIR 1965 SC 1031 ) has in our judgment, no application to cases where a return has been filed by the assessee and assessment made and thereafter apprehending proceedings under Section 34 of the Indian Income-tax Act, 1922, the assessee files another return.Unless a notice of reassessment is issued by the Income-tax Officer, the assessee cannot after an order of assessment is made submit a return of his income for the year for which he is already assessed and call upon the Income-tax Officer to assess his income. Such a proceeding would be futile. It is true that a notice under Section 34 is also a notice of assessment, but relying upon S. 22 (3) the asseessee may furnish a revised return to rectify an omission or wrong statement, or furnish a return pursuant to a requisition under Section 34, he cannot seek to rectify his return on which assessment has already been made.7. The return filed on August 17, 1959, therefore did not deprive the Income-tax Officer of his jurisdiction to start proceedings under Section 34 of the Indian Income-tax Act, 1922, against the assessee. there is no dispute that after the repeal of the Act of 1922, it was competent to the Income-tax Officer to issue a notice under Section 148 of the Income-tax Act, 1961, for assessment of the income of the assessee if no proceeding for assessment had been commenced prior to April 1, 1962.
### Response:
0
### Explanation:
4. Under S. 22 (1) of the Income-tax Act, 1922, the Income-tax Officer was required before the 1st day of May in each year to five notice, by publication in the press and calling publication in the prescribed manner, calling upon every person whose total income during the previous year exceeded the maximum amount not chargeable to income-tax to furnish, within such period not being less than sixty days as may be specified in the notice, a return in the prescribed form. Sub-section (2) authorised the Income-tax Officer to serve a notice upon my person whose total income was in the opinion of the Income-tax Officer of such an amount as to render such person liable to incame-tax, requiring him to furnishing within such period, not being less than thirty days, as may be specified in the notice, a return of his total income during the previous year.The appellant was already assessed to income-tax for the years 1945-46 and 1946-47 under the Act of 1922. Counsel for the appellant concedes that the appellant did not comply with the notice dated June 24, 1959, and filed first a return for the assessment year 1946-47 and thereafter a return for the assessment year 1945-46. He, however, submits that even if the return was not demanded, since the return for 1946-47 was filed by the appellant the Income-tax Officer was bound to consider that return according to law and to pass appropriate Orders of assessment thereon an so long as he did not do so, he was incompetent to issue a notice of reassement either under Section 34 of the Income-tax Act of 1922 or Section 148 ofthe Income-tax Act, 1961. We are unable to accept that contention. The Act does not provide for any machinery for dealing with voluntary returns filed by an assessee after assessment of in-come for the year of assessment is completed. Such a voluntary return does not operate as a bar to the Income-tax Officer issuing a notice of assessment.The return filed on August 17, 1959, therefore did not deprive theOfficer of his jurisdiction to start proceedings under Section 34 of the IndianAct, 1922, against the assessee. there is no dispute that after the repeal of the Act of 1922, it was competent to theOfficer to issue a notice under Section 148 ofx Act, 1961, for assessment of the income of the assessee if no proceeding for assessment had been commenced prior to April 1, 1962.
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Indian Performing Right Society Ltd Vs. Eastern India Motion Pictures Association | virtue of section 14(1)(e) of the Act on completion of the cinematograph film a copyright which gives him the exclusive right inter alia of performing the work in public i.e. to cause the film in so far as it consists of visual images to be seen in public and in so far as it consists of the acoustic portion including a lyric or a musical work to be heard in public without securing any further permission of the author (composer) of the lyric or a musical work for the performance of the work in public. In other words, a distinct copyright in the aforesaid circumstances comes to vest in the cinematograph film as a whole which in the words of British Copyright Committee set up in 1951 relates both to copying the film and to its performance in public. Thus if an author (composer) of a lyric or musical work authorises a cinematograph film producer to make a cinematograph film of his composition by recording it on the sound track of a cinematograph film, he cannot complain of the infringement of his copyright if the author (owner) of the cinematograph film causes the lyric or musical work recorded on the sound track of the film to be heard in public and nothing contained in section 13(4) of the Act on which Mr. Ashok Sen has strongly relied can operate to affect the rights acquired by the author (owner) of the film by virtue of section 14(1)(c) of the Act. The composer of a lyric or a musical work, however, retains the right of performing it in public for profit otherwise than as a part of the cinematograph film and he cannot be re- strain ed from doing so. In other words, the author (com- poser) of lyric or musical work who has authorised a cinematograph film producer to. make a cinematograph film of his work and has thereby permitted him to appropriate his work by incorporating or recording it on the sound track of a cinematograph film cannot restrain the author (owner) of the film from causing the acoustic portion of the film to be performed or projected or screened in public for profit or from making any record embodying the recording in any part of the sound track associated with the film by utilising such sound track or from communicating or authorising th e communication of the film by radio-diffusion, as section 14(1)(c) of the Act expressly permits the owner of the copyright of the cinematograph film to do all these things. In such cases, the author (owner) of the cinematograph film cannot be said to wrongfully appropriate anything which belongs to the composer of the lyric or musical work. Any other construction would not only render the express provisions of clauses (f), (m), (y) of section 2, section 13(1)(b) and section 14(1)(c) of the Act otiose but would also defeat the intention of the Legislature, which in view of the growing importance of the cinemato- graph film as a powerful media of expression, and the highly complex technical and scientific process and heavy capital outlay involved in its production, has sought to recognise it as a separate entity and to treat a record embodying the recording in any part of the sound track associated with the film by utilising such sound track as something distinct from a record as ordinarily understood.On a conspectus of the scheme of the Act as dis closed in the provisions reproduced above particularly clauses (d)(v), (f) (m), (v)and (y) of section 2, sections 13(1) and 14(1)(c), provisos (b)and (c) to section 17 and sections 22 and 26 of the Act, it is, therefore, abundantly clear that a protectable copyright (comprising a bundle of exclusive rights mentioned in section 14(1)(c) of the Act) comes to vest in a cinematograph film on its completion which is said to take place when the visual portion and audible portion are synchronized.7. This takes us to the core of the question namely, whether the producer of a cinematograph film can defeat the right of the composer of music .. .. or lyricst by engaging him. The key to the solution of this question lies in provisos (b) and (c) to section 17 of the Act reproduced above which put the matter beyond doubt. According to the first of these provisos viz. proviso (b) when a cinematograph film producer commissions a composer of music or a lyricst for reward or valuable consideration for the purpose of making his cinematograph film, or composing music or lyric therefore i.e. the sounds for incorporation or absorption in the sound track associated with the film, which as already indicated, are included in a cinematograph film, he becomes the first owner of the copyright therein and no copyright subsists in the composer of the lyric or music so composed unless there is a contract to the contrary between the composer of the lyric or music on the one hand and the producer of the cinematograph film on the other. The same result follows according to aforesaid proviso (c) if the composer of music or lyric is employed under a contract of service or apprenticeship to compose the work. It is, therefore, crystal clear that the rights of a music composer or ....lyricst Can be defeated by the producer of a cinematograph film in the manner laid down in provisos (b) and (c) of section 17 of the Act. We are fortified in this view by the decision in Wallerstein v. Herbert (1867) Vol. 16, Law Times Reports 453, relied upon by Mr. Sachin Chaudhary where it was held that the music composed for reward by the plaintiff in pursuance of his engagement to give effect to certain situations in the drama entitled "Lady Andleys Secret", which was to be put on the stage was not an independent composition but was merely an accessory to and a Fart an d parcel of the drama and the plaintiff did not have any right in the music.8. | 0[ds]The interpretation clause (f) of section 2 reproduced above, which is not exhaustive, leaves no room for doubt when read in conjunction with section 14(1)(c)(iii) that the term "cinematograph film" includes a sound track associated with the film. In the light of these provision s, it cannot be disputed that a "cinematograph film" is to be taken to include the sounds embodied in a sound track which is associated with the film. Section 13 recognises cinematograph film as a distinct and separate class of work and declares that copyright shall subsist therein throughout India. Section 14 which enumerates the fights that subsist in various classes of works mentioned in section 13 provides that copyright in case of a literary or musical work means inter alia (a) the right to perform or cause the performance of the work in public and (b) to make or authorise the making of a cinematograph film or a record in respect of the work. It also provides that copyright in case of cinematograph film means. among other rights, the right of exhibiting or causing the exhibition m public of the cinematograph film i.e. of causing the film in so far as it consists of visual images to be seen in public and in so far it consists of sounds to be heard in public. Section 13(4) on which Mr. Ashok Sen has leaned heavily in support of his contentions lays down that the copyright in a cinematograph film or a record shall not affect the separate copyright in any work in respect of which or a substantial part of which, the film, or as the case may be, the record is made. Though a conflict may at first sight seem to exist between section 13(4) and section 14(1) (a) (iii) on the one hand and section 14(1) (c) (ii) on the other, a close scrutiny and a harmonious and rational instead of a mechanic al construction of the said provisions cannot but lead to the irresistible conclusion that once the author of a lyric or a musical work parts with a portion of his copyright by authorising a film producer to make a cinematograph film in respect of his work and thereby to have, his work incorporated or recorded on the sound track of a cinematograph film, the latter acquires by virtue of section 14(1)(e) of the Act on completion of the cinematograph film a copyright which gives him the exclusive right inter alia of performing the work in public i.e. to cause the film in so far as it consists of visual images to be seen in public and in so far as it consists of the acoustic portion including a lyric or a musical work to be heard in public without securing any further permission of the author (composer) of the lyric or a musical work for the performance of the work in public. In other words, a distinct copyright in the aforesaid circumstances comes to vest in the cinematograph film as a whole which in the words of British Copyright Committee set up in 1951 relates both to copying the film and to its performance in public. Thus if an author (composer) of a lyric or musical work authorises a cinematograph film producer to make a cinematograph film of his composition by recording it on the sound track of a cinematograph film, he cannot complain of the infringement of his copyright if the author (owner) of the cinematograph film causes the lyric or musical work recorded on the sound track of the film to be heard in public and nothing contained in section 13(4) of the Act on which Mr. Ashok Sen has strongly relied can operate to affect the rights acquired by the author (owner) of the film by virtue of section 14(1)(c) of the Act. The composer of a lyric or a musical work, however, retains the right of performing it in public for profit otherwise than as a part of the cinematograph film and he cannot be re- strain ed from doing so. In other words, the author (com- poser) of lyric or musical work who has authorised a cinematograph film producer to. make a cinematograph film of his work and has thereby permitted him to appropriate his work by incorporating or recording it on the sound track of a cinematograph film cannot restrain the author (owner) of the film from causing the acoustic portion of the film to be performed or projected or screened in public for profit or from making any record embodying the recording in any part of the sound track associated with the film by utilising such sound track or from communicating or authorising th e communication of the film by radio-diffusion, as section 14(1)(c) of the Act expressly permits the owner of the copyright of the cinematograph film to do all these things. In such cases, the author (owner) of the cinematograph film cannot be said to wrongfully appropriate anything which belongs to the composer of the lyric or musical work. Any other construction would not only render the express provisions of clauses (f), (m), (y) of section 2, section 13(1)(b) and section 14(1)(c) of the Act otiose but would also defeat the intention of the Legislature, which in view of the growing importance of the cinemato- graph film as a powerful media of expression, and the highly complex technical and scientific process and heavy capital outlay involved in its production, has sought to recognise it as a separate entity and to treat a record embodying the recording in any part of the sound track associated with the film by utilising such sound track as something distinct from a record as ordinarily understood.On a conspectus of the scheme of the Act as dis closed in the provisions reproduced above particularly clauses (d)(v), (f) (m), (v)and (y) of section 2, sections 13(1) and 14(1)(c), provisos (b)and (c) to section 17 and sections 22 and 26 of the Act, it is, therefore, abundantly clear that a protectable copyright (comprising a bundle of exclusive rights mentioned in section 14(1)(c) of the Act) comes to vest in a cinematograph film on its completion which is said to take place when the visual portion and audible portion arekey to the solution of this question lies in provisos (b) and (c) to section 17 of the Act reproduced above which put the matter beyond doubt. According to the first of these provisos viz. proviso (b) when a cinematograph film producer commissions a composer of music or a lyricst for reward or valuable consideration for the purpose of making his cinematograph film, or composing music or lyric therefore i.e. the sounds for incorporation or absorption in the sound track associated with the film, which as already indicated, are included in a cinematograph film, he becomes the first owner of the copyright therein and no copyright subsists in the composer of the lyric or music so composed unless there is a contract to the contrary between the composer of the lyric or music on the one hand and the producer of the cinematograph film on the other. The same result follows according to aforesaid proviso (c) if the composer of music or lyric is employed under a contract of service or apprenticeship to compose the work. It is, therefore, crystal clear that the rights of a music composer or ....lyricst Can be defeated by the producer of a cinematograph film in the manner laid down in provisos (b) and (c) of section 17 of the Act. We are fortified in this view by the decision in Wallerstein v. Herbert (1867) Vol. 16, Law Times Reports 453, relied upon by Mr. Sachin Chaudhary where it was held that the music composed for reward by the plaintiff in pursuance of his engagement to give effect to certain situations in the drama entitled "Lady Andleys Secret", which was to be put on the stage was not an independent composition but was merely an accessory to and a Fart an d parcel of the drama and the plaintiff did not have any right in the music. | 0 | 6,900 | 1,568 | ### 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:
virtue of section 14(1)(e) of the Act on completion of the cinematograph film a copyright which gives him the exclusive right inter alia of performing the work in public i.e. to cause the film in so far as it consists of visual images to be seen in public and in so far as it consists of the acoustic portion including a lyric or a musical work to be heard in public without securing any further permission of the author (composer) of the lyric or a musical work for the performance of the work in public. In other words, a distinct copyright in the aforesaid circumstances comes to vest in the cinematograph film as a whole which in the words of British Copyright Committee set up in 1951 relates both to copying the film and to its performance in public. Thus if an author (composer) of a lyric or musical work authorises a cinematograph film producer to make a cinematograph film of his composition by recording it on the sound track of a cinematograph film, he cannot complain of the infringement of his copyright if the author (owner) of the cinematograph film causes the lyric or musical work recorded on the sound track of the film to be heard in public and nothing contained in section 13(4) of the Act on which Mr. Ashok Sen has strongly relied can operate to affect the rights acquired by the author (owner) of the film by virtue of section 14(1)(c) of the Act. The composer of a lyric or a musical work, however, retains the right of performing it in public for profit otherwise than as a part of the cinematograph film and he cannot be re- strain ed from doing so. In other words, the author (com- poser) of lyric or musical work who has authorised a cinematograph film producer to. make a cinematograph film of his work and has thereby permitted him to appropriate his work by incorporating or recording it on the sound track of a cinematograph film cannot restrain the author (owner) of the film from causing the acoustic portion of the film to be performed or projected or screened in public for profit or from making any record embodying the recording in any part of the sound track associated with the film by utilising such sound track or from communicating or authorising th e communication of the film by radio-diffusion, as section 14(1)(c) of the Act expressly permits the owner of the copyright of the cinematograph film to do all these things. In such cases, the author (owner) of the cinematograph film cannot be said to wrongfully appropriate anything which belongs to the composer of the lyric or musical work. Any other construction would not only render the express provisions of clauses (f), (m), (y) of section 2, section 13(1)(b) and section 14(1)(c) of the Act otiose but would also defeat the intention of the Legislature, which in view of the growing importance of the cinemato- graph film as a powerful media of expression, and the highly complex technical and scientific process and heavy capital outlay involved in its production, has sought to recognise it as a separate entity and to treat a record embodying the recording in any part of the sound track associated with the film by utilising such sound track as something distinct from a record as ordinarily understood.On a conspectus of the scheme of the Act as dis closed in the provisions reproduced above particularly clauses (d)(v), (f) (m), (v)and (y) of section 2, sections 13(1) and 14(1)(c), provisos (b)and (c) to section 17 and sections 22 and 26 of the Act, it is, therefore, abundantly clear that a protectable copyright (comprising a bundle of exclusive rights mentioned in section 14(1)(c) of the Act) comes to vest in a cinematograph film on its completion which is said to take place when the visual portion and audible portion are synchronized.7. This takes us to the core of the question namely, whether the producer of a cinematograph film can defeat the right of the composer of music .. .. or lyricst by engaging him. The key to the solution of this question lies in provisos (b) and (c) to section 17 of the Act reproduced above which put the matter beyond doubt. According to the first of these provisos viz. proviso (b) when a cinematograph film producer commissions a composer of music or a lyricst for reward or valuable consideration for the purpose of making his cinematograph film, or composing music or lyric therefore i.e. the sounds for incorporation or absorption in the sound track associated with the film, which as already indicated, are included in a cinematograph film, he becomes the first owner of the copyright therein and no copyright subsists in the composer of the lyric or music so composed unless there is a contract to the contrary between the composer of the lyric or music on the one hand and the producer of the cinematograph film on the other. The same result follows according to aforesaid proviso (c) if the composer of music or lyric is employed under a contract of service or apprenticeship to compose the work. It is, therefore, crystal clear that the rights of a music composer or ....lyricst Can be defeated by the producer of a cinematograph film in the manner laid down in provisos (b) and (c) of section 17 of the Act. We are fortified in this view by the decision in Wallerstein v. Herbert (1867) Vol. 16, Law Times Reports 453, relied upon by Mr. Sachin Chaudhary where it was held that the music composed for reward by the plaintiff in pursuance of his engagement to give effect to certain situations in the drama entitled "Lady Andleys Secret", which was to be put on the stage was not an independent composition but was merely an accessory to and a Fart an d parcel of the drama and the plaintiff did not have any right in the music.8.
### Response:
0
### Explanation:
by authorising a film producer to make a cinematograph film in respect of his work and thereby to have, his work incorporated or recorded on the sound track of a cinematograph film, the latter acquires by virtue of section 14(1)(e) of the Act on completion of the cinematograph film a copyright which gives him the exclusive right inter alia of performing the work in public i.e. to cause the film in so far as it consists of visual images to be seen in public and in so far as it consists of the acoustic portion including a lyric or a musical work to be heard in public without securing any further permission of the author (composer) of the lyric or a musical work for the performance of the work in public. In other words, a distinct copyright in the aforesaid circumstances comes to vest in the cinematograph film as a whole which in the words of British Copyright Committee set up in 1951 relates both to copying the film and to its performance in public. Thus if an author (composer) of a lyric or musical work authorises a cinematograph film producer to make a cinematograph film of his composition by recording it on the sound track of a cinematograph film, he cannot complain of the infringement of his copyright if the author (owner) of the cinematograph film causes the lyric or musical work recorded on the sound track of the film to be heard in public and nothing contained in section 13(4) of the Act on which Mr. Ashok Sen has strongly relied can operate to affect the rights acquired by the author (owner) of the film by virtue of section 14(1)(c) of the Act. The composer of a lyric or a musical work, however, retains the right of performing it in public for profit otherwise than as a part of the cinematograph film and he cannot be re- strain ed from doing so. In other words, the author (com- poser) of lyric or musical work who has authorised a cinematograph film producer to. make a cinematograph film of his work and has thereby permitted him to appropriate his work by incorporating or recording it on the sound track of a cinematograph film cannot restrain the author (owner) of the film from causing the acoustic portion of the film to be performed or projected or screened in public for profit or from making any record embodying the recording in any part of the sound track associated with the film by utilising such sound track or from communicating or authorising th e communication of the film by radio-diffusion, as section 14(1)(c) of the Act expressly permits the owner of the copyright of the cinematograph film to do all these things. In such cases, the author (owner) of the cinematograph film cannot be said to wrongfully appropriate anything which belongs to the composer of the lyric or musical work. Any other construction would not only render the express provisions of clauses (f), (m), (y) of section 2, section 13(1)(b) and section 14(1)(c) of the Act otiose but would also defeat the intention of the Legislature, which in view of the growing importance of the cinemato- graph film as a powerful media of expression, and the highly complex technical and scientific process and heavy capital outlay involved in its production, has sought to recognise it as a separate entity and to treat a record embodying the recording in any part of the sound track associated with the film by utilising such sound track as something distinct from a record as ordinarily understood.On a conspectus of the scheme of the Act as dis closed in the provisions reproduced above particularly clauses (d)(v), (f) (m), (v)and (y) of section 2, sections 13(1) and 14(1)(c), provisos (b)and (c) to section 17 and sections 22 and 26 of the Act, it is, therefore, abundantly clear that a protectable copyright (comprising a bundle of exclusive rights mentioned in section 14(1)(c) of the Act) comes to vest in a cinematograph film on its completion which is said to take place when the visual portion and audible portion arekey to the solution of this question lies in provisos (b) and (c) to section 17 of the Act reproduced above which put the matter beyond doubt. According to the first of these provisos viz. proviso (b) when a cinematograph film producer commissions a composer of music or a lyricst for reward or valuable consideration for the purpose of making his cinematograph film, or composing music or lyric therefore i.e. the sounds for incorporation or absorption in the sound track associated with the film, which as already indicated, are included in a cinematograph film, he becomes the first owner of the copyright therein and no copyright subsists in the composer of the lyric or music so composed unless there is a contract to the contrary between the composer of the lyric or music on the one hand and the producer of the cinematograph film on the other. The same result follows according to aforesaid proviso (c) if the composer of music or lyric is employed under a contract of service or apprenticeship to compose the work. It is, therefore, crystal clear that the rights of a music composer or ....lyricst Can be defeated by the producer of a cinematograph film in the manner laid down in provisos (b) and (c) of section 17 of the Act. We are fortified in this view by the decision in Wallerstein v. Herbert (1867) Vol. 16, Law Times Reports 453, relied upon by Mr. Sachin Chaudhary where it was held that the music composed for reward by the plaintiff in pursuance of his engagement to give effect to certain situations in the drama entitled "Lady Andleys Secret", which was to be put on the stage was not an independent composition but was merely an accessory to and a Fart an d parcel of the drama and the plaintiff did not have any right in the music.
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M/s Nava Bharat Ferro Alloys Ltd Vs. Transmission Corporation of A.P. Ltd. & Another | has been wiped out from existence." 21. Suffice it to say that the decision of this Court in Kerala State Electricity Boards case (supra) does not lend any support to the appellant-company in its endeavour to avoid payment of the amount which became recoverable from it no sooner the judgment of the High Court was reversed in the earlier round of litigation upholding the revision of the tariffs. 22. That brings us to the decision of this Court in Kanoria Chemicals and Industries Ltd. and Ors. v. U.P. State Electricity Board and Ors. (1997) 5 SCC 772. That was also a case where the validity of a notification issued by the U.P. State Electricity Board revising the electricity rates/tariffs under Section 49 of the Electricity (Supply) Act, 1948 was challenged by the consumers. Interlocutory applications filed in the writ petitions for stay of the operation of the impugned notification were eventually dismissed by the High Court whereupon the consumers deposited the differential amount between the pre-revised and the revised electricity rates. Consumers did not, however, deposit the late payment surcharge "recoverable" in terms of Clause 7(b) of the notification. Notices of demand were, therefore, issued to the consumers which were challenged in a fresh batch of writ petitions filed by them. The main contention urged by the consumers before the High Court was that since the operation of the notification revising the tariffs had been stayed between 25th July, 1990 and 1st March, 1993, no late payment surcharge could be levied on the amount withheld by the petitioners under the orders of the Court, no matter the writ petitions were finally dismissed. That contention was rejected by a Division Bench of the High Court of Allahabad. The matter was then brought up to this Court in appeal by the consumers, inter alia, contending that the stay of the operation of the impugned notification relieved the consumers of the obligation to pay the revised tariffs/rates and consequently additional charges for late payment, if any. Reliance in support of that submission was placed by the consumers upon the decision of this Court in Adoni Ginning Factory v. Secy. A.P. Electricity Board (1979) 4 SCC 560. Speaking for the Court, Honble B.P. Jeevan Reddy, J. held that the decision of this Court in Adoni Ginning Factorys case (supra) had no application to the case at hand nor could it be understood to mean that during the period covered by the stay no demand could be made against the consumers as no such issue has been raised before this Court in Adoni Ginning Factorys case (supra). This Court observed: "..............We, therefore, agree with the High Court that Adoni Ginning1 cannot be read as laying down the proposition that the grant of stay of a notification revising the electricity charges has the effect of relieving the consumers/petitioners of their obligation to pay late payment surcharge/interest on the amount withheld by them even when their writ petitions are dismissed ultimately. Holding otherwise would mean that even though the Electricity Board, who was the respondent in the writ petitions succeeded therein, is yet deprived of the late payment surcharge which is due to it under the tariff rules/regulations. It would be a case where the Board suffers prejudice on account of the orders of the court and for no fault of its. It succeeds in the writ petition and yet loses. The consumer files the writ petition, obtains stay of operation of the notification revising the rates and fails in his attack upon the validity of the notification and yet he is relieved of the obligation to pay the late payment surcharge for the period of stay, which he is liable to pay according to the statutory terms and conditions of supply -- which terms and conditions indeed form part of the contract of supply entered into by him with the Board. We do not think that any such unfair and inequitable proposition can be sustained in law..........." 23. This Court further clarified that the terms in which the prayer in the stay application was made by the consumers did not determine the effect of the order issued by the Court in the writ petitions raising similar questions of law. The phraseology used in the prayer for interim orders could be materially different though in essence the relief may be similar. On a question of principle this Court held that the impugned order coming to an end upon dismissal of the substantive proceedings, it is the duty of the Court to put the parties in the same position as they would have occupied but for the interim orders of the Court for otherwise it would give rise to unjust results. This Court said: "..............It is equally well settled that an order of stay granted pending disposal of a writ petition/suit or other proceeding, comes to an end with the dismissal of the substantive proceeding and that it is the duty of the court in such a case to put the parties in the same position they would have been but for the interim orders of the court. Any other view would result in the act or order of the court prejudicing a party (Board in this case) for no fault of its and would also mean rewarding a writ petitioner in spite of his failure. We do not think that any such unjust consequence can be countenanced by the courts. As a matter of fact, the contention of the consumers herein, extended logically should mean that even the enhanced rates are also not payable for the period covered by the order of stay because the operation of the very notification revising/enhancing the tariff rates was stayed. Mercifully, no such argument was urged by the appellants. It is ununderstandable how the enhanced rates can be said to be payable but not the late payment surcharge thereon, when both the enhancement and the late payment surcharge are provided by the same notification - the operation of which was stayed..............." | 0[ds]10. There is, in our opinion, a basic fallacy in the analogy which the appellant draws between its case and the cases referred to above. What is overlooked by the appellant is the fact that the decision of this Court in the Kerala State Electricity Boards case (supra) has enforced the terms under which the supply of energy was made to the consumers in that case. Award of interest @ 18% p.a. is not an innovation of this Court. The consequence ofof the amount within the time stipulated was on the contrary prescribed in the tariff/conditions subject to which energy was supplied to MRF the consumer in that case. It would not, therefore, be correct to apply the tariff conditions relevant to that case to the case at hand where such conditions are materially different. It is on the contrary necessary to cull out the principle of law settled in the said case for application to the case at hand. This may require recapitulation of a few facts in the backdrop whereof the decision in the Kerala State Electricity Boards case (supra) was delivered.11. MRF was engaged in manufacturing automobile tubes and tread rubber in the State of Kerala. The company entered into an agreement with the Kerala State Electricity Board for supply of power to the factory set up by it. The agreement contained a provision for payment of power and energy supplied to the company by the Board within 15 days from the date of the receipt of the invoice by theThe agreement further provided that in the event of a default in the payment of the amount within the stipulated period, interest @ 18% p.a. or at such other rate as may be fixed by the Board from time to time would be chargeable.12. The Board revised the tariff for the electricity supplied by it in 1980, 1982 and 1984. These revisions were challenged by MRF in a writ petition filed before the High Court of Kerala, which was together with other similar petitions disposed of by a common order by which the revisions made by the Board were struck down. Consequently MRF Limited and other consumers became entitled to the refund of the excess amount paid by them pursuant to the revised tariffs. The High Court of Kerala directed the adjustment of such amounts towards future bills to be issued by the Board.13. Aggrieved by the order passed by the Kerala High Court the Board filed special leave petitions before this Court which were entertained by this Court and an interim order passed, inter alia, directing that pending disposal of the appeals before this Court, the refund of charges already collected shall remain stayed. It was further directed that the future charges would be collected to the extent of 50% only and the balance adjusted towards the past charges.14. The appeals filed by the Board were finally allowed by this Court by its judgment dated 26th August, 1986 upholding the validity of the revision of the tariffs by the Board. The inevitable conclusion flowing from that decision was that theand other consumers became liable to pay the amounts due on the basis of the revision of tariffs including those that had since been adjusted by them pursuant to the interim directions of this Court. Consequently, the Board raised a demand for the payment of the amount inclusive of interest @ 18% p.a. While the company did not challenge the liability to pay the excess amount pursuant to the revision that had been upheld by this Court it refused to pay the interest and challenged the demand to that extent before the High Court of Kerala in a writ petition filed before it. The Single Judge as also the Division Bench of the High Court in appeal held that thecould not be said to be in default for nonpayment of liability which did not factually exist at the relevant time and struck down the demand for payment of interest.15. The Electricity Board appealed to this Court against the said judgment of the High Court. Allowing the appeals preferred by the Board this Court took the view that while the consumers had no obligation to take notice of the revised tariffs and to make any payment on the basis thereof after the judgment of the High Court of Kerala till the said decision was reversed by this Court, yet no sooner the decision of this Court upheld the upward revision of the tariffs, the Boards entitlement to draw bills on the basis of the revisions and consequently enforce payment of such bills by the consumers revived with full force. This Court repelled the contention that the liability to pay the revised tariffs accrued only after the pronouncement of the judgment of this Court upholding the upward revision and not from any date prior to that. This Court held that once the upward revision was found to be valid and enforceable such revision would be effective from the date the revision was made, no matter such revision had remained unenforceable for some period on account of the decision of the High Court.Applying the above principle to the case before it this Court held that thes an ongoing business concernwho must have gainfully utilized the money saved on account of the decision of the High Court, in its commercial activities. The Court further held that the Board had to suffer financial loss because of the erroneous decision delivered by the High Court and that conforming to equity as well asprinciple of restitution the Board could claim interest @ 18% p.a. on the unpaid portion of the bill drawn on the basis of the revised tariffs to which the8. It is quite evident that this Court had upheld the claim for payment of interest @ 18% p.a. primarily because of the stipulation contained in the tariffs/agreement executed between the Board and the consumer providing for payment of interest at that rate in the event of delay in the payment/discharge of the bills raised against the consumer. It is not as though this Court had refused to enforce the stipulation contained in the tariffs providing for recovery of interest from the consumer if the latter failed to pay the amounts within the time stipulated. It is also manifest that this Court had in no uncertain terms held that even after the upward revisions of the tariffs had remained unenforceable for a certain period on account of erroneous judgment of the High Court, the moment the said judgment was set aside in appeal, the liability to pay revived with full force from the date the revisions were made effective. The very fact there was during the intervening period an erroneous decision of the High Court obliterating the revision in full or in part would make little difference in so far as the liability to pay the amount under the revised tariffs was concerned. So also the fact that the consumers were not deliberately in default on account of the judgment of the High Court did not affect the enforceability of the demand arising from the revised tariffs or the stipulation regarding payment of interest demanded on the same on account of theor delayed payment of the amount recoverable by the Board.19. Suffice it so say that the decision of this Court in the case of Kerala State Electricity Board (supra) does not grant any relief to a defaulting consumer once the demand is upheld nor does it interfere with the principle of restitution which would entitle the successful party to be relegated back to the position it would hold had there been no judgment adverse to it.20. Super added to all this is the fact that this Court was dealing with a case where the High Court had finally struck down the revised tariff, but the said decision was reversed in appeal. In the present case the appellant had obtained only an ad interim order of stay against the enforcement of the tariffs. There is a qualitative difference in the two situations. Even if one were to take a charitable view of the legal effect of any direction of the High Court, pending adjudication by the Court, cases in which the High Court finally held the tariffs to be bad would in our opinion stand on a different footing than cases where the party obtains an order granting interim protection to it. While there is an element of finality in the case of a final adjudication by a competent Court in so far as that Court is concerned, an interim order can be vacated at any stage. The interim order may not even prevent a prudent party from paying the charges according to the revised tariffs if it does not propose to take any chance and suffer recovery of an additional amount on account of theof the dues by the date stipulated for the purpose.Suffice it to say that the decision of this Court in Kerala State Electricity Boards case (supra) does not lend any support to thein its endeavour to avoid payment of the amount which became recoverable from it no sooner the judgment of the High Court was reversed in the earlier round of litigation upholding the revision of the tariffs.This Court further clarified that the terms in which the prayer in the stay application was made by the consumers did not determine the effect of the order issued by the Court in the writ petitions raising similar questions of law. The phraseology used in the prayer for interim orders could be materially different though in essence the relief may be similar. On a question of principle this Court held that the impugned order coming to an end upon dismissal of the substantive proceedings, it is the duty of the Court to put the parties in the same position as they would have occupied but for the interim orders of the Court for otherwise it would give rise to unjust results. | 0 | 5,163 | 1,746 | ### Instruction:
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has been wiped out from existence." 21. Suffice it to say that the decision of this Court in Kerala State Electricity Boards case (supra) does not lend any support to the appellant-company in its endeavour to avoid payment of the amount which became recoverable from it no sooner the judgment of the High Court was reversed in the earlier round of litigation upholding the revision of the tariffs. 22. That brings us to the decision of this Court in Kanoria Chemicals and Industries Ltd. and Ors. v. U.P. State Electricity Board and Ors. (1997) 5 SCC 772. That was also a case where the validity of a notification issued by the U.P. State Electricity Board revising the electricity rates/tariffs under Section 49 of the Electricity (Supply) Act, 1948 was challenged by the consumers. Interlocutory applications filed in the writ petitions for stay of the operation of the impugned notification were eventually dismissed by the High Court whereupon the consumers deposited the differential amount between the pre-revised and the revised electricity rates. Consumers did not, however, deposit the late payment surcharge "recoverable" in terms of Clause 7(b) of the notification. Notices of demand were, therefore, issued to the consumers which were challenged in a fresh batch of writ petitions filed by them. The main contention urged by the consumers before the High Court was that since the operation of the notification revising the tariffs had been stayed between 25th July, 1990 and 1st March, 1993, no late payment surcharge could be levied on the amount withheld by the petitioners under the orders of the Court, no matter the writ petitions were finally dismissed. That contention was rejected by a Division Bench of the High Court of Allahabad. The matter was then brought up to this Court in appeal by the consumers, inter alia, contending that the stay of the operation of the impugned notification relieved the consumers of the obligation to pay the revised tariffs/rates and consequently additional charges for late payment, if any. Reliance in support of that submission was placed by the consumers upon the decision of this Court in Adoni Ginning Factory v. Secy. A.P. Electricity Board (1979) 4 SCC 560. Speaking for the Court, Honble B.P. Jeevan Reddy, J. held that the decision of this Court in Adoni Ginning Factorys case (supra) had no application to the case at hand nor could it be understood to mean that during the period covered by the stay no demand could be made against the consumers as no such issue has been raised before this Court in Adoni Ginning Factorys case (supra). This Court observed: "..............We, therefore, agree with the High Court that Adoni Ginning1 cannot be read as laying down the proposition that the grant of stay of a notification revising the electricity charges has the effect of relieving the consumers/petitioners of their obligation to pay late payment surcharge/interest on the amount withheld by them even when their writ petitions are dismissed ultimately. Holding otherwise would mean that even though the Electricity Board, who was the respondent in the writ petitions succeeded therein, is yet deprived of the late payment surcharge which is due to it under the tariff rules/regulations. It would be a case where the Board suffers prejudice on account of the orders of the court and for no fault of its. It succeeds in the writ petition and yet loses. The consumer files the writ petition, obtains stay of operation of the notification revising the rates and fails in his attack upon the validity of the notification and yet he is relieved of the obligation to pay the late payment surcharge for the period of stay, which he is liable to pay according to the statutory terms and conditions of supply -- which terms and conditions indeed form part of the contract of supply entered into by him with the Board. We do not think that any such unfair and inequitable proposition can be sustained in law..........." 23. This Court further clarified that the terms in which the prayer in the stay application was made by the consumers did not determine the effect of the order issued by the Court in the writ petitions raising similar questions of law. The phraseology used in the prayer for interim orders could be materially different though in essence the relief may be similar. On a question of principle this Court held that the impugned order coming to an end upon dismissal of the substantive proceedings, it is the duty of the Court to put the parties in the same position as they would have occupied but for the interim orders of the Court for otherwise it would give rise to unjust results. This Court said: "..............It is equally well settled that an order of stay granted pending disposal of a writ petition/suit or other proceeding, comes to an end with the dismissal of the substantive proceeding and that it is the duty of the court in such a case to put the parties in the same position they would have been but for the interim orders of the court. Any other view would result in the act or order of the court prejudicing a party (Board in this case) for no fault of its and would also mean rewarding a writ petitioner in spite of his failure. We do not think that any such unjust consequence can be countenanced by the courts. As a matter of fact, the contention of the consumers herein, extended logically should mean that even the enhanced rates are also not payable for the period covered by the order of stay because the operation of the very notification revising/enhancing the tariff rates was stayed. Mercifully, no such argument was urged by the appellants. It is ununderstandable how the enhanced rates can be said to be payable but not the late payment surcharge thereon, when both the enhancement and the late payment surcharge are provided by the same notification - the operation of which was stayed..............."
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of interest.15. The Electricity Board appealed to this Court against the said judgment of the High Court. Allowing the appeals preferred by the Board this Court took the view that while the consumers had no obligation to take notice of the revised tariffs and to make any payment on the basis thereof after the judgment of the High Court of Kerala till the said decision was reversed by this Court, yet no sooner the decision of this Court upheld the upward revision of the tariffs, the Boards entitlement to draw bills on the basis of the revisions and consequently enforce payment of such bills by the consumers revived with full force. This Court repelled the contention that the liability to pay the revised tariffs accrued only after the pronouncement of the judgment of this Court upholding the upward revision and not from any date prior to that. This Court held that once the upward revision was found to be valid and enforceable such revision would be effective from the date the revision was made, no matter such revision had remained unenforceable for some period on account of the decision of the High Court.Applying the above principle to the case before it this Court held that thes an ongoing business concernwho must have gainfully utilized the money saved on account of the decision of the High Court, in its commercial activities. The Court further held that the Board had to suffer financial loss because of the erroneous decision delivered by the High Court and that conforming to equity as well asprinciple of restitution the Board could claim interest @ 18% p.a. on the unpaid portion of the bill drawn on the basis of the revised tariffs to which the8. It is quite evident that this Court had upheld the claim for payment of interest @ 18% p.a. primarily because of the stipulation contained in the tariffs/agreement executed between the Board and the consumer providing for payment of interest at that rate in the event of delay in the payment/discharge of the bills raised against the consumer. It is not as though this Court had refused to enforce the stipulation contained in the tariffs providing for recovery of interest from the consumer if the latter failed to pay the amounts within the time stipulated. It is also manifest that this Court had in no uncertain terms held that even after the upward revisions of the tariffs had remained unenforceable for a certain period on account of erroneous judgment of the High Court, the moment the said judgment was set aside in appeal, the liability to pay revived with full force from the date the revisions were made effective. The very fact there was during the intervening period an erroneous decision of the High Court obliterating the revision in full or in part would make little difference in so far as the liability to pay the amount under the revised tariffs was concerned. So also the fact that the consumers were not deliberately in default on account of the judgment of the High Court did not affect the enforceability of the demand arising from the revised tariffs or the stipulation regarding payment of interest demanded on the same on account of theor delayed payment of the amount recoverable by the Board.19. Suffice it so say that the decision of this Court in the case of Kerala State Electricity Board (supra) does not grant any relief to a defaulting consumer once the demand is upheld nor does it interfere with the principle of restitution which would entitle the successful party to be relegated back to the position it would hold had there been no judgment adverse to it.20. Super added to all this is the fact that this Court was dealing with a case where the High Court had finally struck down the revised tariff, but the said decision was reversed in appeal. In the present case the appellant had obtained only an ad interim order of stay against the enforcement of the tariffs. There is a qualitative difference in the two situations. Even if one were to take a charitable view of the legal effect of any direction of the High Court, pending adjudication by the Court, cases in which the High Court finally held the tariffs to be bad would in our opinion stand on a different footing than cases where the party obtains an order granting interim protection to it. While there is an element of finality in the case of a final adjudication by a competent Court in so far as that Court is concerned, an interim order can be vacated at any stage. The interim order may not even prevent a prudent party from paying the charges according to the revised tariffs if it does not propose to take any chance and suffer recovery of an additional amount on account of theof the dues by the date stipulated for the purpose.Suffice it to say that the decision of this Court in Kerala State Electricity Boards case (supra) does not lend any support to thein its endeavour to avoid payment of the amount which became recoverable from it no sooner the judgment of the High Court was reversed in the earlier round of litigation upholding the revision of the tariffs.This Court further clarified that the terms in which the prayer in the stay application was made by the consumers did not determine the effect of the order issued by the Court in the writ petitions raising similar questions of law. The phraseology used in the prayer for interim orders could be materially different though in essence the relief may be similar. On a question of principle this Court held that the impugned order coming to an end upon dismissal of the substantive proceedings, it is the duty of the Court to put the parties in the same position as they would have occupied but for the interim orders of the Court for otherwise it would give rise to unjust results.
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Commissioner of Income Tax, West Bengal Vs. B. K. Dhote | 1945, he had not visited any place in British India " at any time "In his statement before the Tribunal the assessee admitted that he had in his letter dated November 5, 1956, stated that, after his departure from British India, he had paid a few visits to British India which did not exceed seven days in any year. He, however, stated that he had visited British India " once or twice " and during his stay he was not in British India for more than two or three days on any single occasion. He admitted that he had visited Nagpur for two days in 1945, to attend the wedding of his brother and that he had again visited Nagpur in November-December, 1946, because of his mothers illness. He denied that he had visited Bombay in connection with his business. He admitted that an amount of Rs. 12, 000 was sent in cash to Indo-Europa Trading Company in connection with the purchase of machinery, but he claimed that the money was sent with his cashier, Patwardhan. Called upon to state whether he had any evidence to show how the money was sent to Indo-Europa Trading Company, the assessee stated that he " can call " Patwardhan and the Tribunal " can put questions " to Patwardhan. He asserted that he had no business transactions in Bombay in the year 1946. The Tribunal in its order observed " We have had the advantage of having had the assessee before us examined by the departmental representative with regard to the assessees contention that his visits to the taxable territory during the accounting years were casual. In this we had the advantage of noting the demeanour of the assessee while he was answering the questions. We are sorry to say that we were not very much satisfied with the way he was giving answers to the questions put both by the departmental representative and by us and we are constrained to say that the assessee was not speaking the truth. "After referring to the oral and documentary evidence, the Tribunal concluded " From the version of the assessees doing business in Hyderabad to the extent he has admittedly done, we hold that the assessees visits to the taxable territories were for his business and for some business in British India. " 4. Proof of a visit or visits in the relevant previous years to the taxable territory coupled with evidence of being in the taxable territory for three hundred and sixty-five days in the aggregate during the last four years preceding that previous year is not decisive of the status of the assessee as a resident in the previous year. It is open to the assessee still to prove that his visit or visits in the previous year were occasional or casual. In determining whether the visits are occasional or casual, the Tribunal has to consider the presence of the assessee in the taxable territory in relation to the object of the visit which must, in each case, be gathered from the circumstances in which the assessee paid the visit, and his conduct. Accidental presence in or a visit for a social purpose to the taxable territory may be regarded as occasional or casual, but a visit in connection with the business carried on by the assessee may not normally be regarded as occasional or casual 5. The assessee carried on the trade of a printer in Hyderabad. He had in connection with that trade to deal with business houses in Bombay ; this was admitted by the assessee. He had made remittances to Bombay in both the years---the first remittance was by a bank draft and the second in cash. The assessee denied that he visited Bombay during the two previous years, but that part of his testimony was disbelieved by the Tribunal 6. Mr. Chatterjee contended that the assessee had claimed that an amount of Rs. 12, 000 sent to Indo-Europa Trading Company, Bombay, though sent in cash, was delivered by Patwardhan, the assessees cashier, and that the Tribunal should have examined Patwardhan as a witness. But no request was made by the assessee to examine Patwardhan. The assessee merely stated that the Tribunal " can call Patwardhan and " can question him ".. The assessee did not produce his books of account, not even his bank pass books. In connection with the remittance of Rs. 10, 000 and Rs. 12, 000 in the two years, no correspondence was produced by the assessee. The Tribunal, on a consideration of statements made by him, the other evidence, and his conduct, came to the conclusion that the visits of the assessee were in connection with his business, and not social visits as claimed by him. It cannot be said that the Tribunal recorded its conclusion on no evidence or on irrelevant considerations or acted on conjectures or surmisesWe are, therefore, unable to agree with the answer to the second question recorded by the High Court. The answer recorded by the High Court on the second question will be discharged and an answer in the affirmative will be recorded on that question 7. The third question has not been answered by the High Court, and it need not be answered by us. The scope of the question is, having regard to the order of the Tribunal, obscure. If the visit of an assessee to the taxable territory is occasional or casual, obviously he is not a resident. If the question is intended to open an enquiry whether the visits of an assessee to the taxable territory in connection with his business may in certain circumstances be regarded as occasional or casual, we do not think it arises out of the order of the Tribunal and we do not propose to enter upon that enquiry. The third question does not arise out of the order of the Tribunal ; it does not relate to the facts of the case, and is again abstract and hypothetical | 1[ds]The Tribunal, on a consideration of statements made by him, the other evidence, and his conduct, came to the conclusion that the visits of the assessee were in connection with his business, and not social visits as claimed by him. It cannot be said that the Tribunal recorded its conclusion on no evidence or on irrelevant considerations or acted on conjectures or surmisesWe are, therefore, unable to agree with the answer to the second question recorded by the High Court. The answer recorded by the High Court on the second question will be discharged and an answer in the affirmative will be recorded on that question7. The third question has not been answered by the High Court, and it need not be answered by us. The scope of the question is, having regard to the order of the Tribunal, obscure. If the visit of an assessee to the taxable territory is occasional or casual, obviously he is not a resident. If the question is intended to open an enquiry whether the visits of an assessee to the taxable territory in connection with his business may in certain circumstances be regarded as occasional or casual, we do not think it arises out of the order of the Tribunal and we do not propose to enter upon that enquiry. The third question does not arise out of the order of the Tribunal ; it does not relate to the facts of the case, and is again abstract and hypothetical | 1 | 2,289 | 272 | ### Instruction:
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1945, he had not visited any place in British India " at any time "In his statement before the Tribunal the assessee admitted that he had in his letter dated November 5, 1956, stated that, after his departure from British India, he had paid a few visits to British India which did not exceed seven days in any year. He, however, stated that he had visited British India " once or twice " and during his stay he was not in British India for more than two or three days on any single occasion. He admitted that he had visited Nagpur for two days in 1945, to attend the wedding of his brother and that he had again visited Nagpur in November-December, 1946, because of his mothers illness. He denied that he had visited Bombay in connection with his business. He admitted that an amount of Rs. 12, 000 was sent in cash to Indo-Europa Trading Company in connection with the purchase of machinery, but he claimed that the money was sent with his cashier, Patwardhan. Called upon to state whether he had any evidence to show how the money was sent to Indo-Europa Trading Company, the assessee stated that he " can call " Patwardhan and the Tribunal " can put questions " to Patwardhan. He asserted that he had no business transactions in Bombay in the year 1946. The Tribunal in its order observed " We have had the advantage of having had the assessee before us examined by the departmental representative with regard to the assessees contention that his visits to the taxable territory during the accounting years were casual. In this we had the advantage of noting the demeanour of the assessee while he was answering the questions. We are sorry to say that we were not very much satisfied with the way he was giving answers to the questions put both by the departmental representative and by us and we are constrained to say that the assessee was not speaking the truth. "After referring to the oral and documentary evidence, the Tribunal concluded " From the version of the assessees doing business in Hyderabad to the extent he has admittedly done, we hold that the assessees visits to the taxable territories were for his business and for some business in British India. " 4. Proof of a visit or visits in the relevant previous years to the taxable territory coupled with evidence of being in the taxable territory for three hundred and sixty-five days in the aggregate during the last four years preceding that previous year is not decisive of the status of the assessee as a resident in the previous year. It is open to the assessee still to prove that his visit or visits in the previous year were occasional or casual. In determining whether the visits are occasional or casual, the Tribunal has to consider the presence of the assessee in the taxable territory in relation to the object of the visit which must, in each case, be gathered from the circumstances in which the assessee paid the visit, and his conduct. Accidental presence in or a visit for a social purpose to the taxable territory may be regarded as occasional or casual, but a visit in connection with the business carried on by the assessee may not normally be regarded as occasional or casual 5. The assessee carried on the trade of a printer in Hyderabad. He had in connection with that trade to deal with business houses in Bombay ; this was admitted by the assessee. He had made remittances to Bombay in both the years---the first remittance was by a bank draft and the second in cash. The assessee denied that he visited Bombay during the two previous years, but that part of his testimony was disbelieved by the Tribunal 6. Mr. Chatterjee contended that the assessee had claimed that an amount of Rs. 12, 000 sent to Indo-Europa Trading Company, Bombay, though sent in cash, was delivered by Patwardhan, the assessees cashier, and that the Tribunal should have examined Patwardhan as a witness. But no request was made by the assessee to examine Patwardhan. The assessee merely stated that the Tribunal " can call Patwardhan and " can question him ".. The assessee did not produce his books of account, not even his bank pass books. In connection with the remittance of Rs. 10, 000 and Rs. 12, 000 in the two years, no correspondence was produced by the assessee. The Tribunal, on a consideration of statements made by him, the other evidence, and his conduct, came to the conclusion that the visits of the assessee were in connection with his business, and not social visits as claimed by him. It cannot be said that the Tribunal recorded its conclusion on no evidence or on irrelevant considerations or acted on conjectures or surmisesWe are, therefore, unable to agree with the answer to the second question recorded by the High Court. The answer recorded by the High Court on the second question will be discharged and an answer in the affirmative will be recorded on that question 7. The third question has not been answered by the High Court, and it need not be answered by us. The scope of the question is, having regard to the order of the Tribunal, obscure. If the visit of an assessee to the taxable territory is occasional or casual, obviously he is not a resident. If the question is intended to open an enquiry whether the visits of an assessee to the taxable territory in connection with his business may in certain circumstances be regarded as occasional or casual, we do not think it arises out of the order of the Tribunal and we do not propose to enter upon that enquiry. The third question does not arise out of the order of the Tribunal ; it does not relate to the facts of the case, and is again abstract and hypothetical
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The Tribunal, on a consideration of statements made by him, the other evidence, and his conduct, came to the conclusion that the visits of the assessee were in connection with his business, and not social visits as claimed by him. It cannot be said that the Tribunal recorded its conclusion on no evidence or on irrelevant considerations or acted on conjectures or surmisesWe are, therefore, unable to agree with the answer to the second question recorded by the High Court. The answer recorded by the High Court on the second question will be discharged and an answer in the affirmative will be recorded on that question7. The third question has not been answered by the High Court, and it need not be answered by us. The scope of the question is, having regard to the order of the Tribunal, obscure. If the visit of an assessee to the taxable territory is occasional or casual, obviously he is not a resident. If the question is intended to open an enquiry whether the visits of an assessee to the taxable territory in connection with his business may in certain circumstances be regarded as occasional or casual, we do not think it arises out of the order of the Tribunal and we do not propose to enter upon that enquiry. The third question does not arise out of the order of the Tribunal ; it does not relate to the facts of the case, and is again abstract and hypothetical
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Union of India & Ors Vs. Amrita Sinha | appointment on the ground that the respondent was drawing a monthly pension of Rs 8,265 on the date of consideration of the case was not justifiable as pension is paid for the service rendered by a deceased employee. Moreover, the Tribunal noted that the quantum of pension would stand reduced with effect from 7 January 2018 to Rs 4,959 per month and since the deceased employee had died due to a terminal illness, the family might be in debt and might have sold the property for his treatment, while, at the same time, observing that it was not going into those aspects. On this basis, the letter of rejection was quashed and the appellants were directed to reconsider the case. The High Court, while affirming the judgment of the Tribunal, has held that the authorities have erred in taking into account the family pension in the monthly income, since this was an ad hoc income earned by the respondent, instead of considering the regular pension which would be earned with effect from 7 January 2018. 7. We have heard Ms Madhavi Divan, Additional Solicitor General appearing on behalf of the appellants and Mr Rabin Majumder, Counsel appearing on behalf of the respondent. 8. Ms Madhavi Divan submitted that the case of the respondent was considered strictly within the parameters of the OM and merit points were assigned. It has been urged that the authorities were justified in taking into account the family pension which was being earned as on the date of the consideration of the application and the fact that the pensionary payments would be reduced after a lapse of ten years would not be a ground to reassign the merit points in accordance with the Scheme. That apart, it was urged that the claim of the respondent had already been rejected on 17 February 2011 and even after a fresh claim was made for compassionate appointment, it was evaluated in terms of the Policy and the respondent was found not to be entitled to appointment on a compassionate basis. 9. On the other hand, it has been submitted on behalf of the respondent that the case of the respondent was that the merit points which were assigned to her were incorrectly computed having due regard to the fact that the family pension of Rs 8,265 per month which became payable from 7 January 2008 would be reassessed at Rs 4,959 per month with effect from 7 January 2018. Mr Rabin Majumder placed reliance on the judgment of the Tribunal and has urged that having due regard to the financial condition of the respondent, the Court may not interfere with the judgment of the Tribunal on humanitarian grounds. 10. While assessing the rival submissions, it becomes necessary, at the outset, to consider the reasons which weighed with the Tribunal since it is the view of the Tribunal which has been held not to suffer from error by the High Court. Under the policy document, which embodies the Scheme for considering cases for compassionate appointment, points are awarded under diverse heads. The monthly pension which was payable to the respondent was required to be taken into account in the award of merit points. The Tribunal, however, came to the conclusion that pension is paid for past service rendered by the employee and, hence, denial of compassionate appointment on that basis was not justifiable. This reasoning of the Tribunal is fallacious. Undoubtedly, pension is not an act of bounty, but is towards the service which has been rendered by an employee. However, in evaluating a claim for compassionate appointment, it is open to the authorities to evaluate the financial position of the family upon the death while in service. Compassionate appointment is not a vested right. It is provided in order to enable a family to tide over a financial crisis caused by the death of its wage-earner while in service. If the scheme requires that the family pension must be taken into account in evaluating the merits an application, it has to be followed. 11. In the present case, the family pension which was payable as on the date of the consideration of the application has been taken into account. The fact that the pension would be up for revision in terms of the policy after a decade was not a reason to discard the pensionary payment which was being made towards family pension on the date of the consideration of the application for compassionate appointment. 12. Compassionate appointment is not a matter of right, but is to enable the family to tide over an immediate crisis which may result from the death of the employee. If the policy of the government envisages that the family pension would be paid for a ten years after which it would have to be modified, it cannot be said that by taking into account the present pensionary payment, the authorities have considered an extraneous circumstance. The same criterion is applied even handedly to all applicants seeking compassionate appointment. 13. The High Court has affirmed the view of the Tribunal by coming to the conclusion that the payment which was being made to the respondent was ad hoc in nature and was wrongly considered by the authorities while awarding merit points. This line of reasoning of the High Court is equally erroneous as that of the Tribunal. The payment of the family pension was not an ad hoc amount, but, was evidently in accordance with the applicable service rules. The application of the respondent was initially rejected in 2011 and was, thereafter, again reconsidered in 2014. Absent a case of palpable arbitrariness, we are of the view that there was no reason for the High Court or the Tribunal to interfere with the evaluation which was conducted by the authorities in terms of the applicable guidelines. Moreover, we are clearly of the view that the grant of compassionate appointment would not be in accordance with the basic purpose and object of such a scheme. | 1[ds]Under the policy document, which embodies the Scheme for considering cases for compassionate appointment, points are awarded under diverse heads. The monthly pension which was payable to the respondent was required to be taken into account in the award of merit points. The Tribunal, however, came to the conclusion that pension is paid for past service rendered by the employee and, hence, denial of compassionate appointment on that basis was not justifiable. This reasoning of the Tribunal is fallacious. Undoubtedly, pension is not an act of bounty, but is towards the service which has been rendered by an employee. However, in evaluating a claim for compassionate appointment, it is open to the authorities to evaluate the financial position of the family upon the death while in service. Compassionate appointment is not a vested right. It is provided in order to enable a family to tide over a financial crisis caused by the death of its wage-earner while in service. If the scheme requires that the family pension must be taken into account in evaluating the merits an application, it has to be followed.11. In the present case, the family pension which was payable as on the date of the consideration of the application has been taken into account. The fact that the pension would be up for revision in terms of the policy after a decade was not a reason to discard the pensionary payment which was being made towards family pension on the date of the consideration of the application for compassionate appointment.12. Compassionate appointment is not a matter of right, but is to enable the family to tide over an immediate crisis which may result from the death of the employee. If the policy of the government envisages that the family pension would be paid for a ten years after which it would have to be modified, it cannot be said that by taking into account the present pensionary payment, the authorities have considered an extraneous circumstance. The same criterion is applied even handedly to all applicants seeking compassionate appointment.13. The High Court has affirmed the view of the Tribunal by coming to the conclusion that the payment which was being made to the respondent was ad hoc in nature and was wrongly considered by the authorities while awarding merit points. This line of reasoning of the High Court is equally erroneous as that of the Tribunal. The payment of the family pension was not an ad hoc amount, but, was evidently in accordance with the applicable service rules. The application of the respondent was initially rejected in 2011 and was, thereafter, again reconsidered in 2014. Absent a case of palpable arbitrariness, we are of the view that there was no reason for the High Court or the Tribunal to interfere with the evaluation which was conducted by the authorities in terms of the applicable guidelines. Moreover, we are clearly of the view that the grant of compassionate appointment would not be in accordance with the basic purpose and object of such a scheme. | 1 | 1,525 | 552 | ### 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:
appointment on the ground that the respondent was drawing a monthly pension of Rs 8,265 on the date of consideration of the case was not justifiable as pension is paid for the service rendered by a deceased employee. Moreover, the Tribunal noted that the quantum of pension would stand reduced with effect from 7 January 2018 to Rs 4,959 per month and since the deceased employee had died due to a terminal illness, the family might be in debt and might have sold the property for his treatment, while, at the same time, observing that it was not going into those aspects. On this basis, the letter of rejection was quashed and the appellants were directed to reconsider the case. The High Court, while affirming the judgment of the Tribunal, has held that the authorities have erred in taking into account the family pension in the monthly income, since this was an ad hoc income earned by the respondent, instead of considering the regular pension which would be earned with effect from 7 January 2018. 7. We have heard Ms Madhavi Divan, Additional Solicitor General appearing on behalf of the appellants and Mr Rabin Majumder, Counsel appearing on behalf of the respondent. 8. Ms Madhavi Divan submitted that the case of the respondent was considered strictly within the parameters of the OM and merit points were assigned. It has been urged that the authorities were justified in taking into account the family pension which was being earned as on the date of the consideration of the application and the fact that the pensionary payments would be reduced after a lapse of ten years would not be a ground to reassign the merit points in accordance with the Scheme. That apart, it was urged that the claim of the respondent had already been rejected on 17 February 2011 and even after a fresh claim was made for compassionate appointment, it was evaluated in terms of the Policy and the respondent was found not to be entitled to appointment on a compassionate basis. 9. On the other hand, it has been submitted on behalf of the respondent that the case of the respondent was that the merit points which were assigned to her were incorrectly computed having due regard to the fact that the family pension of Rs 8,265 per month which became payable from 7 January 2008 would be reassessed at Rs 4,959 per month with effect from 7 January 2018. Mr Rabin Majumder placed reliance on the judgment of the Tribunal and has urged that having due regard to the financial condition of the respondent, the Court may not interfere with the judgment of the Tribunal on humanitarian grounds. 10. While assessing the rival submissions, it becomes necessary, at the outset, to consider the reasons which weighed with the Tribunal since it is the view of the Tribunal which has been held not to suffer from error by the High Court. Under the policy document, which embodies the Scheme for considering cases for compassionate appointment, points are awarded under diverse heads. The monthly pension which was payable to the respondent was required to be taken into account in the award of merit points. The Tribunal, however, came to the conclusion that pension is paid for past service rendered by the employee and, hence, denial of compassionate appointment on that basis was not justifiable. This reasoning of the Tribunal is fallacious. Undoubtedly, pension is not an act of bounty, but is towards the service which has been rendered by an employee. However, in evaluating a claim for compassionate appointment, it is open to the authorities to evaluate the financial position of the family upon the death while in service. Compassionate appointment is not a vested right. It is provided in order to enable a family to tide over a financial crisis caused by the death of its wage-earner while in service. If the scheme requires that the family pension must be taken into account in evaluating the merits an application, it has to be followed. 11. In the present case, the family pension which was payable as on the date of the consideration of the application has been taken into account. The fact that the pension would be up for revision in terms of the policy after a decade was not a reason to discard the pensionary payment which was being made towards family pension on the date of the consideration of the application for compassionate appointment. 12. Compassionate appointment is not a matter of right, but is to enable the family to tide over an immediate crisis which may result from the death of the employee. If the policy of the government envisages that the family pension would be paid for a ten years after which it would have to be modified, it cannot be said that by taking into account the present pensionary payment, the authorities have considered an extraneous circumstance. The same criterion is applied even handedly to all applicants seeking compassionate appointment. 13. The High Court has affirmed the view of the Tribunal by coming to the conclusion that the payment which was being made to the respondent was ad hoc in nature and was wrongly considered by the authorities while awarding merit points. This line of reasoning of the High Court is equally erroneous as that of the Tribunal. The payment of the family pension was not an ad hoc amount, but, was evidently in accordance with the applicable service rules. The application of the respondent was initially rejected in 2011 and was, thereafter, again reconsidered in 2014. Absent a case of palpable arbitrariness, we are of the view that there was no reason for the High Court or the Tribunal to interfere with the evaluation which was conducted by the authorities in terms of the applicable guidelines. Moreover, we are clearly of the view that the grant of compassionate appointment would not be in accordance with the basic purpose and object of such a scheme.
### Response:
1
### Explanation:
Under the policy document, which embodies the Scheme for considering cases for compassionate appointment, points are awarded under diverse heads. The monthly pension which was payable to the respondent was required to be taken into account in the award of merit points. The Tribunal, however, came to the conclusion that pension is paid for past service rendered by the employee and, hence, denial of compassionate appointment on that basis was not justifiable. This reasoning of the Tribunal is fallacious. Undoubtedly, pension is not an act of bounty, but is towards the service which has been rendered by an employee. However, in evaluating a claim for compassionate appointment, it is open to the authorities to evaluate the financial position of the family upon the death while in service. Compassionate appointment is not a vested right. It is provided in order to enable a family to tide over a financial crisis caused by the death of its wage-earner while in service. If the scheme requires that the family pension must be taken into account in evaluating the merits an application, it has to be followed.11. In the present case, the family pension which was payable as on the date of the consideration of the application has been taken into account. The fact that the pension would be up for revision in terms of the policy after a decade was not a reason to discard the pensionary payment which was being made towards family pension on the date of the consideration of the application for compassionate appointment.12. Compassionate appointment is not a matter of right, but is to enable the family to tide over an immediate crisis which may result from the death of the employee. If the policy of the government envisages that the family pension would be paid for a ten years after which it would have to be modified, it cannot be said that by taking into account the present pensionary payment, the authorities have considered an extraneous circumstance. The same criterion is applied even handedly to all applicants seeking compassionate appointment.13. The High Court has affirmed the view of the Tribunal by coming to the conclusion that the payment which was being made to the respondent was ad hoc in nature and was wrongly considered by the authorities while awarding merit points. This line of reasoning of the High Court is equally erroneous as that of the Tribunal. The payment of the family pension was not an ad hoc amount, but, was evidently in accordance with the applicable service rules. The application of the respondent was initially rejected in 2011 and was, thereafter, again reconsidered in 2014. Absent a case of palpable arbitrariness, we are of the view that there was no reason for the High Court or the Tribunal to interfere with the evaluation which was conducted by the authorities in terms of the applicable guidelines. Moreover, we are clearly of the view that the grant of compassionate appointment would not be in accordance with the basic purpose and object of such a scheme.
|
Suresh Mohan Chopra Vs. Lakhi Prabh Dayal and Others | 1. Heard learned counsel for the parties 2. Special leave granted. The appeal is taken up for final hearing with the consent of learned counsel for the parties 3. The appellant filed a claim for compensation on account of injuries received by him in an accident which took place on November 30, 1977. On that date, the appellant was going on his scooter which met with an accident with a motorcycle which was being driven by respondent 1 and was owned by respondent 2. The Tribunal awarded a sum of Rs. 30, 000 as compensation to the appellant against respondents 1 and 2, namely, the driver and owner of the motorcycle as also against the New India Assurance Company Limited-respondent 3 with whom according to the appellant the motorcycle stood insured at the time of the accident4. Aggrieved by the award of the Tribunal, the Insurance Company preferred an appeal before the High Court which was allowed and the award as against the Insurance Company has been set aside. The High Court has taken the view that it had not been established that respondent 1 had a driving licence at the time of the accident and consequently the Insurance Company could not be held liable5. The appellant has challenged the judgment of the High Court in the present appeal on the ground that the finding of the Tribunal that respondent 1 had a driving licence at the relevant time could not in law, on the facts of the instant case, be reversed by the High Court 6. Having heard learned counsel for the parties, we are of the opinion that there is substance in the submission made by the learned counsel for the appellant. In the instant case, the driver-respondent 1 had been produced as its witness by the Insurance Company itself and he categorically stated that he had a driving licence at the relevant time issued by the Transport Authority at Rajpur Road in 1977. It is true that the driving licence itself was not produced by respondent I but his explanation in this regard was that the same being for one year only he had destroyed it after the expiry of that period. No evidence was produced to show that this explanation was wrong. Further, no other evidence was produced on behalf of the Insurance Company on which, admittedly, the burden off proof lay in support of the plea raised by it that respondent 1 had no driving licence at the relevant time on the basis of which it could be held that the said respondent did not have a driving licence. No record or even a certificate was produced from the Transport Authority indicating that in 1977 no licence was granted to respondent 1. In this state of evidence and particularly when the driver was a witness of the Insurance Company itself, there was no alternative for the Tribunal but to accept the statement of the driver that he had a licence at the relevant time and the High Court apparently committed an error of law in reversing the finding of the Tribunal simply because the driving licence was not produced | 1[ds]6. Having heard learned counsel for the parties, we are of the opinion that there is substance in the submission made by the learned counsel for the appellant. In the instant case, the1 had been produced as its witness by the Insurance Company itself and he categorically stated that he had a driving licence at the relevant time issued by the Transport Authority at Rajpur Road in 1977. It is true that the driving licence itself was not produced by respondent I but his explanation in this regard was that the same being for one year only he had destroyed it after the expiry of that period. No evidence was produced to show that this explanation was wrong. Further, no other evidence was produced on behalf of the Insurance Company on which, admittedly, the burden off proof lay in support of the plea raised by it that respondent 1 had no driving licence at the relevant time on the basis of which it could be held that the said respondent did not have a driving licence. No record or even a certificate was produced from the Transport Authority indicating that in 1977 no licence was granted to respondent 1. In this state of evidence and particularly when the driver was a witness of the Insurance Company itself, there was no alternative for the Tribunal but to accept the statement of the driver that he had a licence at the relevant time and the High Court apparently committed an error of law in reversing the finding of the Tribunal simply because the driving licence was not produced | 1 | 555 | 283 | ### 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:
1. Heard learned counsel for the parties 2. Special leave granted. The appeal is taken up for final hearing with the consent of learned counsel for the parties 3. The appellant filed a claim for compensation on account of injuries received by him in an accident which took place on November 30, 1977. On that date, the appellant was going on his scooter which met with an accident with a motorcycle which was being driven by respondent 1 and was owned by respondent 2. The Tribunal awarded a sum of Rs. 30, 000 as compensation to the appellant against respondents 1 and 2, namely, the driver and owner of the motorcycle as also against the New India Assurance Company Limited-respondent 3 with whom according to the appellant the motorcycle stood insured at the time of the accident4. Aggrieved by the award of the Tribunal, the Insurance Company preferred an appeal before the High Court which was allowed and the award as against the Insurance Company has been set aside. The High Court has taken the view that it had not been established that respondent 1 had a driving licence at the time of the accident and consequently the Insurance Company could not be held liable5. The appellant has challenged the judgment of the High Court in the present appeal on the ground that the finding of the Tribunal that respondent 1 had a driving licence at the relevant time could not in law, on the facts of the instant case, be reversed by the High Court 6. Having heard learned counsel for the parties, we are of the opinion that there is substance in the submission made by the learned counsel for the appellant. In the instant case, the driver-respondent 1 had been produced as its witness by the Insurance Company itself and he categorically stated that he had a driving licence at the relevant time issued by the Transport Authority at Rajpur Road in 1977. It is true that the driving licence itself was not produced by respondent I but his explanation in this regard was that the same being for one year only he had destroyed it after the expiry of that period. No evidence was produced to show that this explanation was wrong. Further, no other evidence was produced on behalf of the Insurance Company on which, admittedly, the burden off proof lay in support of the plea raised by it that respondent 1 had no driving licence at the relevant time on the basis of which it could be held that the said respondent did not have a driving licence. No record or even a certificate was produced from the Transport Authority indicating that in 1977 no licence was granted to respondent 1. In this state of evidence and particularly when the driver was a witness of the Insurance Company itself, there was no alternative for the Tribunal but to accept the statement of the driver that he had a licence at the relevant time and the High Court apparently committed an error of law in reversing the finding of the Tribunal simply because the driving licence was not produced
### Response:
1
### Explanation:
6. Having heard learned counsel for the parties, we are of the opinion that there is substance in the submission made by the learned counsel for the appellant. In the instant case, the1 had been produced as its witness by the Insurance Company itself and he categorically stated that he had a driving licence at the relevant time issued by the Transport Authority at Rajpur Road in 1977. It is true that the driving licence itself was not produced by respondent I but his explanation in this regard was that the same being for one year only he had destroyed it after the expiry of that period. No evidence was produced to show that this explanation was wrong. Further, no other evidence was produced on behalf of the Insurance Company on which, admittedly, the burden off proof lay in support of the plea raised by it that respondent 1 had no driving licence at the relevant time on the basis of which it could be held that the said respondent did not have a driving licence. No record or even a certificate was produced from the Transport Authority indicating that in 1977 no licence was granted to respondent 1. In this state of evidence and particularly when the driver was a witness of the Insurance Company itself, there was no alternative for the Tribunal but to accept the statement of the driver that he had a licence at the relevant time and the High Court apparently committed an error of law in reversing the finding of the Tribunal simply because the driving licence was not produced
|
Welath Tax Officer, Calicut Vs. C. K. Mammed Kayi (Since Deceased) Through His L.Rs. T.M.Poc | family, it would not automatically follow that the term individual occurring in s. 3 of the Wealth Tax Act 1957 would include a non-Hindu undivided family like a Mapilla Marumakkathayam Tarwad, but the question will have to be considered in the light of the scheme of the Wealth Tax Act itself. The enactment is intended to provide for the levy of wealth-tax; the general scheme thereof is to assess all persons who happen to possess or earn wealth beyond a particular limit fixed by the statute to wealth-tax and since the Act imposes a general tax on the entire wealth of the community the presumption would be of equality of incidence rather than exemption of a few. Secondly, the term individual under s. 13 (2) of the General Clauses Act, 1897 can be read in plural and as such would include a body or group of individuals like a Mapilla Tarwad. Thirdly, there is no warrant for suggesting that the two terms individual and Hindu undivided family have been used in anti-thesis with each other, for s. 3 being the charging provision is merely concerned with specifying different assessable units for purposes of assessment of wealth and imposition of the levy; it cannot be disputed that the Legislature can select persons, properties, transactions and objects for the imposition of a levy and for that purpose classify as many different assessing units as it could reasonably think necessary and this is how three assessable units namely, individual, Hindu undivided family and company (which was later omitted) have come to be specified in s. 3. In our view the specific mention of Hindu undivided family in the section does not result in the exclusion of group of individuals who only form a unit by reason of their birth like a Mapilla Tarwad from the operation of the section. It is difficult to accept the argument that if term individual was intended to include joint families or undivided families it was redundant to specify Hindu undivided families.In the context of the argument that the term individual can refer only to a single human being it will be opposite to refer to what this Court has observed in Commissioner of Income Tax, Madhya Pradesh and Bhopal v. Sodra Devi. At page 620 of the report this Court has said:".... word individual has not been defined under the Act (Indian Income Tax Act 1922) and there is authority for the proposition that the word individual does not mean only a human being but is wide enough to include a group of persons forming a natural unit." 5. The contention that because there are references to wife, daughter and child of an individual in s. 4 the term individual in s. 3 should be construed as referable to a single human being cannot obviously be accepted. Similarly absence of provisions similar to those applicable to Hindu undivided family for assessing group of individuals who form non-Hindu undivided families [provisions like s. 5(1) (ii)] cannot affect or control in any manner the charging section. On construction, therefore, we are clearly of the view that the term individual in s. 3 includes a group of individuals like a Mapilla Tarwad. 6. Furthermore, we would like to point out that the aforesaid construction would be in accord with the legislative practice obtaining in the taxing scheme in the country whereunder Parliament has always been treating and assessing Mapilla Marumakkathayam Tarwads in the status of individual under the various taxing statutes. In V. Venugopala Ravi Varma Rajah v. Union of India and Another (supra), a case arising under the Expenditure Tax Act (29 of 1957), the question for determination was whether s. 3 of that Act was violative of Art. 14 of the Constitution because a Hindu undivided family (specifically mentioned as a distinct assessing unit) governed by the Marumakkathayam Law had to pay tax at a higher rate by reason of the amalgamation of the expenditure of all the members of the family whereas a Mapilla undivided family was required to pay tax at a lo wer rate since the members of such family governed by the Marumakkathayam Law were liable to be taxed as individuals under the section and this Court answered the question in the negative. While doing so this Court pointed out how Parliament had bee n accustomed in enacting tax laws to make a distinction between a Hindu undivided family consisting of Hindus and undivided families of Mapillas and how for purposes of taxing statutes Mapilla Tarwads have always been regarded as individuals. The relevant observations in this behalf run as follows:"Under the taxing Acts the scheme of treating a Hindu Undivided Family has been adopted for a long time, e.g., the Indian Income-tax Act IX of 1869, Indian In come-tax Act IX of 1870, Indian Income-tax Act XII of 1871, Act VIII of 1872, Act II of 1886, Act VII of 1918, Act XI of 1922, Act 43 of 1961 have treated a Hindu Undivided Family as a distinct taxable entity. Similarly under the Wealth-tax 27 of 1957 and the Gift- tax Act 18 of 1958, the Hindu Undivided Family is made a unit of taxation. Under the Business Profits Tax Act, 21 of 1947 and the Excess Profits Tax Act, 1940 also the Hindu Undivided Family was ma de a unit of taxation. For the purposes of these Acts Mapilla Tarwads governed by the Marumakkathayam law have been regarded as individuals." (Emphasis supplied) 7. For all these reasons we hold that the term individual in s. 3 of the Act includes within its ambit Mapilla Marumakkathayam Tarwads and they are well within the purview of the taxing provisions of the enactment. Further, even after their inclusion in the term individual s. 3 of the Act would not be violative of Art. 14 for the same reasons for which s. 3 of the Expenditure Tax Act, 1957 has been held to be not so violative by this Court in V. Venugopalas case (supra). 8. | 1[ds]In our view the specific mention of Hindu undivided family in the section does not result in the exclusion of group of individuals who only form a unit by reason of their birth like a Mapilla Tarwad from the operation of the section. It is difficult to accept the argument that if term individual was intended to include joint families or undivided families it was redundant to specify Hindu undivided familiesThe contention that because there are references to wife, daughter and child of an individual in s. 4 the term individual in s. 3 should be construed as referable to a single human being cannot obviously be accepted. Similarly absence of provisions similar to those applicable to Hindu undivided family for assessing group of individuals who form non-Hindu undivided families [provisions like s. 5(1) (ii)] cannot affect or control in any manner the charging section. On construction, therefore, we are clearly of the view that the term individual in s. 3 includes a group of individuals like a Mapilla TarwadFurthermore, we would like to point out that the aforesaid construction would be in accord with the legislative practice obtaining in the taxing scheme in the country whereunder Parliament has always been treating and assessing Mapilla Marumakkathayam Tarwads in the status of individual under the various taxing statutes. In V. Venugopala Ravi Varma Rajah v. Union of India and Another (supra), a case arising under the Expenditure Tax Act (29 of 1957), the question for determination was whether s. 3 of that Act was violative of Art. 14 of the Constitution because a Hindu undivided family (specifically mentioned as a distinct assessing unit) governed by the Marumakkathayam Law had to pay tax at a higher rate by reason of the amalgamation of the expenditure of all the members of the family whereas a Mapilla undivided family was required to pay tax at a lo wer rate since the members of such family governed by the Marumakkathayam Law were liable to be taxed as individuals under the section and this Court answered the question in the negative. While doing so this Court pointed out how Parliament had bee n accustomed in enacting tax laws to make a distinction between a Hindu undivided family consisting of Hindus and undivided families of Mapillas and how for purposes of taxing statutes Mapilla Tarwads have always been regarded as individuals. The relevant observations in this behalf run as follows:"Under the taxing Acts the scheme of treating a Hindu Undivided Family has been adopted for a long time, e.g., the Indian Income-tax Act IX of 1869, Indian In come-tax Act IX of 1870, Indian Income-tax Act XII of 1871, Act VIII of 1872, Act II of 1886, Act VII of 1918, Act XI of 1922, Act 43 of 1961 have treated a Hindu Undivided Family as a distinct taxable entity. Similarly under the Wealth-tax 27 of 1957 and the Gift- tax Act 18 of 1958, the Hindu Undivided Family is made a unit of taxation. Under the Business Profits Tax Act, 21 of 1947 and the Excess Profits Tax Act, 1940 also the Hindu Undivided Family was ma de a unit of taxation. For the purposes of these Acts Mapilla Tarwads governed by the Marumakkathayam law have been regarded as individuals." (Emphasis supplied)For all these reasons we hold that the term individual in s. 3 of the Act includes within its ambit Mapilla Marumakkathayam Tarwads and they are well within the purview of the taxing provisions of the enactment. Further, even after their inclusion in the term individual s. 3 of the Act would not be violative of Art. 14 for the same reasons for which s. 3 of the Expenditure Tax Act, 1957 has been held to be not so violative by this Court in V. Venugopalas case (supra). | 1 | 3,162 | 695 | ### 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:
family, it would not automatically follow that the term individual occurring in s. 3 of the Wealth Tax Act 1957 would include a non-Hindu undivided family like a Mapilla Marumakkathayam Tarwad, but the question will have to be considered in the light of the scheme of the Wealth Tax Act itself. The enactment is intended to provide for the levy of wealth-tax; the general scheme thereof is to assess all persons who happen to possess or earn wealth beyond a particular limit fixed by the statute to wealth-tax and since the Act imposes a general tax on the entire wealth of the community the presumption would be of equality of incidence rather than exemption of a few. Secondly, the term individual under s. 13 (2) of the General Clauses Act, 1897 can be read in plural and as such would include a body or group of individuals like a Mapilla Tarwad. Thirdly, there is no warrant for suggesting that the two terms individual and Hindu undivided family have been used in anti-thesis with each other, for s. 3 being the charging provision is merely concerned with specifying different assessable units for purposes of assessment of wealth and imposition of the levy; it cannot be disputed that the Legislature can select persons, properties, transactions and objects for the imposition of a levy and for that purpose classify as many different assessing units as it could reasonably think necessary and this is how three assessable units namely, individual, Hindu undivided family and company (which was later omitted) have come to be specified in s. 3. In our view the specific mention of Hindu undivided family in the section does not result in the exclusion of group of individuals who only form a unit by reason of their birth like a Mapilla Tarwad from the operation of the section. It is difficult to accept the argument that if term individual was intended to include joint families or undivided families it was redundant to specify Hindu undivided families.In the context of the argument that the term individual can refer only to a single human being it will be opposite to refer to what this Court has observed in Commissioner of Income Tax, Madhya Pradesh and Bhopal v. Sodra Devi. At page 620 of the report this Court has said:".... word individual has not been defined under the Act (Indian Income Tax Act 1922) and there is authority for the proposition that the word individual does not mean only a human being but is wide enough to include a group of persons forming a natural unit." 5. The contention that because there are references to wife, daughter and child of an individual in s. 4 the term individual in s. 3 should be construed as referable to a single human being cannot obviously be accepted. Similarly absence of provisions similar to those applicable to Hindu undivided family for assessing group of individuals who form non-Hindu undivided families [provisions like s. 5(1) (ii)] cannot affect or control in any manner the charging section. On construction, therefore, we are clearly of the view that the term individual in s. 3 includes a group of individuals like a Mapilla Tarwad. 6. Furthermore, we would like to point out that the aforesaid construction would be in accord with the legislative practice obtaining in the taxing scheme in the country whereunder Parliament has always been treating and assessing Mapilla Marumakkathayam Tarwads in the status of individual under the various taxing statutes. In V. Venugopala Ravi Varma Rajah v. Union of India and Another (supra), a case arising under the Expenditure Tax Act (29 of 1957), the question for determination was whether s. 3 of that Act was violative of Art. 14 of the Constitution because a Hindu undivided family (specifically mentioned as a distinct assessing unit) governed by the Marumakkathayam Law had to pay tax at a higher rate by reason of the amalgamation of the expenditure of all the members of the family whereas a Mapilla undivided family was required to pay tax at a lo wer rate since the members of such family governed by the Marumakkathayam Law were liable to be taxed as individuals under the section and this Court answered the question in the negative. While doing so this Court pointed out how Parliament had bee n accustomed in enacting tax laws to make a distinction between a Hindu undivided family consisting of Hindus and undivided families of Mapillas and how for purposes of taxing statutes Mapilla Tarwads have always been regarded as individuals. The relevant observations in this behalf run as follows:"Under the taxing Acts the scheme of treating a Hindu Undivided Family has been adopted for a long time, e.g., the Indian Income-tax Act IX of 1869, Indian In come-tax Act IX of 1870, Indian Income-tax Act XII of 1871, Act VIII of 1872, Act II of 1886, Act VII of 1918, Act XI of 1922, Act 43 of 1961 have treated a Hindu Undivided Family as a distinct taxable entity. Similarly under the Wealth-tax 27 of 1957 and the Gift- tax Act 18 of 1958, the Hindu Undivided Family is made a unit of taxation. Under the Business Profits Tax Act, 21 of 1947 and the Excess Profits Tax Act, 1940 also the Hindu Undivided Family was ma de a unit of taxation. For the purposes of these Acts Mapilla Tarwads governed by the Marumakkathayam law have been regarded as individuals." (Emphasis supplied) 7. For all these reasons we hold that the term individual in s. 3 of the Act includes within its ambit Mapilla Marumakkathayam Tarwads and they are well within the purview of the taxing provisions of the enactment. Further, even after their inclusion in the term individual s. 3 of the Act would not be violative of Art. 14 for the same reasons for which s. 3 of the Expenditure Tax Act, 1957 has been held to be not so violative by this Court in V. Venugopalas case (supra). 8.
### Response:
1
### Explanation:
In our view the specific mention of Hindu undivided family in the section does not result in the exclusion of group of individuals who only form a unit by reason of their birth like a Mapilla Tarwad from the operation of the section. It is difficult to accept the argument that if term individual was intended to include joint families or undivided families it was redundant to specify Hindu undivided familiesThe contention that because there are references to wife, daughter and child of an individual in s. 4 the term individual in s. 3 should be construed as referable to a single human being cannot obviously be accepted. Similarly absence of provisions similar to those applicable to Hindu undivided family for assessing group of individuals who form non-Hindu undivided families [provisions like s. 5(1) (ii)] cannot affect or control in any manner the charging section. On construction, therefore, we are clearly of the view that the term individual in s. 3 includes a group of individuals like a Mapilla TarwadFurthermore, we would like to point out that the aforesaid construction would be in accord with the legislative practice obtaining in the taxing scheme in the country whereunder Parliament has always been treating and assessing Mapilla Marumakkathayam Tarwads in the status of individual under the various taxing statutes. In V. Venugopala Ravi Varma Rajah v. Union of India and Another (supra), a case arising under the Expenditure Tax Act (29 of 1957), the question for determination was whether s. 3 of that Act was violative of Art. 14 of the Constitution because a Hindu undivided family (specifically mentioned as a distinct assessing unit) governed by the Marumakkathayam Law had to pay tax at a higher rate by reason of the amalgamation of the expenditure of all the members of the family whereas a Mapilla undivided family was required to pay tax at a lo wer rate since the members of such family governed by the Marumakkathayam Law were liable to be taxed as individuals under the section and this Court answered the question in the negative. While doing so this Court pointed out how Parliament had bee n accustomed in enacting tax laws to make a distinction between a Hindu undivided family consisting of Hindus and undivided families of Mapillas and how for purposes of taxing statutes Mapilla Tarwads have always been regarded as individuals. The relevant observations in this behalf run as follows:"Under the taxing Acts the scheme of treating a Hindu Undivided Family has been adopted for a long time, e.g., the Indian Income-tax Act IX of 1869, Indian In come-tax Act IX of 1870, Indian Income-tax Act XII of 1871, Act VIII of 1872, Act II of 1886, Act VII of 1918, Act XI of 1922, Act 43 of 1961 have treated a Hindu Undivided Family as a distinct taxable entity. Similarly under the Wealth-tax 27 of 1957 and the Gift- tax Act 18 of 1958, the Hindu Undivided Family is made a unit of taxation. Under the Business Profits Tax Act, 21 of 1947 and the Excess Profits Tax Act, 1940 also the Hindu Undivided Family was ma de a unit of taxation. For the purposes of these Acts Mapilla Tarwads governed by the Marumakkathayam law have been regarded as individuals." (Emphasis supplied)For all these reasons we hold that the term individual in s. 3 of the Act includes within its ambit Mapilla Marumakkathayam Tarwads and they are well within the purview of the taxing provisions of the enactment. Further, even after their inclusion in the term individual s. 3 of the Act would not be violative of Art. 14 for the same reasons for which s. 3 of the Expenditure Tax Act, 1957 has been held to be not so violative by this Court in V. Venugopalas case (supra).
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Motor Owners Insurance Co. Ltd Vs. Jadavji Keshavji Modi & Ors | 2, 000 each, in the case of Bachan Singh and Narinder Nath. In view of the limit on the insurers liability in respect of each passenger, the argument on the construction of the words any one accident had no relevance and was, therefore, neither made nor considered by the court. Different considerations may arise under cl. (b), as amended by Act 56 of 1969, but we do not propose to make any observations on that aspect of the matter, since it does not directly arise before us. 22. It was suggested that the interpretation which we are putting on s. 95(2)(a) will create difficulties in cases where the insured also incurs liability under the Workmens Compensation Act, 1923, in respect of the death of, or bodily injury to, employees (other than the driver), not exceeding six in number, being carried in the vehicle. It is true that under s. 95(2)(a), the liability of the insured and, therefore, the insurers indemnity, includes the liability of the aforesaid discription under the Act of 1923. But that is a matter of apportionment which may require a rateable deduction to be made from the compensation payable to each victim, depending upon the quantum of compensation payable under the Act of 1923 to employees carried in a goods vehicle. 23. We cannot part with this case without impressing upon the Government, once again, the urgent need to provide by law for the payment of reasonable amounts of compensation, without contest, to victims of road accidents. We find that road accidents involving passengers travelling by rail or public buses are usually followed by an official announcement of payment of ex gratia sums to victims, varying between five hundred and two thousand rupees or so. That is a niggardly recognition of the States obligation to its people, particularly so when the frequency of accidents involving the public transport system has increased beyond believable limits. The newspaper reports of August and September, 1981, regarding deaths and injuries caused in such accidents have a sorry story to tell. But we need not reproduce figures depending upon newspaper assessment because the newspapers of September 18, 1981, carry the report of a statement made by the Union Minister of State for Shipping and Transport before the North Zone goods transport operators that 20, 000 persons were killed and 1.5 lakh were injured in highway accidents during 1980. We wonder whether adequate compensation was paid to this large mass of suffering humanity. In any event, the need to provide by law for the payment of adequate compensation without contest to such victims can no longer be denied or disputed. It was four years ago that this court sounded a warning and a reminder Smt. Manjusri Raha v. B.L. Gupta [1977] 2 SCR 944 ; AIR 1977 SC 1158. With the emergence of an ultra-modern age which has led to strides of progress in all spheres of life, we have switched from fast to faster vehicular traffic which has come as a boon to many, though sometimes in the case of some it has also proved to be a misfortune...... The time is ripe for serious consideration of creating no-fault liability. Having regard to the directive principles of State policy, the poverty of the ordinary run of victims of automobile accidents, the compulsory nature of insurance of motor vehicles, the nationalisation of general insurance companies and the expanding trend towards nationalisation of bus transport, the law of torts based on no-fault needs reform. ...... it is only just and fair that the Legislature should make a suitable provision so as to pay adequate compensation by properly evaluating the precious life of a citizen in its true perspective rather than devaluing human lives on the basis of an artificial mathematical formula. It is common knowledge that where a passenger travelling by a plane dies in an accident, he gets a compensation of Rs. 1, 00, 000 or like large sums, and yet when death comes to him not through a plane but through a motor vehicle he is entitled only to Rs. 2, 000. Does it indicate that the life of a passenger travelling by plane becomes more precious merely because he has chosen a particular conveyance and the value of his life is considerably reduced if he happens to choose a conveyance of a lesser value like a motor vehicle ? Such an invidious distinction is absolutely shocking to any judicial or social conscience and yet s. 95(2)(d) of the Motor Vehicles Act seems to suggest such a distinction. We hope and trust that our law-makers will give serious attention to this aspect of the matter and remove this serious lacuna in s. 95(2)(d) of the Motor Vehicles Act. We would also like to suggest that instead of limiting the liability of the Insurance Companies to a specified sum of money as representing the value of human life, the amount should be left to be determined by a court in the special circumstances of each case. We further hope our suggestions will be duly implemented and the observations of the highest court of the country do not become a mere pious wish. (Per Fazal Ali J., pp. 945, 946, 950, 951 of SCR). 24. These observations are still languishing in the cold storage of pious wishes. With the emergence of the General Insurance Corporation which has taken over general insurance business of all kinds, including motor vehicles insurance, it should be easy to give statutory recognition to the States obligation to compensate victims of road accidents promptly, adequately and without contest.We are happy to note that the Gujarat High Court, by its judgment under appeal, took a just, correct and realistic view of the matter by holding that, under the statutory policy, the appellant, insurance company, is liable to pay the full amount of compensation to the heirs of the driver of the car and to the passenger who was travelling in the car, each amount being less than Rs. 20, 000. 25. | 0[ds]We are concerned only with cl. (a) of s. 95(2) and that too, as it existed on February 1, 1966, when the collision between the car and the truck took place. We have extracted the other clauses of s. 95(2) in order to trace the legislative history of the section and to see whether the language used by the Legislature in other parts of the same section affords a comparative clue to the interpretation of the provision contained in cl. (a)Clause (a) as originally enacted in 1939, provided that the insurance policy must cover the liability in respect of third party risks up to the limit of twenty thousand rupees, where the vehicle is used or adapted to be used for the carriage of goods. By the amendment introduced by the Amendment Act, 100 of 1956, the wordswere added after the words. Clause (a), thus amended, read to say that where the vehicle is a goods vehicle, the policy of insurance shall cover the liability in regard to third party risks up to the limit of twenty thousand rupees in all. Whereas cl. (a) in its original form spoke of a vehicleused or adapted to be used for the carriage of goods, under the amendment of 1956, the clause was made applicable to cases where the vehicleis a goods vehicle. The other amendment introduced by the Act of 1956 was that the overall limit of twenty thousand rupees was expressed to include the liability arising under the Workmens Compensation Act, 1923, to the extent mentioned in the amendment. The amendment introduced by the Amendment Act, 56 of 1969, enhanced the liability under cl. (a) from twenty thousand rupees to fifty thousand rupees in all.Clause (b) of s. 95 applies to vehicles in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment. Under that clause as it stood originally in 1939, the liability was restricted to twenty thousand rupees in respect of persons other than passengers carried for hire or reward ; and to twenty thousand rupees in all in respect of passengers. The Amendment Act of 1956 did not make any change in cl. (b). But, the Amendment Act of 1969 enhanced the liability to the limit of fifty thousand rupees in all in respect of persons other than passengers carried for hire or reward. In respect of passengers, the liability was enhanced from twenty thousand rupees to fifty thousand rupees in all, seventy-five thousand rupees in all and one lakh rupees in all, depending upon the registered capacity of the vehicle to carry passengersRelying on the judgment of the Full Bench of the Madras High Court, the Orissa High Court held that the liability of the insurance company was limited to rupees twenty thousand under s. 95(2)(a) of the Act. The involvement of more than one person in a single occurrence raises a different question for consideration under s. 95(2)(a) than the involvement of a single person in a single occurrence. In the latter case, it may be true to say that the liability of the insurer is limited to rupees twenty thousand under a statutory policy. In the former, the interpretation of the wordscomes into play and we have already expressed our view on the meaning of thosen the case before the Karnataka High Court in Sanjiva Shetty [1976] ACJ 261 ; AIR 1976 Kar. 146, a taxi and a car met with a collision, as a result of which two persons travelling in the taxi, the driver of the car and a boy called Bharatisha sitting on the roadside were injured. Before the High Court, was the claim of the driver of the car and the boy. A Division Bench of the High Court held that the total liability of the insurance company was limited to rupees twenty thousand in respect of the injuries suffered by them. The High Court apportioned the liability by directing the insurance company to pay Rs. 18, 730 to the boy and Rs. 1, 270 to the driver of the car. In view of our judgment in the instant case, the decision of the Karnataka High Court cannot be considered to be good lawSmt. Manjusri Raha v. B.L. Gupta [1977] 2 SCR 944 ; AIR 1977 SC 1158These observations are still languishing in the cold storage of pious wishes. With the emergence of the General Insurance Corporation which has taken over general insurance business of all kinds, including motor vehicles insurance, it should be easy to give statutory recognition to the States obligation to compensate victims of road accidents promptly, adequately and without contest.We are happy to note that the Gujarat High Court, by its judgment under appeal, took a just, correct and realistic view of the matter by holding that, under the statutory policy, the appellant, insurance company, is liable to pay the full amount of compensation to the heirs of the driver of the car and to the passenger who was travelling in the car, each amount being less than Rs. 20, 000Having given our anxious consideration to these contentions of Shri Sorabjee, which are not without plausibility, we have come to the conclusion that the construction canvassed by the learned counsel will lead to great injustice and absurdity and must, therefore, be eschewed, especially, since the words of s. 95(2) cannot, in the context in which they occur, be regarded as plain and unambiguous. We will first demonstrate the harsh and strange consequences which will flow out of the construction pressed upon us and we will then show why we consider that the material words of the section are of doubtful import. If, for example, two or three persons die in a collision between a car and a goods vehicle and two or three others are injured as a result of the negligence of the driver of the goods vehicle, the heirs of the deceased and the injured persons will together be entitled to twenty thousand rupees in all, no matter how serious the injuries and how grave the hardship to the heirs ensuing upon the loss of lives of those who perished in the collision. But there is a more flagrant injustice which one shall have to countenance if one were to accept the argument advanced on behalf of the appellant and it is this : If two persons of unequal economic status die in the kind of collision mentioned above, the heirs of the affluent victim will virtually monopolise the compensation by getting a lions share in it, thereby adding insult to the injury caused to the heirs of the indigent victim. The purpose of law is to alleviate, not augment, the sufferings of the people. It is well known that the award of compensation depends upon a variety of factors, including the extent of monetary deprivation to which the heirs of the deceased are subjected. Applying that criterion as one of the many variable criteria which are applied for fixing compensation in motor accident cases, the heirs of the affluent victim may have been awarded, say, a compensation of Rs. 90, 000. The heirs of the other victim who may have been just managing to keep his body and soul together will probably have received by that standard a compensation of, say, ten thousand rupees. The compensation awarded to these two groups of heirs shall have to be reduced rateably in the proportion of 9 : 1, in order to ensure that it does not exceed rupees twenty thousand. The result of this will be that the insurance company will be liable to pay a sum of Rs. 18, 000 to the heirs of the affluent person and Rs. 2, 000 to the heirs of the other person. The icy hand of death may have fallen in one stroke on two victims of disparate economic status, but, then, the arithmetic of the appellants argument will perpetuate the gross inequality between the two even after their death. We must avoid a construction which will produce such an unfair result, if we can do so without doing violence to the language of the section. The owner of the truck will undoubtedly be liable to pay the balance but common experience shows that the woes of the injured and of the heirs of those who perish in automobile accidents begin after they embark upon the adventure of execution proceedings. There are proverbial difficulties in proving ownership of goods vehicles, particularly if they are subject to ae agreement and truck owners are quite known for the ease with which they proclaim their insolvency. It is, therefore, no consolation that ther liability will fall on theh by common practice and the application of recognised rules of statutory construction, harsh consequences following upon an interpretation are not considered as the governing factor in the construction of a statute, unless its language is equivocal or ambiguous. If the language is plain and capable of one interpretation only, we will not be justified in reading into the words of the Act a meaning which does not follow naturally from the language used by the Legislature. It, therefore, becomes necessary to consider whether the language used by the Legislature in s. 95(2) of the Act admits of any doubt or difficulty or is capable of one interpretation onlyBut as we will presently show, the expressiondoes not disclose one meaning conclusively according to the laws of language. It, clearly, is capable of more than one meaning, introducing thereby an ambiguity which has to be resolved by resorting to theis susceptible of two equally reasonable meanings or interpretations. If a collision occurs between a car and a truck resulting in injuries to five persons, it is as much plausible to say that five persons were injured in one accident as it is to say that each of the five persons met with an accident. A bystander looking at the occurrence objectively will be right in saying that the truck and the car met with an accident or that they were concerned in one accident. On the other hand, a person looking at the occurrence subjectively, like the one who is injured in the collision, will say that he met with an accident. And so will each of the five persons who were injured. From their point of view, which is the relevant point of view,. In matters involving third party risks, it is subjective considerations which must prevail and the occurrence has to be looked at from the point of view of those who are immediately affected by it. If the matter is looked at from an objective point of view, the insurers liability will be limited to Rs. 20, 000 in respect of injuries caused to all the five persons considered en bloc as a single entity, since they were injured as a result of one single collision. On the other hand, if the matter is looked at subjectively as it ought to be, the insurers liability will extend to a sum of Rs. 20, 000 in respect of the injuries suffered by each one of the five persons, since each met with an accident, though during the course of the same transaction. A consideration of preponderating importance in a matter of this nature is not whether there was any one transaction which resulted in injuries to many but whether more than one person was injured, giving rise to more than one claim or cause of action, even if the injuries were caused in the course of one single transaction. If more than one person is injured during the course of the same transaction, each one of the persons has met with ane are, therefore, of the opinion that the ambiguity in the language used by the Legislature in the opening part of s. 95(2) and the doubt arising out of then of that language with the wordswhich occur in cl. (a), must be resolved by having regard to the underlying legislative purpose of the provisions contained in Chap. VIII of the Act which deals with third party risks. That is a sensitive process which has to accommodate the claims of the society as reflected in that purpose. Indeed, it is in this area of legislative ambiguities, unfortunately not receding, that courts have to fill gaps, clear doubts and mitigate hardships. In the words of judge Learned Handl v. Markham [1945] 148 F. 2dIt is one of the surest indexes of a mature and developed jurisprudence......... to remember that statutes always have some purpose or object to accomplish whose sympathetic and imaginative discovery is the surest guide to their meaning.There is no table of logarithms to guide or govern statutory construction in this area, which leaves a sufficient and desirable discretion for the judges to interpret laws in the light of their purpose, where the language used by thes does not yield to one and one meaning only. Considering the matter that way, we are of the opinion that it is appropriate to hold that the wordis used in the expressionfrom the point of view of the various claimants, each of whom is entitled to make a separate claim for the accident suffered by him and not from the point of view of the insurerIn the case before the Madras Full Bench, a person called Krishnaswami who was driving a car died as a result of a collision between his car and a goods vehicle. The Claims Tribunal dismissed the claim of the heirs of the deceased, but a Division Bench of the High Court took the view that compensation in the sum of Rs. 40, 000 would be payable to them. The Division Bench referred for consideration of the Full Bench the question whether on a true construction of cl. (a) of s. 95(2), the liability of the insurance company was limited to rupees twenty thousand. The Full Bench, overruling a previous decision of a Division Bench, answered this question in the affirmative. It is important to bear in mind that the case before the Madras High Court was in a material respect different from the case before us. The High Court had to consider the claim of one person only, since only one person had met with an accident. In the case before us, more than one person has been injured, which raises the question as regards the construction of the wordswhich occur in s. 95(2). That question did not arise in the Madras case and the decision, therefore, does not touch the question before us. Similarly, in the case before the Orissa High Court in Sabita Pati [1973] ACJ 319 , only one person was involved in the collision between a jeep and a goods vehicleIt was suggested that the interpretation which we are putting on s. 95(2)(a) will create difficulties in cases where the insured also incurs liability under the Workmens Compensation Act, 1923, in respect of the death of, or bodily injury to, employees (other than the driver), not exceeding six in number, being carried in the vehicle. It is true that under s. 95(2)(a), the liability of the insured and, therefore, the insurers indemnity, includes the liability of the aforesaid discription under the Act of 1923. But that is a matter of apportionment which may require a rateable deduction to be made from the compensation payable to each victim, depending upon the quantum of compensation payable under the Act of 1923 to employees carried in a goodse cannot part with this case without impressing upon the Government, once again, the urgent need to provide by law for the payment of reasonable amounts of compensation, without contest, to victims of road accidents. We find that road accidents involving passengers travelling by rail or public buses are usually followed by an official announcement of payment of ex gratia sums to victims, varying between five hundred and two thousand rupees or so. That is a niggardly recognition of the States obligation to its people, particularly so when the frequency of accidents involving the public transport system has increased beyond believable limits. The newspaper reports of August and September, 1981, regarding deaths and injuries caused in such accidents have a sorry story to tell. But we need not reproduce figures depending upon newspaper assessment because the newspapers of September 18, 1981, carry the report of a statement made by the Union Minister of State for Shipping and Transport before the North Zone goods transport operators that 20, 000 persons were killed and 1.5 lakh were injured in highway accidents during 1980. We wonder whether adequate compensation was paid to this large mass of suffering humanity. In any event, the need to provide by law for the payment of adequate compensation without contest to such victims can no longer be denied or disputed. It was four years ago that this court sounded a warning and a reminderSmt. Manjusri Raha v. B.L. Gupta [1977] 2 SCR 944 ; AIR 1977 SC | 0 | 8,187 | 3,149 | ### 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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2, 000 each, in the case of Bachan Singh and Narinder Nath. In view of the limit on the insurers liability in respect of each passenger, the argument on the construction of the words any one accident had no relevance and was, therefore, neither made nor considered by the court. Different considerations may arise under cl. (b), as amended by Act 56 of 1969, but we do not propose to make any observations on that aspect of the matter, since it does not directly arise before us. 22. It was suggested that the interpretation which we are putting on s. 95(2)(a) will create difficulties in cases where the insured also incurs liability under the Workmens Compensation Act, 1923, in respect of the death of, or bodily injury to, employees (other than the driver), not exceeding six in number, being carried in the vehicle. It is true that under s. 95(2)(a), the liability of the insured and, therefore, the insurers indemnity, includes the liability of the aforesaid discription under the Act of 1923. But that is a matter of apportionment which may require a rateable deduction to be made from the compensation payable to each victim, depending upon the quantum of compensation payable under the Act of 1923 to employees carried in a goods vehicle. 23. We cannot part with this case without impressing upon the Government, once again, the urgent need to provide by law for the payment of reasonable amounts of compensation, without contest, to victims of road accidents. We find that road accidents involving passengers travelling by rail or public buses are usually followed by an official announcement of payment of ex gratia sums to victims, varying between five hundred and two thousand rupees or so. That is a niggardly recognition of the States obligation to its people, particularly so when the frequency of accidents involving the public transport system has increased beyond believable limits. The newspaper reports of August and September, 1981, regarding deaths and injuries caused in such accidents have a sorry story to tell. But we need not reproduce figures depending upon newspaper assessment because the newspapers of September 18, 1981, carry the report of a statement made by the Union Minister of State for Shipping and Transport before the North Zone goods transport operators that 20, 000 persons were killed and 1.5 lakh were injured in highway accidents during 1980. We wonder whether adequate compensation was paid to this large mass of suffering humanity. In any event, the need to provide by law for the payment of adequate compensation without contest to such victims can no longer be denied or disputed. It was four years ago that this court sounded a warning and a reminder Smt. Manjusri Raha v. B.L. Gupta [1977] 2 SCR 944 ; AIR 1977 SC 1158. With the emergence of an ultra-modern age which has led to strides of progress in all spheres of life, we have switched from fast to faster vehicular traffic which has come as a boon to many, though sometimes in the case of some it has also proved to be a misfortune...... The time is ripe for serious consideration of creating no-fault liability. Having regard to the directive principles of State policy, the poverty of the ordinary run of victims of automobile accidents, the compulsory nature of insurance of motor vehicles, the nationalisation of general insurance companies and the expanding trend towards nationalisation of bus transport, the law of torts based on no-fault needs reform. ...... it is only just and fair that the Legislature should make a suitable provision so as to pay adequate compensation by properly evaluating the precious life of a citizen in its true perspective rather than devaluing human lives on the basis of an artificial mathematical formula. It is common knowledge that where a passenger travelling by a plane dies in an accident, he gets a compensation of Rs. 1, 00, 000 or like large sums, and yet when death comes to him not through a plane but through a motor vehicle he is entitled only to Rs. 2, 000. Does it indicate that the life of a passenger travelling by plane becomes more precious merely because he has chosen a particular conveyance and the value of his life is considerably reduced if he happens to choose a conveyance of a lesser value like a motor vehicle ? Such an invidious distinction is absolutely shocking to any judicial or social conscience and yet s. 95(2)(d) of the Motor Vehicles Act seems to suggest such a distinction. We hope and trust that our law-makers will give serious attention to this aspect of the matter and remove this serious lacuna in s. 95(2)(d) of the Motor Vehicles Act. We would also like to suggest that instead of limiting the liability of the Insurance Companies to a specified sum of money as representing the value of human life, the amount should be left to be determined by a court in the special circumstances of each case. We further hope our suggestions will be duly implemented and the observations of the highest court of the country do not become a mere pious wish. (Per Fazal Ali J., pp. 945, 946, 950, 951 of SCR). 24. These observations are still languishing in the cold storage of pious wishes. With the emergence of the General Insurance Corporation which has taken over general insurance business of all kinds, including motor vehicles insurance, it should be easy to give statutory recognition to the States obligation to compensate victims of road accidents promptly, adequately and without contest.We are happy to note that the Gujarat High Court, by its judgment under appeal, took a just, correct and realistic view of the matter by holding that, under the statutory policy, the appellant, insurance company, is liable to pay the full amount of compensation to the heirs of the driver of the car and to the passenger who was travelling in the car, each amount being less than Rs. 20, 000. 25.
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the insurers liability will extend to a sum of Rs. 20, 000 in respect of the injuries suffered by each one of the five persons, since each met with an accident, though during the course of the same transaction. A consideration of preponderating importance in a matter of this nature is not whether there was any one transaction which resulted in injuries to many but whether more than one person was injured, giving rise to more than one claim or cause of action, even if the injuries were caused in the course of one single transaction. If more than one person is injured during the course of the same transaction, each one of the persons has met with ane are, therefore, of the opinion that the ambiguity in the language used by the Legislature in the opening part of s. 95(2) and the doubt arising out of then of that language with the wordswhich occur in cl. (a), must be resolved by having regard to the underlying legislative purpose of the provisions contained in Chap. VIII of the Act which deals with third party risks. That is a sensitive process which has to accommodate the claims of the society as reflected in that purpose. Indeed, it is in this area of legislative ambiguities, unfortunately not receding, that courts have to fill gaps, clear doubts and mitigate hardships. In the words of judge Learned Handl v. Markham [1945] 148 F. 2dIt is one of the surest indexes of a mature and developed jurisprudence......... to remember that statutes always have some purpose or object to accomplish whose sympathetic and imaginative discovery is the surest guide to their meaning.There is no table of logarithms to guide or govern statutory construction in this area, which leaves a sufficient and desirable discretion for the judges to interpret laws in the light of their purpose, where the language used by thes does not yield to one and one meaning only. Considering the matter that way, we are of the opinion that it is appropriate to hold that the wordis used in the expressionfrom the point of view of the various claimants, each of whom is entitled to make a separate claim for the accident suffered by him and not from the point of view of the insurerIn the case before the Madras Full Bench, a person called Krishnaswami who was driving a car died as a result of a collision between his car and a goods vehicle. The Claims Tribunal dismissed the claim of the heirs of the deceased, but a Division Bench of the High Court took the view that compensation in the sum of Rs. 40, 000 would be payable to them. The Division Bench referred for consideration of the Full Bench the question whether on a true construction of cl. (a) of s. 95(2), the liability of the insurance company was limited to rupees twenty thousand. The Full Bench, overruling a previous decision of a Division Bench, answered this question in the affirmative. It is important to bear in mind that the case before the Madras High Court was in a material respect different from the case before us. The High Court had to consider the claim of one person only, since only one person had met with an accident. In the case before us, more than one person has been injured, which raises the question as regards the construction of the wordswhich occur in s. 95(2). That question did not arise in the Madras case and the decision, therefore, does not touch the question before us. Similarly, in the case before the Orissa High Court in Sabita Pati [1973] ACJ 319 , only one person was involved in the collision between a jeep and a goods vehicleIt was suggested that the interpretation which we are putting on s. 95(2)(a) will create difficulties in cases where the insured also incurs liability under the Workmens Compensation Act, 1923, in respect of the death of, or bodily injury to, employees (other than the driver), not exceeding six in number, being carried in the vehicle. It is true that under s. 95(2)(a), the liability of the insured and, therefore, the insurers indemnity, includes the liability of the aforesaid discription under the Act of 1923. But that is a matter of apportionment which may require a rateable deduction to be made from the compensation payable to each victim, depending upon the quantum of compensation payable under the Act of 1923 to employees carried in a goodse cannot part with this case without impressing upon the Government, once again, the urgent need to provide by law for the payment of reasonable amounts of compensation, without contest, to victims of road accidents. We find that road accidents involving passengers travelling by rail or public buses are usually followed by an official announcement of payment of ex gratia sums to victims, varying between five hundred and two thousand rupees or so. That is a niggardly recognition of the States obligation to its people, particularly so when the frequency of accidents involving the public transport system has increased beyond believable limits. The newspaper reports of August and September, 1981, regarding deaths and injuries caused in such accidents have a sorry story to tell. But we need not reproduce figures depending upon newspaper assessment because the newspapers of September 18, 1981, carry the report of a statement made by the Union Minister of State for Shipping and Transport before the North Zone goods transport operators that 20, 000 persons were killed and 1.5 lakh were injured in highway accidents during 1980. We wonder whether adequate compensation was paid to this large mass of suffering humanity. In any event, the need to provide by law for the payment of adequate compensation without contest to such victims can no longer be denied or disputed. It was four years ago that this court sounded a warning and a reminderSmt. Manjusri Raha v. B.L. Gupta [1977] 2 SCR 944 ; AIR 1977 SC
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Om Parkash Vs. State of Haryana and Others | SHAH, J. 1. The appellant obtained the right to win Saltpetre from the Shamlat Deh lands vested in the Panchayat of two villages Malar and Peoda. In respect of the land in village Malar the right to win Saltpetre was to end on August 31, 1970, and the appellant had paid a sum of Rs. 30, 100/-. In respect of the land in village Peoda the right was to expire on July 31, 1970, and the appellant had paid Rs. 3, 520/-. The Central Government issued a Notification on July 29, 1967, declaring Saltpetre to be a minor mineral under the Mines and Minerals (Regulation & Development) Act 67 of 1957. Thereafter the Government of Haryana issued a Notification on December 13, 1968, for holding an auction for Saltpetre in the village of Malar and another Notification, dated February 7, 1969, in respect of village Peoda. On representations made by the appellant the Government of Haryana restricted the appellants grant which was originally for two years in each case to one year and thereafter threatened to dispossess the appellant by holding fresh auctions after the expiry of the year. 2. The appellant then filed a petition in the High Court of Punjab and Haryana for a writ restraining the State from taking any proceedings for holding auctions for the right to win Saltpetre to the prejudice of the appellant. The High Court summarily rejected the petition observing "Following the earlier two Division Bench decisions of this Court (1) ILR (1969) 1 Punj and Har 680, (2) Civil Writ No. 3405 of 1968, decided on February 6, 1969, we dismiss this petition". 3. The two judgments referred to by the High Court proceeded on the ground that the High Court would not in deciding a petition for a writ under Article 226 of the Constitution enter upon disputed questions of fact. But whether in the present case there are disputed questions of fact of such complexity as would render it inappropriate to try in hearing a writ petition is a matter which has never been decided. There is no rule that the High Court will not try issues of fact in a writ petition. In each case the court has to consider whether the party seeking relief has an alternative remedy which is equally efficacious by a suit, whether refusal to grant relief in a writ petition may amount to denying relief, whether the claim is based substantially upon consideration of evidence oral and documentary of a complicated nature and whether the case is otherwise fit for trial in exercise of the jurisdiction to issue high prerogative writs. 4. The High Court did not call upon the State of file an affidavit and did not consider whether the facts raised were so complicated or that for other reasons it would be inappropriate to try the dispute in the writ petition. 5. In this Court the State has filed an affidavit in reply; it does not prima facie appear that there were any such complicated questions of fact which would necessitate that the appellant should be driven to a separate suit. It may also be pointed out that in a similar dispute also relating to the grant of the right to win Saltpetre by a village panchayat decided by a Single Judge of the High Court in C.W. No. 1924 of 1969 relief was granted to the applicant. In our view the High Court was in error in summarily rejecting the petition filed by the appellant. | 1[ds]5. In this Court the State has filed an affidavit in reply; it does not prima facie appear that there were any such complicated questions of fact which would necessitate that the appellant should be driven to a separate suit. It may also be pointed out that in a similar dispute also relating to the grant of the right to win Saltpetre by a village panchayat decided by a Single Judge of the High Court in C.W. No. 1924 of 1969 relief was granted to the applicant. In our view the High Court was in error in summarily rejecting the petition filed by the appellant. | 1 | 642 | 116 | ### Instruction:
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SHAH, J. 1. The appellant obtained the right to win Saltpetre from the Shamlat Deh lands vested in the Panchayat of two villages Malar and Peoda. In respect of the land in village Malar the right to win Saltpetre was to end on August 31, 1970, and the appellant had paid a sum of Rs. 30, 100/-. In respect of the land in village Peoda the right was to expire on July 31, 1970, and the appellant had paid Rs. 3, 520/-. The Central Government issued a Notification on July 29, 1967, declaring Saltpetre to be a minor mineral under the Mines and Minerals (Regulation & Development) Act 67 of 1957. Thereafter the Government of Haryana issued a Notification on December 13, 1968, for holding an auction for Saltpetre in the village of Malar and another Notification, dated February 7, 1969, in respect of village Peoda. On representations made by the appellant the Government of Haryana restricted the appellants grant which was originally for two years in each case to one year and thereafter threatened to dispossess the appellant by holding fresh auctions after the expiry of the year. 2. The appellant then filed a petition in the High Court of Punjab and Haryana for a writ restraining the State from taking any proceedings for holding auctions for the right to win Saltpetre to the prejudice of the appellant. The High Court summarily rejected the petition observing "Following the earlier two Division Bench decisions of this Court (1) ILR (1969) 1 Punj and Har 680, (2) Civil Writ No. 3405 of 1968, decided on February 6, 1969, we dismiss this petition". 3. The two judgments referred to by the High Court proceeded on the ground that the High Court would not in deciding a petition for a writ under Article 226 of the Constitution enter upon disputed questions of fact. But whether in the present case there are disputed questions of fact of such complexity as would render it inappropriate to try in hearing a writ petition is a matter which has never been decided. There is no rule that the High Court will not try issues of fact in a writ petition. In each case the court has to consider whether the party seeking relief has an alternative remedy which is equally efficacious by a suit, whether refusal to grant relief in a writ petition may amount to denying relief, whether the claim is based substantially upon consideration of evidence oral and documentary of a complicated nature and whether the case is otherwise fit for trial in exercise of the jurisdiction to issue high prerogative writs. 4. The High Court did not call upon the State of file an affidavit and did not consider whether the facts raised were so complicated or that for other reasons it would be inappropriate to try the dispute in the writ petition. 5. In this Court the State has filed an affidavit in reply; it does not prima facie appear that there were any such complicated questions of fact which would necessitate that the appellant should be driven to a separate suit. It may also be pointed out that in a similar dispute also relating to the grant of the right to win Saltpetre by a village panchayat decided by a Single Judge of the High Court in C.W. No. 1924 of 1969 relief was granted to the applicant. In our view the High Court was in error in summarily rejecting the petition filed by the appellant.
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5. In this Court the State has filed an affidavit in reply; it does not prima facie appear that there were any such complicated questions of fact which would necessitate that the appellant should be driven to a separate suit. It may also be pointed out that in a similar dispute also relating to the grant of the right to win Saltpetre by a village panchayat decided by a Single Judge of the High Court in C.W. No. 1924 of 1969 relief was granted to the applicant. In our view the High Court was in error in summarily rejecting the petition filed by the appellant.
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Marshall Sons and Co. Ltd Vs. Income Tax Officer | on which the shareholders of the subsidiary company become the shareholders of the holding company as provided in the sub-clauses. The High Court has opined that the transfer date mentioned in the scheme, viz., January 1, 1982, is "totally artificial and arbitrary" (for the reason that on the said date neither the company nor their shareholders had even thought of amalgamation) and that it has no legal significance. According to the High Court, therefore, the date on which the amalgamation should be deemed to have come into being is not January 1, 1982, but January 20, 1984/February 24, 1984, on which dates the Madras and Calcutta High Courts, respectively, approved the scheme. In other words, the High Court has taken the view that in the absence of any date being specified in the order of the High Court as the date of amalgamation, the date of the order of the High Court (company courts) shall be taken as the date of amalgamation. For arriving at the said view, the High Court followed an earlier Full Bench decision of that court in Sahayanidhi (Virudhunagar) Ltd. v. A. R. S. Subrahmanya Nadar 1950 (20) CC 214. The High Court also opined that the decision of the Bombay High Court in Swastik Rubber Products Ltd.s case 1983 (53) CC 174 is of no assistance to the appellant. On this basis the High Court has upheld the validity of the notices issued by the Income-tax Officer, which notices were impugned in the writ petition, and dismissed the writ petition. The question is whether the view taken by the High Court is correct.Every scheme of amalgamation has to necessarily provide a date with effect from which the amalgamation/transfer shall take place. The scheme concerned herein does so provide, viz., January 1, 1982. It is true that while sanctioning the scheme, it is open to the court to modify the said date and prescribe such date of amalgamation/transfer as it thinks appropriate in the facts and circumstances of the case. If the court so specifies a date, there is little doubt that such date would be the date of amalgamation/date of transfer. But where the court does not prescribe any specific date but merely sanctions the scheme presented to it---as has happened in this case---it should follow that the date of amalgamation/date of transfer is the date specified in the scheme as "the transfer date". It cannot be otherwise. It must be remembered that before applying to the court under section 391(1), a scheme has to be framed and such scheme has to contain a date of amalgamation/transfer. The proceedings before the court may take some time; indeed, they are bound to take some time because several steps provided by sections 391 to 394A and the relevant rules have to be followed and complied with. During the period the proceedings are pending before the court, both the amalgamating units, i.e., the transferor company and the transferee company may carry on business, as has happened in this case, but normally provision is made for this aspect also in the scheme of amalgamation. In the scheme before us, clause 6(b) does expressly provide that with effect from the transfer date, the transferor company (subsidiary company) shall be deemed to have carried on the business for and on behalf of the transferee company (holding company) with all attendant consequences. It is equally relevant to notice that the courts have not only sanctioned the scheme in this case, but have also not specified any other date as the date of transfer/amalgamation. In such a situation, it would not be reasonable to say that the scheme of amalgamation takes effect on and from the date of the order sanctioning the scheme. We are, therefore, of the opinion that the notices issued by the Income-tax Officer (impugned in the writ petition) were not warranted in law. The business carried on by the transferor company (subsidiary company) should be deemed to have been carried on for and on behalf of the transferee company. This is the necessary and the logical consequence of the court sanctioning the scheme of amalgamation as presented to it. The order of the court sanctioning the scheme, the filing of the certified copies of the orders of the court before the Registrar of Companies, the allotment of shares, etc., may have all taken place subsequent to the date of amalgamation/transfer, yet the date of amalgamation in the circumstances of this case would be January 1, 1982. This is also the ratio of the decision of the Privy Council in Raghubar Dayal v. Bank of Upper India Ltd., 1919 AIR(PC) 9. Counsel for the Revenue contended that if the aforesaid view is adopted then several complications will ensue in case the court refuses to sanction the scheme of amalgamation. We do not see any basis for this apprehension. Firstly, an assessment can always be made and is supposed to be made on the transferee company taking into account the income of both the transferor and transferee companies. Secondly, and probably the more advisable course from the point of view of the Revenue would be to make one assessment on the transferee company taking into account the income of both the transferor or transferee companies and also to make separate protective assessments on both the transferor and transferee companies separately. There may be a certain practical difficulty in adopting this course inasmuch as separate balance-sheets may not be available for the transferor and transferee companies. But that may not be an insuperable problem, inasmuch as assessment can always be made, on the available material, even without a balance-sheet. In certain cases, best judgment assessment may also be resorted to. Be that as it may, we need not pursue this line of enquiry because it does not arise for consideration in these cases directly. 8. In the light of the view taken by us on the principal question, it is not necessary to consider the alternate submission urged by Shri Poddar. 9. | 1[ds]A reading of the above clauses of the scheme shows that according to the scheme, the entire undertaking of the subsidiary company shall be transferred to the holding company with effect from the transfer date and that the subsidiary company shall be amalgamated with the holding company with effect from the said date. Clause 6 states clearly that the implementation of the said scheme "is conditional upon the scheme being sanctioned under section 391 of the Act and the appropriate orders for the implementation of this scheme being made under section 394 of the Act by the High Courts of Tamil Nadu and Calcutta". Clause 8 further provides that the implementation of the said scheme "is conditional also upon the shareholders holding not less than nine-tenths in value of the shares in the subsidiary company becoming shareholders of the holding company by virtue of the amalgamation". It is on the basis of the language of clauses 7 and 8 that the High Court has opined that the scheme takes effect only on and from the date it was sanctioned by the High Courts of Madras and Calcutta coupled with the date on which the shareholders of the subsidiary company become the shareholders of the holding company as provided in the sub-clauses. The High Court has opined that the transfer date mentioned in the scheme, viz., January 1, 1982, is "totally artificial and arbitrary" (for the reason that on the said date neither the company nor their shareholders had even thought of amalgamation) and that it has no legal significance. According to the High Court, therefore, the date on which the amalgamation should be deemed to have come into being is not January 1, 1982, but January 20, 1984/February 24, 1984, on which dates the Madras and Calcutta High Courts, respectively, approved the scheme. In other words, the High Court has taken the view that in the absence of any date being specified in the order of the High Court as the date of amalgamation, the date of the order of the High Court (company courts) shall be taken as the date of amalgamation.scheme of amalgamation has to necessarily provide a date with effect from which the amalgamation/transfer shall take place. The scheme concerned herein does so provide, viz., January 1, 1982. It is true that while sanctioning the scheme, it is open to the court to modify the said date and prescribe such date of amalgamation/transfer as it thinks appropriate in the facts and circumstances of the case. If the court so specifies a date, there is little doubt that such date would be the date of amalgamation/date of transfer. But where the court does not prescribe any specific date but merely sanctions the scheme presented to it---as has happened in this case---it should follow that the date of amalgamation/date of transfer is the date specified in the scheme as "the transfer date". It cannot be otherwise. It must be remembered that before applying to the court under section 391(1), a scheme has to be framed and such scheme has to contain a date of amalgamation/transfer. The proceedings before the court may take some time; indeed, they are bound to take some time because several steps provided by sections 391 to 394A and the relevant rules have to be followed and complied with. During the period the proceedings are pending before the court, both the amalgamating units, i.e., the transferor company and the transferee company may carry on business, as has happened in this case, but normally provision is made for this aspect also in the scheme of amalgamation. In the scheme before us, clause 6(b) does expressly provide that with effect from the transfer date, the transferor company (subsidiary company) shall be deemed to have carried on the business for and on behalf of the transferee company (holding company) with all attendant consequences. It is equally relevant to notice that the courts have not only sanctioned the scheme in this case, but have also not specified any other date as the date of transfer/amalgamation. In such a situation, it would not be reasonable to say that the scheme of amalgamation takes effect on and from the date of the order sanctioning the scheme. We are, therefore, of the opinion that the notices issued by the Income-tax Officer (impugned in the writ petition) were not warranted in law. The business carried on by the transferor company (subsidiary company) should be deemed to have been carried on for and on behalf of the transferee company. This is the necessary and the logical consequence of the court sanctioning the scheme of amalgamation as presented to it. The order of the court sanctioning the scheme, the filing of the certified copies of the orders of the court before the Registrar of Companies, the allotment of shares, etc., may have all taken place subsequent to the date of amalgamation/transfer, yet the date of amalgamation in the circumstances of this case would be January 1, 1982. This is also the ratio of the decision of the Privy Council in Raghubar Dayal v. Bank of Upper India Ltd., 1919do not see any basis for this apprehension. Firstly, an assessment can always be made and is supposed to be made on the transferee company taking into account the income of both the transferor and transferee companies. Secondly, and probably the more advisable course from the point of view of the Revenue would be to make one assessment on the transferee company taking into account the income of both the transferor or transferee companies and also to make separate protective assessments on both the transferor and transferee companies separately. There may be a certain practical difficulty in adopting this course inasmuch as separate balance-sheets may not be available for the transferor and transferee companies. But that may not be an insuperable problem, inasmuch as assessment can always be made, on the available material, even without a balance-sheet. In certain cases, best judgment assessment may also be resorted to. Be that as it may, we need not pursue this line of enquiry because it does not arise for consideration in these casesthe light of the view taken by us on the principal question, it is not necessary to consider the alternate submission urged by Shri Poddar. | 1 | 6,220 | 1,161 | ### Instruction:
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on which the shareholders of the subsidiary company become the shareholders of the holding company as provided in the sub-clauses. The High Court has opined that the transfer date mentioned in the scheme, viz., January 1, 1982, is "totally artificial and arbitrary" (for the reason that on the said date neither the company nor their shareholders had even thought of amalgamation) and that it has no legal significance. According to the High Court, therefore, the date on which the amalgamation should be deemed to have come into being is not January 1, 1982, but January 20, 1984/February 24, 1984, on which dates the Madras and Calcutta High Courts, respectively, approved the scheme. In other words, the High Court has taken the view that in the absence of any date being specified in the order of the High Court as the date of amalgamation, the date of the order of the High Court (company courts) shall be taken as the date of amalgamation. For arriving at the said view, the High Court followed an earlier Full Bench decision of that court in Sahayanidhi (Virudhunagar) Ltd. v. A. R. S. Subrahmanya Nadar 1950 (20) CC 214. The High Court also opined that the decision of the Bombay High Court in Swastik Rubber Products Ltd.s case 1983 (53) CC 174 is of no assistance to the appellant. On this basis the High Court has upheld the validity of the notices issued by the Income-tax Officer, which notices were impugned in the writ petition, and dismissed the writ petition. The question is whether the view taken by the High Court is correct.Every scheme of amalgamation has to necessarily provide a date with effect from which the amalgamation/transfer shall take place. The scheme concerned herein does so provide, viz., January 1, 1982. It is true that while sanctioning the scheme, it is open to the court to modify the said date and prescribe such date of amalgamation/transfer as it thinks appropriate in the facts and circumstances of the case. If the court so specifies a date, there is little doubt that such date would be the date of amalgamation/date of transfer. But where the court does not prescribe any specific date but merely sanctions the scheme presented to it---as has happened in this case---it should follow that the date of amalgamation/date of transfer is the date specified in the scheme as "the transfer date". It cannot be otherwise. It must be remembered that before applying to the court under section 391(1), a scheme has to be framed and such scheme has to contain a date of amalgamation/transfer. The proceedings before the court may take some time; indeed, they are bound to take some time because several steps provided by sections 391 to 394A and the relevant rules have to be followed and complied with. During the period the proceedings are pending before the court, both the amalgamating units, i.e., the transferor company and the transferee company may carry on business, as has happened in this case, but normally provision is made for this aspect also in the scheme of amalgamation. In the scheme before us, clause 6(b) does expressly provide that with effect from the transfer date, the transferor company (subsidiary company) shall be deemed to have carried on the business for and on behalf of the transferee company (holding company) with all attendant consequences. It is equally relevant to notice that the courts have not only sanctioned the scheme in this case, but have also not specified any other date as the date of transfer/amalgamation. In such a situation, it would not be reasonable to say that the scheme of amalgamation takes effect on and from the date of the order sanctioning the scheme. We are, therefore, of the opinion that the notices issued by the Income-tax Officer (impugned in the writ petition) were not warranted in law. The business carried on by the transferor company (subsidiary company) should be deemed to have been carried on for and on behalf of the transferee company. This is the necessary and the logical consequence of the court sanctioning the scheme of amalgamation as presented to it. The order of the court sanctioning the scheme, the filing of the certified copies of the orders of the court before the Registrar of Companies, the allotment of shares, etc., may have all taken place subsequent to the date of amalgamation/transfer, yet the date of amalgamation in the circumstances of this case would be January 1, 1982. This is also the ratio of the decision of the Privy Council in Raghubar Dayal v. Bank of Upper India Ltd., 1919 AIR(PC) 9. Counsel for the Revenue contended that if the aforesaid view is adopted then several complications will ensue in case the court refuses to sanction the scheme of amalgamation. We do not see any basis for this apprehension. Firstly, an assessment can always be made and is supposed to be made on the transferee company taking into account the income of both the transferor and transferee companies. Secondly, and probably the more advisable course from the point of view of the Revenue would be to make one assessment on the transferee company taking into account the income of both the transferor or transferee companies and also to make separate protective assessments on both the transferor and transferee companies separately. There may be a certain practical difficulty in adopting this course inasmuch as separate balance-sheets may not be available for the transferor and transferee companies. But that may not be an insuperable problem, inasmuch as assessment can always be made, on the available material, even without a balance-sheet. In certain cases, best judgment assessment may also be resorted to. Be that as it may, we need not pursue this line of enquiry because it does not arise for consideration in these cases directly. 8. In the light of the view taken by us on the principal question, it is not necessary to consider the alternate submission urged by Shri Poddar. 9.
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with effect from the said date. Clause 6 states clearly that the implementation of the said scheme "is conditional upon the scheme being sanctioned under section 391 of the Act and the appropriate orders for the implementation of this scheme being made under section 394 of the Act by the High Courts of Tamil Nadu and Calcutta". Clause 8 further provides that the implementation of the said scheme "is conditional also upon the shareholders holding not less than nine-tenths in value of the shares in the subsidiary company becoming shareholders of the holding company by virtue of the amalgamation". It is on the basis of the language of clauses 7 and 8 that the High Court has opined that the scheme takes effect only on and from the date it was sanctioned by the High Courts of Madras and Calcutta coupled with the date on which the shareholders of the subsidiary company become the shareholders of the holding company as provided in the sub-clauses. The High Court has opined that the transfer date mentioned in the scheme, viz., January 1, 1982, is "totally artificial and arbitrary" (for the reason that on the said date neither the company nor their shareholders had even thought of amalgamation) and that it has no legal significance. According to the High Court, therefore, the date on which the amalgamation should be deemed to have come into being is not January 1, 1982, but January 20, 1984/February 24, 1984, on which dates the Madras and Calcutta High Courts, respectively, approved the scheme. In other words, the High Court has taken the view that in the absence of any date being specified in the order of the High Court as the date of amalgamation, the date of the order of the High Court (company courts) shall be taken as the date of amalgamation.scheme of amalgamation has to necessarily provide a date with effect from which the amalgamation/transfer shall take place. The scheme concerned herein does so provide, viz., January 1, 1982. It is true that while sanctioning the scheme, it is open to the court to modify the said date and prescribe such date of amalgamation/transfer as it thinks appropriate in the facts and circumstances of the case. If the court so specifies a date, there is little doubt that such date would be the date of amalgamation/date of transfer. But where the court does not prescribe any specific date but merely sanctions the scheme presented to it---as has happened in this case---it should follow that the date of amalgamation/date of transfer is the date specified in the scheme as "the transfer date". It cannot be otherwise. It must be remembered that before applying to the court under section 391(1), a scheme has to be framed and such scheme has to contain a date of amalgamation/transfer. The proceedings before the court may take some time; indeed, they are bound to take some time because several steps provided by sections 391 to 394A and the relevant rules have to be followed and complied with. During the period the proceedings are pending before the court, both the amalgamating units, i.e., the transferor company and the transferee company may carry on business, as has happened in this case, but normally provision is made for this aspect also in the scheme of amalgamation. In the scheme before us, clause 6(b) does expressly provide that with effect from the transfer date, the transferor company (subsidiary company) shall be deemed to have carried on the business for and on behalf of the transferee company (holding company) with all attendant consequences. It is equally relevant to notice that the courts have not only sanctioned the scheme in this case, but have also not specified any other date as the date of transfer/amalgamation. In such a situation, it would not be reasonable to say that the scheme of amalgamation takes effect on and from the date of the order sanctioning the scheme. We are, therefore, of the opinion that the notices issued by the Income-tax Officer (impugned in the writ petition) were not warranted in law. The business carried on by the transferor company (subsidiary company) should be deemed to have been carried on for and on behalf of the transferee company. This is the necessary and the logical consequence of the court sanctioning the scheme of amalgamation as presented to it. The order of the court sanctioning the scheme, the filing of the certified copies of the orders of the court before the Registrar of Companies, the allotment of shares, etc., may have all taken place subsequent to the date of amalgamation/transfer, yet the date of amalgamation in the circumstances of this case would be January 1, 1982. This is also the ratio of the decision of the Privy Council in Raghubar Dayal v. Bank of Upper India Ltd., 1919do not see any basis for this apprehension. Firstly, an assessment can always be made and is supposed to be made on the transferee company taking into account the income of both the transferor and transferee companies. Secondly, and probably the more advisable course from the point of view of the Revenue would be to make one assessment on the transferee company taking into account the income of both the transferor or transferee companies and also to make separate protective assessments on both the transferor and transferee companies separately. There may be a certain practical difficulty in adopting this course inasmuch as separate balance-sheets may not be available for the transferor and transferee companies. But that may not be an insuperable problem, inasmuch as assessment can always be made, on the available material, even without a balance-sheet. In certain cases, best judgment assessment may also be resorted to. Be that as it may, we need not pursue this line of enquiry because it does not arise for consideration in these casesthe light of the view taken by us on the principal question, it is not necessary to consider the alternate submission urged by Shri Poddar.
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Thakurain Raj Rani And Others Vs. Thakur Dwarka Nath Singh And Others, | terms thereof, if Ganga Bux Singh failed to perform the contract Shankar Bux Singh was to have the power to have the same performed by Ganga Bux Singh through Court. This consequence could not be contemplated if the payment constituted a condition precedent and the non-fulfilment of the condition precedent was to have the effect of rendering the agreement inoperative in that event the agreement itself would become inoperative and no rights under the agreement would, survive to Shankar Bux Singh. The right which was therefore, given to Shankar Bux Singh to have the agreement performed by Ganga Bux Singh contemplated the existence and the continued existence of the agreement so as to enable Shankar Bux Singh to hold Ganga Bux Singh to its performance. The continued existence of the contract was in contemplation of the parties and so far as Ganga Bux Singh is concerned it was at no stage contemplated that he could forego the performance of the obligation on his part to pay Rs. 50 per month to Shankar Bux Singh during his lifetime so long as the will stood unrevoked.15. It is significant to observe on the other hand that two events were contemplated so far as Shankar Bux Singh himself was concerned. The one was the withholding of the consent of the Court of Wards and the other was the revocation of the will by Shankar Bux Singh himself. The sum of Rs. 50 per month was agreed to be paid by Ganga Bux Singh to him from the month when Shankar Bux Singh executed the will and laid it before the Court of Wards for its sanction. The Court of Wards might withhold its consent to the will and in that event whatever payments were made during the interval by Ganga Bux Singh to Shankar Bux Singh had to be refunded by the latter. Even though the Court of Wards might sanction the will Shankar Bux Singh might later on revoke the will and the consequence of such revocation was also provided in that Shankar Bux Singh was to refund to Ganga Bux Singh the amounts which he had paid up to the time of revocation to Shankar Bux Singh in accordance with the terms of the agreement. It has to be observed moreover that all these constituted independent obligations on the part of both the parties. The obligation on the part of Ganga Bux Singh was so long as the will stood unrevoked to pay to Shankar Bux Singh Rs. 50 per month during his lifetime and the obligation on the part of Shankar Bux Singh was to obtain the consent of the Court of Wards and to leave the will unrevoked during his lifetime. These obligations were independent of each other and the consequences of the non-performance of these obligations on the part of each of the parties were expressly provided in the agreement itself. It could not therefore be contended that the payment of Rs. 50 per month to Shankar Bux Singh during his lifetime constituted a condition precedent to the vesting of the legacy in his favour. That was merely a consideration provided by Ganga Bux Singh for the execution of the will by Shankar Bux Singh in his favour and if Ganga Bux Singh committed a breach of the agreement the only result was that Shankar Bux Singh would become entitled to recover the amount due on such default from Ganga Bux Singh by having recourse to a Court of law. The contract would continue to subsist the parties being relegated to their rights and remedies thereunder as contemplated by the parties.16. In spite of the non-payment by Ganga Bux Singh of the sum of Rs. 50 per month to Shankar Bux Singh in accordance with the terms of the agreement at no time did Shankar Bux Singh revoke the will nor did he pursue Ganga Bux Singh in a Court of law for the recovery of the amounts m respect of which Ganga Bux Singh was in default. He left the will unrevoked and his death the will became effective as his last will and testament and operate to vest in Ganga Bux Singh an interest in the remainder as therein provided. There is nothing in the will itself watch in terms makes the bequest conditional or regular payment of the amount under the agreement.17. The argument which was advanced by Dr. Tekchand based S. 81, Trusts Act, could not avail him for the simple reason that the intention of Shankar Bux Singh had to be gathered as on the date of the execution of the will and not at any subsequent time thereafter. That intention was clearly to effect a testamentary disposition of the remainder in favour of Ganga Bux Singh.It was certainly farthest from the thought of Shankar Bux Singh not to dispose of the beneficial interest in the remainder in favour of Ganga Bux Singh with the result that there could neither be a secret trust nor a trust of imperfect obligation created in favour of the heirs at law of the testator Shankar Bux Singh. The argument of Dr. Tekchand that the remainder did not vest in Ganga Bux Singh but fell into residue by reason of his having pre-deceased the widow of Shankar Bux Singh is equally of no avail. The legacy in favour Ganga Bux Singh was a legacy of the remainder of estate which vest in Ganga Bux Singh but was deferred in possession till after the extinction of the life interest created in favour of plaintiff 1. Such vested interest could devolve upon the defendants, the heirs and legal representatives of Ganga Bux Singh on the death of the latter and the defendants were, therefore, as the heirs and legal representatives of Ganga Bux Singh since deceased rightly entitled to the same. As the bequest was not conditional and did not lapse there could he no question of any resulting trust or of any intestacy with respect to the remainder.18. | 0[ds]10. In regard to the last contention urged by Dr. Tekchand both the Courts below were of the opinion that the question of animus testandi was barred by res judicata. It was held by their Lordships of the Privy Council that the will in dispute was not revoked and that it was the last will and testament of Shankar Bux Singh. That decision necessarily meant that the testator when he appended his signature to the will was in a sound and disposing state of mind, was a free agent and duly executed the will in accordance with the law. The decision was conclusive as regards the testamentary capacity, due execution and the representative title of the person to whom the letters of administration with the will annexed were granted. It was not open, therefore, to the plaintiffs to contend that the will which was executed by Shankar Bux Singh was a will merely in form an not in substance. The question of animus testandi was therefore, barred by res judicata. In regard, however, to the question whether the bequest in favour of Ganga Bux Singh could take effect by reason of default in payment the decision of the Privy Council did not constitute res judicata and it was open to the plaintiffs to urge that contention. Both the Courts below, therefore, allowed the plaintiffs to agitate that question though they came to a conclusion adverse to the plaintiffs.We are of the opinion that there was no bar of res judicata and the Courts below were right in allowing the plaintiffs to agitate that question. The payment of Rs. 50 per month to Shankar Bux Singh during his life time alight be a condition precedent to the whole will coming into operation or might be a condition precedent to the vesting of the legacy in favour of Ganga Bux Singh. If the plaintiffs urged the former position that plea would certainly be barred by res judicata. No Court would grant a probate or letters of administration with the will annexed it regard to a will which has ceased to be operative and was a mere scrap of paper. The plaintiffs could not, therefore, be heard to say that by reason of the non-fulfilment of the condition precedent the whole fill had become inoperative, for that would run counter to the decision of the Privy Council. Even on merits such a position would be untenable for the simple reason that besides Ganga Bux Singh there was the widow, who was given a life interest and there were the three daughters, the fathers sister and the mother who were given legacies by way of maintenance and they were certainly not guilty of non-fulfilment of any condition precedent. The will would certainly, therefore, stand so far as they were concerned and the whole effect of the non-fulfilment of the condition precedent quo Ganga Bux Singh would be to prevent the vesting of the legacy in his favour.There is no doubt, as held by the learned Civil Judge that the consideration for the will was the deed of agreement and the consideration for the agreement was the will and that the will as well as the agreement formed one contract. But for Ganga Bux Singh having executed the deed of agreement Shankar Bux Singh would not have forwarded the draft will to the Court of Wards for its sanction and he would also not have executed the will on 28-7-1904. The contract was an overall contract under which both the parties had to perform their respective obligations. The obligation on the part of Ganga Bux Singh was to execute the deed of agreement, agreeing to pay the moneys to Shankar Bux Singh in accordance with the terms thereof. The obligation on the part of Shankar Bux Singh was to execute the will and submit it to the Court of Wards for its sanction. Both these obligations were fulfilled by the parties and the two documents were supported by consideration and became binding on both the parties. The non-performance of the agreement to pay by Ganga Bux Singh constituted at best a failure to fulfil his obligation and Shankar Bux Singh became entitled to pursue his rights and remedies against Ganga Bux Singh by reason of the breach of contract by him.While recognising the force of these observations we are constrained to observe that the terms of the deed of agreement negative any such contention. The agreement itself provided what was to happen if payment was not made in accordance with the terms thereof, if Ganga Bux Singh failed to perform the contract Shankar Bux Singh was to have the power to have the same performed by Ganga Bux Singh through Court. This consequence could not be contemplated if the payment constituted a condition precedent and the non-fulfilment of the condition precedent was to have the effect of rendering the agreement inoperative in that event the agreement itself would become inoperative and no rights under the agreement would, survive to Shankar Bux Singh. The right which was therefore, given to Shankar Bux Singh to have the agreement performed by Ganga Bux Singh contemplated the existence and the continued existence of the agreement so as to enable Shankar Bux Singh to hold Ganga Bux Singh to its performance. The continued existence of the contract was in contemplation of the parties and so far as Ganga Bux Singh is concerned it was at no stage contemplated that he could forego the performance of the obligation on his part to pay Rs. 50 per month to Shankar Bux Singh during his lifetime so long as the will stood unrevoked.The argument which was advanced by Dr. Tekchand based S. 81, Trusts Act, could not avail him for the simple reason that the intention of Shankar Bux Singh had to be gathered as on the date of the execution of the will and not at any subsequent time thereafter. That intention was clearly to effect a testamentary disposition of the remainder in favour of Ganga Bux Singh.It was certainly farthest from the thought of Shankar Bux Singh not to dispose of the beneficial interest in the remainder in favour of Ganga Bux Singh with the result that there could neither be a secret trust nor a trust of imperfect obligation created in favour of the heirs at law of the testator Shankar Bux Singh. The argument of Dr. Tekchand that the remainder did not vest in Ganga Bux Singh but fell into residue by reason of his having pre-deceased the widow of Shankar Bux Singh is equally of no avail. The legacy in favour Ganga Bux Singh was a legacy of the remainder of estate which vest in Ganga Bux Singh but was deferred in possession till after the extinction of the life interest created in favour of plaintiff 1. Such vested interest could devolve upon the defendants, the heirs and legal representatives of Ganga Bux Singh on the death of the latter and the defendants were, therefore, as the heirs and legal representatives of Ganga Bux Singh since deceased rightly entitled to the same. As the bequest was not conditional and did not lapse there could he no question of any resulting trust or of any intestacy with respect to the remainder. | 0 | 5,649 | 1,274 | ### Instruction:
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terms thereof, if Ganga Bux Singh failed to perform the contract Shankar Bux Singh was to have the power to have the same performed by Ganga Bux Singh through Court. This consequence could not be contemplated if the payment constituted a condition precedent and the non-fulfilment of the condition precedent was to have the effect of rendering the agreement inoperative in that event the agreement itself would become inoperative and no rights under the agreement would, survive to Shankar Bux Singh. The right which was therefore, given to Shankar Bux Singh to have the agreement performed by Ganga Bux Singh contemplated the existence and the continued existence of the agreement so as to enable Shankar Bux Singh to hold Ganga Bux Singh to its performance. The continued existence of the contract was in contemplation of the parties and so far as Ganga Bux Singh is concerned it was at no stage contemplated that he could forego the performance of the obligation on his part to pay Rs. 50 per month to Shankar Bux Singh during his lifetime so long as the will stood unrevoked.15. It is significant to observe on the other hand that two events were contemplated so far as Shankar Bux Singh himself was concerned. The one was the withholding of the consent of the Court of Wards and the other was the revocation of the will by Shankar Bux Singh himself. The sum of Rs. 50 per month was agreed to be paid by Ganga Bux Singh to him from the month when Shankar Bux Singh executed the will and laid it before the Court of Wards for its sanction. The Court of Wards might withhold its consent to the will and in that event whatever payments were made during the interval by Ganga Bux Singh to Shankar Bux Singh had to be refunded by the latter. Even though the Court of Wards might sanction the will Shankar Bux Singh might later on revoke the will and the consequence of such revocation was also provided in that Shankar Bux Singh was to refund to Ganga Bux Singh the amounts which he had paid up to the time of revocation to Shankar Bux Singh in accordance with the terms of the agreement. It has to be observed moreover that all these constituted independent obligations on the part of both the parties. The obligation on the part of Ganga Bux Singh was so long as the will stood unrevoked to pay to Shankar Bux Singh Rs. 50 per month during his lifetime and the obligation on the part of Shankar Bux Singh was to obtain the consent of the Court of Wards and to leave the will unrevoked during his lifetime. These obligations were independent of each other and the consequences of the non-performance of these obligations on the part of each of the parties were expressly provided in the agreement itself. It could not therefore be contended that the payment of Rs. 50 per month to Shankar Bux Singh during his lifetime constituted a condition precedent to the vesting of the legacy in his favour. That was merely a consideration provided by Ganga Bux Singh for the execution of the will by Shankar Bux Singh in his favour and if Ganga Bux Singh committed a breach of the agreement the only result was that Shankar Bux Singh would become entitled to recover the amount due on such default from Ganga Bux Singh by having recourse to a Court of law. The contract would continue to subsist the parties being relegated to their rights and remedies thereunder as contemplated by the parties.16. In spite of the non-payment by Ganga Bux Singh of the sum of Rs. 50 per month to Shankar Bux Singh in accordance with the terms of the agreement at no time did Shankar Bux Singh revoke the will nor did he pursue Ganga Bux Singh in a Court of law for the recovery of the amounts m respect of which Ganga Bux Singh was in default. He left the will unrevoked and his death the will became effective as his last will and testament and operate to vest in Ganga Bux Singh an interest in the remainder as therein provided. There is nothing in the will itself watch in terms makes the bequest conditional or regular payment of the amount under the agreement.17. The argument which was advanced by Dr. Tekchand based S. 81, Trusts Act, could not avail him for the simple reason that the intention of Shankar Bux Singh had to be gathered as on the date of the execution of the will and not at any subsequent time thereafter. That intention was clearly to effect a testamentary disposition of the remainder in favour of Ganga Bux Singh.It was certainly farthest from the thought of Shankar Bux Singh not to dispose of the beneficial interest in the remainder in favour of Ganga Bux Singh with the result that there could neither be a secret trust nor a trust of imperfect obligation created in favour of the heirs at law of the testator Shankar Bux Singh. The argument of Dr. Tekchand that the remainder did not vest in Ganga Bux Singh but fell into residue by reason of his having pre-deceased the widow of Shankar Bux Singh is equally of no avail. The legacy in favour Ganga Bux Singh was a legacy of the remainder of estate which vest in Ganga Bux Singh but was deferred in possession till after the extinction of the life interest created in favour of plaintiff 1. Such vested interest could devolve upon the defendants, the heirs and legal representatives of Ganga Bux Singh on the death of the latter and the defendants were, therefore, as the heirs and legal representatives of Ganga Bux Singh since deceased rightly entitled to the same. As the bequest was not conditional and did not lapse there could he no question of any resulting trust or of any intestacy with respect to the remainder.18.
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to urge that contention. Both the Courts below, therefore, allowed the plaintiffs to agitate that question though they came to a conclusion adverse to the plaintiffs.We are of the opinion that there was no bar of res judicata and the Courts below were right in allowing the plaintiffs to agitate that question. The payment of Rs. 50 per month to Shankar Bux Singh during his life time alight be a condition precedent to the whole will coming into operation or might be a condition precedent to the vesting of the legacy in favour of Ganga Bux Singh. If the plaintiffs urged the former position that plea would certainly be barred by res judicata. No Court would grant a probate or letters of administration with the will annexed it regard to a will which has ceased to be operative and was a mere scrap of paper. The plaintiffs could not, therefore, be heard to say that by reason of the non-fulfilment of the condition precedent the whole fill had become inoperative, for that would run counter to the decision of the Privy Council. Even on merits such a position would be untenable for the simple reason that besides Ganga Bux Singh there was the widow, who was given a life interest and there were the three daughters, the fathers sister and the mother who were given legacies by way of maintenance and they were certainly not guilty of non-fulfilment of any condition precedent. The will would certainly, therefore, stand so far as they were concerned and the whole effect of the non-fulfilment of the condition precedent quo Ganga Bux Singh would be to prevent the vesting of the legacy in his favour.There is no doubt, as held by the learned Civil Judge that the consideration for the will was the deed of agreement and the consideration for the agreement was the will and that the will as well as the agreement formed one contract. But for Ganga Bux Singh having executed the deed of agreement Shankar Bux Singh would not have forwarded the draft will to the Court of Wards for its sanction and he would also not have executed the will on 28-7-1904. The contract was an overall contract under which both the parties had to perform their respective obligations. The obligation on the part of Ganga Bux Singh was to execute the deed of agreement, agreeing to pay the moneys to Shankar Bux Singh in accordance with the terms thereof. The obligation on the part of Shankar Bux Singh was to execute the will and submit it to the Court of Wards for its sanction. Both these obligations were fulfilled by the parties and the two documents were supported by consideration and became binding on both the parties. The non-performance of the agreement to pay by Ganga Bux Singh constituted at best a failure to fulfil his obligation and Shankar Bux Singh became entitled to pursue his rights and remedies against Ganga Bux Singh by reason of the breach of contract by him.While recognising the force of these observations we are constrained to observe that the terms of the deed of agreement negative any such contention. The agreement itself provided what was to happen if payment was not made in accordance with the terms thereof, if Ganga Bux Singh failed to perform the contract Shankar Bux Singh was to have the power to have the same performed by Ganga Bux Singh through Court. This consequence could not be contemplated if the payment constituted a condition precedent and the non-fulfilment of the condition precedent was to have the effect of rendering the agreement inoperative in that event the agreement itself would become inoperative and no rights under the agreement would, survive to Shankar Bux Singh. The right which was therefore, given to Shankar Bux Singh to have the agreement performed by Ganga Bux Singh contemplated the existence and the continued existence of the agreement so as to enable Shankar Bux Singh to hold Ganga Bux Singh to its performance. The continued existence of the contract was in contemplation of the parties and so far as Ganga Bux Singh is concerned it was at no stage contemplated that he could forego the performance of the obligation on his part to pay Rs. 50 per month to Shankar Bux Singh during his lifetime so long as the will stood unrevoked.The argument which was advanced by Dr. Tekchand based S. 81, Trusts Act, could not avail him for the simple reason that the intention of Shankar Bux Singh had to be gathered as on the date of the execution of the will and not at any subsequent time thereafter. That intention was clearly to effect a testamentary disposition of the remainder in favour of Ganga Bux Singh.It was certainly farthest from the thought of Shankar Bux Singh not to dispose of the beneficial interest in the remainder in favour of Ganga Bux Singh with the result that there could neither be a secret trust nor a trust of imperfect obligation created in favour of the heirs at law of the testator Shankar Bux Singh. The argument of Dr. Tekchand that the remainder did not vest in Ganga Bux Singh but fell into residue by reason of his having pre-deceased the widow of Shankar Bux Singh is equally of no avail. The legacy in favour Ganga Bux Singh was a legacy of the remainder of estate which vest in Ganga Bux Singh but was deferred in possession till after the extinction of the life interest created in favour of plaintiff 1. Such vested interest could devolve upon the defendants, the heirs and legal representatives of Ganga Bux Singh on the death of the latter and the defendants were, therefore, as the heirs and legal representatives of Ganga Bux Singh since deceased rightly entitled to the same. As the bequest was not conditional and did not lapse there could he no question of any resulting trust or of any intestacy with respect to the remainder.
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M/S Parakh Foods Ltd Vs. State Of A.P | Rule 37 D of the PFA Rules.5. The prosecution initiated against the appellant was challenged by filing a petition under Section 482 of the Code of Criminal Procedure, 1973. The High Court decided the criminal proceedings on 20.07.2007. The High Court came to the conclusion that the vendor did not produce any warranty, thus the manufacturer or the dealer cannot be prosecuted. When there is no allegation in the complaint alleging that the vendor produced any warranty or bill with regard to the purchase of the food item in question from accused No.2, that is the appellant herein, merely basing on the label declaration the appellant cannot be prosecuted. However, the order of quashing will not preclude the concerned Magistrate in arraying the appellant as an accused during the trial, if there is any offence.6. The High Court has also observed that it is clear that the article of food in question was misbranded since none of the pictures contained on the label has nothing to do with the article of food in question. Therefore, it is held to be a clear case of violation of Rule 37 D of the PFA Rules. Aggrieved by these findings, the present appeal is filed. 7. It is contended by Shri Ashok H. Desai, learned senior counsel for the appellant that the article of food can be considered to be misbranded only when false claims are made with respect to such article of food upon the label or otherwise and there is no statutory prohibition under the Act in printing pictures of vegetables on the label of article of food on which the said article of food may be used in the preparation / cooking of such vegetables. Whereas it is submitted by the learned counsel for the State that the pictures on the brand does not relate to the article which the appellant manufactures and sells and, therefore, it would fall within the violation of Rule 37 D of the PFA Rules as misbranded. The relevant provision reads as under: -RULE 37D - "Labelling of edible oils and fats - The package, label or the advertisement of edible oils and fats shall not use the expressions "Super-Refined", "Extra-Refined", "Micro-Refined", "Double-Refined", "Ultra-Refined", "Anti-Cholesterol", "Cholesterol-Fighter", "Soothing to Heart", "Cholesterol-Friendly", "Saturated Fat Free" or such other expressions which are an exaggeration of the quality of the product." 8. The provision for labeling of edible oils and fats is under Rule 37 D of the PFA Rules which specifies labeling of edible oils and fats. The Rule clearly states that package / labeling or advertisement of edible oils and fats shall not use the expressions such as (i) super-refined; (ii) extra-refined; (iii) micro-refined; (iv) double-refined; (v) ultra-refined; (vi) anti-cholesterol; (vii) cholesterol fighter; (viii) soothing to heart; (ix) cholesterol friendly; (x) saturated fat free, etc. It would be pertinent to say that all these expressions from (i) to (x) are prohibited because if they are mentioned on the labeling of the product they will tend to exaggerate the quality of the product. The Rule further states that all such other expression are also prohibited which tend to exaggerate the quality of the product. For the purposes of interpretation of this Rule the principle of ejusdem generis can be applied; ejusdem generis is a latin expression which means "of the same kind" , for example where a law lists specific classes of persons or things and then refers to them in general, the general statements only apply to the same kind of persons or things specifically listed. In other words, it means words of similar class. According to Blacks Law Dictionary (8th Edn. 2004), the principle of ejusdem generis is where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same kind or class as those specifically mentioned. It is a cannon of statutory construction that where general words follow the enumeration of particular classes of things, the general words will be construed as applying only to things of the same general class as those enumerated.9. Keeping the above principle in mind, the words "such other" as used in Rule 37 D is to be read along with the subject matter in which they have been used. The residuary clause of the rule has to be read in light of the ten prohibited expressions, and it becomes clear that what is prohibited are only the expressions which are an exaggeration of the quality of the product.10. In the present case, it is true that the appellant has used pictures of vegetables on the label of the product which is refined soyabean oil, which according to the appellant is to depict the purpose for which the oil can be used, viz., preparation of the vegetables depicted thereon. Unless the picture depicted on a label of edible oils and fats exaggerates the quality of the product, it would not fall within the mischief of Rule 37 D. In the present case, the vegetables shown on the label of soyabean oil does not in any way indicate that the quality of soyabean oil is super-refined, extra-refined, micro-refined, double-refined, ultra-refined, anti-cholesterol, cholesterol fighter, soothing to heart, cholesterol friendly, saturated fat free etc., nor it indicates the exaggeration towards the quality of the product to come within the mischief of Rule 37D of the PFA Rules. In our opinion the High Court has committed a serious error in arriving at a finding that the article of food (soyabean oil) was misbranded since the picture contained on the label has nothing to do with the article of food in question, completely ignoring the fact that the article of food can be used for cooking the vegetables shown in the picture which cannot be said to be exaggerating the quality of the food in question. 11. For the aforesaid reasons, the | 1[ds]The provision for labeling of edible oils and fats is under Rule 37 D of the PFA Rules which specifies labeling of edible oils and fats. The Rule clearly states that package / labeling or advertisement of edible oils and fats shall not use the expressions such as (i) super-refined; (ii) extra-refined; (iii) micro-refined; (iv) double-refined; (v) ultra-refined; (vi) anti-cholesterol; (vii) cholesterol fighter; (viii) soothing to heart; (ix) cholesterol friendly; (x) saturated fat free, etc. It would be pertinent to say that all these expressions from (i) to (x) are prohibited because if they are mentioned on the labeling of the product they will tend to exaggerate the quality of the product. The Rule further states that all such other expression are also prohibited which tend to exaggerate the quality of the product. For the purposes of interpretation of this Rule the principle of ejusdem generis can be applied; ejusdem generis is a latin expression which means "of the same kind" , for example where a law lists specific classes of persons or things and then refers to them in general, the general statements only apply to the same kind of persons or things specifically listed. In other words, it means words of similar class. According to Blacks Law Dictionary (8th Edn. 2004), the principle of ejusdem generis is where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same kind or class as those specifically mentioned. It is a cannon of statutory construction that where general words follow the enumeration of particular classes of things, the general words will be construed as applying only to things of the same general class as those enumerated.9. Keeping the above principle in mind, the words "such other" as used in Rule 37 D is to be read along with the subject matter in which they have been used. The residuary clause of the rule has to be read in light of the ten prohibited expressions, and it becomes clear that what is prohibited are only the expressions which are an exaggeration of the quality of the product.10. In the present case, it is true that the appellant has used pictures of vegetables on the label of the product which is refined soyabean oil, which according to the appellant is to depict the purpose for which the oil can be used, viz., preparation of the vegetables depicted thereon. Unless the picture depicted on a label of edible oils and fats exaggerates the quality of the product, it would not fall within the mischief of Rule 37 D. In the present case, the vegetables shown on the label of soyabean oil does not in any way indicate that the quality of soyabean oil is super-refined, extra-refined, micro-refined, double-refined, ultra-refined, anti-cholesterol, cholesterol fighter, soothing to heart, cholesterol friendly, saturated fat free etc., nor it indicates the exaggeration towards the quality of the product to come within the mischief of Rule 37D of the PFA Rules. In our opinion the High Court has committed a serious error in arriving at a finding that the article of food (soyabean oil) was misbranded since the picture contained on the label has nothing to do with the article of food in question, completely ignoring the fact that the article of food can be used for cooking the vegetables shown in the picture which cannot be said to be exaggerating the quality of the food in question. | 1 | 1,595 | 689 | ### Instruction:
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Rule 37 D of the PFA Rules.5. The prosecution initiated against the appellant was challenged by filing a petition under Section 482 of the Code of Criminal Procedure, 1973. The High Court decided the criminal proceedings on 20.07.2007. The High Court came to the conclusion that the vendor did not produce any warranty, thus the manufacturer or the dealer cannot be prosecuted. When there is no allegation in the complaint alleging that the vendor produced any warranty or bill with regard to the purchase of the food item in question from accused No.2, that is the appellant herein, merely basing on the label declaration the appellant cannot be prosecuted. However, the order of quashing will not preclude the concerned Magistrate in arraying the appellant as an accused during the trial, if there is any offence.6. The High Court has also observed that it is clear that the article of food in question was misbranded since none of the pictures contained on the label has nothing to do with the article of food in question. Therefore, it is held to be a clear case of violation of Rule 37 D of the PFA Rules. Aggrieved by these findings, the present appeal is filed. 7. It is contended by Shri Ashok H. Desai, learned senior counsel for the appellant that the article of food can be considered to be misbranded only when false claims are made with respect to such article of food upon the label or otherwise and there is no statutory prohibition under the Act in printing pictures of vegetables on the label of article of food on which the said article of food may be used in the preparation / cooking of such vegetables. Whereas it is submitted by the learned counsel for the State that the pictures on the brand does not relate to the article which the appellant manufactures and sells and, therefore, it would fall within the violation of Rule 37 D of the PFA Rules as misbranded. The relevant provision reads as under: -RULE 37D - "Labelling of edible oils and fats - The package, label or the advertisement of edible oils and fats shall not use the expressions "Super-Refined", "Extra-Refined", "Micro-Refined", "Double-Refined", "Ultra-Refined", "Anti-Cholesterol", "Cholesterol-Fighter", "Soothing to Heart", "Cholesterol-Friendly", "Saturated Fat Free" or such other expressions which are an exaggeration of the quality of the product." 8. The provision for labeling of edible oils and fats is under Rule 37 D of the PFA Rules which specifies labeling of edible oils and fats. The Rule clearly states that package / labeling or advertisement of edible oils and fats shall not use the expressions such as (i) super-refined; (ii) extra-refined; (iii) micro-refined; (iv) double-refined; (v) ultra-refined; (vi) anti-cholesterol; (vii) cholesterol fighter; (viii) soothing to heart; (ix) cholesterol friendly; (x) saturated fat free, etc. It would be pertinent to say that all these expressions from (i) to (x) are prohibited because if they are mentioned on the labeling of the product they will tend to exaggerate the quality of the product. The Rule further states that all such other expression are also prohibited which tend to exaggerate the quality of the product. For the purposes of interpretation of this Rule the principle of ejusdem generis can be applied; ejusdem generis is a latin expression which means "of the same kind" , for example where a law lists specific classes of persons or things and then refers to them in general, the general statements only apply to the same kind of persons or things specifically listed. In other words, it means words of similar class. According to Blacks Law Dictionary (8th Edn. 2004), the principle of ejusdem generis is where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same kind or class as those specifically mentioned. It is a cannon of statutory construction that where general words follow the enumeration of particular classes of things, the general words will be construed as applying only to things of the same general class as those enumerated.9. Keeping the above principle in mind, the words "such other" as used in Rule 37 D is to be read along with the subject matter in which they have been used. The residuary clause of the rule has to be read in light of the ten prohibited expressions, and it becomes clear that what is prohibited are only the expressions which are an exaggeration of the quality of the product.10. In the present case, it is true that the appellant has used pictures of vegetables on the label of the product which is refined soyabean oil, which according to the appellant is to depict the purpose for which the oil can be used, viz., preparation of the vegetables depicted thereon. Unless the picture depicted on a label of edible oils and fats exaggerates the quality of the product, it would not fall within the mischief of Rule 37 D. In the present case, the vegetables shown on the label of soyabean oil does not in any way indicate that the quality of soyabean oil is super-refined, extra-refined, micro-refined, double-refined, ultra-refined, anti-cholesterol, cholesterol fighter, soothing to heart, cholesterol friendly, saturated fat free etc., nor it indicates the exaggeration towards the quality of the product to come within the mischief of Rule 37D of the PFA Rules. In our opinion the High Court has committed a serious error in arriving at a finding that the article of food (soyabean oil) was misbranded since the picture contained on the label has nothing to do with the article of food in question, completely ignoring the fact that the article of food can be used for cooking the vegetables shown in the picture which cannot be said to be exaggerating the quality of the food in question. 11. For the aforesaid reasons, the
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1
### Explanation:
The provision for labeling of edible oils and fats is under Rule 37 D of the PFA Rules which specifies labeling of edible oils and fats. The Rule clearly states that package / labeling or advertisement of edible oils and fats shall not use the expressions such as (i) super-refined; (ii) extra-refined; (iii) micro-refined; (iv) double-refined; (v) ultra-refined; (vi) anti-cholesterol; (vii) cholesterol fighter; (viii) soothing to heart; (ix) cholesterol friendly; (x) saturated fat free, etc. It would be pertinent to say that all these expressions from (i) to (x) are prohibited because if they are mentioned on the labeling of the product they will tend to exaggerate the quality of the product. The Rule further states that all such other expression are also prohibited which tend to exaggerate the quality of the product. For the purposes of interpretation of this Rule the principle of ejusdem generis can be applied; ejusdem generis is a latin expression which means "of the same kind" , for example where a law lists specific classes of persons or things and then refers to them in general, the general statements only apply to the same kind of persons or things specifically listed. In other words, it means words of similar class. According to Blacks Law Dictionary (8th Edn. 2004), the principle of ejusdem generis is where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same kind or class as those specifically mentioned. It is a cannon of statutory construction that where general words follow the enumeration of particular classes of things, the general words will be construed as applying only to things of the same general class as those enumerated.9. Keeping the above principle in mind, the words "such other" as used in Rule 37 D is to be read along with the subject matter in which they have been used. The residuary clause of the rule has to be read in light of the ten prohibited expressions, and it becomes clear that what is prohibited are only the expressions which are an exaggeration of the quality of the product.10. In the present case, it is true that the appellant has used pictures of vegetables on the label of the product which is refined soyabean oil, which according to the appellant is to depict the purpose for which the oil can be used, viz., preparation of the vegetables depicted thereon. Unless the picture depicted on a label of edible oils and fats exaggerates the quality of the product, it would not fall within the mischief of Rule 37 D. In the present case, the vegetables shown on the label of soyabean oil does not in any way indicate that the quality of soyabean oil is super-refined, extra-refined, micro-refined, double-refined, ultra-refined, anti-cholesterol, cholesterol fighter, soothing to heart, cholesterol friendly, saturated fat free etc., nor it indicates the exaggeration towards the quality of the product to come within the mischief of Rule 37D of the PFA Rules. In our opinion the High Court has committed a serious error in arriving at a finding that the article of food (soyabean oil) was misbranded since the picture contained on the label has nothing to do with the article of food in question, completely ignoring the fact that the article of food can be used for cooking the vegetables shown in the picture which cannot be said to be exaggerating the quality of the food in question.
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Commissioner of Income-Tax, Goa Vs. V.S. Dempo & Company Limited | earlier assessment years, there must be a material change in the fact situation. There is no gainsaying that the previous view will have no applicable even in cases where the law itself has undergone a change but before an earlier view can be upset or digressed from, one of the two must be demonstrated, namely, a change in the fact situation or a material change in law whether enacted or declared by the Supreme Court. The Delhi High Court has therefore, held that the amount received from the co-developers and investments of such amount in fixed deposit is directly related to business activities and the interest income earned on deposits held to be the business income for earlier Assessment Years. The Revenue accepting the Appellate orders and there was no material change in facts in subsequent years, the view taken for earlier years would continue on principles of consistency.(iv) Next judgment relied upon by Shri Naniwadekar is in the case of Tamil Nadu Dairy Development Corpn. Ltd. (supra) wherein the Division Bench of Madras High Court has held that the interest accrued on short term deposits of the assessee -company which were made out of the business funds available with the assessee -company before the same were utilized for actual business and, and as such, the same is incidental to the business activity of the assessee- company and as such, the interest on the short term deposits should be treated as business income.(v) The last judgment relied upon by the learned counsel appearing for the Respondent/Assessee is in the case of Paramount Premises (P) Ltd. (supra), wherein the Division Bench of the Bombay High Court has held that " idle amounts were deposited with the bank or given on temporary loans until such time as they were required for construction. Thus, interest was earned on these amounts. The assessee was also required to give a guarantee to the State Bank in respect of the land taken on lease for construction work. For this purpose, certain amounts were kept in fixed deposits on which the assessee earned interest. In these circumstances, the Tribunal has given a finding of fact to the effect that the entire interest sprang from the business activity of the assessee and did not arise out of any independent activity. Accordingly, interest income was considered as the business income of the assessee.14. Thus, after taking into consideration the settled legal position as enumerated from the aforesaid citations and as stated earlier, in the present case also as per the own findings of the Assessing Officer, the Assessee is utilizing deposits for giving security to the banks and opening Letters of Credit etc. As per the records, investing surplus funds in the call money market or short term deposit in favour of the banks for providing security for obtaining short term loans or as a deposit towards LC opening is one of the business activities of the Assessee and this had come for the scrutiny of the Tribunal for the Assessment Years 1967-68 to 1972-1973 and it was held in favour of the Assessee that the interest income accrued therefrom is a business income. The record is very clear that there is no material to demonstrate the substantial change in the said view for years which were followed thereafter. It was after substantial consistent following of the said view, it appears that the Assessing Officer took a distinct and separate view thereby treating the interest income as income from other sources in the year 1991-92 and thereafter. The department has not established in any case that the said interest has been spent for any other purpose except the business purpose. The important aspect which is to be considered here is that the Respondent/Assessee is earning this interest income for last many years and it was always treated as business income. In view of the ratio laid down by the Supreme Court in the case of Radhasoami Satsang (supra) and by applying the said rule of consistency, we hold that, in the absence of any material change justifying the Department/Assessing Officer to take a different view from that taken in earlier proceedings, the question of the exemption of Respondent/Assessee should not have been reopened.15. The Respondent/Assessee has utilized the surplus money for making investments in the bank deposits or call money market or inter-corporate deposits and it always retained its character as business assets. In our opinion the interest income earned by the Assessee has direct nexus with its business activity, as the said amounts were invested by the Respondent/Assessee for availing short term loans or for taking out LC opening. The object clauses of the Memorandum and Articles of Association particularly clauses (55) and (82) permit the company to lend, advance or deposit money as part of the business activity and the Assessee company carries out money market which is one of its business activities. Therefore, it can be safely said that the interest income earned by the Respondent/ Assessee is an earning out of its business activity only, as it has direct nexus with the said amount of business activity. The interest received by the Respondent/Assessee is having direct or proximate relationship with their main business activity and as such, the same has to be treated as "business income". As stated earlier, the money of the company was used for making investment in the bank deposits or call money market or inter-corporate deposits with the objective for availing short term loans or for keeping deposits for the purpose of LCs and said money had always retained its character as business assets. In our opinion, the surplus money, unless and until it is pulled out totally from the business and having absolutely no nexus with the amount or ancillary business activity and thereby the same is deposited with the bank only and solely with a view of earning interest by keeping the said funds idle, then it can be treated as non-business income or income from the other sources. | 0[ds]11. The record reveals that the Assessee has received interest in the respective previous years on FDR in the banks anddeposits. The Assessing Officer treated the interest income under the head "income from other sources" and excluded from the head " profits and gains of business or profession". The Assessing Officer was of the view that the Assessee is having surplus funds available which Assessee was investing in the call money deposit/short term deposit in various banks and only as and when it is required for providing security, the Assessee is availing/furnishing the said deposit as security for obtaining short term loans or as a deposit towards LC opening. That the entire deposits to a large extent were being renewed period after period and year after year and the Assessee is earning interest for years together on the said deposits. That the Assessing Officer has further held that as the Assessee was having surplus money, which has not been used for business purpose, the money was kept for earning interest and the interest earned by the Assessee cannot be treated as a business income.Thus, after taking into consideration the settled legal position as enumerated from the aforesaid citations and as stated earlier, in the present case also as per the own findings of the Assessing Officer, the Assessee is utilizing deposits for giving security to the banks and opening Letters of Credit etc. As per the records, investing surplus funds in the call money market or short term deposit in favour of the banks for providing security for obtaining short term loans or as a deposit towards LC opening is one of the business activities of the Assessee and this had come for the scrutiny of the Tribunal for the Assessment Years73 and it was held in favour of the Assessee that the interest income accrued therefrom is a business income. The record is very clear that there is no material to demonstrate the substantial change in the said view for years which were followed thereafter. It was after substantial consistent following of the said view, it appears that the Assessing Officer took a distinct and separate view thereby treating the interest income as income from other sources in the yearand thereafter. The department has not established in any case that the said interest has been spent for any other purpose except the business purpose. The important aspect which is to be considered here is that the Respondent/Assessee is earning this interest income for last many years and it was always treated as business income. In view of the ratio laid down by the Supreme Court in the case of Radhasoami Satsang (supra) and by applying the said rule of consistency, we hold that, in the absence of any material change justifying the Department/Assessing Officer to take a different view from that taken in earlier proceedings, the question of the exemption of Respondent/Assessee should not have been reopened.15. The Respondent/Assessee has utilized the surplus money for making investments in the bank deposits or call money market ordeposits and it always retained its character as business assets. In our opinion the interest income earned by the Assessee has direct nexus with its business activity, as the said amounts were invested by the Respondent/Assessee for availing short term loans or for taking out LC opening. The object clauses of the Memorandum and Articles of Association particularly clauses (55) and (82) permit the company to lend, advance or deposit money as part of the business activity and the Assessee company carries out money market which is one of its business activities. Therefore, it can be safely said that the interest income earned by the Respondent/ Assessee is an earning out of its business activity only, as it has direct nexus with the said amount of business activity. The interest received by the Respondent/Assessee is having direct or proximate relationship with their main business activity and as such, the same has to be treated as "business income". As stated earlier, the money of the company was used for making investment in the bank deposits or call money market ordeposits with the objective for availing short term loans or for keeping deposits for the purpose of LCs and said money had always retained its character as business assets. In our opinion, the surplus money, unless and until it is pulled out totally from the business and having absolutely no nexus with the amount or ancillary business activity and thereby the same is deposited with the bank only and solely with a view of earning interest by keeping the said funds idle, then it can be treated asincome or income from the other sources. | 0 | 3,899 | 833 | ### 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:
earlier assessment years, there must be a material change in the fact situation. There is no gainsaying that the previous view will have no applicable even in cases where the law itself has undergone a change but before an earlier view can be upset or digressed from, one of the two must be demonstrated, namely, a change in the fact situation or a material change in law whether enacted or declared by the Supreme Court. The Delhi High Court has therefore, held that the amount received from the co-developers and investments of such amount in fixed deposit is directly related to business activities and the interest income earned on deposits held to be the business income for earlier Assessment Years. The Revenue accepting the Appellate orders and there was no material change in facts in subsequent years, the view taken for earlier years would continue on principles of consistency.(iv) Next judgment relied upon by Shri Naniwadekar is in the case of Tamil Nadu Dairy Development Corpn. Ltd. (supra) wherein the Division Bench of Madras High Court has held that the interest accrued on short term deposits of the assessee -company which were made out of the business funds available with the assessee -company before the same were utilized for actual business and, and as such, the same is incidental to the business activity of the assessee- company and as such, the interest on the short term deposits should be treated as business income.(v) The last judgment relied upon by the learned counsel appearing for the Respondent/Assessee is in the case of Paramount Premises (P) Ltd. (supra), wherein the Division Bench of the Bombay High Court has held that " idle amounts were deposited with the bank or given on temporary loans until such time as they were required for construction. Thus, interest was earned on these amounts. The assessee was also required to give a guarantee to the State Bank in respect of the land taken on lease for construction work. For this purpose, certain amounts were kept in fixed deposits on which the assessee earned interest. In these circumstances, the Tribunal has given a finding of fact to the effect that the entire interest sprang from the business activity of the assessee and did not arise out of any independent activity. Accordingly, interest income was considered as the business income of the assessee.14. Thus, after taking into consideration the settled legal position as enumerated from the aforesaid citations and as stated earlier, in the present case also as per the own findings of the Assessing Officer, the Assessee is utilizing deposits for giving security to the banks and opening Letters of Credit etc. As per the records, investing surplus funds in the call money market or short term deposit in favour of the banks for providing security for obtaining short term loans or as a deposit towards LC opening is one of the business activities of the Assessee and this had come for the scrutiny of the Tribunal for the Assessment Years 1967-68 to 1972-1973 and it was held in favour of the Assessee that the interest income accrued therefrom is a business income. The record is very clear that there is no material to demonstrate the substantial change in the said view for years which were followed thereafter. It was after substantial consistent following of the said view, it appears that the Assessing Officer took a distinct and separate view thereby treating the interest income as income from other sources in the year 1991-92 and thereafter. The department has not established in any case that the said interest has been spent for any other purpose except the business purpose. The important aspect which is to be considered here is that the Respondent/Assessee is earning this interest income for last many years and it was always treated as business income. In view of the ratio laid down by the Supreme Court in the case of Radhasoami Satsang (supra) and by applying the said rule of consistency, we hold that, in the absence of any material change justifying the Department/Assessing Officer to take a different view from that taken in earlier proceedings, the question of the exemption of Respondent/Assessee should not have been reopened.15. The Respondent/Assessee has utilized the surplus money for making investments in the bank deposits or call money market or inter-corporate deposits and it always retained its character as business assets. In our opinion the interest income earned by the Assessee has direct nexus with its business activity, as the said amounts were invested by the Respondent/Assessee for availing short term loans or for taking out LC opening. The object clauses of the Memorandum and Articles of Association particularly clauses (55) and (82) permit the company to lend, advance or deposit money as part of the business activity and the Assessee company carries out money market which is one of its business activities. Therefore, it can be safely said that the interest income earned by the Respondent/ Assessee is an earning out of its business activity only, as it has direct nexus with the said amount of business activity. The interest received by the Respondent/Assessee is having direct or proximate relationship with their main business activity and as such, the same has to be treated as "business income". As stated earlier, the money of the company was used for making investment in the bank deposits or call money market or inter-corporate deposits with the objective for availing short term loans or for keeping deposits for the purpose of LCs and said money had always retained its character as business assets. In our opinion, the surplus money, unless and until it is pulled out totally from the business and having absolutely no nexus with the amount or ancillary business activity and thereby the same is deposited with the bank only and solely with a view of earning interest by keeping the said funds idle, then it can be treated as non-business income or income from the other sources.
### Response:
0
### Explanation:
11. The record reveals that the Assessee has received interest in the respective previous years on FDR in the banks anddeposits. The Assessing Officer treated the interest income under the head "income from other sources" and excluded from the head " profits and gains of business or profession". The Assessing Officer was of the view that the Assessee is having surplus funds available which Assessee was investing in the call money deposit/short term deposit in various banks and only as and when it is required for providing security, the Assessee is availing/furnishing the said deposit as security for obtaining short term loans or as a deposit towards LC opening. That the entire deposits to a large extent were being renewed period after period and year after year and the Assessee is earning interest for years together on the said deposits. That the Assessing Officer has further held that as the Assessee was having surplus money, which has not been used for business purpose, the money was kept for earning interest and the interest earned by the Assessee cannot be treated as a business income.Thus, after taking into consideration the settled legal position as enumerated from the aforesaid citations and as stated earlier, in the present case also as per the own findings of the Assessing Officer, the Assessee is utilizing deposits for giving security to the banks and opening Letters of Credit etc. As per the records, investing surplus funds in the call money market or short term deposit in favour of the banks for providing security for obtaining short term loans or as a deposit towards LC opening is one of the business activities of the Assessee and this had come for the scrutiny of the Tribunal for the Assessment Years73 and it was held in favour of the Assessee that the interest income accrued therefrom is a business income. The record is very clear that there is no material to demonstrate the substantial change in the said view for years which were followed thereafter. It was after substantial consistent following of the said view, it appears that the Assessing Officer took a distinct and separate view thereby treating the interest income as income from other sources in the yearand thereafter. The department has not established in any case that the said interest has been spent for any other purpose except the business purpose. The important aspect which is to be considered here is that the Respondent/Assessee is earning this interest income for last many years and it was always treated as business income. In view of the ratio laid down by the Supreme Court in the case of Radhasoami Satsang (supra) and by applying the said rule of consistency, we hold that, in the absence of any material change justifying the Department/Assessing Officer to take a different view from that taken in earlier proceedings, the question of the exemption of Respondent/Assessee should not have been reopened.15. The Respondent/Assessee has utilized the surplus money for making investments in the bank deposits or call money market ordeposits and it always retained its character as business assets. In our opinion the interest income earned by the Assessee has direct nexus with its business activity, as the said amounts were invested by the Respondent/Assessee for availing short term loans or for taking out LC opening. The object clauses of the Memorandum and Articles of Association particularly clauses (55) and (82) permit the company to lend, advance or deposit money as part of the business activity and the Assessee company carries out money market which is one of its business activities. Therefore, it can be safely said that the interest income earned by the Respondent/ Assessee is an earning out of its business activity only, as it has direct nexus with the said amount of business activity. The interest received by the Respondent/Assessee is having direct or proximate relationship with their main business activity and as such, the same has to be treated as "business income". As stated earlier, the money of the company was used for making investment in the bank deposits or call money market ordeposits with the objective for availing short term loans or for keeping deposits for the purpose of LCs and said money had always retained its character as business assets. In our opinion, the surplus money, unless and until it is pulled out totally from the business and having absolutely no nexus with the amount or ancillary business activity and thereby the same is deposited with the bank only and solely with a view of earning interest by keeping the said funds idle, then it can be treated asincome or income from the other sources.
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VIIT PHARMACY COLLEGE AND ANOTHER Vs. DR. A.P.J. ABDUL KALAM TECHNICAL UNIVERSITY AND ANOTHER | direction to respondent No.1-University to organize special examinations for B. Pharma students for academic year 2020- 21 in view of the notification dated 19th March 2021. 2. The facts in brief giving rise to the petition are as under:- On 28th January 2020, the respondent No.1-University invited applications for grant of affiliation for the year 2020-21. In response thereto, the petitioners submitted applications in the month of February 2020 seeking affiliation for B. Pharma course for the year 2020-21. It is pertinent to note that the Pharmacy Council of India (hereinafter referred to as the PCI) granted its approval to the petitioner No.1-VIIT Pharmacy College vide order dated 10th April 2020 for conduct of first year B. Pharma course for the academic year 2020-21 with intake capacity of 100 admissions/students. Insofar as the petitioner No.2- RV Institute of Pharmacy is concerned, a similar approval was also granted; however with the intake capacity of 60 admissions/students. The same was subject to submission of consent of affiliation of Examining Authority and NOC of the State Government. 3. In the meantime, the respondent No.2-State of Uttar Pradesh came up with the policy dated 15th May 2020 for restricting the number of pharmacy colleges to only two per district. The said policy came to be challenged before the High Court of Allahabad in bunch of petitions being Misc. Single No. 12536 of 2020 filed by Zee College of Pharmacy with companion matters. The Allahabad High Court vide judgment and order dated 2nd November 2020, relying on the judgment of this Court in the case of Pharmacy Council of India v. Dr. S.K. Toshiwal Educational Trusts Vidarbha Institute of Pharmacy and Others Etc. 2020 SCC OnLine SC 296 set aside the policy dated 15th May 2020, only insofar as the petitioners who had approached the High Court. The petitioner institutions therein were permitted to participate in the counselling being conducted for admission to Bachelors of Pharmacy course for the academic year 2020-21. 4. The petitioner No.1, relying on the order of the High Court dated 2 nd November 2020, also filed writ petition being Misc. Single No. 19510 of 2020 before the Allahabad High Court. The said petition was also allowed and the policy dated 15th May 2020 was set aside with respect to the petitioner therein and the respondents were directed to take a decision on the application of the petitioner for affiliation in accordance with law. A similar petition being Misc. Single No. 19509 of 2020 came to be filed by petitioner No.2 which too was allowed on like terms. Likewise, one S.D. College of Sciences had also filed a writ petition being Misc. Single No. 19568 of 2020 which was similarly allowed. All the above three petitions were allowed by the High Court vide order dated 9th November 2020. 5. However, the respondent No.1-University vide impugned order dated 7th December 2020, rejected the application of S.D. College of Sciences for grant of affiliation. The present petitioners along with one another institution thereafter filed Writ Petition (C) No. 1468 of 2020 before this Court in the month of December 2020. This Court vide order dated 12th January 2021 stayed the operation of the order dated 7 th December 2020 passed by respondent No.1-University and tagged the said petition along with Writ Petition (C) No. 1430 of 2020 filed by Rakshpal Bahadur Pharmacy Institute. 6. It is the contention of the petitioners, that in March 2021 though the students of the petitioner colleges were invited to the examination centre, they were not permitted to participate in the exam at the last moment. It is also the contention of the petitioners, that in view of the order dated 5th March 2021, passed by this Court in I.A. No.33272 of 2021 in Writ Petition (C) No. 1433 of 2020, students of one Zee College of Pharmacy were permitted to participate in the examination. 7. In the meantime, vide order dated 19th March 2021, the State Government, after considering the recommendations made by the Affiliation Committee, has granted conditional affiliation for admission in B. Pharma course, in compliance of the order of the High Court passed in Writ Petition (C) No. 12536 of 2020. 8. Since the respondent No.1-University refused to grant affiliation to the petitioners and has refused to permit their students to appear for the first year B. Pharma examination, the petitioners have approached this Court. 9. This Court, in the case of, Dr. S.K. Toshiwal Educational Trusts Vidarbha Institute of Pharmacy (supra), has held as under:- 87. In view of the above and for the reasons stated above, it is held that in the field of Pharmacy Education and more particularly so far as the recognition of degrees and diplomas of Pharmacy Education is concerned, the Pharmacy Act, 1948 shall prevail. The norms and regulations set by the PCI and other specified authorities under the Pharmacy Act would have to be followed by the concerned institutions imparting education for degrees and diplomas in Pharmacy, including the norms and regulations with respect to increase and/or decrease in intake capacity of the students and the decisions of the PCI shall only be followed by the institutions imparting degrees and diplomas in Pharmacy. The questions are answered accordingly. 10. Indisputably, in the present case, the PCI has granted approval to both the petitioners vide order dated 10th April 2020, with intake capacity of 100 and 60 admissions/students respectively. Not only that, the petitions filed by the petitioners challenging the policy decision of the State Government dated 15th May 2020, have been allowed by the High Court vide judgment and order dated 9th November 2020. Indisputably, the State Government also vide notification dated 19th March 2021, has granted conditional affiliation after considering the recommendations made by the Affiliation Committee. In the peculiar facts and circumstances of the case and particularly, taking into consideration, that the averments made on affidavit by the petitioners, are not controverted by the respondent No.1-University, we find that the petition deserves to be allowed. | 1[ds]9. This Court, in the case of, Dr. S.K. Toshiwal Educational Trusts Vidarbha Institute of Pharmacy (supra), has held as under:-87. In view of the above and for the reasons stated above, it is held that in the field of Pharmacy Education and more particularly so far as the recognition of degrees and diplomas of Pharmacy Education is concerned, the Pharmacy Act, 1948 shall prevail. The norms and regulations set by the PCI and other specified authorities under the Pharmacy Act would have to be followed by the concerned institutions imparting education for degrees and diplomas in Pharmacy, including the norms and regulations with respect to increase and/or decrease in intake capacity of the students and the decisions of the PCI shall only be followed by the institutions imparting degrees and diplomas in Pharmacy. The questions are answered accordingly.10. Indisputably, in the present case, the PCI has granted approval to both the petitioners vide order dated 10th April 2020, with intake capacity of 100 and 60 admissions/students respectively. Not only that, the petitions filed by the petitioners challenging the policy decision of the State Government dated 15th May 2020, have been allowed by the High Court vide judgment and order dated 9th November 2020. Indisputably, the State Government also vide notification dated 19th March 2021, has granted conditional affiliation after considering the recommendations made by the Affiliation Committee. In the peculiar facts and circumstances of the case and particularly, taking into consideration, that the averments made on affidavit by the petitioners, are not controverted by the respondent No.1-University, we find that the petition deserves to be allowed. | 1 | 1,168 | 303 | ### 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:
direction to respondent No.1-University to organize special examinations for B. Pharma students for academic year 2020- 21 in view of the notification dated 19th March 2021. 2. The facts in brief giving rise to the petition are as under:- On 28th January 2020, the respondent No.1-University invited applications for grant of affiliation for the year 2020-21. In response thereto, the petitioners submitted applications in the month of February 2020 seeking affiliation for B. Pharma course for the year 2020-21. It is pertinent to note that the Pharmacy Council of India (hereinafter referred to as the PCI) granted its approval to the petitioner No.1-VIIT Pharmacy College vide order dated 10th April 2020 for conduct of first year B. Pharma course for the academic year 2020-21 with intake capacity of 100 admissions/students. Insofar as the petitioner No.2- RV Institute of Pharmacy is concerned, a similar approval was also granted; however with the intake capacity of 60 admissions/students. The same was subject to submission of consent of affiliation of Examining Authority and NOC of the State Government. 3. In the meantime, the respondent No.2-State of Uttar Pradesh came up with the policy dated 15th May 2020 for restricting the number of pharmacy colleges to only two per district. The said policy came to be challenged before the High Court of Allahabad in bunch of petitions being Misc. Single No. 12536 of 2020 filed by Zee College of Pharmacy with companion matters. The Allahabad High Court vide judgment and order dated 2nd November 2020, relying on the judgment of this Court in the case of Pharmacy Council of India v. Dr. S.K. Toshiwal Educational Trusts Vidarbha Institute of Pharmacy and Others Etc. 2020 SCC OnLine SC 296 set aside the policy dated 15th May 2020, only insofar as the petitioners who had approached the High Court. The petitioner institutions therein were permitted to participate in the counselling being conducted for admission to Bachelors of Pharmacy course for the academic year 2020-21. 4. The petitioner No.1, relying on the order of the High Court dated 2 nd November 2020, also filed writ petition being Misc. Single No. 19510 of 2020 before the Allahabad High Court. The said petition was also allowed and the policy dated 15th May 2020 was set aside with respect to the petitioner therein and the respondents were directed to take a decision on the application of the petitioner for affiliation in accordance with law. A similar petition being Misc. Single No. 19509 of 2020 came to be filed by petitioner No.2 which too was allowed on like terms. Likewise, one S.D. College of Sciences had also filed a writ petition being Misc. Single No. 19568 of 2020 which was similarly allowed. All the above three petitions were allowed by the High Court vide order dated 9th November 2020. 5. However, the respondent No.1-University vide impugned order dated 7th December 2020, rejected the application of S.D. College of Sciences for grant of affiliation. The present petitioners along with one another institution thereafter filed Writ Petition (C) No. 1468 of 2020 before this Court in the month of December 2020. This Court vide order dated 12th January 2021 stayed the operation of the order dated 7 th December 2020 passed by respondent No.1-University and tagged the said petition along with Writ Petition (C) No. 1430 of 2020 filed by Rakshpal Bahadur Pharmacy Institute. 6. It is the contention of the petitioners, that in March 2021 though the students of the petitioner colleges were invited to the examination centre, they were not permitted to participate in the exam at the last moment. It is also the contention of the petitioners, that in view of the order dated 5th March 2021, passed by this Court in I.A. No.33272 of 2021 in Writ Petition (C) No. 1433 of 2020, students of one Zee College of Pharmacy were permitted to participate in the examination. 7. In the meantime, vide order dated 19th March 2021, the State Government, after considering the recommendations made by the Affiliation Committee, has granted conditional affiliation for admission in B. Pharma course, in compliance of the order of the High Court passed in Writ Petition (C) No. 12536 of 2020. 8. Since the respondent No.1-University refused to grant affiliation to the petitioners and has refused to permit their students to appear for the first year B. Pharma examination, the petitioners have approached this Court. 9. This Court, in the case of, Dr. S.K. Toshiwal Educational Trusts Vidarbha Institute of Pharmacy (supra), has held as under:- 87. In view of the above and for the reasons stated above, it is held that in the field of Pharmacy Education and more particularly so far as the recognition of degrees and diplomas of Pharmacy Education is concerned, the Pharmacy Act, 1948 shall prevail. The norms and regulations set by the PCI and other specified authorities under the Pharmacy Act would have to be followed by the concerned institutions imparting education for degrees and diplomas in Pharmacy, including the norms and regulations with respect to increase and/or decrease in intake capacity of the students and the decisions of the PCI shall only be followed by the institutions imparting degrees and diplomas in Pharmacy. The questions are answered accordingly. 10. Indisputably, in the present case, the PCI has granted approval to both the petitioners vide order dated 10th April 2020, with intake capacity of 100 and 60 admissions/students respectively. Not only that, the petitions filed by the petitioners challenging the policy decision of the State Government dated 15th May 2020, have been allowed by the High Court vide judgment and order dated 9th November 2020. Indisputably, the State Government also vide notification dated 19th March 2021, has granted conditional affiliation after considering the recommendations made by the Affiliation Committee. In the peculiar facts and circumstances of the case and particularly, taking into consideration, that the averments made on affidavit by the petitioners, are not controverted by the respondent No.1-University, we find that the petition deserves to be allowed.
### Response:
1
### Explanation:
9. This Court, in the case of, Dr. S.K. Toshiwal Educational Trusts Vidarbha Institute of Pharmacy (supra), has held as under:-87. In view of the above and for the reasons stated above, it is held that in the field of Pharmacy Education and more particularly so far as the recognition of degrees and diplomas of Pharmacy Education is concerned, the Pharmacy Act, 1948 shall prevail. The norms and regulations set by the PCI and other specified authorities under the Pharmacy Act would have to be followed by the concerned institutions imparting education for degrees and diplomas in Pharmacy, including the norms and regulations with respect to increase and/or decrease in intake capacity of the students and the decisions of the PCI shall only be followed by the institutions imparting degrees and diplomas in Pharmacy. The questions are answered accordingly.10. Indisputably, in the present case, the PCI has granted approval to both the petitioners vide order dated 10th April 2020, with intake capacity of 100 and 60 admissions/students respectively. Not only that, the petitions filed by the petitioners challenging the policy decision of the State Government dated 15th May 2020, have been allowed by the High Court vide judgment and order dated 9th November 2020. Indisputably, the State Government also vide notification dated 19th March 2021, has granted conditional affiliation after considering the recommendations made by the Affiliation Committee. In the peculiar facts and circumstances of the case and particularly, taking into consideration, that the averments made on affidavit by the petitioners, are not controverted by the respondent No.1-University, we find that the petition deserves to be allowed.
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V.L.S.Finance Ltd Vs. Union Of India | charged necessarily does not invite imprisonment or imprisonment and also fine. Hence, we are of the opinion that the nature of the offence is such that it was possible to be compounded by the Company Law Board. 11. Mr. Shankaranarayanan, then submits that sub-section (7) of Section 621A confers jurisdiction on the court to accord permission for compounding of the offence punishable with imprisonment or with fine or with both, the jurisdiction of the Company Law Board is excluded and, therefore, the Company Law Board erred in acceding to the request of the accused for compounding of the offence. Sub-section (1) of Section 621A and sub-section (7) thereof are differently worded but on their close reading it is evident that both cover such offences depending upon the nature of punishment. Sub-section (1) of Section 621A excludes offence punishable with imprisonment only or with imprisonment and also fine and includes the residue offences which will obviously include offence punishable with imprisonment or with fine or with both whereas sub-section (7) specifically include those and excludes, like sub-section (1), offences punishable with imprisonment only or with imprisonment and also fine. Therefore, both cover similar nature of offences. Hence, the power for compounding can be exercised in relation to the same nature of offences by the Company Law Board or the court in seisin of the matter with the difference that the Company Law Board can proceed to compound such offence either before or after the institution of any prosecution. In this connection, it shall be relevant to refer to Section 621A(4)b) of the Act, which provides that where any offence is compounded under this section, whether before or after the institution of any prosecution, an intimation thereof shall be given by the Company to the Registrar within 7 days from the date on which the offence is compounded. Section 621A(4)d) mandates that where the composition of any offence is made after the institution of any prosecution, such composition would be brought by the Registrar in writing to the notice of the court in which the prosecution is pending and on such notice of the composition of the offence being given, the accused in relation to whom the offence is so compounded shall be discharged. 12. From the conspectus of what we have observed above, it is more than clear that an offence committed by an accused under the Act, not being an offence punishable with imprisonment only or imprisonment and also with fine, is permissible to be compounded by the Company Law Board either before or after the institution of any prosecution. In view of sub-section (7) of Section 621A, the criminal court also possesses similar power to compound an offence after institution of the prosecution. 13. Now the question is whether in the aforesaid circumstances the Company Law Board can compound offence punishable with fine or imprisonment or both without permission of the court. It is pointed out that when the prosecution has been laid, it is the criminal court which is in seisin of the matter and it is only the magistrate or the court in seisin of the matter who can accord permission to compound the offence. In any view of the matter, according to the learned counsel, the Company Law Board has to seek permission of the court and it cannot compound the offence without such permission. This line of reasoning does not commend us. Both sub-section (1) and sub-section (7) of Section 621A of the Act start with a non-obstante clause. As is well known, a non-obstante clause is used as a legislative device to give the enacting part of the section, in case of conflict, an overriding effect over the provisions of the Act mentioned in the non-obstante clause. 14. Ordinarily, the offence is compounded under the provisions of the Code of Criminal Procedure and the power to accord permission is conferred on the court excepting those offences for which the permission is not required. However, in view of the non-obstante clause, the power of composition can be exercised by the court or the Company Law Board. The legislature has conferred the same power to the Company Law Board which can exercise its power either before or after the institution of any prosecution whereas the criminal court has no power to accord permission for composition of an offence before the institution of the proceeding. The legislature in its wisdom has not put the rider of prior permission of the court before compounding the offence by the Company Law Board and in case the contention of the appellant is accepted, same would amount to addition of the words “with the prior permission of the court” in the Act, which is not permissible. 15. As is well settled, while interpreting the provisions of a statute, the court avoids rejection or addition of words and resort to that only in exceptional circumstances to achieve the purpose of Act or give purposeful meaning. It is also a cardinal rule of interpretation that words, phrases and sentences are to be given their natural, plain and clear meaning. When the language is clear and unambiguous, it must be interpreted in an ordinary sense and no addition or alteration of the words or expressions used is permissible. As observed earlier, the aforesaid enactment was brought in view of the need of leniency in the administration of the Act because a large number of defaults are of technical nature and many defaults occurred because of the complex nature of the provision. 16. From what we have observed above, we are of the opinion that the power under sub-section (1) and sub-section (7) of Section 621A are parallel powers to be exercised by the Company Law Board or the authorities mentioned therein and prior permission of Court is not necessary for compounding the offence, when power of compounding is exercised by the Company Law Board. In view of what we have observed above, the order impugned does not require any interference by this Court. 17. | 0[ds]we are of the opinion that the power under sub-section (1) and sub-section (7) of Section 621A are parallel powers to be exercised by the Company Law Board or the authorities mentioned therein and prior permission of Court is not necessary for compounding the offence, when power of compounding is exercised by the Company Law Board. In view of what we have observed above, the order impugned does not require any interference by this Court. | 0 | 3,468 | 87 | ### 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:
charged necessarily does not invite imprisonment or imprisonment and also fine. Hence, we are of the opinion that the nature of the offence is such that it was possible to be compounded by the Company Law Board. 11. Mr. Shankaranarayanan, then submits that sub-section (7) of Section 621A confers jurisdiction on the court to accord permission for compounding of the offence punishable with imprisonment or with fine or with both, the jurisdiction of the Company Law Board is excluded and, therefore, the Company Law Board erred in acceding to the request of the accused for compounding of the offence. Sub-section (1) of Section 621A and sub-section (7) thereof are differently worded but on their close reading it is evident that both cover such offences depending upon the nature of punishment. Sub-section (1) of Section 621A excludes offence punishable with imprisonment only or with imprisonment and also fine and includes the residue offences which will obviously include offence punishable with imprisonment or with fine or with both whereas sub-section (7) specifically include those and excludes, like sub-section (1), offences punishable with imprisonment only or with imprisonment and also fine. Therefore, both cover similar nature of offences. Hence, the power for compounding can be exercised in relation to the same nature of offences by the Company Law Board or the court in seisin of the matter with the difference that the Company Law Board can proceed to compound such offence either before or after the institution of any prosecution. In this connection, it shall be relevant to refer to Section 621A(4)b) of the Act, which provides that where any offence is compounded under this section, whether before or after the institution of any prosecution, an intimation thereof shall be given by the Company to the Registrar within 7 days from the date on which the offence is compounded. Section 621A(4)d) mandates that where the composition of any offence is made after the institution of any prosecution, such composition would be brought by the Registrar in writing to the notice of the court in which the prosecution is pending and on such notice of the composition of the offence being given, the accused in relation to whom the offence is so compounded shall be discharged. 12. From the conspectus of what we have observed above, it is more than clear that an offence committed by an accused under the Act, not being an offence punishable with imprisonment only or imprisonment and also with fine, is permissible to be compounded by the Company Law Board either before or after the institution of any prosecution. In view of sub-section (7) of Section 621A, the criminal court also possesses similar power to compound an offence after institution of the prosecution. 13. Now the question is whether in the aforesaid circumstances the Company Law Board can compound offence punishable with fine or imprisonment or both without permission of the court. It is pointed out that when the prosecution has been laid, it is the criminal court which is in seisin of the matter and it is only the magistrate or the court in seisin of the matter who can accord permission to compound the offence. In any view of the matter, according to the learned counsel, the Company Law Board has to seek permission of the court and it cannot compound the offence without such permission. This line of reasoning does not commend us. Both sub-section (1) and sub-section (7) of Section 621A of the Act start with a non-obstante clause. As is well known, a non-obstante clause is used as a legislative device to give the enacting part of the section, in case of conflict, an overriding effect over the provisions of the Act mentioned in the non-obstante clause. 14. Ordinarily, the offence is compounded under the provisions of the Code of Criminal Procedure and the power to accord permission is conferred on the court excepting those offences for which the permission is not required. However, in view of the non-obstante clause, the power of composition can be exercised by the court or the Company Law Board. The legislature has conferred the same power to the Company Law Board which can exercise its power either before or after the institution of any prosecution whereas the criminal court has no power to accord permission for composition of an offence before the institution of the proceeding. The legislature in its wisdom has not put the rider of prior permission of the court before compounding the offence by the Company Law Board and in case the contention of the appellant is accepted, same would amount to addition of the words “with the prior permission of the court” in the Act, which is not permissible. 15. As is well settled, while interpreting the provisions of a statute, the court avoids rejection or addition of words and resort to that only in exceptional circumstances to achieve the purpose of Act or give purposeful meaning. It is also a cardinal rule of interpretation that words, phrases and sentences are to be given their natural, plain and clear meaning. When the language is clear and unambiguous, it must be interpreted in an ordinary sense and no addition or alteration of the words or expressions used is permissible. As observed earlier, the aforesaid enactment was brought in view of the need of leniency in the administration of the Act because a large number of defaults are of technical nature and many defaults occurred because of the complex nature of the provision. 16. From what we have observed above, we are of the opinion that the power under sub-section (1) and sub-section (7) of Section 621A are parallel powers to be exercised by the Company Law Board or the authorities mentioned therein and prior permission of Court is not necessary for compounding the offence, when power of compounding is exercised by the Company Law Board. In view of what we have observed above, the order impugned does not require any interference by this Court. 17.
### Response:
0
### Explanation:
we are of the opinion that the power under sub-section (1) and sub-section (7) of Section 621A are parallel powers to be exercised by the Company Law Board or the authorities mentioned therein and prior permission of Court is not necessary for compounding the offence, when power of compounding is exercised by the Company Law Board. In view of what we have observed above, the order impugned does not require any interference by this Court.
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M/S Dugar Tea Industries Pvt.Ltd Vs. State Of Assam | tea was not a manufacturing activity and therefore, also the appellant was not entitled to the benefit claimed by it. 13. The learned counsel thereafter submitted that according to the provisions of Section 4 of the Act, Certificate of Authorisation should have been procured by the appellant for availing the benefit under the Act. Such a Certificate of Authorisation had never been issued to the appellant-Company and therefore, the appellant was not entitled to the exemption in respect of payment of sales tax claimed by it. 14. For the aforestated reasons, the learned counsel submitted that the appeals deserved to be dismissed. 15. We have heard the learned counsel at length and have considered the relevant legal provisions and the judgments referred to by the learned counsel. 16. Upon perusal of the record and the law laid down by this Court in the light of the facts of the case, we are of the opinion that the view expressed by the Courts below cannot be said to be incorrect. 17. Rule 2(f) of the Assam Industries (Sales Tax Concession) Rules, 1986 reads as under:- “2(f) ‘Raw material’ means any material or commodity capable of being used for manufacture of any other product specified in any authorisation certificate as intended by the holder for use by him as raw material in the manufacture of goods in the State for sale by him but shall not include the following commodities namely :(a) tea, (b) coal, (c) liquefied petroleum gas, (d) plywood, (e) petrol, diesel oil and lubricants.” In view of the aforestated Rule, it is crystal clear that tea is not to be included in “raw material” and therefore, no exemption could have been claimed by the Appellant Company in respect of ‘tea’ as a raw material for purchase as well as sale of tea. It is also pertinent to note that the appellant had earlier preferred Civil Rule No.4162 of 1991 before the High Court challenging validity of the aforestated Rule. The learned Single Judge, while rejecting the petition, vide order dated 17th August, 1988 held that Rule 2(f) of the 1988 Rules was legal and valid and the plea of promissory estoppel raised by the appellant was also not accepted. Against the said judgment, no appeal was filed by the appellant and therefore, the said issue had attained finality.18. Another important thing is with regard to certificate of authorisation.19. It is an admitted fact that so as to avail the benefit as per Section 4 of the Act, certificate of authorisation is a must. The said Section reads as under: “4. Certificate of authorisation –(1) A person undertaking to manufacture in the State such goods, as may be prescribed, may make an application in the prescribed form to the prescribed authority and within the prescribed time for a certificate of authorisation for the purposes of sub-section (1) of section 3.(2) If the authority to whom an application is made under sub-section (1) is satisfied that the application is in conformity with the provisions of the Act and the rules made there under it shall grant to the applicant a certificate of authorisation in the prescribed form which shall specify the class or classes of goods for purposes of sub-section (1) of section 3 and the period for which it shall remain valid.(3) A certificate of authorisation granted under this section shall remain valid for a period of five years from the date of completion of effective steps for setting up the industrial unit in respect of which the certificate is granted.(4) No certificate of authorisation shall be granted under sub-section (2) except in respect of such raw materials as may be prescribed.(5) A certificate of authorisation granted under this section may:-(a) be amended by the authority granting it if he is satisfied either on the application of the holder or, where no such application has been made, after due notice to the holder, that by reason of the holder having changed the name, place or nature of his business or the class or classes of goods bought, sold or manufactured by him or for any other reason the certificate of authorisation granted to him required to be amended; or(b) be cancelled by the authority granting it, where he is satisfied after due notice to the holder that the holder has ceased to carry on business or for any other sufficient reason.” 20. As stated hereinabove, it is an admitted fact that no certificate of authorisation, as provided under the Act, had ever been granted to the appellant-Company and therefore, in our opinion, the courts below were absolutely right to the effect that the appellant was not entitled to any sales tax exemption.21. So far as the averments with regard to estoppel are concerned, it is a settled legal position that there cannot be any estoppel against law. When there is a legal provision to the effect that when tea is used as raw material, no tax exemption would be available under the provisions of the Act, none can claim tax exemption in respect of sales tax payable on purchase or sale of tea. It is true that an eligibility certificate had been issued to the appellant-Company in pursuance of the 1986 Incentive Scheme of Government of Assam but when the said Scheme was given a statutory form under the Act, ‘tea’ had been excluded from the definition of raw material and therefore, on the basis of the eligibility certificate issued under the 1986 Incentive Scheme of Government of Assam, the appellant cannot claim any benefit.22. It is also pertinent to note that the respondent-Authorities have rightly held that the appellant was not in the business of ‘manufacturing’ tea but was merely blending and packing tea, which does not amount to ‘manufacturing’ of tea. We find substance in the said stand taken by the respondent-Authorities as the said view has been fortified by a decision of this Court in Commissioner of Income Tax, Kerala v. Tara Agencies 2007 (6) SCC 429. | 0[ds]In view of the aforestated Rule, it is crystal clear that tea is not to be included innd therefore, no exemption could have been claimed by the Appellant Company in respect ofas a raw material for purchase as well as sale of tea. It is also pertinent to note that the appellant had earlier preferred Civil Rule No.4162 of 1991 before the High Court challenging validity of the aforestated Rule. The learned Single Judge, while rejecting the petition, vide order dated 17th August, 1988 held that Rule 2(f) of the 1988 Rules was legal and valid and the plea of promissory estoppel raised by the appellant was also not accepted. Against the said judgment, no appeal was filed by the appellantand therefore, thesaid issue had attained finality.18. Another important thing is with regard to certificate of authorisation.19. It is an admitted fact that so as to avail the benefit as per Section 4 of the Act, certificate of authorisation is a must. The said Section reads asCertificate of authorisation –(1) A person undertaking to manufacture in the State such goods, as may be prescribed, may make an application in the prescribed form to the prescribed authority and within the prescribed time for a certificate of authorisation for the purposes of(1) of section 3.(2) If the authority to whom an application is made under(1) is satisfied that the application is in conformity with the provisions of the Act and the rules made there under it shall grant to the applicant a certificate of authorisation in the prescribed form which shall specify the class or classes of goods for purposes of(1) of section 3 and the period for which it shall remain valid.(3) A certificate of authorisation granted under this section shall remain valid for a period of five years from the date of completion of effective steps for setting up the industrial unit in respect of which the certificate is granted.(4) No certificate of authorisation shall be granted under(2) except in respect of such raw materials as may be prescribed.(5) A certificate of authorisation granted under this sectionbe amended by the authority granting it if he is satisfied either on the application of the holder or, where no such application has been made, after due notice to the holder, that by reason of the holder having changed the name, place or nature of his business or the class or classes of goods bought, sold or manufactured by him or for any other reason the certificate of authorisation granted to him required to be amended; or(b) be cancelled by the authority granting it, where he is satisfied after due notice to the holder that the holder has ceased to carry on business or for any other sufficient reason.As stated hereinabove, it is an admitted fact that no certificate of authorisation, as provided under the Act, had ever been granted to theand therefore, in our opinion, the courts below were absolutely right to the effect that the appellant was not entitled to any sales tax exemption.21. So far as the averments with regard to estoppel are concerned, it is a settled legal position that there cannot be any estoppel against law. When there is a legal provision to the effect that when tea is used as raw material, no tax exemption would be available under the provisions of the Act, none can claim tax exemption in respect of sales tax payable on purchase or sale of tea. It is true that an eligibility certificate had been issued to thein pursuance of the 1986 Incentive Scheme of Government of Assam but when the said Scheme was given a statutory form under the Act,had been excluded from the definition of raw material and therefore, on the basis of the eligibility certificate issued under the 1986 Incentive Scheme of Government of Assam, the appellant cannot claim any benefit.22. It is also pertinent to note that thehave rightly held that the appellant was not in the business oftea but was merely blending and packing tea, which does not amount toof tea. We find substance in the said stand taken by theas the said view has been fortified by a decision of this Court in Commissioner of Income Tax, Kerala v. Tara Agencies 2007 (6) SCC 429. | 0 | 2,047 | 797 | ### 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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tea was not a manufacturing activity and therefore, also the appellant was not entitled to the benefit claimed by it. 13. The learned counsel thereafter submitted that according to the provisions of Section 4 of the Act, Certificate of Authorisation should have been procured by the appellant for availing the benefit under the Act. Such a Certificate of Authorisation had never been issued to the appellant-Company and therefore, the appellant was not entitled to the exemption in respect of payment of sales tax claimed by it. 14. For the aforestated reasons, the learned counsel submitted that the appeals deserved to be dismissed. 15. We have heard the learned counsel at length and have considered the relevant legal provisions and the judgments referred to by the learned counsel. 16. Upon perusal of the record and the law laid down by this Court in the light of the facts of the case, we are of the opinion that the view expressed by the Courts below cannot be said to be incorrect. 17. Rule 2(f) of the Assam Industries (Sales Tax Concession) Rules, 1986 reads as under:- “2(f) ‘Raw material’ means any material or commodity capable of being used for manufacture of any other product specified in any authorisation certificate as intended by the holder for use by him as raw material in the manufacture of goods in the State for sale by him but shall not include the following commodities namely :(a) tea, (b) coal, (c) liquefied petroleum gas, (d) plywood, (e) petrol, diesel oil and lubricants.” In view of the aforestated Rule, it is crystal clear that tea is not to be included in “raw material” and therefore, no exemption could have been claimed by the Appellant Company in respect of ‘tea’ as a raw material for purchase as well as sale of tea. It is also pertinent to note that the appellant had earlier preferred Civil Rule No.4162 of 1991 before the High Court challenging validity of the aforestated Rule. The learned Single Judge, while rejecting the petition, vide order dated 17th August, 1988 held that Rule 2(f) of the 1988 Rules was legal and valid and the plea of promissory estoppel raised by the appellant was also not accepted. Against the said judgment, no appeal was filed by the appellant and therefore, the said issue had attained finality.18. Another important thing is with regard to certificate of authorisation.19. It is an admitted fact that so as to avail the benefit as per Section 4 of the Act, certificate of authorisation is a must. The said Section reads as under: “4. Certificate of authorisation –(1) A person undertaking to manufacture in the State such goods, as may be prescribed, may make an application in the prescribed form to the prescribed authority and within the prescribed time for a certificate of authorisation for the purposes of sub-section (1) of section 3.(2) If the authority to whom an application is made under sub-section (1) is satisfied that the application is in conformity with the provisions of the Act and the rules made there under it shall grant to the applicant a certificate of authorisation in the prescribed form which shall specify the class or classes of goods for purposes of sub-section (1) of section 3 and the period for which it shall remain valid.(3) A certificate of authorisation granted under this section shall remain valid for a period of five years from the date of completion of effective steps for setting up the industrial unit in respect of which the certificate is granted.(4) No certificate of authorisation shall be granted under sub-section (2) except in respect of such raw materials as may be prescribed.(5) A certificate of authorisation granted under this section may:-(a) be amended by the authority granting it if he is satisfied either on the application of the holder or, where no such application has been made, after due notice to the holder, that by reason of the holder having changed the name, place or nature of his business or the class or classes of goods bought, sold or manufactured by him or for any other reason the certificate of authorisation granted to him required to be amended; or(b) be cancelled by the authority granting it, where he is satisfied after due notice to the holder that the holder has ceased to carry on business or for any other sufficient reason.” 20. As stated hereinabove, it is an admitted fact that no certificate of authorisation, as provided under the Act, had ever been granted to the appellant-Company and therefore, in our opinion, the courts below were absolutely right to the effect that the appellant was not entitled to any sales tax exemption.21. So far as the averments with regard to estoppel are concerned, it is a settled legal position that there cannot be any estoppel against law. When there is a legal provision to the effect that when tea is used as raw material, no tax exemption would be available under the provisions of the Act, none can claim tax exemption in respect of sales tax payable on purchase or sale of tea. It is true that an eligibility certificate had been issued to the appellant-Company in pursuance of the 1986 Incentive Scheme of Government of Assam but when the said Scheme was given a statutory form under the Act, ‘tea’ had been excluded from the definition of raw material and therefore, on the basis of the eligibility certificate issued under the 1986 Incentive Scheme of Government of Assam, the appellant cannot claim any benefit.22. It is also pertinent to note that the respondent-Authorities have rightly held that the appellant was not in the business of ‘manufacturing’ tea but was merely blending and packing tea, which does not amount to ‘manufacturing’ of tea. We find substance in the said stand taken by the respondent-Authorities as the said view has been fortified by a decision of this Court in Commissioner of Income Tax, Kerala v. Tara Agencies 2007 (6) SCC 429.
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### Explanation:
In view of the aforestated Rule, it is crystal clear that tea is not to be included innd therefore, no exemption could have been claimed by the Appellant Company in respect ofas a raw material for purchase as well as sale of tea. It is also pertinent to note that the appellant had earlier preferred Civil Rule No.4162 of 1991 before the High Court challenging validity of the aforestated Rule. The learned Single Judge, while rejecting the petition, vide order dated 17th August, 1988 held that Rule 2(f) of the 1988 Rules was legal and valid and the plea of promissory estoppel raised by the appellant was also not accepted. Against the said judgment, no appeal was filed by the appellantand therefore, thesaid issue had attained finality.18. Another important thing is with regard to certificate of authorisation.19. It is an admitted fact that so as to avail the benefit as per Section 4 of the Act, certificate of authorisation is a must. The said Section reads asCertificate of authorisation –(1) A person undertaking to manufacture in the State such goods, as may be prescribed, may make an application in the prescribed form to the prescribed authority and within the prescribed time for a certificate of authorisation for the purposes of(1) of section 3.(2) If the authority to whom an application is made under(1) is satisfied that the application is in conformity with the provisions of the Act and the rules made there under it shall grant to the applicant a certificate of authorisation in the prescribed form which shall specify the class or classes of goods for purposes of(1) of section 3 and the period for which it shall remain valid.(3) A certificate of authorisation granted under this section shall remain valid for a period of five years from the date of completion of effective steps for setting up the industrial unit in respect of which the certificate is granted.(4) No certificate of authorisation shall be granted under(2) except in respect of such raw materials as may be prescribed.(5) A certificate of authorisation granted under this sectionbe amended by the authority granting it if he is satisfied either on the application of the holder or, where no such application has been made, after due notice to the holder, that by reason of the holder having changed the name, place or nature of his business or the class or classes of goods bought, sold or manufactured by him or for any other reason the certificate of authorisation granted to him required to be amended; or(b) be cancelled by the authority granting it, where he is satisfied after due notice to the holder that the holder has ceased to carry on business or for any other sufficient reason.As stated hereinabove, it is an admitted fact that no certificate of authorisation, as provided under the Act, had ever been granted to theand therefore, in our opinion, the courts below were absolutely right to the effect that the appellant was not entitled to any sales tax exemption.21. So far as the averments with regard to estoppel are concerned, it is a settled legal position that there cannot be any estoppel against law. When there is a legal provision to the effect that when tea is used as raw material, no tax exemption would be available under the provisions of the Act, none can claim tax exemption in respect of sales tax payable on purchase or sale of tea. It is true that an eligibility certificate had been issued to thein pursuance of the 1986 Incentive Scheme of Government of Assam but when the said Scheme was given a statutory form under the Act,had been excluded from the definition of raw material and therefore, on the basis of the eligibility certificate issued under the 1986 Incentive Scheme of Government of Assam, the appellant cannot claim any benefit.22. It is also pertinent to note that thehave rightly held that the appellant was not in the business oftea but was merely blending and packing tea, which does not amount toof tea. We find substance in the said stand taken by theas the said view has been fortified by a decision of this Court in Commissioner of Income Tax, Kerala v. Tara Agencies 2007 (6) SCC 429.
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Indore Devt. Authority & Another Vs. Arvind Techno Engineering P. Ltd. & Another | the petitioners and Mr. P.S. Patwalia, learned Senior Counsel appearing on behalf of respondent No. 1. 2. Also heard Ms. Meera Mathur, Advocate representing respondent No. 2 who is supporting the petitioner in this case. Does Clause 21.1 of the notice inviting tenders (NIT) for construction of Railway Over Bridge at Western Ring Road, Indore, prohibit two separate companies, that had earlier gone together to constitute a partnership firm from submitting separate bids for the work in question, even though the partnership firm was not a bidder in response to the NIT? That was the question that arose for consideration before the High Court of Madhya Pradesh, Jabalpur, Indore Bench. 3. The brief facts necessary to put the controversy in its proper perspective are as follows:In response to the NIT issued by the petitioner Indore Development Authority seven tenders were received. Two of the bidders were respondent No. l Arvind Techno Engineering Pvt. Ltd. & Ors. and M/s. S.P. Singla Constructions Private Limited. Both respondent No. 1 and M/s. S.P. Singla Constructions Private Limited are separate companies, duly registered under the Indian Companies Act. It is also not denied that the two companies had come together to form a partnership firm in the name and style of M/s. S.P. Singla Constructions Private Ltd. under the Partnership Deed dated June 14, 2003. The partnership firm was formed with the object and purpose inter alia to take contracts of civil constructions and under the deed of partnership the two companies were entitled to profits and liable to losses in the partnership business to the extent of 50% each.4. As noted above, the partnership firm M/s. S.P. Singla Constructions Pvt. Ltd. was not a bidder in response to the NIT but bids were made by its two constituents, that is to say, respondent No. 1 and M/s. S.P. Singla Constructions Private Limited.5. The petitioner held that both the bidders were disqualified in terms of Clause 21.1 and consequently rejected the bids submitted by them.6. Clause 21.1 of the NIT provides as follows:21.1 ONE BID PER BIDDERAs JV/consortium, an individual company shall submit only one bid for the work. An individual company JV/consortium or their partner which submits or participates in more than one bid will cause all the proposals in which bidder has participated will be disqualified.Respondent No. l challenged the petitioner’s decision to reject its bid before the High Court. The High Court allowed its application by judgment and order dated May 15, 2009.7. The High Court held that the clause in question was lacking in sufficient clarity and it did not clearly convey the meaning that members in a partnership firm were barred from participating in the tender process in their individual capacity also making their separate bids even though the partnership firm itself did not submit any bid in response to the NIT. The High Court also held that Clause 21.1 would have been attracted only in case respondent No. l had submitted the bid in addition to the bid submitted by the partnership firm but since the partnership firm was not participating in the tender process the bids submitted by respondent No. l or M/s. S.P. Singla Constructions Private Limited were not liable to be rejected in terms of Clause 21. The relevant portions of the High Court judgment are in paragraphs 14 and 15 which are reproduced below: “It is worth noting that the petitioner as well as M/s. S.P. Singla Constructions Pvt. Ltd. are separate companies registered under the Indian Companies Act and both had submitted one bid each in their individual capacity in the name of their respective company. No bid was submitted by the Partnership Firm “M/s. S.P. Singla Constructions” formed by them. By forming a partnership firm for some other business by a separate name and identity they had lost their entity as company. When the bids were submitted by these two companies in their individual capacity and the partnership firm formed by them was not present before the Indore Development Authority in any capacity, much less in the capacity of bidder, then in such event, the condition of one bid per bidder was satisfied by the petitioner so also by another Company-M/s. S.P. Singla Constructions Pvt. Ltd.If along with the petitioner and M/s. S.P. Singla Constructions Company Pvt. Ltd. the partnership firm had also submitted the bid, then it would have been a case of submission of more than “one bid per bidder”, and in such case, Indore Development Authority would have been justified in disqualifying the petitioner so also other Company on the ground that they had submitted more than one bid i.e. one bid in the name of a company and another in the name of partnership firm. But in the present case, since the partnership firm did not submit any bid, and hence, it cannot be said that the bid submitted by the petitioner was more than one bid.” 8. On hearing the parties at some length, we are satisfied that in the facts and circumstances of the case, the view taken by the High Court does not warrant any interference by this Court in exercise of powers under Article 136 of the Constitution.9. We may mention here that Mr. Bobde tried to submit before us that earlier respondent No. l was given other works but the petitioner’s past experience with respondent No. 1 was not very happy and fully satisfactory. Mr. Patwalia on the other hand had in this regard different story to narrate.10. In this case there is no occasion for us to go into that aspect of the matter. Suffice it to say that the bid submitted by respondent No. 1 shall not be rejected merely on the basis of Clause 21.1 of the NIT but it will be open to the petitioner to appraise the bid of respondent No. 1, along with the other bids in accordance with law in light of the other provisions of the NIT, including its past experience with respondent No. 1. | 0[ds]8. On hearing the parties at some length, we are satisfied that in the facts and circumstances of the case, the view taken by the High Court does not warrant any interference by this Court in exercise of powers under Article 136 of the Constitution.9. We may mention here that Mr. Bobde tried to submit before us that earlier respondent No. l was given other works but thepast experience with respondent No. 1 was not very happy and fully satisfactory. Mr. Patwalia on the other hand had in this regard different story to narrate.10. In this case there is no occasion for us to go into that aspect of the matter. Suffice it to say that the bid submitted by respondent No. 1 shall not be rejected merely on the basis of Clause 21.1 of the NIT but it will be open to the petitioner to appraise the bid of respondent No. 1, along with the other bids in accordance with law in light of the other provisions of the NIT, including its past experience with respondent No. 1. | 0 | 1,127 | 198 | ### Instruction:
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the petitioners and Mr. P.S. Patwalia, learned Senior Counsel appearing on behalf of respondent No. 1. 2. Also heard Ms. Meera Mathur, Advocate representing respondent No. 2 who is supporting the petitioner in this case. Does Clause 21.1 of the notice inviting tenders (NIT) for construction of Railway Over Bridge at Western Ring Road, Indore, prohibit two separate companies, that had earlier gone together to constitute a partnership firm from submitting separate bids for the work in question, even though the partnership firm was not a bidder in response to the NIT? That was the question that arose for consideration before the High Court of Madhya Pradesh, Jabalpur, Indore Bench. 3. The brief facts necessary to put the controversy in its proper perspective are as follows:In response to the NIT issued by the petitioner Indore Development Authority seven tenders were received. Two of the bidders were respondent No. l Arvind Techno Engineering Pvt. Ltd. & Ors. and M/s. S.P. Singla Constructions Private Limited. Both respondent No. 1 and M/s. S.P. Singla Constructions Private Limited are separate companies, duly registered under the Indian Companies Act. It is also not denied that the two companies had come together to form a partnership firm in the name and style of M/s. S.P. Singla Constructions Private Ltd. under the Partnership Deed dated June 14, 2003. The partnership firm was formed with the object and purpose inter alia to take contracts of civil constructions and under the deed of partnership the two companies were entitled to profits and liable to losses in the partnership business to the extent of 50% each.4. As noted above, the partnership firm M/s. S.P. Singla Constructions Pvt. Ltd. was not a bidder in response to the NIT but bids were made by its two constituents, that is to say, respondent No. 1 and M/s. S.P. Singla Constructions Private Limited.5. The petitioner held that both the bidders were disqualified in terms of Clause 21.1 and consequently rejected the bids submitted by them.6. Clause 21.1 of the NIT provides as follows:21.1 ONE BID PER BIDDERAs JV/consortium, an individual company shall submit only one bid for the work. An individual company JV/consortium or their partner which submits or participates in more than one bid will cause all the proposals in which bidder has participated will be disqualified.Respondent No. l challenged the petitioner’s decision to reject its bid before the High Court. The High Court allowed its application by judgment and order dated May 15, 2009.7. The High Court held that the clause in question was lacking in sufficient clarity and it did not clearly convey the meaning that members in a partnership firm were barred from participating in the tender process in their individual capacity also making their separate bids even though the partnership firm itself did not submit any bid in response to the NIT. The High Court also held that Clause 21.1 would have been attracted only in case respondent No. l had submitted the bid in addition to the bid submitted by the partnership firm but since the partnership firm was not participating in the tender process the bids submitted by respondent No. l or M/s. S.P. Singla Constructions Private Limited were not liable to be rejected in terms of Clause 21. The relevant portions of the High Court judgment are in paragraphs 14 and 15 which are reproduced below: “It is worth noting that the petitioner as well as M/s. S.P. Singla Constructions Pvt. Ltd. are separate companies registered under the Indian Companies Act and both had submitted one bid each in their individual capacity in the name of their respective company. No bid was submitted by the Partnership Firm “M/s. S.P. Singla Constructions” formed by them. By forming a partnership firm for some other business by a separate name and identity they had lost their entity as company. When the bids were submitted by these two companies in their individual capacity and the partnership firm formed by them was not present before the Indore Development Authority in any capacity, much less in the capacity of bidder, then in such event, the condition of one bid per bidder was satisfied by the petitioner so also by another Company-M/s. S.P. Singla Constructions Pvt. Ltd.If along with the petitioner and M/s. S.P. Singla Constructions Company Pvt. Ltd. the partnership firm had also submitted the bid, then it would have been a case of submission of more than “one bid per bidder”, and in such case, Indore Development Authority would have been justified in disqualifying the petitioner so also other Company on the ground that they had submitted more than one bid i.e. one bid in the name of a company and another in the name of partnership firm. But in the present case, since the partnership firm did not submit any bid, and hence, it cannot be said that the bid submitted by the petitioner was more than one bid.” 8. On hearing the parties at some length, we are satisfied that in the facts and circumstances of the case, the view taken by the High Court does not warrant any interference by this Court in exercise of powers under Article 136 of the Constitution.9. We may mention here that Mr. Bobde tried to submit before us that earlier respondent No. l was given other works but the petitioner’s past experience with respondent No. 1 was not very happy and fully satisfactory. Mr. Patwalia on the other hand had in this regard different story to narrate.10. In this case there is no occasion for us to go into that aspect of the matter. Suffice it to say that the bid submitted by respondent No. 1 shall not be rejected merely on the basis of Clause 21.1 of the NIT but it will be open to the petitioner to appraise the bid of respondent No. 1, along with the other bids in accordance with law in light of the other provisions of the NIT, including its past experience with respondent No. 1.
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8. On hearing the parties at some length, we are satisfied that in the facts and circumstances of the case, the view taken by the High Court does not warrant any interference by this Court in exercise of powers under Article 136 of the Constitution.9. We may mention here that Mr. Bobde tried to submit before us that earlier respondent No. l was given other works but thepast experience with respondent No. 1 was not very happy and fully satisfactory. Mr. Patwalia on the other hand had in this regard different story to narrate.10. In this case there is no occasion for us to go into that aspect of the matter. Suffice it to say that the bid submitted by respondent No. 1 shall not be rejected merely on the basis of Clause 21.1 of the NIT but it will be open to the petitioner to appraise the bid of respondent No. 1, along with the other bids in accordance with law in light of the other provisions of the NIT, including its past experience with respondent No. 1.
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Chandra Prakash Agarwal Vs. Chaturbhuj Das Parikh & Others | of a High Court, no matter whether he practised in the High Court itself or in courts subordinate to it or both. The expression "an advocate or a pleader of a High Court" having thus acquired the meaning as aforesaid, it must be presumed that a similar expression, namely, "a pleader of a High Court for a period of not less than ten years" was used in the same sense in Section 101 (3) (d) of the Government of India Act, 1915, when that section laid down the qualifications for the office of a Judge of a High Court in the case of a pleader. The same phraseology was also repeated in Section 220 (3) (d) of the Government of India Act, 1935, except for one change, namely, that in calculating ten years standing his standing as a pleader of two or more High Courts in succession was also to be included.7. It will be noticed that in the latter part of sub-section (3) of Section 220, which provided that in calculating the period during which a person had been a pleader, the period during which he had held judicial office after he became a pleader shall be included, the expression used is simply a "pleader" and not a pleader of any High Court. But the word "pleader" in this part of Section 220 (3) must obviously mean the same person as "the pleader of any High Court" mentioned earlier in the same sub-section because the period during which he held any judicial office was to be reckoned for his standing of ten years as a pleader of a High Court. This clearly highlights the point that what Section 220 (3) in the 1935 Act required as a qualification was that a person to be appointed a Judge of a High Court had to have ten years standing as a pleader of any High Court, which meant that he must have been enrolled as a pleader of any High Court for that period. The question as to where he was practising, whether in the High Court itself or in courts subordinate thereto, does not appear to make any difference. The same phraseology, except for the change from the word pleader to the word advocate has been carried into Article 217 (2) (b). That was because under Section 8 of the Bar Councils Act the roll which the High Court was to prepare and maintain was the roll of the advocates of the High Court which included pleaders entitled as of right to practise in the High Court immediately before the date on which Section 8 of that Act was brought into force.8. It seems, therefore, indisputable that the expression pleader of a High Court used in the Constitution Acts of 1915 and 1935 the expression "an advocate of a High Court" used in Articles 217 (2) (b) and 124 (3) must mean respectively a pleader or an advocate on the roll as such of a High Court and entitled as of right by that reason to practise in the High Court. There is nothing in any of these provisions to indicate that an advocate of a High Court can only be that advocate who has been practising in the High Court. If the meaning of the expression "an advocate of a High Court" as suggested on behalf of the appellant were to be accepted, a very strange anomaly, as pointed out by Broome, J., would result while construing Article 124 (3), namely, that an advocate who has practised in the Supreme Court for the required period but not in a High Court would not be eligible for the office of a Judge of the Supreme Court. For these reasons we are in agreement with Broome and Mathur, JJ., on the construction placed by them on Article 217 (2) (b). The first contention of counsel for the appellant, therefore, must fail.9. Counsel next relied on Article 233 (2) in support of the construction suggested by him of Article 217 (2) (b) and pointed out that wherever the Constitution did not wish to insist on an appointee having been an advocate practising in a High Court, it has used a different expression, namely, an advocate simpliciter, as in Article 233 (2). Article 233 deals with appointment of District Judges and clause 2 thereof provides that a person not already in the service of the Union or the State shall only be eligible to be appointed a District Judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment. It is true that in this clause the word "advocate" is used without the qualifying words "of a High Court". It is difficult, however, to see how the fact that the word "advocate" only used in connection with the appointment of a District Judge would assist counsel in the construction suggested by him of the expression "advocate of any High Court" in Article 217, or that that expression must mean an advocate who has had the necessary number of years practice in the High Court itself. The distinction, if any, between the words "an advocate" in Article 233 (2) and the words "an advocate of a High Court" in Article 217 (2) (b) has no significance in any event after the coming into force of the Advocates Act, 1961, as by virtue of Section 16 of that Act there are now only two classes of persons entitled to practice, namely, senior advocates and other advocates.10. We find that in two of its decisions, in Sengalani Gramani v. Subbayya Nadar, AIR 1967 Mad 344 and V. G. Row v. A. Alagiriswamy, AIR 1967 Mad 347 , the High Court of Madras also has interpreted Article 217 (2) (b) in the same manner as we have done. In our view the construction of Article 217 (2) (b) adopted by Broome, J., and on a reference to him by Mathur, J., is correct. | 0[ds]8. It seems, therefore, indisputable that the expression pleader of a High Court used in the Constitution Acts of 1915 and 1935 the expression "an advocate of a High Court" used in Articles 217 (2) (b) and 124 (3) must mean respectively a pleader or an advocate on the roll as such of a High Court and entitled as of right by that reason to practise in the High Court. There is nothing in any of these provisions to indicate that an advocate of a High Court can only be that advocate who has been practising in the High Court. If the meaning of the expression "an advocate of a High Court" as suggested on behalf of the appellant were to be accepted, a very strange anomaly, as pointed out by Broome, J., would result while construing Article 124 (3), namely, that an advocate who has practised in the Supreme Court for the required period but not in a High Court would not be eligible for the office of a Judge of the Supreme Court. For these reasons we are in agreement with Broome and Mathur, JJ., on the construction placed by them on Article 217 (2) (b). The first contention of counsel for the appellant, therefore, mustis true that in this clause the word "advocate" is used without the qualifying words "of a High Court". It is difficult, however, to see how the fact that the word "advocate" only used in connection with the appointment of a District Judge would assist counsel in the construction suggested by him of the expression "advocate of any High Court" in Article 217, or that that expression must mean an advocate who has had the necessary number of years practice in the High Court itself. The distinction, if any, between the words "an advocate" in Article 233 (2) and the words "an advocate of a High Court" in Article 217 (2) (b) has no significance in any event after the coming into force ofthe Advocates Act, 1961, as by virtue of Section 16 of that Act there are now only two classes of persons entitled to practice, namely, senior advocates and other advocates.10. We find that in two of its decisions, in Sengalani Gramani v. Subbayya Nadar, AIR 1967 Mad 344 and V. G. Row v. A. Alagiriswamy, AIR 1967 Mad 347 , the High Court of Madras also has interpreted Article 217 (2) (b) in the same manner as we have done. In our view the construction of Article 217 (2) (b) adopted by Broome, J., and on a reference to him by Mathur, J., is correct. | 0 | 2,964 | 519 | ### Instruction:
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of a High Court, no matter whether he practised in the High Court itself or in courts subordinate to it or both. The expression "an advocate or a pleader of a High Court" having thus acquired the meaning as aforesaid, it must be presumed that a similar expression, namely, "a pleader of a High Court for a period of not less than ten years" was used in the same sense in Section 101 (3) (d) of the Government of India Act, 1915, when that section laid down the qualifications for the office of a Judge of a High Court in the case of a pleader. The same phraseology was also repeated in Section 220 (3) (d) of the Government of India Act, 1935, except for one change, namely, that in calculating ten years standing his standing as a pleader of two or more High Courts in succession was also to be included.7. It will be noticed that in the latter part of sub-section (3) of Section 220, which provided that in calculating the period during which a person had been a pleader, the period during which he had held judicial office after he became a pleader shall be included, the expression used is simply a "pleader" and not a pleader of any High Court. But the word "pleader" in this part of Section 220 (3) must obviously mean the same person as "the pleader of any High Court" mentioned earlier in the same sub-section because the period during which he held any judicial office was to be reckoned for his standing of ten years as a pleader of a High Court. This clearly highlights the point that what Section 220 (3) in the 1935 Act required as a qualification was that a person to be appointed a Judge of a High Court had to have ten years standing as a pleader of any High Court, which meant that he must have been enrolled as a pleader of any High Court for that period. The question as to where he was practising, whether in the High Court itself or in courts subordinate thereto, does not appear to make any difference. The same phraseology, except for the change from the word pleader to the word advocate has been carried into Article 217 (2) (b). That was because under Section 8 of the Bar Councils Act the roll which the High Court was to prepare and maintain was the roll of the advocates of the High Court which included pleaders entitled as of right to practise in the High Court immediately before the date on which Section 8 of that Act was brought into force.8. It seems, therefore, indisputable that the expression pleader of a High Court used in the Constitution Acts of 1915 and 1935 the expression "an advocate of a High Court" used in Articles 217 (2) (b) and 124 (3) must mean respectively a pleader or an advocate on the roll as such of a High Court and entitled as of right by that reason to practise in the High Court. There is nothing in any of these provisions to indicate that an advocate of a High Court can only be that advocate who has been practising in the High Court. If the meaning of the expression "an advocate of a High Court" as suggested on behalf of the appellant were to be accepted, a very strange anomaly, as pointed out by Broome, J., would result while construing Article 124 (3), namely, that an advocate who has practised in the Supreme Court for the required period but not in a High Court would not be eligible for the office of a Judge of the Supreme Court. For these reasons we are in agreement with Broome and Mathur, JJ., on the construction placed by them on Article 217 (2) (b). The first contention of counsel for the appellant, therefore, must fail.9. Counsel next relied on Article 233 (2) in support of the construction suggested by him of Article 217 (2) (b) and pointed out that wherever the Constitution did not wish to insist on an appointee having been an advocate practising in a High Court, it has used a different expression, namely, an advocate simpliciter, as in Article 233 (2). Article 233 deals with appointment of District Judges and clause 2 thereof provides that a person not already in the service of the Union or the State shall only be eligible to be appointed a District Judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment. It is true that in this clause the word "advocate" is used without the qualifying words "of a High Court". It is difficult, however, to see how the fact that the word "advocate" only used in connection with the appointment of a District Judge would assist counsel in the construction suggested by him of the expression "advocate of any High Court" in Article 217, or that that expression must mean an advocate who has had the necessary number of years practice in the High Court itself. The distinction, if any, between the words "an advocate" in Article 233 (2) and the words "an advocate of a High Court" in Article 217 (2) (b) has no significance in any event after the coming into force of the Advocates Act, 1961, as by virtue of Section 16 of that Act there are now only two classes of persons entitled to practice, namely, senior advocates and other advocates.10. We find that in two of its decisions, in Sengalani Gramani v. Subbayya Nadar, AIR 1967 Mad 344 and V. G. Row v. A. Alagiriswamy, AIR 1967 Mad 347 , the High Court of Madras also has interpreted Article 217 (2) (b) in the same manner as we have done. In our view the construction of Article 217 (2) (b) adopted by Broome, J., and on a reference to him by Mathur, J., is correct.
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8. It seems, therefore, indisputable that the expression pleader of a High Court used in the Constitution Acts of 1915 and 1935 the expression "an advocate of a High Court" used in Articles 217 (2) (b) and 124 (3) must mean respectively a pleader or an advocate on the roll as such of a High Court and entitled as of right by that reason to practise in the High Court. There is nothing in any of these provisions to indicate that an advocate of a High Court can only be that advocate who has been practising in the High Court. If the meaning of the expression "an advocate of a High Court" as suggested on behalf of the appellant were to be accepted, a very strange anomaly, as pointed out by Broome, J., would result while construing Article 124 (3), namely, that an advocate who has practised in the Supreme Court for the required period but not in a High Court would not be eligible for the office of a Judge of the Supreme Court. For these reasons we are in agreement with Broome and Mathur, JJ., on the construction placed by them on Article 217 (2) (b). The first contention of counsel for the appellant, therefore, mustis true that in this clause the word "advocate" is used without the qualifying words "of a High Court". It is difficult, however, to see how the fact that the word "advocate" only used in connection with the appointment of a District Judge would assist counsel in the construction suggested by him of the expression "advocate of any High Court" in Article 217, or that that expression must mean an advocate who has had the necessary number of years practice in the High Court itself. The distinction, if any, between the words "an advocate" in Article 233 (2) and the words "an advocate of a High Court" in Article 217 (2) (b) has no significance in any event after the coming into force ofthe Advocates Act, 1961, as by virtue of Section 16 of that Act there are now only two classes of persons entitled to practice, namely, senior advocates and other advocates.10. We find that in two of its decisions, in Sengalani Gramani v. Subbayya Nadar, AIR 1967 Mad 344 and V. G. Row v. A. Alagiriswamy, AIR 1967 Mad 347 , the High Court of Madras also has interpreted Article 217 (2) (b) in the same manner as we have done. In our view the construction of Article 217 (2) (b) adopted by Broome, J., and on a reference to him by Mathur, J., is correct.
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VAIJINATH S/O YESHWANTA JADHAV DECEASED BY L.RS Vs. AFSAR BEGUM W/O NAIDIMUDDIN DECEASED BY L.RS | same. 10. The Additional Tehsildar, Land Reforms, by his order dated 23.12.1987 held that the declaration of the appellant as protected tenant was procedurally defective because the name of the appellant did not find place in the tenants register. In the appeal preferred by the appellant, the Deputy Collector took notice of the original order of the Additional Tehsildar dated 29.04.1972 on an application preferred by the respondents admitting the status of the appellant as a protected tenant but that they had failed to pay the rent only. The Deputy Collector also held that the declaration of ownerships rights of the appellant over Survey No. 202/AA was therefore binding on the legal heirs of Nadimuddin and which included his widow, which could not be reopened. The Tribunal upholding the order of the Additional Tehsildar dated 23.12.1987 virtually sat over its own earlier order dated 09.11.1971 as an appellate forum, to arrive at a contrary finding that the grant of protected tenant status to the appellant was erroneous in view of the errors in the tenancy register, notwithstanding the findings in the civil suit also that there appeared no irregularity in procedure by the Land Tribunal. The Land Tribunal being a statutory body, there shall be a presumption of correctness of the orders passed by it. 11. It was not the case of the respondents that the statutory certificate had been obtained by any fraud or misrepresentation by the appellant in which case undoubtedly it would have been open for reconsideration. The conclusion of the High Court that the issuance of the certificate was fictitious, unfounded and useless by reasons of being null and void is therefore completely unsustainable. The decisions on the earlier occasion had been rendered by a proper competent forum, after hearing the parties and on perusal of records. An erroneous decision by a proper forum, unless assailed before a superior forum will attain finality inter parties. 12. In the facts of the present case, we find it very difficult to allow the appellant to be vexed twice, once by the sons of the land owner, then by his widow. We also cannot loose sight of the facts in the present case that the ultimate beneficiary of the fresh orders shall be the respondents even though they have lost their own challenge. Resultantly what was denied to the respondents directly shall now be available to them indirectly as Afsar Begum has since been deceased. The fresh round of litigation started by Afsar Begum was a mere subterfuge and an abuse of the process of law and courts by essentially what is a proxy litigation. 13. In R. Unnikrishnan and another (supra), it was observed as follows: 19. It is trite that law favours finality to binding judicial decisions pronounced by courts that are competent to deal with the subject-matter. Public interest is against individuals being vexed twice over with the same kind of litigation. The binding character of the judgments pronounced by the courts of competent jurisdiction has always been treated as an essential part of the rule of law which is the basis of the administration of justice in this country. We may gainfully refer to the decision of the Constitution Bench of this Court in Daryao v. State of U.P. where the Court succinctly summed up the law in the following words: (AIR p. 1462, paras 9 & 11) 9. … It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. * * * 11. … The binding character of judgments pronounced by courts of competent jurisdiction is itself an essential part of the rule of law, and the rule of law obviously is the basis of the administration of justice on which the Constitution lays so much emphasis. 20. That even erroneous decisions can operate as res judicata is also fairly well settled by a long line of decisions rendered by this Court. In Mohanlal Goenka v. Benoy Kishna Mukherjee this Court observed: (AIR p. 72, para 23) 23. There is ample authority for the proposition that even an erroneous decision on a question of law operates as res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata. 21. Similarly, in State of W.B. v. Hemant Kumar Bhattacharjee this Court reiterated the above principles in the following words: (AIR p. 1066, para 14) 14. … A wrong decision by a court having jurisdiction is as much binding between the parties as a right one and may be superseded only by appeals to higher tribunals or other procedure like review which the law provides. 14. At this juncture we also consider it appropriate to take note of the submissions that the dismissal of the appeal by the respondent on grounds of limitation on 09.11.1971 gave a quietus to the matter on merits also as observed in Shyam Sunder Sarma (supra) as follows : 9.1. In Sheodan Singh v. Daryao Kunwar rendered by four learned Judges of this Court, one of the questions that arose was whether the dismissal of an appeal from a decree on the ground that the appeal was barred by limitation was a decision in the appeal. This Court held: (SCR pp. 308 H-309 B) We are therefore of opinion that where a decision is given on the merits by the trial court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground, like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the trial court on the merits itself amounts to the appeal being heard and finally decided on the merits whatever may be the ground for dismissal of the appeal. | 1[ds]7. We have considered the submissions on behalf of the parties and have been taken through the various orders passed in the two rounds of litigation preferred first by the respondents and then by Afsar Begum. The respondents do not dispute the status of the appellant as a tenant. The attempt at restoration of the lands by Nadimuddin for personal cultivation was rejected on 22.04.1960 and was never questioned by Nadimuddin till his demise on 21.01.1962. What is sought to be disputed by the respondents, the legal heirs of Nadimuddin, is the appellants status as a protected statutory tenant. Originally the respondents questioned the same with regard to the Survey Nos. 202/AA and 189. Subsequently Afsar Begum confined the challenge to the former only acknowledging the status of the appellant as a protected tenant on the latter. The appellants predecessor was granted statutory status as far back as 01.02.1959 under Section 38E(1). Final certificate under Section 38E(2) was then granted to the appellant on 24.3.1970 by the Land Tribunal and deposit of the necessary amount was made before the Land Tribunal9. Ten years after the dismissal of the appeal filed by respondents, by the Deputy Collector on 09.11.1971, Afsar Begum, the widow of Nadimuddin and mother of the respondents, filed a fresh appeal before the Deputy Collector to challenge the statutory status order dated 01.02.1959 and the statutory certificate dated 24.03.1970. She did not assail the status of the appellant as a protected tenant with regard to Survey No.189. It is necessary to take note that the Land Tribunal had granted a composite certificate as protected tenant to the appellant on 24.03.1970 for both Survey Nos. 189 and 202/AA. The assertion that it was issued behind the back of Nadimuddin is falsified by the application preferred by Nadimuddin under Section 44 for resumption of the lands and which was rejected on 22.01.1960, but which finds no mention in her memo of appeal. The appeal asserted that she became aware only in 1981 of the mutation entries in the name of the appellant. We consider it proper to take notice of the fact that it was not the case of Afsar Begum that she was living separately from her two sons, and was therefore unaware of all facts to the knowledge of the respondents not only with regard to Nadimuddin but also the applications preferred by the respondents and rejection of the same10. The Additional Tehsildar, Land Reforms, by his order dated 23.12.1987 held that the declaration of the appellant as protected tenant was procedurally defective because the name of the appellant did not find place in the tenants register. In the appeal preferred by the appellant, the Deputy Collector took notice of the original order of the Additional Tehsildar dated 29.04.1972 on an application preferred by the respondents admitting the status of the appellant as a protected tenant but that they had failed to pay the rent only. The Deputy Collector also held that the declaration of ownerships rights of the appellant over Survey No. 202/AA was therefore binding on the legal heirs of Nadimuddin and which included his widow, which could not be reopened. The Tribunal upholding the order of the Additional Tehsildar dated 23.12.1987 virtually sat over its own earlier order dated 09.11.1971 as an appellate forum, to arrive at a contrary finding that the grant of protected tenant status to the appellant was erroneous in view of the errors in the tenancy register, notwithstanding the findings in the civil suit also that there appeared no irregularity in procedure by the Land Tribunal. The Land Tribunal being a statutory body, there shall be a presumption of correctness of the orders passed by it11. It was not the case of the respondents that the statutory certificate had been obtained by any fraud or misrepresentation by the appellant in which case undoubtedly it would have been open for reconsideration. The conclusion of the High Court that the issuance of the certificate was fictitious, unfounded and useless by reasons of being null and void is therefore completely unsustainable. The decisions on the earlier occasion had been rendered by a proper competent forum, after hearing the parties and on perusal of records. An erroneous decision by a proper forum, unless assailed before a superior forum will attain finality inter parties12. In the facts of the present case, we find it very difficult to allow the appellant to be vexed twice, once by the sons of the land owner, then by his widow. We also cannot loose sight of the facts in the present case that the ultimate beneficiary of the fresh orders shall be the respondents even though they have lost their own challenge. Resultantly what was denied to the respondents directly shall now be available to them indirectly as Afsar Begum has since been deceased. The fresh round of litigation started by Afsar Begum was a mere subterfuge and an abuse of the process of law and courts by essentially what is a proxy litigation13. In R. Unnikrishnan and another (supra), it was observed as follows:19. It is trite that law favours finality to binding judicial decisions pronounced by courts that are competent to deal with the subject-matter. Public interest is against individuals being vexed twice over with the same kind of litigation. The binding character of the judgments pronounced by the courts of competent jurisdiction has always been treated as an essential part of the rule of law which is the basis of the administration of justice in this country. We may gainfully refer to the decision of the Constitution Bench of this Court in Daryao v. State of U.P. where the Court succinctly summed up the law in the following words: (AIR p. 1462, paras 9 & 11)9. … It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. * * *11. … The binding character of judgments pronounced by courts of competent jurisdiction is itself an essential part of the rule of law, and the rule of law obviously is the basis of the administration of justice on which the Constitution lays so much emphasis20. That even erroneous decisions can operate as res judicata is also fairly well settled by a long line of decisions rendered by this Court. In Mohanlal Goenka v. Benoy Kishna Mukherjee this Court observed: (AIR p. 72, para 23)23. There is ample authority for the proposition that even an erroneous decision on a question of law operates as res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata21. Similarly, in State of W.B. v. Hemant Kumar Bhattacharjee this Court reiterated the above principles in the following words: (AIR p. 1066, para 14)14. … A wrong decision by a court having jurisdiction is as much binding between the parties as a right one and may be superseded only by appeals to higher tribunals or other procedure like review which the law provides14. At this juncture we also consider it appropriate to take note of the submissions that the dismissal of the appeal by the respondent on grounds of limitation on 09.11.1971 gave a quietus to the matter on merits also as observed in Shyam Sunder Sarma (supra) as follows :9.1. In Sheodan Singh v. Daryao Kunwar rendered by four learned Judges of this Court, one of the questions that arose was whether the dismissal of an appeal from a decree on the ground that the appeal was barred by limitation was a decision in the appeal. This Court held: (SCR pp. 308 H-309 B)We are therefore of opinion that where a decision is given on the merits by the trial court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground, like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the trial court on the merits itself amounts to the appeal being heard and finally decided on the merits whatever may be the ground for dismissal of the appeal. | 1 | 2,964 | 1,501 | ### Instruction:
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same. 10. The Additional Tehsildar, Land Reforms, by his order dated 23.12.1987 held that the declaration of the appellant as protected tenant was procedurally defective because the name of the appellant did not find place in the tenants register. In the appeal preferred by the appellant, the Deputy Collector took notice of the original order of the Additional Tehsildar dated 29.04.1972 on an application preferred by the respondents admitting the status of the appellant as a protected tenant but that they had failed to pay the rent only. The Deputy Collector also held that the declaration of ownerships rights of the appellant over Survey No. 202/AA was therefore binding on the legal heirs of Nadimuddin and which included his widow, which could not be reopened. The Tribunal upholding the order of the Additional Tehsildar dated 23.12.1987 virtually sat over its own earlier order dated 09.11.1971 as an appellate forum, to arrive at a contrary finding that the grant of protected tenant status to the appellant was erroneous in view of the errors in the tenancy register, notwithstanding the findings in the civil suit also that there appeared no irregularity in procedure by the Land Tribunal. The Land Tribunal being a statutory body, there shall be a presumption of correctness of the orders passed by it. 11. It was not the case of the respondents that the statutory certificate had been obtained by any fraud or misrepresentation by the appellant in which case undoubtedly it would have been open for reconsideration. The conclusion of the High Court that the issuance of the certificate was fictitious, unfounded and useless by reasons of being null and void is therefore completely unsustainable. The decisions on the earlier occasion had been rendered by a proper competent forum, after hearing the parties and on perusal of records. An erroneous decision by a proper forum, unless assailed before a superior forum will attain finality inter parties. 12. In the facts of the present case, we find it very difficult to allow the appellant to be vexed twice, once by the sons of the land owner, then by his widow. We also cannot loose sight of the facts in the present case that the ultimate beneficiary of the fresh orders shall be the respondents even though they have lost their own challenge. Resultantly what was denied to the respondents directly shall now be available to them indirectly as Afsar Begum has since been deceased. The fresh round of litigation started by Afsar Begum was a mere subterfuge and an abuse of the process of law and courts by essentially what is a proxy litigation. 13. In R. Unnikrishnan and another (supra), it was observed as follows: 19. It is trite that law favours finality to binding judicial decisions pronounced by courts that are competent to deal with the subject-matter. Public interest is against individuals being vexed twice over with the same kind of litigation. The binding character of the judgments pronounced by the courts of competent jurisdiction has always been treated as an essential part of the rule of law which is the basis of the administration of justice in this country. We may gainfully refer to the decision of the Constitution Bench of this Court in Daryao v. State of U.P. where the Court succinctly summed up the law in the following words: (AIR p. 1462, paras 9 & 11) 9. … It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. * * * 11. … The binding character of judgments pronounced by courts of competent jurisdiction is itself an essential part of the rule of law, and the rule of law obviously is the basis of the administration of justice on which the Constitution lays so much emphasis. 20. That even erroneous decisions can operate as res judicata is also fairly well settled by a long line of decisions rendered by this Court. In Mohanlal Goenka v. Benoy Kishna Mukherjee this Court observed: (AIR p. 72, para 23) 23. There is ample authority for the proposition that even an erroneous decision on a question of law operates as res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata. 21. Similarly, in State of W.B. v. Hemant Kumar Bhattacharjee this Court reiterated the above principles in the following words: (AIR p. 1066, para 14) 14. … A wrong decision by a court having jurisdiction is as much binding between the parties as a right one and may be superseded only by appeals to higher tribunals or other procedure like review which the law provides. 14. At this juncture we also consider it appropriate to take note of the submissions that the dismissal of the appeal by the respondent on grounds of limitation on 09.11.1971 gave a quietus to the matter on merits also as observed in Shyam Sunder Sarma (supra) as follows : 9.1. In Sheodan Singh v. Daryao Kunwar rendered by four learned Judges of this Court, one of the questions that arose was whether the dismissal of an appeal from a decree on the ground that the appeal was barred by limitation was a decision in the appeal. This Court held: (SCR pp. 308 H-309 B) We are therefore of opinion that where a decision is given on the merits by the trial court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground, like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the trial court on the merits itself amounts to the appeal being heard and finally decided on the merits whatever may be the ground for dismissal of the appeal.
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to Nadimuddin but also the applications preferred by the respondents and rejection of the same10. The Additional Tehsildar, Land Reforms, by his order dated 23.12.1987 held that the declaration of the appellant as protected tenant was procedurally defective because the name of the appellant did not find place in the tenants register. In the appeal preferred by the appellant, the Deputy Collector took notice of the original order of the Additional Tehsildar dated 29.04.1972 on an application preferred by the respondents admitting the status of the appellant as a protected tenant but that they had failed to pay the rent only. The Deputy Collector also held that the declaration of ownerships rights of the appellant over Survey No. 202/AA was therefore binding on the legal heirs of Nadimuddin and which included his widow, which could not be reopened. The Tribunal upholding the order of the Additional Tehsildar dated 23.12.1987 virtually sat over its own earlier order dated 09.11.1971 as an appellate forum, to arrive at a contrary finding that the grant of protected tenant status to the appellant was erroneous in view of the errors in the tenancy register, notwithstanding the findings in the civil suit also that there appeared no irregularity in procedure by the Land Tribunal. The Land Tribunal being a statutory body, there shall be a presumption of correctness of the orders passed by it11. It was not the case of the respondents that the statutory certificate had been obtained by any fraud or misrepresentation by the appellant in which case undoubtedly it would have been open for reconsideration. The conclusion of the High Court that the issuance of the certificate was fictitious, unfounded and useless by reasons of being null and void is therefore completely unsustainable. The decisions on the earlier occasion had been rendered by a proper competent forum, after hearing the parties and on perusal of records. An erroneous decision by a proper forum, unless assailed before a superior forum will attain finality inter parties12. In the facts of the present case, we find it very difficult to allow the appellant to be vexed twice, once by the sons of the land owner, then by his widow. We also cannot loose sight of the facts in the present case that the ultimate beneficiary of the fresh orders shall be the respondents even though they have lost their own challenge. Resultantly what was denied to the respondents directly shall now be available to them indirectly as Afsar Begum has since been deceased. The fresh round of litigation started by Afsar Begum was a mere subterfuge and an abuse of the process of law and courts by essentially what is a proxy litigation13. In R. Unnikrishnan and another (supra), it was observed as follows:19. It is trite that law favours finality to binding judicial decisions pronounced by courts that are competent to deal with the subject-matter. Public interest is against individuals being vexed twice over with the same kind of litigation. The binding character of the judgments pronounced by the courts of competent jurisdiction has always been treated as an essential part of the rule of law which is the basis of the administration of justice in this country. We may gainfully refer to the decision of the Constitution Bench of this Court in Daryao v. State of U.P. where the Court succinctly summed up the law in the following words: (AIR p. 1462, paras 9 & 11)9. … It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. * * *11. … The binding character of judgments pronounced by courts of competent jurisdiction is itself an essential part of the rule of law, and the rule of law obviously is the basis of the administration of justice on which the Constitution lays so much emphasis20. That even erroneous decisions can operate as res judicata is also fairly well settled by a long line of decisions rendered by this Court. In Mohanlal Goenka v. Benoy Kishna Mukherjee this Court observed: (AIR p. 72, para 23)23. There is ample authority for the proposition that even an erroneous decision on a question of law operates as res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata21. Similarly, in State of W.B. v. Hemant Kumar Bhattacharjee this Court reiterated the above principles in the following words: (AIR p. 1066, para 14)14. … A wrong decision by a court having jurisdiction is as much binding between the parties as a right one and may be superseded only by appeals to higher tribunals or other procedure like review which the law provides14. At this juncture we also consider it appropriate to take note of the submissions that the dismissal of the appeal by the respondent on grounds of limitation on 09.11.1971 gave a quietus to the matter on merits also as observed in Shyam Sunder Sarma (supra) as follows :9.1. In Sheodan Singh v. Daryao Kunwar rendered by four learned Judges of this Court, one of the questions that arose was whether the dismissal of an appeal from a decree on the ground that the appeal was barred by limitation was a decision in the appeal. This Court held: (SCR pp. 308 H-309 B)We are therefore of opinion that where a decision is given on the merits by the trial court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground, like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the trial court on the merits itself amounts to the appeal being heard and finally decided on the merits whatever may be the ground for dismissal of the appeal.
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The Corporation Of Calicut Vs. K. Sreenivasan | person enters into possession or occupies the premises and continues, until he leaves the premises. What is germane for the purpose of interpretation of Section 2(g) is whether or not the person concerned was in occupation of the public premises when the Premises Act was passed. In the instant case, it is not disputed that the appellant continued to occupy the property even after the Premises Act came into force.. in these circumstances, therefore, the case of the appellant squarely falls within the ambit of the definition of unauthorized occupation as contemplated by S.2(g). (Emphasis added) 15. In the case of Jiwan Dass vs. Life Insurance Corporation of India and Anr., 1995(1) Rent Control Journal 541, while upholding constitutional validity of the Central Act which was challenged by a tenant, this Court observed that the provisions of Section 5 of the Central Act, conferring power upon the Estate Officer to order eviction from public premises, would apply in a case of tenancy, lease or licence and observed at pages 543-44 thus:- The statute advisedly empowered the authority to act in the public interest and determine the tenancy or lease or licence before taking action under Section 5 of the Act. .... An owner is entitled to deal with his property in his own way profitable in its use and occupation. A public authority is equally entitled to use the public property to the best advantage as a commercial venture. As an integral incidence of ejectment of a tenant/licensee is inevitable. (Emphasis added) 16. It is true that a licensee does not acquire any interest in the property by virtue of grant of licence in his favour in relation to any immovable property, but once the authority to occupy and use the same is granted in his favour by way of licence, he continues to exercise that right so long the authority has not expired or has not been determined for any reason whatsoever, meaning thereby so long the period of licence has not expired or the same has not been determined on the grounds permissible under the contract or law. Occupation of licensee is permissive by virtue of the grant of licence in his favour, though he does not acquire any right in the property and the property remains in possession and control of the grantor, but by virtue of such a grant, he acquires a right to remain in occupation so long the licence is not revoked and/ or he is not evicted from its occupation either in accordance with law or otherwise. Main thrust of Section 2(f) of the Act is upon the expression occupation with authority or without authority. If a person without any authority occupies any public building he would be a trespasser and his case would be covered by first part of Section 2(f) and would be liable to be evicted under the provisions of the Act instead of taking recourse to ordinary law by filing a properly constituted suit which is dragged on for years together. Second part of Section 2(f) deals with cases where a person is in occupation by virtue of an authority granted in his favour irrespective of the fact whether the authority is in the form of lease or licence or in any other form. So far as case of lease of a public building in concerned, upon expiry of the period limited thereby or its determination in accordance with law, the special procedure prescribed under the Act providing speedy remedy for eviction would apply even though some interest in the immovable property is created in favour of the lessee by virtue of creation of lease in this favour. But in a case of licence, no interest in the property is created by virtue of the grant, but a person acquires a right to continue his occupation by virtue of the authority granted in his favour under the licence unless the period of licence has expired or the same has been determined or licence has been revoked and/ or the licensee is evicted by the grantor. If it is held that Section 2(f) would apply only in case of lease and not in the case of licence, the position will be very incongruous as in the case of lease, though a lessee acquires interest in the property which is a higher right, but he can be evicted under the special procedure prescribed under the law providing much speedy remedy whereas in case of licence, a licensee, who does not acquire any interest in the property and has only some sort of right of occupation by virtue of the nature of grant in his favour so long he is not evicted, can be evicted through long drawn ordinary procedure of filing a civil suit. This could not have been the intention of the Legislature. Apart from that, out of the expressions whether by way of lease or any other mode of transfer, the expression any other mode of transfer is very wide ad would not necessarily mean only that mode of transfer whereby a right has been created in immovable property. The expression transfer under the Transfer of Property Act connotes creation of some interest in immovable property. But under Section 2(f) of the Act such a restricted meaning would defeat the purpose of legislation which is impermissible. The expression any other mode of transfer would definitely bring within its sweep the case of a licensee where right of the grantor to occupy and continue to occupy immovable property is transferred though under law, the property remains in possession and control of the grantor. In view of the foregoing discussions, we hold that the expression unauthorised occupation within the meaning of Section 2(f) of the Act would embrace within its ambit the case of licensee as well after expiry of the period of licence or upon its determination for any reason whatsoever, as such the Estate Officer was quite justified in initiating proceeding under the Act and passing eviction order therein. | 1[ds]6. The necessity of enacting Kerala Public Buildings (Eviction of Unauthorised Occupants) Act, 1968 by the Kerala Legislature appears to be that the tenancy to unauthorisedly occupy public buildings, either from its very inception without any authority whatsoever or continuing in its occupation after the authority under which a person was allowed to occupy had either expired or had been determined for any reason whatsoever, was galloping fast and keeping in mind the time taken for eviction under ordinary law by resorting to civil suit in a protected litigation, a speedy remedy has been provided by enacting such special legislation therefor. Public building has been defined under Section 2(d) of the Act to mean any building or part of a building belonging to or taken on lease or requisitioned by, or on behalf of, the Government or a local authority or a company or a Corporation. Corporation has been defined under Section 2(aa) to mean a Corporation established or constituted by or under any Central or State Act and owned or controlled by the Government of Kerala. Under Section 3 of the Act the State Government is empowered to appoint any Gazetted Officer below the rank of District Collector as Estate Officer for exercising the powers under the Act and Section 4 empowers the Estate Officer to initiate a proceeding for eviction of those persons who are found to be in unauthorised occupation of any public building whereas under Section 5 he is competent to pass an order of eviction. Section 10 provides for an appeal against the order of eviction. Section 15 of the Act creates a bar to the institution of a suit challenging the order of eviction passed by the Estate Officer as well as that passed in appealThe definition of expression unauthorised occupation contained in Section 2(f) of the Act is in two parts. In the first part the said expression has been defined to mean the occupation by any person of the public building without authority for such occupation. It implies occupation by a person who has entered in occupation of any public building without lawful authority as well as occupation which was permissive at the inception but has ceased to be so. The second part of the definition in inclusive in nature and it expressly covers continuance in occupation by any person of the public building after the authority (whether by way of lease or any other mode of transfer) under which he was allowed to occupy the building has expired or has been determined for any reason whatsoever. This part covers a case where a person had entered into occupation legally under valid authority, but who continues in occupation after the authority under which he was put in occupation has expired or has been determined. The words whether by way of lease or any other mode of transfer in this part of the definition are very wide in amplitude and would, undoubtedly, cover a case where a person has come into occupation of a public building under an authority granted in his favour by the licence, as a licence, as a licensee, which has expired or has been determined8. At this juncture, it may be useful to state that similar provisions have been made in the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as the Central Act) enacted by the Parliament wherein also an Estate Officer is authorised to pass an order of eviction of persons who were found to be in unauthorised occupation of a public premises and expression unauthorised occupation has been defined under Section 2(g) of the Central Act16. It is true that a licensee does not acquire any interest in the property by virtue of grant of licence in his favour in relation to any immovable property, but once the authority to occupy and use the same is granted in his favour by way of licence, he continues to exercise that right so long the authority has not expired or has not been determined for any reason whatsoever, meaning thereby so long the period of licence has not expired or the same has not been determined on the grounds permissible under the contract or law. Occupation of licensee is permissive by virtue of the grant of licence in his favour, though he does not acquire any right in the property and the property remains in possession and control of the grantor, but by virtue of such a grant, he acquires a right to remain in occupation so long the licence is not revoked and/ or he is not evicted from its occupation either in accordance with law or otherwise. Main thrust of Section 2(f) of the Act is upon the expression occupation with authority or without authority. If a person without any authority occupies any public building he would be a trespasser and his case would be covered by first part of Section 2(f) and would be liable to be evicted under the provisions of the Act instead of taking recourse to ordinary law by filing a properly constituted suit which is dragged on for years together. Second part of Section 2(f) deals with cases where a person is in occupation by virtue of an authority granted in his favour irrespective of the fact whether the authority is in the form of lease or licence or in any other form. So far as case of lease of a public building in concerned, upon expiry of the period limited thereby or its determination in accordance with law, the special procedure prescribed under the Act providing speedy remedy for eviction would apply even though some interest in the immovable property is created in favour of the lessee by virtue of creation of lease in this favour. But in a case of licence, no interest in the property is created by virtue of the grant, but a person acquires a right to continue his occupation by virtue of the authority granted in his favour under the licence unless the period of licence has expired or the same has been determined or licence has been revoked and/ or the licensee is evicted by the grantor. If it is held that Section 2(f) would apply only in case of lease and not in the case of licence, the position will be very incongruous as in the case of lease, though a lessee acquires interest in the property which is a higher right, but he can be evicted under the special procedure prescribed under the law providing much speedy remedy whereas in case of licence, a licensee, who does not acquire any interest in the property and has only some sort of right of occupation by virtue of the nature of grant in his favour so long he is not evicted, can be evicted through long drawn ordinary procedure of filing a civil suit. This could not have been the intention of the Legislature. Apart from that, out of the expressions whether by way of lease or any other mode of transfer, the expression any other mode of transfer is very wide ad would not necessarily mean only that mode of transfer whereby a right has been created in immovable property. The expression transfer under the Transfer of Property Act connotes creation of some interest in immovable property. But under Section 2(f) of the Act such a restricted meaning would defeat the purpose of legislation which is impermissible. The expression any other mode of transfer would definitely bring within its sweep the case of a licensee where right of the grantor to occupy and continue to occupy immovable property is transferred though under law, the property remains in possession and control of the grantor. In view of the foregoing discussions, we hold that the expression unauthorised occupation within the meaning of Section 2(f) of the Act would embrace within its ambit the case of licensee as well after expiry of the period of licence or upon its determination for any reason whatsoever, as such the Estate Officer was quite justified in initiating proceeding under the Act and passing eviction order therein. | 1 | 4,157 | 1,454 | ### Instruction:
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person enters into possession or occupies the premises and continues, until he leaves the premises. What is germane for the purpose of interpretation of Section 2(g) is whether or not the person concerned was in occupation of the public premises when the Premises Act was passed. In the instant case, it is not disputed that the appellant continued to occupy the property even after the Premises Act came into force.. in these circumstances, therefore, the case of the appellant squarely falls within the ambit of the definition of unauthorized occupation as contemplated by S.2(g). (Emphasis added) 15. In the case of Jiwan Dass vs. Life Insurance Corporation of India and Anr., 1995(1) Rent Control Journal 541, while upholding constitutional validity of the Central Act which was challenged by a tenant, this Court observed that the provisions of Section 5 of the Central Act, conferring power upon the Estate Officer to order eviction from public premises, would apply in a case of tenancy, lease or licence and observed at pages 543-44 thus:- The statute advisedly empowered the authority to act in the public interest and determine the tenancy or lease or licence before taking action under Section 5 of the Act. .... An owner is entitled to deal with his property in his own way profitable in its use and occupation. A public authority is equally entitled to use the public property to the best advantage as a commercial venture. As an integral incidence of ejectment of a tenant/licensee is inevitable. (Emphasis added) 16. It is true that a licensee does not acquire any interest in the property by virtue of grant of licence in his favour in relation to any immovable property, but once the authority to occupy and use the same is granted in his favour by way of licence, he continues to exercise that right so long the authority has not expired or has not been determined for any reason whatsoever, meaning thereby so long the period of licence has not expired or the same has not been determined on the grounds permissible under the contract or law. Occupation of licensee is permissive by virtue of the grant of licence in his favour, though he does not acquire any right in the property and the property remains in possession and control of the grantor, but by virtue of such a grant, he acquires a right to remain in occupation so long the licence is not revoked and/ or he is not evicted from its occupation either in accordance with law or otherwise. Main thrust of Section 2(f) of the Act is upon the expression occupation with authority or without authority. If a person without any authority occupies any public building he would be a trespasser and his case would be covered by first part of Section 2(f) and would be liable to be evicted under the provisions of the Act instead of taking recourse to ordinary law by filing a properly constituted suit which is dragged on for years together. Second part of Section 2(f) deals with cases where a person is in occupation by virtue of an authority granted in his favour irrespective of the fact whether the authority is in the form of lease or licence or in any other form. So far as case of lease of a public building in concerned, upon expiry of the period limited thereby or its determination in accordance with law, the special procedure prescribed under the Act providing speedy remedy for eviction would apply even though some interest in the immovable property is created in favour of the lessee by virtue of creation of lease in this favour. But in a case of licence, no interest in the property is created by virtue of the grant, but a person acquires a right to continue his occupation by virtue of the authority granted in his favour under the licence unless the period of licence has expired or the same has been determined or licence has been revoked and/ or the licensee is evicted by the grantor. If it is held that Section 2(f) would apply only in case of lease and not in the case of licence, the position will be very incongruous as in the case of lease, though a lessee acquires interest in the property which is a higher right, but he can be evicted under the special procedure prescribed under the law providing much speedy remedy whereas in case of licence, a licensee, who does not acquire any interest in the property and has only some sort of right of occupation by virtue of the nature of grant in his favour so long he is not evicted, can be evicted through long drawn ordinary procedure of filing a civil suit. This could not have been the intention of the Legislature. Apart from that, out of the expressions whether by way of lease or any other mode of transfer, the expression any other mode of transfer is very wide ad would not necessarily mean only that mode of transfer whereby a right has been created in immovable property. The expression transfer under the Transfer of Property Act connotes creation of some interest in immovable property. But under Section 2(f) of the Act such a restricted meaning would defeat the purpose of legislation which is impermissible. The expression any other mode of transfer would definitely bring within its sweep the case of a licensee where right of the grantor to occupy and continue to occupy immovable property is transferred though under law, the property remains in possession and control of the grantor. In view of the foregoing discussions, we hold that the expression unauthorised occupation within the meaning of Section 2(f) of the Act would embrace within its ambit the case of licensee as well after expiry of the period of licence or upon its determination for any reason whatsoever, as such the Estate Officer was quite justified in initiating proceeding under the Act and passing eviction order therein.
### Response:
1
### Explanation:
lawful authority as well as occupation which was permissive at the inception but has ceased to be so. The second part of the definition in inclusive in nature and it expressly covers continuance in occupation by any person of the public building after the authority (whether by way of lease or any other mode of transfer) under which he was allowed to occupy the building has expired or has been determined for any reason whatsoever. This part covers a case where a person had entered into occupation legally under valid authority, but who continues in occupation after the authority under which he was put in occupation has expired or has been determined. The words whether by way of lease or any other mode of transfer in this part of the definition are very wide in amplitude and would, undoubtedly, cover a case where a person has come into occupation of a public building under an authority granted in his favour by the licence, as a licence, as a licensee, which has expired or has been determined8. At this juncture, it may be useful to state that similar provisions have been made in the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter referred to as the Central Act) enacted by the Parliament wherein also an Estate Officer is authorised to pass an order of eviction of persons who were found to be in unauthorised occupation of a public premises and expression unauthorised occupation has been defined under Section 2(g) of the Central Act16. It is true that a licensee does not acquire any interest in the property by virtue of grant of licence in his favour in relation to any immovable property, but once the authority to occupy and use the same is granted in his favour by way of licence, he continues to exercise that right so long the authority has not expired or has not been determined for any reason whatsoever, meaning thereby so long the period of licence has not expired or the same has not been determined on the grounds permissible under the contract or law. Occupation of licensee is permissive by virtue of the grant of licence in his favour, though he does not acquire any right in the property and the property remains in possession and control of the grantor, but by virtue of such a grant, he acquires a right to remain in occupation so long the licence is not revoked and/ or he is not evicted from its occupation either in accordance with law or otherwise. Main thrust of Section 2(f) of the Act is upon the expression occupation with authority or without authority. If a person without any authority occupies any public building he would be a trespasser and his case would be covered by first part of Section 2(f) and would be liable to be evicted under the provisions of the Act instead of taking recourse to ordinary law by filing a properly constituted suit which is dragged on for years together. Second part of Section 2(f) deals with cases where a person is in occupation by virtue of an authority granted in his favour irrespective of the fact whether the authority is in the form of lease or licence or in any other form. So far as case of lease of a public building in concerned, upon expiry of the period limited thereby or its determination in accordance with law, the special procedure prescribed under the Act providing speedy remedy for eviction would apply even though some interest in the immovable property is created in favour of the lessee by virtue of creation of lease in this favour. But in a case of licence, no interest in the property is created by virtue of the grant, but a person acquires a right to continue his occupation by virtue of the authority granted in his favour under the licence unless the period of licence has expired or the same has been determined or licence has been revoked and/ or the licensee is evicted by the grantor. If it is held that Section 2(f) would apply only in case of lease and not in the case of licence, the position will be very incongruous as in the case of lease, though a lessee acquires interest in the property which is a higher right, but he can be evicted under the special procedure prescribed under the law providing much speedy remedy whereas in case of licence, a licensee, who does not acquire any interest in the property and has only some sort of right of occupation by virtue of the nature of grant in his favour so long he is not evicted, can be evicted through long drawn ordinary procedure of filing a civil suit. This could not have been the intention of the Legislature. Apart from that, out of the expressions whether by way of lease or any other mode of transfer, the expression any other mode of transfer is very wide ad would not necessarily mean only that mode of transfer whereby a right has been created in immovable property. The expression transfer under the Transfer of Property Act connotes creation of some interest in immovable property. But under Section 2(f) of the Act such a restricted meaning would defeat the purpose of legislation which is impermissible. The expression any other mode of transfer would definitely bring within its sweep the case of a licensee where right of the grantor to occupy and continue to occupy immovable property is transferred though under law, the property remains in possession and control of the grantor. In view of the foregoing discussions, we hold that the expression unauthorised occupation within the meaning of Section 2(f) of the Act would embrace within its ambit the case of licensee as well after expiry of the period of licence or upon its determination for any reason whatsoever, as such the Estate Officer was quite justified in initiating proceeding under the Act and passing eviction order therein.
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The New Marine Coal Co. (Bengal) Private Ltd Vs. Union Of India | it to recover it or its proceeds from a person who has wrongfully obtained possession of it. In the case before them, there was nothing in the draft or the endorsement with which the plaintiff had anything to do, calculated in any way to mislead the defendants. It was regularly endorsed, and was then enclosed in a letter to the plaintiffs correspondents, to be sent through the post. There could be no negligence in relying on the honesty of their servants in the discharge of their ordinary duty that of conveying letters to the post; nor can there be any duty to the general public to exercise the same care in transmission of the draft as if any of every servant employed were a notorious thief."These observations illustrate how before invoking a plea of estoppel on the ground of negligence, some duty must be shown to exist between the parties and negligence must be proved in relation to such duty.20. Similarly, in Baxenale v. Bennett, 1878 3 Q B D 525 at p. 530 Bramwell L. J., had occasion to consider the same point. In that case, the defendant gave H, his blank acceptance on a stamped paper and authorised H. to fill in his name as drawer. He returned the blank acceptance to the defendant in the same state in which he received it. The defendant put it into a drawer of his writing table at his chambers, which was unlocked and it was lost or stolen. C. afterwards filled in his own name without the defendants authority, and an action was brought on it by the plaintiff as endorsee for value. The Court of Appeal held that the defendant was not liable on the bill. Dealing with the question of negligence attributed to the defendant, Bramwell L. J. observed that"the defendant may have been negligent, that is to say, if he had the paper from a third person, as a bailee bound to keep it with ordinary care, he would not have kept it in a drawer unlocked."But, said the learned Judge, this negligence is not the proximate or effective cause of the fraud. A crime was necessary for its completion, and so, it was held that the defendant was not liable on the bill. This decision shows that negligence must be based on a duty owed by one party to the other and must, besides, be shown to have been the proximate or the immediate cause of the loss.21. It is in the light of this legal position that the question about estoppel raised by the respondent against the appellant in the Appellate Court may be considered. Can it be said that when the appellant received the intimation card, it owed a duty to the respondent to keep the said card in a locked drawer maintaining the key all the time with its Director? It would not be easy to answer this question in the affirmative; but assuming that the appellant had a kind of duty towards the respondent having regard to the fact that the intimation card was an important document the presentation of which with an endorsement as to authorisation duly made would induce the respondent to issue a cheque to the person presenting it, can the Court say that in trusting its employees to bring letters from the letter box to the Director, the appellant had been negligent? As we have already observed, in dealing with the present dispute on the basis that the intimation card had been dropped in the letter box of the appellant, it is possible to hold either that the said card was collected by the Peon and given over to Mr. Parikh, or it was not. In the former case after Mr. parikh got the said card, it had been removed from Mr. Parikhs table by someone, either by one of the eimployees of Mr. Parikh or some stranger. In the latter case, though, technically, the card had been delivered in the letter box of the appellant, it had not reached Mr. Parikh. In the absence of any collusion between Mr. Parikh and the person who made fraudulent use of the intimation card, can the respondent be heard to say that Mr. Parikh did not show that degree of diligence in receiving the card or in keeping it in safe custody after it was received as he should have? In our opinion, it would be difficult to answer this question infavour of the respondent. In ordinary course of business, every office that receives large correspondence keeps a letter box outside the premises of the office. The box is locked and the key is invariably given to the peon to collect the letters after they are delivered by postal Peons. This course of business proceeds on the assumption which must inevitably be made by all businessmen that the servants entrusted with the task of collecting the letters would act honestly, Similarly, in ordinary course of business, it would be assumed by a businessmen that after letters are placed on the table or in a file which is kept at some-other place, they would not be pilferred by any of his employees. Under these circumstances, if the intimation card in question was taken away by some fraudulent person, it would be difficult to hold that the appellant can be charged with negligence which, in turn, can be held to be the proximate cause of the loss caused to the respondent. In our opinion, therefore, Mukharji J., was in error in holding that the respondent could successfully plead estoppel by negligence against the appellant. As we have already observed, the question as to whether the claim made by the appellant against the respondent under S. 70 is concluded by the decision of this Court in the case of M/s. B. K. Mondal and Sons, AIR 1962 SC 779 in favour of the appellant,and so, it must be held that the Division Bench of the High Court erred in dismissing the appellants claim. | 1[ds]15. Mr. Setalvad contends that a plea of negligence should have been raised by the respondent in its pleadings and the appellate Court was, therefore, in error in allowing such a plea to be raised for the first time in appeal.our opinion, there is some force in this contention. Negligence in popular language and in common sense means failure to exercise that care and diligence which the circumstances require. Naturally what amounts to negligence would always depend upon the circumstances and facts in any particular case. The nature of the contract, the circumstances in which the performance of the contract by one party or the other was expected, the degree of diligence, care and attention which, in ordinary course, was expected to be shown by the parties to the contract, the circumstances under which and the reason for which failure to show due diligence occurred are all facts which would be relevant before a judicial finding can be made on the plea of negligence. Since a plea of negligence was not raised by the respondent in the trial Court, the appellant is entitled to contend that it had no opportunity to meet this plea and dealing with it in appeal has, therefore, been unfair to it.16. Apart from this aspect of the matter, there is another serious objection which has been taken by Mr. Setalvad against the view which prevailed with Mukharji J. He argues that when a plea of estoppel on the ground of negligence is raised, negligence to which reference is made in support of such a plea is not the negligence as is understood in popular language or in common sense; it has a technical denotation. In support of a plea of estoppel on the ground of negligence, it must be shown that the party against whom the plea is raised owed a duty to the party who raises the plea. Just as estoppel can be pleaded on the ground of misrepresentation or act or omission, so can estoppel be pleaded on the ground of negligence; but before such a plea can succeed, negligence must be established in this technicalis another requirement which has to be proved before a plea of estoppel on the ground of negligence can be upheld and that requirement is that "the negligence on which it is based should not be indirectly or remotely connected with the misleading effect assigned to it, but must be the proximate or real cause of that result"**. Negligence, according to Halsbury, which can sustain a plea of estoppel must be in the transaction itself and it should be so connected with the result to which it led that it is impossible to treat the two separately. This aspect of the matter has not been duly examined by Mukharji J., when he made his finding against the appellant.It is in the light of this legal position that the question about estoppel raised by the respondent against the appellant in the Appellate Court may be considered. Can it be said that when the appellant received the intimation card, it owed a duty to the respondent to keep the said card in a locked drawer maintaining the key all the time with its Director? It would not be easy to answer this question in the affirmative; but assuming that the appellant had a kind of duty towards the respondent having regard to the fact that the intimation card was an important document the presentation of which with an endorsement as to authorisation duly made would induce the respondent to issue a cheque to the person presenting it, can the Court say that in trusting its employees to bring letters from the letter box to the Director, the appellant had been negligent? As we have already observed, in dealing with the present dispute on the basis that the intimation card had been dropped in the letter box of the appellant, it is possible to hold either that the said card was collected by the Peon and given over to Mr. Parikh, or it was not. In the former case after Mr. parikh got the said card, it had been removed from Mr. Parikhs table by someone, either by one of the eimployees of Mr. Parikh or some stranger. In the latter case, though, technically, the card had been delivered in the letter box of the appellant, it had not reached Mr. Parikh. In the absence of any collusion between Mr. Parikh and the person who made fraudulent use of the intimation card, can the respondent be heard to say that Mr. Parikh did not show that degree of diligence in receiving the card or in keeping it in safe custody after it was received as he should have? In our opinion, it would be difficult to answer this question infavour of the respondent. In ordinary course of business, every office that receives large correspondence keeps a letter box outside the premises of the office. The box is locked and the key is invariably given to the peon to collect the letters after they are delivered by postal Peons. This course of business proceeds on the assumption which must inevitably be made by all businessmen that the servants entrusted with the task of collecting the letters would act honestly, Similarly, in ordinary course of business, it would be assumed by a businessmen that after letters are placed on the table or in a file which is kept at some-other place, they would not be pilferred by any of his employees. Under these circumstances, if the intimation card in question was taken away by some fraudulent person, it would be difficult to hold that the appellant can be charged with negligence which, in turn, can be held to be the proximate cause of the loss caused to the respondent. In our opinion, therefore, Mukharji J., was in error in holding that the respondent could successfully plead estoppel by negligence against the appellant. As we have already observed, the question as to whether the claim made by the appellant against the respondent under S. 70 is concluded by the decision of this Court in the case of M/s. B. K. Mondal and Sons, AIR 1962 SC 779 in favour of the appellant,and so, it must be held that the Division Bench of the High Court erred in dismissing the appellants claim.In the courts below, elaborate arguments were urged by the parties on the question as to whether the contract, theof the suit, was invalid and if yes, whether a claim for compensation made by the appellant could be sustained under S. 70 of the Indian Contract Act. Both these questions are concluded by a recent decision of this Court in the State of West Bengal v. M/s. B. K. Modal and Sons, AIR 1962 SC 779 .As a result of this decision, there can be no doubt that the contract on which the suit is based is void and unenforceable, and this part of the decision is against the appellant. It is also clear under this decision that if in pursuance of the said void contract, the appellant has performed his part and the respondent has received the benefit of the performance of the contract by the appellant, S. 70 would justify the claim made by the appellant against the respondent. This part of the decision is in favour of the appellant. It is, therefore, unnecessary to deal with this aspect of the matter at length.The position of the evidence in respect of this point is no doubt unsatisfactory. It appears that Mr. Parikh who is the Director of the appellant company since 1948 is also the Director of K. Wara Ltd., which manages eight collieries like that of the appellant. K. Wara Ltd., has its office at 135, Canning Street. The appellant Company also has one office at the said place. A Post Box in which letters addressed to the appellant and K. Wara Ltd., could be dropped has been kept on the ground floor of the building in which the said offices are situated. The said Post Box is locked and naturally the key is given to one or the other of the Peons to open the said Box and take out the letters and deliver them to Mr. Parikh. Mr. Parikhs evidence show that his denial that he had received any intimation card could not be accepted at its face value for two reasons; the first was that even if thehad been received by the Peon and had not been delivered by him to Mr. Parikh, Mr. Parikh would not know that the card had been received and though his statement that he did not get the card may be literally true, it would not be true in the sense that the card had not been delivered to the appellant Company. Besides, Mr. Parikhs statement the he did not employ any despatch clerk and kept no inward to outward register is prima facie unbelievable and so, Mukharji J., was inclined to hold that the intimation card may have been received by the appellant Company. Having made this finding, Mukharji J., proceeded to examine the true legal positions in regard to the appellants claim, and as we have already observed, he held that since the appellant was guilty of negligence which facilitated the commission of the offence by some strangers, it was precluded from making a claim against the respondent. As we have already seen, Bose J., has put his decision on the narrow ground that the contract was invalid and S. 70 did not help the appellant. That ground, however, cannot now sustain the final conclusion of Bose J., in view of the recent decision of this Court in the case of M/s. B. K. Mondal and Sons, AIR 1962 779. Therefore, in dealing with the present appeal, we will assume that the finding recorded by Mukharji j., is correct and that the intimation card sent by the respondent to the appellant can be deemed to have been delivered to the appellant.It is in the light of this legal position that the question about estoppel raised by the respondent against the appellant in the Appellate Court may be considered. Can it be said that when the appellant received the intimation card, it owed a duty to the respondent to keep the said card in a locked drawer maintaining the key all the time with its Director? It would not be easy to answer this question in the affirmative; but assuming that the appellant had a kind of duty towards the respondent having regard to the fact that the intimation card was an important document the presentation of which with an endorsement as to authorisation duly made would induce the respondent to issue a cheque to the person presenting it, can the Court say that in trusting its employees to bring letters from the letter box to the Director, the appellant had been negligent? As we have already observed, in dealing with the present dispute on the basis that the intimation card had been dropped in the letter box of the appellant, it is possible to hold either that the said card was collected by the Peon and given over to Mr. Parikh, or it was not. In the former case after Mr. parikh got the said card, it had been removed from Mr. Parikhs table by someone, either by one of the eimployees of Mr. Parikh or some stranger. In the latter case, though, technically, the card had been delivered in the letter box of the appellant, it had not reached Mr. Parikh. In the absence of any collusion between Mr. Parikh and the person who made fraudulent use of the intimation card, can the respondent be heard to say that Mr. Parikh did not show that degree of diligence in receiving the card or in keeping it in safe custody after it was received as he should have? In our opinion, it would be difficult to answer this question infavour of the respondent. In ordinary course of business, every office that receives large correspondence keeps a letter box outside the premises of the office. The box is locked and the key is invariably given to the peon to collect the letters after they are delivered by postal Peons. This course of business proceeds on the assumption which must inevitably be made by all businessmen that the servants entrusted with the task of collecting the letters would act honestly, Similarly, in ordinary course of business, it would be assumed by a businessmen that after letters are placed on the table or in a file which is kept atplace, they would not be pilferred by any of his employees. Under these circumstances, if the intimation card in question was taken away by some fraudulent person, it would be difficult to hold that the appellant can be charged with negligence which, in turn, can be held to be the proximate cause of the loss caused to the respondent. In our opinion, therefore, Mukharji J., was in error in holding that the respondent could successfully plead estoppel by negligence against the appellant. As we have already observed, the question as to whether the claim made by the appellant against the respondent under S. 70 is concluded by the decision of this Court in the case of M/s. B. K. Mondal and Sons, AIR 1962 SC 779 in favour of the appellant,and so, it must be held that the Division Bench of the High Court erred in dismissing the appellants claim. | 1 | 6,240 | 2,444 | ### 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:
it to recover it or its proceeds from a person who has wrongfully obtained possession of it. In the case before them, there was nothing in the draft or the endorsement with which the plaintiff had anything to do, calculated in any way to mislead the defendants. It was regularly endorsed, and was then enclosed in a letter to the plaintiffs correspondents, to be sent through the post. There could be no negligence in relying on the honesty of their servants in the discharge of their ordinary duty that of conveying letters to the post; nor can there be any duty to the general public to exercise the same care in transmission of the draft as if any of every servant employed were a notorious thief."These observations illustrate how before invoking a plea of estoppel on the ground of negligence, some duty must be shown to exist between the parties and negligence must be proved in relation to such duty.20. Similarly, in Baxenale v. Bennett, 1878 3 Q B D 525 at p. 530 Bramwell L. J., had occasion to consider the same point. In that case, the defendant gave H, his blank acceptance on a stamped paper and authorised H. to fill in his name as drawer. He returned the blank acceptance to the defendant in the same state in which he received it. The defendant put it into a drawer of his writing table at his chambers, which was unlocked and it was lost or stolen. C. afterwards filled in his own name without the defendants authority, and an action was brought on it by the plaintiff as endorsee for value. The Court of Appeal held that the defendant was not liable on the bill. Dealing with the question of negligence attributed to the defendant, Bramwell L. J. observed that"the defendant may have been negligent, that is to say, if he had the paper from a third person, as a bailee bound to keep it with ordinary care, he would not have kept it in a drawer unlocked."But, said the learned Judge, this negligence is not the proximate or effective cause of the fraud. A crime was necessary for its completion, and so, it was held that the defendant was not liable on the bill. This decision shows that negligence must be based on a duty owed by one party to the other and must, besides, be shown to have been the proximate or the immediate cause of the loss.21. It is in the light of this legal position that the question about estoppel raised by the respondent against the appellant in the Appellate Court may be considered. Can it be said that when the appellant received the intimation card, it owed a duty to the respondent to keep the said card in a locked drawer maintaining the key all the time with its Director? It would not be easy to answer this question in the affirmative; but assuming that the appellant had a kind of duty towards the respondent having regard to the fact that the intimation card was an important document the presentation of which with an endorsement as to authorisation duly made would induce the respondent to issue a cheque to the person presenting it, can the Court say that in trusting its employees to bring letters from the letter box to the Director, the appellant had been negligent? As we have already observed, in dealing with the present dispute on the basis that the intimation card had been dropped in the letter box of the appellant, it is possible to hold either that the said card was collected by the Peon and given over to Mr. Parikh, or it was not. In the former case after Mr. parikh got the said card, it had been removed from Mr. Parikhs table by someone, either by one of the eimployees of Mr. Parikh or some stranger. In the latter case, though, technically, the card had been delivered in the letter box of the appellant, it had not reached Mr. Parikh. In the absence of any collusion between Mr. Parikh and the person who made fraudulent use of the intimation card, can the respondent be heard to say that Mr. Parikh did not show that degree of diligence in receiving the card or in keeping it in safe custody after it was received as he should have? In our opinion, it would be difficult to answer this question infavour of the respondent. In ordinary course of business, every office that receives large correspondence keeps a letter box outside the premises of the office. The box is locked and the key is invariably given to the peon to collect the letters after they are delivered by postal Peons. This course of business proceeds on the assumption which must inevitably be made by all businessmen that the servants entrusted with the task of collecting the letters would act honestly, Similarly, in ordinary course of business, it would be assumed by a businessmen that after letters are placed on the table or in a file which is kept at some-other place, they would not be pilferred by any of his employees. Under these circumstances, if the intimation card in question was taken away by some fraudulent person, it would be difficult to hold that the appellant can be charged with negligence which, in turn, can be held to be the proximate cause of the loss caused to the respondent. In our opinion, therefore, Mukharji J., was in error in holding that the respondent could successfully plead estoppel by negligence against the appellant. As we have already observed, the question as to whether the claim made by the appellant against the respondent under S. 70 is concluded by the decision of this Court in the case of M/s. B. K. Mondal and Sons, AIR 1962 SC 779 in favour of the appellant,and so, it must be held that the Division Bench of the High Court erred in dismissing the appellants claim.
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### Explanation:
Mr. Parikh who is the Director of the appellant company since 1948 is also the Director of K. Wara Ltd., which manages eight collieries like that of the appellant. K. Wara Ltd., has its office at 135, Canning Street. The appellant Company also has one office at the said place. A Post Box in which letters addressed to the appellant and K. Wara Ltd., could be dropped has been kept on the ground floor of the building in which the said offices are situated. The said Post Box is locked and naturally the key is given to one or the other of the Peons to open the said Box and take out the letters and deliver them to Mr. Parikh. Mr. Parikhs evidence show that his denial that he had received any intimation card could not be accepted at its face value for two reasons; the first was that even if thehad been received by the Peon and had not been delivered by him to Mr. Parikh, Mr. Parikh would not know that the card had been received and though his statement that he did not get the card may be literally true, it would not be true in the sense that the card had not been delivered to the appellant Company. Besides, Mr. Parikhs statement the he did not employ any despatch clerk and kept no inward to outward register is prima facie unbelievable and so, Mukharji J., was inclined to hold that the intimation card may have been received by the appellant Company. Having made this finding, Mukharji J., proceeded to examine the true legal positions in regard to the appellants claim, and as we have already observed, he held that since the appellant was guilty of negligence which facilitated the commission of the offence by some strangers, it was precluded from making a claim against the respondent. As we have already seen, Bose J., has put his decision on the narrow ground that the contract was invalid and S. 70 did not help the appellant. That ground, however, cannot now sustain the final conclusion of Bose J., in view of the recent decision of this Court in the case of M/s. B. K. Mondal and Sons, AIR 1962 779. Therefore, in dealing with the present appeal, we will assume that the finding recorded by Mukharji j., is correct and that the intimation card sent by the respondent to the appellant can be deemed to have been delivered to the appellant.It is in the light of this legal position that the question about estoppel raised by the respondent against the appellant in the Appellate Court may be considered. Can it be said that when the appellant received the intimation card, it owed a duty to the respondent to keep the said card in a locked drawer maintaining the key all the time with its Director? It would not be easy to answer this question in the affirmative; but assuming that the appellant had a kind of duty towards the respondent having regard to the fact that the intimation card was an important document the presentation of which with an endorsement as to authorisation duly made would induce the respondent to issue a cheque to the person presenting it, can the Court say that in trusting its employees to bring letters from the letter box to the Director, the appellant had been negligent? As we have already observed, in dealing with the present dispute on the basis that the intimation card had been dropped in the letter box of the appellant, it is possible to hold either that the said card was collected by the Peon and given over to Mr. Parikh, or it was not. In the former case after Mr. parikh got the said card, it had been removed from Mr. Parikhs table by someone, either by one of the eimployees of Mr. Parikh or some stranger. In the latter case, though, technically, the card had been delivered in the letter box of the appellant, it had not reached Mr. Parikh. In the absence of any collusion between Mr. Parikh and the person who made fraudulent use of the intimation card, can the respondent be heard to say that Mr. Parikh did not show that degree of diligence in receiving the card or in keeping it in safe custody after it was received as he should have? In our opinion, it would be difficult to answer this question infavour of the respondent. In ordinary course of business, every office that receives large correspondence keeps a letter box outside the premises of the office. The box is locked and the key is invariably given to the peon to collect the letters after they are delivered by postal Peons. This course of business proceeds on the assumption which must inevitably be made by all businessmen that the servants entrusted with the task of collecting the letters would act honestly, Similarly, in ordinary course of business, it would be assumed by a businessmen that after letters are placed on the table or in a file which is kept atplace, they would not be pilferred by any of his employees. Under these circumstances, if the intimation card in question was taken away by some fraudulent person, it would be difficult to hold that the appellant can be charged with negligence which, in turn, can be held to be the proximate cause of the loss caused to the respondent. In our opinion, therefore, Mukharji J., was in error in holding that the respondent could successfully plead estoppel by negligence against the appellant. As we have already observed, the question as to whether the claim made by the appellant against the respondent under S. 70 is concluded by the decision of this Court in the case of M/s. B. K. Mondal and Sons, AIR 1962 SC 779 in favour of the appellant,and so, it must be held that the Division Bench of the High Court erred in dismissing the appellants claim.
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ARDHENDU KUMAR DAS Vs. THE STATE OF ODISHA AND ORS | B.R. GAVAI, J. 1. Both these petitions challenge the interlocutory order dated 9th May, 2022, passed by the Division Bench of the High Court of Orissa at Cuttack, in Writ Petition (Civil) No.6257 of 2022, wherein the Division Bench of the High Court has recorded certain submissions and statements made by the learned Advocate General appearing on behalf of the State of Odisha and directed the matter to be posted on 22nd June, 2022 along with Writ Petition (Civil) No. 10153 of 2022. From the tenor of the arguments advanced by the learned counsel for the petitioners, it appears that they are basically aggrieved since the High Court has not granted an interim order restraining the respondents from proceeding further with the construction. 2. The factual background leading to the filing of the present proceedings is thus: 3. A Public Interest Litigation being Writ Petition (Civil) No.6257 of 2022 came to be filed before the High Court of Orissa by one Dillip Kumar Baral challenging the alleged unsanctioned and unauthorised construction activities undertaken by the respondent Nos. 1 and 2 within the prohibited area of the Shree Jagannath Temple complex in contravention of the provisions of The Ancient Monuments and Archaeological Sites and Remains Act, 1958 (hereinafter referred to as the said Act) 4. It appears that initially the said writ petition was listed before the Division Bench of the High Court on 8th April, 2022, on which date, certain statements made by the learned Advocate General were taken on record. Subsequently, when the matter was listed on 21st April, 2022, certain further orders came to be passed. Subsequently, the order dated 9th May, 2022 has been passed by the High Court, which is impugned in the present Special Leave Petitions. 5. The petitioner-Ardhendu Kumar Das in Special Leave Petition (Civil) Diary No.16718 of 2022 is not the petitioner before the High Court. However, he claims to be an ardent devotee of Lord Jagannath and therefore, had filed an Intervention Application before the High Court, which is pending consideration. The petitioner has therefore filed an Interlocutory Application seeking permission to file the present Special Leave Petition challenging the order dated 9th May, 2022 of the Division Bench of the High Court. 6. The petitioner-Sumanta Kumar Ghadei in Special Leave Petition (Civil) Diary No.17078 of 2022 is also not the petitioner before the High Court. The said petitioner had also filed an Intervention Application in the writ petition before the High Court, which is pending adjudication. The said petitioner claims to be a social activist and businessman, who is a devotee of Lord Jagannath and also claims to have done research and has keen interest in ancient monuments and sculptures of the State. | 1[ds]21. A three-Judge Bench of this Court in the case of Mrinalini Padhi (supra), had an occasion to consider the situation prevailing in the vicinity of Shree Jagannath Temple.This Court in the said case had initially passed an order on 8th June, 2018, directing the District Judge, Puri to submit a report. This Court thereafter vide order dated 9th January, 2019, appointed Shri Ranjit Kumar, learned Senior Counsel as Amicus Curiae and Ms. Priya Hingorani, learned Senior Counsel was requested to assist him in the matter. Shri Ranjit Kumar, learned Amicus Curiae has submitted interim reports from time to time on the basis of which certain orders came to be passed. Finally, vide the order dated 4th November, 2019, this Court issued various directions. While issuing the directions, this court had also taken on record the views of various stakeholders.22. This Court in paragraph 17 of the judgment in the case of Mrinalini Padhi (supra) had found that redevelopment plan around the Temple is mainly to decongest the area for the benefit of pilgrims and to make the city of Puri a world heritage city. This Court also recorded that nobody was opposing the reforms for the betterment of the place. This Court also noticed in paragraph 18 that during the annual Rath Yatra, lakhs of people visit the Temple town and the congregation is unmanageable.23. This Court took on record the observations of Shri Ranjit Kumar, learned Amicus Curiae as well as Ms. Priya Hingorani, learned Senior Counsel, who had personally visited the Temple premises. A perusal of the order would reveal that this Court had also requested Shri Tushar Mehta, learned Solicitor General of India to personally visit the Temple premises. From their observations, it was found that the Temples inside the Mathas, their Gaadis, Samadhis and other artefacts have been preserved.24. In paragraph 40, this Court issued various directions. In paragraph 40.15, this Court directed that there was necessity to have a proper darshan by people at large. It was also directed that it was necessary to avoid commotion and chaos as large number of pilgrims visit the Temple every day. This Court therefore directed the Temple Administration and the Chief Administrator including the State Government to prepare a roadmap with the help of experts for having proper darshan by the devotees/pilgrims. In paragraph 40.16, this Court further directed the Temple administration and also the Temple police to ensure that there would be a dedicated section of personnel to tighten security inside the Temple and ensure that no such incident takes place in the Temples and no misbehaviour is meted out to women.25. It will also be relevant to reproduce the directions in paragraph 40.19 and 40.20, which read thus:40.19. The learned Amicus Curiae has also pointed out that there is a necessity for separate toilets for male and female. We direct that let the toilets be provided with modern amenities and should be kept absolutely clean. The number of toilets shall be adequate having regard to the average footfall in the temple, which is large in number.40.20. There is a necessity pointed out about the cloak rooms. Let steps be taken by the Temple administration in this regard.26. It could thus be seen that the three-Judge Bench of this Court has emphasized on the necessity to have separate toilets for male and female. This Court further directed that the toilets be provided with modern amenities and should be kept absolutely clean. This Court also directed that the number of toilets shall be adequate having regard to the average footfall in the Temple. This Court further emphasized the necessity to have cloak rooms and directed the Temple administration to take steps in that regard.27. This Court further directed the ASI to cooperate and to permit the activities of improvement which are not prima facie objectionable and are necessary for public hygiene, sanitation and public health. This Court only put a rider that the form of the new structure is maintained in the same manner as the ancient one.28. It would thus clearly reveal that the nature of construction which is undertaken by the respondents-State and the Temple administration is in tune with the directions issued by this Court.37. No doubt that the learned counsel for the appellant is right in relying on sub-section (4) of Section 20A of the said Act which prohibits any permission including the one for carrying out any public work or project essential to the public or other constructions in any prohibited area referred to in sub-section (3) thereof on and after the date on which the Ancient Monuments and Archaeological Sites and Remains (Amendment and Validation) Bill, 2010 receives the assent of the President. The same was brought into the statute book by Act No. 10 of 2010.38. It is further to be noted that by the very same amendment, Section 20C of the said Act has also been brought into the statute book. Sub-section (1) of Section 20C of the said Act provides that any person, who owns any building or structure, which existed in a prohibited area before 16th June, 1992, or, which had been subsequently constructed with the approval of the Director-General and desires to carry out any repair or renovation of such building or structure, may make an application to the competent authority for carrying out such repair or renovation, as the case may be. Likewise, sub-section (2) of Section 20C of the said Act enables a person, who owns or possesses any building or structure or land in any regulated area, and desires to carry out any construction or re- construction or repair or renovation of such building or structure on such land, as the case may be, to make an application to the competent authority for carrying out construction or re-construction or repair or renovation, as the case may be.40. It is a settled principle of law that all the provisions in the statute have to be read harmoniously. It is presumed that each and every provision has been brought by the legislature into the statute book with some purpose. A particular provision cannot be read in isolation and has to be read in context to each other.An attempt has to be made to reconcile all the provisions of the statute together, unless it is impossible.41. At first blush, the arguments of the appellants on the basis of sub-section (4) of Section 20A of the said Act may appear to be attractive. But when sub-section (4) of Section 20A of the said Act is read in harmony with clause (dc) of Section 2 and the provisions of Sections 20C and 20D of the said Act, we find that the submission that no construction at all can be made in the prohibited area or the regulated area, would be unsustainable.42. Firstly, it is to be noted that clause (dc) of Section 2 of the said Act itself excludes four categories as mentioned hereinabove from the definition of construction. The legislative intent is thus clear that the four categories which are excluded from the definition of construction as defined in clause (dc) of Section 2 of the said Act would not be treated as a construction, wherever the said term is referred to in the statute. The legislative intent is clear that the re-construction, repair, renovation of the existing buildings has been excluded from the definition. Similarly, the construction, maintenance etc. of drains, drainage works, public latrines and urinals; the construction and maintenance of works meant for providing supply of water to public; and construction etc. for distribution of electricity, which could be construed to be essential services for catering to the needs of the public at large, have consciously been kept out of the definition of construction. It could be presumed that the legislature was aware that repairs and reconstruction of existing structures or buildings or construction of essential facilities like public latrines, urinals, water supply and electricity distribution for the pilgrims/residents are basic necessities and as such, should be permitted even in the prohibited area. If it is not so interpreted, then Section 20C of the said Act would be rendered otiose and redundant. It need not be emphasized that an interpretation which leads a particular provision to be otiose or redundant or meaningless, has to be avoided.44. Section 20D of the said Act deals with the entire procedure regarding grant of permission by the competent authority within regulated area. Undisputedly, in the present case, the competent authority has complied with the procedure as required under Section 20D of the said Act and the authority, i.e., the NMA has granted its permission for the work, which is undertaken.46. It could thus clearly be seen that the Director-General has observed that the amenities which fall within the prohibited area of the temple are required for the devotees, and therefore, it was agreed that this may be allowed. It was further observed that the ASI would work in coordination with the State Government on the design so that there is no visual impact on the main temple. The State Government was also requested to keep the entire design simple in tandem with the spiritual nature of the entire temple complex.47. In the impugned order, even the Division Bench of the High Court has recorded the statement of the learned Advocate General to the effect that both ASI and the State Government would work together. Insofar the reception area is concerned, the impugned order would also reveal that the learned Advocate General has clarified that it will now be moved out of the prohibited area and it will be constructed in the regulated area.49. It could thus clearly be seen that even the Director- General of ASI has recognized the potential of Puri and Ekamrakshetra for being taken up as World Heritage sites. It was agreed that all the work in both the places would be designed and executed keeping in mind the possibility of developing them for being acknowledged as World Heritage Sites.50. The affidavit of the Superintending Archaeologist, ASI to which we have already referred to hereinabove, would also reveal that there does not appear to be any serious objection with regard to construction of works such as toilets, drains and electrical works in the prohibited area. There also does not appear to be any serious objection with regard to undertaking construction in the regulated area. The insistence is that the construction has to be carried out after necessary permissions are obtained from the NMA under the provisions of the said Act. Another concern appears to be that the entire design or the facilities should be simple, in tandem with the spiritual nature, design and aesthetic of the entire temple complex.51. Taking into consideration all these aspects of the matter, it is amply clear that the construction activities which are being undertaken, are being undertaken in pursuance of the directions issued by a three-Judge Bench of this Court in the case of Mrinalini Padhi (supra). The construction is being carried out for the purpose of providing basic and essential amenities like toilets for men and women, cloak rooms, electricity rooms etc. These are the basic facilities which are necessary for the convenience of the devotees at large. As already discussed hereinabove, the legislative intent appears to be clear. The legislature has deliberately excluded four categories from the definition of construction. The purpose behind it appears to be that the repairs and renovation of the buildings, which are existing and the constructions which are necessary for providing basic facilities like drainage, toilets, water supply and distribution of electricity should be kept out of the rigour of requirement of statutory permissions.Such an argument is taken note of only to be rejected. If an individual person can construct a toilet in a prohibited area; can the State be denied to do so, when the State finds it necessary to do it in the larger public interest for providing basic facilities to the lakhs of devotees visiting the shrine? The answer is an emphatic no.53. A hue and cry was made that the construction carried out is contrary to the Inspection Report carried out by the ASI. However, the note of the Director General of ASI dated 21st February, 2022 as well as the affidavit filed by the ASI before the High Court would falsify this position.54. It would further be relevant to note that the High Court itself has recorded the statement of the learned Advocate General for State of Odisha that both the ASI and the State Government would work together to ensure that no archaeological remains are missed out or damaged.55. It could thus be seen that even if the appellants had any genuine concern, the same is already taken care of in the impugned order.56. In spite of that, the matter was mentioned for obtaining urgent orders before the Vacation Bench on Monday, i.e., 30th May, 2022. Since the matter was not listed on Tuesday, i.e., 31st May, 2022, it was again mentioned on the said date. Again, a hue and cry was made as if heavens are going to fall if the petitions were not listed. As such, the petitions were listed on Thursday, i.e., 2nd June, 2022. We have heard the learned counsel for the parties at length.57. We have no hesitation in holding that the activities undertaken by the State are completely in tune with the directions issued by the three-Judge Bench of this Court in the case of Mrinalini Padhi (supra). They are necessary in the larger public interest and there is no prohibition in the statute for doing so, as sought to be argued by the appellants.58. We, therefore, find no merit in the contentions raised on behalf of the appellants. We are of the considered view that the public interest litigation filed before the High Court rather than being in public interest, is detrimental to the public interest at large.59. In the recent past, it is noticed that there is mushroom growth of public interest litigations. However, in many of such petitions, there is no public interest involved at all. The petitions are either publicity interest litigations or personal interest litigation. We highly deprecate practice of filing such frivolous petitions. They are nothing but abuse of process of law. They encroach upon a valuable judicial time which could be otherwise utilized for considering genuine issues. It is high time that such so-called public interest litigations are nipped in the bud so that the developmental activities in the larger public interest are not stalled. | 1 | 509 | 2,656 | ### Instruction:
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B.R. GAVAI, J. 1. Both these petitions challenge the interlocutory order dated 9th May, 2022, passed by the Division Bench of the High Court of Orissa at Cuttack, in Writ Petition (Civil) No.6257 of 2022, wherein the Division Bench of the High Court has recorded certain submissions and statements made by the learned Advocate General appearing on behalf of the State of Odisha and directed the matter to be posted on 22nd June, 2022 along with Writ Petition (Civil) No. 10153 of 2022. From the tenor of the arguments advanced by the learned counsel for the petitioners, it appears that they are basically aggrieved since the High Court has not granted an interim order restraining the respondents from proceeding further with the construction. 2. The factual background leading to the filing of the present proceedings is thus: 3. A Public Interest Litigation being Writ Petition (Civil) No.6257 of 2022 came to be filed before the High Court of Orissa by one Dillip Kumar Baral challenging the alleged unsanctioned and unauthorised construction activities undertaken by the respondent Nos. 1 and 2 within the prohibited area of the Shree Jagannath Temple complex in contravention of the provisions of The Ancient Monuments and Archaeological Sites and Remains Act, 1958 (hereinafter referred to as the said Act) 4. It appears that initially the said writ petition was listed before the Division Bench of the High Court on 8th April, 2022, on which date, certain statements made by the learned Advocate General were taken on record. Subsequently, when the matter was listed on 21st April, 2022, certain further orders came to be passed. Subsequently, the order dated 9th May, 2022 has been passed by the High Court, which is impugned in the present Special Leave Petitions. 5. The petitioner-Ardhendu Kumar Das in Special Leave Petition (Civil) Diary No.16718 of 2022 is not the petitioner before the High Court. However, he claims to be an ardent devotee of Lord Jagannath and therefore, had filed an Intervention Application before the High Court, which is pending consideration. The petitioner has therefore filed an Interlocutory Application seeking permission to file the present Special Leave Petition challenging the order dated 9th May, 2022 of the Division Bench of the High Court. 6. The petitioner-Sumanta Kumar Ghadei in Special Leave Petition (Civil) Diary No.17078 of 2022 is also not the petitioner before the High Court. The said petitioner had also filed an Intervention Application in the writ petition before the High Court, which is pending adjudication. The said petitioner claims to be a social activist and businessman, who is a devotee of Lord Jagannath and also claims to have done research and has keen interest in ancient monuments and sculptures of the State.
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of the said Act and the authority, i.e., the NMA has granted its permission for the work, which is undertaken.46. It could thus clearly be seen that the Director-General has observed that the amenities which fall within the prohibited area of the temple are required for the devotees, and therefore, it was agreed that this may be allowed. It was further observed that the ASI would work in coordination with the State Government on the design so that there is no visual impact on the main temple. The State Government was also requested to keep the entire design simple in tandem with the spiritual nature of the entire temple complex.47. In the impugned order, even the Division Bench of the High Court has recorded the statement of the learned Advocate General to the effect that both ASI and the State Government would work together. Insofar the reception area is concerned, the impugned order would also reveal that the learned Advocate General has clarified that it will now be moved out of the prohibited area and it will be constructed in the regulated area.49. It could thus clearly be seen that even the Director- General of ASI has recognized the potential of Puri and Ekamrakshetra for being taken up as World Heritage sites. It was agreed that all the work in both the places would be designed and executed keeping in mind the possibility of developing them for being acknowledged as World Heritage Sites.50. The affidavit of the Superintending Archaeologist, ASI to which we have already referred to hereinabove, would also reveal that there does not appear to be any serious objection with regard to construction of works such as toilets, drains and electrical works in the prohibited area. There also does not appear to be any serious objection with regard to undertaking construction in the regulated area. The insistence is that the construction has to be carried out after necessary permissions are obtained from the NMA under the provisions of the said Act. Another concern appears to be that the entire design or the facilities should be simple, in tandem with the spiritual nature, design and aesthetic of the entire temple complex.51. Taking into consideration all these aspects of the matter, it is amply clear that the construction activities which are being undertaken, are being undertaken in pursuance of the directions issued by a three-Judge Bench of this Court in the case of Mrinalini Padhi (supra). The construction is being carried out for the purpose of providing basic and essential amenities like toilets for men and women, cloak rooms, electricity rooms etc. These are the basic facilities which are necessary for the convenience of the devotees at large. As already discussed hereinabove, the legislative intent appears to be clear. The legislature has deliberately excluded four categories from the definition of construction. The purpose behind it appears to be that the repairs and renovation of the buildings, which are existing and the constructions which are necessary for providing basic facilities like drainage, toilets, water supply and distribution of electricity should be kept out of the rigour of requirement of statutory permissions.Such an argument is taken note of only to be rejected. If an individual person can construct a toilet in a prohibited area; can the State be denied to do so, when the State finds it necessary to do it in the larger public interest for providing basic facilities to the lakhs of devotees visiting the shrine? The answer is an emphatic no.53. A hue and cry was made that the construction carried out is contrary to the Inspection Report carried out by the ASI. However, the note of the Director General of ASI dated 21st February, 2022 as well as the affidavit filed by the ASI before the High Court would falsify this position.54. It would further be relevant to note that the High Court itself has recorded the statement of the learned Advocate General for State of Odisha that both the ASI and the State Government would work together to ensure that no archaeological remains are missed out or damaged.55. It could thus be seen that even if the appellants had any genuine concern, the same is already taken care of in the impugned order.56. In spite of that, the matter was mentioned for obtaining urgent orders before the Vacation Bench on Monday, i.e., 30th May, 2022. Since the matter was not listed on Tuesday, i.e., 31st May, 2022, it was again mentioned on the said date. Again, a hue and cry was made as if heavens are going to fall if the petitions were not listed. As such, the petitions were listed on Thursday, i.e., 2nd June, 2022. We have heard the learned counsel for the parties at length.57. We have no hesitation in holding that the activities undertaken by the State are completely in tune with the directions issued by the three-Judge Bench of this Court in the case of Mrinalini Padhi (supra). They are necessary in the larger public interest and there is no prohibition in the statute for doing so, as sought to be argued by the appellants.58. We, therefore, find no merit in the contentions raised on behalf of the appellants. We are of the considered view that the public interest litigation filed before the High Court rather than being in public interest, is detrimental to the public interest at large.59. In the recent past, it is noticed that there is mushroom growth of public interest litigations. However, in many of such petitions, there is no public interest involved at all. The petitions are either publicity interest litigations or personal interest litigation. We highly deprecate practice of filing such frivolous petitions. They are nothing but abuse of process of law. They encroach upon a valuable judicial time which could be otherwise utilized for considering genuine issues. It is high time that such so-called public interest litigations are nipped in the bud so that the developmental activities in the larger public interest are not stalled.
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THE STATE OF UTTAR PRADESH Vs. ACHAL SINGH | amended the Rules not to retire Government doctors, if there is any scarcity of doctors it is open to the Government of Uttar Pradesh to amend its rules. In India, the Government sponsored Medical Services to cater to the needs of poorest of the poor and have-nots otherwise there is the commercialisation of the charitable medical profession. In other States too, it is seen sometime that when a doctor is transferred from one place to another, the doctor forwards application resigning from the post or seeks voluntary retirement as he does not want to move out and leave his lucrative private practice and joins the duty only when he obtains posting back to the place of his choice. In such a scenario people cannot be deprived of the services of good doctors. In view of the scarcity of the doctors and the unfortunate privatisation and commercialisation of the noble medical profession, for maintaining the efficiency of the State Medical Services, the decision taken by the Government is permissible as per Rules and cannot be interfered with. Unfortunately, the High Court has given the aforesaid observations pointing out the shortage of specialised doctors and at the same time has ultimately decided against the State Government on wrong interpretation without considering the Explanation attached to Rule 56 applicable in the State of Uttar Pradesh. The preface given by the High Court is just opposite to its conclusion. The High Court ought to have rejected and not to allow the prayer of voluntary retirement made by the doctors.37. It was urged that some of the doctors suffered from neck pain etc. as such prayer ought to have been accepted but they have not given any such serious ailments which may make their functioning in the hospital difficult in any manner whatsoever. It was the pretext that was used by them to seek voluntary retirement. It is for the Government to consider the efficacy. Doctors too have right under the Rights of Persons with Disabilities Act, 2016, they can continue in services unfettered by such ailments.38. Under Article 47 it is the duty of the State to improve the public health, which is a primary duty under the Directive Principles of the State Policy and the statutory expression which may be enforced. When we consider Article 51A containing Fundamental Duties, it is a duty of every citizen Under Article 51A(g) to have compassion for living creatures and to have humanism is also contemplated Under Article 51A(h) and to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavours and achievement. It cannot be done by depriving poorest of the poor essential medical services and to leave them at the mercy of doctors. There cannot be an exodus from the Government Medical Services at large, which is being projected in the instant case, definitely this cannot be permitted to happen within four corners of law as it has to be living organism and has to live up to the essence and spirit of constitution and cannot ignore and overlook needs of poorest strata of the society.39. It was urged that the State Government is discriminating between the doctors in the Provincial Medical Services with the doctors working in the State-owned Hospitals and Medical Colleges. In the Medical Colleges etc. doctors are being permitted to retire. Instances of 7 doctors have been given, who were permitted to retire in 2016, 2017 and 2018. Doctors of Medical Colleges are on a different footing than that of Provincial Medical Services. Even otherwise in view of the scarcity of the doctors, no ground of equality can be claimed and the doctors of different services form different class, apart from that there is no concept of negative equality that too against the public interest. In case, such a plea is allowed, none may be left to serve public at large.40. There are several decisions of the High Court, namely, Dr. Anil Dewan v. State of Punjab, ILR 1 Punjab & Haryana 46; State of Punjab v. Dr. Harbir Singh Dhillon, 2010 SCC Online P & H 6159 and Dr. Kalpana Singh v. State of Rajasthan, 2014 SCC Online Raj 6253 , were cited to show that the decision in Dinesh Chandra Sangma (supra) had been followed. We have considered the aforesaid decisions and we find that it would depend upon the scheme of the Rules. Each and every judgment has to be considered in the light of the provisions which came up for consideration and question it has decided, language employed in the rules, and it cannot be said to be of general application as already observed by this Court in State of Haryana (supra). 41. It was also contended that the State of Uttar Pradesh may amend rules, in our opinion there is no such necessity in view of the Explanation the State has already amended its Rules so as to enable it to pass an order with respect to retirement whether it is at the instance of the Government or at the instance of the employee for both the public interest is germane.42. The submission was also made with respect to the imposition of moratorium period of one year on retirement and that there should be the recruitment of the doctors and thereafter acceptance of voluntary retirement by the State. We do not propose to venture into it. The action of the State Government was appropriate in disallowing the prayer seeking voluntary retirement. The Government may fill the vacancies if any. But that would not bring doctors of experience at senior level and exodus of doctors cannot be permitted to weaken the services when the public interest requires to serve for the sake of efficient medical profession and fulfil Directive Principles of State Policy once they found statutory expression in the Rules cannot be made mockery. When services are required, denial of voluntary retirement is permissible under the Rules applicable in the State of Uttar Pradesh. | 1[ds]11. In our opinion, whether voluntary retirement is automatic or an order is required to be passed would depend upon the phraseology used in a particularunder which retirement is to be ordered or voluntary retirement is sought. The factual position of each and every case has to be seen along with applicablewhile applying a dictum of the Court interpreting any otherit should be Pari Materia. Rule 56(2) deals with the satisfaction of the Government to require a Government servant to retire in the public interest. For the purpose, the Government may consider any material relating to Government servant and may requisition any report from the Vigilance Establishment.12. Thehave relied on dictum in Dinesh Chandra SangmaState of Assam, (1977) 4 SCC 441 ,a three-Judge Bench of this Court observed as under:7. Before we proceed further we may read F.56 as amended:The date of compulsory retirement of a Government servant is the date on which he attains the age of 55 years. He may be retained in service after this age with sanction of the State Government on public grounds which must be recorded in writing and proposals for the retention of a Government servant in service after this age should not be made except in very special circumstances.(b) Notwithstanding anything contained in thesethe appropriate authority may, if he is of the opinion that it is in the public interest to do so, retire Government servant by giving him notice of not less than three months in writing or three months pay and allowances in lieu of such notice, after he has attained fifty years of age or has completed 25 years of service, whichever is earlier.(c) Any Government servant may, by giving notice of not less than three months in writing to the appropriate authority, retire from service after he has attained the age of fifty years or has completed 25 years of service, whichever is earlier.It is clear from the above that under F.56(b) the Government may retire a Government servant in the public interest by giving him three months notice in writing or three months pay and allowances in lieu thereof after he has attained the age of fifty years or has completed 25 years of service, whichever is earlier.8. As is well-known Government servants hold office during the pleasure of the President or the Governor, as the case may be,Article 310 of the Constitution. However, the pleasure doctrineArticle 310 is limited by Article 311(2). It is clear that the services of a permanent Government servant cannot be terminated except in accordance with ther Article 309 subject to Article 311(2) of the Constitution and the Fundamental Rights. It is also well-settled that even a temporary Government servant or a probationer cannot be dismissed or removed or reduced in rank except in accordance with Article 311(2). The above doctrine of pleasure is invoked by the Government in the public interest after a Government servant attains the age of 50 years or has completed 25 years of service. This is constitutionally permissible as compulsory termination of service under F.56 (b) does not amount to removal or dismissal by way of punishment. While the Government reserves its right to compulsorily retire a Government servant, even against his wish, there is a corresponding right of the Government servant under F.56(c) to voluntarily retire from service by giving the Government three months notice in writing. There is no question of acceptance of the request for voluntary retirement by the Government when the Government servant exercises his right under F.56(c). Mr. Niren De is therefore right in conceding this position.56 is one of the statutorywhich binds the Government as well as the Government servant. The condition of service which is envisaged in Rule 56(c) giving an option in absolute terms to a Government servant to voluntarily retire with three months previous notice, after he reaches 50 years of age or has completed 25 years of service, cannot therefore be equated with a contract of employment as envisaged in Explanation 2 to Rule 119.14. The field occupied by F.56 is left untrammelled by Explanation 2 to Rule 119. The words "his contract of employment" in Explanation 2 are clinching on the point.*** *** ***17. The High Court committed an error on law in holding that consent of the Government was necessary to give legal effect to the voluntary retirement of the56(c). Since the conditions of F.56(c) are fulfilled in the instant case, themust be held to have lawfully retired as notified by him with effect from August 2, 1976.13. It was submitted that despite the absence of any identical language, theinvolved in Dinesh Chandra Sangma (supra) is comparable with Uttar Pradesh Fundamental Rules and therefore, the judgment is binding. The submission based upon the same cannot be accepted and Rule 56(b)(c) came up for consideration was somewhat different and there was no such Explanation to Rule 56.14. In Dinesh Chandra Sangma (supra) he was the District and Sessions Judge at Dibrugarh in the State of Assam. On account of domestic troubles, he did not want to continue after attainment of the age of 50 years. He served a noticeRule 56(c) as amended by the Governor of AssamArticle 309 of the Constitution by notification dated 22.7.1975. The formal notice was served upon by him. The Government allowed him to retire from the State Government Service and then there were certain developments in the Government and Government sought to retrace its steps and passed an order on 28.7.1976, countermanding its earlier order allowing him to retire from service. The High Court dismissed the writ application filed by him. The Fundamental Rule as applicable in the State of Assam came up for consideration. In our opinion, it was quite different. It is provided in the Fundamental Rule 56(b) as applicable in the State of Assam that public interest was germane when a Government servant retires. Under Rule 56(c), a Government servant may retire by giving notice of not less than three months. Hence it was observed that there was no question of acceptance of the request for voluntary retirement by the Government when the Government servant exercises his rightRule 56(c). Not only thewas different it was passed on the concession also, however, the Explanation given to Rule 56 in the State of Uttar Pradesh makes it completely different and the provisions inis also quite different. Theas applicable in Assam for the purpose of retirement by the Government is contained inwhich require retirement in public interest whereas no such rider exist inwhen employee seek voluntary retirement, whereasin the State of Uttar Pradesh both provisions are conjointly read not only the language is different and the explanation makes out the whole difference.15. The Explanation attached to Rule 56 as applicable in the State of Uttar Pradesh makes it clear that when a decision is taken by the authority under(c) of Rule 56, the right of an employee to retire cannot be said to be absolute as in the case of resignation, voluntary retirement is with retiral benefits whereas it may not necessarily follow in case of resignation. The decision under thein U.P. is to be based upon considering the public interest, whether it is a case of retirement by the Government or a case of a Government servant seeking voluntary retirement. The decision rendered in Dinesh Chandra Sangma (supra) is distinguishable and was based on the differently couched rule. The Explanation added makes the provisions different in the State of Uttar Pradesh. The decision in the case of Dinesh Chandra Sangma (supra) cannot be said to be operative being quite distinguishable.Rule 5.32(b)(2) of Punjab Rules clearly provide that where the appointing authority does not refuse to grant the permission to retire before the expiry of the period in(1), the retirement shall become effective from the date of the expiry of the said date. There is no such provision of notice becoming effective from the date of the expiry of the period in the Fundamental Rules as applicable to the State of Uttar Pradesh. In the context of the proviso, the notice becomes effective from the date of expiry of the period, in that context this Court has made observations in the aforesaid dictum that Rule 2.2 does not obstruct the voluntary retirement to come into force automatically on the expiry of three months.20. In the State of Haryana (supra), this Court also observed that someare couched in language, which results in an automatic retirement of the employee upon the expiry of the period specified in thenotice. On the other hand, certainin some other departments are couched in the language which makes it clear that even upon expiry of the period specified in the notice, the retirement is not automatic and an express order granting permission is required and has to be communicated. The relationship of master and servant in the latter type ofcontinues after the period specified in the notice till such acceptance is communicated and the refusal of permission could also be communicated after three months and the employee continues to be in service. It is the aforesaid later observations made by this Court, which are squarely applicable to thein question as applicable in the State of Uttar Pradesh.In our considered opinion,Rule 56 as applicable in the State of Uttar Pradesh, notice of voluntary retirement does not come into effect automatically on the expiry of the three months period. Under thein question, the appointing authority has to accept the notice for voluntary retirement or it can be refused on permissible grounds.26. In our opinion, the Rule 56(c) does not fall in the category where there is an absolute right on the employee to seek voluntary retirement. In view of the aforesaid dictum and what is held by this Court, we find that the prayer made to make a reference to a larger Bench, in case this Court does not follow the earlier decision is entirely devoid of merit as on the basis of what has been held by this Court in the earlier decisions, we have arrived at the conclusion. This Court has authoritatively laid down the law umpteen number ofthis purpose, threefold submission has been made. Firstly, that the principle of liberty under the Constitution and specifically Part III of the Constitution requires that any restriction on freedom and liberty must have the sanction of the law and that law must be just, fair and reasonable. Presently, there is no law as enactedArticle 309 of the Constitution. Secondly, the right of Government employee and that of the Government are delineated in terms of Fundamental Rules governing State Government employees. Thus, if any Fundamental Rules do not restrict the general liberty of an employee or do not empower the employer to act in a certain way, an action otherwise would be impermissible. For this purpose, reliance has been placed on Moti Ram DekaG.M., North East Frontier Railway, (1964) 5 SCR 683. It was also submitted that public interest restriction that applies to the State in the case of compulsory retirement, applies on account of Article 311. The Court observed:27. In this connection, it is necessary to emphasise that the rule-making authority contemplated by309 cannot be validly exercised so as to curtail or affect the rights guaranteed to public servants311(1) is intended to afford a sense of security to public servants who are substantively appointed to a permanent post and one of the principal benefits which they are entitled to expect is the benefit of pension after rendering public service for the period prescribed by the Rules. It would, we think, not be legitimate to contend that the right to earn a pension to which a servant substantively appointed to a permanent post is entitled can be curtailed by Rules framed09 so as to make the said right either ineffective or illusory. Once the scope of311(1) and (2) is duly determined, it must be held that no Rule framed09 can trespass on the rights guaranteed by311. This position is of basic importance and must be borne in mind in dealing with the controversy in the present appeals.30. The reliance placed on Moti Ram Deka (supra) is of no avail as it has no application to the instant case as no right conferred by Article 311 of the Constitution can be said to have been taken away and servicedehors of it can provide for the concept of public interest.31. There is no doubt about it that Rule 56(d) provides that where a disciplinary enquiry is pending or contemplated and in the case of contemplated disciplinary enquiry, the Government servant shall be informed before the expiry of notice that it has not been accepted. The proviso to Rule 56(d) has no application where a disciplinary enquiry is not contemplated or pending. When the proviso itself is not applicable, in no case it will dilute the provisions of Explanation with respect to exigencies mentioned in(c) of Rule 56.32. The submission made upon principle of liberty and its curtailment, the law must be just, fair and reasonable can also not be accepted as the Fundamental Rules are statutoryand have been made by the Governorn 241(2)(b) of the Government of Indiaand provisions ofin question cannot be said to be unfair, unreasonable and oppressive.33. The concept of liberty not to serve when the public interest requires cannot be attracted as retirement which carries pecuniary benefits can be subject to certain riders. The general public has the right to obtain treatment from super skilled specialists, not second rates. In Jagadish SaranUnion of India, (1980) 2 SCC 768 , the Court observed thus:Secondly, and more importantly, it is difficult to denounce or renounce the merit criterion when the selection is for post-graduate or post-doctoral courses in specialisedTo sympathise mawkishly with the weakerby selecting sub-standard candidates, is to punish society as a whole by denying the prospect of excellence say in hospital service. Even the poorest, when stricken by critical illness, needs the attention of super-skilled specialists, not humdrum second-rates. So it is that relaxation on merit, by overruling equality and quality altogether, is a social risk where the stage is post-graduate or post-doctoral.The concept of public interest can also be invoked by the Government when voluntary retirement sought by an employee, would be against the public interest. The provisions cannot be said to be violative of any of the rights. There is already paucity of the doctors as observed by the High Court, the system cannot be left without competent senior persons and particularly, the High Court has itself observed that doctors are not being attracted to join services and there is an existing scarcity of the doctors. Poorest of the poor obtain treatment at the Government hospitals. They cannot be put at the peril, even when certain doctors are posted against the administrative posts. It is not that they have been posted against their seniority or to the other cadre. Somebody has to man these administrative posts also, which are absolutely necessary to run the medical services which are part and parcel of the right to life itself. In the instant case, where the right of the public are involved in obtaining treatment, the State Government has taken a decision as per Explanations to decline the prayer for voluntary retirement considering the public interest. It cannot be said that State has committed any illegality or its decision suffers from any vice of arbitrariness.35. The decision of the Government cater to the needs of the human life and carry the objectives of public interest. Theare claiming the right to retire under Part III of the Constitution such right cannot be supreme than right to life. It has to be interpreted along with the rights of the State Government in Part IV of the Constitution as it is obligatory upon the State Government to make an endeavourArticle 47 to look after the provisions for health and nutrition. The fundamental duties itself are enshrinedArticle 51(A) which require observance. The rightArticle 19(1)(g) is subject to the interest of the general public and once service has been joined, the right can only be exercised as perand not otherwise. Such conditions of service made in public interest cannot be said to be illegal or arbitrary or taking away the right of liberty. The provisions of thein question cannot be said to be against the Constitutional provisions. In case of voluntary retirement, gratuity, pensions, and other dues etc. are payable to the employee in accordance withand when there is a requirement of the services of an employee, the appointing authority may exercise its right not to accept the prayer for voluntary retirement. In case all the doctors are permitted to retire, in that situation, there would be a chaos and no doctor would be left in the Government hospitals, which would be against the concept of the welfare state and injurious to public interest. In the case of voluntary retirement, there is a provision in Rule 56 that a Government servant may be extended benefit of an additional period of five years then an actual period of service rendered by him there is the corresponding obligation to serve in dire need.It was urged that in the State of Tamil Nadu, Government has amended thenot to retire Government doctors, if there is any scarcity of doctors it is open to the Government of Uttar Pradesh to amend its rules.In India, the Government sponsored Medical Services to cater to the needs of poorest of the poor and have-nots otherwise there is the commercialisation of the charitable medical profession. In other States too, it is seen sometime that when a doctor is transferred from one place to another, the doctor forwards application resigning from the post or seeks voluntary retirement as he does not want to move out and leave his lucrative private practice and joins the duty only when he obtains posting back to the place of his choice. In such a scenario people cannot be deprived of the services of good doctors. In view of the scarcity of the doctors and the unfortunate privatisation and commercialisation of the noble medical profession, for maintaining the efficiency of the State Medical Services, the decision taken by the Government is permissible as perand cannot be interfered with. Unfortunately, the High Court has given the aforesaid observations pointing out the shortage of specialised doctors and at the same time has ultimately decided against the State Government on wrong interpretation without considering the Explanation attached to Rule 56 applicable in the State of Uttar Pradesh. The preface given by the High Court is just opposite to its conclusion. The High Court ought to have rejected and not to allow the prayer of voluntary retirement made by the doctors.It was urged that some of the doctors suffered from neck pain etc. as such prayer ought to have been accepted but they have not given any such serious ailments which may make their functioning in the hospital difficult in any mannerwhatsoever. It was the pretext that was used by them to seek voluntary retirement. It is for the Government to consider the efficacy. Doctors too have right under the Rights of Persons with Disabilities Act, 2016, they can continue in services unfettered by such ailments.38. Under Article 47 it is the duty of the State to improve the public health, which is a primary duty under the Directive Principles of the State Policy and the statutory expression which may be enforced. When we consider Article 51A containing Fundamental Duties, it is a duty of every citizenArticle 51A(g) to have compassion for living creatures and to have humanism is also contemplatedArticle 51A(h) and to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavours and achievement. It cannot be done by depriving poorest of the poor essential medical services and to leave them at the mercy of doctors. There cannot be an exodus from the Government Medical Services at large, which is being projected in the instant case, definitely this cannot be permitted to happen within four corners of law as it has to be living organism and has to live up to the essence and spirit of constitution and cannot ignore and overlook needs of poorest strata of the society.39. It was urged that the State Government is discriminating between the doctors in the Provincial Medical Services with the doctors working in the State-owned Hospitals and Medical Colleges. In the Medical Colleges etc. doctors are being permitted to retire. Instances of 7 doctors have been given, who were permitted to retire in 2016, 2017 and 2018. Doctors of Medical Colleges are on a different footing than that of Provincial Medical Services. Even otherwise in view of the scarcity of the doctors, no ground of equality can be claimed and the doctors of different services form different class, apart from that there is no concept of negative equality that too against the public interest. In case, such a plea is allowed, none may be left to serve public at large.40. There are several decisions of the High Court, namely, Dr. Anil DewanState of Punjab, ILR 1 Punjab & Haryana 46; State of PunjabDr. Harbir Singh Dhillon, 2010 SCC Online6159 and Dr. Kalpana SinghState of Rajasthan,SCC Online Rajwere cited to show that the decision in Dinesh Chandra Sangma (supra) had been followed. We have considered the aforesaid decisions and we find that it would depend upon the scheme of the Rules. Each and every judgment has to be considered in the light of the provisions which came up for consideration and question it has decided, language employed in the rules, and it cannot be said to be of general application as already observed by this Court in State of Haryana (supra).It was also contended that the State of Uttar Pradesh may amendrules, in our opinion there is no such necessity in view of the Explanation the State has already amended itsso as to enable it to pass an order with respect to retirement whether it is at the instance of the Government or at the instance of the employee for both the public interest is germane.42. | 1 | 13,311 | 4,103 | ### Instruction:
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amended the Rules not to retire Government doctors, if there is any scarcity of doctors it is open to the Government of Uttar Pradesh to amend its rules. In India, the Government sponsored Medical Services to cater to the needs of poorest of the poor and have-nots otherwise there is the commercialisation of the charitable medical profession. In other States too, it is seen sometime that when a doctor is transferred from one place to another, the doctor forwards application resigning from the post or seeks voluntary retirement as he does not want to move out and leave his lucrative private practice and joins the duty only when he obtains posting back to the place of his choice. In such a scenario people cannot be deprived of the services of good doctors. In view of the scarcity of the doctors and the unfortunate privatisation and commercialisation of the noble medical profession, for maintaining the efficiency of the State Medical Services, the decision taken by the Government is permissible as per Rules and cannot be interfered with. Unfortunately, the High Court has given the aforesaid observations pointing out the shortage of specialised doctors and at the same time has ultimately decided against the State Government on wrong interpretation without considering the Explanation attached to Rule 56 applicable in the State of Uttar Pradesh. The preface given by the High Court is just opposite to its conclusion. The High Court ought to have rejected and not to allow the prayer of voluntary retirement made by the doctors.37. It was urged that some of the doctors suffered from neck pain etc. as such prayer ought to have been accepted but they have not given any such serious ailments which may make their functioning in the hospital difficult in any manner whatsoever. It was the pretext that was used by them to seek voluntary retirement. It is for the Government to consider the efficacy. Doctors too have right under the Rights of Persons with Disabilities Act, 2016, they can continue in services unfettered by such ailments.38. Under Article 47 it is the duty of the State to improve the public health, which is a primary duty under the Directive Principles of the State Policy and the statutory expression which may be enforced. When we consider Article 51A containing Fundamental Duties, it is a duty of every citizen Under Article 51A(g) to have compassion for living creatures and to have humanism is also contemplated Under Article 51A(h) and to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavours and achievement. It cannot be done by depriving poorest of the poor essential medical services and to leave them at the mercy of doctors. There cannot be an exodus from the Government Medical Services at large, which is being projected in the instant case, definitely this cannot be permitted to happen within four corners of law as it has to be living organism and has to live up to the essence and spirit of constitution and cannot ignore and overlook needs of poorest strata of the society.39. It was urged that the State Government is discriminating between the doctors in the Provincial Medical Services with the doctors working in the State-owned Hospitals and Medical Colleges. In the Medical Colleges etc. doctors are being permitted to retire. Instances of 7 doctors have been given, who were permitted to retire in 2016, 2017 and 2018. Doctors of Medical Colleges are on a different footing than that of Provincial Medical Services. Even otherwise in view of the scarcity of the doctors, no ground of equality can be claimed and the doctors of different services form different class, apart from that there is no concept of negative equality that too against the public interest. In case, such a plea is allowed, none may be left to serve public at large.40. There are several decisions of the High Court, namely, Dr. Anil Dewan v. State of Punjab, ILR 1 Punjab & Haryana 46; State of Punjab v. Dr. Harbir Singh Dhillon, 2010 SCC Online P & H 6159 and Dr. Kalpana Singh v. State of Rajasthan, 2014 SCC Online Raj 6253 , were cited to show that the decision in Dinesh Chandra Sangma (supra) had been followed. We have considered the aforesaid decisions and we find that it would depend upon the scheme of the Rules. Each and every judgment has to be considered in the light of the provisions which came up for consideration and question it has decided, language employed in the rules, and it cannot be said to be of general application as already observed by this Court in State of Haryana (supra). 41. It was also contended that the State of Uttar Pradesh may amend rules, in our opinion there is no such necessity in view of the Explanation the State has already amended its Rules so as to enable it to pass an order with respect to retirement whether it is at the instance of the Government or at the instance of the employee for both the public interest is germane.42. The submission was also made with respect to the imposition of moratorium period of one year on retirement and that there should be the recruitment of the doctors and thereafter acceptance of voluntary retirement by the State. We do not propose to venture into it. The action of the State Government was appropriate in disallowing the prayer seeking voluntary retirement. The Government may fill the vacancies if any. But that would not bring doctors of experience at senior level and exodus of doctors cannot be permitted to weaken the services when the public interest requires to serve for the sake of efficient medical profession and fulfil Directive Principles of State Policy once they found statutory expression in the Rules cannot be made mockery. When services are required, denial of voluntary retirement is permissible under the Rules applicable in the State of Uttar Pradesh.
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be said to be illegal or arbitrary or taking away the right of liberty. The provisions of thein question cannot be said to be against the Constitutional provisions. In case of voluntary retirement, gratuity, pensions, and other dues etc. are payable to the employee in accordance withand when there is a requirement of the services of an employee, the appointing authority may exercise its right not to accept the prayer for voluntary retirement. In case all the doctors are permitted to retire, in that situation, there would be a chaos and no doctor would be left in the Government hospitals, which would be against the concept of the welfare state and injurious to public interest. In the case of voluntary retirement, there is a provision in Rule 56 that a Government servant may be extended benefit of an additional period of five years then an actual period of service rendered by him there is the corresponding obligation to serve in dire need.It was urged that in the State of Tamil Nadu, Government has amended thenot to retire Government doctors, if there is any scarcity of doctors it is open to the Government of Uttar Pradesh to amend its rules.In India, the Government sponsored Medical Services to cater to the needs of poorest of the poor and have-nots otherwise there is the commercialisation of the charitable medical profession. In other States too, it is seen sometime that when a doctor is transferred from one place to another, the doctor forwards application resigning from the post or seeks voluntary retirement as he does not want to move out and leave his lucrative private practice and joins the duty only when he obtains posting back to the place of his choice. In such a scenario people cannot be deprived of the services of good doctors. In view of the scarcity of the doctors and the unfortunate privatisation and commercialisation of the noble medical profession, for maintaining the efficiency of the State Medical Services, the decision taken by the Government is permissible as perand cannot be interfered with. Unfortunately, the High Court has given the aforesaid observations pointing out the shortage of specialised doctors and at the same time has ultimately decided against the State Government on wrong interpretation without considering the Explanation attached to Rule 56 applicable in the State of Uttar Pradesh. The preface given by the High Court is just opposite to its conclusion. The High Court ought to have rejected and not to allow the prayer of voluntary retirement made by the doctors.It was urged that some of the doctors suffered from neck pain etc. as such prayer ought to have been accepted but they have not given any such serious ailments which may make their functioning in the hospital difficult in any mannerwhatsoever. It was the pretext that was used by them to seek voluntary retirement. It is for the Government to consider the efficacy. Doctors too have right under the Rights of Persons with Disabilities Act, 2016, they can continue in services unfettered by such ailments.38. Under Article 47 it is the duty of the State to improve the public health, which is a primary duty under the Directive Principles of the State Policy and the statutory expression which may be enforced. When we consider Article 51A containing Fundamental Duties, it is a duty of every citizenArticle 51A(g) to have compassion for living creatures and to have humanism is also contemplatedArticle 51A(h) and to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavours and achievement. It cannot be done by depriving poorest of the poor essential medical services and to leave them at the mercy of doctors. There cannot be an exodus from the Government Medical Services at large, which is being projected in the instant case, definitely this cannot be permitted to happen within four corners of law as it has to be living organism and has to live up to the essence and spirit of constitution and cannot ignore and overlook needs of poorest strata of the society.39. It was urged that the State Government is discriminating between the doctors in the Provincial Medical Services with the doctors working in the State-owned Hospitals and Medical Colleges. In the Medical Colleges etc. doctors are being permitted to retire. Instances of 7 doctors have been given, who were permitted to retire in 2016, 2017 and 2018. Doctors of Medical Colleges are on a different footing than that of Provincial Medical Services. Even otherwise in view of the scarcity of the doctors, no ground of equality can be claimed and the doctors of different services form different class, apart from that there is no concept of negative equality that too against the public interest. In case, such a plea is allowed, none may be left to serve public at large.40. There are several decisions of the High Court, namely, Dr. Anil DewanState of Punjab, ILR 1 Punjab & Haryana 46; State of PunjabDr. Harbir Singh Dhillon, 2010 SCC Online6159 and Dr. Kalpana SinghState of Rajasthan,SCC Online Rajwere cited to show that the decision in Dinesh Chandra Sangma (supra) had been followed. We have considered the aforesaid decisions and we find that it would depend upon the scheme of the Rules. Each and every judgment has to be considered in the light of the provisions which came up for consideration and question it has decided, language employed in the rules, and it cannot be said to be of general application as already observed by this Court in State of Haryana (supra).It was also contended that the State of Uttar Pradesh may amendrules, in our opinion there is no such necessity in view of the Explanation the State has already amended itsso as to enable it to pass an order with respect to retirement whether it is at the instance of the Government or at the instance of the employee for both the public interest is germane.42.
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Guntur Tobaccos Ltd Vs. The Transmission Corpn. Of A.P. | but the second part of the agreement which gives an option to the licensee of purchasing the property cannot be enforced because of the statutory obligation of A.P. Electricity Supply Undertakings (Acquisition) Act, 1954." 19. Mr. Pallav Sishodia, learned counsel for the appellant, while questioning the finding of the Division Bench of the High Court submitted that since the leases in question had been executed in compliance with the provisions of Section 9(2) of the Indian Electricity Act, 1910, the lessor was under an obligation to comply with the conditions relating to option of purchase as contained in clause 6 of the lease deed. It was submitted that even if the properties of the Undertaking are accepted to have vested in the State Government, the status of the lessor remained the same though the identity may have been altered and the person who had stepped into the shoes of the lessor was equally bound to give effect to the provisions of clause 6 of the lease deed in the event the lessee opted to exercise such right.20. However, Mr. Sishodia also reiterated the submission that once the demised property was no longer used for the purpose of generation of electricity, it ceased to be a part of the Electrical Undertaking and did not, therefore, vest in the State under the 1954 Act. Mr. Sishodia urged that the Division Bench had erred in interpreting the provisions of Section 3(2)(d)(ii) along with Section 4(A) and Section 6 of the Indian Electricity Act, 1910 in arriving at a finding that till such time the licence granted for generation of power was either modified or rectified, all the properties belonging to the Undertaking would continue to remain a part of the Undertaking. It was urged that it was on account of such faulty reasoning that the Letters Patent Appeal, which was filed by the appellant, came to be dismissed.21.It was lastly urged by Mr. Sishodia that having included the clause relating to option of purchase and having put the appellant into possession of the demised property, the appellants possession was also protected under Section 53A of the Transfer of Property Act, 1982. In support of his said contention Mr. Sishodia referred to and relied upon the decision of this Court in Shrimant Shamrao Suryavanshi and Anr. Vs. Pralhad Bhairoba Suryavanshi (2002 (3) SCC 676 ), in which this Court observed that a person who obtained possession of the property in part-performance of an agreement of sale, could defend his possession in a suit for recovery of possession filed by the transferor or by a subsequent transferee of the property claiming under him, even if a suit for specific performance of the agreement of sale becomes barred by limitation. 22. Mr. Rakesh K. Sharma fully supported the decision of the Division Bench impugned in this appeal and submitted that no case had been made out for interference in the appeal. He reiterated the submissions made before the High Court that once the Undertaking had vested in the State in terms of the 1954 Act, all the properties of the Undertaking, whether being used or not for the generation of electricity, would stand vested in the State Government. He also reiterated that in view of the provisions of the Indian Electricity Act the State Government was under no obligation to act in terms of the condition stipulating option of purchase by the lessee. He submitted that once the Electricity Undertaking, namely, GPL, came to be vested in the State Government under the 1954 Act and the lease was terminated by the State Government, the appellant continued to be in occupation of the demised premises as a licensee and such licence could be terminated at the will of the licensor. Mr. Sharma urged that the State Government was no longer under any obligation to comply with the provisions relating to the option of purchase contained in clause 6 of the lease agreement, since the lease deeds had ceased to be operative. 23. We have carefully considered the submissions of the respective parties and do not find any reason to disagree with the view taken by the Division Bench of the High Court, in dismissing the Letters Patent Appeal. Having regard to the opinion given by the Government Solicitor, the finding arrived at by the High Court regarding the implied consent of the State Government does not require any interference.24. The other submission made on behalf of the appellant that, since the State Government had stepped into the shoes of the lessor, it was bound by the terms of the lease agreement and in particular clause 6 thereof, cannot also be accepted in view of the provisions of Sections 4 and 6 of the A.P. Electricity Supply Undertakings (Acquisition) Act, 1954. The defence taken on behalf of the appellant/lessee that, since the demised lands were no longer required by GPL, they ceased to be part of the Electricity Undertaking, has been rightly rejected by the High Court. The High Court has considered the matter in some detail and various decisions of this Court and other High Courts have been considered by it in ultimately coming to the conclusion that in view of Sections 4 and 6 of the 1954 Act read with the provisions of the Indian Electricity Act, 1910, all the properties of the Undertaking for which licence was granted for generation of electricity, remained a part of the Undertaking unless the licence had been modified. As has been noted by the High Court, the properties involved were mentioned and included in the licence granted to GPL and the said licence remained unchanged when on the basis of the order passed by the Government under Section 3 of the 1954 Act, all the properties of the Electricity Undertaking came to be vested in the State. Moreover, once the lease came to an end, the State Government was no longer under any obligation to act in accordance with the option given to the lessee to purchase the property. | 0[ds]23. We have carefully considered the submissions of the respective parties and do not find any reason to disagree with the view taken by the Division Bench of the High Court, in dismissing the Letters Patent Appeal. Having regard to the opinion given by the Government Solicitor, the finding arrived at by the High Court regarding the implied consent of the State Government does not require any interference.24.The other submission made on behalf of the appellant that, since the State Government had stepped into the shoes of the lessor, it was bound by the terms of the lease agreement and in particular clause 6 thereof, cannot also be accepted in view of the provisions of Sections 4 and 6 of the A.P. Electricity Supply Undertakings (Acquisition) Act, 1954.The defence taken on behalf of the appellant/lessee that, since the demised lands were no longer required by GPL, they ceased to be part of the Electricity Undertaking, has been rightly rejected by the High Court. The High Court has considered the matter in some detail and various decisions of this Court and other High Courts have been considered by it in ultimately coming to the conclusion that in view of Sections 4 and 6 of the 1954 Act read with the provisions of the Indian Electricity Act, 1910, all the properties of the Undertaking for which licence was granted for generation of electricity, remained a part of the Undertaking unless the licence had been modified. As has been noted by the High Court, the properties involved were mentioned and included in the licence granted to GPL and the said licence remained unchanged when on the basis of the order passed by the Government under Section 3 of the 1954 Act, all the properties of the Electricity Undertaking came to be vested in the State. Moreover, once the lease came to an end, the State Government was no longer under any obligation to act in accordance with the option given to the lessee to purchase the property. | 0 | 3,846 | 364 | ### Instruction:
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but the second part of the agreement which gives an option to the licensee of purchasing the property cannot be enforced because of the statutory obligation of A.P. Electricity Supply Undertakings (Acquisition) Act, 1954." 19. Mr. Pallav Sishodia, learned counsel for the appellant, while questioning the finding of the Division Bench of the High Court submitted that since the leases in question had been executed in compliance with the provisions of Section 9(2) of the Indian Electricity Act, 1910, the lessor was under an obligation to comply with the conditions relating to option of purchase as contained in clause 6 of the lease deed. It was submitted that even if the properties of the Undertaking are accepted to have vested in the State Government, the status of the lessor remained the same though the identity may have been altered and the person who had stepped into the shoes of the lessor was equally bound to give effect to the provisions of clause 6 of the lease deed in the event the lessee opted to exercise such right.20. However, Mr. Sishodia also reiterated the submission that once the demised property was no longer used for the purpose of generation of electricity, it ceased to be a part of the Electrical Undertaking and did not, therefore, vest in the State under the 1954 Act. Mr. Sishodia urged that the Division Bench had erred in interpreting the provisions of Section 3(2)(d)(ii) along with Section 4(A) and Section 6 of the Indian Electricity Act, 1910 in arriving at a finding that till such time the licence granted for generation of power was either modified or rectified, all the properties belonging to the Undertaking would continue to remain a part of the Undertaking. It was urged that it was on account of such faulty reasoning that the Letters Patent Appeal, which was filed by the appellant, came to be dismissed.21.It was lastly urged by Mr. Sishodia that having included the clause relating to option of purchase and having put the appellant into possession of the demised property, the appellants possession was also protected under Section 53A of the Transfer of Property Act, 1982. In support of his said contention Mr. Sishodia referred to and relied upon the decision of this Court in Shrimant Shamrao Suryavanshi and Anr. Vs. Pralhad Bhairoba Suryavanshi (2002 (3) SCC 676 ), in which this Court observed that a person who obtained possession of the property in part-performance of an agreement of sale, could defend his possession in a suit for recovery of possession filed by the transferor or by a subsequent transferee of the property claiming under him, even if a suit for specific performance of the agreement of sale becomes barred by limitation. 22. Mr. Rakesh K. Sharma fully supported the decision of the Division Bench impugned in this appeal and submitted that no case had been made out for interference in the appeal. He reiterated the submissions made before the High Court that once the Undertaking had vested in the State in terms of the 1954 Act, all the properties of the Undertaking, whether being used or not for the generation of electricity, would stand vested in the State Government. He also reiterated that in view of the provisions of the Indian Electricity Act the State Government was under no obligation to act in terms of the condition stipulating option of purchase by the lessee. He submitted that once the Electricity Undertaking, namely, GPL, came to be vested in the State Government under the 1954 Act and the lease was terminated by the State Government, the appellant continued to be in occupation of the demised premises as a licensee and such licence could be terminated at the will of the licensor. Mr. Sharma urged that the State Government was no longer under any obligation to comply with the provisions relating to the option of purchase contained in clause 6 of the lease agreement, since the lease deeds had ceased to be operative. 23. We have carefully considered the submissions of the respective parties and do not find any reason to disagree with the view taken by the Division Bench of the High Court, in dismissing the Letters Patent Appeal. Having regard to the opinion given by the Government Solicitor, the finding arrived at by the High Court regarding the implied consent of the State Government does not require any interference.24. The other submission made on behalf of the appellant that, since the State Government had stepped into the shoes of the lessor, it was bound by the terms of the lease agreement and in particular clause 6 thereof, cannot also be accepted in view of the provisions of Sections 4 and 6 of the A.P. Electricity Supply Undertakings (Acquisition) Act, 1954. The defence taken on behalf of the appellant/lessee that, since the demised lands were no longer required by GPL, they ceased to be part of the Electricity Undertaking, has been rightly rejected by the High Court. The High Court has considered the matter in some detail and various decisions of this Court and other High Courts have been considered by it in ultimately coming to the conclusion that in view of Sections 4 and 6 of the 1954 Act read with the provisions of the Indian Electricity Act, 1910, all the properties of the Undertaking for which licence was granted for generation of electricity, remained a part of the Undertaking unless the licence had been modified. As has been noted by the High Court, the properties involved were mentioned and included in the licence granted to GPL and the said licence remained unchanged when on the basis of the order passed by the Government under Section 3 of the 1954 Act, all the properties of the Electricity Undertaking came to be vested in the State. Moreover, once the lease came to an end, the State Government was no longer under any obligation to act in accordance with the option given to the lessee to purchase the property.
### Response:
0
### Explanation:
23. We have carefully considered the submissions of the respective parties and do not find any reason to disagree with the view taken by the Division Bench of the High Court, in dismissing the Letters Patent Appeal. Having regard to the opinion given by the Government Solicitor, the finding arrived at by the High Court regarding the implied consent of the State Government does not require any interference.24.The other submission made on behalf of the appellant that, since the State Government had stepped into the shoes of the lessor, it was bound by the terms of the lease agreement and in particular clause 6 thereof, cannot also be accepted in view of the provisions of Sections 4 and 6 of the A.P. Electricity Supply Undertakings (Acquisition) Act, 1954.The defence taken on behalf of the appellant/lessee that, since the demised lands were no longer required by GPL, they ceased to be part of the Electricity Undertaking, has been rightly rejected by the High Court. The High Court has considered the matter in some detail and various decisions of this Court and other High Courts have been considered by it in ultimately coming to the conclusion that in view of Sections 4 and 6 of the 1954 Act read with the provisions of the Indian Electricity Act, 1910, all the properties of the Undertaking for which licence was granted for generation of electricity, remained a part of the Undertaking unless the licence had been modified. As has been noted by the High Court, the properties involved were mentioned and included in the licence granted to GPL and the said licence remained unchanged when on the basis of the order passed by the Government under Section 3 of the 1954 Act, all the properties of the Electricity Undertaking came to be vested in the State. Moreover, once the lease came to an end, the State Government was no longer under any obligation to act in accordance with the option given to the lessee to purchase the property.
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M. Kallappa Setty Vs. M.V. Lakshminarayana Rao | defendant has no right whatever in this site, nor is he in enjoyment of the same; and(2) granting permanent injunction restraining the defendant from unlawfully and forcibly entering upon the suit site, and disturbing the plaintiffs possession and also from constructing the house by unlawfully obtaining a licence from the Municipality."2. The trial court decreed the suit as prayed for. The first appellate court affirmed the decision of the trial court. In second appeal the High Court reversed the decree of the courts below and dismissed the plaintiffs suit with costs, primarily on the ground that the plaintiff has failed to establish satisfactorily his title to the suit property.3. The suit property is a building site measuring 80 x 40 feet situate within the municipal limits of Birur. The plaintiff claim to have purchased the same from one Banavarada Abdulla Saheb for a sum of Rs. 100/-, on January 11, 1947. His case is that ever since the purchase he was in possession of the suit property and before the sale in his favour, his vendor was in possession of the suit property. The property sold to the plaintiff is described in the sale deed both by survey no, as well as by boundaries. The survey no. of the property as shown in the sale deed in favour of the plaintiff was 1711 whereas it is now established that its correct survey No. is 1719. It is not disputed that according to the boundaries shown in the sale deed in favour of the plaintiff, it is suit site that had been sold to him. Sometime after the purchase made by him, the plaintiff came to know that the survey no. of the property sold to him was not correctly mentioned in the sale deed in his favour. But by that time his vendor had died. Thereafter he got a rectification deed from the son of the vender on December 24, 1950. The sale deed as rectified shows the survey No. of the plot sold as survey No. 1719 (its old survey No. is 1726). After obtaining the rectification deed, the plaintiff had the revenue records changed to his name. Before changing the registry in the name of the plaintiff the municipality had notified to D.W. 5. On December 1, 1953, the defendant purported to purchase the suit property from D.W. 5. Thereafter he got the registry rechanged to his name without notice to the plaintiff.4. Neither the trial court not the first appellate court carefully examined the title of the plaintiff. In upholding the title of the plaintiff they have primarily relied on the sale deed executed by Abdulla Saheb in his favour. The defendant in his written statement had pleaded that P.W. 5 was the owner of the suit property and that he had purchased the same from him in 1953. The question whether the defendant had a valid title to the suit property or not has not been examined either by the trial court or by the first appellate court. The High Court has also not gone into that question. But the High Court has dismissed the plaintiffs suit on the sole ground that the plaintiff has not satisfactorily proved his title.5. So far as the question of possession is concerned, as mentioned earlier, both the trial court and the first appellate court have accepted the plaintiffs case that he was in possession of the suit site ever since he purchased the same in 1947. This is essentially a finding of fact. That finding is based on evidence. The High Court, in our opinion, erred in coming to the conclusion that the possession of the plaintiff after the sale deed in his favour is not a relevant circumstance. We are of opinion that it is an extremely important circumstance. The plaintiff can on the strength of his possession resist interference from persons who have on better title than himself to the suit property. Once it is accepted, as the trial court and the first appellate court have done, that the plaintiff was in possession of the property ever since 1947 then his possession has to be protected as against interference by someone who is proved to have a better title than himself to the suit property. On the findings arrived at by the fact finding courts as regards possession, the plaintiff was entitled to the second relief asked for by him even if he had failed to prove his title satisfactorily. Therefore, in of the High Court was not right in interfering with the judgment of the trial court as affirmed by the first appellate court regarding relief No. 2.6. Now coming to relief No. 1, the plaintiff cannot obtain that relief unless he satisfies the court that he has good title to the suit property. The High Court come to the conclusion and with the conclusion we agree, that on the material on record, it is not possible to come to the conclusion that the plaintiff has satisfactorily established his title to the suit property. Hence he is not entitled to relief No. 1. Ordinarily under these circumstances we would have remanded the case for deciding the question of title afresh. But this litigation has gone on for a long time and the property in dispute was purchased for Rs. 100. Under these circumstances, it is in the interest of the parties to keep open the question of title to be agitated by the parties if they so desire in a fresh proceeding and confirm the decree of the trial court in respect of relief No. 2 and set aside its decree in respect of relief No. 1. As we specifically keep open the question of title, it will not be open to the plaintiff or his representatives or successors to resist any suit the defendant or his representative or successors may bring in future for possession of the suit on the basis of their either on the ground of res judicata or Order 11, Rule 2. | 1[ds]4. Neither the trial court not the first appellate court carefully examined the title of the plaintiff. In upholding the title of the plaintiff they have primarily relied on the sale deed executed by Abdulla Saheb in his favour. The defendant in his written statement had pleaded that P.W. 5 was the owner of the suit property and that he had purchased the same from him in 1953. The question whether the defendant had a valid title to the suit property or not has not been examined either by the trial court or by the first appellate court. The High Court has also not gone into that question. But the High Court has dismissed the plaintiffs suit on the sole ground that the plaintiff has not satisfactorily proved his title.So far as the question of possession is concerned, as mentioned earlier, both the trial court and the first appellate court have accepted the plaintiffs case that he was in possession of the suit site ever since he purchased the same in 1947. This is essentially a finding of fact. That finding is based on evidence. The High Court, in our opinion, erred in coming to the conclusion that the possession of the plaintiff after the sale deed in his favour is not a relevant circumstance. We are of opinion that it is an extremely important circumstance. The plaintiff can on the strength of his possession resist interference from persons who have on better title than himself to the suit property. Once it is accepted, as the trial court and the first appellate court have done, that the plaintiff was in possession of the property ever since 1947 then his possession has to be protected as against interference by someone who is proved to have a better title than himself to the suit property. On the findings arrived at by the fact finding courts as regards possession, the plaintiff was entitled to the second relief asked for by him even if he had failed to prove his title satisfactorily. Therefore, in of the High Court was not right in interfering with the judgment of the trial court as affirmed by the first appellate court regarding relief No. 2.6. Now coming to relief No. 1, the plaintiff cannot obtain that relief unless he satisfies the court that he has good title to the suit property. The High Court come to the conclusion and with the conclusion we agree, that on the material on record, it is not possible to come to the conclusion that the plaintiff has satisfactorily established his title to the suit property. Hence he is not entitled to relief No. 1. Ordinarily under these circumstances we would have remanded the case for deciding the question of title afresh. But this litigation has gone on for a long time and the property in dispute was purchased for Rs. 100. Under these circumstances, it is in the interest of the parties to keep open the question of title to be agitated by the parties if they so desire in a fresh proceeding and confirm the decree of the trial court in respect of relief No. 2 and set aside its decree in respect of relief No. 1. As we specifically keep open the question of title, it will not be open to the plaintiff or his representatives or successors to resist any suit the defendant or his representative or successors may bring in future for possession of the suit on the basis of their either on the ground of res judicata or Order 11, Rule 2. | 1 | 1,151 | 643 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
defendant has no right whatever in this site, nor is he in enjoyment of the same; and(2) granting permanent injunction restraining the defendant from unlawfully and forcibly entering upon the suit site, and disturbing the plaintiffs possession and also from constructing the house by unlawfully obtaining a licence from the Municipality."2. The trial court decreed the suit as prayed for. The first appellate court affirmed the decision of the trial court. In second appeal the High Court reversed the decree of the courts below and dismissed the plaintiffs suit with costs, primarily on the ground that the plaintiff has failed to establish satisfactorily his title to the suit property.3. The suit property is a building site measuring 80 x 40 feet situate within the municipal limits of Birur. The plaintiff claim to have purchased the same from one Banavarada Abdulla Saheb for a sum of Rs. 100/-, on January 11, 1947. His case is that ever since the purchase he was in possession of the suit property and before the sale in his favour, his vendor was in possession of the suit property. The property sold to the plaintiff is described in the sale deed both by survey no, as well as by boundaries. The survey no. of the property as shown in the sale deed in favour of the plaintiff was 1711 whereas it is now established that its correct survey No. is 1719. It is not disputed that according to the boundaries shown in the sale deed in favour of the plaintiff, it is suit site that had been sold to him. Sometime after the purchase made by him, the plaintiff came to know that the survey no. of the property sold to him was not correctly mentioned in the sale deed in his favour. But by that time his vendor had died. Thereafter he got a rectification deed from the son of the vender on December 24, 1950. The sale deed as rectified shows the survey No. of the plot sold as survey No. 1719 (its old survey No. is 1726). After obtaining the rectification deed, the plaintiff had the revenue records changed to his name. Before changing the registry in the name of the plaintiff the municipality had notified to D.W. 5. On December 1, 1953, the defendant purported to purchase the suit property from D.W. 5. Thereafter he got the registry rechanged to his name without notice to the plaintiff.4. Neither the trial court not the first appellate court carefully examined the title of the plaintiff. In upholding the title of the plaintiff they have primarily relied on the sale deed executed by Abdulla Saheb in his favour. The defendant in his written statement had pleaded that P.W. 5 was the owner of the suit property and that he had purchased the same from him in 1953. The question whether the defendant had a valid title to the suit property or not has not been examined either by the trial court or by the first appellate court. The High Court has also not gone into that question. But the High Court has dismissed the plaintiffs suit on the sole ground that the plaintiff has not satisfactorily proved his title.5. So far as the question of possession is concerned, as mentioned earlier, both the trial court and the first appellate court have accepted the plaintiffs case that he was in possession of the suit site ever since he purchased the same in 1947. This is essentially a finding of fact. That finding is based on evidence. The High Court, in our opinion, erred in coming to the conclusion that the possession of the plaintiff after the sale deed in his favour is not a relevant circumstance. We are of opinion that it is an extremely important circumstance. The plaintiff can on the strength of his possession resist interference from persons who have on better title than himself to the suit property. Once it is accepted, as the trial court and the first appellate court have done, that the plaintiff was in possession of the property ever since 1947 then his possession has to be protected as against interference by someone who is proved to have a better title than himself to the suit property. On the findings arrived at by the fact finding courts as regards possession, the plaintiff was entitled to the second relief asked for by him even if he had failed to prove his title satisfactorily. Therefore, in of the High Court was not right in interfering with the judgment of the trial court as affirmed by the first appellate court regarding relief No. 2.6. Now coming to relief No. 1, the plaintiff cannot obtain that relief unless he satisfies the court that he has good title to the suit property. The High Court come to the conclusion and with the conclusion we agree, that on the material on record, it is not possible to come to the conclusion that the plaintiff has satisfactorily established his title to the suit property. Hence he is not entitled to relief No. 1. Ordinarily under these circumstances we would have remanded the case for deciding the question of title afresh. But this litigation has gone on for a long time and the property in dispute was purchased for Rs. 100. Under these circumstances, it is in the interest of the parties to keep open the question of title to be agitated by the parties if they so desire in a fresh proceeding and confirm the decree of the trial court in respect of relief No. 2 and set aside its decree in respect of relief No. 1. As we specifically keep open the question of title, it will not be open to the plaintiff or his representatives or successors to resist any suit the defendant or his representative or successors may bring in future for possession of the suit on the basis of their either on the ground of res judicata or Order 11, Rule 2.
### Response:
1
### Explanation:
4. Neither the trial court not the first appellate court carefully examined the title of the plaintiff. In upholding the title of the plaintiff they have primarily relied on the sale deed executed by Abdulla Saheb in his favour. The defendant in his written statement had pleaded that P.W. 5 was the owner of the suit property and that he had purchased the same from him in 1953. The question whether the defendant had a valid title to the suit property or not has not been examined either by the trial court or by the first appellate court. The High Court has also not gone into that question. But the High Court has dismissed the plaintiffs suit on the sole ground that the plaintiff has not satisfactorily proved his title.So far as the question of possession is concerned, as mentioned earlier, both the trial court and the first appellate court have accepted the plaintiffs case that he was in possession of the suit site ever since he purchased the same in 1947. This is essentially a finding of fact. That finding is based on evidence. The High Court, in our opinion, erred in coming to the conclusion that the possession of the plaintiff after the sale deed in his favour is not a relevant circumstance. We are of opinion that it is an extremely important circumstance. The plaintiff can on the strength of his possession resist interference from persons who have on better title than himself to the suit property. Once it is accepted, as the trial court and the first appellate court have done, that the plaintiff was in possession of the property ever since 1947 then his possession has to be protected as against interference by someone who is proved to have a better title than himself to the suit property. On the findings arrived at by the fact finding courts as regards possession, the plaintiff was entitled to the second relief asked for by him even if he had failed to prove his title satisfactorily. Therefore, in of the High Court was not right in interfering with the judgment of the trial court as affirmed by the first appellate court regarding relief No. 2.6. Now coming to relief No. 1, the plaintiff cannot obtain that relief unless he satisfies the court that he has good title to the suit property. The High Court come to the conclusion and with the conclusion we agree, that on the material on record, it is not possible to come to the conclusion that the plaintiff has satisfactorily established his title to the suit property. Hence he is not entitled to relief No. 1. Ordinarily under these circumstances we would have remanded the case for deciding the question of title afresh. But this litigation has gone on for a long time and the property in dispute was purchased for Rs. 100. Under these circumstances, it is in the interest of the parties to keep open the question of title to be agitated by the parties if they so desire in a fresh proceeding and confirm the decree of the trial court in respect of relief No. 2 and set aside its decree in respect of relief No. 1. As we specifically keep open the question of title, it will not be open to the plaintiff or his representatives or successors to resist any suit the defendant or his representative or successors may bring in future for possession of the suit on the basis of their either on the ground of res judicata or Order 11, Rule 2.
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Himmat Singh Vs. I.C.I. India Ltd. | Dr. Arijit Pasayat, J. 1. Challenge in this appeal is to the order passed by a learned Single Judge of the Allahabad High Court dismissing the writ petitions filed by the appellants. Challenge before the High Court was to the order passed by the Presiding Labour Court (II) U.P. Kanpur in Adjudication case-Arbitration dispute No. 164 of 1989. 2. The following question was sent to the Labour Court for decision under Section 4(iv) of the U.P. State Industrial Disputes Act, 1947 (in short the State Act): "Whether 61 labourers mentioned in the Appendix should be declared permanent? If so, then from which date and with what other particulars?" 3. The Labour Court held that 61 labourers connected with the case do not possess the right to be declared permanent under the employer- respondent No. 1. So far as the question to be made permanent under the contractor, it was found that they did not want to be declared permanent under the contractor. 4. Challenge in the writ petition revolved around the question as to the effect of the Contract Labour (Regulation and Abolition) Act, 1970 (in short the "Act"). In the background of the definition of the word "employer" as in clause IV of Section 2(i)(iv) of the State Act, The Indian Explosive Limited is a manufacturer of Urea and is covered under the Act. It is registered under Chapter III of the same Act and has many licensed contractor including one Abdul Rehman (hereinafter referred to as the Contractor). These licensed contractors engaged many persons to do the work contracted with them. Fertilizer Workers Union (hereinafter referred to as the Union) filed an application under Rule 25 (v)(a) of the U.P. Contract Labour (Regularisation and Abolition) Rules, 1975 (in short the "Rules") framed under the Act before the Labour Commissioner. 5. This was for the relief that the different persons working under the different licensed contractors are doing work similar to the work assigned to the workmen of the company and should have similar conditions of service regarding wages, holidays etc. Proceedings were initiated. In the proceedings under Rule 25 of the Rules, the Labour Commissioner by his order dated 15.12.1984 allowed the application so far as persons engaged by the Contractor Rehman and one more licensed contractor but for rest of the persons application for the Union was dismissed. The order of the Labour Commissioner was upheld by the High Court. During pendency of the proceedings, under Rule 25 disputes were raised by the Union which is the subject matter of consideration for the benefit of the workmen engaged by the Contractor-Rehman. As noted above, the Labour Court rejected the application. 6.Mr. P.K. Jain, learned counsel for the appellants submitted that the High Courts approach is hyper technical and the benefits intended by various beneficial Statutes have not been kept in view. 7. Learned counsel for the respondents on the other hand supported the judgment. 8. A few observations made by the High Court which are relevant need to be noted. It was held by the High Court as follows: "The labour court has held that the petitioners were not working as helpers to the fitters; they were not paid by the company; and were engaged on contract for intermittent work i.e. they did not have regular or permanent work. The work that the petitioners do may be similar to the work of the workman of the company, but they are not doing the work that is ordinary part of the industry. This is for reason that they-did not have permanent work;were engaged in intermittent work andthemselves claimed to be workmen of the contractor Rehman in proceedings under Rule 25 of the Labour Contract Act and got benefit under the same." 9. Similarly, the Labour Court noted that contractor Rehman had applied to the administration for licence under the State Contract Labour Act and considering the nature of the contract licence has been granted to him. 10. In Steel Authority of India Ltd. v. Union of India & Ors. [2006(12) SC 233] it was inter-alia held as follows: "The workmen whether before the Labour Court or in writ proceedings were represented by the same union. A trade union registered under the Trade Unions Act is entitled to espouse the cause of the workmen. A definite stand was taken by the employees that they had been working under the contractors. It would, thus, in our opinion, not lie in their mouth to take a contradictory and inconsistent plea that they were also the workmen of the principal employer. To raise such a mutually destructive plea is impermissible in law. Such mutually destructive plea, in our opinion, should not be allowed to be raised even in an industrial adjudication. Common law principles of estoppel, waiver and acquiescence are applicable in an industrial adjudication." 11. In view of the factual position highlighted above and the ratio of the decision in Steel Authoritys case (supra), the inevitable result is that the | 0[ds]A few observations made by the High Court which are relevant need to be noted. It was held by the High Court aslabour court has held that the petitioners were not working as helpers to the fitters; they were not paid by the company; and were engaged on contract for intermittent work i.e. they did not have regular or permanent work. The work that the petitioners do may be similar to the work of the workman of the company, but they are not doing the work that is ordinary part of the industry. This is for reason that theydid not have permanent workand were engagedin intermittent work ands claimed to be workmen of the contractor Rehman in proceedings under Rule 25 of the Labour Contract Act and got benefit under theLabour Court noted that contractor Rehman had applied to the administration for licence under the State Contract Labour Act and considering the nature of the contract licence has been granted toSteel Authority of India Ltd. v. Union of India & Ors. [2006(12) SC 233] it was inter-alia held asworkmen whether before the Labour Court or in writ proceedings were represented by the same union. A trade union registered under the Trade Unions Act is entitled to espouse the cause of the workmen. A definite stand was taken by the employees that they had been working under the contractors. It would, thus, in our opinion, not lie in their mouth to take a contradictory and inconsistent plea that they were also the workmen of the principal employer. To raise such a mutually destructive plea is impermissible in law. Such mutually destructive plea, in our opinion, should not be allowed to be raised even in an industrial adjudication. Common law principles of estoppel, waiver and acquiescence are applicable in an industrial | 0 | 957 | 328 | ### 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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Dr. Arijit Pasayat, J. 1. Challenge in this appeal is to the order passed by a learned Single Judge of the Allahabad High Court dismissing the writ petitions filed by the appellants. Challenge before the High Court was to the order passed by the Presiding Labour Court (II) U.P. Kanpur in Adjudication case-Arbitration dispute No. 164 of 1989. 2. The following question was sent to the Labour Court for decision under Section 4(iv) of the U.P. State Industrial Disputes Act, 1947 (in short the State Act): "Whether 61 labourers mentioned in the Appendix should be declared permanent? If so, then from which date and with what other particulars?" 3. The Labour Court held that 61 labourers connected with the case do not possess the right to be declared permanent under the employer- respondent No. 1. So far as the question to be made permanent under the contractor, it was found that they did not want to be declared permanent under the contractor. 4. Challenge in the writ petition revolved around the question as to the effect of the Contract Labour (Regulation and Abolition) Act, 1970 (in short the "Act"). In the background of the definition of the word "employer" as in clause IV of Section 2(i)(iv) of the State Act, The Indian Explosive Limited is a manufacturer of Urea and is covered under the Act. It is registered under Chapter III of the same Act and has many licensed contractor including one Abdul Rehman (hereinafter referred to as the Contractor). These licensed contractors engaged many persons to do the work contracted with them. Fertilizer Workers Union (hereinafter referred to as the Union) filed an application under Rule 25 (v)(a) of the U.P. Contract Labour (Regularisation and Abolition) Rules, 1975 (in short the "Rules") framed under the Act before the Labour Commissioner. 5. This was for the relief that the different persons working under the different licensed contractors are doing work similar to the work assigned to the workmen of the company and should have similar conditions of service regarding wages, holidays etc. Proceedings were initiated. In the proceedings under Rule 25 of the Rules, the Labour Commissioner by his order dated 15.12.1984 allowed the application so far as persons engaged by the Contractor Rehman and one more licensed contractor but for rest of the persons application for the Union was dismissed. The order of the Labour Commissioner was upheld by the High Court. During pendency of the proceedings, under Rule 25 disputes were raised by the Union which is the subject matter of consideration for the benefit of the workmen engaged by the Contractor-Rehman. As noted above, the Labour Court rejected the application. 6.Mr. P.K. Jain, learned counsel for the appellants submitted that the High Courts approach is hyper technical and the benefits intended by various beneficial Statutes have not been kept in view. 7. Learned counsel for the respondents on the other hand supported the judgment. 8. A few observations made by the High Court which are relevant need to be noted. It was held by the High Court as follows: "The labour court has held that the petitioners were not working as helpers to the fitters; they were not paid by the company; and were engaged on contract for intermittent work i.e. they did not have regular or permanent work. The work that the petitioners do may be similar to the work of the workman of the company, but they are not doing the work that is ordinary part of the industry. This is for reason that they-did not have permanent work;were engaged in intermittent work andthemselves claimed to be workmen of the contractor Rehman in proceedings under Rule 25 of the Labour Contract Act and got benefit under the same." 9. Similarly, the Labour Court noted that contractor Rehman had applied to the administration for licence under the State Contract Labour Act and considering the nature of the contract licence has been granted to him. 10. In Steel Authority of India Ltd. v. Union of India & Ors. [2006(12) SC 233] it was inter-alia held as follows: "The workmen whether before the Labour Court or in writ proceedings were represented by the same union. A trade union registered under the Trade Unions Act is entitled to espouse the cause of the workmen. A definite stand was taken by the employees that they had been working under the contractors. It would, thus, in our opinion, not lie in their mouth to take a contradictory and inconsistent plea that they were also the workmen of the principal employer. To raise such a mutually destructive plea is impermissible in law. Such mutually destructive plea, in our opinion, should not be allowed to be raised even in an industrial adjudication. Common law principles of estoppel, waiver and acquiescence are applicable in an industrial adjudication." 11. In view of the factual position highlighted above and the ratio of the decision in Steel Authoritys case (supra), the inevitable result is that the
### Response:
0
### Explanation:
A few observations made by the High Court which are relevant need to be noted. It was held by the High Court aslabour court has held that the petitioners were not working as helpers to the fitters; they were not paid by the company; and were engaged on contract for intermittent work i.e. they did not have regular or permanent work. The work that the petitioners do may be similar to the work of the workman of the company, but they are not doing the work that is ordinary part of the industry. This is for reason that theydid not have permanent workand were engagedin intermittent work ands claimed to be workmen of the contractor Rehman in proceedings under Rule 25 of the Labour Contract Act and got benefit under theLabour Court noted that contractor Rehman had applied to the administration for licence under the State Contract Labour Act and considering the nature of the contract licence has been granted toSteel Authority of India Ltd. v. Union of India & Ors. [2006(12) SC 233] it was inter-alia held asworkmen whether before the Labour Court or in writ proceedings were represented by the same union. A trade union registered under the Trade Unions Act is entitled to espouse the cause of the workmen. A definite stand was taken by the employees that they had been working under the contractors. It would, thus, in our opinion, not lie in their mouth to take a contradictory and inconsistent plea that they were also the workmen of the principal employer. To raise such a mutually destructive plea is impermissible in law. Such mutually destructive plea, in our opinion, should not be allowed to be raised even in an industrial adjudication. Common law principles of estoppel, waiver and acquiescence are applicable in an industrial
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Chaliagulla Ramachandrayya Vs. Boppana Satyanarayana & Others | 25. The facts there were that the defendants father who was selected by Musalireddi, in pursuance of a special custom, as a son-in-law who should take his property as if he was a son entered into possession of the property on Musalireddis death. He then associated with himself the plaintiff in the management of his property on promise of a share. The plaintiff continued thus for many years aiding in the management and improvement of the property, until short time before the suit was brought, the first defendant turned the plaintiff out of doors and refused to give him the promised share. The High Court of Madras held that the agreement by the first defendants father was to the effect that the plaintiff was being admitted to the rights of a co-sharer and further, as there was complete adoption or ratification of the fathers contract by the first defendant he ought to be held to it and the plaintiff was therefore a co-sharer in the property.8. It has to be mentioned that this case was decided long before the Transfer of Property Act, 1882 was enacted and the question whether a written document was necessary for transfer did not come up for consideration.9. In Bhala Nahana v. Prabhu Hari ILR 2 Bom 67 which was the next case cited, what happened was that one Gosai Ramji induced the parents of the defendant Prabhu Hari to give him in adoption by an express promise to settle his property upon the boy but died before such settlement could be executed. Nearly 30 years after his death Ramjis widow Bhani gave effect to her husbands undertaking by executing a deed of gift of his property in her hands in favour of Prabhu Hari. The reversioner to Gosai Ramjis estate contested in a suit brought by him, the validity of this alienation. In holding that the alienation was valid, the High Court of Bombay pointed out that the performance of a husbands contracts was among the proper and necessary purposes specified by Hindu jurists under which a widow could alienate property and said further that the equity to compel the heir and legal representative of the adoptive father specifically to perform his contracts survived and the property in the hands of his widow was bound by that contract. Whether Prabhu Hari would have been entitled to the property even in the absence of the deed of gift did not fall for consideration in that case.10. It also deserves to be mentioned that this case was also decided several years before the Transfer of Property Act came into force.11. In Asita Mohan v. Nerode Mohan, 20 Cal WN 901 : (AIR 1917.Cal 292) one of the questions in dispute was whether the adopted son could take an equal share with the son Answering the question in the affirmative the High Court of Calcutta after deciding that under the Hindu Law the adopted son was entitled to an equal share, also referred to an Ikrarnama which had been executed by the adoptive father, and holding that the Ikrarnama was valid and operative, said that even apart from the law, the adopted son would be so entitled. It is difficult to see how this can be of any assistance in solving our present problem.12. Lastly, the learned Counsel relied on the decision of the Privy Council in Venkayyamma Rao v. Venkata Narasimha Appa Rao, 43 Ind App 138 : (AIR 1916 PC 9). The main question in controversy in that case was whether there was a completed contract by which the Rani, the former owner of the property had agreed that the possession of the property would be given to her niece Venkayyamma Rao immediately upon the expiry of her life interest. The Privy Council held that there was such completed contract and directed the Receiver to deliver possession "upon the terms of the contract now affirmed.13. It may be mentioned that this decision in Venkayyamma Raos case, 43 Ind App 138: (AIR 1916 PC 9) was among the authorities on which the Calcutta High Court relied in Ariff v. Jadunath, ILR 55 Cal 1090 : (AIR 1929 Cal 101 ). The High Court held that the result of equitable principles which had been applied in many cases in England and were also applied by the Privy Council in Venkayyamma Raos Case 43 Ind App 138: (AIR 1916 PC 9) was that the defendant had acquired the rights of a permanent tenant. When this very case went up to the Privy Council in appeal Ariff v. Jadunath, 58 Ind 91: (AIR 1931 PC 79 ) the High Courts decision was reversed. The Privy Council pointed out that the dicta in Venkayyamma Raos Case. 43 Ind App 138: (AIR 1916 PC 9) did not mean "that equity can override the provisions of a statute and (where no registered document exists and no registrable document can be procured), confer upon a person a right which the statute enacts, shall be conferred only by a registered instrument.14. This decision of the Privy Council in 58 Ind App 91 : (AIR 1931 PC 79 ) was given in January 1931. Nearly two years before that. Section 53A had been enacted in the Transfer of Property Act introducing in a limited form the doctrine of equity of part performance. There can in our opinion be no doubt that after S. 53A was enacted the only case in which the English doctrine of equity of part performance could be applied n India is where the requirements of S. 53A are satisfied. Quite clearly, S. 53A does not apply to the facts of the present case. It must therefore be held that the considerations of equity cannot confer on Nagayya or his heirs any title in the lands which under the statue could be conferred only by a registered instrument.15. Our conclusion therefore is that the High Court was right in holding that Nagayya or his heirs had acquired no right in the property. | 0[ds]13. It may be mentioned that this decision in Venkayyamma Raos case, 43 Ind App 138: (AIR 1916 PC 9) was among the authorities on which the Calcutta High Court relied in Ariff v. Jadunath, ILR 55 Cal 1090 : (AIR 1929 Cal 101 ). The High Court held that the result of equitable principles which had been applied in many cases in England and were also applied by the Privy Council in Venkayyamma Raos Case 43 Ind App 138: (AIR 1916 PC 9) was that the defendant had acquired the rights of a permanent tenant. When this very case went up to the Privy Council in appeal Ariff v. Jadunath, 58 Ind 91: (AIR 1931 PC 79 ) the High Courts decision was reversed. The Privy Council pointed out that the dicta in Venkayyamma Raos Case. 43 Ind App 138: (AIR 1916 PC 9) did not mean "that equity can override the provisions of a statute and (where no registered document exists and no registrable document can be procured), confer upon a person a right which the statute enacts, shall be conferred only by a registered instrument.14. This decision of the Privy Council in 58 Ind App 91 : (AIR 1931 PC 79 ) was given in January 1931. Nearly two years before that. Section 53A had been enacted in the Transfer of Property Act introducing in a limited form the doctrine of equity of part performance. There can in our opinion be no doubt that after S. 53A was enacted the only case in which the English doctrine of equity of part performance could be applied n India is where the requirements of S. 53A are satisfied. Quite clearly, S. 53A does not apply to the facts of the present case. It must therefore be held that the considerations of equity cannot confer on Nagayya or his heirs any title in the lands which under the statue could be conferred only by a registered instrument.15. Our conclusion therefore is that the High Court was right in holding that Nagayya or his heirs had acquired no right in the property. | 0 | 1,798 | 391 | ### Instruction:
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25. The facts there were that the defendants father who was selected by Musalireddi, in pursuance of a special custom, as a son-in-law who should take his property as if he was a son entered into possession of the property on Musalireddis death. He then associated with himself the plaintiff in the management of his property on promise of a share. The plaintiff continued thus for many years aiding in the management and improvement of the property, until short time before the suit was brought, the first defendant turned the plaintiff out of doors and refused to give him the promised share. The High Court of Madras held that the agreement by the first defendants father was to the effect that the plaintiff was being admitted to the rights of a co-sharer and further, as there was complete adoption or ratification of the fathers contract by the first defendant he ought to be held to it and the plaintiff was therefore a co-sharer in the property.8. It has to be mentioned that this case was decided long before the Transfer of Property Act, 1882 was enacted and the question whether a written document was necessary for transfer did not come up for consideration.9. In Bhala Nahana v. Prabhu Hari ILR 2 Bom 67 which was the next case cited, what happened was that one Gosai Ramji induced the parents of the defendant Prabhu Hari to give him in adoption by an express promise to settle his property upon the boy but died before such settlement could be executed. Nearly 30 years after his death Ramjis widow Bhani gave effect to her husbands undertaking by executing a deed of gift of his property in her hands in favour of Prabhu Hari. The reversioner to Gosai Ramjis estate contested in a suit brought by him, the validity of this alienation. In holding that the alienation was valid, the High Court of Bombay pointed out that the performance of a husbands contracts was among the proper and necessary purposes specified by Hindu jurists under which a widow could alienate property and said further that the equity to compel the heir and legal representative of the adoptive father specifically to perform his contracts survived and the property in the hands of his widow was bound by that contract. Whether Prabhu Hari would have been entitled to the property even in the absence of the deed of gift did not fall for consideration in that case.10. It also deserves to be mentioned that this case was also decided several years before the Transfer of Property Act came into force.11. In Asita Mohan v. Nerode Mohan, 20 Cal WN 901 : (AIR 1917.Cal 292) one of the questions in dispute was whether the adopted son could take an equal share with the son Answering the question in the affirmative the High Court of Calcutta after deciding that under the Hindu Law the adopted son was entitled to an equal share, also referred to an Ikrarnama which had been executed by the adoptive father, and holding that the Ikrarnama was valid and operative, said that even apart from the law, the adopted son would be so entitled. It is difficult to see how this can be of any assistance in solving our present problem.12. Lastly, the learned Counsel relied on the decision of the Privy Council in Venkayyamma Rao v. Venkata Narasimha Appa Rao, 43 Ind App 138 : (AIR 1916 PC 9). The main question in controversy in that case was whether there was a completed contract by which the Rani, the former owner of the property had agreed that the possession of the property would be given to her niece Venkayyamma Rao immediately upon the expiry of her life interest. The Privy Council held that there was such completed contract and directed the Receiver to deliver possession "upon the terms of the contract now affirmed.13. It may be mentioned that this decision in Venkayyamma Raos case, 43 Ind App 138: (AIR 1916 PC 9) was among the authorities on which the Calcutta High Court relied in Ariff v. Jadunath, ILR 55 Cal 1090 : (AIR 1929 Cal 101 ). The High Court held that the result of equitable principles which had been applied in many cases in England and were also applied by the Privy Council in Venkayyamma Raos Case 43 Ind App 138: (AIR 1916 PC 9) was that the defendant had acquired the rights of a permanent tenant. When this very case went up to the Privy Council in appeal Ariff v. Jadunath, 58 Ind 91: (AIR 1931 PC 79 ) the High Courts decision was reversed. The Privy Council pointed out that the dicta in Venkayyamma Raos Case. 43 Ind App 138: (AIR 1916 PC 9) did not mean "that equity can override the provisions of a statute and (where no registered document exists and no registrable document can be procured), confer upon a person a right which the statute enacts, shall be conferred only by a registered instrument.14. This decision of the Privy Council in 58 Ind App 91 : (AIR 1931 PC 79 ) was given in January 1931. Nearly two years before that. Section 53A had been enacted in the Transfer of Property Act introducing in a limited form the doctrine of equity of part performance. There can in our opinion be no doubt that after S. 53A was enacted the only case in which the English doctrine of equity of part performance could be applied n India is where the requirements of S. 53A are satisfied. Quite clearly, S. 53A does not apply to the facts of the present case. It must therefore be held that the considerations of equity cannot confer on Nagayya or his heirs any title in the lands which under the statue could be conferred only by a registered instrument.15. Our conclusion therefore is that the High Court was right in holding that Nagayya or his heirs had acquired no right in the property.
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13. It may be mentioned that this decision in Venkayyamma Raos case, 43 Ind App 138: (AIR 1916 PC 9) was among the authorities on which the Calcutta High Court relied in Ariff v. Jadunath, ILR 55 Cal 1090 : (AIR 1929 Cal 101 ). The High Court held that the result of equitable principles which had been applied in many cases in England and were also applied by the Privy Council in Venkayyamma Raos Case 43 Ind App 138: (AIR 1916 PC 9) was that the defendant had acquired the rights of a permanent tenant. When this very case went up to the Privy Council in appeal Ariff v. Jadunath, 58 Ind 91: (AIR 1931 PC 79 ) the High Courts decision was reversed. The Privy Council pointed out that the dicta in Venkayyamma Raos Case. 43 Ind App 138: (AIR 1916 PC 9) did not mean "that equity can override the provisions of a statute and (where no registered document exists and no registrable document can be procured), confer upon a person a right which the statute enacts, shall be conferred only by a registered instrument.14. This decision of the Privy Council in 58 Ind App 91 : (AIR 1931 PC 79 ) was given in January 1931. Nearly two years before that. Section 53A had been enacted in the Transfer of Property Act introducing in a limited form the doctrine of equity of part performance. There can in our opinion be no doubt that after S. 53A was enacted the only case in which the English doctrine of equity of part performance could be applied n India is where the requirements of S. 53A are satisfied. Quite clearly, S. 53A does not apply to the facts of the present case. It must therefore be held that the considerations of equity cannot confer on Nagayya or his heirs any title in the lands which under the statue could be conferred only by a registered instrument.15. Our conclusion therefore is that the High Court was right in holding that Nagayya or his heirs had acquired no right in the property.
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Pradeep Kumar Vs. State of Haryana | Act, 1961 (28 of 1961).(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.” The provision has application when death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relatives of her husband for, or in connection with any demand for dowry. In order to attract application of Section 304-B IPC, the essential ingredients are as follows: (i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.(ii) Such a death should have occurred within seven years of her marriage.(iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband.(iv) Such cruelty or harassment should be for or in connection with demand of dowry.(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death. Section 113-B of the Evidence Act is also relevant for the case at hand. Both Section 304-B IPC and Section 113-B of the Evidence Act were inserted as noted earlier by Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113-B reads as follows: “113-B. Presumption as to dowry death.—When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.[pic]Explanation.—For the purposes of this section, ‘dowry death’ shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860).” The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report dated 10-8-1988 on “Dowry Deaths and Law Reform”. Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry-related deaths, the legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background that presumptive Section 113-B in the Evidence Act has been inserted. As per the definition of “dowry death” in Section 304-B IPC and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the woman concerned must have been “soon before her death” subjected to cruelty or harassment “for or in connection with the demand of dowry”. Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials: (1) The question before the court must be whether the accused has committed the dowry death of the woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B IPC.)(2) The woman was subjected to cruelty or harassment by her husband or his relatives.(3) Such cruelty or harassment was for or in connection with any demand for dowry.(4) Such cruelty or harassment was soon before her death.” 19. In the present case, it is not in dispute that marriage took place on 20th June, 1995. Manju, wife of the accused Pradeep Kumar got burnt on 1st March, 1996 and died on 12th March, 1996 within nine months of her marriage. Death of Manju was caused by burns i.e. otherwise than under normal circumstances. It has already been seen that soon before her death she was subjected to cruelty and harassment in connection with demand of dowry. All the five ingredients were proved by the prosecution. Under Section 113-B of the Evidence Act when a question arises whether a person committed dowry death and it is proved that the death of woman took place within seven years of marriage; such death took place not under normal circumstances and soon before the death deceased was subjected to cruelty or harassment by such person for or in connection with any demand for dowry, the Court shall presume that such person had caused the dowry death. The prosecution having successfully proved the dowry death, the Trial Court and the High Court correctly held the accused Pradeep Kumar guilty of the offence under Section 304B. 20. Section 498-A IPC reads as follows: “498A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.Explanation.—For the purpose of this section, “cruelty” means—(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.” 21. In the present case, on the basis of the evidence of Subedar Sapattar Singh (PW-8) and dying declaration, it can be clearly concluded that the Trial Court and the High Court rightly held that the accused Pradeep Kumar had subjected Manju to harassment as defined under Clause (b) of explanation to Section 498-A. | 0[ds]13. On going through the dying declaration, we have held that the second part of dying declaration inspires confidence so as to consider it to be a dying declaration of the deceased. The first part of dying declaration is tutored by the accused-husband as apparent from the said part of the dyingFrom the aforesaid, evidence of Sapattar Singh (PW-8) and dying declaration, we find that there was a demand of dowry and harassment soon before the death.In the present case, it is not in dispute that marriage took place on 20th June, 1995. Manju, wife of the accused Pradeep Kumar got burnt on 1st March, 1996 and died on 12th March, 1996 within nine months of her marriage. Death of Manju was caused by burns i.e. otherwise than under normal circumstances. It has already been seen that soon before her death she was subjected to cruelty and harassment in connection with demand of dowry. All the five ingredients were proved by the prosecution. Under Section 113-B of the Evidence Act when a question arises whether a person committed dowry death and it is proved that the death of woman took place within seven years of marriage; such death took place not under normal circumstances and soon before the death deceased was subjected to cruelty or harassment by such person for or in connection with any demand for dowry, the Court shall presume that such person had caused the dowry death. The prosecution having successfully proved the dowry death, the Trial Court and the High Court correctly held the accused Pradeep Kumar guilty of the offence under Section 304B.In the present case, on the basis of the evidence of Subedar Sapattar Singh (PW-8) and dying declaration, it can be clearly concluded that the Trial Court and the High Court rightly held that the accused Pradeep Kumar had subjected Manju to harassment as defined under Clause (b) of explanation to Section | 0 | 4,206 | 351 | ### Instruction:
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Act, 1961 (28 of 1961).(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.” The provision has application when death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relatives of her husband for, or in connection with any demand for dowry. In order to attract application of Section 304-B IPC, the essential ingredients are as follows: (i) The death of a woman should be caused by burns or bodily injury or otherwise than under a normal circumstance.(ii) Such a death should have occurred within seven years of her marriage.(iii) She must have been subjected to cruelty or harassment by her husband or any relative of her husband.(iv) Such cruelty or harassment should be for or in connection with demand of dowry.(v) Such cruelty or harassment is shown to have been meted out to the woman soon before her death. Section 113-B of the Evidence Act is also relevant for the case at hand. Both Section 304-B IPC and Section 113-B of the Evidence Act were inserted as noted earlier by Dowry Prohibition (Amendment) Act 43 of 1986 with a view to combat the increasing menace of dowry deaths. Section 113-B reads as follows: “113-B. Presumption as to dowry death.—When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.[pic]Explanation.—For the purposes of this section, ‘dowry death’ shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860).” The necessity for insertion of the two provisions has been amply analysed by the Law Commission of India in its 21st Report dated 10-8-1988 on “Dowry Deaths and Law Reform”. Keeping in view the impediment in the pre-existing law in securing evidence to prove dowry-related deaths, the legislature thought it wise to insert a provision relating to presumption of dowry death on proof of certain essentials. It is in this background that presumptive Section 113-B in the Evidence Act has been inserted. As per the definition of “dowry death” in Section 304-B IPC and the wording in the presumptive Section 113-B of the Evidence Act, one of the essential ingredients, amongst others, in both the provisions is that the woman concerned must have been “soon before her death” subjected to cruelty or harassment “for or in connection with the demand of dowry”. Presumption under Section 113-B is a presumption of law. On proof of the essentials mentioned therein, it becomes obligatory on the court to raise a presumption that the accused caused the dowry death. The presumption shall be raised only on proof of the following essentials: (1) The question before the court must be whether the accused has committed the dowry death of the woman. (This means that the presumption can be raised only if the accused is being tried for the offence under Section 304-B IPC.)(2) The woman was subjected to cruelty or harassment by her husband or his relatives.(3) Such cruelty or harassment was for or in connection with any demand for dowry.(4) Such cruelty or harassment was soon before her death.” 19. In the present case, it is not in dispute that marriage took place on 20th June, 1995. Manju, wife of the accused Pradeep Kumar got burnt on 1st March, 1996 and died on 12th March, 1996 within nine months of her marriage. Death of Manju was caused by burns i.e. otherwise than under normal circumstances. It has already been seen that soon before her death she was subjected to cruelty and harassment in connection with demand of dowry. All the five ingredients were proved by the prosecution. Under Section 113-B of the Evidence Act when a question arises whether a person committed dowry death and it is proved that the death of woman took place within seven years of marriage; such death took place not under normal circumstances and soon before the death deceased was subjected to cruelty or harassment by such person for or in connection with any demand for dowry, the Court shall presume that such person had caused the dowry death. The prosecution having successfully proved the dowry death, the Trial Court and the High Court correctly held the accused Pradeep Kumar guilty of the offence under Section 304B. 20. Section 498-A IPC reads as follows: “498A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.Explanation.—For the purpose of this section, “cruelty” means—(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.” 21. In the present case, on the basis of the evidence of Subedar Sapattar Singh (PW-8) and dying declaration, it can be clearly concluded that the Trial Court and the High Court rightly held that the accused Pradeep Kumar had subjected Manju to harassment as defined under Clause (b) of explanation to Section 498-A.
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13. On going through the dying declaration, we have held that the second part of dying declaration inspires confidence so as to consider it to be a dying declaration of the deceased. The first part of dying declaration is tutored by the accused-husband as apparent from the said part of the dyingFrom the aforesaid, evidence of Sapattar Singh (PW-8) and dying declaration, we find that there was a demand of dowry and harassment soon before the death.In the present case, it is not in dispute that marriage took place on 20th June, 1995. Manju, wife of the accused Pradeep Kumar got burnt on 1st March, 1996 and died on 12th March, 1996 within nine months of her marriage. Death of Manju was caused by burns i.e. otherwise than under normal circumstances. It has already been seen that soon before her death she was subjected to cruelty and harassment in connection with demand of dowry. All the five ingredients were proved by the prosecution. Under Section 113-B of the Evidence Act when a question arises whether a person committed dowry death and it is proved that the death of woman took place within seven years of marriage; such death took place not under normal circumstances and soon before the death deceased was subjected to cruelty or harassment by such person for or in connection with any demand for dowry, the Court shall presume that such person had caused the dowry death. The prosecution having successfully proved the dowry death, the Trial Court and the High Court correctly held the accused Pradeep Kumar guilty of the offence under Section 304B.In the present case, on the basis of the evidence of Subedar Sapattar Singh (PW-8) and dying declaration, it can be clearly concluded that the Trial Court and the High Court rightly held that the accused Pradeep Kumar had subjected Manju to harassment as defined under Clause (b) of explanation to Section
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Rai Bahadur Seth Shreeram Durgaprasad Vs. Director of Enforcement | to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render an y such person liable to punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention." 3. It is clear from these provisions that the word whoever in sub-s. (1) of s. 23 of the Act before its amendment was comprehensive enough to include an association of persons, such as a firm, and did not connote a natural person alone. There is no reason why the word whoever in the section should not receive its plain and natural meaning. According to the Shorter Oxford English Dictionary, vol. 2, p. 2543, whoever means any one who. any who. The meaning given in Webster Comprehensive Dictionary, International edn., vol. 2 at p. 1437 is any one without exception any person who. In our judgment. the word whoever in the unamended s. 23(1) must be read in juxtaposition with s. 12(2) and must mean any person who commits a contravention of that section without exception. That must be the legal connotation of the word whoever and it necessarily takes in corporate liability and includes any association of persons such as a partnership firm. That construction of ours is borne out by the plain language of sub-s. (4) of s. 23 inserted by Act XXXIV of 1950. It provides that if the person committing an offence punishable under sub-s. (1) of s. 23 is a company or other body corporate, every director, manager, secretary or other officer thereof shall, unless he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent its commission, be deemed to be guilty of such offence. The Act therefore clearly contemplated that adjudication proceedings under sub-s. (1) of s. 23 prior to its amendment could be initiated not only against the person who actually commits contravention but also casts vicarious liability on an association of persons such as a partnership firm or an artificial or a legal entity like a company. It is therefore idle to contend that the appellants were not liable to pay penalty for failure to repatriate foreign exchange on 52 shipments of manganese ore effected through the years 1952 t o 1958. Upon that view, the learned Single Judge was right in setting aside the order of the Foreign Exchange Regulation Appellate Board and restoring that of the Director of Enforcement levying a penalty of Rs. 15, 00, 000 on the appellants for fai lure to repatriate foreign exchange in contravention of s. 12(2) of the Act.The contention of the learned counsel that recourse could not be had to the amended s. 23(1) read with s. 23C of the Act in respect of the contravention of s. 12(2 ) for failure on the part of the appellants to repatriate foreign exchange on shipments of manganese ore made prior to September 20, 1957, and there could be no initiation of adjudication proceedings under the amended s. 23(1) read with s. 23C or levy of penalty on the appellants must also fail for another reason. In Sukumar Pynes case the Court reversed the decision of the Calcutta High Court in Sukumar Pyne v. Union of India &Ors., AIR (1962) Cal. 590 striking down s. 23(1)(a) as being violative of Art. 14 of the Constitution. Regarding the point, namely, whether s. 23(1)(a) having been substituted by Amendment Act XXXIX of 1957 would have retrospective operation in respect of the alleged offence which took place in 1954, the High Court came to the conclusion that the petitioner had a vested right to be tried by an ordinary court of the land with such rights of appeal as were open to all and although s. 23(1)(a) was procedural, where a vested right was affected, prima facie, it was not a question of procedure. Therefore, the High Court came to the conclusion that the provision as to adjudication by the Director of Enforcement could not have any retrospective operation. It was held that the impairment of a fig ht by putting a new restriction thereupon is not a matter of procedure only. It impairs a substantive right and an enactment that does so is not retrospective unless it says so expressly or by necessary intendment. The Court reversed the High Court and held that effect of these provisions was that after the amendment of 1957, adjudication or criminal proceedings could be taken up in respect of a contravention mentioned in s. 23(1) while before the amendment only criminal proceedings before a Court could be instituted to punish the offender. In repelling the contention advanced by Shri N.C. Chatterjee that the new amendments did not apply to contraventions which took place before the Act came into force, the Court observed: "In our opinion, there is force in the conten- tion of the learned Solicitor-General. As observed by this Court in Rao Shiv Bahadur Singh v. The State of Vindhya Pradesh, [1953] SCR 1188 , a person accused of the commission of an offence has no vested right to be tried by a particular court or a particular proce- dure except in so far as there is any consti- tutional objection by way of discrimination or the violation of any other fundamental right is involved. It is well recognised that "no person has a vested right in any course of procedure "(vide Maxwell 11th Edition, p. 216), and we see no reason why this ordinary rule should not prevail in the present case. There is no principle underlying Art. 20 of the Constitution which makes a right to any course of procedure a vested right." 4. These principles are clearly attracted to the facts and circumstances of the present case and therefore the initiation of adjudication proceedings for failure to repatriate foreign ex change on shipments of manganese ore prior to September 20, 1957, the date when the Amendment Act came into force, was permissible. 5. | 0[ds]It is clear from these provisions that the word whoever in sub-s. (1) of s. 23 of the Act before its amendment was comprehensive enough to include an association of persons, such as a firm, and did not connote a natural person alone. There is no reason why the word whoever in the section should not receive its plain and natural meaning. According to the Shorter Oxford English Dictionary, vol. 2, p. 2543, whoever means any one who. any who. The meaning given in Webster Comprehensive Dictionary, International edn., vol. 2 at p. 1437 is any one without exception any person who. In our judgment. the word whoever in the unamended s. 23(1) must be read in juxtaposition with s. 12(2) and must mean any person who commits a contravention of that section without exception. That must be the legal connotation of the word whoever and it necessarily takes in corporate liability and includes any association of persons such as a partnership firm. That construction of ours is borne out by the plain language of sub-s. (4) of s. 23 inserted by Act XXXIV of 1950. It provides that if the person committing an offence punishable under sub-s. (1) of s. 23 is a company or other body corporate, every director, manager, secretary or other officer thereof shall, unless he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent its commission, be deemed to be guilty of such offence. The Act therefore clearly contemplated that adjudication proceedings under sub-s. (1) of s. 23 prior to its amendment could be initiated not only against the person who actually commits contravention but also casts vicarious liability on an association of persons such as a partnership firm or an artificial or a legal entity like a company. It is therefore idle to contend that the appellants were not liable to pay penalty for failure to repatriate foreign exchange on 52 shipments of manganese ore effected through the years 1952 t o 1958. Upon that view, the learned Single Judge was right in setting aside the order of the Foreign Exchange Regulation Appellate Board and restoring that of the Director of Enforcement levying a penalty of Rs. 15, 00, 000 on the appellants for fai lure to repatriate foreign exchange in contravention of s. 12(2) of the Act.The contention of the learned counsel that recourse could not be had to the amended s. 23(1) read with s. 23C of the Act in respect of the contravention of s. 12(2 ) for failure on the part of the appellants to repatriate foreign exchange on shipments of manganese ore made prior to September 20, 1957, and there could be no initiation of adjudication proceedings under the amended s. 23(1) read with s. 23C or levy of penalty on the appellants must also fail for another reason. In Sukumar Pynes case the Court reversed the decision of the Calcutta High Court in Sukumar Pyne v. Union of India &Ors., AIR (1962) Cal. 590 striking down s. 23(1)(a) as being violative of Art. 14 of the Constitution. Regarding the point, namely, whether s. 23(1)(a) having been substituted by Amendment Act XXXIX of 1957 would have retrospective operation in respect of the alleged offence which took place in 1954, the High Court came to the conclusion that the petitioner had a vested right to be tried by an ordinary court of the land with such rights of appeal as were open to all and although s. 23(1)(a) was procedural, where a vested right was affected, prima facie, it was not a question of procedure. Therefore, the High Court came to the conclusion that the provision as to adjudication by the Director of Enforcement could not have any retrospective operation. It was held that the impairment of a fig ht by putting a new restriction thereupon is not a matter of procedure only. It impairs a substantive right and an enactment that does so is not retrospective unless it says so expressly or by necessary intendment. The Court reversed the High Court and held that effect of these provisions was that after the amendment of 1957, adjudication or criminal proceedings could be taken up in respect of a contravention mentioned in s. 23(1) while before the amendment only criminal proceedings before a Court could be instituted to punish the offender. In repelling the contention advanced by Shri N.C. Chatterjee that the new amendments did not apply to contraventions which took place before the Act came into force, the Courtn our opinion, there is force in the conten- tion of the learned Solicitor-General. As observed by this Court in Rao Shiv Bahadur Singh v. The State of Vindhya Pradesh, [1953] SCR 1188 , a person accused of the commission of an offence has no vested right to be tried by a particular court or a particular proce- dure except in so far as there is any consti- tutional objection by way of discrimination or the violation of any other fundamental right is involved. It is well recognised that "no person has a vested right in any course of procedure "(vide Maxwell 11th Edition, p. 216), and we see no reason why this ordinary rule should not prevail in the present case. There is no principle underlying Art. 20 of the Constitution which makes a right to any course of procedure a vested right."These principles are clearly attracted to the facts and circumstances of the present case and therefore the initiation of adjudication proceedings for failure to repatriate foreign ex change on shipments of manganese ore prior to September 20, 1957, the date when the Amendment Act came into force, was permissible. | 0 | 2,915 | 1,074 | ### Instruction:
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to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render an y such person liable to punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention." 3. It is clear from these provisions that the word whoever in sub-s. (1) of s. 23 of the Act before its amendment was comprehensive enough to include an association of persons, such as a firm, and did not connote a natural person alone. There is no reason why the word whoever in the section should not receive its plain and natural meaning. According to the Shorter Oxford English Dictionary, vol. 2, p. 2543, whoever means any one who. any who. The meaning given in Webster Comprehensive Dictionary, International edn., vol. 2 at p. 1437 is any one without exception any person who. In our judgment. the word whoever in the unamended s. 23(1) must be read in juxtaposition with s. 12(2) and must mean any person who commits a contravention of that section without exception. That must be the legal connotation of the word whoever and it necessarily takes in corporate liability and includes any association of persons such as a partnership firm. That construction of ours is borne out by the plain language of sub-s. (4) of s. 23 inserted by Act XXXIV of 1950. It provides that if the person committing an offence punishable under sub-s. (1) of s. 23 is a company or other body corporate, every director, manager, secretary or other officer thereof shall, unless he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent its commission, be deemed to be guilty of such offence. The Act therefore clearly contemplated that adjudication proceedings under sub-s. (1) of s. 23 prior to its amendment could be initiated not only against the person who actually commits contravention but also casts vicarious liability on an association of persons such as a partnership firm or an artificial or a legal entity like a company. It is therefore idle to contend that the appellants were not liable to pay penalty for failure to repatriate foreign exchange on 52 shipments of manganese ore effected through the years 1952 t o 1958. Upon that view, the learned Single Judge was right in setting aside the order of the Foreign Exchange Regulation Appellate Board and restoring that of the Director of Enforcement levying a penalty of Rs. 15, 00, 000 on the appellants for fai lure to repatriate foreign exchange in contravention of s. 12(2) of the Act.The contention of the learned counsel that recourse could not be had to the amended s. 23(1) read with s. 23C of the Act in respect of the contravention of s. 12(2 ) for failure on the part of the appellants to repatriate foreign exchange on shipments of manganese ore made prior to September 20, 1957, and there could be no initiation of adjudication proceedings under the amended s. 23(1) read with s. 23C or levy of penalty on the appellants must also fail for another reason. In Sukumar Pynes case the Court reversed the decision of the Calcutta High Court in Sukumar Pyne v. Union of India &Ors., AIR (1962) Cal. 590 striking down s. 23(1)(a) as being violative of Art. 14 of the Constitution. Regarding the point, namely, whether s. 23(1)(a) having been substituted by Amendment Act XXXIX of 1957 would have retrospective operation in respect of the alleged offence which took place in 1954, the High Court came to the conclusion that the petitioner had a vested right to be tried by an ordinary court of the land with such rights of appeal as were open to all and although s. 23(1)(a) was procedural, where a vested right was affected, prima facie, it was not a question of procedure. Therefore, the High Court came to the conclusion that the provision as to adjudication by the Director of Enforcement could not have any retrospective operation. It was held that the impairment of a fig ht by putting a new restriction thereupon is not a matter of procedure only. It impairs a substantive right and an enactment that does so is not retrospective unless it says so expressly or by necessary intendment. The Court reversed the High Court and held that effect of these provisions was that after the amendment of 1957, adjudication or criminal proceedings could be taken up in respect of a contravention mentioned in s. 23(1) while before the amendment only criminal proceedings before a Court could be instituted to punish the offender. In repelling the contention advanced by Shri N.C. Chatterjee that the new amendments did not apply to contraventions which took place before the Act came into force, the Court observed: "In our opinion, there is force in the conten- tion of the learned Solicitor-General. As observed by this Court in Rao Shiv Bahadur Singh v. The State of Vindhya Pradesh, [1953] SCR 1188 , a person accused of the commission of an offence has no vested right to be tried by a particular court or a particular proce- dure except in so far as there is any consti- tutional objection by way of discrimination or the violation of any other fundamental right is involved. It is well recognised that "no person has a vested right in any course of procedure "(vide Maxwell 11th Edition, p. 216), and we see no reason why this ordinary rule should not prevail in the present case. There is no principle underlying Art. 20 of the Constitution which makes a right to any course of procedure a vested right." 4. These principles are clearly attracted to the facts and circumstances of the present case and therefore the initiation of adjudication proceedings for failure to repatriate foreign ex change on shipments of manganese ore prior to September 20, 1957, the date when the Amendment Act came into force, was permissible. 5.
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### Explanation:
It is clear from these provisions that the word whoever in sub-s. (1) of s. 23 of the Act before its amendment was comprehensive enough to include an association of persons, such as a firm, and did not connote a natural person alone. There is no reason why the word whoever in the section should not receive its plain and natural meaning. According to the Shorter Oxford English Dictionary, vol. 2, p. 2543, whoever means any one who. any who. The meaning given in Webster Comprehensive Dictionary, International edn., vol. 2 at p. 1437 is any one without exception any person who. In our judgment. the word whoever in the unamended s. 23(1) must be read in juxtaposition with s. 12(2) and must mean any person who commits a contravention of that section without exception. That must be the legal connotation of the word whoever and it necessarily takes in corporate liability and includes any association of persons such as a partnership firm. That construction of ours is borne out by the plain language of sub-s. (4) of s. 23 inserted by Act XXXIV of 1950. It provides that if the person committing an offence punishable under sub-s. (1) of s. 23 is a company or other body corporate, every director, manager, secretary or other officer thereof shall, unless he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent its commission, be deemed to be guilty of such offence. The Act therefore clearly contemplated that adjudication proceedings under sub-s. (1) of s. 23 prior to its amendment could be initiated not only against the person who actually commits contravention but also casts vicarious liability on an association of persons such as a partnership firm or an artificial or a legal entity like a company. It is therefore idle to contend that the appellants were not liable to pay penalty for failure to repatriate foreign exchange on 52 shipments of manganese ore effected through the years 1952 t o 1958. Upon that view, the learned Single Judge was right in setting aside the order of the Foreign Exchange Regulation Appellate Board and restoring that of the Director of Enforcement levying a penalty of Rs. 15, 00, 000 on the appellants for fai lure to repatriate foreign exchange in contravention of s. 12(2) of the Act.The contention of the learned counsel that recourse could not be had to the amended s. 23(1) read with s. 23C of the Act in respect of the contravention of s. 12(2 ) for failure on the part of the appellants to repatriate foreign exchange on shipments of manganese ore made prior to September 20, 1957, and there could be no initiation of adjudication proceedings under the amended s. 23(1) read with s. 23C or levy of penalty on the appellants must also fail for another reason. In Sukumar Pynes case the Court reversed the decision of the Calcutta High Court in Sukumar Pyne v. Union of India &Ors., AIR (1962) Cal. 590 striking down s. 23(1)(a) as being violative of Art. 14 of the Constitution. Regarding the point, namely, whether s. 23(1)(a) having been substituted by Amendment Act XXXIX of 1957 would have retrospective operation in respect of the alleged offence which took place in 1954, the High Court came to the conclusion that the petitioner had a vested right to be tried by an ordinary court of the land with such rights of appeal as were open to all and although s. 23(1)(a) was procedural, where a vested right was affected, prima facie, it was not a question of procedure. Therefore, the High Court came to the conclusion that the provision as to adjudication by the Director of Enforcement could not have any retrospective operation. It was held that the impairment of a fig ht by putting a new restriction thereupon is not a matter of procedure only. It impairs a substantive right and an enactment that does so is not retrospective unless it says so expressly or by necessary intendment. The Court reversed the High Court and held that effect of these provisions was that after the amendment of 1957, adjudication or criminal proceedings could be taken up in respect of a contravention mentioned in s. 23(1) while before the amendment only criminal proceedings before a Court could be instituted to punish the offender. In repelling the contention advanced by Shri N.C. Chatterjee that the new amendments did not apply to contraventions which took place before the Act came into force, the Courtn our opinion, there is force in the conten- tion of the learned Solicitor-General. As observed by this Court in Rao Shiv Bahadur Singh v. The State of Vindhya Pradesh, [1953] SCR 1188 , a person accused of the commission of an offence has no vested right to be tried by a particular court or a particular proce- dure except in so far as there is any consti- tutional objection by way of discrimination or the violation of any other fundamental right is involved. It is well recognised that "no person has a vested right in any course of procedure "(vide Maxwell 11th Edition, p. 216), and we see no reason why this ordinary rule should not prevail in the present case. There is no principle underlying Art. 20 of the Constitution which makes a right to any course of procedure a vested right."These principles are clearly attracted to the facts and circumstances of the present case and therefore the initiation of adjudication proceedings for failure to repatriate foreign ex change on shipments of manganese ore prior to September 20, 1957, the date when the Amendment Act came into force, was permissible.
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Raghunath Rai Bareja Vs. Punjab National Bank | 2003 SC 1405 , State of Jharkhand & Anr. vs. Govind Singh JT 2004(10) SC 349 etc.. It is for the legislature to amend the law and not the Court vide State of Jharkhand & Anr. vs. Govind Singh JT 2004(10) SC 349 . In Jinia Keotin vs. K.S. Manjhi, 2003 (1) SCC 730 , this Court observed: "The Court cannot legislate under the grab of interpretation”. 48. Hence there should be judicial restraint in this connection, and the temptation to do judicial legislation should be eschewed by the Courts. In fact, judicial legislation is an oxymoron. In Shiv Shakti Co-operative Housing Society vs. Swaraj Developers AIR 2003 SC 2434 , this Court observed: "It is a well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent." 49. In our opinion, Section 31 is plain and unambiguous and it clearly says that only those suits or proceedings pending before a Court shall stand transferred to the Tribunal which were pending on the date when the Tribunal was established.50. The learned counsel for the respondent submitted that we have to see the legislative intent when we interpret Section 31. In our opinion, resort can be had to the legislative intent for the purpose of interpreting a provision of law when the language employed by the legislature is doubtful or ambiguous or leads to some absurdity. However, when the language is plain and explicit and does not admit of any doubt, the Court cannot by reference to an assumed legislative intent expand or alter the plain meaning of an expression employed by the legislature vide Ombalika Das vs. Hulisa Shaw, 2002 (4) SCC 539. 51. Where the language is clear, the intention of the legislature has to be gathered from the language used vide Grasim Industries Limited vs. Collector of Customs 2002 (4) SCC 297 and Union of India vs. Hamsoli Devi 2002 (7) SCC 273. In Union of India and another vs. Hansoli Devi and others 2002(7) SCC (vide para 9), this Court observed: "It is a cardinal principle of construction of a statute that when the language of the statute is plain and unambiguous, then the court must give effect to the words used in the statute and it would not be open to the courts to adopt a hypothetical construction on the grounds that such construction is more consistent with the alleged object and policy of the Act." 52. The function of the Court is only to expound the law and not to legislate vide District Mining Officer vs. Tata Iron and Steel Company 2002 (7) SCC 358. If we accept the interpretation canvassed by the learned counsel for the respondent we will really be legislating because in the guise of interpretation we will be really amending Section 31. In Gurudevdatta VKSSS Maryadit vs. State of Maharashtra AIR 2001 SC 1980 , this Court observed: "It is a cardinal principle of interpretation of statute that the words of a statute must be understood in their natural, ordinary or popular sense and construed according to their grammatical meaning, unless such construction leads to some absurdity or unless there is something in the context or in the object of the statute to suggest to the contrary. The golden rule is that the words of a statute must prima facie be given their ordinary meaning. It is yet another rule of construction that when the words of the statute are clear, plain and unambiguous, then the Courts are bound to give effect to that meaning, irrespective of the consequences. It is said that the words themselves best declare the intention of the law-giver. The Courts are adhered to the principle that efforts should be made to give meaning to each and every word used by the legislature and it is not a sound principle of construction to brush aside words in a statute as being inapposite surpluses, if they can have a proper application in circumstances conceivable within the contemplation of the statute". 53. The same view has been taken by this Court in S. Mehta vs. State of Maharashtra 2001 (8) SCC 257 (vide para 34) and Patangrao Kaddam vs. Prithviraj Sajirao Yadav Deshmugh AIR 2001 SC 1121 .54. The literal rule of interpretation really means that there should be no interpretation. In other words, we should read the statute as it is, without distorting or twisting its language.55. We may mention here that the literal rule of interpretation is not only followed by Judges and lawyers, but it is also followed by the lay man in his ordinary life. To give an illustration, if a person says "this is a pencil", then he means that it is a pencil; and it is not that when he says that the object is a pencil, he means that it is a horse, donkey or an elephant. In other words, the literal rule of interpretation simply means that we mean what we say and we say what we mean. If we do not follow the literal rule of interpretation, social life will become impossible, and we will not understand each other. If we say that a certain object is a book, then we mean it is a book. If we say it is a book, but we mean it is a horse, table or an elephant, then we will not be able to communicate with each other. Life will become impossible. Hence, the meaning of the literal rule of interpretation is simply that we mean what we say and we say what we mean.56. In the present case, we are clearly of the opinion that the literal rule applies, and the other rules have no application to interpreting Section 31, since the language of Section 31 is plain and clear, and cannot be said to be ambiguous or resulting in some absurdity. | 1[ds]17. Admittedly, the Debt Recovery Tribunal, Chandigarh was established in 1993 and hence after 1993 the exclusive jurisdiction regarding recovery of debts pertaining to which the RDB Act applies is with the Tribunal.18. In our opinion, the impugned order of the High Court dated 26.5.2005, transferring the Execution Petition pending before it to the Debt Recovery Tribunal, Chandigarh was clearly beyond the scope of Section 31 of the RDB Act because Section 31 states that only suits or other proceeding pending before the Court immediately before the establishment of the Tribunal under the Act, stand transferred to the Tribunal. Since, admittedly the Tribunal in the present case, had been established in 1993, and no proceeding was pending before it on the date when it was established, no transfer could take place under Section 31 of the RDB Act. At any event, the third Execution Petition which was transferred by the impugned order was filed by the respondent-Bank on 11.1.1999, i.e. much after the Tribunal had been established. Hence obviously there could be no such transfer to the Tribunal under Section 31 of the RDB Act. Apart from Section 31, there is no other provision for transferring a suit or other proceeding pending before any Court to the Tribunal. Hence, the impugned order dated 26.5.2005 was clearly illegal and without jurisdiction.Since in the aforesaid decision this Court has held that even with regard to execution the jurisdiction under the RDB Act is exclusive, we cannot agree with the view taken by the High Court merely because the appellant had given his consent to the transfer of the Execution Petition to the Tribunal. It is well settled in law that consent cannot confer jurisdiction.Since Section 24 of the RDB Act applies the provisions of the Limitation Act, 1963, to applications filed before the Tribunal, and since Article 136 of the Limitation Act provides a period of limitation of 12 years for filing an Execution Petition, hence now no such application can be filed since that period of 12 years expired on 15.1.1999. Hence, in our opinion the debt became time barred after 15.1.1999.In this connection, it may be mentioned that Section 446(3) of the Companies Act was omitted by Companies (Second Amendment) Act, 2002 and evidently the High Court has overlooked this Amendment. As a result in our opinion the High Court has no power to transfer the Execution Petition to the Debts Recovery Tribunal. At any event as held in Allahabad Bank vs. Canara Bank & Anr.(supra), Section 446 has no application once the RDB Act applies because Section 34 expressly gives overriding effect to the provisions of the RDB Act. Also, the RDB Act is a special law and hence will prevail over the general law in the Companies Act as held in Allahabad Bank vs. Canara Bank & Anr.(supra).27. In this connection, we may mention that in the impugned order dated 26.5.2005 the High Court has, while admitting that in view of the decision of this Court in Allahabad Bank vs. Canara Bank & Anr.(supra), it had no jurisdiction to deal with the execution application, it has, however, in the same order relied on the so called "inherent powers" of the Court. In our opinion there are no such inherent powers of the Court of transferring the Execution Proceedings to the Debt Recovery Tribunal, Chandigarh. Whatever powers there are of transfer of proceedings to the Tribunal are contained in Section 31 of the RDB Act, and no transfer is permissible de hors Section 31. Hence, we respectfully disagree with the High Court that it has inherent powers apart from Section 31 for transferring the Execution Petition to the Debt Recovery Tribunal.In the present case, while equity is in favour of the respondent-Bank, the law is in favour of the appellant, since we are of the opinion that the impugned order of the High Court is clearly in violation of Section 31 of the RDB Act, and moreover the claim is time-barred in view of Article 136 of the Limitation Act read with Section 24 of the RDB Act. We cannot but comment that it is the Bank itself which is to blame because after its first Execution Petition was dismissed on 23.8.1990 it should have immediately thereafter filed a second Execution Petition, but instead it filed the second Execution Petition only in 1994 which was dismissed on 18.8.1994. Thereafter, again, the Bank waited for 5 years and it was only on 1.4.1999 that it filed its third Execution Petition. We fail to understand why the Bank waited from 1990 to 1994 and again from 1994 to 1999 in filing its Execution Petitions. Hence, it is the Bank which is responsible for not getting the decree executed well in time.In our opinion, Section 31 is plain and unambiguous and it clearly says that only those suits or proceedings pending before a Court shall stand transferred to the Tribunal which were pending on the date when the Tribunal was established.50.The learned counsel for the respondent submitted that we have to see the legislative intent when we interpret Section 31.The function of the Court is only to expound the law and not to legislate vide District Mining Officer vs. Tata Iron and Steel Company 2002 (7) SCC 358. If we accept the interpretation canvassed by the learned counsel for the respondent we will really be legislating because in the guise of interpretation we will be really amending Section 31.54. The literal rule of interpretation really means that there should be no interpretation. In other words, we should read the statute as it is, without distorting or twisting its language.55. We may mention here that the literal rule of interpretation is not only followed by Judges and lawyers, but it is also followed by the lay man in his ordinary life. To give an illustration, if a person says "this is a pencil", then he means that it is a pencil; and it is not that when he says that the object is a pencil, he means that it is a horse, donkey or an elephant. In other words, the literal rule of interpretation simply means that we mean what we say and we say what we mean. If we do not follow the literal rule of interpretation, social life will become impossible, and we will not understand each other. If we say that a certain object is a book, then we mean it is a book. If we say it is a book, but we mean it is a horse, table or an elephant, then we will not be able to communicate with each other. Life will become impossible. Hence, the meaning of the literal rule of interpretation is simply that we mean what we say and we say what we mean.56. In the present case, we are clearly of the opinion that the literal rule applies, and the other rules have no application to interpreting Section 31, since the language of Section 31 is plain and clear, and cannot be said to be ambiguous or resulting in some absurdity. | 1 | 6,270 | 1,305 | ### Instruction:
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2003 SC 1405 , State of Jharkhand & Anr. vs. Govind Singh JT 2004(10) SC 349 etc.. It is for the legislature to amend the law and not the Court vide State of Jharkhand & Anr. vs. Govind Singh JT 2004(10) SC 349 . In Jinia Keotin vs. K.S. Manjhi, 2003 (1) SCC 730 , this Court observed: "The Court cannot legislate under the grab of interpretation”. 48. Hence there should be judicial restraint in this connection, and the temptation to do judicial legislation should be eschewed by the Courts. In fact, judicial legislation is an oxymoron. In Shiv Shakti Co-operative Housing Society vs. Swaraj Developers AIR 2003 SC 2434 , this Court observed: "It is a well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent." 49. In our opinion, Section 31 is plain and unambiguous and it clearly says that only those suits or proceedings pending before a Court shall stand transferred to the Tribunal which were pending on the date when the Tribunal was established.50. The learned counsel for the respondent submitted that we have to see the legislative intent when we interpret Section 31. In our opinion, resort can be had to the legislative intent for the purpose of interpreting a provision of law when the language employed by the legislature is doubtful or ambiguous or leads to some absurdity. However, when the language is plain and explicit and does not admit of any doubt, the Court cannot by reference to an assumed legislative intent expand or alter the plain meaning of an expression employed by the legislature vide Ombalika Das vs. Hulisa Shaw, 2002 (4) SCC 539. 51. Where the language is clear, the intention of the legislature has to be gathered from the language used vide Grasim Industries Limited vs. Collector of Customs 2002 (4) SCC 297 and Union of India vs. Hamsoli Devi 2002 (7) SCC 273. In Union of India and another vs. Hansoli Devi and others 2002(7) SCC (vide para 9), this Court observed: "It is a cardinal principle of construction of a statute that when the language of the statute is plain and unambiguous, then the court must give effect to the words used in the statute and it would not be open to the courts to adopt a hypothetical construction on the grounds that such construction is more consistent with the alleged object and policy of the Act." 52. The function of the Court is only to expound the law and not to legislate vide District Mining Officer vs. Tata Iron and Steel Company 2002 (7) SCC 358. If we accept the interpretation canvassed by the learned counsel for the respondent we will really be legislating because in the guise of interpretation we will be really amending Section 31. In Gurudevdatta VKSSS Maryadit vs. State of Maharashtra AIR 2001 SC 1980 , this Court observed: "It is a cardinal principle of interpretation of statute that the words of a statute must be understood in their natural, ordinary or popular sense and construed according to their grammatical meaning, unless such construction leads to some absurdity or unless there is something in the context or in the object of the statute to suggest to the contrary. The golden rule is that the words of a statute must prima facie be given their ordinary meaning. It is yet another rule of construction that when the words of the statute are clear, plain and unambiguous, then the Courts are bound to give effect to that meaning, irrespective of the consequences. It is said that the words themselves best declare the intention of the law-giver. The Courts are adhered to the principle that efforts should be made to give meaning to each and every word used by the legislature and it is not a sound principle of construction to brush aside words in a statute as being inapposite surpluses, if they can have a proper application in circumstances conceivable within the contemplation of the statute". 53. The same view has been taken by this Court in S. Mehta vs. State of Maharashtra 2001 (8) SCC 257 (vide para 34) and Patangrao Kaddam vs. Prithviraj Sajirao Yadav Deshmugh AIR 2001 SC 1121 .54. The literal rule of interpretation really means that there should be no interpretation. In other words, we should read the statute as it is, without distorting or twisting its language.55. We may mention here that the literal rule of interpretation is not only followed by Judges and lawyers, but it is also followed by the lay man in his ordinary life. To give an illustration, if a person says "this is a pencil", then he means that it is a pencil; and it is not that when he says that the object is a pencil, he means that it is a horse, donkey or an elephant. In other words, the literal rule of interpretation simply means that we mean what we say and we say what we mean. If we do not follow the literal rule of interpretation, social life will become impossible, and we will not understand each other. If we say that a certain object is a book, then we mean it is a book. If we say it is a book, but we mean it is a horse, table or an elephant, then we will not be able to communicate with each other. Life will become impossible. Hence, the meaning of the literal rule of interpretation is simply that we mean what we say and we say what we mean.56. In the present case, we are clearly of the opinion that the literal rule applies, and the other rules have no application to interpreting Section 31, since the language of Section 31 is plain and clear, and cannot be said to be ambiguous or resulting in some absurdity.
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under Section 31 of the RDB Act. Apart from Section 31, there is no other provision for transferring a suit or other proceeding pending before any Court to the Tribunal. Hence, the impugned order dated 26.5.2005 was clearly illegal and without jurisdiction.Since in the aforesaid decision this Court has held that even with regard to execution the jurisdiction under the RDB Act is exclusive, we cannot agree with the view taken by the High Court merely because the appellant had given his consent to the transfer of the Execution Petition to the Tribunal. It is well settled in law that consent cannot confer jurisdiction.Since Section 24 of the RDB Act applies the provisions of the Limitation Act, 1963, to applications filed before the Tribunal, and since Article 136 of the Limitation Act provides a period of limitation of 12 years for filing an Execution Petition, hence now no such application can be filed since that period of 12 years expired on 15.1.1999. Hence, in our opinion the debt became time barred after 15.1.1999.In this connection, it may be mentioned that Section 446(3) of the Companies Act was omitted by Companies (Second Amendment) Act, 2002 and evidently the High Court has overlooked this Amendment. As a result in our opinion the High Court has no power to transfer the Execution Petition to the Debts Recovery Tribunal. At any event as held in Allahabad Bank vs. Canara Bank & Anr.(supra), Section 446 has no application once the RDB Act applies because Section 34 expressly gives overriding effect to the provisions of the RDB Act. Also, the RDB Act is a special law and hence will prevail over the general law in the Companies Act as held in Allahabad Bank vs. Canara Bank & Anr.(supra).27. In this connection, we may mention that in the impugned order dated 26.5.2005 the High Court has, while admitting that in view of the decision of this Court in Allahabad Bank vs. Canara Bank & Anr.(supra), it had no jurisdiction to deal with the execution application, it has, however, in the same order relied on the so called "inherent powers" of the Court. In our opinion there are no such inherent powers of the Court of transferring the Execution Proceedings to the Debt Recovery Tribunal, Chandigarh. Whatever powers there are of transfer of proceedings to the Tribunal are contained in Section 31 of the RDB Act, and no transfer is permissible de hors Section 31. Hence, we respectfully disagree with the High Court that it has inherent powers apart from Section 31 for transferring the Execution Petition to the Debt Recovery Tribunal.In the present case, while equity is in favour of the respondent-Bank, the law is in favour of the appellant, since we are of the opinion that the impugned order of the High Court is clearly in violation of Section 31 of the RDB Act, and moreover the claim is time-barred in view of Article 136 of the Limitation Act read with Section 24 of the RDB Act. We cannot but comment that it is the Bank itself which is to blame because after its first Execution Petition was dismissed on 23.8.1990 it should have immediately thereafter filed a second Execution Petition, but instead it filed the second Execution Petition only in 1994 which was dismissed on 18.8.1994. Thereafter, again, the Bank waited for 5 years and it was only on 1.4.1999 that it filed its third Execution Petition. We fail to understand why the Bank waited from 1990 to 1994 and again from 1994 to 1999 in filing its Execution Petitions. Hence, it is the Bank which is responsible for not getting the decree executed well in time.In our opinion, Section 31 is plain and unambiguous and it clearly says that only those suits or proceedings pending before a Court shall stand transferred to the Tribunal which were pending on the date when the Tribunal was established.50.The learned counsel for the respondent submitted that we have to see the legislative intent when we interpret Section 31.The function of the Court is only to expound the law and not to legislate vide District Mining Officer vs. Tata Iron and Steel Company 2002 (7) SCC 358. If we accept the interpretation canvassed by the learned counsel for the respondent we will really be legislating because in the guise of interpretation we will be really amending Section 31.54. The literal rule of interpretation really means that there should be no interpretation. In other words, we should read the statute as it is, without distorting or twisting its language.55. We may mention here that the literal rule of interpretation is not only followed by Judges and lawyers, but it is also followed by the lay man in his ordinary life. To give an illustration, if a person says "this is a pencil", then he means that it is a pencil; and it is not that when he says that the object is a pencil, he means that it is a horse, donkey or an elephant. In other words, the literal rule of interpretation simply means that we mean what we say and we say what we mean. If we do not follow the literal rule of interpretation, social life will become impossible, and we will not understand each other. If we say that a certain object is a book, then we mean it is a book. If we say it is a book, but we mean it is a horse, table or an elephant, then we will not be able to communicate with each other. Life will become impossible. Hence, the meaning of the literal rule of interpretation is simply that we mean what we say and we say what we mean.56. In the present case, we are clearly of the opinion that the literal rule applies, and the other rules have no application to interpreting Section 31, since the language of Section 31 is plain and clear, and cannot be said to be ambiguous or resulting in some absurdity.
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Jagannath Behera And Others Vs. Raja Harihar Singhmardaraj Bhramarbara Roy | produce irrespective of the yield from the land, or (iv) produce or its estimated value partly in any one of the ways described above and partly in another; but shall not include ................ 21. It is urged that the tenants who were inducted by the respondent on these lands did not fulfil the terms of this definition and they were therefore not tenants and, as a logical corollary to that, the respondent could not be a landlord qua them. It is also contended that even though these lands were declared to be the private properties of the Respondent under the decision of the Adviser for the Orissa States, that was a recognition of the lands as such by the Dominion Government and not by the Provincial Government; which recognition was a condition precedent of the application of S. 7 (h) of the 1950 Act to these lands. Here also, the respondent is confronted with this difficulty that these questions were not mooted either before the Revenue Officer or the High Court in the manner in which it was sought to be done before us. It was all along assumed that the appellants had been the tenants of the respondent but had been ejected by him in the year 1951 and other tenants were inducted in their place some time in 1952. The lands in question were also assumed to have been recognised as the private lands of the respondent by the Government without making any distinction between the Dominion Government and the Provincial Government as was sought to be done before us. Reliance was mainly placed by the respondent in the High Court on his plea that the jurisdiction of the Revenue Officer was barred under Art. 363 of the Constitution and it was nowhere urged that the appellant were not the tenants and he was not the landlord within the terms of the definitions contained in the 1948 Act or that in the absence of recognition of these private lands of his as such by the Provincial Government, the condition precedent to the application of S. 7 (h) of the 1950 Act was not fulfilled and that section has no application at all to these lands.The determination of these questions also requires evidence in regard to the same and it would not be legitimate to allow these questions to be agitated for the first time at this late stage. 22. The matter is, however, concluded by the provisions of S. 7 (a) of the 1950 Act. That section enacts a statutory extension of the definition of the terms landlord and tenant and provides that the expression landlord shall mean a person immediately under whom a tenant holds land, and the expression tenant shall mean a person who holds land under another person and is or, but for a special contract, would be liable to pay rent for that land to that person. Whatever may have been the definitions of the terms landlord and tenant in S. 2 (c) and (g) of the 1948 Act, this definition contained in the explanation to S. 7 (a) of the 1950 Act makes the appellants the tenants and the respondent a landlord in regard to the lands in question. This statutory extension of the definition of the terms landlord and tenant therefore is sufficient, in our opinion, to repel the last contention urged on behalf of the respondent before us. 23. The respondent further contends that in spite of S. 7 of the 1950 Act, enacting that all suits and proceedings between landlord and tenant as such shall be instituted and tried in revenue courts, the provisions of the 1948 Act in regard to the hierarchy of revenue courts and the procedure and the penalties provided therein are not attracted to the merged State of Khandapara. The contention is that the provisions contained in the 1950 Act are special provisions which eliminate the operation of the general provisions contained in the 1948 Act, and in so far as nothing more is stated in regard to how the revenue courts are to act in the matter of the institution and trial of all suits and proceedings between landlord and tenant, there is a lacuna and the revenue courts as envisaged by the 1948 Act, have no jurisdiction to entertain the proceedings in question. 24. The simple answer to this contention of the respondent is that both these acts have to be read together. The 1950 Act is an act to extend certain acts and regulations to certain areas administered as part of the Province of Orissa. The merged State of Khandapara is one of such areas. By virtue of S. 4 of this Act the 1948 Act is inter alia extended to the merged State of Khandapara and the provisions thereof are made applicable in that area. The other sections of this Act enact further provisions which are applicable to these merged States including the merged State of Khandapara and S. 7, in particular, enacts the modification of the tenancy laws in force in those merged states. These provisions are therefore supplementary to those contained in the 1948 Act, and it follows that not only the provisions of the 1948 Act but also the provisions of the 1950 Act are applicable to the merged State of Khandapara. If both these Acts are thus read together, as they should be, there is no inconsistency between the provisions of these Acts and it is clear that the provisions of sub-ss. (a) and (h) of S. 7 of the 1950 Act which applied to the dispute which arose between the appellants and the respondent read together with the relevant provisions in regard to the procedure, penalties, etc., contained in the 1948 Act did give jurisdiction to the Revenue Officer to entertain the dispute between the parties. This contention of the respondent also therefore fails. 25. We are therefore, of opinion that the judgment of the High Court was clearly wrong and is liable to be set aside. | 1[ds]It may be noted at the outset that no question, has been raised in regard to the vires of the 1950 Act, which extended inter alia the 1948 Act to the areas merged in the absorbing Province of Orissa. That being so, S. 7 (h) of the 1950 Act in terms would apply to the appellants before us and they would not be liable to ejectmentThe lands in question were declared to be the private properties of the respondent and he was guaranteed under Art. 3 of the said Agreement full ownership, use and enjoyment thereof. Article 363 only ousted the jurisdiction of the courts in regard to the disputes arising out of any provisions of the Agreement entered into by the Rulers of Indian States with the Government of India. The dispute which had arisen between the appellants and the respondent in the present case could hardly be said to be a dispute arising out of any provisions of the said Agreement17. It is clear therefore that neither Art. 363 nor Art. 362 of the Constitution would avail the respondent and the courts would have jurisdiction to entertain the dispute between the appellants and him which arose out of his action in ejecting them from his private lands. The provisions of the said Agreement only protected his rights in the properties declared to be his private properties so that they could not be claimed at any time thereafter as State properties. The 1948 Act did not dispute his ownership over the same but proceeded on the basis that they were his private properties and sought to impose upon him certain obligations in order to protect the rights of the tenants whom he had inducted therein and there was no infringement of the guarantee or assurances which had been given to him under Art. 3 of the said Agreement. It could not also be urged that by imposing reasonable restrictions in the interests of the tenants on his right to acquire, hold and dispose of properties under Cl. 5 of Art. 19 of the Constitution, the 1948 Act affected his rights of full ownership, use and enjoyment of those properties. If anything was done by extending the 1948 Act to the merged State of Khandapara, it was done in the protection of the tenants who were inducted by him and such restrictions did not affect the full ownership, use and enjoyment of his private properties, any more than they did in the case of other owners of lands. As a matter of fact, under the terms of the 1950 Act, which extended the 1948 Act to the merged State of Khandapara, he was entitled to the payment by the tenants of such fair and equitable rent as may be fixed by any competent authority appointed in this behalf by the Revenue Commissioner or the Commissioner of the Northern Division as the case may be and so long as the tenants continued to pay such rent he was no worse off than were other proprietors of lands. The tenants would no doubt acquire rights of occupancy in respect of such lands but the acquisition of the occupancy rights by the tenants would not be calculated to affect his right to full ownership, use and enjoyment of his lands, because he would be entitled to eject the occupancy tenants also if the tenants used the lands comprised in their holdings in any manner which rendered them unfit for the purposes of the tenancy or committed a breach of conditions consistent with the provisions of the tenancy laws in force in the merged State concerned on breach whereof they were under the terms of the contract between themselves and the landlord liable to be ejected.As already stated these restrictions were for the protection of the tenants who were inducted on the lands by the erstwhile Rulers themselves and by the extension of the 1948 Act to the merged State Khandapara, the respondent was treated in the same manner as any other citizen of the Union.If at all there was any infringement of his rights to full ownership, use and enjoyment of his properties that was also in accordance with the provisions of the Constitution itself and whatever may have been the guarantee or assurance given to him under the terms of the said Agreement, it could not be absolute but would only by co-extensive with the right to acquire, hold and dispose of property which is guaranteed to all the citizens of the Union under Art. 19 (1) (f) of the Constitution. These contentions of the respondent therefore are of no availIt is, however, to be observed that no such contention was ever taken in the proceedings before the Revenue Officer or before the High Court and it was urged for the first time in the course of the arguments before us.The question in one of fact, whether any such special laws or customs were prevailing in the merged State of Khandapara, and we cannot allow the respondent to urge this contention for the first time before usHere also, the respondent is confronted with this difficulty that these questions were not mooted either before the Revenue Officer or the High Court in the manner in which it was sought to be done before us. It was all along assumed that the appellants had been the tenants of the respondent but had been ejected by him in the year 1951 and other tenants were inducted in their place some time in 1952. The lands in question were also assumed to have been recognised as the private lands of the respondent by the Government without making any distinction between the Dominion Government and the Provincial Government as was sought to be done before us. Reliance was mainly placed by the respondent in the High Court on his plea that the jurisdiction of the Revenue Officer was barred under Art. 363 of the Constitution and it was nowhere urged that the appellant were not the tenants and he was not the landlord within the terms of the definitions contained in the 1948 Act or that in the absence of recognition of these private lands of his as such by the Provincial Government, the condition precedent to the application of S. 7 (h) of the 1950 Act was not fulfilled and that section has no application at all to these lands.The determination of these questions also requires evidence in regard to the same and it would not be legitimate to allow these questions to be agitated for the first time at this late stageWhatever may have been the definitions of the terms landlord and tenant in S. 2 (c) and (g) of the 1948 Act, this definition contained in the explanation to S. 7 (a) of the 1950 Act makes the appellants the tenants and the respondent a landlord in regard to the lands in question. This statutory extension of the definition of the terms landlord and tenant therefore is sufficient, in our opinion, to repel the last contention urged on behalf of the respondent before usIf both these Acts are thus read together, as they should be, there is no inconsistency between the provisions of these Acts and it is clear that the provisions of sub-ss. (a) and (h) of S. 7 of the 1950 Act which applied to the dispute which arose between the appellants and the respondent read together with the relevant provisions in regard to the procedure, penalties, etc., contained in the 1948 Act did give jurisdiction to the Revenue Officer to entertain the dispute between the parties. This contention of the respondent also therefore fails25. We are therefore, of opinion that the judgment of the High Court was clearly wrong and is liable to be set aside. | 1 | 4,723 | 1,379 | ### Instruction:
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produce irrespective of the yield from the land, or (iv) produce or its estimated value partly in any one of the ways described above and partly in another; but shall not include ................ 21. It is urged that the tenants who were inducted by the respondent on these lands did not fulfil the terms of this definition and they were therefore not tenants and, as a logical corollary to that, the respondent could not be a landlord qua them. It is also contended that even though these lands were declared to be the private properties of the Respondent under the decision of the Adviser for the Orissa States, that was a recognition of the lands as such by the Dominion Government and not by the Provincial Government; which recognition was a condition precedent of the application of S. 7 (h) of the 1950 Act to these lands. Here also, the respondent is confronted with this difficulty that these questions were not mooted either before the Revenue Officer or the High Court in the manner in which it was sought to be done before us. It was all along assumed that the appellants had been the tenants of the respondent but had been ejected by him in the year 1951 and other tenants were inducted in their place some time in 1952. The lands in question were also assumed to have been recognised as the private lands of the respondent by the Government without making any distinction between the Dominion Government and the Provincial Government as was sought to be done before us. Reliance was mainly placed by the respondent in the High Court on his plea that the jurisdiction of the Revenue Officer was barred under Art. 363 of the Constitution and it was nowhere urged that the appellant were not the tenants and he was not the landlord within the terms of the definitions contained in the 1948 Act or that in the absence of recognition of these private lands of his as such by the Provincial Government, the condition precedent to the application of S. 7 (h) of the 1950 Act was not fulfilled and that section has no application at all to these lands.The determination of these questions also requires evidence in regard to the same and it would not be legitimate to allow these questions to be agitated for the first time at this late stage. 22. The matter is, however, concluded by the provisions of S. 7 (a) of the 1950 Act. That section enacts a statutory extension of the definition of the terms landlord and tenant and provides that the expression landlord shall mean a person immediately under whom a tenant holds land, and the expression tenant shall mean a person who holds land under another person and is or, but for a special contract, would be liable to pay rent for that land to that person. Whatever may have been the definitions of the terms landlord and tenant in S. 2 (c) and (g) of the 1948 Act, this definition contained in the explanation to S. 7 (a) of the 1950 Act makes the appellants the tenants and the respondent a landlord in regard to the lands in question. This statutory extension of the definition of the terms landlord and tenant therefore is sufficient, in our opinion, to repel the last contention urged on behalf of the respondent before us. 23. The respondent further contends that in spite of S. 7 of the 1950 Act, enacting that all suits and proceedings between landlord and tenant as such shall be instituted and tried in revenue courts, the provisions of the 1948 Act in regard to the hierarchy of revenue courts and the procedure and the penalties provided therein are not attracted to the merged State of Khandapara. The contention is that the provisions contained in the 1950 Act are special provisions which eliminate the operation of the general provisions contained in the 1948 Act, and in so far as nothing more is stated in regard to how the revenue courts are to act in the matter of the institution and trial of all suits and proceedings between landlord and tenant, there is a lacuna and the revenue courts as envisaged by the 1948 Act, have no jurisdiction to entertain the proceedings in question. 24. The simple answer to this contention of the respondent is that both these acts have to be read together. The 1950 Act is an act to extend certain acts and regulations to certain areas administered as part of the Province of Orissa. The merged State of Khandapara is one of such areas. By virtue of S. 4 of this Act the 1948 Act is inter alia extended to the merged State of Khandapara and the provisions thereof are made applicable in that area. The other sections of this Act enact further provisions which are applicable to these merged States including the merged State of Khandapara and S. 7, in particular, enacts the modification of the tenancy laws in force in those merged states. These provisions are therefore supplementary to those contained in the 1948 Act, and it follows that not only the provisions of the 1948 Act but also the provisions of the 1950 Act are applicable to the merged State of Khandapara. If both these Acts are thus read together, as they should be, there is no inconsistency between the provisions of these Acts and it is clear that the provisions of sub-ss. (a) and (h) of S. 7 of the 1950 Act which applied to the dispute which arose between the appellants and the respondent read together with the relevant provisions in regard to the procedure, penalties, etc., contained in the 1948 Act did give jurisdiction to the Revenue Officer to entertain the dispute between the parties. This contention of the respondent also therefore fails. 25. We are therefore, of opinion that the judgment of the High Court was clearly wrong and is liable to be set aside.
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assurances which had been given to him under Art. 3 of the said Agreement. It could not also be urged that by imposing reasonable restrictions in the interests of the tenants on his right to acquire, hold and dispose of properties under Cl. 5 of Art. 19 of the Constitution, the 1948 Act affected his rights of full ownership, use and enjoyment of those properties. If anything was done by extending the 1948 Act to the merged State of Khandapara, it was done in the protection of the tenants who were inducted by him and such restrictions did not affect the full ownership, use and enjoyment of his private properties, any more than they did in the case of other owners of lands. As a matter of fact, under the terms of the 1950 Act, which extended the 1948 Act to the merged State of Khandapara, he was entitled to the payment by the tenants of such fair and equitable rent as may be fixed by any competent authority appointed in this behalf by the Revenue Commissioner or the Commissioner of the Northern Division as the case may be and so long as the tenants continued to pay such rent he was no worse off than were other proprietors of lands. The tenants would no doubt acquire rights of occupancy in respect of such lands but the acquisition of the occupancy rights by the tenants would not be calculated to affect his right to full ownership, use and enjoyment of his lands, because he would be entitled to eject the occupancy tenants also if the tenants used the lands comprised in their holdings in any manner which rendered them unfit for the purposes of the tenancy or committed a breach of conditions consistent with the provisions of the tenancy laws in force in the merged State concerned on breach whereof they were under the terms of the contract between themselves and the landlord liable to be ejected.As already stated these restrictions were for the protection of the tenants who were inducted on the lands by the erstwhile Rulers themselves and by the extension of the 1948 Act to the merged State Khandapara, the respondent was treated in the same manner as any other citizen of the Union.If at all there was any infringement of his rights to full ownership, use and enjoyment of his properties that was also in accordance with the provisions of the Constitution itself and whatever may have been the guarantee or assurance given to him under the terms of the said Agreement, it could not be absolute but would only by co-extensive with the right to acquire, hold and dispose of property which is guaranteed to all the citizens of the Union under Art. 19 (1) (f) of the Constitution. These contentions of the respondent therefore are of no availIt is, however, to be observed that no such contention was ever taken in the proceedings before the Revenue Officer or before the High Court and it was urged for the first time in the course of the arguments before us.The question in one of fact, whether any such special laws or customs were prevailing in the merged State of Khandapara, and we cannot allow the respondent to urge this contention for the first time before usHere also, the respondent is confronted with this difficulty that these questions were not mooted either before the Revenue Officer or the High Court in the manner in which it was sought to be done before us. It was all along assumed that the appellants had been the tenants of the respondent but had been ejected by him in the year 1951 and other tenants were inducted in their place some time in 1952. The lands in question were also assumed to have been recognised as the private lands of the respondent by the Government without making any distinction between the Dominion Government and the Provincial Government as was sought to be done before us. Reliance was mainly placed by the respondent in the High Court on his plea that the jurisdiction of the Revenue Officer was barred under Art. 363 of the Constitution and it was nowhere urged that the appellant were not the tenants and he was not the landlord within the terms of the definitions contained in the 1948 Act or that in the absence of recognition of these private lands of his as such by the Provincial Government, the condition precedent to the application of S. 7 (h) of the 1950 Act was not fulfilled and that section has no application at all to these lands.The determination of these questions also requires evidence in regard to the same and it would not be legitimate to allow these questions to be agitated for the first time at this late stageWhatever may have been the definitions of the terms landlord and tenant in S. 2 (c) and (g) of the 1948 Act, this definition contained in the explanation to S. 7 (a) of the 1950 Act makes the appellants the tenants and the respondent a landlord in regard to the lands in question. This statutory extension of the definition of the terms landlord and tenant therefore is sufficient, in our opinion, to repel the last contention urged on behalf of the respondent before usIf both these Acts are thus read together, as they should be, there is no inconsistency between the provisions of these Acts and it is clear that the provisions of sub-ss. (a) and (h) of S. 7 of the 1950 Act which applied to the dispute which arose between the appellants and the respondent read together with the relevant provisions in regard to the procedure, penalties, etc., contained in the 1948 Act did give jurisdiction to the Revenue Officer to entertain the dispute between the parties. This contention of the respondent also therefore fails25. We are therefore, of opinion that the judgment of the High Court was clearly wrong and is liable to be set aside.
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Darshan and Ors Vs. State of Uttar Pradesh | for causing the death of Kanti Devi except that the High Court gave benefit of doubt to Harroo and acquitted him. 9. With the assistance of learned Counsel for the parties, we have very carefully gone through the evidence of Ramesh Chandar Singh (P.W. 1) and Babloo (P.W. 2) and other materials on record and we find that the findings recorded by the courts below do not suffer from any infirmity so as to call for an interference by this Court in these appeals. Learned Counsel for the Appellants, however, strenuously urged that the First Information Report which was alleged to have been lodged within half an hour of occurrence was in fact not lodged and the same was ante dated. This contention proceeds on the footing that it was impossible for Ramesh Chander Singh (P.W. 1) to go alone to the police station and lodge the FIR when he admitted that he was afraid of the Appellants. It was next contended that the conduct of Ramesh Chander Singh (P.W. 1) was totally contrary, to a human conduct inasmuch as he instead of attending on the injured Kanti Devi and calling a doctor straight away went to the police station to lodge the FIR. It was also submitted that Ramesh Chander Singh (P.W. 1) did not raise any hue and cry after seeing the firing on Kanti Devi. We do not see any substance in any of these contentions. Ramesh Chander Singh (P.W. 1) in his evidence has testified that he went to the police station straight away and lodged the FIR within half an hour at about 10.30 p.m. His evidence stands corroborated from the FIR itself where date and time has been correctly recorded and was so testified by the Investigating Officer. His going straight away to the police station in our considered view was not at all unnatural. The theory of ante dating the FIR has, therefore, no substance. It was then contended that Dr. Tiwari (C.W. 1) who was on emergency duty claimed to have forwarded a report to the police station but the same was not produced. This again has got no relevance because the police reached the place of incident immediately within short time and the crime was already registered on the complaint of Ramesh Chander Singh (P.W. (sic)). 10. It was then contended on behalf of the Appellants that Ramesh Chander Singh (P.W. 1) at the time of occurrence had a vision in one eye only and other eye was stone blind and if this be so, it was almost difficult for him to identify the assailants when they were climbing up the steps and coming towards the male ward. This submission is devoid of any merit because there was sufficient light in the hospital premises and we see no difficulty whatsoever in identifying the assailants by Ramesh Chander Singh (P.W. 1) with one eye. 11. It was then contended for the Appellants that both the eye witnesses might not have seen the assailants because according the Ramesh Chander Singh (P.W. 1), he was hiding behind the pillar and due to said obstruction, he could not have seen the occurrence. This submission again has no substance because Ramesh Chander Singh (P.W. 1) in his evidence had asserted that he identified the assailants and thereafter he took Babloo (P.W. 2) with him and tried to hide behind the pillar to save their lives. Within minutes thereafter, the Appellants entered the male ward and opened the fire at Kanti Devi. In the facts and circumstances of this case, this submission deserves no further elaborate discussion. 12. It was then contended by learned Counsel for the Appellants that the prosecution had come before the court alleging enmity with the Appellants and if this be so, the Appellants false involvement in the present crime due to enmity cannot be ruled out. From the materials on record, it is quite clear that Appellants did not approve the marriage of Kanti Devi with Naresh Pai and as a result thereof, there were several attempts on the life of Ramesh Chander Singh (P.W. 1) and in fact Mahesh Kumar, the brother of Ramesh Chander Singh was murdered, although the Appellants were acquitted in the said crime. In our considered view, the Appellants were more agitated and were waiting for an opportunity to do away with their sister and supporters of her marriage and accordingly the Appellants accomplish their design on 30th June, 1977. The motive and issue of enmity were rightly held proved in favour of the prosecution. It Was also urged that the conduct of Ramesh Chander Singh (P.W. 1) was unnatural because when assistants were running away, Ramesh Chander Singh did not raise any hue and cry and tried to catch hold of them. This argument needs to just stated and rejected. 13. It was then contended that the prosecution had failed to examine any independent witness who had witnessed the incident in the hospital. It is in these circumstances, an adverse inference must be drawn against the prosecution. This submission again, in our opinion, has no substance. What is required to be considered in the present case is trustworthy and could be accepted safely notwithstanding the fact that they were close relatives. On careful scrutiny of their evidence, we find that their evidence is totally unblemished and suffers from no infirmity. It was also contended that Ramesh Chander Singh (P.W. 1) had no reason to be in the hospital when Kanti Devi, the mother of Babloo was looking after the patient. This submission is again devoid of any merit. 14. It was then contended that the evidence of Dr. Tiwari (C.W. 1) is inconsistent with the evidence of Ramesh Chander Singh (P.W. 1). this has reference to the fact that whether Kanti Devi was lying on the cot at the time of incident or on the floor. This fact is totally insignificant and we see no serious inconsistency which would weaken the substratum of the prosecution case. | 0[ds]9. With the assistance of learned Counsel for the parties, we have very carefully gone through the evidence of Ramesh Chandar Singh (P.W. 1) and Babloo (P.W. 2) and other materials on record and we find that the findings recorded by the courts below do not suffer from any infirmity so as to call for an interference by this Court in these appeals.We do not see any substance in any of these contentions. Ramesh Chander Singh (P.W. 1) in his evidence has testified that he went to the police station straight away and lodged the FIR within half an hour at about 10.30 p.m. His evidence stands corroborated from the FIR itself where date and time has been correctly recorded and was so testified by the Investigating Officer. His going straight away to the police station in our considered view was not at all unnatural. The theory of ante dating the FIR has, therefore, no substance.It was then contended that Dr. Tiwari (C.W. 1) who was on emergency duty claimed to have forwarded a report to the police station but the same was not produced.This again has got no relevance because the police reached the place of incident immediately within short time and the crime was already registered on the complaint of Ramesh Chander Singh (P.W. (sic)).This submission is devoid of any merit because there was sufficient light in the hospital premises and we see no difficulty whatsoever in identifying the assailants by Ramesh Chander Singh (P.W. 1) with one eye.This submission again has no substance because Ramesh Chander Singh (P.W. 1) in his evidence had asserted that he identified the assailants and thereafter he took Babloo (P.W. 2) with him and tried to hide behind the pillar to save their lives. Within minutes thereafter, the Appellants entered the male ward and opened the fire at Kanti Devi. In the facts and circumstances of this case, this submission deserves no further elaborate discussion.From the materials on record, it is quite clear that Appellants did not approve the marriage of Kanti Devi with Naresh Pai and as a result thereof, there were several attempts on the life of Ramesh Chander Singh (P.W. 1) and in fact Mahesh Kumar, the brother of Ramesh Chander Singh was murdered, although the Appellants were acquitted in the said crime. In our considered view, the Appellants were more agitated and were waiting for an opportunity to do away with their sister and supporters of her marriage and accordingly the Appellants accomplish their design on 30th June, 1977. The motive and issue of enmity were rightly held proved in favour of the prosecution. It Was also urged that the conduct of Ramesh Chander Singh (P.W. 1) was unnatural because when assistants were running away, Ramesh Chander Singh did not raise any hue and cry and tried to catch hold of them. This argument needs to just stated and rejected.This submission again, in our opinion, has no substance. What is required to be considered in the present case is trustworthy and could be accepted safely notwithstanding the fact that they were close relatives. On careful scrutiny of their evidence, we find that their evidence is totally unblemished and suffers from no infirmity. It was also contended that Ramesh Chander Singh (P.W. 1) had no reason to be in the hospital when Kanti Devi, the mother of Babloo was looking after the patient. This submission is again devoid of any merit.This fact is totally insignificant and we see no serious inconsistency which would weaken the substratum of the prosecution case. | 0 | 2,261 | 662 | ### 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 causing the death of Kanti Devi except that the High Court gave benefit of doubt to Harroo and acquitted him. 9. With the assistance of learned Counsel for the parties, we have very carefully gone through the evidence of Ramesh Chandar Singh (P.W. 1) and Babloo (P.W. 2) and other materials on record and we find that the findings recorded by the courts below do not suffer from any infirmity so as to call for an interference by this Court in these appeals. Learned Counsel for the Appellants, however, strenuously urged that the First Information Report which was alleged to have been lodged within half an hour of occurrence was in fact not lodged and the same was ante dated. This contention proceeds on the footing that it was impossible for Ramesh Chander Singh (P.W. 1) to go alone to the police station and lodge the FIR when he admitted that he was afraid of the Appellants. It was next contended that the conduct of Ramesh Chander Singh (P.W. 1) was totally contrary, to a human conduct inasmuch as he instead of attending on the injured Kanti Devi and calling a doctor straight away went to the police station to lodge the FIR. It was also submitted that Ramesh Chander Singh (P.W. 1) did not raise any hue and cry after seeing the firing on Kanti Devi. We do not see any substance in any of these contentions. Ramesh Chander Singh (P.W. 1) in his evidence has testified that he went to the police station straight away and lodged the FIR within half an hour at about 10.30 p.m. His evidence stands corroborated from the FIR itself where date and time has been correctly recorded and was so testified by the Investigating Officer. His going straight away to the police station in our considered view was not at all unnatural. The theory of ante dating the FIR has, therefore, no substance. It was then contended that Dr. Tiwari (C.W. 1) who was on emergency duty claimed to have forwarded a report to the police station but the same was not produced. This again has got no relevance because the police reached the place of incident immediately within short time and the crime was already registered on the complaint of Ramesh Chander Singh (P.W. (sic)). 10. It was then contended on behalf of the Appellants that Ramesh Chander Singh (P.W. 1) at the time of occurrence had a vision in one eye only and other eye was stone blind and if this be so, it was almost difficult for him to identify the assailants when they were climbing up the steps and coming towards the male ward. This submission is devoid of any merit because there was sufficient light in the hospital premises and we see no difficulty whatsoever in identifying the assailants by Ramesh Chander Singh (P.W. 1) with one eye. 11. It was then contended for the Appellants that both the eye witnesses might not have seen the assailants because according the Ramesh Chander Singh (P.W. 1), he was hiding behind the pillar and due to said obstruction, he could not have seen the occurrence. This submission again has no substance because Ramesh Chander Singh (P.W. 1) in his evidence had asserted that he identified the assailants and thereafter he took Babloo (P.W. 2) with him and tried to hide behind the pillar to save their lives. Within minutes thereafter, the Appellants entered the male ward and opened the fire at Kanti Devi. In the facts and circumstances of this case, this submission deserves no further elaborate discussion. 12. It was then contended by learned Counsel for the Appellants that the prosecution had come before the court alleging enmity with the Appellants and if this be so, the Appellants false involvement in the present crime due to enmity cannot be ruled out. From the materials on record, it is quite clear that Appellants did not approve the marriage of Kanti Devi with Naresh Pai and as a result thereof, there were several attempts on the life of Ramesh Chander Singh (P.W. 1) and in fact Mahesh Kumar, the brother of Ramesh Chander Singh was murdered, although the Appellants were acquitted in the said crime. In our considered view, the Appellants were more agitated and were waiting for an opportunity to do away with their sister and supporters of her marriage and accordingly the Appellants accomplish their design on 30th June, 1977. The motive and issue of enmity were rightly held proved in favour of the prosecution. It Was also urged that the conduct of Ramesh Chander Singh (P.W. 1) was unnatural because when assistants were running away, Ramesh Chander Singh did not raise any hue and cry and tried to catch hold of them. This argument needs to just stated and rejected. 13. It was then contended that the prosecution had failed to examine any independent witness who had witnessed the incident in the hospital. It is in these circumstances, an adverse inference must be drawn against the prosecution. This submission again, in our opinion, has no substance. What is required to be considered in the present case is trustworthy and could be accepted safely notwithstanding the fact that they were close relatives. On careful scrutiny of their evidence, we find that their evidence is totally unblemished and suffers from no infirmity. It was also contended that Ramesh Chander Singh (P.W. 1) had no reason to be in the hospital when Kanti Devi, the mother of Babloo was looking after the patient. This submission is again devoid of any merit. 14. It was then contended that the evidence of Dr. Tiwari (C.W. 1) is inconsistent with the evidence of Ramesh Chander Singh (P.W. 1). this has reference to the fact that whether Kanti Devi was lying on the cot at the time of incident or on the floor. This fact is totally insignificant and we see no serious inconsistency which would weaken the substratum of the prosecution case.
### Response:
0
### Explanation:
9. With the assistance of learned Counsel for the parties, we have very carefully gone through the evidence of Ramesh Chandar Singh (P.W. 1) and Babloo (P.W. 2) and other materials on record and we find that the findings recorded by the courts below do not suffer from any infirmity so as to call for an interference by this Court in these appeals.We do not see any substance in any of these contentions. Ramesh Chander Singh (P.W. 1) in his evidence has testified that he went to the police station straight away and lodged the FIR within half an hour at about 10.30 p.m. His evidence stands corroborated from the FIR itself where date and time has been correctly recorded and was so testified by the Investigating Officer. His going straight away to the police station in our considered view was not at all unnatural. The theory of ante dating the FIR has, therefore, no substance.It was then contended that Dr. Tiwari (C.W. 1) who was on emergency duty claimed to have forwarded a report to the police station but the same was not produced.This again has got no relevance because the police reached the place of incident immediately within short time and the crime was already registered on the complaint of Ramesh Chander Singh (P.W. (sic)).This submission is devoid of any merit because there was sufficient light in the hospital premises and we see no difficulty whatsoever in identifying the assailants by Ramesh Chander Singh (P.W. 1) with one eye.This submission again has no substance because Ramesh Chander Singh (P.W. 1) in his evidence had asserted that he identified the assailants and thereafter he took Babloo (P.W. 2) with him and tried to hide behind the pillar to save their lives. Within minutes thereafter, the Appellants entered the male ward and opened the fire at Kanti Devi. In the facts and circumstances of this case, this submission deserves no further elaborate discussion.From the materials on record, it is quite clear that Appellants did not approve the marriage of Kanti Devi with Naresh Pai and as a result thereof, there were several attempts on the life of Ramesh Chander Singh (P.W. 1) and in fact Mahesh Kumar, the brother of Ramesh Chander Singh was murdered, although the Appellants were acquitted in the said crime. In our considered view, the Appellants were more agitated and were waiting for an opportunity to do away with their sister and supporters of her marriage and accordingly the Appellants accomplish their design on 30th June, 1977. The motive and issue of enmity were rightly held proved in favour of the prosecution. It Was also urged that the conduct of Ramesh Chander Singh (P.W. 1) was unnatural because when assistants were running away, Ramesh Chander Singh did not raise any hue and cry and tried to catch hold of them. This argument needs to just stated and rejected.This submission again, in our opinion, has no substance. What is required to be considered in the present case is trustworthy and could be accepted safely notwithstanding the fact that they were close relatives. On careful scrutiny of their evidence, we find that their evidence is totally unblemished and suffers from no infirmity. It was also contended that Ramesh Chander Singh (P.W. 1) had no reason to be in the hospital when Kanti Devi, the mother of Babloo was looking after the patient. This submission is again devoid of any merit.This fact is totally insignificant and we see no serious inconsistency which would weaken the substratum of the prosecution case.
|
Lal Mohammad Vs. Indian Railway Construction Co.Ltd.&Ors | Section 25-FF deals with the case of transfer of undertakings. The term undertaking is not defined in the Act. The relevant provisions use the term industry. Undertaking is a concept narrower than industry. An undertaking may be a part of the whole, that is, the industry. It carries a restricted meaning. (See Bangalore Water Supply & Sewerage Board v. A. Rajappa - (1978) 2 SCC 213 and Hindustan Steel Ltd. v. Workmen - (1973) 3 SCC 564) With this amendment it is clear that closure of a project or scheme by the State Government would be covered by closing down of an undertaking within the meaning of Section 25-FFF. The workman would therefore be entitled to notice and compensation in accordance with the provisions of Section 25-F though the right of the employer to close the undertaking for any reason whatsoever cannot be question. Compliance with Section 25-F shall be subject to such relaxations as are provided by Section 25-FFF. The undertaking having been closed on account of unavoidable circumstances beyond the control of the employer i.e. by its own force as it was designed and destined to have a limited life only, the compensation payable to the workman under clause (b) of Section 25-F shall not exceed his average pay for three months. This is so because of failure on the part of the respondent employer to allege and prove that the termination of employment fell within sub-clause (bb) of clause (oo) of Section 2 of the Act. Therefore, in view of the legislative history as mentioned above, it clearly stipulates that Section 25-FFF was in fact incorporated in order to give benefit to the workers, where an undertaking is closed because of completion of the project or on account of transfer. Therefore, the contention of Mr.Rao learned counsel cannot be accepted. In this connection our attention was also invited to a decision of this Court in A. Umarani vs. Registrar, Cooperative Societies & Ors. reported in (2004) 7 SCC 112 wherein it was held that illegal appointment cannot be regularized. Learned counsel has invited our attention to a decision of this Court in Hindustan Steel Works Construction Ltd. & Ors. vs. Hindustan Steel Works Construction Ltd. Employees Union, Hyderabad & Anr. reported in (1995) 3 SCC 474 wherein when one of the unit of the Hindustan Steel Works Construction Ltd. was closed down and similar relief was sought by the employees of the Hindustan undertaking and in that context this Court observed that on closure of unit at Hyderabad the workmen were not entitled as a matter of right to be absorbed, and it was held: The question whether the units at Hyderabad are independent establishments or parts of a larger establishment is not a pure question of fact. The tests laid down in this behalf in the decisions of the Supreme Court need not all be satisfied in every case. One has also to look to the nature and character of the undertaking while deciding the question. The tests evolved are merely to serve as guidelines. The appellant is a government company wholly owned and controlled by the Government of India. Its job is to undertake construction works both in India and abroad. The construction works are not permanent works in the sense that as soon as the construction work is over, the establishment comes to an end at that place. In such a case, functional integrality assumes significance. The nature of the construction work may also differ from work to work or place to place, as the case may be. It is not even suggested by the respondent-Union that there is any functional integrality between the several units or several construction works undertaken by the appellant. It is not suggested that closure of one leads to the closure of others. There is no proximity between the several units/works undertaken by the appellant; they are spread all over India, indeed all over the world. It would thus appear that each of the works or construction projects undertaken by the appellant represent distinct establishments and did not constitute units of a single establishment. The mere fact that Management reserved to itself the liberty of transferring the employees from one place to another did not mean that all the units of the appellant constituted one single establishment. In the case of a construction company like the appellant which undertakes construction works wherever awarded, does that work and winds up its establishment there and particularly where a number of local persons have to be and are appointed for the purpose of a particular work, mere unity of ownership, management and control are not of much significance. Having regard to the facts and circumstances of this case and the material on record, the conclusion is inevitable that the units at Hyderabad were distinct establishments. Once this is so, workmen of the said units had no right to demand absorption in other units on the Hyderabad units completing their job. Therefore, this case is nearer to our case in hand that once this project is completed then it is not incumbent on the company to necessarily employ these persons at other projects in any other part of the country. Our attention was also invited to a decision of this Court in MD. U.P. Land Development Corporation & Anr. vs. Amar Singh & ors. reported in (2003) 5 SCC 388 wherein it has been held that employees working under a scheme/project have no vested right so as to claim regularisation of their services with regular pay scales. It was observed that when the scheme/project comes to an end, the services of the employees working the project also come to an end. Learned counsel has invited our attention to a decision of this Court in Mahendra L.Jain and Ors. vs. Indore Development Authority & Ors. reported in (2005) 1 SCC 639 . This was a case of regularization of illegal appointments. This has no relevance so far as our case in hand is concerned. | 1[ds]the first legal question as to whether Section 25-N of the Act is applicable to dispute of such nature is concerned that no more remains to be res integra as it has been conclusively held by this Court in aforesaid judgment that Section 25-N is applicable that means Chapter V-B of the Act is applicable to this disputeSo far this question is concerned the Full Bench answered with reference to various communications that the closure was effected in 1998 and an intimation was sent to all the respective contracting parties i.e. NTPC, NCL, PCL and UPSEB. In this connection reference has been made to the completion certificate issued by the National Thermal Power Corporation Ltd. on 29 March, 2000 certifying that the projects referred to had been completed prior to March 1998 and handed over to NTPC. Another certificate was issued by the National thermal Power corporation Ltd. dated 30.3.2000 certifying that the work stands completed. The said Corporation issued certificate on 13 January, 1999 that the projects stood completed much before the date of issue of the notice in question. Another certificate was issued by the Superintending Engineer, U.P. State Electricity Board on 29 March, 2000 and 2.9.1999 about the completion of the work. Similar certificate was issued by the Northern Coal Field Ltd. Jayant Project on 29 March, 2000 certifying the same thing. The entire project conglomeration as a whole was closed down w.e.f. 6.2.1998 after issuance of the notification through newspaper and notice board. The concerned Labour Commissioner and Regional Labour Commissioner were duly informed about the closure. They were informed vide communication dated 4.2.1998. A notice of the closure was also published in the daily newspapers Dainik Jagran and Rashtriya Sahara. It is also pointed out that a small fraction of work remained to be completed, as it was abandoned due to non-availability of site on account of encroachments by members of public which was certified by the UPSEB that it was beyond their control and for that work some 20 Head of Telecom Engineering and Supervisory Staff was retained and they were agreed to reimburse the cost towards supervisory staff of Telecom and Engineering discipline, that the work was undertaken after 14 months of the date of closure of Rihand Nagar Project as separate work and this work was completed on September 2, 1999 and a certificate to this effect was also produced. It is also made clear that for completion of this left over work only people from the Telecom and Engineering discipline were engaged and the petitioners do not fall in any of that category. Therefore, on this question the Full Bench concluded that the closure was effected much before the issuance of the notices of 1998. We are satisfied on the basis of finding given by the Full Bench that the work stood completed in 1998 and a perusal of all these certificates leaves no manner of doubt that work was completed much before the notices were issued in March, 1998Other appointment letters are on the same pattern. Therefore, no useful purpose will be served by reproducing all of them. On the basis of these letters learned counsel submitted that a perusal of these appointment orders clearly shows that appointments were made by the Company and they were directed to report to the Project Officer of the CompanyWe have bestowed our best of consideration to the rival contentions of the parties. We regret to say that we have failed to be persuaded by the submissions of the learned counsel for the appellants to infer that the appellants were the employees of the Company and not of Project. In the appointment orders it was mentioned that appointment was adhoc and they were directed to join the Project. Therefore, these conditions, which have been stressed by the learned counsel does not lead us to the inference that incumbents were employees of the company. Employment to the company is regulated by the service rules and none of the posts which has been mentioned against these persons is in the list annexed to the Schedule appended to the Rules. That apart an opportunity was given to the petitioners to appear for regular selection in the company and they failed to avail that opportunity. Therefore, from these facts, it is more than apparent that the petitioners were not employees of the company but they were employees of the Project. Since it is a public sector company and it is governed by its own rules and those rules clearly contemplate a method for recruitment into service and that opportunity was given to the incumbents for being regularly recruited in the company but they failed to avail the same. Simply because the company had said that these persons will not be permitted to take any other employment or business without prior permission, their group insurance was made and were placed in the pay scale of the company that does not mean that they will be deemed to be employees of the Company. Simply because they adopted the basis for giving them the benefit of the Company as was being given to other employees who have been duly recruited in accordance with the rules, by such conferment of benefit will not be deemed to be employees of the Company. The regular recruitment Rules have been framed with the approval of the Government, as the company is a public sector undertaking. These rules may not be given a status of statutory rules but those rules are binding on the company and company cannot take departure from acting under the rules, for all purposes, they are almost analogous to the statutory rules. These rules have a legal sanctity as they have been framed in terms of memorandum and articles of association with the approval of the Government. Therefore, they have a binding force for the company and company cannot make a departure for recruitment except than following these rules. As per the provisions pointed out above, there is methodology provided under the rules and that was not followed in the present case. They were appointed being the local hand as workmen were required for completion of the project and therefore they were appointed for the project and as soon as the project was over they cannot claim as a matter of right to be permanent employees or to be regularized in the company. A distinction has to be borne in mind who is employee of the company and who is employee of the Project. The services of project employees come to an end as soon as the project is over and they cannot be given permanent status. Since they were employees of the project their services have to be terminated after completion of the project. In this connection the Full Bench has considered the necessary provisions of the rules and after a detailed discussion on the matter has rightly come to the conclusion that they are employees of the project and they are not the employees of the company. There is no question of violation of Articles 14,16 & 21 of the Constitution of India in the matter as they were employees of the project and at the end of the project they have taken their benefits as are admissible in accordance with the Industrial Disputes Act. Therefore, there is no violation of Articles 14, 16 & 21 of the Constitution of India. So far as question with regard to Article 12 is concerned, the same is not relevant in this matter because the whole service conditions of the employees are governed by the Industrial Disputes Act. Therefore, it is purely an academic question whether company is a State within the meaning of Article 12 or notSince this was a project for construction of some railway lines, therefore, the rigour of sub-section (1) for seeking a permission of Government is not required in the present case. Once the project is completed the service of the incumbent comes to an end. But the legislature in its wisdom has provided relief for such class of workmen on completion of project under section 25-FFF. Sub-section (2) of Section 25-FFF provides compensation for such class of workmenAccording to sub-section (2) when such construction work is closed down and on completion of work within two years from the date on which the undertaking had been set up, the workman employed therein shall not be entitled to compensation under clause (b) of Section 25F, but if the construction work is not completed within two years he shall be entitled to notice and compensation under that section for every completed year of continuous service or any part thereof in excess of six monthsWe regret to say that we cannot agree with the submission of the learned counsel for the respondent company. The legislature in its wisdom has especially provided on closure of such projects, a special benefit to such workers under sub-section (2) of Section 25-FFF in the event the company has completed construction after more than two years, the workman will be entitled to notice and compensation under that section 25-F for every completed year of continuous service or any part thereof in excess of six months. This is the legislative mandate and the intention of the legislature is more than apparent. Since this is legislative mandate and we cannot sit over the matter to decide that whether the position of the company, which closed down the undertaking with the permission and company which is closed down because of the completion of the project should not be worse. Since it is a legislative mandate the company has to comply with those provisions. Therefore, these incumbents have already been given notice and if the compensation has not been determined in terms of Section 25-F then that should be calculated and paid to the workers if not paid so far. They have been directed to collect their dues from the office. If that amount has not been collected by them then it will be open to them to collect same or any shortfall that will be made good by the company. So far as the termination of the incumbents is concerned after completion of the project they have no right to continue. They are only entitled to notice and compensation to be determined under Section 25-F. Shortfall of period of notice or compensation will not render termination bad on that countTherefore, in view of the legislative history as mentioned above, it clearly stipulates that Section 25-FFF was in fact incorporated in order to give benefit to the workers, where an undertaking is closed because of completion of the project or on account of transfer. Therefore, the contention of Mr.Rao learned counsel cannot be acceptedTherefore, this case is nearer to our case in hand that once this project is completed then it is not incumbent on the company to necessarily employ these persons at other projects in any other part of the countryThis was a case of regularization of illegal appointments. This has no relevance so far as our case in hand is concerned. | 1 | 9,896 | 1,962 | ### 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:
Section 25-FF deals with the case of transfer of undertakings. The term undertaking is not defined in the Act. The relevant provisions use the term industry. Undertaking is a concept narrower than industry. An undertaking may be a part of the whole, that is, the industry. It carries a restricted meaning. (See Bangalore Water Supply & Sewerage Board v. A. Rajappa - (1978) 2 SCC 213 and Hindustan Steel Ltd. v. Workmen - (1973) 3 SCC 564) With this amendment it is clear that closure of a project or scheme by the State Government would be covered by closing down of an undertaking within the meaning of Section 25-FFF. The workman would therefore be entitled to notice and compensation in accordance with the provisions of Section 25-F though the right of the employer to close the undertaking for any reason whatsoever cannot be question. Compliance with Section 25-F shall be subject to such relaxations as are provided by Section 25-FFF. The undertaking having been closed on account of unavoidable circumstances beyond the control of the employer i.e. by its own force as it was designed and destined to have a limited life only, the compensation payable to the workman under clause (b) of Section 25-F shall not exceed his average pay for three months. This is so because of failure on the part of the respondent employer to allege and prove that the termination of employment fell within sub-clause (bb) of clause (oo) of Section 2 of the Act. Therefore, in view of the legislative history as mentioned above, it clearly stipulates that Section 25-FFF was in fact incorporated in order to give benefit to the workers, where an undertaking is closed because of completion of the project or on account of transfer. Therefore, the contention of Mr.Rao learned counsel cannot be accepted. In this connection our attention was also invited to a decision of this Court in A. Umarani vs. Registrar, Cooperative Societies & Ors. reported in (2004) 7 SCC 112 wherein it was held that illegal appointment cannot be regularized. Learned counsel has invited our attention to a decision of this Court in Hindustan Steel Works Construction Ltd. & Ors. vs. Hindustan Steel Works Construction Ltd. Employees Union, Hyderabad & Anr. reported in (1995) 3 SCC 474 wherein when one of the unit of the Hindustan Steel Works Construction Ltd. was closed down and similar relief was sought by the employees of the Hindustan undertaking and in that context this Court observed that on closure of unit at Hyderabad the workmen were not entitled as a matter of right to be absorbed, and it was held: The question whether the units at Hyderabad are independent establishments or parts of a larger establishment is not a pure question of fact. The tests laid down in this behalf in the decisions of the Supreme Court need not all be satisfied in every case. One has also to look to the nature and character of the undertaking while deciding the question. The tests evolved are merely to serve as guidelines. The appellant is a government company wholly owned and controlled by the Government of India. Its job is to undertake construction works both in India and abroad. The construction works are not permanent works in the sense that as soon as the construction work is over, the establishment comes to an end at that place. In such a case, functional integrality assumes significance. The nature of the construction work may also differ from work to work or place to place, as the case may be. It is not even suggested by the respondent-Union that there is any functional integrality between the several units or several construction works undertaken by the appellant. It is not suggested that closure of one leads to the closure of others. There is no proximity between the several units/works undertaken by the appellant; they are spread all over India, indeed all over the world. It would thus appear that each of the works or construction projects undertaken by the appellant represent distinct establishments and did not constitute units of a single establishment. The mere fact that Management reserved to itself the liberty of transferring the employees from one place to another did not mean that all the units of the appellant constituted one single establishment. In the case of a construction company like the appellant which undertakes construction works wherever awarded, does that work and winds up its establishment there and particularly where a number of local persons have to be and are appointed for the purpose of a particular work, mere unity of ownership, management and control are not of much significance. Having regard to the facts and circumstances of this case and the material on record, the conclusion is inevitable that the units at Hyderabad were distinct establishments. Once this is so, workmen of the said units had no right to demand absorption in other units on the Hyderabad units completing their job. Therefore, this case is nearer to our case in hand that once this project is completed then it is not incumbent on the company to necessarily employ these persons at other projects in any other part of the country. Our attention was also invited to a decision of this Court in MD. U.P. Land Development Corporation & Anr. vs. Amar Singh & ors. reported in (2003) 5 SCC 388 wherein it has been held that employees working under a scheme/project have no vested right so as to claim regularisation of their services with regular pay scales. It was observed that when the scheme/project comes to an end, the services of the employees working the project also come to an end. Learned counsel has invited our attention to a decision of this Court in Mahendra L.Jain and Ors. vs. Indore Development Authority & Ors. reported in (2005) 1 SCC 639 . This was a case of regularization of illegal appointments. This has no relevance so far as our case in hand is concerned.
### Response:
1
### Explanation:
benefit of the Company as was being given to other employees who have been duly recruited in accordance with the rules, by such conferment of benefit will not be deemed to be employees of the Company. The regular recruitment Rules have been framed with the approval of the Government, as the company is a public sector undertaking. These rules may not be given a status of statutory rules but those rules are binding on the company and company cannot take departure from acting under the rules, for all purposes, they are almost analogous to the statutory rules. These rules have a legal sanctity as they have been framed in terms of memorandum and articles of association with the approval of the Government. Therefore, they have a binding force for the company and company cannot make a departure for recruitment except than following these rules. As per the provisions pointed out above, there is methodology provided under the rules and that was not followed in the present case. They were appointed being the local hand as workmen were required for completion of the project and therefore they were appointed for the project and as soon as the project was over they cannot claim as a matter of right to be permanent employees or to be regularized in the company. A distinction has to be borne in mind who is employee of the company and who is employee of the Project. The services of project employees come to an end as soon as the project is over and they cannot be given permanent status. Since they were employees of the project their services have to be terminated after completion of the project. In this connection the Full Bench has considered the necessary provisions of the rules and after a detailed discussion on the matter has rightly come to the conclusion that they are employees of the project and they are not the employees of the company. There is no question of violation of Articles 14,16 & 21 of the Constitution of India in the matter as they were employees of the project and at the end of the project they have taken their benefits as are admissible in accordance with the Industrial Disputes Act. Therefore, there is no violation of Articles 14, 16 & 21 of the Constitution of India. So far as question with regard to Article 12 is concerned, the same is not relevant in this matter because the whole service conditions of the employees are governed by the Industrial Disputes Act. Therefore, it is purely an academic question whether company is a State within the meaning of Article 12 or notSince this was a project for construction of some railway lines, therefore, the rigour of sub-section (1) for seeking a permission of Government is not required in the present case. Once the project is completed the service of the incumbent comes to an end. But the legislature in its wisdom has provided relief for such class of workmen on completion of project under section 25-FFF. Sub-section (2) of Section 25-FFF provides compensation for such class of workmenAccording to sub-section (2) when such construction work is closed down and on completion of work within two years from the date on which the undertaking had been set up, the workman employed therein shall not be entitled to compensation under clause (b) of Section 25F, but if the construction work is not completed within two years he shall be entitled to notice and compensation under that section for every completed year of continuous service or any part thereof in excess of six monthsWe regret to say that we cannot agree with the submission of the learned counsel for the respondent company. The legislature in its wisdom has especially provided on closure of such projects, a special benefit to such workers under sub-section (2) of Section 25-FFF in the event the company has completed construction after more than two years, the workman will be entitled to notice and compensation under that section 25-F for every completed year of continuous service or any part thereof in excess of six months. This is the legislative mandate and the intention of the legislature is more than apparent. Since this is legislative mandate and we cannot sit over the matter to decide that whether the position of the company, which closed down the undertaking with the permission and company which is closed down because of the completion of the project should not be worse. Since it is a legislative mandate the company has to comply with those provisions. Therefore, these incumbents have already been given notice and if the compensation has not been determined in terms of Section 25-F then that should be calculated and paid to the workers if not paid so far. They have been directed to collect their dues from the office. If that amount has not been collected by them then it will be open to them to collect same or any shortfall that will be made good by the company. So far as the termination of the incumbents is concerned after completion of the project they have no right to continue. They are only entitled to notice and compensation to be determined under Section 25-F. Shortfall of period of notice or compensation will not render termination bad on that countTherefore, in view of the legislative history as mentioned above, it clearly stipulates that Section 25-FFF was in fact incorporated in order to give benefit to the workers, where an undertaking is closed because of completion of the project or on account of transfer. Therefore, the contention of Mr.Rao learned counsel cannot be acceptedTherefore, this case is nearer to our case in hand that once this project is completed then it is not incumbent on the company to necessarily employ these persons at other projects in any other part of the countryThis was a case of regularization of illegal appointments. This has no relevance so far as our case in hand is concerned.
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Y.B. Patil And Ors Vs. Y.L. Patil | KHANNA, J.1. This is an appeal by special leave against the judgment of the Mysore High Court whereby the High Court dismissed petition under articles 226 and 227 filed by the appellants to challenge the order dated September 12, 1967 of the Mysore Revenue Appellate Tribunal (hereinafter referred to as the Tribunal).2. The brief facts giving rise to this appeal are that the first resdent applied on April 22, 1959 to the Assistant Commissioner Bagalkot for the restoration of the Patilki/watan/lands survey Nos. 32/2, 54/2, and 49/2 under sections 11, 11A and 12 of the Bombay Hereditary Officers Act (hereinafter referred to as the Act). Possession of those land s was sought on the ground that the appellants, who were strangers, had taken possession of the lands. The Assistant Commissioner, as per order dated August 11, 1960, accepted that application and directed that the possession of the lands be restored to the respondents. Appeal filed by the appellants against that order was dismissed by the Deputy Commissioner as per order dated January 24, 1961. The appellantas then went up in revision before the Tribunal. The Tribunal as per order dated May 5, 1962 accepted the revision petition and held that the appellants were not strangers to the watan. In arriving as this conclusion, the Tribunal held disagreeing with the Assistant Commissioner and the Deputy Commissioner that the watan had been acquired by Basangouda I. The respondents challenged the order of the Tribunal by means of a writ petition. The Writ petition filed by the respondents was accepted by the Mysore High Court as per judgment dated December 18, 1964, and it was held that it was not open to the Tribunal to reopen and set aside finding s of fact in a revision petition. The case was accordingly remitted to the Tribunal for fresh decision in the light of the observations of the High Court.When the matter came up before the Tribunal after the above judgment of the High Court, the Tribunal as per order dated September 12, 1967 upheld the findings of the Assistant Commissioner and the Deputy Commissioner that the watan had been acquired by Basangouda II and not by Basangouda I. It may be stated that Basangouda I was the grandfather of Basangouda II and that unless it be shown that the watan had been acquired by Basangouda I, the appellant would have to be held strangers qua the lands in dispute. The Tribunal accordingly dismissed the revision petition which had been filed by the appellants. The appellants thereafter filed petition under articles 226 and 227 before the High Court and assailed the above order of the Tribunal. The High Court dismissed the writ petition on the ground that the finding that the appellants were strangers to the watan was one of fact and it was not open to the High Court to reopen the concurrent findings of the Assistant Commissioner, the Deputy Commissioner and the Tribunal in a writ petition.3. In appeal before us Mr. Gupte on behalf of the appellants has contended that the High Court was in error in not interfering with the order of the Tribunal whereby the revision petition filed by the appellants had been dismissed. It is urged that the Tribunal in affirming the findings of the Assistant Commissioner and the Deputy Commissioner regarding the question of the appellants being strangers qua the land in dispute took a very restricted view of section 79 of the Act dealing with revision. This contention, in our opinion, is not well founded. The High Court at the time of the decision of the earlier writ petition on December 13, 1964 recorded a finding and gave directions to the Tribunal not to reopen the questions of fact in revision. The Tribunal while passing the order dated September 12, 1967 complied with those directions of the High Court. The appellants are bound by the judgment of the High Court and it is not open to them to go behind that judgment in this appeal. No appeal wag filed against that judgment and it has become final. It is well settled that principles of res judicata can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage of the same proceedings. Once an order made in the course of a proceeding becomes final, it would be binding at the subsequent stage of that proceeding. In view of the High Court judgment dated December 18, 1964, the Tribunal while passing the order dated September 12, 1967, disposing of the revision petition filed by the appellant, could not reopen the questions of fact which had been decided by the Assistant Commissioner and the Deputy Commissioner. | 0[ds]This contention, in our opinion, is not well founded. The High Court at the time of the decision of the earlier writ petition on December 13, 1964 recorded a finding and gave directions to the Tribunal not to reopen the questions of fact in revision. The Tribunal while passing the order dated September 12, 1967 complied with those directions of the High Court. The appellants are bound by the judgment of the High Court and it is not open to them to go behind that judgment in this appeal. No appeal wag filed against that judgment and it has become final. It is well settled that principles of res judicata can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage of the same proceedings. Once an order made in the course of a proceeding becomes final, it would be binding at the subsequent stage of that proceeding. In view of the High Court judgment dated December 18, 1964, the Tribunal while passing the order dated September 12, 1967, disposing of the revision petition filed by the appellant, could not reopen the questions of fact which had been decided by the Assistant Commissioner and the Deputy Commissioner. | 0 | 844 | 225 | ### 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:
KHANNA, J.1. This is an appeal by special leave against the judgment of the Mysore High Court whereby the High Court dismissed petition under articles 226 and 227 filed by the appellants to challenge the order dated September 12, 1967 of the Mysore Revenue Appellate Tribunal (hereinafter referred to as the Tribunal).2. The brief facts giving rise to this appeal are that the first resdent applied on April 22, 1959 to the Assistant Commissioner Bagalkot for the restoration of the Patilki/watan/lands survey Nos. 32/2, 54/2, and 49/2 under sections 11, 11A and 12 of the Bombay Hereditary Officers Act (hereinafter referred to as the Act). Possession of those land s was sought on the ground that the appellants, who were strangers, had taken possession of the lands. The Assistant Commissioner, as per order dated August 11, 1960, accepted that application and directed that the possession of the lands be restored to the respondents. Appeal filed by the appellants against that order was dismissed by the Deputy Commissioner as per order dated January 24, 1961. The appellantas then went up in revision before the Tribunal. The Tribunal as per order dated May 5, 1962 accepted the revision petition and held that the appellants were not strangers to the watan. In arriving as this conclusion, the Tribunal held disagreeing with the Assistant Commissioner and the Deputy Commissioner that the watan had been acquired by Basangouda I. The respondents challenged the order of the Tribunal by means of a writ petition. The Writ petition filed by the respondents was accepted by the Mysore High Court as per judgment dated December 18, 1964, and it was held that it was not open to the Tribunal to reopen and set aside finding s of fact in a revision petition. The case was accordingly remitted to the Tribunal for fresh decision in the light of the observations of the High Court.When the matter came up before the Tribunal after the above judgment of the High Court, the Tribunal as per order dated September 12, 1967 upheld the findings of the Assistant Commissioner and the Deputy Commissioner that the watan had been acquired by Basangouda II and not by Basangouda I. It may be stated that Basangouda I was the grandfather of Basangouda II and that unless it be shown that the watan had been acquired by Basangouda I, the appellant would have to be held strangers qua the lands in dispute. The Tribunal accordingly dismissed the revision petition which had been filed by the appellants. The appellants thereafter filed petition under articles 226 and 227 before the High Court and assailed the above order of the Tribunal. The High Court dismissed the writ petition on the ground that the finding that the appellants were strangers to the watan was one of fact and it was not open to the High Court to reopen the concurrent findings of the Assistant Commissioner, the Deputy Commissioner and the Tribunal in a writ petition.3. In appeal before us Mr. Gupte on behalf of the appellants has contended that the High Court was in error in not interfering with the order of the Tribunal whereby the revision petition filed by the appellants had been dismissed. It is urged that the Tribunal in affirming the findings of the Assistant Commissioner and the Deputy Commissioner regarding the question of the appellants being strangers qua the land in dispute took a very restricted view of section 79 of the Act dealing with revision. This contention, in our opinion, is not well founded. The High Court at the time of the decision of the earlier writ petition on December 13, 1964 recorded a finding and gave directions to the Tribunal not to reopen the questions of fact in revision. The Tribunal while passing the order dated September 12, 1967 complied with those directions of the High Court. The appellants are bound by the judgment of the High Court and it is not open to them to go behind that judgment in this appeal. No appeal wag filed against that judgment and it has become final. It is well settled that principles of res judicata can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage of the same proceedings. Once an order made in the course of a proceeding becomes final, it would be binding at the subsequent stage of that proceeding. In view of the High Court judgment dated December 18, 1964, the Tribunal while passing the order dated September 12, 1967, disposing of the revision petition filed by the appellant, could not reopen the questions of fact which had been decided by the Assistant Commissioner and the Deputy Commissioner.
### Response:
0
### Explanation:
This contention, in our opinion, is not well founded. The High Court at the time of the decision of the earlier writ petition on December 13, 1964 recorded a finding and gave directions to the Tribunal not to reopen the questions of fact in revision. The Tribunal while passing the order dated September 12, 1967 complied with those directions of the High Court. The appellants are bound by the judgment of the High Court and it is not open to them to go behind that judgment in this appeal. No appeal wag filed against that judgment and it has become final. It is well settled that principles of res judicata can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage of the same proceedings. Once an order made in the course of a proceeding becomes final, it would be binding at the subsequent stage of that proceeding. In view of the High Court judgment dated December 18, 1964, the Tribunal while passing the order dated September 12, 1967, disposing of the revision petition filed by the appellant, could not reopen the questions of fact which had been decided by the Assistant Commissioner and the Deputy Commissioner.
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