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Godrej Industries Ltd Vs. D.G. Ahire Assistant Collector of Central Excise & Another | product as a hair darkener, though a relevant factor, would not be a deciding factor in the matter. The learned Additional Solicitor General submitted that the learned Single Judge had deviated from the Rule of precedent and having regard to the decision of this Court in Bharat Sanchar Nigam Ltd. Vs. Union of India [2006 (3) SCC 1 ] could not have taken a view different from that of the Division Bench.36. From the submissions made on behalf of the respective parties and the materials on record, it is clear that the product of the appellant company is undoubtedly, a hair darkener. Whether it also acts as a hair lotion, is the question which calls for decision in order to establish whether the said product would fall under Tariff Item 14F. Extensive arguments were advanced by Counsel for both the parties regarding the chemical composition and the common parlance understanding of the product. The aforesaid product of the appellant company also appears to have been sent for analysis to the Deputy Chief Chemist and his decision was conveyed by the Superintendent of Central Excise Range IV, Division VII, to the appellant company to the effect that the said product did not fall under Tariff Item 14F. Apart from the above, when cosmetics and toilet preparations were made taxable by virtue of the Finance Act, 1961, whereby Tariff Item 14F was introduced to cover such preparations, hair lotion as a separate category was included in the said Tariff Item. However, when in May, 1974, the appellants company introduced its aforesaid product labeled-Godrej-Permanent Hair Dye, no excise duty was levied on the said product under Tariff Item 14F. It was only after the Finance Act, 1975, introduced a Residuary Entry, being Tariff Item No. 68, in the First Schedule to the Central Excise and Salt Act, 1944, that the appellants product became taxable on and from 1st March, 1975, under Tariff Item 68. However, while under Tariff Item No. 14F tariff was imposed at the rate of 105%, tariff under Tariff Item 68 was imposed at the rate of 8%. It is subsequent to the introduction of Tariff Item No. 68 that the appellants company was informed that its above-mentioned product did not fall under Tariff Item No.14F. 37. From the decisions cited by Mr. Desai, it would be clear that there is substantial difference between a hair dye and pomade and that while pomade is an ointment for hair, a lotion is used as a medicinal preparation to cleanse hair or for skin disorders. Since neither of the two definitions answers the description of the appellants product, the Court came to the conclusion that the said product was merely a colouring material used for blackening gray hair and not a hair lotion which would stand covered by Tariff Item 14F of the First Schedule to the Act. 38. The Division Bench of the Bombay High Court in the case of Chimanlal Beliram, had no doubt, come to the conclusion that the product in question was a hair lotion. While doing so, the Division Bench had relied on the standard text-books which indicated that the expressions "hair lotion" and "hair dye" could be used interchangeable in the commercial world and that several such products which are nothing but dye usually with lead base have been known as "hair restorers" which were expected to achieve what a hair lotion or hair tonic was also expected to achieve. A good deal of argument was also advanced by learned counsel for the parties with regard to Subhash Chandernishants case (supra) wherein a learned Single Judge distinguished the decision of the Division Bench in Chimanlal Beliram Mehtas case (supra) relying on classification of a product by virtue of the doctrine of common parlance. 39. The expression "lotion" has been described in Collins English Dictionary as "a liquid preparation having a soothing, cleansing or antiseptic action applied to the skin, eyes etc.". It has also been indicated that the word "lotion" had been derived from the Latin word "lotio" meaning - a washing. Nothing has been disclosed from any of the technical information gleaned from standard text-books that the appellants product was anything more than a hair colouring agent or that it was or could be used to have a soothing cleansing or antiseptic action while washing out ones hair. From the chemical analysis of the appellants product nothing has also been shown as to whether the same could be applied to the scalp for restoration or nourishment of hair, which could bring it within the definition of "lotion" as a medicinal product. 40. Apart from the above, even in common parlance or traders jargon a hair dye, unless it had other properties besides the capacity to darken hair, could not be equated with hair lotion. Although, not much weight has been given to the affidavits filed on behalf of the appellants company, the same cannot be brushed aside in determining what a common man or a trader would understand by the expressions "hair lotion" and "hair dye". While in a generic sense a hair dye may also be referred to as hair lotion, for the purposes of a taxing statute, its chemical composition and actual usage become relevant.41. Mr. Desai laid great emphasis on the fact that the appellants preparation was poisonous and had to be used with great care and caution in the manner indicated in the literature supplied with the product. The natural corollary of such submission is that the said product could not, therefore, be treated as a lotion to be used either as a scalp or hair nourisher or for medicinal purposes. 42. We are, therefore, satisfied that the view taken by the High Court was erroneous and during the relevant period, namely, January, 1982 to December, 1982, the demand made on behalf of the Revenue for payment of tariff according to Tariff Item 14F was erroneous and the judgment of the High Court based thereupon is liable to be set aside. | 1[ds]40. Apart from the above, even in common parlance or traders jargon a hair dye, unless it had other properties besides the capacity to darken hair, could not be equated with hair lotion. Although, not much weight has been given to the affidavits filed on behalf of the appellants company, the same cannot be brushed aside in determining what a common man or a trader would understand by the expressions "hair lotion" and "hair dye". While in a generic sense a hair dye may also be referred to as hair lotion, for the purposes of a taxing statute, its chemical composition and actual usage become relevant. | 1 | 5,808 | 126 | ### 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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product as a hair darkener, though a relevant factor, would not be a deciding factor in the matter. The learned Additional Solicitor General submitted that the learned Single Judge had deviated from the Rule of precedent and having regard to the decision of this Court in Bharat Sanchar Nigam Ltd. Vs. Union of India [2006 (3) SCC 1 ] could not have taken a view different from that of the Division Bench.36. From the submissions made on behalf of the respective parties and the materials on record, it is clear that the product of the appellant company is undoubtedly, a hair darkener. Whether it also acts as a hair lotion, is the question which calls for decision in order to establish whether the said product would fall under Tariff Item 14F. Extensive arguments were advanced by Counsel for both the parties regarding the chemical composition and the common parlance understanding of the product. The aforesaid product of the appellant company also appears to have been sent for analysis to the Deputy Chief Chemist and his decision was conveyed by the Superintendent of Central Excise Range IV, Division VII, to the appellant company to the effect that the said product did not fall under Tariff Item 14F. Apart from the above, when cosmetics and toilet preparations were made taxable by virtue of the Finance Act, 1961, whereby Tariff Item 14F was introduced to cover such preparations, hair lotion as a separate category was included in the said Tariff Item. However, when in May, 1974, the appellants company introduced its aforesaid product labeled-Godrej-Permanent Hair Dye, no excise duty was levied on the said product under Tariff Item 14F. It was only after the Finance Act, 1975, introduced a Residuary Entry, being Tariff Item No. 68, in the First Schedule to the Central Excise and Salt Act, 1944, that the appellants product became taxable on and from 1st March, 1975, under Tariff Item 68. However, while under Tariff Item No. 14F tariff was imposed at the rate of 105%, tariff under Tariff Item 68 was imposed at the rate of 8%. It is subsequent to the introduction of Tariff Item No. 68 that the appellants company was informed that its above-mentioned product did not fall under Tariff Item No.14F. 37. From the decisions cited by Mr. Desai, it would be clear that there is substantial difference between a hair dye and pomade and that while pomade is an ointment for hair, a lotion is used as a medicinal preparation to cleanse hair or for skin disorders. Since neither of the two definitions answers the description of the appellants product, the Court came to the conclusion that the said product was merely a colouring material used for blackening gray hair and not a hair lotion which would stand covered by Tariff Item 14F of the First Schedule to the Act. 38. The Division Bench of the Bombay High Court in the case of Chimanlal Beliram, had no doubt, come to the conclusion that the product in question was a hair lotion. While doing so, the Division Bench had relied on the standard text-books which indicated that the expressions "hair lotion" and "hair dye" could be used interchangeable in the commercial world and that several such products which are nothing but dye usually with lead base have been known as "hair restorers" which were expected to achieve what a hair lotion or hair tonic was also expected to achieve. A good deal of argument was also advanced by learned counsel for the parties with regard to Subhash Chandernishants case (supra) wherein a learned Single Judge distinguished the decision of the Division Bench in Chimanlal Beliram Mehtas case (supra) relying on classification of a product by virtue of the doctrine of common parlance. 39. The expression "lotion" has been described in Collins English Dictionary as "a liquid preparation having a soothing, cleansing or antiseptic action applied to the skin, eyes etc.". It has also been indicated that the word "lotion" had been derived from the Latin word "lotio" meaning - a washing. Nothing has been disclosed from any of the technical information gleaned from standard text-books that the appellants product was anything more than a hair colouring agent or that it was or could be used to have a soothing cleansing or antiseptic action while washing out ones hair. From the chemical analysis of the appellants product nothing has also been shown as to whether the same could be applied to the scalp for restoration or nourishment of hair, which could bring it within the definition of "lotion" as a medicinal product. 40. Apart from the above, even in common parlance or traders jargon a hair dye, unless it had other properties besides the capacity to darken hair, could not be equated with hair lotion. Although, not much weight has been given to the affidavits filed on behalf of the appellants company, the same cannot be brushed aside in determining what a common man or a trader would understand by the expressions "hair lotion" and "hair dye". While in a generic sense a hair dye may also be referred to as hair lotion, for the purposes of a taxing statute, its chemical composition and actual usage become relevant.41. Mr. Desai laid great emphasis on the fact that the appellants preparation was poisonous and had to be used with great care and caution in the manner indicated in the literature supplied with the product. The natural corollary of such submission is that the said product could not, therefore, be treated as a lotion to be used either as a scalp or hair nourisher or for medicinal purposes. 42. We are, therefore, satisfied that the view taken by the High Court was erroneous and during the relevant period, namely, January, 1982 to December, 1982, the demand made on behalf of the Revenue for payment of tariff according to Tariff Item 14F was erroneous and the judgment of the High Court based thereupon is liable to be set aside.
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40. Apart from the above, even in common parlance or traders jargon a hair dye, unless it had other properties besides the capacity to darken hair, could not be equated with hair lotion. Although, not much weight has been given to the affidavits filed on behalf of the appellants company, the same cannot be brushed aside in determining what a common man or a trader would understand by the expressions "hair lotion" and "hair dye". While in a generic sense a hair dye may also be referred to as hair lotion, for the purposes of a taxing statute, its chemical composition and actual usage become relevant.
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Dhariwal Tobaco Products Ltd Vs. State Of Maharashtra | comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of court and that the ends of justice require that the proceedings should be quashed, it would not hesitate to do so. 13. We may furthermore notice that in Central Bureau of Investigation v. Ravi Shankar Srivastava, [(2006) 7 SCC 188] this Court while opining that the High Court in exercise of its jurisdiction under Section 482 of the Code does not function either as a court of appeal or revision, held :- "7. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. The courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in the course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of the process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers the court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto." 14. It is interesting to note that the Bombay High Court itself has taken a different view. In a decision rendered by the Aurangabad Bench of the Bombay High Court, a learned Single Judge in Vishwanath Ramkrishna Patil (supra), where a similar question was raised, opined as under :- "It is difficult to curtail this remedy merely because there is a revisional remedy available. The alternate remedy is no bar to invoke power under Article 227. What is required as to see the facts and circumstances of the case while entertaining such petition under Article 227 of the Constitution and/or under Section 482 of Criminal Procedure Code. The view therefore, as taken in both the cases V.K. Jain and Saket Gore, no way expressed total bar. If no case is made out by the petitioner or the party to invoke the inherent power as contemplated under Section 482 of Criminal Procedure Code and/or the discretionary or the supervisory power under Article 227 of the Constitution of India they may approach to the revisional Court, against the order of issuance of process.11. Taking into consideration the facts and circumstances of those cases, the learned Judge has observed in V.K. Jain and Saket Gore (supra) that it would be appropriate for the parties to file revision application against the order of issuance of process. There is nothing mentioned and/or even observed that there is total bar to file petition under Section 482 of Criminal Procedure Code and/or petition under Article 227 of the Constitution of India.12. The Apex Courts decision already referred above, nowhere prohibited or expressly barred to invoke Section 482 of Criminal Procedure Code or Article 227 of the Constitution of India against the order of issuance of process." In Keki Bomi Dadiseth (supra), another learned Single Judge of the Nagpur Bench of the Bombay High Court entertained an application under Section 482 of the Code, where summons have been served for commission of offence under the Prevention of Food Adulteration Act, 1954, holding:- "33. In view of the ratio laid down by the Apex Court in the above referred cases, it is well settled that inherent power under Section 482 can be invoked by the accused in the appropriate case irrespective of other factors and this Court can exercise the same in a deserving case within parametres of law and, therefore, the contentions canvassed by the learned Additional Public Prosecutor in this regard are misconceived and same are rejected." 15. In our considered opinion V.K. Jain (supra) does not lay down a good law. It is over-ruled accordingly.16. For the reasons aforementioned the | 1[ds]Taking into consideration the facts and circumstances of those cases, the learned Judge has observed in V.K. Jain and Saket Gore (supra) that it would be appropriate for the parties to file revision application against the order of issuance of process. There is nothing mentioned and/or even observed that there is total bar to file petition under Section 482 of Criminal Procedure Code and/or petition under Article 227 of the Constitution of India.In our considered opinion V.K. Jain (supra) does not lay down a good law. It is over-ruled accordingly. | 1 | 3,037 | 104 | ### Instruction:
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comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of court and that the ends of justice require that the proceedings should be quashed, it would not hesitate to do so. 13. We may furthermore notice that in Central Bureau of Investigation v. Ravi Shankar Srivastava, [(2006) 7 SCC 188] this Court while opining that the High Court in exercise of its jurisdiction under Section 482 of the Code does not function either as a court of appeal or revision, held :- "7. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. The courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in the course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of the process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers the court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto." 14. It is interesting to note that the Bombay High Court itself has taken a different view. In a decision rendered by the Aurangabad Bench of the Bombay High Court, a learned Single Judge in Vishwanath Ramkrishna Patil (supra), where a similar question was raised, opined as under :- "It is difficult to curtail this remedy merely because there is a revisional remedy available. The alternate remedy is no bar to invoke power under Article 227. What is required as to see the facts and circumstances of the case while entertaining such petition under Article 227 of the Constitution and/or under Section 482 of Criminal Procedure Code. The view therefore, as taken in both the cases V.K. Jain and Saket Gore, no way expressed total bar. If no case is made out by the petitioner or the party to invoke the inherent power as contemplated under Section 482 of Criminal Procedure Code and/or the discretionary or the supervisory power under Article 227 of the Constitution of India they may approach to the revisional Court, against the order of issuance of process.11. Taking into consideration the facts and circumstances of those cases, the learned Judge has observed in V.K. Jain and Saket Gore (supra) that it would be appropriate for the parties to file revision application against the order of issuance of process. There is nothing mentioned and/or even observed that there is total bar to file petition under Section 482 of Criminal Procedure Code and/or petition under Article 227 of the Constitution of India.12. The Apex Courts decision already referred above, nowhere prohibited or expressly barred to invoke Section 482 of Criminal Procedure Code or Article 227 of the Constitution of India against the order of issuance of process." In Keki Bomi Dadiseth (supra), another learned Single Judge of the Nagpur Bench of the Bombay High Court entertained an application under Section 482 of the Code, where summons have been served for commission of offence under the Prevention of Food Adulteration Act, 1954, holding:- "33. In view of the ratio laid down by the Apex Court in the above referred cases, it is well settled that inherent power under Section 482 can be invoked by the accused in the appropriate case irrespective of other factors and this Court can exercise the same in a deserving case within parametres of law and, therefore, the contentions canvassed by the learned Additional Public Prosecutor in this regard are misconceived and same are rejected." 15. In our considered opinion V.K. Jain (supra) does not lay down a good law. It is over-ruled accordingly.16. For the reasons aforementioned the
### Response:
1
### Explanation:
Taking into consideration the facts and circumstances of those cases, the learned Judge has observed in V.K. Jain and Saket Gore (supra) that it would be appropriate for the parties to file revision application against the order of issuance of process. There is nothing mentioned and/or even observed that there is total bar to file petition under Section 482 of Criminal Procedure Code and/or petition under Article 227 of the Constitution of India.In our considered opinion V.K. Jain (supra) does not lay down a good law. It is over-ruled accordingly.
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United India Insurance Co. Ltd Vs. Ajay Sinha & Another | to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statue or not..." 32. In Dwarka Prasad Agarwal (D) by Lrs. and Anr. vs. Ramesh Chander Agarwal and Ors. : (2003) 6 SCC 220 , this Court held: "...The dispute between the parties was eminently a civil dispute and not a dispute under the provisions of the Companies Act. Section 9 of the Code of Civil Procedure confers jurisdiction upon the civil courts to determine all disputes of civil nature unless the same is barred under a statute either expressly or by necessary implication. Bar of jurisdiction of a civil court is not to be readily inferred. A provision seeking to bar jurisdiction of a civil court requires strict interpretation. The court, it is well settled, would normally lean in favour of construction, which would uphold retention of jurisdiction of the civil court..." This case was cited with approval in Bhagubhai Dhanabhai Khalasi and Anr. vs. The State of Gujarat and Ors., 2007 (5) SCALE 357. 33. Therefore, it is a fundamental presumption in statutory interpretation that ordinary civil courts have jurisdiction to decide all matters of a civil nature. As a corollary, (i) provisions excluding jurisdiction of civil courts should receive strict construction. (See Bhagwat Singh vs. State of Rajasthan : AIR 1964 SC 444 ; Raichand vs. Union of India : AIR 1964 SC 1268 ), and (ii) provisions conferring jurisdiction on authorities and tribunals other than civil courts (See Kasturi and Sons vs. Salivateswaran : AIR 1958 SC 507 ; Upper Doab Sugar Mills vs. Shahdara (Delhi) Saharanpur Light Railway : AIR 1963 SC 217 ) have to be strictly construed. 34. This principle, taken from Principles of Statutory Interpretation by G.P. Singh, Ninth Edition, page 630, was cited with approval in Swamy Atmananda and Ors. vs. Sri Ramakrishna Tapovanam and Ors. : AIR 2005 SC 2392 . 35. We must also take notice of a recent decision of this Court in State of Punjab and another vs. Jalour Singh and others : JT 2008 (2) SC 83 where this Court expressed its dismay with the manner in which the Lok-Adalat matters are dealt with. Chief Justice of India speaking for the Bench, upon noticing the provisions of the Legal Services Authority Act, 1987, observed that whereas Lok Adalat had to arrive at a just settlement in their conciliatory role guided by the principles of justice, equity, fair play and other legal principles, but in that case it assumed a judicial role, heard parties, ignored the absence of consensus, and increased the compensation to an extent it considered just and reasonable, by a reasoned order which is adjudicatory in nature. It arrogated to itself the appellate powers of the High Court and allowed the appeal and directed the respondents in the appeal to pay the enhanced compensation within a period fixed by it. It was held that such an order is not an Award.36. Section 22-C(1) read with Section 22-C(2), Section 22-C(8) and Section 22-E of the Act, exclude the jurisdiction of the civil courts by providing that when an application is made by either party to the Permanent Lok Adalat to settle a dispute at the pre-litigation stage, the PLA shall do so, and the other party is precluded from approaching the civil court in such a case.37. Section 22-C(1) contains certain Provisos which limit the jurisdiction of the PLA. Given the principle of statutory interpretation stated earlier, these Provisos, as a corollary, must be interpreted in an expansive manner.38. What is important to note is that with respect of public utility services, the main purpose behind Section 22-C(8) seems to be that "most of the petty cases which ought not to go in the regular Courts would be settled in the pre-litigation stage itself."39. Therefore, in the instant case, the terms "relating to" an "offence" appearing in Proviso 1 must be interpreted broadly, and as the determination before the Permanent Lok Adalat will involve the question as to whether or not an offence, which is non-compoundable in nature, has indeed been committed, this case falls outside the jurisdiction of the Permanent Lok Adalat.40. We must guard against construction of a statute which would confer such a wide power in the Permanent Lok Adalat having regard to sub-section (8) of Section 22-Cof the Act. The Permanent Lok Adalat must at the outset formulate the questions. We however, do not intend to lay down a law, as at present advised, that Permanent Lok Adalat would refuse to exercise its jurisdiction to entertain such cases but emphasise that it must exercise its power with due care and caution. It must not give an impression to any of the disputants that it from the very beginning has an adjudicatory role to play in relation to its jurisdiction without going into the statutory provisions and restrictions imposed thereunder. | 1[ds]28. In this case, as noticed above, the genuineness of the claim itself is in dispute. Where the parties have taken extreme positions, the same prima facie may not be the subject matter of conciliation which provides for a non binding settlement.29. For the said purpose, the dispute under the criminal procedure and/or the nature thereof would also play an important role. Whereas Respondent states that the burglary has taken place, the appellant denies and disputes the same. In a criminal case, the accused shall be entitled to raise a contention that no offence has taken place. If the criminal court form an opinion that an offence had taken place, which otherwise is a non-compoundable one, the term "relating to an offence" should be given wider meaning. The first proviso appended to section 22-B of the Act may not be of much relevance.30. This aspect of the matter had not been argued before the Division Bench of the High Court. The counsel appearing were remiss in bringing the same to the notice of the Court the binding precedents, as regards the jurisdictional aspect of the Civil Court in the light of Section 9 of the Code of Civil Procedure.We must also take notice of a recent decision of this Court in State of Punjab and another vs. Jalour Singh and others : JT 2008 (2) SC 83 where this Court expressed its dismay with the manner in which the Lok-Adalat matters are dealt with. Chief Justice of India speaking for the Bench, upon noticing the provisions of the Legal Services Authority Act, 1987, observed that whereas Lok Adalat had to arrive at a just settlement in their conciliatory role guided by the principles of justice, equity, fair play and other legal principles, but in that case it assumed a judicial role, heard parties, ignored the absence of consensus, and increased the compensation to an extent it considered just and reasonable, by a reasoned order which is adjudicatory in nature. It arrogated to itself the appellate powers of the High Court and allowed the appeal and directed the respondents in the appeal to pay the enhanced compensation within a period fixed by it. It was held that such an order is not an Award.36. Section 22-C(1) read with Section 22-C(2), Section 22-C(8) and Section 22-E of the Act, exclude the jurisdiction of the civil courts by providing that when an application is made by either party to the Permanent Lok Adalat to settle a dispute at the pre-litigation stage, the PLA shall do so, and the other party is precluded from approaching the civil court in such a case.37. Section 22-C(1) contains certain Provisos which limit the jurisdiction of the PLA. Given the principle of statutory interpretation stated earlier, these Provisos, as a corollary, must be interpreted in an expansive manner.38. What is important to note is that with respect of public utility services, the main purpose behind Section 22-C(8) seems to be that "most of the petty cases which ought not to go in the regular Courts would be settled in the pre-litigation stage itself."39. Therefore, in the instant case, the terms "relating to" an "offence" appearing in Proviso 1 must be interpreted broadly, and as the determination before the Permanent Lok Adalat will involve the question as to whether or not an offence, which is non-compoundable in nature, has indeed been committed, this case falls outside the jurisdiction of the Permanent Lok Adalat.40. We must guard against construction of a statute which would confer such a wide power in the Permanent Lok Adalat having regard to sub-section (8) of Section 22-Cof the Act. The Permanent Lok Adalat must at the outset formulate the questions. We however, do not intend to lay down a law, as at present advised, that Permanent Lok Adalat would refuse to exercise its jurisdiction to entertain such cases but emphasise that it must exercise its power with due care and caution. It must not give an impression to any of the disputants that it from the very beginning has an adjudicatory role to play in relation to its jurisdiction without going into the statutory provisions and restrictions imposed thereunder. | 1 | 5,797 | 784 | ### 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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to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statue or not..." 32. In Dwarka Prasad Agarwal (D) by Lrs. and Anr. vs. Ramesh Chander Agarwal and Ors. : (2003) 6 SCC 220 , this Court held: "...The dispute between the parties was eminently a civil dispute and not a dispute under the provisions of the Companies Act. Section 9 of the Code of Civil Procedure confers jurisdiction upon the civil courts to determine all disputes of civil nature unless the same is barred under a statute either expressly or by necessary implication. Bar of jurisdiction of a civil court is not to be readily inferred. A provision seeking to bar jurisdiction of a civil court requires strict interpretation. The court, it is well settled, would normally lean in favour of construction, which would uphold retention of jurisdiction of the civil court..." This case was cited with approval in Bhagubhai Dhanabhai Khalasi and Anr. vs. The State of Gujarat and Ors., 2007 (5) SCALE 357. 33. Therefore, it is a fundamental presumption in statutory interpretation that ordinary civil courts have jurisdiction to decide all matters of a civil nature. As a corollary, (i) provisions excluding jurisdiction of civil courts should receive strict construction. (See Bhagwat Singh vs. State of Rajasthan : AIR 1964 SC 444 ; Raichand vs. Union of India : AIR 1964 SC 1268 ), and (ii) provisions conferring jurisdiction on authorities and tribunals other than civil courts (See Kasturi and Sons vs. Salivateswaran : AIR 1958 SC 507 ; Upper Doab Sugar Mills vs. Shahdara (Delhi) Saharanpur Light Railway : AIR 1963 SC 217 ) have to be strictly construed. 34. This principle, taken from Principles of Statutory Interpretation by G.P. Singh, Ninth Edition, page 630, was cited with approval in Swamy Atmananda and Ors. vs. Sri Ramakrishna Tapovanam and Ors. : AIR 2005 SC 2392 . 35. We must also take notice of a recent decision of this Court in State of Punjab and another vs. Jalour Singh and others : JT 2008 (2) SC 83 where this Court expressed its dismay with the manner in which the Lok-Adalat matters are dealt with. Chief Justice of India speaking for the Bench, upon noticing the provisions of the Legal Services Authority Act, 1987, observed that whereas Lok Adalat had to arrive at a just settlement in their conciliatory role guided by the principles of justice, equity, fair play and other legal principles, but in that case it assumed a judicial role, heard parties, ignored the absence of consensus, and increased the compensation to an extent it considered just and reasonable, by a reasoned order which is adjudicatory in nature. It arrogated to itself the appellate powers of the High Court and allowed the appeal and directed the respondents in the appeal to pay the enhanced compensation within a period fixed by it. It was held that such an order is not an Award.36. Section 22-C(1) read with Section 22-C(2), Section 22-C(8) and Section 22-E of the Act, exclude the jurisdiction of the civil courts by providing that when an application is made by either party to the Permanent Lok Adalat to settle a dispute at the pre-litigation stage, the PLA shall do so, and the other party is precluded from approaching the civil court in such a case.37. Section 22-C(1) contains certain Provisos which limit the jurisdiction of the PLA. Given the principle of statutory interpretation stated earlier, these Provisos, as a corollary, must be interpreted in an expansive manner.38. What is important to note is that with respect of public utility services, the main purpose behind Section 22-C(8) seems to be that "most of the petty cases which ought not to go in the regular Courts would be settled in the pre-litigation stage itself."39. Therefore, in the instant case, the terms "relating to" an "offence" appearing in Proviso 1 must be interpreted broadly, and as the determination before the Permanent Lok Adalat will involve the question as to whether or not an offence, which is non-compoundable in nature, has indeed been committed, this case falls outside the jurisdiction of the Permanent Lok Adalat.40. We must guard against construction of a statute which would confer such a wide power in the Permanent Lok Adalat having regard to sub-section (8) of Section 22-Cof the Act. The Permanent Lok Adalat must at the outset formulate the questions. We however, do not intend to lay down a law, as at present advised, that Permanent Lok Adalat would refuse to exercise its jurisdiction to entertain such cases but emphasise that it must exercise its power with due care and caution. It must not give an impression to any of the disputants that it from the very beginning has an adjudicatory role to play in relation to its jurisdiction without going into the statutory provisions and restrictions imposed thereunder.
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1
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28. In this case, as noticed above, the genuineness of the claim itself is in dispute. Where the parties have taken extreme positions, the same prima facie may not be the subject matter of conciliation which provides for a non binding settlement.29. For the said purpose, the dispute under the criminal procedure and/or the nature thereof would also play an important role. Whereas Respondent states that the burglary has taken place, the appellant denies and disputes the same. In a criminal case, the accused shall be entitled to raise a contention that no offence has taken place. If the criminal court form an opinion that an offence had taken place, which otherwise is a non-compoundable one, the term "relating to an offence" should be given wider meaning. The first proviso appended to section 22-B of the Act may not be of much relevance.30. This aspect of the matter had not been argued before the Division Bench of the High Court. The counsel appearing were remiss in bringing the same to the notice of the Court the binding precedents, as regards the jurisdictional aspect of the Civil Court in the light of Section 9 of the Code of Civil Procedure.We must also take notice of a recent decision of this Court in State of Punjab and another vs. Jalour Singh and others : JT 2008 (2) SC 83 where this Court expressed its dismay with the manner in which the Lok-Adalat matters are dealt with. Chief Justice of India speaking for the Bench, upon noticing the provisions of the Legal Services Authority Act, 1987, observed that whereas Lok Adalat had to arrive at a just settlement in their conciliatory role guided by the principles of justice, equity, fair play and other legal principles, but in that case it assumed a judicial role, heard parties, ignored the absence of consensus, and increased the compensation to an extent it considered just and reasonable, by a reasoned order which is adjudicatory in nature. It arrogated to itself the appellate powers of the High Court and allowed the appeal and directed the respondents in the appeal to pay the enhanced compensation within a period fixed by it. It was held that such an order is not an Award.36. Section 22-C(1) read with Section 22-C(2), Section 22-C(8) and Section 22-E of the Act, exclude the jurisdiction of the civil courts by providing that when an application is made by either party to the Permanent Lok Adalat to settle a dispute at the pre-litigation stage, the PLA shall do so, and the other party is precluded from approaching the civil court in such a case.37. Section 22-C(1) contains certain Provisos which limit the jurisdiction of the PLA. Given the principle of statutory interpretation stated earlier, these Provisos, as a corollary, must be interpreted in an expansive manner.38. What is important to note is that with respect of public utility services, the main purpose behind Section 22-C(8) seems to be that "most of the petty cases which ought not to go in the regular Courts would be settled in the pre-litigation stage itself."39. Therefore, in the instant case, the terms "relating to" an "offence" appearing in Proviso 1 must be interpreted broadly, and as the determination before the Permanent Lok Adalat will involve the question as to whether or not an offence, which is non-compoundable in nature, has indeed been committed, this case falls outside the jurisdiction of the Permanent Lok Adalat.40. We must guard against construction of a statute which would confer such a wide power in the Permanent Lok Adalat having regard to sub-section (8) of Section 22-Cof the Act. The Permanent Lok Adalat must at the outset formulate the questions. We however, do not intend to lay down a law, as at present advised, that Permanent Lok Adalat would refuse to exercise its jurisdiction to entertain such cases but emphasise that it must exercise its power with due care and caution. It must not give an impression to any of the disputants that it from the very beginning has an adjudicatory role to play in relation to its jurisdiction without going into the statutory provisions and restrictions imposed thereunder.
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Commissioner of Wealth Tax, Madras Vs. M/s. Spencer & Company Limited | Hegde, J. 1. These appeals are by certificate. They arise from the consolidated judgment of the High Court of Judicature at Madras in a reference under Section 27 (1) of the Wealth Tax Act, 1957 (hereinafter referred to as Act). The question of law referred to the High Court was : "Whether on the facts and in the circumstances of the case the Tribunal is right in holding that the claim of the assessee for the deduction of Rs. 31,26,000 was rightly rejected as coming under Section 2 (m) (ii) of the Wealth Tax Act." 2. The Wealth Tax Officer, the Appellate Assistant Commissioner as well as the Income Tax Appellate Tribunal took the view that the amount of Rs. 31,26,000 mentioned in the question referred to the High Court was not a "debt" due from the assessee. The High Court differed from that view and answered the question referred to it in the negative and in favour of the assessee. 3. The facts of the case are not in dispute and they lie within a narrow compass. The assessee is a public limited company established with a view to carry on the business of merchants,` storekeepers, commission agents, retailers, manufacturers, hotelkeepers and catering service. The assessee was mainly carrying on business in South India. There was another company known as M/s. G. F. Kellner and Co. (hereinafter referred to as Kellners) which had a subscribed capital of Rs. 36 lakhs divided into 1,60,000-71/2 cumulative preference shares of Rs. 10/- each, and Rs. 2 lakhs equity shares of Rs. 10/- each. The main activity of the Kellners was railway catering in the Northern India. The respondent company acquired 1,59,824 preference shares out of 1,60,000 preference shares issued by Kellners and 1,99,948 equity shares out of 2 lakhs ordinary shares issued by Kellners. The acquisition was done partly for cash and partly in lieu of shares of the assessee company issued to the shareholders of Kellners. These shares were acquired sometime in 1929. In 1930 the assessee company acquired all the assets of Kellners excepting those relating to the catering on the East Indian Railway, the Great Indian Peninsular Railway, the Bengal and North Western Railway and its goodwill for a consideration of Rs. 31,26,000. Part of this consideration was to be paid in cash on demand by Kellners. One of the terms of the agreement was as under : "If while the said Rs. 31,26,000 mentioned in C1. (2) or any part thereof remains unpaid G. F. Kellner and Company, Limited, shall propose to go into voluntary liquidation any special resolution submitted to share holders for that purpose by the Board of Directors shall provide that this company instead of paying to the liquidators the said Rs. 31,26,000 or the unpaid part thereof in cash, shall be entitled to surrender to the liquidators any share of G. F. Kellner and Company, Limited held by them and thereby set off or reduce the said indebtedness by Rupees 10 in respect of each Preference Share so surrendered and by 1526/2000 of Rs. 10 in respect of each ordinary share so surrendered." Later on they acquired all the assets of the Kellners subject to these conditions. The question for decision is whether Rs. 31,26,000 mentioned above, is a "debt" due from the assessee within the meaning of Section 2 (m) (ii) of the Act. There is no dispute that the Kellners is a legal entity by itself.It is true that the assessee had a controlling interest in Kellners but that does not, in law, make Kellners a part of the assessee company. The Kellners and the assessee company are two different legal entities. It was alleged by the assessee and not denied by the Revenue that Kellners have been assessed to wealth tax in the relevant accounting periods and in computing its net wealth the debt of Rs. 31,26,000 due to it by the assessee was taken into consideration.It is also not denied that in respect of the assets purchased by the assessee from Kellners the assessee had not paid a part of the consideration i.e. Rs. 31,26,000. Prima facie that part of the consideration is a debt due from the assessee to the Kellners. The fact that under certain circumstances the assessee, instead of paying back the debt in cash, could discharge the same by transfer of shares, as provided in the Resolution quoted above, does not change the character of the liability.The mode of discharging a liability does not change its true character. It is also not denied that the assets purchased by the assessee from Kellners had been taken into account in computing the net wealth of the assessee.4. The contention of Mr. A. N. Kripal, the learned counsel for the Revenue that because the assessee had a controlling interest in kellners, its liability ceased to be a "debt" is unsustainable in law. As mentioned earlier the two companies are different legal entities. Whatever control the assessee may have had over Kellners, the Kellners continued to be a separate legal entity. | 0[ds]The question for decision is whether Rs. 31,26,000 mentioned above, is a "debt" due from the assessee within the meaning of Section 2 (m) (ii) of the Act.There is no dispute that the Kellners is a legal entity by itself.It is true that the assessee had a controlling interest in Kellners but that does not, in law, make Kellners a part of the assessee company. The Kellners and the assessee company are two different legal entities. It was alleged by the assessee and not denied by the Revenue that Kellners have been assessed to wealth tax in the relevant accounting periods and in computing its net wealth the debt of Rs. 31,26,000 due to it by the assessee was taken into consideration.It is also not denied that in respect of the assets purchased by the assessee from Kellners the assessee had not paid a part of the consideration i.e. Rs. 31,26,000. Prima facie that part of the consideration is a debt due from the assessee to the Kellners. The fact that under certain circumstances the assessee, instead of paying back the debt in cash, could discharge the same by transfer of shares, as provided in the Resolution quoted above, does not change the character of the liability.The mode of discharging a liability does not change its true character. It is also not denied that the assets purchased by the assessee from Kellners had been taken into account in computing the net wealth of the assessee.4. The contention of Mr. A. N. Kripal, the learned counsel for the Revenue that because the assessee had a controlling interest in kellners, its liability ceased to be a "debt"is unsustainable in law. As mentioned earlier the two companies are different legal entities. Whatever control the assessee may have had over Kellners, the Kellners continued to be a separate legal entity. | 0 | 940 | 342 | ### 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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Hegde, J. 1. These appeals are by certificate. They arise from the consolidated judgment of the High Court of Judicature at Madras in a reference under Section 27 (1) of the Wealth Tax Act, 1957 (hereinafter referred to as Act). The question of law referred to the High Court was : "Whether on the facts and in the circumstances of the case the Tribunal is right in holding that the claim of the assessee for the deduction of Rs. 31,26,000 was rightly rejected as coming under Section 2 (m) (ii) of the Wealth Tax Act." 2. The Wealth Tax Officer, the Appellate Assistant Commissioner as well as the Income Tax Appellate Tribunal took the view that the amount of Rs. 31,26,000 mentioned in the question referred to the High Court was not a "debt" due from the assessee. The High Court differed from that view and answered the question referred to it in the negative and in favour of the assessee. 3. The facts of the case are not in dispute and they lie within a narrow compass. The assessee is a public limited company established with a view to carry on the business of merchants,` storekeepers, commission agents, retailers, manufacturers, hotelkeepers and catering service. The assessee was mainly carrying on business in South India. There was another company known as M/s. G. F. Kellner and Co. (hereinafter referred to as Kellners) which had a subscribed capital of Rs. 36 lakhs divided into 1,60,000-71/2 cumulative preference shares of Rs. 10/- each, and Rs. 2 lakhs equity shares of Rs. 10/- each. The main activity of the Kellners was railway catering in the Northern India. The respondent company acquired 1,59,824 preference shares out of 1,60,000 preference shares issued by Kellners and 1,99,948 equity shares out of 2 lakhs ordinary shares issued by Kellners. The acquisition was done partly for cash and partly in lieu of shares of the assessee company issued to the shareholders of Kellners. These shares were acquired sometime in 1929. In 1930 the assessee company acquired all the assets of Kellners excepting those relating to the catering on the East Indian Railway, the Great Indian Peninsular Railway, the Bengal and North Western Railway and its goodwill for a consideration of Rs. 31,26,000. Part of this consideration was to be paid in cash on demand by Kellners. One of the terms of the agreement was as under : "If while the said Rs. 31,26,000 mentioned in C1. (2) or any part thereof remains unpaid G. F. Kellner and Company, Limited, shall propose to go into voluntary liquidation any special resolution submitted to share holders for that purpose by the Board of Directors shall provide that this company instead of paying to the liquidators the said Rs. 31,26,000 or the unpaid part thereof in cash, shall be entitled to surrender to the liquidators any share of G. F. Kellner and Company, Limited held by them and thereby set off or reduce the said indebtedness by Rupees 10 in respect of each Preference Share so surrendered and by 1526/2000 of Rs. 10 in respect of each ordinary share so surrendered." Later on they acquired all the assets of the Kellners subject to these conditions. The question for decision is whether Rs. 31,26,000 mentioned above, is a "debt" due from the assessee within the meaning of Section 2 (m) (ii) of the Act. There is no dispute that the Kellners is a legal entity by itself.It is true that the assessee had a controlling interest in Kellners but that does not, in law, make Kellners a part of the assessee company. The Kellners and the assessee company are two different legal entities. It was alleged by the assessee and not denied by the Revenue that Kellners have been assessed to wealth tax in the relevant accounting periods and in computing its net wealth the debt of Rs. 31,26,000 due to it by the assessee was taken into consideration.It is also not denied that in respect of the assets purchased by the assessee from Kellners the assessee had not paid a part of the consideration i.e. Rs. 31,26,000. Prima facie that part of the consideration is a debt due from the assessee to the Kellners. The fact that under certain circumstances the assessee, instead of paying back the debt in cash, could discharge the same by transfer of shares, as provided in the Resolution quoted above, does not change the character of the liability.The mode of discharging a liability does not change its true character. It is also not denied that the assets purchased by the assessee from Kellners had been taken into account in computing the net wealth of the assessee.4. The contention of Mr. A. N. Kripal, the learned counsel for the Revenue that because the assessee had a controlling interest in kellners, its liability ceased to be a "debt" is unsustainable in law. As mentioned earlier the two companies are different legal entities. Whatever control the assessee may have had over Kellners, the Kellners continued to be a separate legal entity.
### Response:
0
### Explanation:
The question for decision is whether Rs. 31,26,000 mentioned above, is a "debt" due from the assessee within the meaning of Section 2 (m) (ii) of the Act.There is no dispute that the Kellners is a legal entity by itself.It is true that the assessee had a controlling interest in Kellners but that does not, in law, make Kellners a part of the assessee company. The Kellners and the assessee company are two different legal entities. It was alleged by the assessee and not denied by the Revenue that Kellners have been assessed to wealth tax in the relevant accounting periods and in computing its net wealth the debt of Rs. 31,26,000 due to it by the assessee was taken into consideration.It is also not denied that in respect of the assets purchased by the assessee from Kellners the assessee had not paid a part of the consideration i.e. Rs. 31,26,000. Prima facie that part of the consideration is a debt due from the assessee to the Kellners. The fact that under certain circumstances the assessee, instead of paying back the debt in cash, could discharge the same by transfer of shares, as provided in the Resolution quoted above, does not change the character of the liability.The mode of discharging a liability does not change its true character. It is also not denied that the assets purchased by the assessee from Kellners had been taken into account in computing the net wealth of the assessee.4. The contention of Mr. A. N. Kripal, the learned counsel for the Revenue that because the assessee had a controlling interest in kellners, its liability ceased to be a "debt"is unsustainable in law. As mentioned earlier the two companies are different legal entities. Whatever control the assessee may have had over Kellners, the Kellners continued to be a separate legal entity.
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Vysya Bank Limited Vs. Official Liquidator, Shreeniwas Cotton Mills Limited (In Liquidation ) | Comp Cas 372 (Pat) and united India General Finance Pvt. Ltd. , In. re : Official Liquidator United India General Finance pvt. Ltd. v. Satya Dev Awasthi [1978] 48 Comp Cas 190 (Delhi ). ( 12 ) THUS form the clear and unambiguous language of section 446, it can be seen that the leave required is not a condition precedent and can be granted ex post facto. In Bansidhar Shankarlal. [1971] 41 Comp Cas 21 the Supreme Court was directly concerned with the question as to whether leave was a condition precedent or not and held (at page 25) :"even granting that sanction under section 179 does not dispense with the leave under section 171 of the Act, to institute a proceeding in execution against a company ordered to be wound up, we do not thank that there is anything in the AM which makes the leave a condition precedent to the institution of a proceeding in execution of a decree against the company and that failure to obtain leave before institution of the proceeding entails dismissal of the proceeding. The suit or proceeding instituted without leave of the court may, in our judgment, be regarded as ineffective until leave is obtained, but once leave is obtained the proceeding will be deemed instituted on the date of granting leave. "( 13 ) PRIOR to this pronouncement by the Supreme Court, the courts in the country had taken divergent views. One view was that it was a condition precedent and the other that it was not. A division Bench of this court had in Eastern Steamship Pvt. Ltd. v. Pucto Pvt. Ltd. [1971] 41 comp Cas 43 taken the view that leave was a condition precedent. However, the Supreme Court decision in Bansidhar Shankarlal [1971] 41 Comp Cas 21 was delivered after the decision in eastern Steampship Pvt. Ltd. [1971] 41 Comp Cas 43 (Bom) and has thus impliedly overruled the decision in Eastern Steamship Pvt. Ltd. Apart from the fact that we are bound by the decision of the Supreme Court in Bansidhar Shankarlal [1971] 41 Comp Cas 21, the legislative intent manifested in the language leaves no room for doubt. We are supported in our view by the decisions in Zahama Bee v. Reliable Corporation P. Ltd. [1974] 44 Comp Cas 483 (AP), Star engineering Works v. Official Liquidator, Krishnakumar Mills Co. Ltd. [1977] 47 Comp Cas 30 (Guj), State Bank of Indian v. Official Liquidator, Scraps (India) P. Ltd. [1979] 49 Comp Cas 514 (Mad) and United Commercial Bank v. State of Jammu and Kashmir [1986] 60 Comp Cas 653 (P and H ). We are fully conscious of the fact that the Supreme Court decision in Bansidhar shankarlal [1971] 41 Comp Cas 21 was under section 171 of the Companies Act, 1913, and we are dealing with section 446 of the Indian Companies Act, 1956. The difference brought about in the language of section 446 of the Act is only a drafting change and has not effected any change in the legal position gathered by the Supreme Court from the language of the corresponding section 171 of the Indian Companies Act, 1913. The change in the language is only by way of amplification, clarification or elaboration of the provision contained in section 171 of the 1913 act rather than alteration or amendment thereof or departure therefrom. ( 14 ) THIS takes us to the next question, viz. , does failure to obtain leave entail dismissal of the suit and whether as regards limitation the suit instituted without leave be regarded ineffective until leave is granted This is Mr. Kadams submission which is based on the observation, viz. , "the suit or proceeding. . . granting the leave" in Bansidhar Shankarlal [1971] 41 Comp Cas 21 (SC ). This submission found favour with the learned single judge. The Supreme Court, after unequivocally holding that leave is not a condition precedent, observed as above. This observation has to be read in harmony with what the Supreme Court held a little earlier in the same paragraph, viz. , leave is not a condition precedent. Correctly interpreted it would mean that a suit or a legal proceeding pending at the time of the winding up order or commencement thereafter would be "ineffective" unless it is activated by leave. "ineffective" would only mean ineffective qua the official liquidator only who has power, inter alia, to defend any suit or other legal proceeding in order to protect all the property, effects and actionable claims to which the company is entitled. Thus, the observation cannot be stretched to non-suit a plaintiff whose suit when filed is otherwise within limitation. To give such an interpretation to this observation can result in only setting at naught what is held by the Supreme Court. The bar of limitation is a creature of the statute and cannot be imposed or read into the otherwise unambiguous language of section 446. The observation in question speaks of a legal fiction and cannot be interpreted to read into the said provision any legal bar. In these circumstances, we cannot accede to Mr. Kadams submission. The learned single judge was clearly in error in holding as he did.( 15 ) NOW, we come to the last submission of Mr. Kadam. It is submitted that in any view of the matter the application for leave was time-barred as under the residuary article 137 of the limitation Act, 1963, it should have been made within three years from the accrual of the right to apply. Section 446 of the Companies Act does not prescribe any time. Leave can be applied for, as we have held, subsequent to the order of winding up. Article 137 of the Limitation Act, 1963, deals with applications and is a residuary article. Under section 5 of the Limitation Act, the court is empowered to extend the time in filing any appeal or application unlike in a suit. We see no substance in this submission and the same is rejected. | 1[ds]( 9 ) IN the light of the above statutory provisions, we shall now examine the questions posed by us at the outset. ( 10 ) THE section does not expressly provide for nullification of the proceedings as a consequence ofwith the requirement of the section. The intention of the Legislature can be inferred from the omission of the words to the effect "previous leave of the court". Whenever the legislature wanted to make such leave or permission a condition precedent to the institution of proceedings, the words "previous sanction or permission or leave" have been used like in section 92 of the Civil Procedure Code, 1908, and in section 197 of the Criminal Procedure Code, 1973, and again in clause 12 of the Letters Patent The consequence of disregarding the necessity of the leave can also help us find out the legislative intent. The section does not expressly declare what shall be the consequence ofwith the statutory injunction. Whenever the legislature intended to lay down an absolute prohibition, the Legislature has expressly declared its intention in unambiguous terms. Section 537 of the Act can be compared with section 446. Section 537 of the Act reads as follows :"537. Avoidance of certain attachments, executions, etc. , in winding up by or subject to supervision of court.(1) Where any company is being wound up by or subject to the supervision of the court(a) any attachment, distress or execution put in force, without leave of the court, against the estate or effects of the company, after the commencement of the winding up; or (b) any sale held, without leave of the court, of any of the properties or effects of the company after such commencement; shall be void. (2) Nothing in this section applies to any proceedings for the recovery of any tax or impost or any dues payable to the Government. "( 11 ) SECTION 537 contains an unequivocal declaration that any action against the company after the commencement of the winding up, without the leave of the court, "shall be void". Such an express declaration is totally absent in section 446. The legislative intent is, therefore, undoubtedly not to lay down an absolute prohibition. A decree passed in the absence of leave is not a nullity. (See State of Bihar v. Syed Anisur Rehman [1977] 47 Comp Cas 372 (Pat) and united India General Finance Pvt. Ltd. , In. re : Official Liquidator United India General Finance pvt. Ltd. v. Satya Dev Awasthi [1978] 48 Comp Cas 190 (Delhi ). ( 12 ) THUS form the clear and unambiguous language of section 446, it can be seen that the leave required is not a condition precedent and can be granted ex post facto. In Bansidhar Shankarlal. [1971] 41 Comp Cas 21 the Supreme Court was directly concerned with the question as to whether leave was a condition precedent or not and held (at page 25) :"even granting that sanction under section 179 does not dispense with the leave under section 171 of the Act, to institute a proceeding in execution against a company ordered to be wound up, we do not thank that there is anything in the AM which makes the leave a condition precedent to the institution of a proceeding in execution of a decree against the company and that failure to obtain leave before institution of the proceeding entails dismissal of the proceeding. The suit or proceeding instituted without leave of the court may, in our judgment, be regarded as ineffective until leave is obtained, but once leave is obtained the proceeding will be deemed instituted on the date of granting leave. "( 13 ) PRIOR to this pronouncement by the Supreme Court, the courts in the country had taken divergent views. One view was that it was a condition precedent and the other that it was not. A division Bench of this court had in Eastern Steamship Pvt. Ltd. v. Pucto Pvt. Ltd. [1971] 41 comp Cas 43 taken the view that leave was a condition precedent. However, the Supreme Court decision in Bansidhar Shankarlal [1971] 41 Comp Cas 21 was delivered after the decision in eastern Steampship Pvt. Ltd. [1971] 41 Comp Cas 43 (Bom) and has thus impliedly overruled the decision in Eastern Steamship Pvt. Ltd. Apart from the fact that we are bound by the decision of the Supreme Court in Bansidhar Shankarlal [1971] 41 Comp Cas 21, the legislative intent manifested in the language leaves no room for doubt. We are supported in our view by the decisions in Zahama Bee v. Reliable Corporation P. Ltd. [1974] 44 Comp Cas 483 (AP), Star engineering Works v. Official Liquidator, Krishnakumar Mills Co. Ltd. [1977] 47 Comp Cas 30 (Guj), State Bank of Indian v. Official Liquidator, Scraps (India) P. Ltd. [1979] 49 Comp Cas 514 (Mad) and United Commercial Bank v. State of Jammu and Kashmir [1986] 60 Comp Cas 653 (P and H ). We are fully conscious of the fact that the Supreme Court decision in Bansidhar shankarlal [1971] 41 Comp Cas 21 was under section 171 of the Companies Act, 1913, and we are dealing with section 446 of the Indian Companies Act, 1956. The difference brought about in the language of section 446 of the Act is only a drafting change and has not effected any change in the legal position gathered by the Supreme Court from the language of the corresponding section 171 of the Indian Companies Act, 1913. The change in the language is only by way of amplification, clarification or elaboration of the provision contained in section 171 of the 1913 act rather than alteration or amendment thereof or departure therefrom. ( 14 ) THIS takes us to the next question, viz. , does failure to obtain leave entail dismissal of the suit and whether as regards limitation the suit instituted without leave be regarded ineffective until leave is granted This is Mr. Kadams submission which is based on the observation, viz. , "the suit or proceeding. . . granting the leave" in Bansidhar Shankarlal [1971] 41 Comp Cas 21 (SC ). This submission found favour with the learned single judge. The Supreme Court, after unequivocally holding that leave is not a condition precedent, observed as above. This observation has to be read in harmony with what the Supreme Court held a little earlier in the same paragraph, viz. , leave is not a condition precedent. Correctly interpreted it would mean that a suit or a legal proceeding pending at the time of the winding up order or commencement thereafter would be "ineffective" unless it is activated by leave. "ineffective" would only mean ineffective qua the official liquidator only who has power, inter alia, to defend any suit or other legal proceeding in order to protect all the property, effects and actionable claims to which the company is entitled. Thus, the observation cannot be stretched toa plaintiff whose suit when filed is otherwise within limitation. To give such an interpretation to this observation can result in only setting at naught what is held by the Supreme Court. The bar of limitation is a creature of the statute and cannot be imposed or read into the otherwise unambiguous language of section 446. The observation in question speaks of a legal fiction and cannot be interpreted to read into the said provision any legal bar. In these circumstances, we cannot accede to Mr. Kadams submission. The learned single judge was clearly in error in holding as he did.( 15 ) NOW, we come to the last submission of Mr. Kadam. It is submitted that in any view of the matter the application for leave wasas under the residuary article 137 of the limitation Act, 1963, it should have been made within three years from the accrual of the right to apply. Section 446 of the Companies Act does not prescribe any time. Leave can be applied for, as we have held, subsequent to the order of winding up. Article 137 of the Limitation Act, 1963, deals with applications and is a residuary article. Under section 5 of the Limitation Act, the court is empowered to extend the time in filing any appeal or application unlike in a suit. We see no substance in this submission and the same is rejected. | 1 | 3,559 | 1,579 | ### 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:
Comp Cas 372 (Pat) and united India General Finance Pvt. Ltd. , In. re : Official Liquidator United India General Finance pvt. Ltd. v. Satya Dev Awasthi [1978] 48 Comp Cas 190 (Delhi ). ( 12 ) THUS form the clear and unambiguous language of section 446, it can be seen that the leave required is not a condition precedent and can be granted ex post facto. In Bansidhar Shankarlal. [1971] 41 Comp Cas 21 the Supreme Court was directly concerned with the question as to whether leave was a condition precedent or not and held (at page 25) :"even granting that sanction under section 179 does not dispense with the leave under section 171 of the Act, to institute a proceeding in execution against a company ordered to be wound up, we do not thank that there is anything in the AM which makes the leave a condition precedent to the institution of a proceeding in execution of a decree against the company and that failure to obtain leave before institution of the proceeding entails dismissal of the proceeding. The suit or proceeding instituted without leave of the court may, in our judgment, be regarded as ineffective until leave is obtained, but once leave is obtained the proceeding will be deemed instituted on the date of granting leave. "( 13 ) PRIOR to this pronouncement by the Supreme Court, the courts in the country had taken divergent views. One view was that it was a condition precedent and the other that it was not. A division Bench of this court had in Eastern Steamship Pvt. Ltd. v. Pucto Pvt. Ltd. [1971] 41 comp Cas 43 taken the view that leave was a condition precedent. However, the Supreme Court decision in Bansidhar Shankarlal [1971] 41 Comp Cas 21 was delivered after the decision in eastern Steampship Pvt. Ltd. [1971] 41 Comp Cas 43 (Bom) and has thus impliedly overruled the decision in Eastern Steamship Pvt. Ltd. Apart from the fact that we are bound by the decision of the Supreme Court in Bansidhar Shankarlal [1971] 41 Comp Cas 21, the legislative intent manifested in the language leaves no room for doubt. We are supported in our view by the decisions in Zahama Bee v. Reliable Corporation P. Ltd. [1974] 44 Comp Cas 483 (AP), Star engineering Works v. Official Liquidator, Krishnakumar Mills Co. Ltd. [1977] 47 Comp Cas 30 (Guj), State Bank of Indian v. Official Liquidator, Scraps (India) P. Ltd. [1979] 49 Comp Cas 514 (Mad) and United Commercial Bank v. State of Jammu and Kashmir [1986] 60 Comp Cas 653 (P and H ). We are fully conscious of the fact that the Supreme Court decision in Bansidhar shankarlal [1971] 41 Comp Cas 21 was under section 171 of the Companies Act, 1913, and we are dealing with section 446 of the Indian Companies Act, 1956. The difference brought about in the language of section 446 of the Act is only a drafting change and has not effected any change in the legal position gathered by the Supreme Court from the language of the corresponding section 171 of the Indian Companies Act, 1913. The change in the language is only by way of amplification, clarification or elaboration of the provision contained in section 171 of the 1913 act rather than alteration or amendment thereof or departure therefrom. ( 14 ) THIS takes us to the next question, viz. , does failure to obtain leave entail dismissal of the suit and whether as regards limitation the suit instituted without leave be regarded ineffective until leave is granted This is Mr. Kadams submission which is based on the observation, viz. , "the suit or proceeding. . . granting the leave" in Bansidhar Shankarlal [1971] 41 Comp Cas 21 (SC ). This submission found favour with the learned single judge. The Supreme Court, after unequivocally holding that leave is not a condition precedent, observed as above. This observation has to be read in harmony with what the Supreme Court held a little earlier in the same paragraph, viz. , leave is not a condition precedent. Correctly interpreted it would mean that a suit or a legal proceeding pending at the time of the winding up order or commencement thereafter would be "ineffective" unless it is activated by leave. "ineffective" would only mean ineffective qua the official liquidator only who has power, inter alia, to defend any suit or other legal proceeding in order to protect all the property, effects and actionable claims to which the company is entitled. Thus, the observation cannot be stretched to non-suit a plaintiff whose suit when filed is otherwise within limitation. To give such an interpretation to this observation can result in only setting at naught what is held by the Supreme Court. The bar of limitation is a creature of the statute and cannot be imposed or read into the otherwise unambiguous language of section 446. The observation in question speaks of a legal fiction and cannot be interpreted to read into the said provision any legal bar. In these circumstances, we cannot accede to Mr. Kadams submission. The learned single judge was clearly in error in holding as he did.( 15 ) NOW, we come to the last submission of Mr. Kadam. It is submitted that in any view of the matter the application for leave was time-barred as under the residuary article 137 of the limitation Act, 1963, it should have been made within three years from the accrual of the right to apply. Section 446 of the Companies Act does not prescribe any time. Leave can be applied for, as we have held, subsequent to the order of winding up. Article 137 of the Limitation Act, 1963, deals with applications and is a residuary article. Under section 5 of the Limitation Act, the court is empowered to extend the time in filing any appeal or application unlike in a suit. We see no substance in this submission and the same is rejected.
### Response:
1
### Explanation:
Rehman [1977] 47 Comp Cas 372 (Pat) and united India General Finance Pvt. Ltd. , In. re : Official Liquidator United India General Finance pvt. Ltd. v. Satya Dev Awasthi [1978] 48 Comp Cas 190 (Delhi ). ( 12 ) THUS form the clear and unambiguous language of section 446, it can be seen that the leave required is not a condition precedent and can be granted ex post facto. In Bansidhar Shankarlal. [1971] 41 Comp Cas 21 the Supreme Court was directly concerned with the question as to whether leave was a condition precedent or not and held (at page 25) :"even granting that sanction under section 179 does not dispense with the leave under section 171 of the Act, to institute a proceeding in execution against a company ordered to be wound up, we do not thank that there is anything in the AM which makes the leave a condition precedent to the institution of a proceeding in execution of a decree against the company and that failure to obtain leave before institution of the proceeding entails dismissal of the proceeding. The suit or proceeding instituted without leave of the court may, in our judgment, be regarded as ineffective until leave is obtained, but once leave is obtained the proceeding will be deemed instituted on the date of granting leave. "( 13 ) PRIOR to this pronouncement by the Supreme Court, the courts in the country had taken divergent views. One view was that it was a condition precedent and the other that it was not. A division Bench of this court had in Eastern Steamship Pvt. Ltd. v. Pucto Pvt. Ltd. [1971] 41 comp Cas 43 taken the view that leave was a condition precedent. However, the Supreme Court decision in Bansidhar Shankarlal [1971] 41 Comp Cas 21 was delivered after the decision in eastern Steampship Pvt. Ltd. [1971] 41 Comp Cas 43 (Bom) and has thus impliedly overruled the decision in Eastern Steamship Pvt. Ltd. Apart from the fact that we are bound by the decision of the Supreme Court in Bansidhar Shankarlal [1971] 41 Comp Cas 21, the legislative intent manifested in the language leaves no room for doubt. We are supported in our view by the decisions in Zahama Bee v. Reliable Corporation P. Ltd. [1974] 44 Comp Cas 483 (AP), Star engineering Works v. Official Liquidator, Krishnakumar Mills Co. Ltd. [1977] 47 Comp Cas 30 (Guj), State Bank of Indian v. Official Liquidator, Scraps (India) P. Ltd. [1979] 49 Comp Cas 514 (Mad) and United Commercial Bank v. State of Jammu and Kashmir [1986] 60 Comp Cas 653 (P and H ). We are fully conscious of the fact that the Supreme Court decision in Bansidhar shankarlal [1971] 41 Comp Cas 21 was under section 171 of the Companies Act, 1913, and we are dealing with section 446 of the Indian Companies Act, 1956. The difference brought about in the language of section 446 of the Act is only a drafting change and has not effected any change in the legal position gathered by the Supreme Court from the language of the corresponding section 171 of the Indian Companies Act, 1913. The change in the language is only by way of amplification, clarification or elaboration of the provision contained in section 171 of the 1913 act rather than alteration or amendment thereof or departure therefrom. ( 14 ) THIS takes us to the next question, viz. , does failure to obtain leave entail dismissal of the suit and whether as regards limitation the suit instituted without leave be regarded ineffective until leave is granted This is Mr. Kadams submission which is based on the observation, viz. , "the suit or proceeding. . . granting the leave" in Bansidhar Shankarlal [1971] 41 Comp Cas 21 (SC ). This submission found favour with the learned single judge. The Supreme Court, after unequivocally holding that leave is not a condition precedent, observed as above. This observation has to be read in harmony with what the Supreme Court held a little earlier in the same paragraph, viz. , leave is not a condition precedent. Correctly interpreted it would mean that a suit or a legal proceeding pending at the time of the winding up order or commencement thereafter would be "ineffective" unless it is activated by leave. "ineffective" would only mean ineffective qua the official liquidator only who has power, inter alia, to defend any suit or other legal proceeding in order to protect all the property, effects and actionable claims to which the company is entitled. Thus, the observation cannot be stretched toa plaintiff whose suit when filed is otherwise within limitation. To give such an interpretation to this observation can result in only setting at naught what is held by the Supreme Court. The bar of limitation is a creature of the statute and cannot be imposed or read into the otherwise unambiguous language of section 446. The observation in question speaks of a legal fiction and cannot be interpreted to read into the said provision any legal bar. In these circumstances, we cannot accede to Mr. Kadams submission. The learned single judge was clearly in error in holding as he did.( 15 ) NOW, we come to the last submission of Mr. Kadam. It is submitted that in any view of the matter the application for leave wasas under the residuary article 137 of the limitation Act, 1963, it should have been made within three years from the accrual of the right to apply. Section 446 of the Companies Act does not prescribe any time. Leave can be applied for, as we have held, subsequent to the order of winding up. Article 137 of the Limitation Act, 1963, deals with applications and is a residuary article. Under section 5 of the Limitation Act, the court is empowered to extend the time in filing any appeal or application unlike in a suit. We see no substance in this submission and the same is rejected.
|
YATIN NARENDRA OZA Vs. HIGH COURT OF GUJARAT | has been labelled as a repeated behaviour of what would amount to slap, say sorry, and forget. Since the statements issued by the petitioner caused huge damage to the Court and could not be repaired by the apology, the same was not accepted. The statements were not made in the heat of the moment, but were planned by way of a live telecast. Each of the members of the Full Court individually felt that the apology was only a paper apology. The privilege of the gown was withdrawn. 5. We may note at the threshold that the High Court has objected to the maintainability of a petition under Article 32 of the Constitution of India. The designation as a Senior Counsel in terms of the Rules framed under the Advocates Act, 1961 does not create a right much less a fundamental right in favour of the petitioner. Thus, it was submitted that what has been withdrawn is a privilege and not a right. The very nature of conferment of a designation is submitted to be a privilege (Indira Jaising v. Supreme Court of India (2017) 9 SCC 766 ) and, thus, the withdrawal of the privilege by those who conferred it would not make it justiciable at all especially since such withdrawal is not a bar to be granted such privilege again. It is thus submitted that in the absence of a right, no writ of mandamus can be issued. 6. It has been emphasised on behalf of the High Court that the conferment of this privilege weighs not only on the existence of certain legal acumen but a much higher standard of behaviour and if such presupposition disappears, the authority is empowered to withdraw the privilege. What has been urged is that re-conferment of this right on the petitioner through a writ of mandamus would be de hors the exercise of powers under statutory rules. 7. Dr. Singhvi and other counsel, coming to the aid of their colleague of long standing, did not seek to justify the conduct of the petitioner. The direction of the argument has been that this Court should show compassion. The withdrawal of designation is not limited by time and is disproportionately harsh as the petitioner is not being given an opportunity to redeem himself. The filing of an application afresh for designation after the specified time bar is stated to not really be a redemption. 8. Dr. Singhvi sought to explain that the petitioner had bona fidely raised issues within the institution regarding non-circulation of matters, based on a large number of complaints received from the members of the Bar by him by reason of his holding the position of the President. The petitioner endeavoured to resolve the grievances within the system by writing several letters and making many representations which were in a sober and restrained language. The grievance was stated to be not one against the Judges, but against the manner of working of the Registry. On account of his helplessness and not being able to provide solace to the lives of the suffering advocates, the petitioner even resigned as the President of the Bar but on account of the unanimous opinion of the Bar, withdrew the same. The Press Conference was stated to be the culmination of his inability to resolve the disputes, as a last resort. The petitioner got emotionally overwhelmed during the Press Conference and made utterances of which he has been very apologetic from the very beginning. It was submitted that the emotional utterances were not preplanned, and therefore, parts of what he said are sought to be relied upon to substantiate that he was not making allegations against the Bench as a whole. 9. In the proceedings before the Full Court also it was submitted that at the threshold an apology had been submitted. However, the Full Court had opined that even if the apology would have been given at the first instance, still the apology would not have been accepted as it was not submitted at the threshold. The consequence of the decision of the Full Court is stated to be that the contempt proceedings became fait accompli. 10. Dr. Singhvi really sought to canvas on the proportionality of the Full Courts decision, as did the petitioner who intermittently addressed the Court; even volunteering that he at times loses his balance while performing the role as the President of the Bar and that he is willing to give an undertaking that he will never contest elections to the Bar Association. We informed him that was a decision of his own to take and we certainly would not like to inhibit his right to contest the elections as a member of the Bar. It was his say and that of his counsel that the petitioner has learnt his lesson and, thus, an opportunity must be given to him for redemption. The withdrawal of designation was stated to be the most severe punishment for any Senior Advocate and in that behalf, the observations of Chief Justice Dickson of the Canadian Supreme Court in a historic case of R. v. Oakes were referred to in Modern Dental College v. State of M.P. (2016) 7 SCC 353 as under: The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society. 11. In the conspectus of the aforesaid we really find little ground to interfere with the impugned order before us. We respect the views of the High Court but still endeavour to give one more and last chance to the petitioner. In a way this can really be done by recourse to Article 142 of the Constitution of India as there is merit in the contention of the learned counsel for the High Court that there is no real infringement of the fundamental rights of the petitioner. The question is in what manner this last chance should be given? | 1[ds]11. In the conspectus of the aforesaid we really find little ground to interfere with the impugned order before us. We respect the views of the High Court but still endeavour to give one more and last chance to the petitioner. In a way this can really be done by recourse to Article 142 of the Constitution of India as there is merit in the contention of the learned counsel for the High Court that there is no real infringement of the fundamental rights of the petitioner. | 1 | 1,611 | 95 | ### Instruction:
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has been labelled as a repeated behaviour of what would amount to slap, say sorry, and forget. Since the statements issued by the petitioner caused huge damage to the Court and could not be repaired by the apology, the same was not accepted. The statements were not made in the heat of the moment, but were planned by way of a live telecast. Each of the members of the Full Court individually felt that the apology was only a paper apology. The privilege of the gown was withdrawn. 5. We may note at the threshold that the High Court has objected to the maintainability of a petition under Article 32 of the Constitution of India. The designation as a Senior Counsel in terms of the Rules framed under the Advocates Act, 1961 does not create a right much less a fundamental right in favour of the petitioner. Thus, it was submitted that what has been withdrawn is a privilege and not a right. The very nature of conferment of a designation is submitted to be a privilege (Indira Jaising v. Supreme Court of India (2017) 9 SCC 766 ) and, thus, the withdrawal of the privilege by those who conferred it would not make it justiciable at all especially since such withdrawal is not a bar to be granted such privilege again. It is thus submitted that in the absence of a right, no writ of mandamus can be issued. 6. It has been emphasised on behalf of the High Court that the conferment of this privilege weighs not only on the existence of certain legal acumen but a much higher standard of behaviour and if such presupposition disappears, the authority is empowered to withdraw the privilege. What has been urged is that re-conferment of this right on the petitioner through a writ of mandamus would be de hors the exercise of powers under statutory rules. 7. Dr. Singhvi and other counsel, coming to the aid of their colleague of long standing, did not seek to justify the conduct of the petitioner. The direction of the argument has been that this Court should show compassion. The withdrawal of designation is not limited by time and is disproportionately harsh as the petitioner is not being given an opportunity to redeem himself. The filing of an application afresh for designation after the specified time bar is stated to not really be a redemption. 8. Dr. Singhvi sought to explain that the petitioner had bona fidely raised issues within the institution regarding non-circulation of matters, based on a large number of complaints received from the members of the Bar by him by reason of his holding the position of the President. The petitioner endeavoured to resolve the grievances within the system by writing several letters and making many representations which were in a sober and restrained language. The grievance was stated to be not one against the Judges, but against the manner of working of the Registry. On account of his helplessness and not being able to provide solace to the lives of the suffering advocates, the petitioner even resigned as the President of the Bar but on account of the unanimous opinion of the Bar, withdrew the same. The Press Conference was stated to be the culmination of his inability to resolve the disputes, as a last resort. The petitioner got emotionally overwhelmed during the Press Conference and made utterances of which he has been very apologetic from the very beginning. It was submitted that the emotional utterances were not preplanned, and therefore, parts of what he said are sought to be relied upon to substantiate that he was not making allegations against the Bench as a whole. 9. In the proceedings before the Full Court also it was submitted that at the threshold an apology had been submitted. However, the Full Court had opined that even if the apology would have been given at the first instance, still the apology would not have been accepted as it was not submitted at the threshold. The consequence of the decision of the Full Court is stated to be that the contempt proceedings became fait accompli. 10. Dr. Singhvi really sought to canvas on the proportionality of the Full Courts decision, as did the petitioner who intermittently addressed the Court; even volunteering that he at times loses his balance while performing the role as the President of the Bar and that he is willing to give an undertaking that he will never contest elections to the Bar Association. We informed him that was a decision of his own to take and we certainly would not like to inhibit his right to contest the elections as a member of the Bar. It was his say and that of his counsel that the petitioner has learnt his lesson and, thus, an opportunity must be given to him for redemption. The withdrawal of designation was stated to be the most severe punishment for any Senior Advocate and in that behalf, the observations of Chief Justice Dickson of the Canadian Supreme Court in a historic case of R. v. Oakes were referred to in Modern Dental College v. State of M.P. (2016) 7 SCC 353 as under: The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society. 11. In the conspectus of the aforesaid we really find little ground to interfere with the impugned order before us. We respect the views of the High Court but still endeavour to give one more and last chance to the petitioner. In a way this can really be done by recourse to Article 142 of the Constitution of India as there is merit in the contention of the learned counsel for the High Court that there is no real infringement of the fundamental rights of the petitioner. The question is in what manner this last chance should be given?
### Response:
1
### Explanation:
11. In the conspectus of the aforesaid we really find little ground to interfere with the impugned order before us. We respect the views of the High Court but still endeavour to give one more and last chance to the petitioner. In a way this can really be done by recourse to Article 142 of the Constitution of India as there is merit in the contention of the learned counsel for the High Court that there is no real infringement of the fundamental rights of the petitioner.
|
Gopinath Vitthal Sable Vs. The State of Maharashtra | to say about it, answered that it is true that Vishwas Waman Borade is my relative. I do not know that the house of Shivaji Pardhi [PW7] is adjacent to the house of Vishwas Waman Borade.21. Thus, the prosecution has proved that Vishwas Waman Borade is relative of Accused Gopinath, and Shivaji Pardhi [PW7], who is residing adjacent to the house of said Vishwas, has purchased the aforesaid mobile set from the Accused Gopinath. It appears that the trial Court summoned Suresh Mangilal Khandelwal as Court Witness. Mr.Suresh [Court Witness No.1] deposed that, he was owner and proprietor of the shop, named and styled as JM Moile Shoppe up to 2007. He used to sell mobiles from the said shop. He closed the said shop in the year 2007. He produced the certificate of CA to show that he was running the said shop till the year 20042005. He tried to search for the original cash and credit memo bearing No.1201 dated 25th December 2005. However, since his shop is closed he could not locate the original cash and credit memo. However, upon going through the photocopy of the said memo placed on record by the prosecution, he stated that the said cash and credit memo was issued from his shop. A perusal of original record shows that the photocopy of the cash or credit memo was placed on record by the prosecution at Article A. We have carefully perused the certificate at Exh.124 which is part of record, wherein it is mentioned as under :This is to certify that Mr.Suresh Mangilal Khandelwal is proprietor of M/s.J.M.Mobile Shopee and below mentioned bill entry has been duly made in the books of accounts for the previous year 20042005 of j m mobile shoppe.1. Bill no.1201 customer name : cash/ajai kadu Model no nokia 1100 amount at 2550/incl taxes.Further it is stated that the whole bill book not found for above series under the custody of proprietor.This certificate is issued on specific request of proprietor. (underlines added)22. We have discussed herein above the evidence of Mohan Barve[PW8], Shivaji Pardhi [PW.7] and court witnessSuresh Khandelwal. It has come in the evidence of Amar Kadu [PW4] that the said mobile handset was shown to him, and he identified the said mobile set, which belonged to Ajay. The prosecution by examining Mohan Barve [PW8], Shivaji Nathu Pardhi [PW7] and Suresh Mangilal Khandelwal as Court Witness and the API, Milind Vasantrao Gaikwad [PW11] has led the satisfactory evidence, and proved that, Accused Gopinath immediately after the incident of homicidal death of Ajay was found in the custody of mobile phone [the Article 1], which was possessed by deceased Ajay prior to his death and also on relevant day and time of the incident.23. In order to prove another incriminating circumstance against the Accused Gopinath that, on immediately after the incident of homicidal death of Ajay Kadu, Accused Gopinath was found in custody and control of gold ring [at Article 3], the prosecution examined Satish Javedchand Solanki [PW6], Amar Sakharam Kadu [PW4] and also the Investigating officer.24. Satish [PW6] deposed before the Court that, he is having business of gold smith at Thane. He knows Gopinath Vitthal Sable. He had been to his shop along with his brother. Brother of Gopinath is his regular customer. Accused Gopinath had been to his shop. He disclosed him that wife of his brother is admitted in the hospital for delivery and he is in need of money. Accused Gopinath gave gold ring to him. He gave Rs.1600/to Gopinath. Since then neither Gopinath nor his brother came to him. The gold ring remained with him. In the month of January 2007 Accused Gopinath along with police came to his shop. Satish Solanki [PW6] returned the said gold ring to police. Accordingly police seized the said gold ring under panchanama. The said gold ring was identified by Amar Kadu [PW4] brother of deceased Ajay. It is necessary to mention that aforesaid gold ring was recovered pursuant to memorandum statement of Accused Gopinath that he had sold the said gold ring to Satish Solanki [PW6].25. We have carefully perused the findings recorded by the trial Court, the trial Court has discussed in detail, the evidence in relation to aforesaid incriminating circumstances and reached to the conclusion that the Appellant Gopinath is guilty of offence punishable under section 302 read with section 34 of Indian Penal Code and also section 394 of the Indian Penal Code. Upon reappreciation of entire evidence we are of the opinion that the findings recorded by the trial Court are in consonance with the evidence brought on record, and there is no perversity as such. The view taken by the trial Court, and confirmed by us is fortified by the exposition of law, in Mukund alias Kundu Mishra and another Vs. State of Madhya Pradesh (AIR 1997 Supreme Court 2622), wherein stolen properties were recovered at the behest of the Accused in a prosecution for the offences of robbery and murder in one and same transaction. The Supreme Court held that presumption can be drawn not only of the fact that the person in whose possession the stolen articles were found committed robbery but also that he committed murder. Though we have confirmed the finding of the trial Court, we have noticed that out of four accused tried before the trial Court, only Appellant has been convicted. Therefore, the question of conviction of Appellant Gopinath Vitthal Sable, being only convicted accused by invoking section 34 of Indian Penal Code would not arise. In that view of the matter, we hold the Appellant Gopinath Vitthal Sable guilty of the offences punishable simplicitor under Section 302 and 394 of the Indian Penal Code, instead of under Section 302 read with section 34 and Section 394 read with section 34 of the Indian Penal Code, as held by the trial Court.26. In the light of discussion in aforegoing paragraphs, we are of the opinion that the Appeal is devoid of any merits. | 0[ds]Upon reappreciation of entire evidence we are of the opinion that the findings recorded by the trial Court are in consonance with the evidence brought on record, and there is no perversity as such. The view taken by the trial Court, and confirmed by us is fortified by the exposition of law, in Mukund alias Kundu Mishra and another Vs. State of Madhya Pradesh (AIR 1997 Supreme Court 2622), wherein stolen properties were recovered at the behest of the Accused in a prosecution for the offences of robbery and murder in one and same transaction. The Supreme Court held that presumption can be drawn not only of the fact that the person in whose possession the stolen articles were found committed robbery but also that he committed murder. Though we have confirmed the finding of the trial Court, we have noticed that out of four accused tried before the trial Court, only Appellant has been convicted. Therefore, the question of conviction of Appellant Gopinath Vitthal Sable, being only convicted accused by invoking section 34 of Indian Penal Code would not arise. In that view of the matter, we hold the Appellant Gopinath Vitthal Sable guilty of the offences punishable simplicitor under Section 302 and 394 of the Indian Penal Code, instead of under Section 302 read with section 34 and Section 394 read with section 34 of the Indian Penal Code, as held by the trial Court.26. In the light of discussion in aforegoing paragraphs, we are of the opinion that the Appeal is devoid of any merits. | 0 | 5,691 | 283 | ### Instruction:
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to say about it, answered that it is true that Vishwas Waman Borade is my relative. I do not know that the house of Shivaji Pardhi [PW7] is adjacent to the house of Vishwas Waman Borade.21. Thus, the prosecution has proved that Vishwas Waman Borade is relative of Accused Gopinath, and Shivaji Pardhi [PW7], who is residing adjacent to the house of said Vishwas, has purchased the aforesaid mobile set from the Accused Gopinath. It appears that the trial Court summoned Suresh Mangilal Khandelwal as Court Witness. Mr.Suresh [Court Witness No.1] deposed that, he was owner and proprietor of the shop, named and styled as JM Moile Shoppe up to 2007. He used to sell mobiles from the said shop. He closed the said shop in the year 2007. He produced the certificate of CA to show that he was running the said shop till the year 20042005. He tried to search for the original cash and credit memo bearing No.1201 dated 25th December 2005. However, since his shop is closed he could not locate the original cash and credit memo. However, upon going through the photocopy of the said memo placed on record by the prosecution, he stated that the said cash and credit memo was issued from his shop. A perusal of original record shows that the photocopy of the cash or credit memo was placed on record by the prosecution at Article A. We have carefully perused the certificate at Exh.124 which is part of record, wherein it is mentioned as under :This is to certify that Mr.Suresh Mangilal Khandelwal is proprietor of M/s.J.M.Mobile Shopee and below mentioned bill entry has been duly made in the books of accounts for the previous year 20042005 of j m mobile shoppe.1. Bill no.1201 customer name : cash/ajai kadu Model no nokia 1100 amount at 2550/incl taxes.Further it is stated that the whole bill book not found for above series under the custody of proprietor.This certificate is issued on specific request of proprietor. (underlines added)22. We have discussed herein above the evidence of Mohan Barve[PW8], Shivaji Pardhi [PW.7] and court witnessSuresh Khandelwal. It has come in the evidence of Amar Kadu [PW4] that the said mobile handset was shown to him, and he identified the said mobile set, which belonged to Ajay. The prosecution by examining Mohan Barve [PW8], Shivaji Nathu Pardhi [PW7] and Suresh Mangilal Khandelwal as Court Witness and the API, Milind Vasantrao Gaikwad [PW11] has led the satisfactory evidence, and proved that, Accused Gopinath immediately after the incident of homicidal death of Ajay was found in the custody of mobile phone [the Article 1], which was possessed by deceased Ajay prior to his death and also on relevant day and time of the incident.23. In order to prove another incriminating circumstance against the Accused Gopinath that, on immediately after the incident of homicidal death of Ajay Kadu, Accused Gopinath was found in custody and control of gold ring [at Article 3], the prosecution examined Satish Javedchand Solanki [PW6], Amar Sakharam Kadu [PW4] and also the Investigating officer.24. Satish [PW6] deposed before the Court that, he is having business of gold smith at Thane. He knows Gopinath Vitthal Sable. He had been to his shop along with his brother. Brother of Gopinath is his regular customer. Accused Gopinath had been to his shop. He disclosed him that wife of his brother is admitted in the hospital for delivery and he is in need of money. Accused Gopinath gave gold ring to him. He gave Rs.1600/to Gopinath. Since then neither Gopinath nor his brother came to him. The gold ring remained with him. In the month of January 2007 Accused Gopinath along with police came to his shop. Satish Solanki [PW6] returned the said gold ring to police. Accordingly police seized the said gold ring under panchanama. The said gold ring was identified by Amar Kadu [PW4] brother of deceased Ajay. It is necessary to mention that aforesaid gold ring was recovered pursuant to memorandum statement of Accused Gopinath that he had sold the said gold ring to Satish Solanki [PW6].25. We have carefully perused the findings recorded by the trial Court, the trial Court has discussed in detail, the evidence in relation to aforesaid incriminating circumstances and reached to the conclusion that the Appellant Gopinath is guilty of offence punishable under section 302 read with section 34 of Indian Penal Code and also section 394 of the Indian Penal Code. Upon reappreciation of entire evidence we are of the opinion that the findings recorded by the trial Court are in consonance with the evidence brought on record, and there is no perversity as such. The view taken by the trial Court, and confirmed by us is fortified by the exposition of law, in Mukund alias Kundu Mishra and another Vs. State of Madhya Pradesh (AIR 1997 Supreme Court 2622), wherein stolen properties were recovered at the behest of the Accused in a prosecution for the offences of robbery and murder in one and same transaction. The Supreme Court held that presumption can be drawn not only of the fact that the person in whose possession the stolen articles were found committed robbery but also that he committed murder. Though we have confirmed the finding of the trial Court, we have noticed that out of four accused tried before the trial Court, only Appellant has been convicted. Therefore, the question of conviction of Appellant Gopinath Vitthal Sable, being only convicted accused by invoking section 34 of Indian Penal Code would not arise. In that view of the matter, we hold the Appellant Gopinath Vitthal Sable guilty of the offences punishable simplicitor under Section 302 and 394 of the Indian Penal Code, instead of under Section 302 read with section 34 and Section 394 read with section 34 of the Indian Penal Code, as held by the trial Court.26. In the light of discussion in aforegoing paragraphs, we are of the opinion that the Appeal is devoid of any merits.
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### Explanation:
Upon reappreciation of entire evidence we are of the opinion that the findings recorded by the trial Court are in consonance with the evidence brought on record, and there is no perversity as such. The view taken by the trial Court, and confirmed by us is fortified by the exposition of law, in Mukund alias Kundu Mishra and another Vs. State of Madhya Pradesh (AIR 1997 Supreme Court 2622), wherein stolen properties were recovered at the behest of the Accused in a prosecution for the offences of robbery and murder in one and same transaction. The Supreme Court held that presumption can be drawn not only of the fact that the person in whose possession the stolen articles were found committed robbery but also that he committed murder. Though we have confirmed the finding of the trial Court, we have noticed that out of four accused tried before the trial Court, only Appellant has been convicted. Therefore, the question of conviction of Appellant Gopinath Vitthal Sable, being only convicted accused by invoking section 34 of Indian Penal Code would not arise. In that view of the matter, we hold the Appellant Gopinath Vitthal Sable guilty of the offences punishable simplicitor under Section 302 and 394 of the Indian Penal Code, instead of under Section 302 read with section 34 and Section 394 read with section 34 of the Indian Penal Code, as held by the trial Court.26. In the light of discussion in aforegoing paragraphs, we are of the opinion that the Appeal is devoid of any merits.
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Shobha & Ors Vs. The Chairman, Vithalrao Shinde Sahakari Sakhar Karkhana Ltd. & Ors | on the compensation amount, i.e., Rs. 1,53,090/-. 2.1 Feeling aggrieved and dissatisfied with the order passed by the Commissioner, Workmens Compensation, Beed dated 25.01.2017, respondent Nos. 1 to 3 herein filed the First Appeal No. 3008 of 2017 before the High Court. By the impugned judgment and order the High Court has though dismissed the appeal insofar as the amount of compensation awarded by the Commissioner is concerned, however, has set aside the penalty and modified the interest awarded @ 12% p.a. from the date of incident and has directed that the interest @ 12% p.a. shall become payable from the period after expiry of one month from 25.01.2017. 2.2 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the high Court restricting the interest @ 12% p.a. from the date after expiry of period of one month from 25.01.2017, the original claimants have preferred the present appeal. 3. We have heard the learned counsel for the respective parties at length. 4. While holding that the claimants shall be entitled to interest @ 12% p.a. from the date after expiry of a period of one month from 25.01.2017, the High Court has considered Section 4A(3)(b) only which deals with imposition of penalty. However, the High Court has not noted and/or considered Section 4A(3)(a) of the Act, 1923, which deals with award of interest when the employer is in default. Section 4A reads as under:- 4A. Compensation to be paid when due and penalty for default.- (1) Compensation under section 4 shall be paid as soon as it falls due. (2) In cases where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts, and, such payment shall be deposited with the Commissioner or made to the employee, as the case may be, without prejudice to the right of the employee to make any further claim. (3) Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner shall (a) direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereon at the rate of twelve per cent. per annum or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government by notification in the Official Gazette, on the amount due; and (b) if, in his opinion, there is no justification for the delay, direct that the employer shall, in addition to the amount of the arrears and interest thereon, pay a further sum not exceeding fifty per cent. of such amount by way of penalty: Provided that an order for the payment of penalty shall not be passed under clause (b) without giving a reasonable opportunity to the employer to show cause why it should not be passed. Explanation.- For the purposes of this sub-section, scheduled bank means a bank for the time being included in the Second Schedule to the Reserve Bank of India Act, 1934 (2 of 1934). (3A) The interest and the penalty payable under sub-section (3) shall be paid to the employee or his dependant, as the case may be. 4.1 Thus, from Section 4A of the Act, 1923 compensation under Section 4 shall be paid as soon as it falls due. It can be seen that the liability to pay the interest on the amount of compensation due and payable would be under Section 4A(3)(a) and the penalty would be leviable under Section 4A(3)(b). As per Section 4A(3)(a), the employer shall pay, in addition to the amount of the arrears, simple interest thereon @ 12% p.a. or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified on the amount due. As per Section 4A(1) compensation under section 4 shall be paid as soon as it falls due. Therefore, on the death of the employee/deceased immediately, the amount of compensation can be said to be falling due. Therefore, the liability to pay the compensation would arise immediately on the death of the deceased. Even as per Section 4A(2), in cases, where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts, and, such payment shall be deposited with the Commissioner or made to the employee, as the case may be, without prejudice to the right of the employee to make any further claim. Therefore, the liability to pay the compensation would arise from the date on which the deceased died for which he is entitled to the compensation and therefore, the liability to pay the interest on the amount of arrears/compensation shall be from the date of accident and not from the date of the order passed by the Commissioner. As per Section 4A(3)(b), if the Commissioner is satisfied that there is no justification for the delay, it can direct the employer, in addition to the amount of the arrears and interest thereon, to pay a further sum not exceeding 50% of such amount by way of penalty. Thus, provision for interest and provision for penalty are different. As observed hereinabove, the provision for levy of interest would be under Section 4A(3)(a) and the provision for levy of penalty would be under Section 4A(3)(b). While directing the employer to pay the interest from the date of the order passed by the Commissioner, the High Court has not at all considered Section 4A(3)(a) and has considered Section 4A(3)(b) only, which is the penalty provision. 5. Under the circumstances, the impugned judgment and order passed by the High Court directing the employee to pay the interest on the amount of compensation as leviable under Section 4A(3)(a) from the date of the order passed by the Commissioner, i.e., 25.01.2017 is unsustainable. | 1[ds]4. While holding that the claimants shall be entitled to interest @ 12% p.a. from the date after expiry of a period of one month from 25.01.2017, the High Court has considered Section 4A(3)(b) only which deals with imposition of penalty. However, the High Court has not noted and/or considered Section 4A(3)(a) of the Act, 1923, which deals with award of interest when the employer is in default.4.1 Thus, from Section 4A of the Act, 1923 compensation under Section 4 shall be paid as soon as it falls due. It can be seen that the liability to pay the interest on the amount of compensation due and payable would be under Section 4A(3)(a) and the penalty would be leviable under Section 4A(3)(b). As per Section 4A(3)(a), the employer shall pay, in addition to the amount of the arrears, simple interest thereon @ 12% p.a. or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified on the amount due. As per Section 4A(1) compensation under section 4 shall be paid as soon as it falls due. Therefore, on the death of the employee/deceased immediately, the amount of compensation can be said to be falling due. Therefore, the liability to pay the compensation would arise immediately on the death of the deceased. Even as per Section 4A(2), in cases, where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts, and, such payment shall be deposited with the Commissioner or made to the employee, as the case may be, without prejudice to the right of the employee to make any further claim. Therefore, the liability to pay the compensation would arise from the date on which the deceased died for which he is entitled to the compensation and therefore, the liability to pay the interest on the amount of arrears/compensation shall be from the date of accident and not from the date of the order passed by the Commissioner. As per Section 4A(3)(b), if the Commissioner is satisfied that there is no justification for the delay, it can direct the employer, in addition to the amount of the arrears and interest thereon, to pay a further sum not exceeding 50% of such amount by way of penalty. Thus, provision for interest and provision for penalty are different. As observed hereinabove, the provision for levy of interest would be under Section 4A(3)(a) and the provision for levy of penalty would be under Section 4A(3)(b). While directing the employer to pay the interest from the date of the order passed by the Commissioner, the High Court has not at all considered Section 4A(3)(a) and has considered Section 4A(3)(b) only, which is the penalty provision.5. Under the circumstances, the impugned judgment and order passed by the High Court directing the employee to pay the interest on the amount of compensation as leviable under Section 4A(3)(a) from the date of the order passed by the Commissioner, i.e., 25.01.2017 is unsustainable. | 1 | 1,500 | 643 | ### 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:
on the compensation amount, i.e., Rs. 1,53,090/-. 2.1 Feeling aggrieved and dissatisfied with the order passed by the Commissioner, Workmens Compensation, Beed dated 25.01.2017, respondent Nos. 1 to 3 herein filed the First Appeal No. 3008 of 2017 before the High Court. By the impugned judgment and order the High Court has though dismissed the appeal insofar as the amount of compensation awarded by the Commissioner is concerned, however, has set aside the penalty and modified the interest awarded @ 12% p.a. from the date of incident and has directed that the interest @ 12% p.a. shall become payable from the period after expiry of one month from 25.01.2017. 2.2 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the high Court restricting the interest @ 12% p.a. from the date after expiry of period of one month from 25.01.2017, the original claimants have preferred the present appeal. 3. We have heard the learned counsel for the respective parties at length. 4. While holding that the claimants shall be entitled to interest @ 12% p.a. from the date after expiry of a period of one month from 25.01.2017, the High Court has considered Section 4A(3)(b) only which deals with imposition of penalty. However, the High Court has not noted and/or considered Section 4A(3)(a) of the Act, 1923, which deals with award of interest when the employer is in default. Section 4A reads as under:- 4A. Compensation to be paid when due and penalty for default.- (1) Compensation under section 4 shall be paid as soon as it falls due. (2) In cases where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts, and, such payment shall be deposited with the Commissioner or made to the employee, as the case may be, without prejudice to the right of the employee to make any further claim. (3) Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner shall (a) direct that the employer shall, in addition to the amount of the arrears, pay simple interest thereon at the rate of twelve per cent. per annum or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified by the Central Government by notification in the Official Gazette, on the amount due; and (b) if, in his opinion, there is no justification for the delay, direct that the employer shall, in addition to the amount of the arrears and interest thereon, pay a further sum not exceeding fifty per cent. of such amount by way of penalty: Provided that an order for the payment of penalty shall not be passed under clause (b) without giving a reasonable opportunity to the employer to show cause why it should not be passed. Explanation.- For the purposes of this sub-section, scheduled bank means a bank for the time being included in the Second Schedule to the Reserve Bank of India Act, 1934 (2 of 1934). (3A) The interest and the penalty payable under sub-section (3) shall be paid to the employee or his dependant, as the case may be. 4.1 Thus, from Section 4A of the Act, 1923 compensation under Section 4 shall be paid as soon as it falls due. It can be seen that the liability to pay the interest on the amount of compensation due and payable would be under Section 4A(3)(a) and the penalty would be leviable under Section 4A(3)(b). As per Section 4A(3)(a), the employer shall pay, in addition to the amount of the arrears, simple interest thereon @ 12% p.a. or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified on the amount due. As per Section 4A(1) compensation under section 4 shall be paid as soon as it falls due. Therefore, on the death of the employee/deceased immediately, the amount of compensation can be said to be falling due. Therefore, the liability to pay the compensation would arise immediately on the death of the deceased. Even as per Section 4A(2), in cases, where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts, and, such payment shall be deposited with the Commissioner or made to the employee, as the case may be, without prejudice to the right of the employee to make any further claim. Therefore, the liability to pay the compensation would arise from the date on which the deceased died for which he is entitled to the compensation and therefore, the liability to pay the interest on the amount of arrears/compensation shall be from the date of accident and not from the date of the order passed by the Commissioner. As per Section 4A(3)(b), if the Commissioner is satisfied that there is no justification for the delay, it can direct the employer, in addition to the amount of the arrears and interest thereon, to pay a further sum not exceeding 50% of such amount by way of penalty. Thus, provision for interest and provision for penalty are different. As observed hereinabove, the provision for levy of interest would be under Section 4A(3)(a) and the provision for levy of penalty would be under Section 4A(3)(b). While directing the employer to pay the interest from the date of the order passed by the Commissioner, the High Court has not at all considered Section 4A(3)(a) and has considered Section 4A(3)(b) only, which is the penalty provision. 5. Under the circumstances, the impugned judgment and order passed by the High Court directing the employee to pay the interest on the amount of compensation as leviable under Section 4A(3)(a) from the date of the order passed by the Commissioner, i.e., 25.01.2017 is unsustainable.
### Response:
1
### Explanation:
4. While holding that the claimants shall be entitled to interest @ 12% p.a. from the date after expiry of a period of one month from 25.01.2017, the High Court has considered Section 4A(3)(b) only which deals with imposition of penalty. However, the High Court has not noted and/or considered Section 4A(3)(a) of the Act, 1923, which deals with award of interest when the employer is in default.4.1 Thus, from Section 4A of the Act, 1923 compensation under Section 4 shall be paid as soon as it falls due. It can be seen that the liability to pay the interest on the amount of compensation due and payable would be under Section 4A(3)(a) and the penalty would be leviable under Section 4A(3)(b). As per Section 4A(3)(a), the employer shall pay, in addition to the amount of the arrears, simple interest thereon @ 12% p.a. or at such higher rate not exceeding the maximum of the lending rates of any scheduled bank as may be specified on the amount due. As per Section 4A(1) compensation under section 4 shall be paid as soon as it falls due. Therefore, on the death of the employee/deceased immediately, the amount of compensation can be said to be falling due. Therefore, the liability to pay the compensation would arise immediately on the death of the deceased. Even as per Section 4A(2), in cases, where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the extent of liability which he accepts, and, such payment shall be deposited with the Commissioner or made to the employee, as the case may be, without prejudice to the right of the employee to make any further claim. Therefore, the liability to pay the compensation would arise from the date on which the deceased died for which he is entitled to the compensation and therefore, the liability to pay the interest on the amount of arrears/compensation shall be from the date of accident and not from the date of the order passed by the Commissioner. As per Section 4A(3)(b), if the Commissioner is satisfied that there is no justification for the delay, it can direct the employer, in addition to the amount of the arrears and interest thereon, to pay a further sum not exceeding 50% of such amount by way of penalty. Thus, provision for interest and provision for penalty are different. As observed hereinabove, the provision for levy of interest would be under Section 4A(3)(a) and the provision for levy of penalty would be under Section 4A(3)(b). While directing the employer to pay the interest from the date of the order passed by the Commissioner, the High Court has not at all considered Section 4A(3)(a) and has considered Section 4A(3)(b) only, which is the penalty provision.5. Under the circumstances, the impugned judgment and order passed by the High Court directing the employee to pay the interest on the amount of compensation as leviable under Section 4A(3)(a) from the date of the order passed by the Commissioner, i.e., 25.01.2017 is unsustainable.
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State Of Karnataka Vs. Laxuman | the Deputy Commissioner to refer, ceases. We think that this position logically emerges from the scheme of Section 18 of the Act as adopted in Karnataka. 24. The language of Section 18 is plain as indicated by the High Court. But the question is what is the scheme that has been formulated by Section 18 of the Act vis-Ã -vis a claim for enhancement. The scheme under Section 18 in Karnataka is a departure from the Central Act and the scheme in Karnataka has to be understood, based on the provisions in Section 18 as in Karnataka and the consequences emerging from it. The question whether the time fixed under Section 18(3)(a) is mandatory or directory and whether time fixed for performance of a duty is generally considered directory or mandatory are all questions that may not have much relevance in the context of the scheme of Section 18 of the Act. Whether mandatory or directory, on the failure of the Deputy Commissioner to make a reference within 90 days from the date of an application under Section 18(1) of the Act, the claimant is given the right to approach the Land Acquisition Court seeking the compelling of a reference by the Deputy Commissioner. Once the right to move for a compelled reference is lost to the claimant, on the scheme of Section 18, the very right to have a claim for enhancement, would come to an end in view of the fact that the remedy in that behalf becomes barred. Thereafter, the Deputy Commissioner cannot revive that right to a reference. 25. The High Court has made much of the fact that there is no obligation on the Deputy Commissioner under Section 18 of the Act to convey the information to the claimant about the making of the reference or the declining of the application for reference. Once a claimant has made his application for reference within the period prescribed by Section 18 of the Act, and he does not get any notice from the reference court regarding the reference made to that court for enforcement of his claim for enhanced compensation, it is for the claimant to move the concerned court for getting a reference made in terms of Section 18 of the Act. If he gets intimation from the reference court about the lodging of the reference, obviously, it becomes unnecessary for him to approach the court for compelling a reference. But in a case where he gets no intimation from the reference court about the reference having been made, it is for him to invoke the jurisdiction of the reference court under Section 18(3)(b) of the Act within the time prescribed therefor by law. The extinguishment of the remedy by way of moving the civil court is not dependent on receipt or otherwise of an intimation from the Deputy Commissioner about the fate of his application for reference. 20. The view we have taken, after all, does not deprive a claimant who had protested, of his right to enhanced compensation in view of the introduction of Section 28A of the Land Acquisition Act. He could seek an enhancement based on any award that might have been made within the time prescribed therefor in respect of land covered by the same notification. 26. Then the question is, whether in the context of Section 18 of the Karnataka amendment, the decision of this Court in Thakoredas (supra) and our discussion as above, Section 5 of the Limitation Act could be invoked or would apply to an application under Section 18(3)(b) of the Act. This Court has held that Section 5 of the Limitation Act has no application to proceedings before the Collector or Deputy Commissioner here, while entertaining an application for reference. We see no reason not to accept that position. Then arises the question whether Section 5 could be invoked before the Land Acquisition Court while making an application under Section 18(3)(b) of the Act. We have held in agreement with the earlier Division Bench of the Karnataka High Court, that the right to have a reference enforced through court or through the Deputy Commissioner becomes extinguished on the expiry of three years and 90 days from the date of the application for reference made in time. Consistent with this position it has necessarily to be held that Section 5 of the Limitation Act would not be available since the consequence of not enforcing the right to have a reference made on the scheme of Section 18 of the Act as obtaining in Karnataka, is to put an end to the right to have a reference at all. Since in that sense it is an extinguishment of the right, the right cannot be revived by resorting to Section 5 of the Limitation Act. We may incidentally notice that in Thakoredas (supra) this Court rejected the application under Section 18(3)(b) of the Act which was beyond time, though, of course, there was no specific discussion on this aspect. 27. An application under Section 18(3)(b) of the Act is to compel a reference by the Deputy Commissioner. We have held that on the expiry of three years and 90 days from the date of the application for reference seeking enhancement the right of the Deputy Commissioner to make the reference comes to an end. In that context, and in the context of the fact that the claimant himself loses his right to move the court for compelling a reference, it is not possible to hold that by invoking Section 5 of the Limitation Act before the Land Acquisition Court the claimant can get over the bar to the remedy created by Section 18 of the Act. We are, therefore, of the view that Section 5 of the Limitation Act would have no application while approaching the court under Section 18(3)(b) of the Act and if the application is not within the time as indicated above, the same has only to be dismissed as was done in Thakoredass case (supra). | 1[ds]9. As can be seen, no time for applying to the court in terms of sub-section (3) is fixed by the statute. But since the application is to the court, though under a special enactment, Article 137, the residuary article of the Limitation Act, 1963, would be attracted and the application has to be made within three years of the application for making a reference or the expiry of 90 days after the application. The position is settled by the decision of this Court in The Addl. Spl. Land Acquisition Officer, Bangalore vs. Thakoredas, Major and others (AIR 1994 SC 2227 ). It wasthe cause of action for seeking a reference had arisen on the date of service of the award under Section 12(2) of the Act. Within 90 days from the date of the service of notice, the respondents made the application requesting the Deputy Commissioner to refer the cases to the Civil Court under Section 18. Under the amended sub-section 3(a) of the Act, the Deputy Commissioner shall, within 90 days from September 1, 1970 make reference under Section 18 to the Civil Court which he failed to do . Consequently, by operation of sub-section 3(b) with the expiry of the aforestated 90 days, the cause of action had accrued to the respondents to make an application to the Civil Court with a prayer to direct the Deputy Commissioner to make a reference. There is no period of limitation prescribed in sub-section 3(b) to make that application but it should be done within limitation prescribed by the Schedule to the Limitation Act. Since no Article expressly prescribed the limitation to make such application, the residuary article under Article 137 of the Schedule to the Limitation Act gets attracted. Thus, it could be seen that in the absence of any special period of limitation prescribed by clause (b) of sub- section (3) of Section 18 of the Act, the application should have been made within three years from the date of expiry of 90 days prescribed in Section 18(3)(b) i.e. the date on which cause of action had accrued to the respondent-claimant. Since the applications had been admittedly made beyond three years, it was clearly barred by limitation. Since, the High Court relied upon the case in Municipal Corporation of Athani (AIR 1969 SC 1335 ), which has stood overruled, the order of the High Court isState Electricity Board vs. T.P. Kunhaliumma (1976 (4) SCCe Electricity Board vs. T.P. Kunhaliumma (1976 (4) SCCAddl. Spl. Land Acquisition Officer, Bangalore vs. Thakoredas, Major and others (supra), the time for approaching the court under Section 18(3)(b) of the Act stands crystalised. The application has to be made within three years of the expiry of 90This Court has also held that in proceedings under the Land Acquisition Act before the authorities under that Act, Section 5 of the Limitation Act has no application (See Officer on Special Duty (Land Acquisition) and another vs. Shah Manilal Chandulal and others (1996 (9) SCC 414). Therefore, Section 5 of the Limitation Act cannot be resorted to while making an application under Section 18(1) of the Act and the application has to be made within the period fixed by Section 18(2) of theon Special Duty (Land Acquisition) and another vs. Shah Manilal Chandulal and others (1996 (9) SCC18(3)(a) and Section 18(3)(b) read in harmony, casts an obligation on the claimant to enforce his claim within the period available for it. The scheme brings about a repose. It is based on a public policy that a right should not be allowed to remain a right indefinitely to be used against another at the will and pleasure of the holder of the right by approaching the court whenever he chooses to do so. When the right of the Deputy Commissioner to make the reference on the application of the claimant under Section 18(1) of the Act stands extinguished on the expiry of 3 years and 90 days from the date of application for reference, and the right of the claimant to move the Court for compelling a reference also stands extinguished, the right itself looses its enforceability and thus comes to an end as a result. This is the scheme of Section 18 of the Act as adopted in the State of Karnataka. The High Court is, therefore, not correct in searching for a specific provision bringing about an extinguishment of the right to have a reference and on not finding it, postulating that the right would survive forThe High Court has made much of the fact that there is no obligation on the Deputy Commissioner under Section 18 of the Act to convey the information to the claimant about the making of the reference or the declining of the application for reference. Once a claimant has made his application for reference within the period prescribed by Section 18 of the Act, and he does not get any notice from the reference court regarding the reference made to that court for enforcement of his claim for enhanced compensation, it is for the claimant to move the concerned court for getting a reference made in terms of Section 18 of the Act. If he gets intimation from the reference court about the lodging of the reference, obviously, it becomes unnecessary for him to approach the court for compelling a reference. But in a case where he gets no intimation from the reference court about the reference having been made, it is for him to invoke the jurisdiction of the reference court under Section 18(3)(b) of the Act within the time prescribed therefor by law. The extinguishment of the remedy by way of moving the civil court is not dependent on receipt or otherwise of an intimation from the Deputy Commissioner about the fate of his application for reference. 20. The view we have taken, after all, does not deprive a claimant who had protested, of his right to enhanced compensation in view of the introduction of Section 28A of the Land Acquisition Act. He could seek an enhancement based on any award that might have been made within the time prescribed therefor in respect of land covered by the sameCourt has held that Section 5 of the Limitation Act has no application to proceedings before the Collector or Deputy Commissioner here, while entertaining an application for reference. We see no reason not to accept thathave held in agreement with the earlier Division Bench of the Karnataka High Court, that the right to have a reference enforced through court or through the Deputy Commissioner becomes extinguished on the expiry of three years and 90 days from the date of the application for reference made in time. Consistent with this position it has necessarily to be held that Section 5 of the Limitation Act would not be available since the consequence of not enforcing the right to have a reference made on the scheme of Section 18 of the Act as obtaining in Karnataka, is to put an end to the right to have a reference at all. Since in that sense it is an extinguishment of the right, the right cannot be revived by resorting to Section 5 of the Limitation Act. We may incidentally notice that in Thakoredas (supra) this Court rejected the application under Section 18(3)(b) of the Act which was beyond time, though, of course, there was no specific discussion on thishave held in agreement with the earlier Division Bench of the Karnataka High Court, that the right to have a reference enforced through court or through the Deputy Commissioner becomes extinguished on the expiry of three years and 90 days from the date of the application for reference made in time. Consistent with this position it has necessarily to be held that Section 5 of the Limitation Act would not be available since the consequence of not enforcing the right to have a reference made on the scheme of Section 18 of the Act as obtaining in Karnataka, is to put an end to the right to have a reference at all. Since in that sense it is an extinguishment of the right, the right cannot be revived by resorting to Section 5 of the Limitation Act. We may incidentally notice that in Thakoredas (supra) this Court rejected the application under Section 18(3)(b) of the Act which was beyond time, though, of course, there was no specific discussion on this | 1 | 7,956 | 1,597 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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the Deputy Commissioner to refer, ceases. We think that this position logically emerges from the scheme of Section 18 of the Act as adopted in Karnataka. 24. The language of Section 18 is plain as indicated by the High Court. But the question is what is the scheme that has been formulated by Section 18 of the Act vis-Ã -vis a claim for enhancement. The scheme under Section 18 in Karnataka is a departure from the Central Act and the scheme in Karnataka has to be understood, based on the provisions in Section 18 as in Karnataka and the consequences emerging from it. The question whether the time fixed under Section 18(3)(a) is mandatory or directory and whether time fixed for performance of a duty is generally considered directory or mandatory are all questions that may not have much relevance in the context of the scheme of Section 18 of the Act. Whether mandatory or directory, on the failure of the Deputy Commissioner to make a reference within 90 days from the date of an application under Section 18(1) of the Act, the claimant is given the right to approach the Land Acquisition Court seeking the compelling of a reference by the Deputy Commissioner. Once the right to move for a compelled reference is lost to the claimant, on the scheme of Section 18, the very right to have a claim for enhancement, would come to an end in view of the fact that the remedy in that behalf becomes barred. Thereafter, the Deputy Commissioner cannot revive that right to a reference. 25. The High Court has made much of the fact that there is no obligation on the Deputy Commissioner under Section 18 of the Act to convey the information to the claimant about the making of the reference or the declining of the application for reference. Once a claimant has made his application for reference within the period prescribed by Section 18 of the Act, and he does not get any notice from the reference court regarding the reference made to that court for enforcement of his claim for enhanced compensation, it is for the claimant to move the concerned court for getting a reference made in terms of Section 18 of the Act. If he gets intimation from the reference court about the lodging of the reference, obviously, it becomes unnecessary for him to approach the court for compelling a reference. But in a case where he gets no intimation from the reference court about the reference having been made, it is for him to invoke the jurisdiction of the reference court under Section 18(3)(b) of the Act within the time prescribed therefor by law. The extinguishment of the remedy by way of moving the civil court is not dependent on receipt or otherwise of an intimation from the Deputy Commissioner about the fate of his application for reference. 20. The view we have taken, after all, does not deprive a claimant who had protested, of his right to enhanced compensation in view of the introduction of Section 28A of the Land Acquisition Act. He could seek an enhancement based on any award that might have been made within the time prescribed therefor in respect of land covered by the same notification. 26. Then the question is, whether in the context of Section 18 of the Karnataka amendment, the decision of this Court in Thakoredas (supra) and our discussion as above, Section 5 of the Limitation Act could be invoked or would apply to an application under Section 18(3)(b) of the Act. This Court has held that Section 5 of the Limitation Act has no application to proceedings before the Collector or Deputy Commissioner here, while entertaining an application for reference. We see no reason not to accept that position. Then arises the question whether Section 5 could be invoked before the Land Acquisition Court while making an application under Section 18(3)(b) of the Act. We have held in agreement with the earlier Division Bench of the Karnataka High Court, that the right to have a reference enforced through court or through the Deputy Commissioner becomes extinguished on the expiry of three years and 90 days from the date of the application for reference made in time. Consistent with this position it has necessarily to be held that Section 5 of the Limitation Act would not be available since the consequence of not enforcing the right to have a reference made on the scheme of Section 18 of the Act as obtaining in Karnataka, is to put an end to the right to have a reference at all. Since in that sense it is an extinguishment of the right, the right cannot be revived by resorting to Section 5 of the Limitation Act. We may incidentally notice that in Thakoredas (supra) this Court rejected the application under Section 18(3)(b) of the Act which was beyond time, though, of course, there was no specific discussion on this aspect. 27. An application under Section 18(3)(b) of the Act is to compel a reference by the Deputy Commissioner. We have held that on the expiry of three years and 90 days from the date of the application for reference seeking enhancement the right of the Deputy Commissioner to make the reference comes to an end. In that context, and in the context of the fact that the claimant himself loses his right to move the court for compelling a reference, it is not possible to hold that by invoking Section 5 of the Limitation Act before the Land Acquisition Court the claimant can get over the bar to the remedy created by Section 18 of the Act. We are, therefore, of the view that Section 5 of the Limitation Act would have no application while approaching the court under Section 18(3)(b) of the Act and if the application is not within the time as indicated above, the same has only to be dismissed as was done in Thakoredass case (supra).
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(1976 (4) SCCe Electricity Board vs. T.P. Kunhaliumma (1976 (4) SCCAddl. Spl. Land Acquisition Officer, Bangalore vs. Thakoredas, Major and others (supra), the time for approaching the court under Section 18(3)(b) of the Act stands crystalised. The application has to be made within three years of the expiry of 90This Court has also held that in proceedings under the Land Acquisition Act before the authorities under that Act, Section 5 of the Limitation Act has no application (See Officer on Special Duty (Land Acquisition) and another vs. Shah Manilal Chandulal and others (1996 (9) SCC 414). Therefore, Section 5 of the Limitation Act cannot be resorted to while making an application under Section 18(1) of the Act and the application has to be made within the period fixed by Section 18(2) of theon Special Duty (Land Acquisition) and another vs. Shah Manilal Chandulal and others (1996 (9) SCC18(3)(a) and Section 18(3)(b) read in harmony, casts an obligation on the claimant to enforce his claim within the period available for it. The scheme brings about a repose. It is based on a public policy that a right should not be allowed to remain a right indefinitely to be used against another at the will and pleasure of the holder of the right by approaching the court whenever he chooses to do so. When the right of the Deputy Commissioner to make the reference on the application of the claimant under Section 18(1) of the Act stands extinguished on the expiry of 3 years and 90 days from the date of application for reference, and the right of the claimant to move the Court for compelling a reference also stands extinguished, the right itself looses its enforceability and thus comes to an end as a result. This is the scheme of Section 18 of the Act as adopted in the State of Karnataka. The High Court is, therefore, not correct in searching for a specific provision bringing about an extinguishment of the right to have a reference and on not finding it, postulating that the right would survive forThe High Court has made much of the fact that there is no obligation on the Deputy Commissioner under Section 18 of the Act to convey the information to the claimant about the making of the reference or the declining of the application for reference. Once a claimant has made his application for reference within the period prescribed by Section 18 of the Act, and he does not get any notice from the reference court regarding the reference made to that court for enforcement of his claim for enhanced compensation, it is for the claimant to move the concerned court for getting a reference made in terms of Section 18 of the Act. If he gets intimation from the reference court about the lodging of the reference, obviously, it becomes unnecessary for him to approach the court for compelling a reference. But in a case where he gets no intimation from the reference court about the reference having been made, it is for him to invoke the jurisdiction of the reference court under Section 18(3)(b) of the Act within the time prescribed therefor by law. The extinguishment of the remedy by way of moving the civil court is not dependent on receipt or otherwise of an intimation from the Deputy Commissioner about the fate of his application for reference. 20. The view we have taken, after all, does not deprive a claimant who had protested, of his right to enhanced compensation in view of the introduction of Section 28A of the Land Acquisition Act. He could seek an enhancement based on any award that might have been made within the time prescribed therefor in respect of land covered by the sameCourt has held that Section 5 of the Limitation Act has no application to proceedings before the Collector or Deputy Commissioner here, while entertaining an application for reference. We see no reason not to accept thathave held in agreement with the earlier Division Bench of the Karnataka High Court, that the right to have a reference enforced through court or through the Deputy Commissioner becomes extinguished on the expiry of three years and 90 days from the date of the application for reference made in time. Consistent with this position it has necessarily to be held that Section 5 of the Limitation Act would not be available since the consequence of not enforcing the right to have a reference made on the scheme of Section 18 of the Act as obtaining in Karnataka, is to put an end to the right to have a reference at all. Since in that sense it is an extinguishment of the right, the right cannot be revived by resorting to Section 5 of the Limitation Act. We may incidentally notice that in Thakoredas (supra) this Court rejected the application under Section 18(3)(b) of the Act which was beyond time, though, of course, there was no specific discussion on thishave held in agreement with the earlier Division Bench of the Karnataka High Court, that the right to have a reference enforced through court or through the Deputy Commissioner becomes extinguished on the expiry of three years and 90 days from the date of the application for reference made in time. Consistent with this position it has necessarily to be held that Section 5 of the Limitation Act would not be available since the consequence of not enforcing the right to have a reference made on the scheme of Section 18 of the Act as obtaining in Karnataka, is to put an end to the right to have a reference at all. Since in that sense it is an extinguishment of the right, the right cannot be revived by resorting to Section 5 of the Limitation Act. We may incidentally notice that in Thakoredas (supra) this Court rejected the application under Section 18(3)(b) of the Act which was beyond time, though, of course, there was no specific discussion on this
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Management of Express Newspapers (Private) Ltd Vs. The Workers & Others | condition of service, are questions which the Tribunal may have to try. But since the dispute centers round this verbal assurance, it would be idle to contend that issue No.1 relates to the transfer of business which cannot be the subject-matter of an industrial dispute. It is in the light of the contentions raised by the respondents that the limits of the issue are, in a sense, determined and it would be within these limitations that the Tribunal would have to try this issue. Therefore, we are not prepared to accept Mr. Sastris argument that issue No.1 could not have been validly referred to the Industrial Tribunal for its adjudication. 19. Then in regard to issue No.2, the argument is that this issue has, in fact, been determined by the Government and nothing is left to the Tribunal to consider or decide It may be conceded that the wording of the issue is not artistic and unfortunate. As it is worded, it no doubt, prima facie gives an impression that the enquiry on this issue has to proceed on the assumption that the conduct of the appellant amounts to a lockout, and this argument is somewhat strengthened by the ill-advised and unfortunate order passed by the State Government under S.10 (3).It is hardly necessary to emphasise that since the jurisdiction of the Industrial Tribunal in dealing with industrial disputes referred to it under S. 10 is limited by S.10(4) to the points specifically mentioned in the reference and matters incidental thereto, the appropriate Government should frame the relevant orders of reference carefully and the questions which are intended to be tried by the Industrial Tribunal should be so worded as to leave no scope for ambiguity or controversy. An order of reference hastily drawn or drawn in a casual manner often gives rise to unnecessary disputes and thereby prolongs the life of industrial adjudication which must always be avoided. Even so, when the question of this kind is raised before the Courts, the Courts must attempt to construe the reference not too technically or in a pedantic manner, but fairly and reasonably. Thus construed, even the inelegant phraseology in framing the issue cannot conceal the fact that in dealing with the issue, the main point which the Tribunal will have to consider is whether the strike of the respondents on April 27, 1959, was justified and whether the action of the appellant which followed the said strike is either a lock out or amounts to a closure. The respondents will contend that it is a lockout which is in the nature of an act of a reprisal on the part of the appellant, whereas the appellant will contend that it is not a lockout but a closure genuine and bona fide. Thus, having regard to the content of the dispute covered by issue No.2 it would not be right to suggest that the reference precludes the Tribunal from entertaining the appellants plea that what it did on the 29th April is in fact not a lockout but a closure. The fact that the relevant action of the appellant is called a lockout does not mean that the Tribunal must hold it to be a lockout. In this connection it may be recalled that in several cases where industrial disputes are referred for industrial adjudication in respect of certain persons named as workmen, the employees raise the contention that the specified persons are not their workmen and it has never been suggested that merely because the said persons are described as workmen in the reference, the employer is precluded from disputing their status or that the Tribunal has no jurisdiction to try such an incidental dispute. Therefore, we do not think that Mr. Sastri is right in contending that issue No. 2 has been so worded as to exclude the jurisdiction of the Tribunal to deal with the question as to whether the appellants impugned action amounts to a closure or not. 20. In the result, we hold that the grievance made by the appellant against the decision of the Appeal Court in Writ Appeal No. 73/1959 is not well-founded. In order to avoid any controversy between the parties before the Industrial Tribunal as to the scope of the enquiry which the said Tribunal would be justified in holding on the present reference, we would like to state that in trying issue No.1 the Tribunal will deal with that issue in the light of the respondents contention about the verbal assurance given by the appellants Chairman to them during the course of the previous negotiations. In regard to the enquiry under issue No.2 the Tribunal will have to consider whether the strike was justified. It will also have to consider whether the transfer effected by the appellant amounts to a closure or a lockout and in dealing with this issue, it will take into account all facts which are relevant and material. 21. That leaves only one minor point to be mentioned and it relates to the order passed by the State Government under S.10(3) of the Act. We agree with the trial Court and the Court of Appeal that the State Government was ill advised to issue the said order. It may be that the State Government was anxious to preserve industrial peace and so, it proceeded to exercise its jurisdiction under S.10(3). But it is obvious that the full implications of the order were not appreciated by the State Government before it issued the said order. Indeed, the inappropriateness and the impropriety of the said order gave rise to an argument by the appellant that the Government was acting mala fide against it, and the State Government had to offer an explanation in the form of an affidavit and by way of a statement made by the Government Pleader at the Bar to meet this challenge. If only the State Government had considered the matter more carefully before issuing the said order, this complication could have been easily avoided. | 0[ds]10. The true legal position in regard to the jurisdiction of the High Court to entertain the appellants petition even at the initial stage of the proceedings proposed to be taken before the Industrial Tribunal is not in dispute. If the action taken by the appellant is not a lockout but is a closure bona fide and genuine the dispute which the respondents may raise in respect of such a closure is not an industrial dispute at all. On the other hand, if, in fact and in substance it is a lockout, but the said action has adopted the disguise of a closure, and a dispute raised in respect of such an action it would be an industrial dispute which industrial adjudication is competent to deal withThere is no doubt that in law, the appellant is entitled to move the High Court even at the initial stage and seek to satisfy it that the dispute is not an industrial dispute and so, the Industrial Tribunal has no jurisdiction to embark upon the proposed enquiry11. There is also no doubt that the proceedings before the Industrial Tribunal are in the nature of quasi judicial proceedings and in respect of them a writ of certiorari can issue in a proper case. If the Industrial Tribunal proceeds to assume jurisdiction over a non-industrial dispute that can be successfully challenged before the High Court by a petition for an appropriate writ, and the power of the High Court to issue an appropriate writ in that behalf cannot be questionedThis position is also not in dispute14. It seems to us difficult to accept Mr. Sastris argument that the Appeal Court was in error in taking this view. As we have just indicated, the legal position with regard to the jurisdiction of the High Court is not in doubtThough the distinction between the two concepts is thus clear in theory, in actual practice it is not always easy to decide whether the act of closure really amounts to a closure properly so called, or whether it is a disguise for a lockout. In dealing with this question, industrial adjudication has to take into account several relevant facts and these facts may be proved before the Industrial Tribunal either by oral evidence, or by documentary evidence and by evidence of conduct and circumstances. Whenever a serious dispute arises between an employer and his employees in regard to a closure which the employees allege is a lockout the enquiry which follows is likely to be long and elaborate and the ultimate decision has always to depend on a careful examination of the whole of the relevant evidence. That being so, it seems to us that the course adopted by the Appeal Court in the present proceedings is both proper and appropriateNormally, the questions of fact, though they may be jurisdictional facts the decision of which depends upon the appreciation of evidence, should be left to be tried by the special Tribunals constituted for that purpose. If and after the Special Tribunals try the preliminary issue in respect of such jurisdictional facts, it would be open to the aggrieved party to take that matter before the High Court by a writ petition and ask for an appropriate writ. Speaking generally, it would not be proper or appropriate that the initial jurisdiction of the Special Tribunal to deal with these jurisdictional facts should be circumvented and the decision of such a preliminary issue brought before a High Court in its writ jurisdiction. We wish to point out that in making these observations, we do not propose to lay down any fixed or inflexible rule, whether or not even the preliminary facts should be tried by a High Court in a writ petition must naturally depend upon the circumstances of each case and upon the nature of the preliminary issue raised between the parties. Having regard to the circumstances of the present dispute, we think the Court of Appeal was right in taking the view that the preliminary issue should more appropriately be dealt with by the Tribunal. The Appeal Court has made it clear that any party who feels aggrieved by the finding of the Tribunal on this preliminary issue may move the High Court in accordance with law. Therefore, we are not prepared to accept Mr. Sastris argument that the Appeal Court was wrong in reversing the conclusion of the trial Judge in so far as the Trial Judge proceeded to deal with the question as to whether the action of the appellant was a closure or a lockout16. Before we part with this topic, we wish to make it clear that when the Tribunal proceeds to deal with the dispute between the parties, it need not be influenced by the several observations made either by the trial Court or the Court of Appeal in respect of the transfer effected by the appellant on April 29, 1959. In the course of their judgments, both the trial Court and the Court of Appeal have indicated their preference for one view or the other and for a fair trial of the issue before a Tribunal, it is of utmost importance that we ought to emphasise the fact that these observations, either for the appellant or against it should be treated as obiter and the Tribunal should deal with the dispute on the merits independently and uninfluenced by these observations18. Thus presented, the argument is prima facie attractive. But in appreciating the scope of the enquiry contemplated by issue No.1 we cannot ignore the contentions raised by the respondents. It is clear that the case of the respondents is that during the negotiations between the appellant and the Union in the presence of the Acting Labour Minister and he Commissioner of Labour, the appellant sought to insert a clause in the agreement in respect of its proposal to shift the Andhra Prabha to Vijayawada and that the respondents objected to it. Thereupon, the appellants Chairman gave a verbal assurance that the business of the appellant would be carried on at Madras for 2 1/2 years which was the life of the agreementWe do not wish to express any opinion on the merits of this controversy at all. Whether or not a verbal assurance was given as pleaded by the respondents and if yes, whether such an assurance would constitute a condition of service, are questions which the Tribunal may have to try. But since the dispute centers round this verbal assurance, it would be idle to contend that issue No.1 relates to the transfer of business which cannot be the subject-matter of an industrial dispute. It is in the light of the contentions raised by the respondents that the limits of the issue are, in a sense, determined and it would be within these limitations that the Tribunal would have to try this issue. Therefore, we are not prepared to accept Mr. Sastris argument that issue No.1 could not have been validly referred to the Industrial Tribunal for its adjudicationAs it is worded, it no doubt, prima facie gives an impression that the enquiry on this issue has to proceed on the assumption that the conduct of the appellant amounts to a lockout, and this argument is somewhat strengthened by the ill-advised and unfortunate order passed by the State Government under S.10 (3).It is hardly necessary to emphasise that since the jurisdiction of the Industrial Tribunal in dealing with industrial disputes referred to it under S. 10 is limited by S.10(4) to the points specifically mentioned in the reference and matters incidental thereto, the appropriate Government should frame the relevant orders of reference carefully and the questions which are intended to be tried by the Industrial Tribunal should be so worded as to leave no scope for ambiguity or controversy. An order of reference hastily drawn or drawn in a casual manner often gives rise to unnecessary disputes and thereby prolongs the life of industrial adjudication which must always be avoided. Even so, when the question of this kind is raised before the Courts, the Courts must attempt to construe the reference not too technically or in a pedantic manner, but fairly and reasonably. Thus construed, even the inelegant phraseology in framing the issue cannot conceal the fact that in dealing with the issue, the main point which the Tribunal will have to consider is whether the strike of the respondents on April 27, 1959, was justified and whether the action of the appellant which followed the said strike is either a lock out or amounts to a closure. The respondents will contend that it is a lockout which is in the nature of an act of a reprisal on the part of the appellant, whereas the appellant will contend that it is not a lockout but a closure genuine and bona fide. Thus, having regard to the content of the dispute covered by issue No.2 it would not be right to suggest that the reference precludes the Tribunal from entertaining the appellants plea that what it did on the 29th April is in fact not a lockout but a closure. The fact that the relevant action of the appellant is called a lockout does not mean that the Tribunal must hold it to be a lockout. In this connection it may be recalled that in several cases where industrial disputes are referred for industrial adjudication in respect of certain persons named as workmen, the employees raise the contention that the specified persons are not their workmen and it has never been suggested that merely because the said persons are described as workmen in the reference, the employer is precluded from disputing their status or that the Tribunal has no jurisdiction to try such an incidental dispute. Therefore, we do not think that Mr. Sastri is right in contending that issue No. 2 has been so worded as to exclude the jurisdiction of the Tribunal to deal with the question as to whether the appellants impugned action amounts to a closure or not20. In the result, we hold that the grievance made by the appellant against the decision of the Appeal Court in Writ Appeal No. 73/1959 is not well-founded. In order to avoid any controversy between the parties before the Industrial Tribunal as to the scope of the enquiry which the said Tribunal would be justified in holding on the present reference, we would like to state that in trying issue No.1 the Tribunal will deal with that issue in the light of the respondents contention about the verbal assurance given by the appellants Chairman to them during the course of the previous negotiations. In regard to the enquiry under issue No.2 the Tribunal will have to consider whether the strike was justified. It will also have to consider whether the transfer effected by the appellant amounts to a closure or a lockout and in dealing with this issue, it will take into account all facts which are relevant and material21. That leaves only one minor point to be mentioned and it relates to the order passed by the State Government under S.10(3) of the Act. We agree with the trial Court and the Court of Appeal that the State Government was ill advised to issue the said order. It may be that the State Government was anxious to preserve industrial peace and so, it proceeded to exercise its jurisdiction under S.10(3). But it is obvious that the full implications of the order were not appreciated by the State Government before it issued the said order. Indeed, the inappropriateness and the impropriety of the said order gave rise to an argument by the appellant that the Government was acting mala fide against it, and the State Government had to offer an explanation in the form of an affidavit and by way of a statement made by the Government Pleader at the Bar to meet this challenge. If only the State Government had considered the matter more carefully before issuing the said order, this complication could have been easily avoided. | 0 | 5,323 | 2,135 | ### Instruction:
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condition of service, are questions which the Tribunal may have to try. But since the dispute centers round this verbal assurance, it would be idle to contend that issue No.1 relates to the transfer of business which cannot be the subject-matter of an industrial dispute. It is in the light of the contentions raised by the respondents that the limits of the issue are, in a sense, determined and it would be within these limitations that the Tribunal would have to try this issue. Therefore, we are not prepared to accept Mr. Sastris argument that issue No.1 could not have been validly referred to the Industrial Tribunal for its adjudication. 19. Then in regard to issue No.2, the argument is that this issue has, in fact, been determined by the Government and nothing is left to the Tribunal to consider or decide It may be conceded that the wording of the issue is not artistic and unfortunate. As it is worded, it no doubt, prima facie gives an impression that the enquiry on this issue has to proceed on the assumption that the conduct of the appellant amounts to a lockout, and this argument is somewhat strengthened by the ill-advised and unfortunate order passed by the State Government under S.10 (3).It is hardly necessary to emphasise that since the jurisdiction of the Industrial Tribunal in dealing with industrial disputes referred to it under S. 10 is limited by S.10(4) to the points specifically mentioned in the reference and matters incidental thereto, the appropriate Government should frame the relevant orders of reference carefully and the questions which are intended to be tried by the Industrial Tribunal should be so worded as to leave no scope for ambiguity or controversy. An order of reference hastily drawn or drawn in a casual manner often gives rise to unnecessary disputes and thereby prolongs the life of industrial adjudication which must always be avoided. Even so, when the question of this kind is raised before the Courts, the Courts must attempt to construe the reference not too technically or in a pedantic manner, but fairly and reasonably. Thus construed, even the inelegant phraseology in framing the issue cannot conceal the fact that in dealing with the issue, the main point which the Tribunal will have to consider is whether the strike of the respondents on April 27, 1959, was justified and whether the action of the appellant which followed the said strike is either a lock out or amounts to a closure. The respondents will contend that it is a lockout which is in the nature of an act of a reprisal on the part of the appellant, whereas the appellant will contend that it is not a lockout but a closure genuine and bona fide. Thus, having regard to the content of the dispute covered by issue No.2 it would not be right to suggest that the reference precludes the Tribunal from entertaining the appellants plea that what it did on the 29th April is in fact not a lockout but a closure. The fact that the relevant action of the appellant is called a lockout does not mean that the Tribunal must hold it to be a lockout. In this connection it may be recalled that in several cases where industrial disputes are referred for industrial adjudication in respect of certain persons named as workmen, the employees raise the contention that the specified persons are not their workmen and it has never been suggested that merely because the said persons are described as workmen in the reference, the employer is precluded from disputing their status or that the Tribunal has no jurisdiction to try such an incidental dispute. Therefore, we do not think that Mr. Sastri is right in contending that issue No. 2 has been so worded as to exclude the jurisdiction of the Tribunal to deal with the question as to whether the appellants impugned action amounts to a closure or not. 20. In the result, we hold that the grievance made by the appellant against the decision of the Appeal Court in Writ Appeal No. 73/1959 is not well-founded. In order to avoid any controversy between the parties before the Industrial Tribunal as to the scope of the enquiry which the said Tribunal would be justified in holding on the present reference, we would like to state that in trying issue No.1 the Tribunal will deal with that issue in the light of the respondents contention about the verbal assurance given by the appellants Chairman to them during the course of the previous negotiations. In regard to the enquiry under issue No.2 the Tribunal will have to consider whether the strike was justified. It will also have to consider whether the transfer effected by the appellant amounts to a closure or a lockout and in dealing with this issue, it will take into account all facts which are relevant and material. 21. That leaves only one minor point to be mentioned and it relates to the order passed by the State Government under S.10(3) of the Act. We agree with the trial Court and the Court of Appeal that the State Government was ill advised to issue the said order. It may be that the State Government was anxious to preserve industrial peace and so, it proceeded to exercise its jurisdiction under S.10(3). But it is obvious that the full implications of the order were not appreciated by the State Government before it issued the said order. Indeed, the inappropriateness and the impropriety of the said order gave rise to an argument by the appellant that the Government was acting mala fide against it, and the State Government had to offer an explanation in the form of an affidavit and by way of a statement made by the Government Pleader at the Bar to meet this challenge. If only the State Government had considered the matter more carefully before issuing the said order, this complication could have been easily avoided.
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### Explanation:
Madras for 2 1/2 years which was the life of the agreementWe do not wish to express any opinion on the merits of this controversy at all. Whether or not a verbal assurance was given as pleaded by the respondents and if yes, whether such an assurance would constitute a condition of service, are questions which the Tribunal may have to try. But since the dispute centers round this verbal assurance, it would be idle to contend that issue No.1 relates to the transfer of business which cannot be the subject-matter of an industrial dispute. It is in the light of the contentions raised by the respondents that the limits of the issue are, in a sense, determined and it would be within these limitations that the Tribunal would have to try this issue. Therefore, we are not prepared to accept Mr. Sastris argument that issue No.1 could not have been validly referred to the Industrial Tribunal for its adjudicationAs it is worded, it no doubt, prima facie gives an impression that the enquiry on this issue has to proceed on the assumption that the conduct of the appellant amounts to a lockout, and this argument is somewhat strengthened by the ill-advised and unfortunate order passed by the State Government under S.10 (3).It is hardly necessary to emphasise that since the jurisdiction of the Industrial Tribunal in dealing with industrial disputes referred to it under S. 10 is limited by S.10(4) to the points specifically mentioned in the reference and matters incidental thereto, the appropriate Government should frame the relevant orders of reference carefully and the questions which are intended to be tried by the Industrial Tribunal should be so worded as to leave no scope for ambiguity or controversy. An order of reference hastily drawn or drawn in a casual manner often gives rise to unnecessary disputes and thereby prolongs the life of industrial adjudication which must always be avoided. Even so, when the question of this kind is raised before the Courts, the Courts must attempt to construe the reference not too technically or in a pedantic manner, but fairly and reasonably. Thus construed, even the inelegant phraseology in framing the issue cannot conceal the fact that in dealing with the issue, the main point which the Tribunal will have to consider is whether the strike of the respondents on April 27, 1959, was justified and whether the action of the appellant which followed the said strike is either a lock out or amounts to a closure. The respondents will contend that it is a lockout which is in the nature of an act of a reprisal on the part of the appellant, whereas the appellant will contend that it is not a lockout but a closure genuine and bona fide. Thus, having regard to the content of the dispute covered by issue No.2 it would not be right to suggest that the reference precludes the Tribunal from entertaining the appellants plea that what it did on the 29th April is in fact not a lockout but a closure. The fact that the relevant action of the appellant is called a lockout does not mean that the Tribunal must hold it to be a lockout. In this connection it may be recalled that in several cases where industrial disputes are referred for industrial adjudication in respect of certain persons named as workmen, the employees raise the contention that the specified persons are not their workmen and it has never been suggested that merely because the said persons are described as workmen in the reference, the employer is precluded from disputing their status or that the Tribunal has no jurisdiction to try such an incidental dispute. Therefore, we do not think that Mr. Sastri is right in contending that issue No. 2 has been so worded as to exclude the jurisdiction of the Tribunal to deal with the question as to whether the appellants impugned action amounts to a closure or not20. In the result, we hold that the grievance made by the appellant against the decision of the Appeal Court in Writ Appeal No. 73/1959 is not well-founded. In order to avoid any controversy between the parties before the Industrial Tribunal as to the scope of the enquiry which the said Tribunal would be justified in holding on the present reference, we would like to state that in trying issue No.1 the Tribunal will deal with that issue in the light of the respondents contention about the verbal assurance given by the appellants Chairman to them during the course of the previous negotiations. In regard to the enquiry under issue No.2 the Tribunal will have to consider whether the strike was justified. It will also have to consider whether the transfer effected by the appellant amounts to a closure or a lockout and in dealing with this issue, it will take into account all facts which are relevant and material21. That leaves only one minor point to be mentioned and it relates to the order passed by the State Government under S.10(3) of the Act. We agree with the trial Court and the Court of Appeal that the State Government was ill advised to issue the said order. It may be that the State Government was anxious to preserve industrial peace and so, it proceeded to exercise its jurisdiction under S.10(3). But it is obvious that the full implications of the order were not appreciated by the State Government before it issued the said order. Indeed, the inappropriateness and the impropriety of the said order gave rise to an argument by the appellant that the Government was acting mala fide against it, and the State Government had to offer an explanation in the form of an affidavit and by way of a statement made by the Government Pleader at the Bar to meet this challenge. If only the State Government had considered the matter more carefully before issuing the said order, this complication could have been easily avoided.
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Endupuri Narasimham And Son Vs. The State Of Orissa And Others | dealer for purposes other than those specified in his certificate of registration the price of goods so utilised shall be included in his taxable turnover.X X X3. It will be seen that under this section when a sale takes place, the seller has to include it in his taxable turnover; but when the sale is to a registered dealer who declares that his purchases are for resale in Orissa, then it is excluded from the sellers turnover. If the registered dealer-purchaser sells the goods outside the State in breach of the condition, the purchasers by him are liable to be included in his turnover, and assessed to sales tax. That precisely is what has happened in this case. The sales to the petitioner were not included in the taxable turnover of the sellers by reason of the registration certificate which the petitioner had obtained on a declaration that the goods were to be resold in Orissa. But in violation of this declaration he sold the goods to dealers outside the State, and so he became liable to be taxed under S. 5(2)(a)(ii) of the Act.4. The contention of the petitioner is that these purchases were made in the course of inter-State trade, and that the imposition of sales tax thereon is, in consequence, ultra vires. The provision applicable is Art. 286(2), as it stood prior to the sixth amendment, and it ran as follows:"Except in so far as Parliament may by law otherwise provide, no law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of any goods where such sale or purchase takes place in the course of inter-State trade or commerce."The argument on behalf of the petitioner is that as the goods were purchased for the purpose of being sold to dealers outside the State, and they were in fact so sold, the purchases were in the course of inter-State trade, and the levy of tax thereon was within the prohibition enacted by Art. 286(2).We do not agree with this contention. The transactions of sales which have been taxed were wholly inside the State of Orissa. They were sales by persons in the State of Orissa to persons within the State of Orissa, of goods which were in Orissa. The fact that the purchaser sold those very goods to dealers outside the State is not relevant, as those sales are distinct and separate from the sales on which the taxes in question have been imposed. The present levy is not on the sales by the petitioner to persons outside the State, but on the purchases by him inside the State. The former sales are in the course of inter-State trade, and are not taxable under Art. 286(2), but the latter are purely intra-State sales, and a tax imposed thereon does not offend Art. 286(2).5. In support of his contention that the purchases are hit by Art. 286(2), the petitioner relies on the decision of this court in Mohanlal Hargovind Das v. State of Madhya Pradesh, 1955-2 SCR 509 : (S) AIR 1955 SC 786 ). In that case, the petitioners who were registered dealers under the Central Provinces and Berar Sales Tax Act, 1947, were carrying on business in the manufacture and sale of bidis in Madhya Pradesh. For the purpose of their business, they imported processed tobacco from the State of Bombay in large quantities, rolled them into bidis and sold them to dealers in other States. The sales tax authorities imposed a tax on the purchases made by them, on the ground that they had, in breach of the declaration in the registration certificate, sold them to merchants outside Madhya Pradesh. The contention of the petitioners was that the purchases by them were in the course of inter-State trade, and that the imposition of tax thereon was therefore repugnant to Art. 286(2). It was this contention that was accepted by this Court. It will be noticed that in this case the assessment of sales tax was on the very purchases from dealers in Bombay, under which the goods were transported from the State of Bombay to Madhya Pradesh. In the present case, the purchases which are sought to be assessed involved no movement of the goods outside the State of Orissa. In order that a sale or purchase might be inter-State, it is essential that there must be transport of goods from one State to another under the contract of sale or purchase. In the Bengal Immunity Co., Ltd. v. State of Bihar, 1955-2 SCR 603 at pp. 784-785 : ( (S) AIR 1955 SC 661 at p. 734) occur the following observations which are apposite:"A sale could be said to be in the course of inter-State trade only if two conditions concur: (1) A sale of goods, and (2) a transport of those goods from one State to another under the contract of sale. Unless both these conditions are satisfied, there can be no sale in the course of inter-State trade."With reference to the analogous provision under Art. 286(1)(b) prohibiting the imposition of tax on the sale or purchase of goods in the course of import or export, it has been held by this Court that it is only a sale or purchase which occasions the export or import of the goods out of or into the territory of India or a sale in the State by the exporter or importer by transfer of shipping documents, while the goods are beyond the customs barrier, that is within the exemption, and that a sale which precedes such export or import or follows it is not exempted, vide State of Travancore-Cochin v. Shan Mugha Vilas Cashew Nut Factory, 1954 SCR 53 : (AIR 1953 SC 333 ).On the same principles, a purchase made inside a State, for sale outside the State cannot itself be held to be in the course of inter-State trade, and the imposition of a tax thereon is not repugnant to Art. 286(2) of the Constitution | 0[ds]3. It will be seen that under this section when a sale takes place, the seller has to include it in his taxable turnover; but when the sale is to a registered dealer who declares that his purchases are for resale in Orissa, then it is excluded from the sellers turnover. If the registered dealer-purchaser sells the goods outside the State in breach of the condition, the purchasers by him are liable to be included in his turnover, and assessed to sales tax. That precisely is what has happened in this case. The sales to the petitioner were not included in the taxable turnover of the sellers by reason of the registration certificate which the petitioner had obtained on a declaration that the goods were to be resold in Orissa. But in violation of this declaration he sold the goods to dealers outside the State, and so he became liable to be taxed under S. 5(2)(a)(ii) of thereference to the analogous provision under Art. 286(1)(b) prohibiting the imposition of tax on the sale or purchase of goods in the course of import or export, it has been held by this Court that it is only a sale or purchase which occasions the export or import of the goods out of or into the territory of India or a sale in the State by the exporter or importer by transfer of shipping documents, while the goods are beyond the customs barrier, that is within the exemption, and that a sale which precedes such export or import or follows it is not exempted, vide State of Travancore-Cochin v. Shan Mugha Vilas Cashew Nut Factory, 1954 SCR 53 : (AIR 1953 SC 333 ).On the same principles, a purchase made inside a State, for sale outside the State cannot itself be held to be in the course of inter-State trade, and the imposition of a tax thereon is not repugnant to Art. 286(2) of the Constitution. In the result this petition is dismissed withthe present case, the purchases which are sought to be assessed involved no movement of the goods outside the State of Orissa. In order that a sale or purchase might be inter-State, it is essential that there must be transport of goods from one State to another under the contract of sale or purchase. | 0 | 1,508 | 436 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
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dealer for purposes other than those specified in his certificate of registration the price of goods so utilised shall be included in his taxable turnover.X X X3. It will be seen that under this section when a sale takes place, the seller has to include it in his taxable turnover; but when the sale is to a registered dealer who declares that his purchases are for resale in Orissa, then it is excluded from the sellers turnover. If the registered dealer-purchaser sells the goods outside the State in breach of the condition, the purchasers by him are liable to be included in his turnover, and assessed to sales tax. That precisely is what has happened in this case. The sales to the petitioner were not included in the taxable turnover of the sellers by reason of the registration certificate which the petitioner had obtained on a declaration that the goods were to be resold in Orissa. But in violation of this declaration he sold the goods to dealers outside the State, and so he became liable to be taxed under S. 5(2)(a)(ii) of the Act.4. The contention of the petitioner is that these purchases were made in the course of inter-State trade, and that the imposition of sales tax thereon is, in consequence, ultra vires. The provision applicable is Art. 286(2), as it stood prior to the sixth amendment, and it ran as follows:"Except in so far as Parliament may by law otherwise provide, no law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of any goods where such sale or purchase takes place in the course of inter-State trade or commerce."The argument on behalf of the petitioner is that as the goods were purchased for the purpose of being sold to dealers outside the State, and they were in fact so sold, the purchases were in the course of inter-State trade, and the levy of tax thereon was within the prohibition enacted by Art. 286(2).We do not agree with this contention. The transactions of sales which have been taxed were wholly inside the State of Orissa. They were sales by persons in the State of Orissa to persons within the State of Orissa, of goods which were in Orissa. The fact that the purchaser sold those very goods to dealers outside the State is not relevant, as those sales are distinct and separate from the sales on which the taxes in question have been imposed. The present levy is not on the sales by the petitioner to persons outside the State, but on the purchases by him inside the State. The former sales are in the course of inter-State trade, and are not taxable under Art. 286(2), but the latter are purely intra-State sales, and a tax imposed thereon does not offend Art. 286(2).5. In support of his contention that the purchases are hit by Art. 286(2), the petitioner relies on the decision of this court in Mohanlal Hargovind Das v. State of Madhya Pradesh, 1955-2 SCR 509 : (S) AIR 1955 SC 786 ). In that case, the petitioners who were registered dealers under the Central Provinces and Berar Sales Tax Act, 1947, were carrying on business in the manufacture and sale of bidis in Madhya Pradesh. For the purpose of their business, they imported processed tobacco from the State of Bombay in large quantities, rolled them into bidis and sold them to dealers in other States. The sales tax authorities imposed a tax on the purchases made by them, on the ground that they had, in breach of the declaration in the registration certificate, sold them to merchants outside Madhya Pradesh. The contention of the petitioners was that the purchases by them were in the course of inter-State trade, and that the imposition of tax thereon was therefore repugnant to Art. 286(2). It was this contention that was accepted by this Court. It will be noticed that in this case the assessment of sales tax was on the very purchases from dealers in Bombay, under which the goods were transported from the State of Bombay to Madhya Pradesh. In the present case, the purchases which are sought to be assessed involved no movement of the goods outside the State of Orissa. In order that a sale or purchase might be inter-State, it is essential that there must be transport of goods from one State to another under the contract of sale or purchase. In the Bengal Immunity Co., Ltd. v. State of Bihar, 1955-2 SCR 603 at pp. 784-785 : ( (S) AIR 1955 SC 661 at p. 734) occur the following observations which are apposite:"A sale could be said to be in the course of inter-State trade only if two conditions concur: (1) A sale of goods, and (2) a transport of those goods from one State to another under the contract of sale. Unless both these conditions are satisfied, there can be no sale in the course of inter-State trade."With reference to the analogous provision under Art. 286(1)(b) prohibiting the imposition of tax on the sale or purchase of goods in the course of import or export, it has been held by this Court that it is only a sale or purchase which occasions the export or import of the goods out of or into the territory of India or a sale in the State by the exporter or importer by transfer of shipping documents, while the goods are beyond the customs barrier, that is within the exemption, and that a sale which precedes such export or import or follows it is not exempted, vide State of Travancore-Cochin v. Shan Mugha Vilas Cashew Nut Factory, 1954 SCR 53 : (AIR 1953 SC 333 ).On the same principles, a purchase made inside a State, for sale outside the State cannot itself be held to be in the course of inter-State trade, and the imposition of a tax thereon is not repugnant to Art. 286(2) of the Constitution
### Response:
0
### Explanation:
3. It will be seen that under this section when a sale takes place, the seller has to include it in his taxable turnover; but when the sale is to a registered dealer who declares that his purchases are for resale in Orissa, then it is excluded from the sellers turnover. If the registered dealer-purchaser sells the goods outside the State in breach of the condition, the purchasers by him are liable to be included in his turnover, and assessed to sales tax. That precisely is what has happened in this case. The sales to the petitioner were not included in the taxable turnover of the sellers by reason of the registration certificate which the petitioner had obtained on a declaration that the goods were to be resold in Orissa. But in violation of this declaration he sold the goods to dealers outside the State, and so he became liable to be taxed under S. 5(2)(a)(ii) of thereference to the analogous provision under Art. 286(1)(b) prohibiting the imposition of tax on the sale or purchase of goods in the course of import or export, it has been held by this Court that it is only a sale or purchase which occasions the export or import of the goods out of or into the territory of India or a sale in the State by the exporter or importer by transfer of shipping documents, while the goods are beyond the customs barrier, that is within the exemption, and that a sale which precedes such export or import or follows it is not exempted, vide State of Travancore-Cochin v. Shan Mugha Vilas Cashew Nut Factory, 1954 SCR 53 : (AIR 1953 SC 333 ).On the same principles, a purchase made inside a State, for sale outside the State cannot itself be held to be in the course of inter-State trade, and the imposition of a tax thereon is not repugnant to Art. 286(2) of the Constitution. In the result this petition is dismissed withthe present case, the purchases which are sought to be assessed involved no movement of the goods outside the State of Orissa. In order that a sale or purchase might be inter-State, it is essential that there must be transport of goods from one State to another under the contract of sale or purchase.
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Deputy Commissioner Of Sales Tax (Law) Board Of Revenue Vs. G.S. Pai & Co | when melted from the native ore and not perfectly refined, or where they are perfectly refined, but melted down into bars or ingots, or into any unwrought body, of any degree of fineness". It would, therefore, be seen that ornaments and other articles of gold cannot be regarded as "bullion" because, even if old and antiquated, they are not raw or unwrought gold or gold in the mass, but they represent manufactured o r finished products of gold. Nor do they come within the meaning of the expression "specie". The word "specie" has a recognised meaning and according to Websters New World Dictionary, it means "coin, as distinguished from paper money". The Law Dictionaries also give the same meaning. Whartons Law Lexicon and Jowitts Dictionary of English Law state the meaning of "specie" as "metallic money" and in Blacks Law Dictionary, it is described as "coin of the precious metals, of a certain weight and fineness, and bearing the stamp of the Government, denoting its value as currency" while "Words and Phrases-Permanent Edition-Vol. 39A" also gives the same meaning. Therefore, according to common parlance, the word "specie" means any metallic coin which is used as currency and if that be the true meaning, it is obvious that ornaments and other articles of gold cannot be described as "specie". It would thus seem clear that the ornaments and other articles of gold purchased by the assessee do not fall within Entry 56 and they are, accordingly, liable to be taxed not at the lesser rate of 1 per cent applicable to "bullion and specie" but at the general rate of 3 per cent under section 5A read with Section 5(1) (ii) of the Act.That takes us to the second question in regard to taxability of the turnover of sales of G.I. Pipes made by the assessee. The Revenue contended that G.I. Pipes fall within the description "water supply and sanitary fittings" in Entry 26A so as to be exigible to tax at the higher rate of 7 per cent while the assessee contended that they are not covered by this expression and are, therefore, taxable only at the lesser rate of 3% under sec. 5(1) (ii) of the Act. The determination of this question turns on the true interpretation of the words "water supply and sanitary fittings". So far as the expression "sanitary fittings" is concerned, it has received judicial interpretation by this Court in State of Uttar Pradesh v. Indian Hume Pipe Ltd. where it has been laid down that "sanitary fittings" according to the popular sense of the term mean such pipes or materials as are used in lavatories, urinals or bath- rooms of private houses of public buildings. The G.I. Pipes sold by the assessee would, therefore, fall within the description of "sanitary fittings" only if it can be shown and the burden of so doing would be on the Revenue, that they were meant for use in lavatories, urinals or bathrooms. It does not appear that the attention of the assessee and the tax authorities was drawn to this aspect of the question and hence no material was brought on record which would throw light on the question as to what was the use for which the G.I. Pipes were meant. If the G.I. Pipes were heavy and intended to be laid underground for carrying supply of water from one place to another, they would obviously not be "sanitary fittings". This is, however, a question which has not been considered by the Revenue authorities and the case would, therefore, have to be remanded to the Appellate Assistant Commissioner for the purpose of determining whether having regard to the mean ing which this Court has placed on the expression "sanitary fittings", the G.I. Pipes sold by the assessee fall within that description.But the Revenue contended that even if the G.I. Pipes are not "sanitary fittings" within the meaning of that expression, they would still fall within the description "water supply.....fittings". Now, it must be remembered that the category of goods in Entry 26A is not described as "water supply pipes" but as "water supply and sanitary fittings". The use of the word "fittings" suggests that the expression is intended to refer to articles or things which are fitted or fixed to the floor or walls of a building and they may in a given case include even articles or materials fitted or fix ed outside, provided they can be considered as attached or auxiliary to the building or part of it, such as, for example, a pipe carrying faecal matter from the commode to the sceptic tank, but they cannot include pipes laid underground for carrying water supply. Moreover, the words "water supply..... fittings" do not occur in isolation, but they are used in juxtaposition of the words "sanitary fittings". The entire expression "water supply and sanitary fittings" is one single expression and the words "water supply......fittings" must receive colour from the immediately following words "sanitary fittings". We are, therefore, of the view that the expression "water supply....fittings" in the context in which it occurs means such pipes or materials as are meant for use for supply of water to or in lavatories, urinals or bath-rooms of private houses or public buildings and they do not include heavy pipes which are laid underground as mains for carrying water supply from one area or place to another. Therefore, even for the purpose of determining whether G.I. Pipes sold by the assessee are "water supply.......... fittings", it would have to be found as to what is the purpose for which they were meant to be used and since the question has not been approached from this point of view, we think it desirable that the case be sent back to the Appellate Assistant Commissioner for the purpose of determining whether, in the light of this meaning placed by us on the words "water supply.. fittings", the G.I. Pipes sold by the assessee could be said to be "water supply........... fittings." | 1[ds]Now there is one cardinal rule of interpretation which has always to be borne in mind while interpreting entries i n Sales Tax legislation and it is that the words used in the entries must be construed not in any technical sense nor from the scientific point of view but as understood in common parlance. We must give the words used by the legislature their popular -sense meaning "that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it". The word "bullion" must, therefore, be interpreted according to ordinary parlance and must be given a meaning which people conversant with this commodity would ascribe to it. Now it is obvious that "bullion" in its popular sense cannot include ornaments or other articles of gold. "Bullion" according to its plain ordinary meaning means gold or silver i n the mass. It connotes gold or silver regarded as raw material and it may be either in the form of raw gold or silver or ingots or bars of gold or silverIt would, therefore, be seen that ornaments and other articles of gold cannot be regarded as "bullion" because, even if old and antiquated, they are not raw or unwrought gold or gold in the mass, but they represent manufactured o r finished products of gold. Nor do they come within the meaning of the expression "specie". The word "specie" has a recognised meaning and according to Websters New World Dictionary, it means "coin, as distinguished from paper money"The Law Dictionaries also give the same meaning. Whartons Law Lexicon and Jowitts Dictionary of English Law state the meaning of "specie" as "metallic money" and in Blacks Law Dictionary, it is described as "coin of the precious metals, of a certain weight and fineness, and bearing the stamp of the Government, denoting its value as currency" while "Words and Phrases-Permanent Edition-Vol. 39A" also gives the same meaning. Therefore, according to common parlance, the word "specie" means any metallic coin which is used as currency and if that be the true meaning, it is obvious that ornaments and other articles of gold cannot be described as "specie". It would thus seem clear that the ornaments and other articles of gold purchased by the assessee do not fall within Entry 56 and they are, accordingly, liable to be taxed not at the lesser rate of 1 per cent applicable to "bullion and specie" but at the general rate of 3 per cent under section 5A read with Section 5(1) (ii) of the ActWe are, therefore, of the view that the expression "water supply....fittings" in the context in which it occurs means such pipes or materials as are meant for use for supply of water to or in lavatories, urinals or bath-rooms of private houses or public buildings and they do not include heavy pipes which are laid underground as mains for carrying water supply from one area or place to another. Therefore, even for the purpose of determining whether G.I. Pipes sold by the assessee are "water supply.......... fittings", it would have to be found as to what is the purpose for which they were meant to be used and since the question has not been approached from this point of view, we think it desirable that the case be sent back to the Appellate Assistant Commissioner for the purpose of determining whether, in the light of this meaning placed by us on the words "water supply.. fittings", the G.I. Pipes sold by the assessee could be said to be "water supply........... fittings." | 1 | 2,064 | 691 | ### 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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when melted from the native ore and not perfectly refined, or where they are perfectly refined, but melted down into bars or ingots, or into any unwrought body, of any degree of fineness". It would, therefore, be seen that ornaments and other articles of gold cannot be regarded as "bullion" because, even if old and antiquated, they are not raw or unwrought gold or gold in the mass, but they represent manufactured o r finished products of gold. Nor do they come within the meaning of the expression "specie". The word "specie" has a recognised meaning and according to Websters New World Dictionary, it means "coin, as distinguished from paper money". The Law Dictionaries also give the same meaning. Whartons Law Lexicon and Jowitts Dictionary of English Law state the meaning of "specie" as "metallic money" and in Blacks Law Dictionary, it is described as "coin of the precious metals, of a certain weight and fineness, and bearing the stamp of the Government, denoting its value as currency" while "Words and Phrases-Permanent Edition-Vol. 39A" also gives the same meaning. Therefore, according to common parlance, the word "specie" means any metallic coin which is used as currency and if that be the true meaning, it is obvious that ornaments and other articles of gold cannot be described as "specie". It would thus seem clear that the ornaments and other articles of gold purchased by the assessee do not fall within Entry 56 and they are, accordingly, liable to be taxed not at the lesser rate of 1 per cent applicable to "bullion and specie" but at the general rate of 3 per cent under section 5A read with Section 5(1) (ii) of the Act.That takes us to the second question in regard to taxability of the turnover of sales of G.I. Pipes made by the assessee. The Revenue contended that G.I. Pipes fall within the description "water supply and sanitary fittings" in Entry 26A so as to be exigible to tax at the higher rate of 7 per cent while the assessee contended that they are not covered by this expression and are, therefore, taxable only at the lesser rate of 3% under sec. 5(1) (ii) of the Act. The determination of this question turns on the true interpretation of the words "water supply and sanitary fittings". So far as the expression "sanitary fittings" is concerned, it has received judicial interpretation by this Court in State of Uttar Pradesh v. Indian Hume Pipe Ltd. where it has been laid down that "sanitary fittings" according to the popular sense of the term mean such pipes or materials as are used in lavatories, urinals or bath- rooms of private houses of public buildings. The G.I. Pipes sold by the assessee would, therefore, fall within the description of "sanitary fittings" only if it can be shown and the burden of so doing would be on the Revenue, that they were meant for use in lavatories, urinals or bathrooms. It does not appear that the attention of the assessee and the tax authorities was drawn to this aspect of the question and hence no material was brought on record which would throw light on the question as to what was the use for which the G.I. Pipes were meant. If the G.I. Pipes were heavy and intended to be laid underground for carrying supply of water from one place to another, they would obviously not be "sanitary fittings". This is, however, a question which has not been considered by the Revenue authorities and the case would, therefore, have to be remanded to the Appellate Assistant Commissioner for the purpose of determining whether having regard to the mean ing which this Court has placed on the expression "sanitary fittings", the G.I. Pipes sold by the assessee fall within that description.But the Revenue contended that even if the G.I. Pipes are not "sanitary fittings" within the meaning of that expression, they would still fall within the description "water supply.....fittings". Now, it must be remembered that the category of goods in Entry 26A is not described as "water supply pipes" but as "water supply and sanitary fittings". The use of the word "fittings" suggests that the expression is intended to refer to articles or things which are fitted or fixed to the floor or walls of a building and they may in a given case include even articles or materials fitted or fix ed outside, provided they can be considered as attached or auxiliary to the building or part of it, such as, for example, a pipe carrying faecal matter from the commode to the sceptic tank, but they cannot include pipes laid underground for carrying water supply. Moreover, the words "water supply..... fittings" do not occur in isolation, but they are used in juxtaposition of the words "sanitary fittings". The entire expression "water supply and sanitary fittings" is one single expression and the words "water supply......fittings" must receive colour from the immediately following words "sanitary fittings". We are, therefore, of the view that the expression "water supply....fittings" in the context in which it occurs means such pipes or materials as are meant for use for supply of water to or in lavatories, urinals or bath-rooms of private houses or public buildings and they do not include heavy pipes which are laid underground as mains for carrying water supply from one area or place to another. Therefore, even for the purpose of determining whether G.I. Pipes sold by the assessee are "water supply.......... fittings", it would have to be found as to what is the purpose for which they were meant to be used and since the question has not been approached from this point of view, we think it desirable that the case be sent back to the Appellate Assistant Commissioner for the purpose of determining whether, in the light of this meaning placed by us on the words "water supply.. fittings", the G.I. Pipes sold by the assessee could be said to be "water supply........... fittings."
### Response:
1
### Explanation:
Now there is one cardinal rule of interpretation which has always to be borne in mind while interpreting entries i n Sales Tax legislation and it is that the words used in the entries must be construed not in any technical sense nor from the scientific point of view but as understood in common parlance. We must give the words used by the legislature their popular -sense meaning "that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it". The word "bullion" must, therefore, be interpreted according to ordinary parlance and must be given a meaning which people conversant with this commodity would ascribe to it. Now it is obvious that "bullion" in its popular sense cannot include ornaments or other articles of gold. "Bullion" according to its plain ordinary meaning means gold or silver i n the mass. It connotes gold or silver regarded as raw material and it may be either in the form of raw gold or silver or ingots or bars of gold or silverIt would, therefore, be seen that ornaments and other articles of gold cannot be regarded as "bullion" because, even if old and antiquated, they are not raw or unwrought gold or gold in the mass, but they represent manufactured o r finished products of gold. Nor do they come within the meaning of the expression "specie". The word "specie" has a recognised meaning and according to Websters New World Dictionary, it means "coin, as distinguished from paper money"The Law Dictionaries also give the same meaning. Whartons Law Lexicon and Jowitts Dictionary of English Law state the meaning of "specie" as "metallic money" and in Blacks Law Dictionary, it is described as "coin of the precious metals, of a certain weight and fineness, and bearing the stamp of the Government, denoting its value as currency" while "Words and Phrases-Permanent Edition-Vol. 39A" also gives the same meaning. Therefore, according to common parlance, the word "specie" means any metallic coin which is used as currency and if that be the true meaning, it is obvious that ornaments and other articles of gold cannot be described as "specie". It would thus seem clear that the ornaments and other articles of gold purchased by the assessee do not fall within Entry 56 and they are, accordingly, liable to be taxed not at the lesser rate of 1 per cent applicable to "bullion and specie" but at the general rate of 3 per cent under section 5A read with Section 5(1) (ii) of the ActWe are, therefore, of the view that the expression "water supply....fittings" in the context in which it occurs means such pipes or materials as are meant for use for supply of water to or in lavatories, urinals or bath-rooms of private houses or public buildings and they do not include heavy pipes which are laid underground as mains for carrying water supply from one area or place to another. Therefore, even for the purpose of determining whether G.I. Pipes sold by the assessee are "water supply.......... fittings", it would have to be found as to what is the purpose for which they were meant to be used and since the question has not been approached from this point of view, we think it desirable that the case be sent back to the Appellate Assistant Commissioner for the purpose of determining whether, in the light of this meaning placed by us on the words "water supply.. fittings", the G.I. Pipes sold by the assessee could be said to be "water supply........... fittings."
|
Valia Peedikakkandi Katheessa Umma & Others Vs. Pathakkalan Naravanath Kumhamu & Others | (See Mullas Principles of Mahomedan Law 14th Edn., pp. 139, 142, 144 and 146. Tyabjis Muhammadan Law 3rd Edn., pp. 430-435, Ss. 397-400, Amir Alis Mahommedon Law Vol. 1, pp. 130-131).13. The principles have further been applied in some decisions of the High Courts in India, In Nabi Sab v. M. Papiah, AIR 1915 Mad 972 , it was held that gift did not necessarily fail merely because possession was not handed over to the minors father or guardian and the donor could nominate a person to accept the gift on behalf of the minor. It was pointed out that the Muhammadan law of gifts, though strict could not be taken to be made up of unmeaning technicalities. A similar view was expressed in Nawabjan v. Safiur Rahman, AIR 1918 Cal 786. These cases were followed recently in Munni Bai v. Abdul Gani. AIR 1959 Madh Pra 225, where it was held that when a document embodying the intention of the donor was delivered to the minor possessing discretion and accepted by her it amounted to acceptance of gift. It was further pointed out that all that was needed was that the donor must evince an immediate and bona fide intention to make the gift and to complete it by some significant overt act. See also Mst. Fatma v. Mst. Autun, AIR 1944 Sind 195, Mst. Azizi v. Sona Mir, AIR 1962 J and K 4 and Mammad v. Kunhali, 1962 Ker L J 351.14. In Md. Abdul Ghani Khan v. Mt. Fakhr Jahan Begam, 49 Ind App 195 at p. 209 : (AIR 1922 P C. 281 at p. 288), it was held by the Judicial Committee as follows:"In considering what is the Mohammedan law on the subject of gift inter vivos, their Lordships have to bear in mind that when he old and admittedly authoritative texts of Mohammedan law were promulgated there were not in the contemplation of any one any transfer of Property Acts, any Registration Acts, any Revenue Courts to record transfers of the possession of land, or any zamindari estates large or small, and that it could not have been intended to lay down for all time what should alone be the evidence that titles to lands had passed. The object of the Mohammedan law as to gifts apparently was to prevent disputes as to whether the donor and the donee intended at the time that the title to the property should pass from the donor to the donee and that the handing over by the donor and the acceptance by the donee of the property should be good evidence that the property had been given by the donor and had been accepted by the donee as a gift."Later in 59 Ind App 1 : (AIR 1932 P C 13) it was held by the Privy Council that at least between husband and wife Muhammadan law did not require an actual vacation by the husband and an actual vacation by the husband and actual taking possession by the wife. In the opinion of the Judicial Committee the declaration made by the husband followed the declaration made by the husband followed by the handing over of the deed was sufficient to establish the transfer of possession.15. These cases show that the strict rule of Muhammadan Law about giving possession to one of the stated guardians of the minor is not a condition of its validity in certain cases. One such case is gift by the husband to his wife and another where there is gift to a minor who has no guardian of the property in existence. In such cases the gift through the mother is a valid gift. The Respondents relied upon two cases reported in Suna Meah v. S. A. S. Pillai, ILR II Rang 109 : (AIR 1933 Rang 155) where a gift to a minor through the mother was considered invalid, and Musa Miya v. Kadar Bax, ILR 52 Bom 316 : (AIR 1928 P C 108) where gift by a grand father to his minor grandsons when the father was alive, without delivery of possession to the father, was held to be invalid. Both these cases involve gifts in favour of minors whose fathers were alive and competent. They are distinguishable from those cases in which there is no guardian of the property to accept the gift and the minor is within the care either of the mother or of other near relative or even a stranger. In such cases the benefit to the minor and the completion of the gift for his benefit is the sole consideration. As we have shown above there is good authority for these propositions in the ancient and modern books on Muhammadan law and in decided cases of undoubted authority.16. In our Judgment the gift in the present case was a valid gift. Mammotty was living at the time of the gift in the house of his mother-in-law and was probably a very sick person though not in Marzulmaut. His minor wife who had attained discretion was capable under Muhammadan law to accept the gift, was living at her mothers house and in her care where the husband was also residing. The intention to make the gift was clear and manifest because it was made by a deed which was registered and handed over by Mammotty to his mother -in-law and accepted by her on behalf of the minor. There can be no question that there was a complete intention to divest ownership on the part of Mammotty and to transfer the property to the donee. If Mammotty had handed over the deed to his wife, the gift would have been complete under Muhammadan law and it seems impossible to hold that by handing over the deed to his mother-in-law, in whose charge his wife was during his illness and afterwards Mammmotty did not complete the gift. In our opinion both on texts and authorities such a gift must be accepted as valid and complete. | 1[ds]The parties are Hanafis. No direct instance from the authoritative books on Hanafi law can be cited but there is not text prohibiting the giving of possession to the mother. On the other hand there are other instances from which a deduction by analogy (Raifi l ciyas) can be made. The Hanafi laws as given in the Kafaya recognize the legality of certain gifts which custom (urf) has accepted. This is because in deciding questions which are not covered by precedent, Hanafi jurisprudence attaches importance to decisions based on istehsan (liberal construction; lit. producing symmetry) and istislah (public policy). The Prophet himself approved of Muizz (a Governor of a province who was newly appointed) who said that in the absence of guidance from the Koran and Hadis he would deduce a rule by the exercise of reason. But to be able to say that a new rule exists and has always existed there should be no rule against it and it must flow naturally from other established rules and must be based on justice, equity and good conscience and should not be haram (forbidden) or Makruh (reprobated). It is on these principles that the Mujtahidis and Muftis have allowed certain gifts to stand even though possession of the property was not handed over to one of the stated guardians of the property of the minor.These cases show that the strict rule of Muhammadan Law about giving possession to one of the stated guardians of the minor is not a condition of its validity in certain cases. One such case is gift by the husband to his wife and another where there is gift to a minor who has no guardian of the property in existence. In such cases the gift through the mother is a validwe have shown above there is good authority for these propositions in the ancient and modern books on Muhammadan law and in decided cases of undoubted authority.16. In our Judgment the gift in the present case was a valid gift. Mammotty was living at the time of the gift in the house of his mother-in-law and was probably a very sick person though not in Marzulmaut. His minor wife who had attained discretion was capable under Muhammadan law to accept the gift, was living at her mothers house and in her care where the husband was also residing. The intention to make the gift was clear and manifest because it was made by a deed which was registered and handed over by Mammotty to his mother -in-law and accepted by her on behalf of the minor. There can be no question that there was a complete intention to divest ownership on the part of Mammotty and to transfer the property to the donee. If Mammotty had handed over the deed to his wife, the gift would have been complete under Muhammadan law and it seems impossible to hold that by handing over the deed to his mother-in-law, in whose charge his wife was during his illness and afterwards Mammmotty did not complete the gift. In our opinion both on texts and authorities such a gift must be accepted as valid and complete. | 1 | 3,770 | 569 | ### 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:
(See Mullas Principles of Mahomedan Law 14th Edn., pp. 139, 142, 144 and 146. Tyabjis Muhammadan Law 3rd Edn., pp. 430-435, Ss. 397-400, Amir Alis Mahommedon Law Vol. 1, pp. 130-131).13. The principles have further been applied in some decisions of the High Courts in India, In Nabi Sab v. M. Papiah, AIR 1915 Mad 972 , it was held that gift did not necessarily fail merely because possession was not handed over to the minors father or guardian and the donor could nominate a person to accept the gift on behalf of the minor. It was pointed out that the Muhammadan law of gifts, though strict could not be taken to be made up of unmeaning technicalities. A similar view was expressed in Nawabjan v. Safiur Rahman, AIR 1918 Cal 786. These cases were followed recently in Munni Bai v. Abdul Gani. AIR 1959 Madh Pra 225, where it was held that when a document embodying the intention of the donor was delivered to the minor possessing discretion and accepted by her it amounted to acceptance of gift. It was further pointed out that all that was needed was that the donor must evince an immediate and bona fide intention to make the gift and to complete it by some significant overt act. See also Mst. Fatma v. Mst. Autun, AIR 1944 Sind 195, Mst. Azizi v. Sona Mir, AIR 1962 J and K 4 and Mammad v. Kunhali, 1962 Ker L J 351.14. In Md. Abdul Ghani Khan v. Mt. Fakhr Jahan Begam, 49 Ind App 195 at p. 209 : (AIR 1922 P C. 281 at p. 288), it was held by the Judicial Committee as follows:"In considering what is the Mohammedan law on the subject of gift inter vivos, their Lordships have to bear in mind that when he old and admittedly authoritative texts of Mohammedan law were promulgated there were not in the contemplation of any one any transfer of Property Acts, any Registration Acts, any Revenue Courts to record transfers of the possession of land, or any zamindari estates large or small, and that it could not have been intended to lay down for all time what should alone be the evidence that titles to lands had passed. The object of the Mohammedan law as to gifts apparently was to prevent disputes as to whether the donor and the donee intended at the time that the title to the property should pass from the donor to the donee and that the handing over by the donor and the acceptance by the donee of the property should be good evidence that the property had been given by the donor and had been accepted by the donee as a gift."Later in 59 Ind App 1 : (AIR 1932 P C 13) it was held by the Privy Council that at least between husband and wife Muhammadan law did not require an actual vacation by the husband and an actual vacation by the husband and actual taking possession by the wife. In the opinion of the Judicial Committee the declaration made by the husband followed the declaration made by the husband followed by the handing over of the deed was sufficient to establish the transfer of possession.15. These cases show that the strict rule of Muhammadan Law about giving possession to one of the stated guardians of the minor is not a condition of its validity in certain cases. One such case is gift by the husband to his wife and another where there is gift to a minor who has no guardian of the property in existence. In such cases the gift through the mother is a valid gift. The Respondents relied upon two cases reported in Suna Meah v. S. A. S. Pillai, ILR II Rang 109 : (AIR 1933 Rang 155) where a gift to a minor through the mother was considered invalid, and Musa Miya v. Kadar Bax, ILR 52 Bom 316 : (AIR 1928 P C 108) where gift by a grand father to his minor grandsons when the father was alive, without delivery of possession to the father, was held to be invalid. Both these cases involve gifts in favour of minors whose fathers were alive and competent. They are distinguishable from those cases in which there is no guardian of the property to accept the gift and the minor is within the care either of the mother or of other near relative or even a stranger. In such cases the benefit to the minor and the completion of the gift for his benefit is the sole consideration. As we have shown above there is good authority for these propositions in the ancient and modern books on Muhammadan law and in decided cases of undoubted authority.16. In our Judgment the gift in the present case was a valid gift. Mammotty was living at the time of the gift in the house of his mother-in-law and was probably a very sick person though not in Marzulmaut. His minor wife who had attained discretion was capable under Muhammadan law to accept the gift, was living at her mothers house and in her care where the husband was also residing. The intention to make the gift was clear and manifest because it was made by a deed which was registered and handed over by Mammotty to his mother -in-law and accepted by her on behalf of the minor. There can be no question that there was a complete intention to divest ownership on the part of Mammotty and to transfer the property to the donee. If Mammotty had handed over the deed to his wife, the gift would have been complete under Muhammadan law and it seems impossible to hold that by handing over the deed to his mother-in-law, in whose charge his wife was during his illness and afterwards Mammmotty did not complete the gift. In our opinion both on texts and authorities such a gift must be accepted as valid and complete.
### Response:
1
### Explanation:
The parties are Hanafis. No direct instance from the authoritative books on Hanafi law can be cited but there is not text prohibiting the giving of possession to the mother. On the other hand there are other instances from which a deduction by analogy (Raifi l ciyas) can be made. The Hanafi laws as given in the Kafaya recognize the legality of certain gifts which custom (urf) has accepted. This is because in deciding questions which are not covered by precedent, Hanafi jurisprudence attaches importance to decisions based on istehsan (liberal construction; lit. producing symmetry) and istislah (public policy). The Prophet himself approved of Muizz (a Governor of a province who was newly appointed) who said that in the absence of guidance from the Koran and Hadis he would deduce a rule by the exercise of reason. But to be able to say that a new rule exists and has always existed there should be no rule against it and it must flow naturally from other established rules and must be based on justice, equity and good conscience and should not be haram (forbidden) or Makruh (reprobated). It is on these principles that the Mujtahidis and Muftis have allowed certain gifts to stand even though possession of the property was not handed over to one of the stated guardians of the property of the minor.These cases show that the strict rule of Muhammadan Law about giving possession to one of the stated guardians of the minor is not a condition of its validity in certain cases. One such case is gift by the husband to his wife and another where there is gift to a minor who has no guardian of the property in existence. In such cases the gift through the mother is a validwe have shown above there is good authority for these propositions in the ancient and modern books on Muhammadan law and in decided cases of undoubted authority.16. In our Judgment the gift in the present case was a valid gift. Mammotty was living at the time of the gift in the house of his mother-in-law and was probably a very sick person though not in Marzulmaut. His minor wife who had attained discretion was capable under Muhammadan law to accept the gift, was living at her mothers house and in her care where the husband was also residing. The intention to make the gift was clear and manifest because it was made by a deed which was registered and handed over by Mammotty to his mother -in-law and accepted by her on behalf of the minor. There can be no question that there was a complete intention to divest ownership on the part of Mammotty and to transfer the property to the donee. If Mammotty had handed over the deed to his wife, the gift would have been complete under Muhammadan law and it seems impossible to hold that by handing over the deed to his mother-in-law, in whose charge his wife was during his illness and afterwards Mammmotty did not complete the gift. In our opinion both on texts and authorities such a gift must be accepted as valid and complete.
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M.K. Venkatachalam, Income Tax Officer & Another Vs. Bombay Dyeing & Manufacturing Company Limited | S. 7, sub-s. (2) and S. 30, sub-s. (2), such a power of revision has not been conferred on him in the matter of giving effect to the other amendments made in the Amendment Act. Even so, we do not think it would be legitimate or reasonable to hold that the provisions of S. 7(2) and S. 30(2) lead to the inference that the retrospective operation of the other provisions of the Amendment Act is not intended to affect concluded assessments in any manner whatever. In this connection, it would be pertinent to remember that the power to revise which has been conferred on the Income-tax Officer by S. 7(2) and S. 30(2) of the Amendment Act is distinct and independent of the power to rectify mistakes which the Income-tax Officer can exercise under S. 35 of the Act.6. It is in the light of this position that the extent of the Income-tax Officers power under S. 35 to rectify mistakes apparent from the record must be determined; and in doing so, the scope and effect of the expression"mistake apparent from the record" has to be ascertained. At the time when the Income-tax Officer applied his mind to the question of rectifying the alleged mistake, there can be no doubt that he had to read the principal Act as containing the inserted proviso as from 1-4-1952. If that be the true position then the order which he made giving credit to the respondent for Rs. 50,603-15-0 is plainly and obviously inconsistent with a specific and clear provision of the statute and that must inevitably be treated as a mistake of law apparent from the record.If a mistake of fact apparent from the record of the assessment order can be rectified under S. 35, we see no reason why a mistake of law which is glaring and obvious cannot be similarly rectified. Prima facie it may appear some-what strange that an order which was good and valid when it was made should be treated as patently invalid and wrong by virtue of the retrospective operation of the Amendment Act. But such a result is necessarily involved in the legal fiction about the retrospective operation of the Amendment Act.If, as a result of the said fiction we must read the subsequently inserted proviso as forming part of S. 18A(5) of the principal Act as from 1-4-1952, the conclusion is inescapable that the order in question is inconsistent with the provisions of the said proviso and must be deemed to suffer from a mistake apparent from the record. That is why we think that the Income-tax Officer was justified in the present case in exercising his power under S. 35 and rectifying the said mistakes, Incidentally we may mention that in Meka Venkatappayya v. Additional Income-tax Officer, Bapatla, 1957-32 ITR 274 : (AIR 1958 Andh Pra 683) (D) the High Court of Andhra has taken the same view.7. In this connection it would be useful to refer to the decision of the Privy Council in the Commissioner of Income-tax, Bombay Presidency and Aden v. Khemchand Ramdas, 1938-6 ITR 414 : (AIR 1938 PC 175 ) (E). In Khemchands case, the assessees were registered as a firm and they were assessed under S. 23(4) on an income of Rs. 1,25,000 at the maximum rate. Being a registered firm no super-tax was levied. A notice of demand was also made before March 1927. On February 13, 1928, the Commissioner, in exercise of his power under S. 33, cancelled the order registering the assessee as a firm and directed the Income-tax Officer to take necessary action. The Income-tax Officer accordingly assessed the firm to super-tax on May 4, 1929. The Privy Council held that the assessment made on January 17, 1927, was final both in respect of the income-tax and super-tax. The fresh action taken by the Income-tax Officer on May 4, 1929, was out of time though it had been taken in pursuance of the directions of the Commissioner and that the order of May 4, 1929, was one which the Income-tax Officer had no power to make. One of the points raised before the Privy Council was whether, under the relevant circumstances the Income-tax Officer had power to make the impugned order in view of the provisions of Ss. 34 and 35 of the Act. The Privy Council dealt with this question on the footing that the Commissioners order cancelling the registration had been properly made. On this basis Their Lordships thought that it was unnecessary to consider whether the case would attract the provisions of S. 34 "inasmuch as in Their Lordships opinion the case clearly would have fallen within the provisions of S. 35 had the Income-tax Officer exercised his powers under the Section within one year from the date on which the earlier demand was served upon the respondents." The judgment shows that Their Lordships took the view that "looking at the record of the assessments made upon the respondents as it stood after the cancellation of the respondents registration and the order effecting the cancellation would have formed part of the record - it would be apparent that a mistake had been made in stating that no super-tax was leviable. This decision clearly shows that the subsequent cancellation of the assessees registration was held by Their Lordships of the Privy Council to form part of the record retrospectively in the light of the said subsequent event, and the order was deemed to suffer from a mistake apparent from the record so as to justify the exercise of the rectification powers under S. 35 of the Act. It is because Their Lordships thought that S. 35 would have been clearly applicable that they did not decide the question as to whether S. 34 could also have been invoked. This decision lends considerable support to the view which we are disposed to take about the true meaning and scope of the expression "the mistake apparent from the record" occurring in S. 35. | 1[ds]Thus, there can be no doubt that the effect of the retrospective operation of the Amendment Act is that the proviso inserted by the said Section in S.(5) of the Act would, for all legal purposes, have to be deemed to have been included in the Act as from April 1,same argument is put in another form by contending that the finality of the order passed by ther cannot be impaired by the retrospective operation of the relevantour opinion, this argument does not really help the respondents case because the order passed by theOfficer under S.cannot be said to be final in the literal sense of the word. This order was and continued to be liable to be modified under S. 35 of the Act. What theOfficer has purported to do in the present case is not to revise his order in the light of the retrospective amendment made by S. 13 of the Amendment Act alone, but to exercise his power under S. 35 of the Act; and so the question which falls to be considered in the present appeal centres round the construction of the expression "mistake apparent from the record" used in S. 35.That is why we think the principle of the finality of the orders or the sanctity of the existing rights cannot be effectively invoked by the respondent in the present case.5.The respondent then urged that the Amendment Act should not be given greater retrospective operation that its language and its general scheme render necessary. This contention is based on the provisions of S. 3,, S. 7,) and S. 30,(2) of the Amendment Act. Where the Amendment Act intended that its provisions should affect even concluded orders of assessment it is expressly so provided. Since S. 13 does not specifically authorise the reopening of concluded assessment it should be held that its retrospective operation is not intended to cover such concluded assessments. That in brief is the argument.We are, however, not satisfied that this argument is wellother words, a distinction can be drawn between these two provisions of the Amendment Act and the rest in respect of the power which theOfficer can purport to exercise to give effect to the amendments made by the Amendment Act.Whereas, in respect of the amendments made by S. 7 and S. 30 of the Amendment Act, theOfficer can and must revise his earlier orders covered by S. 7,) and S. 30,(2), such a power of revision has not been conferred on him in the matter of giving effect to the other amendments made in the Amendment Act. Even so, we do not think it would be legitimate or reasonable to hold that the provisions of S. 7(2) and S. 30(2) lead to the inference that the retrospective operation of the other provisions of the Amendment Act is not intended to affect concluded assessments in any manner whatever. In this connection, it would be pertinent to remember that the power to revise which has been conferred on theOfficer by S. 7(2) and S. 30(2) of the Amendment Act is distinct and independent of the power to rectify mistakes which theOfficer can exercise under S. 35 of the Act.In this connection it would be useful to refer to the decision of the Privy Council in the Commissioner ofBombay Presidency and Aden v. Khemchand Ramdas,ITR 414 : (AIR 1938 PC 175 )judgment shows that Their Lordships took the view that "looking at the record of the assessments made upon the respondents as it stood after the cancellation of the respondents registration and the order effecting the cancellation would have formed part of the recordit would be apparent that a mistake had been made in stating that nowas leviable. This decision clearly shows that the subsequent cancellation of the assessees registration was held by Their Lordships of the Privy Council to form part of the record retrospectively in the light of the said subsequent event, and the order was deemed to suffer from a mistake apparent from the record so as to justify the exercise of the rectification powers under S. 35 of the Act. It is because Their Lordships thought that S. 35 would have been clearly applicable that they did not decide the question as to whether S. 34 could also have been invoked. This decision lends considerable support to the view which we are disposed to take about the true meaning and scope of the expression "the mistake apparent from the record" occurring in S. 35. | 1 | 3,752 | 821 | ### 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:
S. 7, sub-s. (2) and S. 30, sub-s. (2), such a power of revision has not been conferred on him in the matter of giving effect to the other amendments made in the Amendment Act. Even so, we do not think it would be legitimate or reasonable to hold that the provisions of S. 7(2) and S. 30(2) lead to the inference that the retrospective operation of the other provisions of the Amendment Act is not intended to affect concluded assessments in any manner whatever. In this connection, it would be pertinent to remember that the power to revise which has been conferred on the Income-tax Officer by S. 7(2) and S. 30(2) of the Amendment Act is distinct and independent of the power to rectify mistakes which the Income-tax Officer can exercise under S. 35 of the Act.6. It is in the light of this position that the extent of the Income-tax Officers power under S. 35 to rectify mistakes apparent from the record must be determined; and in doing so, the scope and effect of the expression"mistake apparent from the record" has to be ascertained. At the time when the Income-tax Officer applied his mind to the question of rectifying the alleged mistake, there can be no doubt that he had to read the principal Act as containing the inserted proviso as from 1-4-1952. If that be the true position then the order which he made giving credit to the respondent for Rs. 50,603-15-0 is plainly and obviously inconsistent with a specific and clear provision of the statute and that must inevitably be treated as a mistake of law apparent from the record.If a mistake of fact apparent from the record of the assessment order can be rectified under S. 35, we see no reason why a mistake of law which is glaring and obvious cannot be similarly rectified. Prima facie it may appear some-what strange that an order which was good and valid when it was made should be treated as patently invalid and wrong by virtue of the retrospective operation of the Amendment Act. But such a result is necessarily involved in the legal fiction about the retrospective operation of the Amendment Act.If, as a result of the said fiction we must read the subsequently inserted proviso as forming part of S. 18A(5) of the principal Act as from 1-4-1952, the conclusion is inescapable that the order in question is inconsistent with the provisions of the said proviso and must be deemed to suffer from a mistake apparent from the record. That is why we think that the Income-tax Officer was justified in the present case in exercising his power under S. 35 and rectifying the said mistakes, Incidentally we may mention that in Meka Venkatappayya v. Additional Income-tax Officer, Bapatla, 1957-32 ITR 274 : (AIR 1958 Andh Pra 683) (D) the High Court of Andhra has taken the same view.7. In this connection it would be useful to refer to the decision of the Privy Council in the Commissioner of Income-tax, Bombay Presidency and Aden v. Khemchand Ramdas, 1938-6 ITR 414 : (AIR 1938 PC 175 ) (E). In Khemchands case, the assessees were registered as a firm and they were assessed under S. 23(4) on an income of Rs. 1,25,000 at the maximum rate. Being a registered firm no super-tax was levied. A notice of demand was also made before March 1927. On February 13, 1928, the Commissioner, in exercise of his power under S. 33, cancelled the order registering the assessee as a firm and directed the Income-tax Officer to take necessary action. The Income-tax Officer accordingly assessed the firm to super-tax on May 4, 1929. The Privy Council held that the assessment made on January 17, 1927, was final both in respect of the income-tax and super-tax. The fresh action taken by the Income-tax Officer on May 4, 1929, was out of time though it had been taken in pursuance of the directions of the Commissioner and that the order of May 4, 1929, was one which the Income-tax Officer had no power to make. One of the points raised before the Privy Council was whether, under the relevant circumstances the Income-tax Officer had power to make the impugned order in view of the provisions of Ss. 34 and 35 of the Act. The Privy Council dealt with this question on the footing that the Commissioners order cancelling the registration had been properly made. On this basis Their Lordships thought that it was unnecessary to consider whether the case would attract the provisions of S. 34 "inasmuch as in Their Lordships opinion the case clearly would have fallen within the provisions of S. 35 had the Income-tax Officer exercised his powers under the Section within one year from the date on which the earlier demand was served upon the respondents." The judgment shows that Their Lordships took the view that "looking at the record of the assessments made upon the respondents as it stood after the cancellation of the respondents registration and the order effecting the cancellation would have formed part of the record - it would be apparent that a mistake had been made in stating that no super-tax was leviable. This decision clearly shows that the subsequent cancellation of the assessees registration was held by Their Lordships of the Privy Council to form part of the record retrospectively in the light of the said subsequent event, and the order was deemed to suffer from a mistake apparent from the record so as to justify the exercise of the rectification powers under S. 35 of the Act. It is because Their Lordships thought that S. 35 would have been clearly applicable that they did not decide the question as to whether S. 34 could also have been invoked. This decision lends considerable support to the view which we are disposed to take about the true meaning and scope of the expression "the mistake apparent from the record" occurring in S. 35.
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Thus, there can be no doubt that the effect of the retrospective operation of the Amendment Act is that the proviso inserted by the said Section in S.(5) of the Act would, for all legal purposes, have to be deemed to have been included in the Act as from April 1,same argument is put in another form by contending that the finality of the order passed by ther cannot be impaired by the retrospective operation of the relevantour opinion, this argument does not really help the respondents case because the order passed by theOfficer under S.cannot be said to be final in the literal sense of the word. This order was and continued to be liable to be modified under S. 35 of the Act. What theOfficer has purported to do in the present case is not to revise his order in the light of the retrospective amendment made by S. 13 of the Amendment Act alone, but to exercise his power under S. 35 of the Act; and so the question which falls to be considered in the present appeal centres round the construction of the expression "mistake apparent from the record" used in S. 35.That is why we think the principle of the finality of the orders or the sanctity of the existing rights cannot be effectively invoked by the respondent in the present case.5.The respondent then urged that the Amendment Act should not be given greater retrospective operation that its language and its general scheme render necessary. This contention is based on the provisions of S. 3,, S. 7,) and S. 30,(2) of the Amendment Act. Where the Amendment Act intended that its provisions should affect even concluded orders of assessment it is expressly so provided. Since S. 13 does not specifically authorise the reopening of concluded assessment it should be held that its retrospective operation is not intended to cover such concluded assessments. That in brief is the argument.We are, however, not satisfied that this argument is wellother words, a distinction can be drawn between these two provisions of the Amendment Act and the rest in respect of the power which theOfficer can purport to exercise to give effect to the amendments made by the Amendment Act.Whereas, in respect of the amendments made by S. 7 and S. 30 of the Amendment Act, theOfficer can and must revise his earlier orders covered by S. 7,) and S. 30,(2), such a power of revision has not been conferred on him in the matter of giving effect to the other amendments made in the Amendment Act. Even so, we do not think it would be legitimate or reasonable to hold that the provisions of S. 7(2) and S. 30(2) lead to the inference that the retrospective operation of the other provisions of the Amendment Act is not intended to affect concluded assessments in any manner whatever. In this connection, it would be pertinent to remember that the power to revise which has been conferred on theOfficer by S. 7(2) and S. 30(2) of the Amendment Act is distinct and independent of the power to rectify mistakes which theOfficer can exercise under S. 35 of the Act.In this connection it would be useful to refer to the decision of the Privy Council in the Commissioner ofBombay Presidency and Aden v. Khemchand Ramdas,ITR 414 : (AIR 1938 PC 175 )judgment shows that Their Lordships took the view that "looking at the record of the assessments made upon the respondents as it stood after the cancellation of the respondents registration and the order effecting the cancellation would have formed part of the recordit would be apparent that a mistake had been made in stating that nowas leviable. This decision clearly shows that the subsequent cancellation of the assessees registration was held by Their Lordships of the Privy Council to form part of the record retrospectively in the light of the said subsequent event, and the order was deemed to suffer from a mistake apparent from the record so as to justify the exercise of the rectification powers under S. 35 of the Act. It is because Their Lordships thought that S. 35 would have been clearly applicable that they did not decide the question as to whether S. 34 could also have been invoked. This decision lends considerable support to the view which we are disposed to take about the true meaning and scope of the expression "the mistake apparent from the record" occurring in S. 35.
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Sampat Prakash Vs. State Of Jammu & Kashmir | order has been made.6. Relying upon the terms of Sec. 10 (1) as amended by Section 13A it was urged that the Government was bound to refer the case of the petitioner within sixty days from the date of detention and since no reference was made the detention of the petitioner under the order dated March 16, 1968, was unauthorised. This argument is plainly unsustainable.Section 13A opens with the words "not withstanding anything contained in this Act, and provides that a person may detained for a period not longer than six months without obtaining the opinion of the Advisory Board. It is plainly contemplated thereby that the Government may decide not to refer the case of the detenu to the Advisory Board, because the period for which he is to be detained is not to exceed six months. Section 13A is an exception to Section 10 as well as to all other relevant provisions of the Act, and in case of conflict Section 13A prevails. The petitioner was detained six months from March 16, 1968 to September 16, 1968 without obtaining opinion of the Advisory Board.We will be justified in accepting the contention of the State that it was intended, when the order was passed detaining the petitioner, that he was not to be kept in detention for a period longer than six months and his case fell within the terms of Section 13A (1) and on that account it was not necessary to obtain the opinion of the Advisory Board.7. It was said by Counsel for the petitioner that the plea of the State was inconsistent with the course of events, and the State Government had taken shelter under the provisions of Section 13A (1) even though they had at no stage any desire to release the petitioner from jail at the expiry of or within six months.The Court will not be justified in assuming from the circumstance that a fresh order has been issued that the Government acted mala fide in making the original order or the fresh order. The only plea raised by the petitioner in support of that plea is in paragraph 15 of the petition,that the cancellation of the earlier order of detention and the service of the fresh order of detention on the petitioner was "a part and parcel of the scheme of the State to suppress the peaceful trade union movement," and that the fresh order of detention was passed mala fide. No particulars are furnished which justify an inference, that in resorting to the provisions of the Act the Governments action was actuated by ill-will or taken for some collateral purpose.8. Reliance was also placed upon the recitals in the grounds supplied to the petitioner on March 16, 1968 and under the fresh detention order dated September 16, 1968, andit was contended that the grounds being identical an inference followed that the previous detention order was continued on the same grounds on which the original order was passed. On comparing the grounds it cannot be said that they are identical. It is stated in the last part of the Annexure to the grounds of detention under order dated September 16, 1968, that from the middle of January to March 1968 the petitioner went underground and during that period he used to attend secret meetings in which he used to stress upon the Government employees that their demands cannot be conceded by the Government unless they resort to violence and that the petitioner was violent by nature and was a perpetual threat to the maintenance of public order. It cannot also be said that merely because the previous order had been passed under which the petitioner was intended to be detained for a period of six months and thereafter in cosequence of further information the Government was required to issue a fresh order, the original order or the fresh order was illegal.9. The plea that the grounds were vague and indefinite cannot also be accepted. It is recited in the order that the petitioner was informed that his detention was ordered on grounds specified in the Annexure appended thereto, which also contained facts relevant thereto except those which the Government considered to be against the public interest to disclose. By virtue of sub-section (2) of Section 8, it is open to the Government not to disclose facts which it considers to be against the public interest to disclose.In the present case the order clearly states that the Government were of the view that facts relevant to the grounds except those which the Government considered to be against public interest to disclose were intimated to the petitioner. The Annexure may appear somewhat indefinite and vague. But that is obviously because facts which in the view of the Government, were against public interest to disclose, were withheld from the petitioner. The Government have power to withhold information about those facts, and they did so. The grounds cannot in the circumstances be laid to be vague and indefinite.10. One more question needs to be dealt with. The petitioner who was present in the Court at the time of hearing of this petition complained that he is subjected to solitary confinement while in detention.It must be emphasized that a detenu is not a convict. Our Constitution, notwithstanding the broad principles of the rule of law, equality and liberty of the individual enshrined therein, tolerates, on account of peculiar conditions prevailing, legislation which is a negation of the rule of law, equality and liberty. But it is implicit in the Constitutional scheme that the power to detain is not a power to punish for offences which an executive authority" in his subjective satisfaction believes a citizen to have committed. Power to detain is primarily intended to be exercised in those rare cases when the larger interest of the State demand that restrictions shall be placed upon the liberty of a citizen curbing his future activities. The restrictions so placed must, consistently with the effectiveness of detention, be minimal. | 0[ds]5.The effect of Section 13A insofar as it is relevant to this case is to authorise the State in the cases specified to detain a person without obtaining the opinion the Advisory Board, if he is to be detained for a period longer than three months, but not longer than six months from the date of detention.By sub-section (2) the periods prescribed for the various steps under the Act are doubled : for making report to the District Magistrate when he exercises the power of detention the period is extended to twentyfour days for the Government to serve the grounds of the order under Section 8 (1) the period is extended to ten days; and for the Advisory Board to make its report in cases covered by Section 13A the period is extended to sixty days. Again by the proviso to Section 8 (1) the Government is entitled to withhold in serving grounds upon the detenu that it would be against public interest to communicate to him the grounds on which the detention order has beencomparing the grounds it cannot be said that they are identical. It is stated in the last part of the Annexure to the grounds of detention under order dated September 16, 1968, that from the middle of January to March 1968 the petitioner went underground and during that period he used to attend secret meetings in which he used to stress upon the Government employees that their demands cannot be conceded by the Government unless they resort to violence and that the petitioner was violent by nature and was a perpetual threat to the maintenance of public order. It cannot also be said that merely because the previous order had been passed under which the petitioner was intended to be detained for a period of six months and thereafter in cosequence of further information the Government was required to issue a fresh order, the original order or the fresh order was illegal.9.The plea that the grounds were vague and indefinite cannot also be accepted.It is recited in the order that the petitioner was informed that his detention was ordered on grounds specified in the Annexure appended thereto, which also contained facts relevant thereto except those which the Government considered to be against the public interest to disclose. By virtue of sub-section (2) of Section 8, it is open to the Government not to disclose facts which it considers to be against the public interest to disclose.In the present case the order clearly states that the Government were of the view that facts relevant to the grounds except those which the Government considered to be against public interest to disclose were intimated to the petitioner. The Annexure may appear somewhat indefinite and vague. But that is obviously because facts which in the view of the Government, were against public interest to disclose, were withheld from the petitioner. The Government have power to withhold information about those facts, and they did so. The grounds cannot in the circumstances be laid to be vague andmust be emphasized that a detenu is not a convict. Our Constitution, notwithstanding the broad principles of the rule of law, equality and liberty of the individual enshrined therein, tolerates, on account of peculiar conditions prevailing, legislation which is a negation of the rule of law, equality and liberty. But it is implicit in the Constitutional scheme that the power to detain is not a power to punish for offences which an executive authority" in his subjective satisfaction believes a citizen to have committed. Power to detain is primarily intended to be exercised in those rare cases when the larger interest of the State demand that restrictions shall be placed upon the liberty of a citizen curbing his future activities. The restrictions so placed must, consistently with the effectiveness of detention, be minimal. | 0 | 2,773 | 689 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
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order has been made.6. Relying upon the terms of Sec. 10 (1) as amended by Section 13A it was urged that the Government was bound to refer the case of the petitioner within sixty days from the date of detention and since no reference was made the detention of the petitioner under the order dated March 16, 1968, was unauthorised. This argument is plainly unsustainable.Section 13A opens with the words "not withstanding anything contained in this Act, and provides that a person may detained for a period not longer than six months without obtaining the opinion of the Advisory Board. It is plainly contemplated thereby that the Government may decide not to refer the case of the detenu to the Advisory Board, because the period for which he is to be detained is not to exceed six months. Section 13A is an exception to Section 10 as well as to all other relevant provisions of the Act, and in case of conflict Section 13A prevails. The petitioner was detained six months from March 16, 1968 to September 16, 1968 without obtaining opinion of the Advisory Board.We will be justified in accepting the contention of the State that it was intended, when the order was passed detaining the petitioner, that he was not to be kept in detention for a period longer than six months and his case fell within the terms of Section 13A (1) and on that account it was not necessary to obtain the opinion of the Advisory Board.7. It was said by Counsel for the petitioner that the plea of the State was inconsistent with the course of events, and the State Government had taken shelter under the provisions of Section 13A (1) even though they had at no stage any desire to release the petitioner from jail at the expiry of or within six months.The Court will not be justified in assuming from the circumstance that a fresh order has been issued that the Government acted mala fide in making the original order or the fresh order. The only plea raised by the petitioner in support of that plea is in paragraph 15 of the petition,that the cancellation of the earlier order of detention and the service of the fresh order of detention on the petitioner was "a part and parcel of the scheme of the State to suppress the peaceful trade union movement," and that the fresh order of detention was passed mala fide. No particulars are furnished which justify an inference, that in resorting to the provisions of the Act the Governments action was actuated by ill-will or taken for some collateral purpose.8. Reliance was also placed upon the recitals in the grounds supplied to the petitioner on March 16, 1968 and under the fresh detention order dated September 16, 1968, andit was contended that the grounds being identical an inference followed that the previous detention order was continued on the same grounds on which the original order was passed. On comparing the grounds it cannot be said that they are identical. It is stated in the last part of the Annexure to the grounds of detention under order dated September 16, 1968, that from the middle of January to March 1968 the petitioner went underground and during that period he used to attend secret meetings in which he used to stress upon the Government employees that their demands cannot be conceded by the Government unless they resort to violence and that the petitioner was violent by nature and was a perpetual threat to the maintenance of public order. It cannot also be said that merely because the previous order had been passed under which the petitioner was intended to be detained for a period of six months and thereafter in cosequence of further information the Government was required to issue a fresh order, the original order or the fresh order was illegal.9. The plea that the grounds were vague and indefinite cannot also be accepted. It is recited in the order that the petitioner was informed that his detention was ordered on grounds specified in the Annexure appended thereto, which also contained facts relevant thereto except those which the Government considered to be against the public interest to disclose. By virtue of sub-section (2) of Section 8, it is open to the Government not to disclose facts which it considers to be against the public interest to disclose.In the present case the order clearly states that the Government were of the view that facts relevant to the grounds except those which the Government considered to be against public interest to disclose were intimated to the petitioner. The Annexure may appear somewhat indefinite and vague. But that is obviously because facts which in the view of the Government, were against public interest to disclose, were withheld from the petitioner. The Government have power to withhold information about those facts, and they did so. The grounds cannot in the circumstances be laid to be vague and indefinite.10. One more question needs to be dealt with. The petitioner who was present in the Court at the time of hearing of this petition complained that he is subjected to solitary confinement while in detention.It must be emphasized that a detenu is not a convict. Our Constitution, notwithstanding the broad principles of the rule of law, equality and liberty of the individual enshrined therein, tolerates, on account of peculiar conditions prevailing, legislation which is a negation of the rule of law, equality and liberty. But it is implicit in the Constitutional scheme that the power to detain is not a power to punish for offences which an executive authority" in his subjective satisfaction believes a citizen to have committed. Power to detain is primarily intended to be exercised in those rare cases when the larger interest of the State demand that restrictions shall be placed upon the liberty of a citizen curbing his future activities. The restrictions so placed must, consistently with the effectiveness of detention, be minimal.
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0
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5.The effect of Section 13A insofar as it is relevant to this case is to authorise the State in the cases specified to detain a person without obtaining the opinion the Advisory Board, if he is to be detained for a period longer than three months, but not longer than six months from the date of detention.By sub-section (2) the periods prescribed for the various steps under the Act are doubled : for making report to the District Magistrate when he exercises the power of detention the period is extended to twentyfour days for the Government to serve the grounds of the order under Section 8 (1) the period is extended to ten days; and for the Advisory Board to make its report in cases covered by Section 13A the period is extended to sixty days. Again by the proviso to Section 8 (1) the Government is entitled to withhold in serving grounds upon the detenu that it would be against public interest to communicate to him the grounds on which the detention order has beencomparing the grounds it cannot be said that they are identical. It is stated in the last part of the Annexure to the grounds of detention under order dated September 16, 1968, that from the middle of January to March 1968 the petitioner went underground and during that period he used to attend secret meetings in which he used to stress upon the Government employees that their demands cannot be conceded by the Government unless they resort to violence and that the petitioner was violent by nature and was a perpetual threat to the maintenance of public order. It cannot also be said that merely because the previous order had been passed under which the petitioner was intended to be detained for a period of six months and thereafter in cosequence of further information the Government was required to issue a fresh order, the original order or the fresh order was illegal.9.The plea that the grounds were vague and indefinite cannot also be accepted.It is recited in the order that the petitioner was informed that his detention was ordered on grounds specified in the Annexure appended thereto, which also contained facts relevant thereto except those which the Government considered to be against the public interest to disclose. By virtue of sub-section (2) of Section 8, it is open to the Government not to disclose facts which it considers to be against the public interest to disclose.In the present case the order clearly states that the Government were of the view that facts relevant to the grounds except those which the Government considered to be against public interest to disclose were intimated to the petitioner. The Annexure may appear somewhat indefinite and vague. But that is obviously because facts which in the view of the Government, were against public interest to disclose, were withheld from the petitioner. The Government have power to withhold information about those facts, and they did so. The grounds cannot in the circumstances be laid to be vague andmust be emphasized that a detenu is not a convict. Our Constitution, notwithstanding the broad principles of the rule of law, equality and liberty of the individual enshrined therein, tolerates, on account of peculiar conditions prevailing, legislation which is a negation of the rule of law, equality and liberty. But it is implicit in the Constitutional scheme that the power to detain is not a power to punish for offences which an executive authority" in his subjective satisfaction believes a citizen to have committed. Power to detain is primarily intended to be exercised in those rare cases when the larger interest of the State demand that restrictions shall be placed upon the liberty of a citizen curbing his future activities. The restrictions so placed must, consistently with the effectiveness of detention, be minimal.
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State of West Bengal Vs. Sarkar and Sarkar | the State of West Bengal, has preferred the instant civil appeal.7. It was the vehement contention of the learned Counsel for the Appellant based on a series of judgments rendered by this Court, that Clause 12 (extracted above) was not an arbitral clause, and that, the arbitrator as well as the High Court, had erred in determining the same.8. Learned Counsel for the Respondent-Sarkar & Sarkar contested the claim of the Appellant. It was submitted, that the Appellant could not be permitted even to raise the instant plea, so as to assail the order passed, either by the arbitrator (on 15.1.2004), or by the High Court (on 16.5.2006). The instant submission of the learned Counsel for the Respondent, was premised on the judgment rendered by this Court in SBP & Co. v. Patel Engineering Ltd. (2005) 8 SCC 618. Our pointed attention was drawn to the conclusions drawn by the Constitution Bench in the above judgment, in paragraph 20. Paragraph 20 is reproduced below:20. Section 16 is said to be the recognition of the principle of Kompetenz-Kompetenz. The fact that the Arbitral Tribunal has the competence to rule on its own jurisdiction and to define the contours of its jurisdiction, only means that when such issues arise before it, the Tribunal can, and possibly, ought to decide them. This can happen when the parties have gone to the Arbitral Tribunal without recourse to Section 8 or 11 of the Act. But where the jurisdictional issues are decided under these sections, before a reference is made, Section 16 cannot be held to empower the Arbitral Tribunal to ignore the decision given by the judicial authority or the Chief Justice before the reference to it was made. The competence to decide does not enable the Arbitral Tribunal to get over the finality conferred on an order passed prior to its entering upon the reference by the very statute that creates it. That is the position arising out of Section 11(7) of the Act read with Section 16 thereof. The finality given to the order of the Chief Justice on the matters within his competence Under Section 11 of the Act are incapable of being reopened before the Arbitral Tribunal. In Konkan Rly. what is considered is only the fact that Under Section 16, the Arbitral Tribunal has the right to rule on its own jurisdiction and any objection, with respect to the existence or validity of the arbitration agreement. What is the impact of Section 11(7) of the Act on the Arbitral Tribunal constituted by an order Under Section 11(6) of the Act, was not considered. Obviously, this was because of the view taken in that decision that the Chief Justice is not expected to decide anything while entertaining a request Under Section 11(6) of the Act and is only performing an administrative function in appointing an Arbitral Tribunal. Once it is held that there is. an adjudicatory function entrusted to the Chief Justice by the Act, obviously the right of the Arbitral Tribunal to go behind the order passed by the Chief Justice would take another hue and would be controlled by Section 11(7) of the Act.(emphasis is ours)9. It was the submission of the learned Counsel for the Respondent, that proceedings could not have been entertained by the arbitrator Under Section 16 of Arbitration Act, in the present controversy, because by the orders of the High Court - dated 24.5.2002 and 26.9.2002 (extracted above), the appointment of the arbitrator was made, in exercise of the powers vested in the High Court, Under Section 11 of the Arbitration Act. The factual position depicted hereinabove, as also, the orders referred to hereinabove, leave no room for doubt, that Justice (Retired) S.S. Ganguly, was actually appointed as an arbitrator by the High Court, in exercise of the powers vested in the High Court, Under Section 11 of the Arbitration Act. That being the position, learned Counsel for the Respondent is fully justified in her submission, that the said order could not be tested by the arbitrator while considering the claim raised by the Appellant-State of West Bengal Under Section 16 of the Arbitration Act. Thus viewed, irrespective of whether Clause 12 extracted hereinabove, postulated the adjudication of dispute between the parties through an arbitrator, it is now not open to the Appellant before this Court to raise a challenge to the order passed by the High Court appointing an Arbitrator.10. There is another reason for us not to accept the prayer made before us, on behalf of the Appellant-State of West Bengal, for raising a challenge to the order dated 15.1.2004, passed by the arbitrator, and order dated 16.5.2006 passed by the High Court, and that is, that order dated 26.9.2002 passed by the High Court (extracted above) leaves no room for doubt, that the Appellant before this Court, factually requested the High Court to grant liberty to it, to prefer a counter-claim before the arbitrator. In other words, the Appellants prayer to the High Court (on 24.5.2002) was, to permit it to raise its own dispute, by granting liberty to it to prefer a counter-claim before the arbitrator. Such being the position, the Appellant cannot now wriggle out of the aforesaid voluntary acceptance, to have the matter adjudicated before the arbitrator. In any case, even Section 7(4)(c) of the Arbitration Act, in such factual circumstances, would lead to the same conclusion. Therefore, in the facts and circumstances of this case, there is also no dispute about the fact, that as against the claim raised by the Respondent-Sarkar & Sarkar before the arbitrator, the Appellant-State of West Bengal, had indeed raised a counterclaim. And having done so, it must be deemed to have submitted before the arbitrator, a request to adjudicate its claims as well. When both parties, had approached the arbitrator, and submitted themselves to the arbitrators jurisdiction, independent of all other factual and legal considerations, the arbitrability of the disputes was clearly made out Under Section 7(4)(c) of the Arbitration Act. | 0[ds]The factual position depicted hereinabove, as also, the orders referred to hereinabove, leave no room for doubt, that Justice (Retired) S.S. Ganguly, was actually appointed as an arbitrator by the High Court, in exercise of the powers vested in the High Court, Under Section 11 of the Arbitration Act. That being the position, learned Counsel for the Respondent is fully justified in her submission, that the said order could not be tested by the arbitrator while considering the claim raised by the Appellant-State of West Bengal Under Section 16 of the Arbitration Act. Thus viewed, irrespective of whether Clause 12 extracted hereinabove, postulated the adjudication of dispute between the parties through an arbitrator, it is now not open to the Appellant before this Court to raise a challenge to the order passed by the High Court appointing an Arbitrator10. There is another reason for us not to accept the prayer made before us, on behalf of the Appellant-State of West Bengal, for raising a challenge to the order dated 15.1.2004, passed by the arbitrator, and order dated 16.5.2006 passed by the High Court, and that is, that order dated 26.9.2002 passed by the High Court (extracted above) leaves no room for doubt, that the Appellant before this Court, factually requested the High Court to grant liberty to it, to prefer a counter-claim before the arbitrator. In other words, the Appellants prayer to the High Court (on 24.5.2002) was, to permit it to raise its own dispute, by granting liberty to it to prefer a counter-claim before the arbitrator. Such being the position, the Appellant cannot now wriggle out of the aforesaid voluntary acceptance, to have the matter adjudicated before the arbitrator. In any case, even Section 7(4)(c) of the Arbitration Act, in such factual circumstances, would lead to the same conclusion. Therefore, in the facts and circumstances of this case, there is also no dispute about the fact, that as against the claim raised by the Respondent-Sarkar & Sarkar before the arbitrator, the Appellant-State of West Bengal, had indeed raised a counterclaim. And having done so, it must be deemed to have submitted before the arbitrator, a request to adjudicate its claims as well. When both parties, had approached the arbitrator, and submitted themselves to the arbitrators jurisdiction, independent of all other factual and legal considerations, the arbitrability of the disputes was clearly made out Under Section 7(4)(c) of the Arbitration Act. | 0 | 2,283 | 475 | ### Instruction:
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the State of West Bengal, has preferred the instant civil appeal.7. It was the vehement contention of the learned Counsel for the Appellant based on a series of judgments rendered by this Court, that Clause 12 (extracted above) was not an arbitral clause, and that, the arbitrator as well as the High Court, had erred in determining the same.8. Learned Counsel for the Respondent-Sarkar & Sarkar contested the claim of the Appellant. It was submitted, that the Appellant could not be permitted even to raise the instant plea, so as to assail the order passed, either by the arbitrator (on 15.1.2004), or by the High Court (on 16.5.2006). The instant submission of the learned Counsel for the Respondent, was premised on the judgment rendered by this Court in SBP & Co. v. Patel Engineering Ltd. (2005) 8 SCC 618. Our pointed attention was drawn to the conclusions drawn by the Constitution Bench in the above judgment, in paragraph 20. Paragraph 20 is reproduced below:20. Section 16 is said to be the recognition of the principle of Kompetenz-Kompetenz. The fact that the Arbitral Tribunal has the competence to rule on its own jurisdiction and to define the contours of its jurisdiction, only means that when such issues arise before it, the Tribunal can, and possibly, ought to decide them. This can happen when the parties have gone to the Arbitral Tribunal without recourse to Section 8 or 11 of the Act. But where the jurisdictional issues are decided under these sections, before a reference is made, Section 16 cannot be held to empower the Arbitral Tribunal to ignore the decision given by the judicial authority or the Chief Justice before the reference to it was made. The competence to decide does not enable the Arbitral Tribunal to get over the finality conferred on an order passed prior to its entering upon the reference by the very statute that creates it. That is the position arising out of Section 11(7) of the Act read with Section 16 thereof. The finality given to the order of the Chief Justice on the matters within his competence Under Section 11 of the Act are incapable of being reopened before the Arbitral Tribunal. In Konkan Rly. what is considered is only the fact that Under Section 16, the Arbitral Tribunal has the right to rule on its own jurisdiction and any objection, with respect to the existence or validity of the arbitration agreement. What is the impact of Section 11(7) of the Act on the Arbitral Tribunal constituted by an order Under Section 11(6) of the Act, was not considered. Obviously, this was because of the view taken in that decision that the Chief Justice is not expected to decide anything while entertaining a request Under Section 11(6) of the Act and is only performing an administrative function in appointing an Arbitral Tribunal. Once it is held that there is. an adjudicatory function entrusted to the Chief Justice by the Act, obviously the right of the Arbitral Tribunal to go behind the order passed by the Chief Justice would take another hue and would be controlled by Section 11(7) of the Act.(emphasis is ours)9. It was the submission of the learned Counsel for the Respondent, that proceedings could not have been entertained by the arbitrator Under Section 16 of Arbitration Act, in the present controversy, because by the orders of the High Court - dated 24.5.2002 and 26.9.2002 (extracted above), the appointment of the arbitrator was made, in exercise of the powers vested in the High Court, Under Section 11 of the Arbitration Act. The factual position depicted hereinabove, as also, the orders referred to hereinabove, leave no room for doubt, that Justice (Retired) S.S. Ganguly, was actually appointed as an arbitrator by the High Court, in exercise of the powers vested in the High Court, Under Section 11 of the Arbitration Act. That being the position, learned Counsel for the Respondent is fully justified in her submission, that the said order could not be tested by the arbitrator while considering the claim raised by the Appellant-State of West Bengal Under Section 16 of the Arbitration Act. Thus viewed, irrespective of whether Clause 12 extracted hereinabove, postulated the adjudication of dispute between the parties through an arbitrator, it is now not open to the Appellant before this Court to raise a challenge to the order passed by the High Court appointing an Arbitrator.10. There is another reason for us not to accept the prayer made before us, on behalf of the Appellant-State of West Bengal, for raising a challenge to the order dated 15.1.2004, passed by the arbitrator, and order dated 16.5.2006 passed by the High Court, and that is, that order dated 26.9.2002 passed by the High Court (extracted above) leaves no room for doubt, that the Appellant before this Court, factually requested the High Court to grant liberty to it, to prefer a counter-claim before the arbitrator. In other words, the Appellants prayer to the High Court (on 24.5.2002) was, to permit it to raise its own dispute, by granting liberty to it to prefer a counter-claim before the arbitrator. Such being the position, the Appellant cannot now wriggle out of the aforesaid voluntary acceptance, to have the matter adjudicated before the arbitrator. In any case, even Section 7(4)(c) of the Arbitration Act, in such factual circumstances, would lead to the same conclusion. Therefore, in the facts and circumstances of this case, there is also no dispute about the fact, that as against the claim raised by the Respondent-Sarkar & Sarkar before the arbitrator, the Appellant-State of West Bengal, had indeed raised a counterclaim. And having done so, it must be deemed to have submitted before the arbitrator, a request to adjudicate its claims as well. When both parties, had approached the arbitrator, and submitted themselves to the arbitrators jurisdiction, independent of all other factual and legal considerations, the arbitrability of the disputes was clearly made out Under Section 7(4)(c) of the Arbitration Act.
### Response:
0
### Explanation:
The factual position depicted hereinabove, as also, the orders referred to hereinabove, leave no room for doubt, that Justice (Retired) S.S. Ganguly, was actually appointed as an arbitrator by the High Court, in exercise of the powers vested in the High Court, Under Section 11 of the Arbitration Act. That being the position, learned Counsel for the Respondent is fully justified in her submission, that the said order could not be tested by the arbitrator while considering the claim raised by the Appellant-State of West Bengal Under Section 16 of the Arbitration Act. Thus viewed, irrespective of whether Clause 12 extracted hereinabove, postulated the adjudication of dispute between the parties through an arbitrator, it is now not open to the Appellant before this Court to raise a challenge to the order passed by the High Court appointing an Arbitrator10. There is another reason for us not to accept the prayer made before us, on behalf of the Appellant-State of West Bengal, for raising a challenge to the order dated 15.1.2004, passed by the arbitrator, and order dated 16.5.2006 passed by the High Court, and that is, that order dated 26.9.2002 passed by the High Court (extracted above) leaves no room for doubt, that the Appellant before this Court, factually requested the High Court to grant liberty to it, to prefer a counter-claim before the arbitrator. In other words, the Appellants prayer to the High Court (on 24.5.2002) was, to permit it to raise its own dispute, by granting liberty to it to prefer a counter-claim before the arbitrator. Such being the position, the Appellant cannot now wriggle out of the aforesaid voluntary acceptance, to have the matter adjudicated before the arbitrator. In any case, even Section 7(4)(c) of the Arbitration Act, in such factual circumstances, would lead to the same conclusion. Therefore, in the facts and circumstances of this case, there is also no dispute about the fact, that as against the claim raised by the Respondent-Sarkar & Sarkar before the arbitrator, the Appellant-State of West Bengal, had indeed raised a counterclaim. And having done so, it must be deemed to have submitted before the arbitrator, a request to adjudicate its claims as well. When both parties, had approached the arbitrator, and submitted themselves to the arbitrators jurisdiction, independent of all other factual and legal considerations, the arbitrability of the disputes was clearly made out Under Section 7(4)(c) of the Arbitration Act.
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Arun D. Desai Vs. High Court of Bombay Through Chief Justice and Others | CHANDRACHUD, C.J.1. The petitioner, Arun D. Desai appeared for the second and third year law examinations of the Bombay University in June-July 1980. Since the University did not declare the results of the examination in time, the petitioner filed this writ petition under Article 32 of the Constitution. By the petition, the petitioner asked for several reliefs which the Court could not have possibly granted. Later, he amended the writ petition and concentrated on the main relief regarding the declaration of the results of the examination for which he had appeared.2. During the pendency of this writ petition, the University declared the results of both the examinations in which, the petitioner was declared to have failed in the second LL.B. examination. As a corollary, his result for the third LL.B. examination was kept in abeyance. The petitioner then filed a writ petition in the Court of the learned Judicial Commissioner, Panaji, Goa, to challenge the result of the examination but that petition was dismissed. Thereafter he filed a writ petition in this Court (No. 6352 of 1980) challenging the result of the second LL.B. examination on the ground that it is "defective, arbitrary and partial". That writ petition was allowed to be withdrawn, with liberty to the petitioner to file a special leave petition against the order passed by the Court of the Judicial Commissioner. The petitioner does not appear to have taken any steps in that behalf thereafter.3. There is no substance whatsoever in this writ petition. The petitioner has failed in the second LL.B. examination. It is not shown how the assessment of his answer books is defective, arbitrary or partial. Students who fail in their examinations are generally prone to make such allegations to explain their failure and to console themselves with the thought that, not they but the examiners are to blame. We understand the anguish of the petitioner at his failure but we have no power to pass him. This is apart from the fact that the writ petition has become infructuous by reason of the declaration of the result during its pendency. The relief claimed by the petitioner is that the result should be declared. | 1[ds]3. There is no substance whatsoever in this writ petition. The petitioner has failed in the second LL.B. examination. It is not shown how the assessment of his answer books is defective, arbitrary or partial. Students who fail in their examinations are generally prone to make such allegations to explain their failure and to console themselves with the thought that, not they but the examiners are to blame. We understand the anguish of the petitioner at his failure but we have no power to pass him. This is apart from the fact that the writ petition has become infructuous by reason of the declaration of the result during its pendency. The relief claimed by the petitioner is that the result should be declared. | 1 | 403 | 138 | ### 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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CHANDRACHUD, C.J.1. The petitioner, Arun D. Desai appeared for the second and third year law examinations of the Bombay University in June-July 1980. Since the University did not declare the results of the examination in time, the petitioner filed this writ petition under Article 32 of the Constitution. By the petition, the petitioner asked for several reliefs which the Court could not have possibly granted. Later, he amended the writ petition and concentrated on the main relief regarding the declaration of the results of the examination for which he had appeared.2. During the pendency of this writ petition, the University declared the results of both the examinations in which, the petitioner was declared to have failed in the second LL.B. examination. As a corollary, his result for the third LL.B. examination was kept in abeyance. The petitioner then filed a writ petition in the Court of the learned Judicial Commissioner, Panaji, Goa, to challenge the result of the examination but that petition was dismissed. Thereafter he filed a writ petition in this Court (No. 6352 of 1980) challenging the result of the second LL.B. examination on the ground that it is "defective, arbitrary and partial". That writ petition was allowed to be withdrawn, with liberty to the petitioner to file a special leave petition against the order passed by the Court of the Judicial Commissioner. The petitioner does not appear to have taken any steps in that behalf thereafter.3. There is no substance whatsoever in this writ petition. The petitioner has failed in the second LL.B. examination. It is not shown how the assessment of his answer books is defective, arbitrary or partial. Students who fail in their examinations are generally prone to make such allegations to explain their failure and to console themselves with the thought that, not they but the examiners are to blame. We understand the anguish of the petitioner at his failure but we have no power to pass him. This is apart from the fact that the writ petition has become infructuous by reason of the declaration of the result during its pendency. The relief claimed by the petitioner is that the result should be declared.
### Response:
1
### Explanation:
3. There is no substance whatsoever in this writ petition. The petitioner has failed in the second LL.B. examination. It is not shown how the assessment of his answer books is defective, arbitrary or partial. Students who fail in their examinations are generally prone to make such allegations to explain their failure and to console themselves with the thought that, not they but the examiners are to blame. We understand the anguish of the petitioner at his failure but we have no power to pass him. This is apart from the fact that the writ petition has become infructuous by reason of the declaration of the result during its pendency. The relief claimed by the petitioner is that the result should be declared.
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SURESH CHANDRA Vs. U.P. AVAS VIKAS PARISHAD | of the High Court dismissed the writ petition filed by the appellant herein.3. In order to appreciate the issue involved in this appeal, which lies in a narrow compass, it is necessary to set out the relevant facts in brief hereinbelow.4. While issuing notice of this special leave to appeal on 06.03.2018, this Court passed the following order:?Application for exemption from filing official translation is allowed.Issue notice on the limited question as to why the property in question admeasuring 639 sq.metres land which was auctioned by Uttar Pradesh Avas Evam Vikas Parishad for which market price as of today is quite high, be not put to auction sale again, returnable on 14 th March, 2018.Status quo as of today in respect of the property in question shall be maintained.Petitioner is permitted to serve the respondents by way of dasti service within a week.?5. Pursuant to the aforesaid order, the respondents have filed their response/counter affidavits.6. In short, the dispute relates to a plot of land bearing plot No. 4B/CP-03 (Sector 4B) situated at Sikandara Yojna, Agra having total area measuring 639.75 Sq. meter owned by U.P. Avas Vikas Parishad-respondent No. 1 herein (hereinafter referred to as ?the Parishad?).7. On 12.08.2010, the Parishad in daily Hindi News Papers ?Dainik Jagaran? and "Amar Ujala? issued an advertisement inviting applications from interested parties for allotment of the aforementioned land. The reserved rate of the plot was fixed at Rs.17,248/- per sq. mt. The parties were to deposit a token money of Rs.11,03,500/-.8. It is the case of the appellant that he was one of the bidders, who quoted the rate of the plot at Rs.18050/- per sq. meter which was the highest. The Parishad, however, was of the view that the offers received did not represent the real market price and, therefore, it decided to re-auction the same.9. The Parishad, therefore, issued a fresh advertisement for allotment of land. The appellant felt aggrieved with the Parishads decision to re- auction the land in question and issuance of fresh advertisement and filed Writ Petition No.6198/2012 in the High Court at Allahabad. The High Court, by interim order dated 30.07.2012, directed that re- auction may be held but it will be subject to the final outcome of the writ petition.10. In re-auction, respondent No. 5 submitted his bid for Rs.28,000/- per Sq. Meter as against the reserve price of Rs.27,104/- fixed by the Parishad. The appellant in order to show his bona fide interest offered to purchase the land for Rs.40,000/- per Sq. Meter and later modified his offer at Rs.45,000/- per Sq. Meter in the Court. The appellant also deposited a sum of Rs.1.15 crores out of the total amount of Rs.2.87 crores.11. The High Court, by impugned order, dismissed the appellants writ petition essentially on the ground that since he was not the bidder in the re- auction proceedings, he cannot be heard in the matter and Secondly; since during the pendency of the writ petition, the Parishad had executed the sale deed of the land in favour of respondent No.5 and hence nothing now survives in the matter.12. The appellant(writ petitioner) felt aggrieved and filed this appeal by way of special leave in this Court. As mentioned above, notice was issued to examine only one limited issue in relation to re- auction of the land.13. Heard Ms. Sonia Mathur, learned senior counsel for the appellant and Mr. S.S. Kulshrestha, learned senior counsel, Mr. Vishwajit Singh and Mr. Abhay Kumar, learned counsel for the respondents.14. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to dispose of the appeal as mentioned hereinbelow.15. Learned counsel for respondent No.1- Parishad at the outset submitted that the Parishad has no objection if the re-auction of the plot of the land in question is done because in re-auction proceedings, the Parishad is bound to get more sale price as against the price quoted by the bidders in the earlier two auctions.16. Learned Counsel for respondent No.5, however, defended the impugned order and contended that since the sale has already been concluded in his favour and sale deed has also been executed, the appeal deserves dismissal.17. We are of the considered opinion that in order to do complete justice between the parties in relation to subject matter of the proceedings in question and to balance the equities and further having regard to all the facts and circumstances of the case, the fresh auction of the land in question can be ordered. It is also necessary for the following reasons.18. First, the 2 nd re-auction proceedings conducted by the Parishad were made subject to final outcome of the writ petition by order dated 30.07.2012 passed by the High Court in the appellant?s writ petition and, therefore, even if Parishad had proceeded to finalize the sale of the land in question in favour of respondent No.5, it did not affect any of the rights of the appellant while prosecuting the writ petition. It was more so because the respondent No.5 was also aware of the order dated 30.07.2012, he being part to the writ petition.19. Second, the Parishad did not give adequate publicity for sale of the land in question while conducting two auctions because we find that only two bidders could participate in the auctions.20. In our view, the Parishad, keeping in view, the value and the potential of the land, should have given adequate publicity in the leading national English, Hindi newspapers having circulation all over the country including any other prescribed mode of publication with a sole object to attract participation of more and more persons in the auction proceedings.21. Third, the Parishad committed an error in fixing reserve price of the land at a very less amount. The Parishad should have seen that the land has a tremendous potential in commercial market as is clear from the fact that both the bidders had volunteered to pay much higher price as against their original bid amount. | 1[ds]17. We are of the considered opinion that in order to do complete justice between the parties in relation to subject matter of the proceedings in question and to balance the equities and further having regard to all the facts and circumstances of the case, the fresh auction of the land in question can be ordered. It is also necessary for the following. First, the 2 nd re-auction proceedings conducted by the Parishad were made subject to final outcome of the writ petition by order dated30.07.2012 passed by the High Court in the appellant?s writ petition and, therefore, even if Parishad had proceeded to finalize the sale of the land in question in favour of respondent No.5, it did not affect any of the rights of the appellant while prosecuting the writ petition. It was more so because the respondent No.5 was also aware of the order dated 30.07.2012, he being part to the writ. Second, the Parishad did not give adequate publicity for sale of the land in question while conducting two auctions because we find that only two bidders could participate in the. In our view, the Parishad, keeping in view, the value and the potential of the land, should have given adequate publicity in the leading national English, Hindi newspapers having circulation all over the country including any other prescribed mode of publication with a sole object to attract participation of more and more persons in the auction. Third, the Parishad committed an error in fixing reserve price of the land at a very less amount. The Parishad should have seen that the land has a tremendous potential in commercial market as is clear from the fact that both the bidders had volunteered to pay much higher price as against their original bid amount. | 1 | 1,159 | 325 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
of the High Court dismissed the writ petition filed by the appellant herein.3. In order to appreciate the issue involved in this appeal, which lies in a narrow compass, it is necessary to set out the relevant facts in brief hereinbelow.4. While issuing notice of this special leave to appeal on 06.03.2018, this Court passed the following order:?Application for exemption from filing official translation is allowed.Issue notice on the limited question as to why the property in question admeasuring 639 sq.metres land which was auctioned by Uttar Pradesh Avas Evam Vikas Parishad for which market price as of today is quite high, be not put to auction sale again, returnable on 14 th March, 2018.Status quo as of today in respect of the property in question shall be maintained.Petitioner is permitted to serve the respondents by way of dasti service within a week.?5. Pursuant to the aforesaid order, the respondents have filed their response/counter affidavits.6. In short, the dispute relates to a plot of land bearing plot No. 4B/CP-03 (Sector 4B) situated at Sikandara Yojna, Agra having total area measuring 639.75 Sq. meter owned by U.P. Avas Vikas Parishad-respondent No. 1 herein (hereinafter referred to as ?the Parishad?).7. On 12.08.2010, the Parishad in daily Hindi News Papers ?Dainik Jagaran? and "Amar Ujala? issued an advertisement inviting applications from interested parties for allotment of the aforementioned land. The reserved rate of the plot was fixed at Rs.17,248/- per sq. mt. The parties were to deposit a token money of Rs.11,03,500/-.8. It is the case of the appellant that he was one of the bidders, who quoted the rate of the plot at Rs.18050/- per sq. meter which was the highest. The Parishad, however, was of the view that the offers received did not represent the real market price and, therefore, it decided to re-auction the same.9. The Parishad, therefore, issued a fresh advertisement for allotment of land. The appellant felt aggrieved with the Parishads decision to re- auction the land in question and issuance of fresh advertisement and filed Writ Petition No.6198/2012 in the High Court at Allahabad. The High Court, by interim order dated 30.07.2012, directed that re- auction may be held but it will be subject to the final outcome of the writ petition.10. In re-auction, respondent No. 5 submitted his bid for Rs.28,000/- per Sq. Meter as against the reserve price of Rs.27,104/- fixed by the Parishad. The appellant in order to show his bona fide interest offered to purchase the land for Rs.40,000/- per Sq. Meter and later modified his offer at Rs.45,000/- per Sq. Meter in the Court. The appellant also deposited a sum of Rs.1.15 crores out of the total amount of Rs.2.87 crores.11. The High Court, by impugned order, dismissed the appellants writ petition essentially on the ground that since he was not the bidder in the re- auction proceedings, he cannot be heard in the matter and Secondly; since during the pendency of the writ petition, the Parishad had executed the sale deed of the land in favour of respondent No.5 and hence nothing now survives in the matter.12. The appellant(writ petitioner) felt aggrieved and filed this appeal by way of special leave in this Court. As mentioned above, notice was issued to examine only one limited issue in relation to re- auction of the land.13. Heard Ms. Sonia Mathur, learned senior counsel for the appellant and Mr. S.S. Kulshrestha, learned senior counsel, Mr. Vishwajit Singh and Mr. Abhay Kumar, learned counsel for the respondents.14. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to dispose of the appeal as mentioned hereinbelow.15. Learned counsel for respondent No.1- Parishad at the outset submitted that the Parishad has no objection if the re-auction of the plot of the land in question is done because in re-auction proceedings, the Parishad is bound to get more sale price as against the price quoted by the bidders in the earlier two auctions.16. Learned Counsel for respondent No.5, however, defended the impugned order and contended that since the sale has already been concluded in his favour and sale deed has also been executed, the appeal deserves dismissal.17. We are of the considered opinion that in order to do complete justice between the parties in relation to subject matter of the proceedings in question and to balance the equities and further having regard to all the facts and circumstances of the case, the fresh auction of the land in question can be ordered. It is also necessary for the following reasons.18. First, the 2 nd re-auction proceedings conducted by the Parishad were made subject to final outcome of the writ petition by order dated 30.07.2012 passed by the High Court in the appellant?s writ petition and, therefore, even if Parishad had proceeded to finalize the sale of the land in question in favour of respondent No.5, it did not affect any of the rights of the appellant while prosecuting the writ petition. It was more so because the respondent No.5 was also aware of the order dated 30.07.2012, he being part to the writ petition.19. Second, the Parishad did not give adequate publicity for sale of the land in question while conducting two auctions because we find that only two bidders could participate in the auctions.20. In our view, the Parishad, keeping in view, the value and the potential of the land, should have given adequate publicity in the leading national English, Hindi newspapers having circulation all over the country including any other prescribed mode of publication with a sole object to attract participation of more and more persons in the auction proceedings.21. Third, the Parishad committed an error in fixing reserve price of the land at a very less amount. The Parishad should have seen that the land has a tremendous potential in commercial market as is clear from the fact that both the bidders had volunteered to pay much higher price as against their original bid amount.
### Response:
1
### Explanation:
17. We are of the considered opinion that in order to do complete justice between the parties in relation to subject matter of the proceedings in question and to balance the equities and further having regard to all the facts and circumstances of the case, the fresh auction of the land in question can be ordered. It is also necessary for the following. First, the 2 nd re-auction proceedings conducted by the Parishad were made subject to final outcome of the writ petition by order dated30.07.2012 passed by the High Court in the appellant?s writ petition and, therefore, even if Parishad had proceeded to finalize the sale of the land in question in favour of respondent No.5, it did not affect any of the rights of the appellant while prosecuting the writ petition. It was more so because the respondent No.5 was also aware of the order dated 30.07.2012, he being part to the writ. Second, the Parishad did not give adequate publicity for sale of the land in question while conducting two auctions because we find that only two bidders could participate in the. In our view, the Parishad, keeping in view, the value and the potential of the land, should have given adequate publicity in the leading national English, Hindi newspapers having circulation all over the country including any other prescribed mode of publication with a sole object to attract participation of more and more persons in the auction. Third, the Parishad committed an error in fixing reserve price of the land at a very less amount. The Parishad should have seen that the land has a tremendous potential in commercial market as is clear from the fact that both the bidders had volunteered to pay much higher price as against their original bid amount.
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M/S Jit Ram Shiv Kumar Vs. National Insurance Company Ltd | and harassment of the respondent. Having regard to the facts of this case, specially the fact that the loss of timber which was purchased was loaded to Malaysia and the ship which was to come to Visakhapatnam was lost on High Sees and having regard to the further fact that the investigation in the claim of the respondent who had initially not furnished all the documents to the appellant, had to be carried in a foreign country with the help of the survey, the appellants were justified in taking time in repudiating the claim of the respondent after due investigation. To that extent, therefore, the claim of the respondent is liable to be rejected and is hereby rejected. In view of the above the appeal is partly allowed. The claim of the respondent for compensation to the tune of Rs. 1 lakh allowed by the Commission is rejected but the rest of the order is maintained. The appeal is disposed of in the matter indicated above."4. Since the amount paid by the respondent did not satisfy the claim fully, the appellant filed execution petition before the National Commission being Miscellaneous Petition No. 5/2000 (in Original Petition No. 30/1992). The National Commission passed the following order in the said Miscellaneous petition :- "We have read the papers. We are of the view that the order of the Supreme Court is carried out by the Insurance Company. The Miscellaneous Petition is disposed of."5. It is this order, which is impugned in this appeal. 6. The learned counsel for the appellant, pointing out to the order of this Court dated 23.9.1999, aforementioned, contended that the order of the National Commission giving direction for payment was confirmed by this Court except direction 3, i.e., payment of the compensation of Rs. 1.00 lakh for the unjustified delay and harassment to the respondent in repudiating the claim. He added that this Court did not find any infirmity as far as the question of payment of interest is concerned. The learned counsel submitted that the National Commission did not consider as to whether the entire amount that was to be paid according to the order of the National Commission contained in directions 1, 2 and 4 as affirmed by this Court, was paid to the appellant or not; without anything more the National Commission simply stated that the order of the Supreme Court was carried out by the Insurance Company; hence the Miscellaneous Petition was disposed of. The learned counsel further submitted that a certificate issued by the Chartered Accountant clearly shows that an amount of Rs. 4,02,649/- is still due to be paid to the appellant, calculated on the basis of the order by the National Commission as modified by this Court. 7. The learned counsel for the respondent submitted that this Court in Civil Appeal No. 3110/93, while granting interim order, directed the respondent to deposit a sum of Rs. 8,20,575/- with interest at the rate of 12% per annum from 12.8.1987 within six weeks with the liberty to the appellant to withdraw the said amount; the respondent accordingly deposited a sum of Rs. 13,91,995.44; since the respondent had already deposited the amount along with interest of 12% per annum, it was not liable to pay 6% interest on the principle amount of Rs. 8,20,575/-. The learned counsel further urged that the National Commission having ordered for payment of interest at the rate of 18% per annum as per direction 2, payment of further interest at the rate of 18% per annum on the amount mentioned in directions 1 and 2 amounts to granting interest on interest. 8. We have considered the submissions of the learned counsel for the parties. It is clear from the order dated 23.9.1999 of this court that the order of the National Commission stood confirmed except direction 3 given in the operative portion of the order of the National Commission. This Court on 30.10.2000 in the present case at the SLP stage, had passed the following order : "Notice will be issued to show cause why the matter should not be disposed of on the basis of the Certificate issued by the Chartered Accountant of the petitioner, dated 24.8.2000." 9. The National Commission unfortunately has not gone into the details and did not discuss as to the rival contentions. We do not see any difficulty in accepting the contentions urged on behalf of the appellant that the order of the National Commission dated 15.4.1993 was confirmed by this Court except direction 3 and a correction of date which regard to payment of interest in direction 2 from 12.6.1987 to 12.8.1987. Hence the respondent was bound to satisfy the claim of the appellant including the interest as stated in item 4 of the order of the National Commission. It is not an interest over interest but it is in an interest awarded on delayed payment. Merely because this Court, while granting an interim order, directed the respondent to deposit a sum of Rs. 8,20,575/- with interest thereon at the rate of 12% per annum in Civil Appeal No. 3110/93 pending disposal of the appeal, it cannot be said that liability of the appellant to pay interest at the rate of 18% per annum as per direction 4 of the order of the National Commission, ceased.10. Under these circumstances we find merit in the appeal. In the light of what is stated above, the respondent is liable to pay the remaining amount as indicated in the certificate issued by the Chartered Accountant in terms of the order of the National Commission dated 15.4.1993 as modified by the order of this Court dated 23.9.1999 in Civil Appeal No. 3110/93. The respondent is entitled to deduct the amount already paid to the appellant. We make it clear that the respondent is not liable to pay interest from the date on which such amount has actually been received by the appellant in terms of the order of the National Commission as modified by this Court. | 1[ds]We do not see any difficulty in accepting the contentions urged on behalf of the appellant that the order of the National Commission dated 15.4.1993 was confirmed by this Court except direction 3 and a correction of date which regard to payment of interest in direction 2 from 12.6.1987 to 12.8.1987. Hence the respondent was bound to satisfy the claim of the appellant including the interest as stated in item 4 of the order of the National Commission. It is not an interest over interest but it is in an interest awarded on delayed payment. Merely because this Court, while granting an interim order, directed the respondent to deposit a sum of Rs. 8,20,575/with interest thereon at the rate of 12% per annum in Civil Appeal No. 3110/93 pending disposal of the appeal, it cannot be said that liability of the appellant to pay interest at the rate of 18% per annum as per direction 4 of the order of the National Commission, ceased.10. Under these circumstances we find merit in the appeal. In the light of what is stated above, the respondent is liable to pay the remaining amount as indicated in the certificate issued by the Chartered Accountant in terms of the order of the National Commission dated 15.4.1993 as modified by the order of this Court dated 23.9.1999 in Civil Appeal No. 3110/93. The respondent is entitled to deduct the amount already paid to the appellant. We make it clear that the respondent is not liable to pay interest from the date on which such amount has actually been received by the appellant in terms of the order of the National Commission as modified by this Court. | 1 | 1,590 | 303 | ### 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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and harassment of the respondent. Having regard to the facts of this case, specially the fact that the loss of timber which was purchased was loaded to Malaysia and the ship which was to come to Visakhapatnam was lost on High Sees and having regard to the further fact that the investigation in the claim of the respondent who had initially not furnished all the documents to the appellant, had to be carried in a foreign country with the help of the survey, the appellants were justified in taking time in repudiating the claim of the respondent after due investigation. To that extent, therefore, the claim of the respondent is liable to be rejected and is hereby rejected. In view of the above the appeal is partly allowed. The claim of the respondent for compensation to the tune of Rs. 1 lakh allowed by the Commission is rejected but the rest of the order is maintained. The appeal is disposed of in the matter indicated above."4. Since the amount paid by the respondent did not satisfy the claim fully, the appellant filed execution petition before the National Commission being Miscellaneous Petition No. 5/2000 (in Original Petition No. 30/1992). The National Commission passed the following order in the said Miscellaneous petition :- "We have read the papers. We are of the view that the order of the Supreme Court is carried out by the Insurance Company. The Miscellaneous Petition is disposed of."5. It is this order, which is impugned in this appeal. 6. The learned counsel for the appellant, pointing out to the order of this Court dated 23.9.1999, aforementioned, contended that the order of the National Commission giving direction for payment was confirmed by this Court except direction 3, i.e., payment of the compensation of Rs. 1.00 lakh for the unjustified delay and harassment to the respondent in repudiating the claim. He added that this Court did not find any infirmity as far as the question of payment of interest is concerned. The learned counsel submitted that the National Commission did not consider as to whether the entire amount that was to be paid according to the order of the National Commission contained in directions 1, 2 and 4 as affirmed by this Court, was paid to the appellant or not; without anything more the National Commission simply stated that the order of the Supreme Court was carried out by the Insurance Company; hence the Miscellaneous Petition was disposed of. The learned counsel further submitted that a certificate issued by the Chartered Accountant clearly shows that an amount of Rs. 4,02,649/- is still due to be paid to the appellant, calculated on the basis of the order by the National Commission as modified by this Court. 7. The learned counsel for the respondent submitted that this Court in Civil Appeal No. 3110/93, while granting interim order, directed the respondent to deposit a sum of Rs. 8,20,575/- with interest at the rate of 12% per annum from 12.8.1987 within six weeks with the liberty to the appellant to withdraw the said amount; the respondent accordingly deposited a sum of Rs. 13,91,995.44; since the respondent had already deposited the amount along with interest of 12% per annum, it was not liable to pay 6% interest on the principle amount of Rs. 8,20,575/-. The learned counsel further urged that the National Commission having ordered for payment of interest at the rate of 18% per annum as per direction 2, payment of further interest at the rate of 18% per annum on the amount mentioned in directions 1 and 2 amounts to granting interest on interest. 8. We have considered the submissions of the learned counsel for the parties. It is clear from the order dated 23.9.1999 of this court that the order of the National Commission stood confirmed except direction 3 given in the operative portion of the order of the National Commission. This Court on 30.10.2000 in the present case at the SLP stage, had passed the following order : "Notice will be issued to show cause why the matter should not be disposed of on the basis of the Certificate issued by the Chartered Accountant of the petitioner, dated 24.8.2000." 9. The National Commission unfortunately has not gone into the details and did not discuss as to the rival contentions. We do not see any difficulty in accepting the contentions urged on behalf of the appellant that the order of the National Commission dated 15.4.1993 was confirmed by this Court except direction 3 and a correction of date which regard to payment of interest in direction 2 from 12.6.1987 to 12.8.1987. Hence the respondent was bound to satisfy the claim of the appellant including the interest as stated in item 4 of the order of the National Commission. It is not an interest over interest but it is in an interest awarded on delayed payment. Merely because this Court, while granting an interim order, directed the respondent to deposit a sum of Rs. 8,20,575/- with interest thereon at the rate of 12% per annum in Civil Appeal No. 3110/93 pending disposal of the appeal, it cannot be said that liability of the appellant to pay interest at the rate of 18% per annum as per direction 4 of the order of the National Commission, ceased.10. Under these circumstances we find merit in the appeal. In the light of what is stated above, the respondent is liable to pay the remaining amount as indicated in the certificate issued by the Chartered Accountant in terms of the order of the National Commission dated 15.4.1993 as modified by the order of this Court dated 23.9.1999 in Civil Appeal No. 3110/93. The respondent is entitled to deduct the amount already paid to the appellant. We make it clear that the respondent is not liable to pay interest from the date on which such amount has actually been received by the appellant in terms of the order of the National Commission as modified by this Court.
### Response:
1
### Explanation:
We do not see any difficulty in accepting the contentions urged on behalf of the appellant that the order of the National Commission dated 15.4.1993 was confirmed by this Court except direction 3 and a correction of date which regard to payment of interest in direction 2 from 12.6.1987 to 12.8.1987. Hence the respondent was bound to satisfy the claim of the appellant including the interest as stated in item 4 of the order of the National Commission. It is not an interest over interest but it is in an interest awarded on delayed payment. Merely because this Court, while granting an interim order, directed the respondent to deposit a sum of Rs. 8,20,575/with interest thereon at the rate of 12% per annum in Civil Appeal No. 3110/93 pending disposal of the appeal, it cannot be said that liability of the appellant to pay interest at the rate of 18% per annum as per direction 4 of the order of the National Commission, ceased.10. Under these circumstances we find merit in the appeal. In the light of what is stated above, the respondent is liable to pay the remaining amount as indicated in the certificate issued by the Chartered Accountant in terms of the order of the National Commission dated 15.4.1993 as modified by the order of this Court dated 23.9.1999 in Civil Appeal No. 3110/93. The respondent is entitled to deduct the amount already paid to the appellant. We make it clear that the respondent is not liable to pay interest from the date on which such amount has actually been received by the appellant in terms of the order of the National Commission as modified by this Court.
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Indian Oil Corporation Ltd. Through its Senior Manager Vs. M/s Shree Ganesh Petroleum Rajgurunagar Through its Proprietor Mr. Laxman Dagdu Thite | a Circular, unilaterally issued by one party, cannot possibly bind the other party to the agreement without that other partys consent. Indeed, the Circular itself expressly stipulates that it cannot apply unless the contractors furnish an undertaking/affidavit that the price adjustment under the Circular is acceptable to them. We have seen how the appellant gave such undertaking only conditionally and without prejudice to its argument that the Circular does not and cannot apply. This being the case, it is clear that the majority award has created a new contract for the parties by applying the said unilateral Circular and by substituting a workable formula under the agreement by another formula dehors the agreement. This being the case, a fundamental principle of justice has been breached, namely, that a unilateral addition or alteration of a contract can never be foisted upon an unwilling party, nor can a party to the agreement be liable to perform a bargain not entered into with the other party. Clearly, such a course of conduct would be contrary to fundamental principles of justice as followed in this country, and shocks the conscience of this Court. However, we repeat that this ground is available only in very exceptional circumstances, such as the fact situation in the present case. Under no circumstance can any court interfere with an arbitral award on the ground that justice has not been done in the opinion of the Court. That would be an entry into the merits of the dispute which, as we have seen, is contrary to the ethos of Section 34 of the 1996 Act, as has been noted earlier in this judgment. 51. In PSA SICAL Terminals Pvt. Ltd. v. Board of Trustees of V.O. Chidambranar Port Trust Tuticorin and Others (2021) SCC Online SC 508 this Court referred to and relied upon SSangyong Engineering and Construction Company Limited (supra) and held: 87. As such, as held by this Court in Ssangyong Engineering and Construction Company Limited (supra), the fundamental principle of justice has been breached, namely, that a unilateral addition or alteration of a contract has been foisted upon an unwilling party. This Court has further held that a party to the Agreement cannot be made liable to perform something for which it has not entered into a contract. In our view, re-writing a contract for the parties would be breach of fundamental principles of justice entitling a Court to interfere since such case would be one which shocks the conscience of the Court and as such, would fall in the exceptional category. 52. In PSA SICAL Terminals Pvt. Ltd. (supra) this Court clearly held that the role of the Arbitrator was to arbitrate within the terms of the contract. He had no power apart from what the parties had given him under the contract. If he has travelled beyond the contract, he would be acting without jurisdiction. 53. In PSA SICAL Terminals Pvt. Ltd. (supra) this Court referred to and relied upon the earlier judgment of this Court in MD. Army Welfare Housing Organization v. Sumangal Service (P) Ltd. (2004) 9 SCC 619 and held that an Arbitral Tribunal is not a court of law. It cannot exercise its power ex debito justitiae. 54. In Satyanarayana Construction Company v. Union of India and Others (2011) 15 SCC 101, a Bench of this Court of coordinate strength held that once a rate had been fixed in a contract, it was not open to the Arbitrator to rewrite the terms of the contract and award a higher rate. Where an Arbitrator had in effect rewritten the contract and awarded a rate, higher than that agreed in the contract, the High Court was held not to commit any error in setting aside the award. 55. There can be no dispute with the proposition of law enunciated by this Court in Central Inland Water Transport Corporation Limited and Another v. Brojo Nath Ganguly and Another (1986) 3 SCC 156, cited by Mr. Keswani. The judgment, however, has no application in this case. 56. In Brojo Nath Ganguly (supra), this Court held that a term in a contract of employment as also service rules of a Government company providing for termination of services of permanent employees without assigning reasons, on three months notice, or pay in lieu thereof was unconscionable, arbitrary and opposed to public policy. This Court was not concerned with any lease agreement or any dealership agreement in the aforesaid case. 57. In this case, there is no finding by the Arbitral Tribunal that any condition of the dealership agreement was unconscionable and the Arbitral Tribunal has not interfered with termination of the dealership agreement. 58. The Appellant and the Respondent entered into the lease agreement in this case with their eyes open. The Respondent had the option not to lease out its property to the Appellant. The situation of an owner of property, executing a lease agreement in respect of his property cannot be equated with a contract of employment executed by and between an employee and a mighty employer, where the employee has little option but to accept the terms and conditions offered by the employer. 59. It is well settled that a judgment of a Court is precedent for the issue of law which is raised and decided. Words and phrases used in a judgment cannot be read in isolation, out of context. To quote the distinguished author V. Sudhish Pai Judgments and observations in judgments are not to be read as Euclids theorems or as provisions of statute. Judicial utterances/pronouncements are in the setting of the facts of a particular case. To interpret words and provisions of a statute it may become necessary for judges to embark upon lengthy discussions, but such discussion is meant to explain not define. Judges interpret statutes, their words are not be interpreted as statutes. Thus, precedents are not to be read as statutes (Constitutional Supremacy-A Revisit, Essays on Constitutionalism, Rule of Law & Constitutional Adjudication by Mr. V. Sudhish Pai). | 1[ds]41. The High Court also apparently overlooked the fact that the jurisdiction of the Arbitral Tribunal to increase the monthly lease rent from Rs.1750/- per month to Rs.35,000/- per month was specifically in issue before the learned Arbitrator (Issue No.6) as evident from the impugned award.42. As held by this Court in Associate Builders v. Delhi Development Authority (2015) 3 SCC 49, cited by Mr. Prasenjit Keswani, learned counsel appearing on behalf of the Respondent, Section 34 in conjunction with Section 5 of the 1996 Act makes it clear that an arbitral award that is governed by Part I of the 1996 Act, can only be set aside on grounds mentioned under Sections 34(2) and (3) of the said Act and not otherwise. The Court considering an application for setting aside an award, under Section 34 of the 1996 Act cannot look into the merits of the award except when the award is in conflict with the public policy of India as provided in Section 34(2)(b)(ii) of the 1996 Act.43. In Associate Builders (supra), this Court held that an award could be said to against the public policy of India in, inter alia, the following circumstances: -(i) When an award is, on its face, in patent violation of a statutory provision.(ii) When the Arbitrator/Arbitral Tribunal has failed to adopt a judicial approach in deciding the dispute.(iii) When an award is in violation of the principles of natural justice.(iv) When an award is unreasonable or perverse.(v) When an award is patently illegal, which would include an award in patent contravention of any substantive law of India or in patent breach of the 1996 Act.(vi) When an award is contrary to the interest of India, or against justice or morality, in the sense that it shocks the conscience of the Court.44. An Arbitral Tribunal being a creature of contract, is bound to act in terms of the contract under which it is constituted. An award can be said to be patently illegal where the Arbitral Tribunal has failed to act in terms of the contract or has ignored the specific terms of a contract.47. In Associate Builders (supra), this Court held that an award ignoring the terms of a contract would not be in public interest. In the instant case, the award in respect of the lease rent and the lease term is in patent disregard of the terms and conditions of the lease agreement and thus against public policy. Furthermore, in Associate Builders (supra) the jurisdiction of the Arbitral Tribunal to adjudicate a dispute itself was not in issue. The Court was dealing with the circumstances in which a Court could look into the merits of an award.48. In this case, as observed above, the impugned award insofar as it pertains to lease rent and lease period is patently beyond the scope of the competence of the Arbitrator appointed in terms of the dealership agreement by the Director (Marketing) of the Appellant.49. The lease agreement which was in force for a period of 29 years with effect from 15th April, 2005 specifically provided for monthly lease rent of Rs.1750 per month for the said plot of land on which the retail outlet had been set up. It is well settled that an Arbitral Tribunal, or for that matter, the Court cannot alter the terms and conditions of a valid contract executed between the parties with their eyes open.50. In Ssangyong Engineering and Construction Company Limited v. National Highways Authority of India (NHAI) (2019) 15 SCC 131, this Court held:76. However, when it comes to the public policy of India, argument based upon most basic notions of justice, it is clear that this ground can be attracted only in very exceptional circumstances when the conscience of the Court is shocked by infraction of fundamental notions or principles of justice. It can be seen that the formula that was applied by the agreement continued to be applied till February 2013 — in short, it is not correct to say that the formula under the agreement could not be applied in view of the Ministrys change in the base indices from 1993-1994 to 2004-2005. Further, in order to apply a linking factor, a Circular, unilaterally issued by one party, cannot possibly bind the other party to the agreement without that other partys consent. Indeed, the Circular itself expressly stipulates that it cannot apply unless the contractors furnish an undertaking/affidavit that the price adjustment under the Circular is acceptable to them. We have seen how the appellant gave such undertaking only conditionally and without prejudice to its argument that the Circular does not and cannot apply. This being the case, it is clear that the majority award has created a new contract for the parties by applying the said unilateral Circular and by substituting a workable formula under the agreement by another formula dehors the agreement. This being the case, a fundamental principle of justice has been breached, namely, that a unilateral addition or alteration of a contract can never be foisted upon an unwilling party, nor can a party to the agreement be liable to perform a bargain not entered into with the other party. Clearly, such a course of conduct would be contrary to fundamental principles of justice as followed in this country, and shocks the conscience of this Court. However, we repeat that this ground is available only in very exceptional circumstances, such as the fact situation in the present case. Under no circumstance can any court interfere with an arbitral award on the ground that justice has not been done in the opinion of the Court. That would be an entry into the merits of the dispute which, as we have seen, is contrary to the ethos of Section 34 of the 1996 Act, as has been noted earlier in this judgment.51. In PSA SICAL Terminals Pvt. Ltd. v. Board of Trustees of V.O. Chidambranar Port Trust Tuticorin and Others (2021) SCC Online SC 508 this Court referred to and relied upon SSangyong Engineering and Construction Company Limited (supra) and held:87. As such, as held by this Court in Ssangyong Engineering and Construction Company Limited (supra), the fundamental principle of justice has been breached, namely, that a unilateral addition or alteration of a contract has been foisted upon an unwilling party. This Court has further held that a party to the Agreement cannot be made liable to perform something for which it has not entered into a contract. In our view, re-writing a contract for the parties would be breach of fundamental principles of justice entitling a Court to interfere since such case would be one which shocks the conscience of the Court and as such, would fall in the exceptional category.52. In PSA SICAL Terminals Pvt. Ltd. (supra) this Court clearly held that the role of the Arbitrator was to arbitrate within the terms of the contract. He had no power apart from what the parties had given him under the contract. If he has travelled beyond the contract, he would be acting without jurisdiction.53. In PSA SICAL Terminals Pvt. Ltd. (supra) this Court referred to and relied upon the earlier judgment of this Court in MD. Army Welfare Housing Organization v. Sumangal Service (P) Ltd. (2004) 9 SCC 619 and held that an Arbitral Tribunal is not a court of law. It cannot exercise its power ex debito justitiae.55. There can be no dispute with the proposition of law enunciated by this Court in Central Inland Water Transport Corporation Limited and Another v. Brojo Nath Ganguly and Another (1986) 3 SCC 156, cited by Mr. Keswani. The judgment, however, has no application in this case.56. In Brojo Nath Ganguly (supra), this Court held that a term in a contract of employment as also service rules of a Government company providing for termination of services of permanent employees without assigning reasons, on three months notice, or pay in lieu thereof was unconscionable, arbitrary and opposed to public policy. This Court was not concerned with any lease agreement or any dealership agreement in the aforesaid case.57. In this case, there is no finding by the Arbitral Tribunal that any condition of the dealership agreement was unconscionable and the Arbitral Tribunal has not interfered with termination of the dealership agreement.58. The Appellant and the Respondent entered into the lease agreement in this case with their eyes open. The Respondent had the option not to lease out its property to the Appellant. The situation of an owner of property, executing a lease agreement in respect of his property cannot be equated with a contract of employment executed by and between an employee and a mighty employer, where the employee has little option but to accept the terms and conditions offered by the employer.59. It is well settled that a judgment of a Court is precedent for the issue of law which is raised and decided. Words and phrases used in a judgment cannot be read in isolation, out of context. To quote the distinguished author V. Sudhish Pai Judgments and observations in judgments are not to be read as Euclids theorems or as provisions of statute. Judicial utterances/pronouncements are in the setting of the facts of a particular case. To interpret words and provisions of a statute it may become necessary for judges to embark upon lengthy discussions, but such discussion is meant to explain not define. Judges interpret statutes, their words are not be interpreted as statutes. Thus, precedents are not to be read as statutes (Constitutional Supremacy-A Revisit, Essays on Constitutionalism, Rule of Law & Constitutional Adjudication by Mr. V. Sudhish Pai). | 1 | 10,360 | 1,810 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
a Circular, unilaterally issued by one party, cannot possibly bind the other party to the agreement without that other partys consent. Indeed, the Circular itself expressly stipulates that it cannot apply unless the contractors furnish an undertaking/affidavit that the price adjustment under the Circular is acceptable to them. We have seen how the appellant gave such undertaking only conditionally and without prejudice to its argument that the Circular does not and cannot apply. This being the case, it is clear that the majority award has created a new contract for the parties by applying the said unilateral Circular and by substituting a workable formula under the agreement by another formula dehors the agreement. This being the case, a fundamental principle of justice has been breached, namely, that a unilateral addition or alteration of a contract can never be foisted upon an unwilling party, nor can a party to the agreement be liable to perform a bargain not entered into with the other party. Clearly, such a course of conduct would be contrary to fundamental principles of justice as followed in this country, and shocks the conscience of this Court. However, we repeat that this ground is available only in very exceptional circumstances, such as the fact situation in the present case. Under no circumstance can any court interfere with an arbitral award on the ground that justice has not been done in the opinion of the Court. That would be an entry into the merits of the dispute which, as we have seen, is contrary to the ethos of Section 34 of the 1996 Act, as has been noted earlier in this judgment. 51. In PSA SICAL Terminals Pvt. Ltd. v. Board of Trustees of V.O. Chidambranar Port Trust Tuticorin and Others (2021) SCC Online SC 508 this Court referred to and relied upon SSangyong Engineering and Construction Company Limited (supra) and held: 87. As such, as held by this Court in Ssangyong Engineering and Construction Company Limited (supra), the fundamental principle of justice has been breached, namely, that a unilateral addition or alteration of a contract has been foisted upon an unwilling party. This Court has further held that a party to the Agreement cannot be made liable to perform something for which it has not entered into a contract. In our view, re-writing a contract for the parties would be breach of fundamental principles of justice entitling a Court to interfere since such case would be one which shocks the conscience of the Court and as such, would fall in the exceptional category. 52. In PSA SICAL Terminals Pvt. Ltd. (supra) this Court clearly held that the role of the Arbitrator was to arbitrate within the terms of the contract. He had no power apart from what the parties had given him under the contract. If he has travelled beyond the contract, he would be acting without jurisdiction. 53. In PSA SICAL Terminals Pvt. Ltd. (supra) this Court referred to and relied upon the earlier judgment of this Court in MD. Army Welfare Housing Organization v. Sumangal Service (P) Ltd. (2004) 9 SCC 619 and held that an Arbitral Tribunal is not a court of law. It cannot exercise its power ex debito justitiae. 54. In Satyanarayana Construction Company v. Union of India and Others (2011) 15 SCC 101, a Bench of this Court of coordinate strength held that once a rate had been fixed in a contract, it was not open to the Arbitrator to rewrite the terms of the contract and award a higher rate. Where an Arbitrator had in effect rewritten the contract and awarded a rate, higher than that agreed in the contract, the High Court was held not to commit any error in setting aside the award. 55. There can be no dispute with the proposition of law enunciated by this Court in Central Inland Water Transport Corporation Limited and Another v. Brojo Nath Ganguly and Another (1986) 3 SCC 156, cited by Mr. Keswani. The judgment, however, has no application in this case. 56. In Brojo Nath Ganguly (supra), this Court held that a term in a contract of employment as also service rules of a Government company providing for termination of services of permanent employees without assigning reasons, on three months notice, or pay in lieu thereof was unconscionable, arbitrary and opposed to public policy. This Court was not concerned with any lease agreement or any dealership agreement in the aforesaid case. 57. In this case, there is no finding by the Arbitral Tribunal that any condition of the dealership agreement was unconscionable and the Arbitral Tribunal has not interfered with termination of the dealership agreement. 58. The Appellant and the Respondent entered into the lease agreement in this case with their eyes open. The Respondent had the option not to lease out its property to the Appellant. The situation of an owner of property, executing a lease agreement in respect of his property cannot be equated with a contract of employment executed by and between an employee and a mighty employer, where the employee has little option but to accept the terms and conditions offered by the employer. 59. It is well settled that a judgment of a Court is precedent for the issue of law which is raised and decided. Words and phrases used in a judgment cannot be read in isolation, out of context. To quote the distinguished author V. Sudhish Pai Judgments and observations in judgments are not to be read as Euclids theorems or as provisions of statute. Judicial utterances/pronouncements are in the setting of the facts of a particular case. To interpret words and provisions of a statute it may become necessary for judges to embark upon lengthy discussions, but such discussion is meant to explain not define. Judges interpret statutes, their words are not be interpreted as statutes. Thus, precedents are not to be read as statutes (Constitutional Supremacy-A Revisit, Essays on Constitutionalism, Rule of Law & Constitutional Adjudication by Mr. V. Sudhish Pai).
### Response:
1
### Explanation:
notions of justice, it is clear that this ground can be attracted only in very exceptional circumstances when the conscience of the Court is shocked by infraction of fundamental notions or principles of justice. It can be seen that the formula that was applied by the agreement continued to be applied till February 2013 — in short, it is not correct to say that the formula under the agreement could not be applied in view of the Ministrys change in the base indices from 1993-1994 to 2004-2005. Further, in order to apply a linking factor, a Circular, unilaterally issued by one party, cannot possibly bind the other party to the agreement without that other partys consent. Indeed, the Circular itself expressly stipulates that it cannot apply unless the contractors furnish an undertaking/affidavit that the price adjustment under the Circular is acceptable to them. We have seen how the appellant gave such undertaking only conditionally and without prejudice to its argument that the Circular does not and cannot apply. This being the case, it is clear that the majority award has created a new contract for the parties by applying the said unilateral Circular and by substituting a workable formula under the agreement by another formula dehors the agreement. This being the case, a fundamental principle of justice has been breached, namely, that a unilateral addition or alteration of a contract can never be foisted upon an unwilling party, nor can a party to the agreement be liable to perform a bargain not entered into with the other party. Clearly, such a course of conduct would be contrary to fundamental principles of justice as followed in this country, and shocks the conscience of this Court. However, we repeat that this ground is available only in very exceptional circumstances, such as the fact situation in the present case. Under no circumstance can any court interfere with an arbitral award on the ground that justice has not been done in the opinion of the Court. That would be an entry into the merits of the dispute which, as we have seen, is contrary to the ethos of Section 34 of the 1996 Act, as has been noted earlier in this judgment.51. In PSA SICAL Terminals Pvt. Ltd. v. Board of Trustees of V.O. Chidambranar Port Trust Tuticorin and Others (2021) SCC Online SC 508 this Court referred to and relied upon SSangyong Engineering and Construction Company Limited (supra) and held:87. As such, as held by this Court in Ssangyong Engineering and Construction Company Limited (supra), the fundamental principle of justice has been breached, namely, that a unilateral addition or alteration of a contract has been foisted upon an unwilling party. This Court has further held that a party to the Agreement cannot be made liable to perform something for which it has not entered into a contract. In our view, re-writing a contract for the parties would be breach of fundamental principles of justice entitling a Court to interfere since such case would be one which shocks the conscience of the Court and as such, would fall in the exceptional category.52. In PSA SICAL Terminals Pvt. Ltd. (supra) this Court clearly held that the role of the Arbitrator was to arbitrate within the terms of the contract. He had no power apart from what the parties had given him under the contract. If he has travelled beyond the contract, he would be acting without jurisdiction.53. In PSA SICAL Terminals Pvt. Ltd. (supra) this Court referred to and relied upon the earlier judgment of this Court in MD. Army Welfare Housing Organization v. Sumangal Service (P) Ltd. (2004) 9 SCC 619 and held that an Arbitral Tribunal is not a court of law. It cannot exercise its power ex debito justitiae.55. There can be no dispute with the proposition of law enunciated by this Court in Central Inland Water Transport Corporation Limited and Another v. Brojo Nath Ganguly and Another (1986) 3 SCC 156, cited by Mr. Keswani. The judgment, however, has no application in this case.56. In Brojo Nath Ganguly (supra), this Court held that a term in a contract of employment as also service rules of a Government company providing for termination of services of permanent employees without assigning reasons, on three months notice, or pay in lieu thereof was unconscionable, arbitrary and opposed to public policy. This Court was not concerned with any lease agreement or any dealership agreement in the aforesaid case.57. In this case, there is no finding by the Arbitral Tribunal that any condition of the dealership agreement was unconscionable and the Arbitral Tribunal has not interfered with termination of the dealership agreement.58. The Appellant and the Respondent entered into the lease agreement in this case with their eyes open. The Respondent had the option not to lease out its property to the Appellant. The situation of an owner of property, executing a lease agreement in respect of his property cannot be equated with a contract of employment executed by and between an employee and a mighty employer, where the employee has little option but to accept the terms and conditions offered by the employer.59. It is well settled that a judgment of a Court is precedent for the issue of law which is raised and decided. Words and phrases used in a judgment cannot be read in isolation, out of context. To quote the distinguished author V. Sudhish Pai Judgments and observations in judgments are not to be read as Euclids theorems or as provisions of statute. Judicial utterances/pronouncements are in the setting of the facts of a particular case. To interpret words and provisions of a statute it may become necessary for judges to embark upon lengthy discussions, but such discussion is meant to explain not define. Judges interpret statutes, their words are not be interpreted as statutes. Thus, precedents are not to be read as statutes (Constitutional Supremacy-A Revisit, Essays on Constitutionalism, Rule of Law & Constitutional Adjudication by Mr. V. Sudhish Pai).
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State of Rajasthan & Another Vs. Rajendar Singh | contention that under those Regulations there was no power in the State Government to retire him compulsorily. And if the conditions of service applicable immediately before the reorganization were to be varied to his disadvantage, this could be done only with the previous approval of the Central Government. It is not shown to us that any such approval of the Central Government had been obtained. If as the respondent contends, there was no rule under the Central Civil Service Regulations which provided for compulsory retirement, his compulsory retirement under the Rajasthan Rules would amount to varying to his disadvantage the conditions of his service and hence the order was invalid. That position is not seriously contested on behalf of the State.6. A reference was made to Rajasthan Service (Protection of Service Condition) Rules, 1957. But apparently these rules which merely deal with the scales of pay, dearness allowance and leave and pension rules, though issued by the Central Government, do not contain any provision with regard to compulsory retirement. Therefore, the respondent is right in his submission that the necessary approval under the provisions of Section 115 had not been obtained.7. Therefore, the only question which remains to be considered is whether under the Central Civil Service Regulations the respondent could be compulsorily retired before the date of his superannuation. No specific rule was brought to our notice which authorised such action. Mr. Jain for the State, however, invited our attention to Articles 349-A, 349-AA, 465-A and 465-AA of the above regulations and his contention was that the respondent could be compulsorily retired in view of Note below Article 465-AA read with cl. (2) of that Article. Article 465-AA reads as follows:"For officers referred to in Article 349-AA the rule for the grant of retiring pension is as follows : -(1) An officer is entitled, on his resignation being accepted, to a retiring pension after completing qualifying service of not less than 30 years.(2) A retiring pension is also granted to an officer who is required by Government to retire after completing 25 years, qualifying service or more.Note:- Government retains an absolute right to retire any officer after he has completed 25 years qualifying service without giving any reasons, and no claim to special compensation on this account will be entertained. This right will not be exercised except when it is in the public interest to dispense with the further service of the officer."8. If this Article applied to the respondent, it is possible to argue for the State that it had the authority to retire him compulsorily after completion of 25 years of qualifying service. But as the Article itself shows it applied to officers referred to in Article 349-AA. That Article is as follows:"349AA. Article 349-A does - not apply to an Officer (1) who entered Government service on or after the 1st October, 1938 or (2) who having entered such service before that date, did not hold a lien on a permanent pensionable post before that date or (3) who is transferred on or after the 1st October, 1938 permanently from service under a State Government or a Local Fund administered by Government to service under the President and did not hold a lien or a suspended lien on a permanent pensionable post under the State Government or the Local Fund before that date.In the case of such officers the rules in Article 465-AA.....................replace the rules in Articles 465, 465-A......." It is clear from the above Article that Article 349-AA excludes certain category of officers to whom normally Article 349-A applied and to this category of officers Article 465-AA applied and not Articles 465 and 465A. The latter two Articles applied to the officers described in Article 349-A who had not been excluded therefrom under Article 349-AA."9. Article 349-A is as follows;"(1) The rule in Article.... 465A ... applies to officers (other than Military Officers and members of the Indian Civil Service) appointed substantively to the service or the appointments specified below who : -(a) joined these appointments after 29th August, 1919, or(b) were in service on the 29th August, 1919 but have definitely elected in writing with the permission of Government to come under them."Then follows a long list of departments, services and posts to which Article 349-A applied. One of them is the Police Department and the entry is as follows:The Police Department-officers of Indian Police, and Deputy Superintendents.10. The above will show that Article 349-A applied to the appointments in the Police Department but those appointments must be officers of Indian Police and Deputy Superintendents. Other Police personnel in the Police Department were not governed by Article 349-A. The respondent though appointed in the Police Department did not hold such a post and, therefore, Article 349-A had no application.11. Therefore since Art. 349-A did not apply to an appointment like that of the respondent, Art. 349-AA also did not apply to him because for the application of the latter Article it is essential that the officer must belong to a service or hold a post specifically mentioned in Art. 349-A. The respondent is, - therefore, right in contending that Article 349-AA does not apply to him and consequently Article 465-AA also.12. We thus come to the conclusion that there is no Article in the Central Civil Service Regulations providing for the compulsory retirement of a person like the respondent which would only mean that he shall retire on reaching the age of superannuation. It is not the case that the respondent who was 46 years old at the time of the Order had reached the age of superannuation. To apply to him the Rajasthan Civil Service Rules, 1951 for the purpose of compulsory retirement would amount to varying his condition of service to his disadvantage and since there was no previous approval of the Central Government, the Order of the State Government must be held to be bad. The High Court was, therefore, right in allowing the respondents petition and the present appeal fails. | 0[ds]10. The above will show that Articleapplied to the appointments in the Police Department but those appointments must be officers of Indian Police and Deputy Superintendents. Other Police personnel in the Police Department were not governed by ArticleThe respondent though appointed in the Police Department did not hold such a post and, therefore, Articlehad no application.11. Therefore since Art.did not apply to an appointment like that of the respondent, Art.also did not apply to him because for the application of the latter Article it is essential that the officer must belong to a service or hold a post specifically mentioned in Art.The respondent is,therefore, right in contending that Articledoes not apply to him and consequently Articlealso.12. We thus come to the conclusion that there is no Article in the Central Civil Service Regulations providing for the compulsory retirement of a person like the respondent which would only mean that he shall retire on reaching the age of superannuation. It is not the case that the respondent who was 46 years old at the time of the Order had reached the age of superannuation. To apply to him the Rajasthan Civil Service Rules, 1951 for the purpose of compulsory retirement would amount to varying his condition of service to his disadvantage and since there was no previous approval of the Central Government, the Order of the State Government must be held to be bad. The High Court was, therefore, right in allowing the respondents petition and the present appeal fails. | 0 | 2,008 | 271 | ### 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:
contention that under those Regulations there was no power in the State Government to retire him compulsorily. And if the conditions of service applicable immediately before the reorganization were to be varied to his disadvantage, this could be done only with the previous approval of the Central Government. It is not shown to us that any such approval of the Central Government had been obtained. If as the respondent contends, there was no rule under the Central Civil Service Regulations which provided for compulsory retirement, his compulsory retirement under the Rajasthan Rules would amount to varying to his disadvantage the conditions of his service and hence the order was invalid. That position is not seriously contested on behalf of the State.6. A reference was made to Rajasthan Service (Protection of Service Condition) Rules, 1957. But apparently these rules which merely deal with the scales of pay, dearness allowance and leave and pension rules, though issued by the Central Government, do not contain any provision with regard to compulsory retirement. Therefore, the respondent is right in his submission that the necessary approval under the provisions of Section 115 had not been obtained.7. Therefore, the only question which remains to be considered is whether under the Central Civil Service Regulations the respondent could be compulsorily retired before the date of his superannuation. No specific rule was brought to our notice which authorised such action. Mr. Jain for the State, however, invited our attention to Articles 349-A, 349-AA, 465-A and 465-AA of the above regulations and his contention was that the respondent could be compulsorily retired in view of Note below Article 465-AA read with cl. (2) of that Article. Article 465-AA reads as follows:"For officers referred to in Article 349-AA the rule for the grant of retiring pension is as follows : -(1) An officer is entitled, on his resignation being accepted, to a retiring pension after completing qualifying service of not less than 30 years.(2) A retiring pension is also granted to an officer who is required by Government to retire after completing 25 years, qualifying service or more.Note:- Government retains an absolute right to retire any officer after he has completed 25 years qualifying service without giving any reasons, and no claim to special compensation on this account will be entertained. This right will not be exercised except when it is in the public interest to dispense with the further service of the officer."8. If this Article applied to the respondent, it is possible to argue for the State that it had the authority to retire him compulsorily after completion of 25 years of qualifying service. But as the Article itself shows it applied to officers referred to in Article 349-AA. That Article is as follows:"349AA. Article 349-A does - not apply to an Officer (1) who entered Government service on or after the 1st October, 1938 or (2) who having entered such service before that date, did not hold a lien on a permanent pensionable post before that date or (3) who is transferred on or after the 1st October, 1938 permanently from service under a State Government or a Local Fund administered by Government to service under the President and did not hold a lien or a suspended lien on a permanent pensionable post under the State Government or the Local Fund before that date.In the case of such officers the rules in Article 465-AA.....................replace the rules in Articles 465, 465-A......." It is clear from the above Article that Article 349-AA excludes certain category of officers to whom normally Article 349-A applied and to this category of officers Article 465-AA applied and not Articles 465 and 465A. The latter two Articles applied to the officers described in Article 349-A who had not been excluded therefrom under Article 349-AA."9. Article 349-A is as follows;"(1) The rule in Article.... 465A ... applies to officers (other than Military Officers and members of the Indian Civil Service) appointed substantively to the service or the appointments specified below who : -(a) joined these appointments after 29th August, 1919, or(b) were in service on the 29th August, 1919 but have definitely elected in writing with the permission of Government to come under them."Then follows a long list of departments, services and posts to which Article 349-A applied. One of them is the Police Department and the entry is as follows:The Police Department-officers of Indian Police, and Deputy Superintendents.10. The above will show that Article 349-A applied to the appointments in the Police Department but those appointments must be officers of Indian Police and Deputy Superintendents. Other Police personnel in the Police Department were not governed by Article 349-A. The respondent though appointed in the Police Department did not hold such a post and, therefore, Article 349-A had no application.11. Therefore since Art. 349-A did not apply to an appointment like that of the respondent, Art. 349-AA also did not apply to him because for the application of the latter Article it is essential that the officer must belong to a service or hold a post specifically mentioned in Art. 349-A. The respondent is, - therefore, right in contending that Article 349-AA does not apply to him and consequently Article 465-AA also.12. We thus come to the conclusion that there is no Article in the Central Civil Service Regulations providing for the compulsory retirement of a person like the respondent which would only mean that he shall retire on reaching the age of superannuation. It is not the case that the respondent who was 46 years old at the time of the Order had reached the age of superannuation. To apply to him the Rajasthan Civil Service Rules, 1951 for the purpose of compulsory retirement would amount to varying his condition of service to his disadvantage and since there was no previous approval of the Central Government, the Order of the State Government must be held to be bad. The High Court was, therefore, right in allowing the respondents petition and the present appeal fails.
### Response:
0
### Explanation:
10. The above will show that Articleapplied to the appointments in the Police Department but those appointments must be officers of Indian Police and Deputy Superintendents. Other Police personnel in the Police Department were not governed by ArticleThe respondent though appointed in the Police Department did not hold such a post and, therefore, Articlehad no application.11. Therefore since Art.did not apply to an appointment like that of the respondent, Art.also did not apply to him because for the application of the latter Article it is essential that the officer must belong to a service or hold a post specifically mentioned in Art.The respondent is,therefore, right in contending that Articledoes not apply to him and consequently Articlealso.12. We thus come to the conclusion that there is no Article in the Central Civil Service Regulations providing for the compulsory retirement of a person like the respondent which would only mean that he shall retire on reaching the age of superannuation. It is not the case that the respondent who was 46 years old at the time of the Order had reached the age of superannuation. To apply to him the Rajasthan Civil Service Rules, 1951 for the purpose of compulsory retirement would amount to varying his condition of service to his disadvantage and since there was no previous approval of the Central Government, the Order of the State Government must be held to be bad. The High Court was, therefore, right in allowing the respondents petition and the present appeal fails.
|
M/S. CENTROTRADE MINERALS AND METALS INC Vs. HINDUSTAN COPPER LTD | will follow shortly. This was communicated by fax on 18.09.2001 by the learned arbitrator to Fox & Mandal, the Attorneys of HCL. It is only thereafter, on 19.09.2001, that a couriered letter is sent to the learned arbitrator stating that Fox & Mandal would be deeply obliged if documents contained in paper binder no.1 would also be taken into account. It was then added that paper binder no.2, containing judgments of the Courts of law and authorities are being sent separately and it may take 7 to 10 days more time beyond 19.09.2001. 34. At this stage, it is important to point out that the learned arbitrator had given a large number of opportunities to file documents and legal submissions. On 03.05.2001 the learned arbitrator directed that the appellant serve submissions along with supporting documents, following the respondents response and evidence therein, with a right in the appellant to put in a reply, in accordance with a clear time table that was set out. On 30.07.2001, since no defence submissions or supporting evidence was served by the respondent within the time prescribed, the time was extended, giving the respondent one last opportunity to put in their defence and to seek extension of time for so doing. Until August 2001, it may be stated that respondent did not participate in the arbitral proceedings, even though invited to do so. It is only on 09.08.2001, when the learned arbitrator informed the parties that he is proceeding with the award, that on 11.08.2001, the learned arbitrator received a fax from Fox & Mandal, Attorneys for HCL, requesting for an extension of one months time to put in their defence. This was acceded to by the learned arbitrator on 16.08.2001, giving time upto 31.08.2001. However, on 27.08.2001, Fox & Mandal sought for a further three weeks extension of time, which was also granted by the learned arbitrator, allowing a final extension of time until 12.09.2001. Despite the fact that the legal submissions running into 75 pages were submitted beyond time, that is only on 13.9.2001, in view of the 11.09.2001 attack in New York, the learned arbitrator received the same and took the same into account despite being beyond time. It was only on 29.09.2001 that the learned arbitrator then passed his award. Given the aforesaid timeline, it is clear that the learned arbitrator was extremely fair to the respondent. Having noticed that the respondent wanted to stall the arbitral proceedings by approaching the Courts in Rajasthan and having succeeded partially, at least till February 2001, the conduct of the respondent leaves much to be called for. Despite being informed time and again to appear before the Tribunal and submit their response and evidence in support thereof, it is only after the arbitrator indicated that he was going to pass an award that the respondents attorneys woke up and started asking for time to present their response. This too was granted by the learned arbitrator, by not only granting extension of time, but by extending this time even further. Finally, when the legal submissions of 75 pages were sent even beyond the time that was granted, the learned Arbitrator took this into account and then passed his award. This being the case, on facts we can find no fault whatsoever with the conduct of the arbitral proceedings. 35. Justice Chatterjee, however, in his judgment, made several errors of fact. First and foremost, in paragraph 166 of Centrotrade [2006] (supra), the learned Judge quoted the penultimate line in paragraph 8 of the award, without even adverting to the line just before the aforesaid line which indicated that the material that was received from HCL was in fact taken into consideration while making the award, even beyond the stipulated time of 12.09.2001. Secondly, in paragraph 167, Chatterjee,J. conjectured that between 13 th and 29 th September, 2001, the Arbitrator did receive further material from HCL which he did not consider while making the award, on the ground that they were received after the time limit granted by him to HCL. Factually, there is no supporting material to show that any such further material was received by the learned arbitrator, except documents that have been presented by Shri Raval for the first time before us. They were clearly not before Chatterjee,J. when this surmise was made by the learned Judge, Further, the arbitrator cannot be faulted on this ground as, given the authorities referred to by us hereinabove, the arbitrator is in control of the arbitral proceedings and procedural orders which give time limits must be strictly adhered to. In paragraph 168, the learned Judge then said that given the attack in New York on 11.09.2001, the learned arbitrator should have excused further delay and should not have acted on frivolous technicalities. This approach of a Court enforcing a foreign award flies in the face of the judgments referred to by us hereinabove. Even otherwise, Chatterjee, J., refers to the judgment in Hari Om Maheshwari (supra) as well as Minmetals (supra), but then does not proceed to apply the ratio of the said judgments. Had he applied the ratio of even these two judgments, it would have been clear that an arbitrators refusal to adjourn the proceedings at the behest of one party cannot be said to be perverse, keeping in mind the object of speedy resolution of disputes of the Arbitration Act. Further, the Minmetals (supra) test was not even adverted to by Chatterjee,J., which is that HCL was never unable to present its case as it was at no time outside its control to furnish documents and legal submissions within the time given by the learned arbitrator. HCL chose not to appear before the arbitrator, and thereafter chose to submit documents and legal submissions outside the timelines granted by the arbitrator. 36. Even otherwise, remanding the matter to the ICC arbitrator to pass a fresh award in paragraph 169, is clearly outside the jurisdiction of an enforcing court under Section 48 of the 1996 Act. | 1[ds]13. In appeal, the Division Bench, in view of its finding that the award is not a foreign award, declined to apply Section 50 of the Arbitration Act, 1996 (hereinafter referred to as Arbitration Act), and then stated that the London award is declared to be inexecutable so long as the Indian Nil Award stands. In view of this finding, it did not go into the natural justice point argued by HCL14. In the first round in this court, S.B. Sinha,J. did not go into the natural justice point, in view of his finding that the arbitration clause itself was null and voidAs has been held in paragraph 76 of Vijay Karia (supra), the context of Section 48 is recognition and enforcement of foreign awards under the New York Convention of 1958. Given the context of the New York Convention, and the fact that the expression otherwise is susceptible to two meanings, it is clear that the narrower meaning has been preferred, which is in consonance with the pro-enforcement bias spoken about by a large number of judgments referred to in Vijay Karia (supra). Kochunis case (supra) dealing with an entirely different Act with a different object cannot, therefore, possibly apply to construe this word in the setting in which it occurs19. As a matter of fact, three earlier judgments of this Court, all under the Arbitration Act, 1940, are also instructive. The ground on which a domestic award could be set aside under Section 30 of the 1940 Act, inter alia, was if the arbitrator misconducted himself or the proceedings. It will be seen that misconduct as a ground for setting aside an award is conceptually much wider than a party being unable to present its case before the arbitrator, which is contained in Section 48(1)(b)29. We now come to the facts of the present case. Shri Ravals plea that this Court cannot go into the question posed before it as there was no difference of opinion on HCL being unable to present its case, Justice Chatterjee Js being the only judgment on this score, has no legs to stand. The reference order that is extracted by us in paragraph 7 above, and that is contained in paragraph 1 of the decision in Centrotrade [2017] (supra), makes it clear that, in view of difference of opinion, the matter is referred to a larger bench for reconsideration. That the expression the matter was understood as meaning the entire matter and not merely issue 1, is further made clear by paragraph 5 of the said judgment as follows:For the present, we propose to address only the first question and depending upon the answer, the appeals would be set down for hearing on the remaining issue. We have adopted this somewhat unusual course since the roster of business allowed us to hear the appeals only sporadically and therefore the proceedings before us dragged on for about three monthsFinally, the 3 Judge Bench concluded:48. In view of the above, the first question before us is answered in the affirmative. The appeals should be listed again for consideration of the second question which relates to the enforcement of the appellate awardIn this view of the matter, we have proceeded to examine the correctness of Chatterjee Js views. We are afraid that this is an argument that has never been raised earlier, and has been raised by Shri Raval here for the first time. Even otherwise, and even if we were to go by the documents that were submitted to us for the first time by Shri Raval, the fax sent on 20.12.2000 by the arbitrator to the parties is incomplete. Even otherwise, it speaks of issues of jurisdiction and Indian law having to be addressed as a primary question before matters of substance relating to the dispute on the contract. None of this clearly and unequivocally shows that the learned arbitrator sought to take up the plea as to jurisdiction as a preliminary objection which should be decided before other matters. This plea of Shri Raval, being taken here for the first time and for the reasons given by us, is devoid of substanceFirst and foremost, the stay order of the Rajasthan High Court was not and could not be directed against the arbitrator – it was directed only against the parties to the proceeding. Secondly, the learned arbitrator initially began the proceedings, after the green signal given to him by the ICC Court to proceed with the arbitration, by directing that the appellant serve submissions along with supporting evidence, followed by the respondents response and evidence on 19.01.2001. This, however, was reiterated only on 03.05.2001, by which time the Supreme Court had vacated the ad- interim ex parte order on 08.02.2001. This plea taken by Shri Raval, also taken before us for the first time, has no legs to stand on33. The sequence of events, even from the documents presented by Shri Raval for the first time, is that legal submissions were furnished after 11.09.2001 and received by the arbitrators office on 13.09.2001. The arbitrator then stated that these submissions have been fully taken into account in the award and that by 18.09.2001, there would be no scope for any further material being supplied, as the publication of the award will follow shortly. This was communicated by fax on 18.09.2001 by the learned arbitrator to Fox & Mandal, the Attorneys of HCL. It is only thereafter, on 19.09.2001, that a couriered letter is sent to the learned arbitrator stating that Fox & Mandal would be deeply obliged if documents contained in paper binder no.1 would also be taken into account. It was then added that paper binder no.2, containing judgments of the Courts of law and authorities are being sent separately and it may take 7 to 10 days more time beyond 19.09.200134. At this stage, it is important to point out that the learned arbitrator had given a large number of opportunities to file documents and legal submissions. On 03.05.2001 the learned arbitrator directed that the appellant serve submissions along with supporting documents, following the respondents response and evidence therein, with a right in the appellant to put in a reply, in accordance with a clear time table that was set out. On 30.07.2001, since no defence submissions or supporting evidence was served by the respondent within the time prescribed, the time was extended, giving the respondent one last opportunity to put in their defence and to seek extension of time for so doing. Until August 2001, it may be stated that respondent did not participate in the arbitral proceedings, even though invited to do so. It is only on 09.08.2001, when the learned arbitrator informed the parties that he is proceeding with the award, that on 11.08.2001, the learned arbitrator received a fax from Fox & Mandal, Attorneys for HCL, requesting for an extension of one months time to put in their defence. This was acceded to by the learned arbitrator on 16.08.2001, giving time upto 31.08.2001. However, on 27.08.2001, Fox & Mandal sought for a further three weeks extension of time, which was also granted by the learned arbitrator, allowing a final extension of time until 12.09.2001. Despite the fact that the legal submissions running into 75 pages were submitted beyond time, that is only on 13.9.2001, in view of the 11.09.2001 attack in New York, the learned arbitrator received the same and took the same into account despite being beyond time. It was only on 29.09.2001 that the learned arbitrator then passed his award. Given the aforesaid timeline, it is clear that the learned arbitrator was extremely fair to the respondent. Having noticed that the respondent wanted to stall the arbitral proceedings by approaching the Courts in Rajasthan and having succeeded partially, at least till February 2001, the conduct of the respondent leaves much to be called for. Despite being informed time and again to appear before the Tribunal and submit their response and evidence in support thereof, it is only after the arbitrator indicated that he was going to pass an award that the respondents attorneys woke up and started asking for time to present their response. This too was granted by the learned arbitrator, by not only granting extension of time, but by extending this time even further. Finally, when the legal submissions of 75 pages were sent even beyond the time that was granted, the learned Arbitrator took this into account and then passed his award. This being the case, on facts we can find no fault whatsoever with the conduct of the arbitral proceedings35. Justice Chatterjee, however, in his judgment, made several errors of fact. First and foremost, in paragraph 166 of Centrotrade [2006] (supra), the learned Judge quoted the penultimate line in paragraph 8 of the award, without even adverting to the line just before the aforesaid line which indicated that the material that was received from HCL was in fact taken into consideration while making the award, even beyond the stipulated time of 12.09.2001. Secondly, in paragraph 167, Chatterjee,J. conjectured that between 13 th and 29 th September, 2001, the Arbitrator did receive further material from HCL which he did not consider while making the award, on the ground that they were received after the time limit granted by him to HCL. Factually, there is no supporting material to show that any such further material was received by the learned arbitrator, except documents that have been presented by Shri Raval for the first time before us. They were clearly not before Chatterjee,J. when this surmise was made by the learned Judge, Further, the arbitrator cannot be faulted on this ground as, given the authorities referred to by us hereinabove, the arbitrator is in control of the arbitral proceedings and procedural orders which give time limits must be strictly adhered to. In paragraph 168, the learned Judge then said that given the attack in New York on 11.09.2001, the learned arbitrator should have excused further delay and should not have acted on frivolous technicalities. This approach of a Court enforcing a foreign award flies in the face of the judgments referred to by us hereinabove. Even otherwise, Chatterjee, J., refers to the judgment in Hari Om Maheshwari (supra) as well as Minmetals (supra), but then does not proceed to apply the ratio of the said judgments. Had he applied the ratio of even these two judgments, it would have been clear that an arbitrators refusal to adjourn the proceedings at the behest of one party cannot be said to be perverse, keeping in mind the object of speedy resolution of disputes of the Arbitration Act. Further, the Minmetals (supra) test was not even adverted to by Chatterjee,J., which is that HCL was never unable to present its case as it was at no time outside its control to furnish documents and legal submissions within the time given by the learned arbitrator. HCL chose not to appear before the arbitrator, and thereafter chose to submit documents and legal submissions outside the timelines granted by the arbitrator36. Even otherwise, remanding the matter to the ICC arbitrator to pass a fresh award in paragraph 169, is clearly outside the jurisdiction of an enforcing court under Section 48 of the 1996 Act. | 1 | 14,387 | 2,100 | ### 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:
will follow shortly. This was communicated by fax on 18.09.2001 by the learned arbitrator to Fox & Mandal, the Attorneys of HCL. It is only thereafter, on 19.09.2001, that a couriered letter is sent to the learned arbitrator stating that Fox & Mandal would be deeply obliged if documents contained in paper binder no.1 would also be taken into account. It was then added that paper binder no.2, containing judgments of the Courts of law and authorities are being sent separately and it may take 7 to 10 days more time beyond 19.09.2001. 34. At this stage, it is important to point out that the learned arbitrator had given a large number of opportunities to file documents and legal submissions. On 03.05.2001 the learned arbitrator directed that the appellant serve submissions along with supporting documents, following the respondents response and evidence therein, with a right in the appellant to put in a reply, in accordance with a clear time table that was set out. On 30.07.2001, since no defence submissions or supporting evidence was served by the respondent within the time prescribed, the time was extended, giving the respondent one last opportunity to put in their defence and to seek extension of time for so doing. Until August 2001, it may be stated that respondent did not participate in the arbitral proceedings, even though invited to do so. It is only on 09.08.2001, when the learned arbitrator informed the parties that he is proceeding with the award, that on 11.08.2001, the learned arbitrator received a fax from Fox & Mandal, Attorneys for HCL, requesting for an extension of one months time to put in their defence. This was acceded to by the learned arbitrator on 16.08.2001, giving time upto 31.08.2001. However, on 27.08.2001, Fox & Mandal sought for a further three weeks extension of time, which was also granted by the learned arbitrator, allowing a final extension of time until 12.09.2001. Despite the fact that the legal submissions running into 75 pages were submitted beyond time, that is only on 13.9.2001, in view of the 11.09.2001 attack in New York, the learned arbitrator received the same and took the same into account despite being beyond time. It was only on 29.09.2001 that the learned arbitrator then passed his award. Given the aforesaid timeline, it is clear that the learned arbitrator was extremely fair to the respondent. Having noticed that the respondent wanted to stall the arbitral proceedings by approaching the Courts in Rajasthan and having succeeded partially, at least till February 2001, the conduct of the respondent leaves much to be called for. Despite being informed time and again to appear before the Tribunal and submit their response and evidence in support thereof, it is only after the arbitrator indicated that he was going to pass an award that the respondents attorneys woke up and started asking for time to present their response. This too was granted by the learned arbitrator, by not only granting extension of time, but by extending this time even further. Finally, when the legal submissions of 75 pages were sent even beyond the time that was granted, the learned Arbitrator took this into account and then passed his award. This being the case, on facts we can find no fault whatsoever with the conduct of the arbitral proceedings. 35. Justice Chatterjee, however, in his judgment, made several errors of fact. First and foremost, in paragraph 166 of Centrotrade [2006] (supra), the learned Judge quoted the penultimate line in paragraph 8 of the award, without even adverting to the line just before the aforesaid line which indicated that the material that was received from HCL was in fact taken into consideration while making the award, even beyond the stipulated time of 12.09.2001. Secondly, in paragraph 167, Chatterjee,J. conjectured that between 13 th and 29 th September, 2001, the Arbitrator did receive further material from HCL which he did not consider while making the award, on the ground that they were received after the time limit granted by him to HCL. Factually, there is no supporting material to show that any such further material was received by the learned arbitrator, except documents that have been presented by Shri Raval for the first time before us. They were clearly not before Chatterjee,J. when this surmise was made by the learned Judge, Further, the arbitrator cannot be faulted on this ground as, given the authorities referred to by us hereinabove, the arbitrator is in control of the arbitral proceedings and procedural orders which give time limits must be strictly adhered to. In paragraph 168, the learned Judge then said that given the attack in New York on 11.09.2001, the learned arbitrator should have excused further delay and should not have acted on frivolous technicalities. This approach of a Court enforcing a foreign award flies in the face of the judgments referred to by us hereinabove. Even otherwise, Chatterjee, J., refers to the judgment in Hari Om Maheshwari (supra) as well as Minmetals (supra), but then does not proceed to apply the ratio of the said judgments. Had he applied the ratio of even these two judgments, it would have been clear that an arbitrators refusal to adjourn the proceedings at the behest of one party cannot be said to be perverse, keeping in mind the object of speedy resolution of disputes of the Arbitration Act. Further, the Minmetals (supra) test was not even adverted to by Chatterjee,J., which is that HCL was never unable to present its case as it was at no time outside its control to furnish documents and legal submissions within the time given by the learned arbitrator. HCL chose not to appear before the arbitrator, and thereafter chose to submit documents and legal submissions outside the timelines granted by the arbitrator. 36. Even otherwise, remanding the matter to the ICC arbitrator to pass a fresh award in paragraph 169, is clearly outside the jurisdiction of an enforcing court under Section 48 of the 1996 Act.
### Response:
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### Explanation:
of the award will follow shortly. This was communicated by fax on 18.09.2001 by the learned arbitrator to Fox & Mandal, the Attorneys of HCL. It is only thereafter, on 19.09.2001, that a couriered letter is sent to the learned arbitrator stating that Fox & Mandal would be deeply obliged if documents contained in paper binder no.1 would also be taken into account. It was then added that paper binder no.2, containing judgments of the Courts of law and authorities are being sent separately and it may take 7 to 10 days more time beyond 19.09.200134. At this stage, it is important to point out that the learned arbitrator had given a large number of opportunities to file documents and legal submissions. On 03.05.2001 the learned arbitrator directed that the appellant serve submissions along with supporting documents, following the respondents response and evidence therein, with a right in the appellant to put in a reply, in accordance with a clear time table that was set out. On 30.07.2001, since no defence submissions or supporting evidence was served by the respondent within the time prescribed, the time was extended, giving the respondent one last opportunity to put in their defence and to seek extension of time for so doing. Until August 2001, it may be stated that respondent did not participate in the arbitral proceedings, even though invited to do so. It is only on 09.08.2001, when the learned arbitrator informed the parties that he is proceeding with the award, that on 11.08.2001, the learned arbitrator received a fax from Fox & Mandal, Attorneys for HCL, requesting for an extension of one months time to put in their defence. This was acceded to by the learned arbitrator on 16.08.2001, giving time upto 31.08.2001. However, on 27.08.2001, Fox & Mandal sought for a further three weeks extension of time, which was also granted by the learned arbitrator, allowing a final extension of time until 12.09.2001. Despite the fact that the legal submissions running into 75 pages were submitted beyond time, that is only on 13.9.2001, in view of the 11.09.2001 attack in New York, the learned arbitrator received the same and took the same into account despite being beyond time. It was only on 29.09.2001 that the learned arbitrator then passed his award. Given the aforesaid timeline, it is clear that the learned arbitrator was extremely fair to the respondent. Having noticed that the respondent wanted to stall the arbitral proceedings by approaching the Courts in Rajasthan and having succeeded partially, at least till February 2001, the conduct of the respondent leaves much to be called for. Despite being informed time and again to appear before the Tribunal and submit their response and evidence in support thereof, it is only after the arbitrator indicated that he was going to pass an award that the respondents attorneys woke up and started asking for time to present their response. This too was granted by the learned arbitrator, by not only granting extension of time, but by extending this time even further. Finally, when the legal submissions of 75 pages were sent even beyond the time that was granted, the learned Arbitrator took this into account and then passed his award. This being the case, on facts we can find no fault whatsoever with the conduct of the arbitral proceedings35. Justice Chatterjee, however, in his judgment, made several errors of fact. First and foremost, in paragraph 166 of Centrotrade [2006] (supra), the learned Judge quoted the penultimate line in paragraph 8 of the award, without even adverting to the line just before the aforesaid line which indicated that the material that was received from HCL was in fact taken into consideration while making the award, even beyond the stipulated time of 12.09.2001. Secondly, in paragraph 167, Chatterjee,J. conjectured that between 13 th and 29 th September, 2001, the Arbitrator did receive further material from HCL which he did not consider while making the award, on the ground that they were received after the time limit granted by him to HCL. Factually, there is no supporting material to show that any such further material was received by the learned arbitrator, except documents that have been presented by Shri Raval for the first time before us. They were clearly not before Chatterjee,J. when this surmise was made by the learned Judge, Further, the arbitrator cannot be faulted on this ground as, given the authorities referred to by us hereinabove, the arbitrator is in control of the arbitral proceedings and procedural orders which give time limits must be strictly adhered to. In paragraph 168, the learned Judge then said that given the attack in New York on 11.09.2001, the learned arbitrator should have excused further delay and should not have acted on frivolous technicalities. This approach of a Court enforcing a foreign award flies in the face of the judgments referred to by us hereinabove. Even otherwise, Chatterjee, J., refers to the judgment in Hari Om Maheshwari (supra) as well as Minmetals (supra), but then does not proceed to apply the ratio of the said judgments. Had he applied the ratio of even these two judgments, it would have been clear that an arbitrators refusal to adjourn the proceedings at the behest of one party cannot be said to be perverse, keeping in mind the object of speedy resolution of disputes of the Arbitration Act. Further, the Minmetals (supra) test was not even adverted to by Chatterjee,J., which is that HCL was never unable to present its case as it was at no time outside its control to furnish documents and legal submissions within the time given by the learned arbitrator. HCL chose not to appear before the arbitrator, and thereafter chose to submit documents and legal submissions outside the timelines granted by the arbitrator36. Even otherwise, remanding the matter to the ICC arbitrator to pass a fresh award in paragraph 169, is clearly outside the jurisdiction of an enforcing court under Section 48 of the 1996 Act.
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D.P. Chadha Vs. Triyugi Narain Mishra | for having been passed without affording the appellant a reasonable opportunity of being heard. Section 37 of the Advocates Act, 1961 provides as under :- "37. Appeal to Bar Council of India. - (1) Any person aggrieved by an order of the disciplinary committee of a State Bar Council made under Section 35 [or the Advocate General of the State] may, within sixty days of the date of communication of the order to him, prefer an appeal to the Bar Council of India.(2) Every such appeal shall be heard by the disciplinary committee of the Bar Council of India which may pass such order [including an order varying the punishment awarded by the disciplinary committee of the State Bar Council] thereon as it deems fit :[Provided that no order of the disciplinary committee of the State Bar Council shall be varied by the disciplinary committee of the Bar Council of India so as to prejudicially affect the person aggrieved without giving him reasonable opportunity of being heard.]" 30. Very wide jurisdiction has been conferred on the Bar Council of India by sub-section (2) of Section 37. The Bar Council of India may confirm, vary or reverse the order of the State Bar Council and may remit or remand the matter for further hearing or rehearing subject to such terms and directions as it deems fit. The Bar Council of India may set aside an order dismissing the complaint passed by the State Bar Council and convert it into an order holding the Advocate proceeded against guilty of professional or other misconduct. In such a case, obviously, the Bar Council of India may pass an order of punishment which the State Bar Council could have passed. While confirming the finding of guilt the Bar Council of India may vary the punishment awarded by the Disciplinary Committee of the State Bar Council which power to vary would include the power to enhance the punishment. An order enhancing the punishment, being an order prejudicially affecting the Advocate, the proviso mandates the exercise of such power to be performed only after giving the Advocate reasonable opportunity of being heard. The proviso embodies the rule of fair hearing. Accordingly, and consistently with the well-settled principles of natural justice, if the Bar Council of India proposes to enhance the punishment it must put the guilty Advocate specifically on notice that the punishment imposed on him is proposed to be enhanced. The Advocate should be given a reasonable opportunity of showing cause against such proposed enhancement and then he should be heard. 31. In the case at hand we have perused the proceedings of the Bar Council of India. The complainant did not file any appeal or application before the Bar Council of India praying for enhancement of punishment. The appeal filed by the appellant was being heard and during the course of such hearing it appears that the Disciplinary Committee of the Bar Council of India indicated to the appellants counsel that it was inclined to enhance the punishment. This is reflected by the following passage occurring in the order under appeal :- "While hearing the matter finally parties were also heard as to the enhancement of sentence." 32. The appellant himself was not present on the date of hearing. He had prayed for an adjournment on the ground of his sickness which was refused. The counsel for the appellant was heard in appeal. It would have been better if the Bar Council of India having heard the appeal would have first placed its opinion on record that the findings arrived at by the State Bar Council against the appellant were being upheld by it. Then the appellant should have been issued a reasonable notice calling upon him to show cause why the punishment imposed by the State Bar Council be not enhanced. After giving him an opportunity of filing a reply and then hearing him the Bar Council could have, for reasons to be placed on record, enhanced the punishment. Nothing such was done. The exercise by the Bar Council of India of power to vary the sentence to the prejudice of the appellant is vitiated in the present case for not giving the appellant reasonable opportunity of being heard. The appellant is about 60 years of age. The misconduct alleged relates to the year 1993. The order of State Bar Council was passed in December 1995. In the fact and circumstances of the case we are not inclined to remit the matter now to the Bar Council of India for compliance with the requirements of proviso to sub-section (2) of Section 37 of the Act as it would entail further delay and as we are also of the opinion that the punishment awarded by the State Bar Council meets the ends of justice. 33. For the foregoing reasons the appeal is partly allowed. The finding that the appellant is guilty of professional misconduct is upheld but the sentence awarded by the Rajasthan State Bar Council suspending the appellant from practice for a period of five years is upheld and restored. Accordingly, the order of the Bar Council of India, only to the extent of enhancing the punishment, is set aside. No order as to the costs. 34. The Bar Council of India, by its order under appeal, directed notices to be issued to Shri Rajesh Jain and Shri Anil Sharma, Advocates, respectively, for initiating proceedings for professional misconduct and for enhancement of punishment. During the course of hearing we had enquired from the learned counsel for the parties as to what was the status of such proceedings. We are told that the proceedings were lying where they were presumably because the records of the State Bar Council and the Bar Council of India were requisitioned here. The records shall be sent back and the proceedings, directed to be initiated, shall now be commenced without any further loss of time. We, however, express no opinion regarding that aspect of the matter at this stage. 35. | 1[ds]30. Very wide jurisdiction has been conferred on the Bar Council of India by sub-section (2) of Section 37. The Bar Council of India may confirm, vary or reverse the order of the State Bar Council and may remit or remand the matter for further hearing or rehearing subject to such terms and directions as it deems fit. The Bar Council of India may set aside an order dismissing the complaint passed by the State Bar Council and convert it into an order holding the Advocate proceeded against guilty of professional or other misconduct. In such a case, obviously, the Bar Council of India may pass an order of punishment which the State Bar Council could have passed. While confirming the finding of guilt the Bar Council of India may vary the punishment awarded by the Disciplinary Committee of the State Bar Council which power to vary would include the power to enhance the punishment. An order enhancing the punishment, being an order prejudicially affecting the Advocate, the proviso mandates the exercise of such power to be performed only after giving the Advocate reasonable opportunity of being heard. The proviso embodies the rule of fair hearing. Accordingly, and consistently with the well-settled principles of natural justice, if the Bar Council of India proposes to enhance the punishment it must put the guilty Advocate specifically on notice that the punishment imposed on him is proposed to be enhanced. The Advocate should be given a reasonable opportunity of showing cause against such proposed enhancement and then he should beappellant is about 60 years of age. The misconduct alleged relates to the year 1993. The order of State Bar Council was passed in December 1995. In the fact and circumstances of the case we are not inclined to remit the matter now to the Bar Council of India for compliance with the requirements of proviso to sub-section (2) of Section 37 of the Act as it would entail further delay and as we are also of the opinion that the punishment awarded by the State Bar Council meets the ends of justice. | 1 | 7,762 | 377 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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for having been passed without affording the appellant a reasonable opportunity of being heard. Section 37 of the Advocates Act, 1961 provides as under :- "37. Appeal to Bar Council of India. - (1) Any person aggrieved by an order of the disciplinary committee of a State Bar Council made under Section 35 [or the Advocate General of the State] may, within sixty days of the date of communication of the order to him, prefer an appeal to the Bar Council of India.(2) Every such appeal shall be heard by the disciplinary committee of the Bar Council of India which may pass such order [including an order varying the punishment awarded by the disciplinary committee of the State Bar Council] thereon as it deems fit :[Provided that no order of the disciplinary committee of the State Bar Council shall be varied by the disciplinary committee of the Bar Council of India so as to prejudicially affect the person aggrieved without giving him reasonable opportunity of being heard.]" 30. Very wide jurisdiction has been conferred on the Bar Council of India by sub-section (2) of Section 37. The Bar Council of India may confirm, vary or reverse the order of the State Bar Council and may remit or remand the matter for further hearing or rehearing subject to such terms and directions as it deems fit. The Bar Council of India may set aside an order dismissing the complaint passed by the State Bar Council and convert it into an order holding the Advocate proceeded against guilty of professional or other misconduct. In such a case, obviously, the Bar Council of India may pass an order of punishment which the State Bar Council could have passed. While confirming the finding of guilt the Bar Council of India may vary the punishment awarded by the Disciplinary Committee of the State Bar Council which power to vary would include the power to enhance the punishment. An order enhancing the punishment, being an order prejudicially affecting the Advocate, the proviso mandates the exercise of such power to be performed only after giving the Advocate reasonable opportunity of being heard. The proviso embodies the rule of fair hearing. Accordingly, and consistently with the well-settled principles of natural justice, if the Bar Council of India proposes to enhance the punishment it must put the guilty Advocate specifically on notice that the punishment imposed on him is proposed to be enhanced. The Advocate should be given a reasonable opportunity of showing cause against such proposed enhancement and then he should be heard. 31. In the case at hand we have perused the proceedings of the Bar Council of India. The complainant did not file any appeal or application before the Bar Council of India praying for enhancement of punishment. The appeal filed by the appellant was being heard and during the course of such hearing it appears that the Disciplinary Committee of the Bar Council of India indicated to the appellants counsel that it was inclined to enhance the punishment. This is reflected by the following passage occurring in the order under appeal :- "While hearing the matter finally parties were also heard as to the enhancement of sentence." 32. The appellant himself was not present on the date of hearing. He had prayed for an adjournment on the ground of his sickness which was refused. The counsel for the appellant was heard in appeal. It would have been better if the Bar Council of India having heard the appeal would have first placed its opinion on record that the findings arrived at by the State Bar Council against the appellant were being upheld by it. Then the appellant should have been issued a reasonable notice calling upon him to show cause why the punishment imposed by the State Bar Council be not enhanced. After giving him an opportunity of filing a reply and then hearing him the Bar Council could have, for reasons to be placed on record, enhanced the punishment. Nothing such was done. The exercise by the Bar Council of India of power to vary the sentence to the prejudice of the appellant is vitiated in the present case for not giving the appellant reasonable opportunity of being heard. The appellant is about 60 years of age. The misconduct alleged relates to the year 1993. The order of State Bar Council was passed in December 1995. In the fact and circumstances of the case we are not inclined to remit the matter now to the Bar Council of India for compliance with the requirements of proviso to sub-section (2) of Section 37 of the Act as it would entail further delay and as we are also of the opinion that the punishment awarded by the State Bar Council meets the ends of justice. 33. For the foregoing reasons the appeal is partly allowed. The finding that the appellant is guilty of professional misconduct is upheld but the sentence awarded by the Rajasthan State Bar Council suspending the appellant from practice for a period of five years is upheld and restored. Accordingly, the order of the Bar Council of India, only to the extent of enhancing the punishment, is set aside. No order as to the costs. 34. The Bar Council of India, by its order under appeal, directed notices to be issued to Shri Rajesh Jain and Shri Anil Sharma, Advocates, respectively, for initiating proceedings for professional misconduct and for enhancement of punishment. During the course of hearing we had enquired from the learned counsel for the parties as to what was the status of such proceedings. We are told that the proceedings were lying where they were presumably because the records of the State Bar Council and the Bar Council of India were requisitioned here. The records shall be sent back and the proceedings, directed to be initiated, shall now be commenced without any further loss of time. We, however, express no opinion regarding that aspect of the matter at this stage. 35.
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30. Very wide jurisdiction has been conferred on the Bar Council of India by sub-section (2) of Section 37. The Bar Council of India may confirm, vary or reverse the order of the State Bar Council and may remit or remand the matter for further hearing or rehearing subject to such terms and directions as it deems fit. The Bar Council of India may set aside an order dismissing the complaint passed by the State Bar Council and convert it into an order holding the Advocate proceeded against guilty of professional or other misconduct. In such a case, obviously, the Bar Council of India may pass an order of punishment which the State Bar Council could have passed. While confirming the finding of guilt the Bar Council of India may vary the punishment awarded by the Disciplinary Committee of the State Bar Council which power to vary would include the power to enhance the punishment. An order enhancing the punishment, being an order prejudicially affecting the Advocate, the proviso mandates the exercise of such power to be performed only after giving the Advocate reasonable opportunity of being heard. The proviso embodies the rule of fair hearing. Accordingly, and consistently with the well-settled principles of natural justice, if the Bar Council of India proposes to enhance the punishment it must put the guilty Advocate specifically on notice that the punishment imposed on him is proposed to be enhanced. The Advocate should be given a reasonable opportunity of showing cause against such proposed enhancement and then he should beappellant is about 60 years of age. The misconduct alleged relates to the year 1993. The order of State Bar Council was passed in December 1995. In the fact and circumstances of the case we are not inclined to remit the matter now to the Bar Council of India for compliance with the requirements of proviso to sub-section (2) of Section 37 of the Act as it would entail further delay and as we are also of the opinion that the punishment awarded by the State Bar Council meets the ends of justice.
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Hota Venkata Surya Sivarama Sastry Vs. State Of Andhra Pradesh | there are two views possible: (1) that having regard to the Abolition Act referring to and as it were incorporating the provisions of the Madras Estates Land Act, the estates to which the Abolition Act could apply are only those which being Estates within the Estates Land Act, are also wholly within the operation of the Abolition Act. In other words, even if a few acres of an estate as defined in the Estates Land Act were outside the operation of the Abolition Act, it would not be an estate which could be taken over. (2) The other view attributing a crucial value to the policy and purpose underlying the legislation, viz., a reform of land tenures and landholding by the elimination of intermediaries to treat any land held on the tenures specified and within the territorial operation of the Act as falling within the category of estates liable to be taken over and vested in Government. We consider that the latter view is to be preferred as being in accord with the intention of the law and as subserving its purposes. In this connection it cannot be overlooked that the entire argument of learned Counsel is built up on the definitions of an estate in S. 2 of the Abolition Act (read with Section 1 (3) of that Act), and that the definitions contained there could be applied on the terms of the opening words of that section only unless there is anything repugnant in the subject or context. The position could possibly be better explained in these terms: Assume that Regulation IV of 1951 was not enacted. Could the State Government take over that portion of the estate which was within the operation of the Abolition Act or does the definition of an estate and the reference S. 1 (3) to S. 3 (2) of the Madras Estates Land Act of l908 preclude the State from taking over that portion because the Act does not extend to the entirety of the estate? It appears to us that this question is capable of being answered only in one way, viz., that the definition of an estate in the Abolition Act must be limited to that portion of an estate which is within the operation of the Act. Any other construction would mean that if that Act did not apply to a few square yards in an estate it ceases to be an estate governed by the Act, which, in our opinion, would be plainly contrary to the intention of the enactment as gathered from its preamble and operative provisions. Let us suppose that instead of the problem created by a portion of the estate being in a Scheduled area and, therefore, though within the State outside the normal legislative power of the State Legislature, a permanently Settled estate had by reason of say the States Reorganisation, fell both within the territory of the Madras and the Andhra States, with the result that the taking over under the Abolition Act could be operative only in regard to that portion within the State of Madras. Could it then be contended that the portion of the estate within the State of Madras did not fall within the definition of an estate and so could not be taken over by notification under S. 1 (4) of the Act. Indeed, the answer of the learned Counsel for the appellants to such a question was that it could be taken over but for the reason that in such a case the portions outside the State territory could not be an estate within the Madras Estates Land Act at all and that in consequence the inter-relation between the unit constituting the estate under the Estates Land Act and the concept of an estate under the Abolition Act was not disrupted. But this, however, hardly suffices as a complete answer for even after a portion of the estate becoming situated in a State other than Madras the State might still be governed by the Madras Estates Land Act, though applied as the law of the new State. What is relevant in the illustration is that along with the concept of the unit constituting the estate being taken over, there is also underlying it, another principle, viz., that it is sufficient if the entirety of the estate over which the State Legislature has competence is taken over. In such a taking over the difficulty suggested by learned Counsel in working out the scheme of the Act, would not arise because the portion taken over will constitute the estate and the compensation for that unit will be worked out on the basis laid down in S. 24 and those following. The other portions of the estate which are beyond the territorial operation of the enactment would continue to remain unaffected, so that the State Government could not be in a position to take them over. 18. We accordingly consider that the first notification, dated August 15, 1950, apart from its being binding and not open to challenge in these proceedings by the appellants, is valid and effective in law to vest the portion to which it related in the State Government. We then have Regulation IV of 1951 which brought the other portion of the estate to which the Abolition Act did not originally extend within the operation of that enactment. If, after this change in the law, the Government did not take over the rest of the estate, it would be open to the objection that the State Government had artificially split up the estate into two parts and had taken over or rather retained in its possession one part, and that notwithstanding that the Act posited the unit constituting an estate being taken over, had departed from that principle. The impugned notification, therefore, far from being invalid, was necessary to be issued in order to satisfy the very principle which learned Counsel for the appellants submits - as the one underlying the scheme of the Abolition Act. | 0[ds].In our opinion, the High Court has rightly rejected this contention, because even if the Permanent-Settlement Regulation did not apply there could be no dispute that the Polavaram zamindari was a permanently-settled estate, because its peishcush was fixed and from the kabuliyat which was executed by the proprietor it is clear that it conforms to the pattern of the sanads and kabuliyats issued under the Madras Permanent-Settlement Regulation (XXV of 1802)Learned Counsel, no doubt, conceded that the taking over of those portions of Gangole A and Gangole C which were within the operation of the Abolition Act before its extension to the Scheduled areas not having been challenged he would not be entitled to any relief in respect of the portion of the estate covered by the first notification, but his argument was that that would not preclude him from disputing the validity of the last notification vesting those portions of the two estates which were within the Scheduled areas in the StateWe might premise the discussion by observing that learned Counsel is right in his submission that the Abolition Act does not contemplate or make provision for the taking over of particular portions only of estates and that if the State Government having power to take over the entirety of an estate chose, however, to exclude certain portions of it from the operation of a vesting notification and took over only defined portions of an estate, this could be open to serious challenge on the ground that it was not contemplated by the scheme of the enactment. But the acceptance of this principle does not, in our opinion, compel us to answer the question propounded by the learned Counsel for the appellants in his favou16. As already pointed out learned Counsels submission was that not merely the notification, dated January 14, 1953, but also the earlier one dated August 15, 1950 (as modified by the one dated September 5, 1950) was invalid as providing for vesting, of parts only of an estate and not of it as a unit. It would also follow that if the first notification, dated August 15, 1950 was valid the impugned notification which by its operation effected the vesting of the entirety of the estate in the State could not be open to challenge as violating the principle invoked by learned Counsel17. We are necessarily, therefore, driven to consider the validity of the first notification, dated August 15, l950 in dealing with the validity of the impugned notification of January 14, 1953. In considering this matter it is, necessary to recall some of the provisions of the Abolition Act. Section 2 (3) defines an estate as meaning inter alia a zamindari estate. No doubt, as stated already, where the Abolition Act operates over the whole of a zamindari estate, it does not contemplate the Government taking over a portion only of such estate. But in saying this it should not be assumed that if in respect of a single estate two notifications were issued, say on the same date which together vested the entirety of the estate in the State under S. 3, either notification or both together would be invalid or ineffective. The reason for this must obviously be that the intention of the Government was to take over the entire estate - though it was being given effect to by the issue of two notifications. That would not obviously be the same thing as the Government having the liberty to pick and choose certain of the villages or certain portions of an estate leaving out others. If the Abolition Act as enacted does not extend to the entirety. of an estate as defined in the Estate Land Act but only to a portion thereof, the question would be whether that portion of the estate which is within the operation of the Act is an estate within the meaning of the Act or not.On this matter there are two views possible: (1) that having regard to the Abolition Act referring to and as it were incorporating the provisions of the Madras Estates Land Act, the estates to which the Abolition Act could apply are only those which being Estates within the Estates Land Act, are also wholly within the operation of the Abolition Act. In other words, even if a few acres of an estate as defined in the Estates Land Act were outside the operation of the Abolition Act, it would not be an estate which could be taken over. (2) The other view attributing a crucial value to the policy and purpose underlying the legislation, viz., a reform of land tenures and landholding by the elimination of intermediaries to treat any land held on the tenures specified and within the territorial operation of the Act as falling within the category of estates liable to be taken over and vested in Government. We consider that the latter view is to be preferred as being in accord with the intention of the law and as subserving its purposes. In this connection it cannot be overlooked that the entire argument of learned Counsel is built up on the definitions of an estate in S. 2 of the Abolition Act (read with Section 1 (3) of that Act), and that the definitions contained there could be applied on the terms of the opening words of that section only unless there is anything repugnant in the subject or context. The position could possibly be better explained in these terms: Assume that Regulation IV of 1951 was not enacted. Could the State Government take over that portion of the estate which was within the operation of the Abolition Act or does the definition of an estate and the reference S. 1 (3) to S. 3 (2) of the Madras Estates Land Act of l908 preclude the State from taking over that portion because the Act does not extend to the entirety of the estate? It appears to us that this question is capable of being answered only in one way, viz., that the definition of an estate in the Abolition Act must be limited to that portion of an estate which is within the operation of the Act. Any other construction would mean that if that Act did not apply to a few square yards in an estate it ceases to be an estate governed by the Act, which, in our opinion, would be plainly contrary to the intention of the enactment as gathered from its preamble and operative provisions. Let us suppose that instead of the problem created by a portion of the estate being in a Scheduled area and, therefore, though within the State outside the normal legislative power of the State Legislature, a permanently Settled estate had by reason of say the States Reorganisation, fell both within the territory of the Madras and the Andhra States, with the result that the taking over under the Abolition Act could be operative only in regard to that portion within the State of Madras. Could it then be contended that the portion of the estate within the State of Madras did not fall within the definition of an estate and so could not be taken over by notification under S. 1 (4) of the Act. Indeed, the answer of the learned Counsel for the appellants to such a question was that it could be taken over but for the reason that in such a case the portions outside the State territory could not be an estate within the Madras Estates Land Act at all and that in consequence the inter-relation between the unit constituting the estate under the Estates Land Act and the concept of an estate under the Abolition Act was not disrupted. But this, however, hardly suffices as a complete answer for even after a portion of the estate becoming situated in a State other than Madras the State might still be governed by the Madras Estates Land Act, though applied as the law of the new State. What is relevant in the illustration is that along with the concept of the unit constituting the estate being taken over, there is also underlying it, another principle, viz., that it is sufficient if the entirety of the estate over which the State Legislature has competence is taken over. In such a taking over the difficulty suggested by learned Counsel in working out the scheme of the Act, would not arise because the portion taken over will constitute the estate and the compensation for that unit will be worked out on the basis laid down in S. 24 and those following. The other portions of the estate which are beyond the territorial operation of the enactment would continue to remain unaffected, so that the State Government could not be in a position to take them over18. We accordingly consider that the first notification, dated August 15, 1950, apart from its being binding and not open to challenge in these proceedings by the appellants, is valid and effective in law to vest the portion to which it related in the State Government. We then have Regulation IV of 1951 which brought the other portion of the estate to which the Abolition Act did not originally extend within the operation of that enactment. If, after this change in the law, the Government did not take over the rest of the estate, it would be open to the objection that the State Government had artificially split up the estate into two parts and had taken over or rather retained in its possession one part, and that notwithstanding that the Act posited the unit constituting an estate being taken over, had departed from that principle. The impugned notification, therefore, far from being invalid, was necessary to be issued in order to satisfy the very principle which learned Counsel for the appellants submits - as the one underlying the scheme of the Abolition Act. | 0 | 5,233 | 1,782 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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there are two views possible: (1) that having regard to the Abolition Act referring to and as it were incorporating the provisions of the Madras Estates Land Act, the estates to which the Abolition Act could apply are only those which being Estates within the Estates Land Act, are also wholly within the operation of the Abolition Act. In other words, even if a few acres of an estate as defined in the Estates Land Act were outside the operation of the Abolition Act, it would not be an estate which could be taken over. (2) The other view attributing a crucial value to the policy and purpose underlying the legislation, viz., a reform of land tenures and landholding by the elimination of intermediaries to treat any land held on the tenures specified and within the territorial operation of the Act as falling within the category of estates liable to be taken over and vested in Government. We consider that the latter view is to be preferred as being in accord with the intention of the law and as subserving its purposes. In this connection it cannot be overlooked that the entire argument of learned Counsel is built up on the definitions of an estate in S. 2 of the Abolition Act (read with Section 1 (3) of that Act), and that the definitions contained there could be applied on the terms of the opening words of that section only unless there is anything repugnant in the subject or context. The position could possibly be better explained in these terms: Assume that Regulation IV of 1951 was not enacted. Could the State Government take over that portion of the estate which was within the operation of the Abolition Act or does the definition of an estate and the reference S. 1 (3) to S. 3 (2) of the Madras Estates Land Act of l908 preclude the State from taking over that portion because the Act does not extend to the entirety of the estate? It appears to us that this question is capable of being answered only in one way, viz., that the definition of an estate in the Abolition Act must be limited to that portion of an estate which is within the operation of the Act. Any other construction would mean that if that Act did not apply to a few square yards in an estate it ceases to be an estate governed by the Act, which, in our opinion, would be plainly contrary to the intention of the enactment as gathered from its preamble and operative provisions. Let us suppose that instead of the problem created by a portion of the estate being in a Scheduled area and, therefore, though within the State outside the normal legislative power of the State Legislature, a permanently Settled estate had by reason of say the States Reorganisation, fell both within the territory of the Madras and the Andhra States, with the result that the taking over under the Abolition Act could be operative only in regard to that portion within the State of Madras. Could it then be contended that the portion of the estate within the State of Madras did not fall within the definition of an estate and so could not be taken over by notification under S. 1 (4) of the Act. Indeed, the answer of the learned Counsel for the appellants to such a question was that it could be taken over but for the reason that in such a case the portions outside the State territory could not be an estate within the Madras Estates Land Act at all and that in consequence the inter-relation between the unit constituting the estate under the Estates Land Act and the concept of an estate under the Abolition Act was not disrupted. But this, however, hardly suffices as a complete answer for even after a portion of the estate becoming situated in a State other than Madras the State might still be governed by the Madras Estates Land Act, though applied as the law of the new State. What is relevant in the illustration is that along with the concept of the unit constituting the estate being taken over, there is also underlying it, another principle, viz., that it is sufficient if the entirety of the estate over which the State Legislature has competence is taken over. In such a taking over the difficulty suggested by learned Counsel in working out the scheme of the Act, would not arise because the portion taken over will constitute the estate and the compensation for that unit will be worked out on the basis laid down in S. 24 and those following. The other portions of the estate which are beyond the territorial operation of the enactment would continue to remain unaffected, so that the State Government could not be in a position to take them over. 18. We accordingly consider that the first notification, dated August 15, 1950, apart from its being binding and not open to challenge in these proceedings by the appellants, is valid and effective in law to vest the portion to which it related in the State Government. We then have Regulation IV of 1951 which brought the other portion of the estate to which the Abolition Act did not originally extend within the operation of that enactment. If, after this change in the law, the Government did not take over the rest of the estate, it would be open to the objection that the State Government had artificially split up the estate into two parts and had taken over or rather retained in its possession one part, and that notwithstanding that the Act posited the unit constituting an estate being taken over, had departed from that principle. The impugned notification, therefore, far from being invalid, was necessary to be issued in order to satisfy the very principle which learned Counsel for the appellants submits - as the one underlying the scheme of the Abolition Act.
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matter there are two views possible: (1) that having regard to the Abolition Act referring to and as it were incorporating the provisions of the Madras Estates Land Act, the estates to which the Abolition Act could apply are only those which being Estates within the Estates Land Act, are also wholly within the operation of the Abolition Act. In other words, even if a few acres of an estate as defined in the Estates Land Act were outside the operation of the Abolition Act, it would not be an estate which could be taken over. (2) The other view attributing a crucial value to the policy and purpose underlying the legislation, viz., a reform of land tenures and landholding by the elimination of intermediaries to treat any land held on the tenures specified and within the territorial operation of the Act as falling within the category of estates liable to be taken over and vested in Government. We consider that the latter view is to be preferred as being in accord with the intention of the law and as subserving its purposes. In this connection it cannot be overlooked that the entire argument of learned Counsel is built up on the definitions of an estate in S. 2 of the Abolition Act (read with Section 1 (3) of that Act), and that the definitions contained there could be applied on the terms of the opening words of that section only unless there is anything repugnant in the subject or context. The position could possibly be better explained in these terms: Assume that Regulation IV of 1951 was not enacted. Could the State Government take over that portion of the estate which was within the operation of the Abolition Act or does the definition of an estate and the reference S. 1 (3) to S. 3 (2) of the Madras Estates Land Act of l908 preclude the State from taking over that portion because the Act does not extend to the entirety of the estate? It appears to us that this question is capable of being answered only in one way, viz., that the definition of an estate in the Abolition Act must be limited to that portion of an estate which is within the operation of the Act. Any other construction would mean that if that Act did not apply to a few square yards in an estate it ceases to be an estate governed by the Act, which, in our opinion, would be plainly contrary to the intention of the enactment as gathered from its preamble and operative provisions. Let us suppose that instead of the problem created by a portion of the estate being in a Scheduled area and, therefore, though within the State outside the normal legislative power of the State Legislature, a permanently Settled estate had by reason of say the States Reorganisation, fell both within the territory of the Madras and the Andhra States, with the result that the taking over under the Abolition Act could be operative only in regard to that portion within the State of Madras. Could it then be contended that the portion of the estate within the State of Madras did not fall within the definition of an estate and so could not be taken over by notification under S. 1 (4) of the Act. Indeed, the answer of the learned Counsel for the appellants to such a question was that it could be taken over but for the reason that in such a case the portions outside the State territory could not be an estate within the Madras Estates Land Act at all and that in consequence the inter-relation between the unit constituting the estate under the Estates Land Act and the concept of an estate under the Abolition Act was not disrupted. But this, however, hardly suffices as a complete answer for even after a portion of the estate becoming situated in a State other than Madras the State might still be governed by the Madras Estates Land Act, though applied as the law of the new State. What is relevant in the illustration is that along with the concept of the unit constituting the estate being taken over, there is also underlying it, another principle, viz., that it is sufficient if the entirety of the estate over which the State Legislature has competence is taken over. In such a taking over the difficulty suggested by learned Counsel in working out the scheme of the Act, would not arise because the portion taken over will constitute the estate and the compensation for that unit will be worked out on the basis laid down in S. 24 and those following. The other portions of the estate which are beyond the territorial operation of the enactment would continue to remain unaffected, so that the State Government could not be in a position to take them over18. We accordingly consider that the first notification, dated August 15, 1950, apart from its being binding and not open to challenge in these proceedings by the appellants, is valid and effective in law to vest the portion to which it related in the State Government. We then have Regulation IV of 1951 which brought the other portion of the estate to which the Abolition Act did not originally extend within the operation of that enactment. If, after this change in the law, the Government did not take over the rest of the estate, it would be open to the objection that the State Government had artificially split up the estate into two parts and had taken over or rather retained in its possession one part, and that notwithstanding that the Act posited the unit constituting an estate being taken over, had departed from that principle. The impugned notification, therefore, far from being invalid, was necessary to be issued in order to satisfy the very principle which learned Counsel for the appellants submits - as the one underlying the scheme of the Abolition Act.
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T. S. Balaram, Income Tax Officer,Company Circle Iv, Bombay Vs. M/S. Volkart Brothers, Bombay | orders of assessment. They disputed the Income-tax Officers authority to make any correction. The Income-tax Officer did not accept the contention of the respondents and assessed them by applying the provisions of S. 17 (1) of the 1922 Act. The respondents challenged the validity of the orders rectifying the assessments, before the High Court of Bombay as mentioned earlier. The High Court took the view that the original assessments made on the respondents were prima facie in accordance with law and at any rate as there was no obvious or patent mistake in those orders of assessment, the Income-tax Officer was incompetent to pass the impugned orders. 2. The first question that we have to decide is whether on the facts and in the circumstances of the case, the Income-tax Officer was within his powers in making the impugned rectifications. He purported to make those rectifications under S. 154 of the Income-tax Act, 1961. That section to the extent material for our present purpose reads:"154 (1). With a view to rectifying any mistake apparent from the record- (a) the Income-tax Officer may amend any order of assessment or of refund or any other order passed by him. xx xx xx" The corresponding section in the Indian Income-tax Act, 1922 is S. 35. 3. We have now to see whether the Income-tax Officer was justified in opining that in the original orders of assessment, there was any apparent mistake. As seen earlier in the original assessments of the firm for the relevant assessment years. the Income-tax Officer adopted the slab rates applicable to registered firms. The question for decision is whether the first respondents firm came within the mischief of S. 17 (1) of the Indian Income-tax Act, 1922. Section 17 (1) reads:"Where a person is not resident in the taxable territories and is not a company, the tax, including super-tax, payable by him or on his behalf on his total income shall be an amount equal to- (a) the income-tax which would be payable on his total income at the maximum rate, plus (b) either the super-tax which would be payable on his total income at the rate of nineteen per cent, or the super-tax which would be payable on his total income if it were the total income of a person resident in the taxable territories whichever is greater ......." (Proviso to the section is not relevant for our present purpose). 4. Section 17 (1) can apply to a "person". The expression "person" is defined in S. 2 (9) of the Indian Income-tax Act, 1922 thus:""person" includes a Hindu undivided family and a local authority". 5. Unless a firm can be considered as a "person", S. 17 (1) cannot govern the assessment of the first respondent. In the Income-tax Act, 1961 (S. 2 (31)), the expression "person" is defined differently. That definition reads:""person" includes- (i) an individual, (ii) a Hindu undivided family, (iii) a company, (iv) a firm, (v) an association of persons or a body of individuals, whether incorporated or not, (vi) a local authority and (vii) every artificial juridical person, not falling within any of the preceding sub-clauses." 6. It is a matter for consideration whether the definition contained in S. 2 (31) of the Income-tax Act, 1961 is an amendment of the law or is merely declaratory of the law that was in force earlier. To pronounce upon this question, it may be necessary to examine various provisions in the Act as well as its scheme. 7. Section l13 of the Income-tax Act, 1961 corresponded to S. 17 (1) of the Indian Income-tax Act, 1922 but that section has now been omitted with effect from April 1, 1965 as a result of the Finance Act, 1965. 8. From what has been said above, it is clear that the question whether S. 17 (i) of the Indian Income-tax Act, 1922 was applicable to the case of the first respondent is not free from doubt. Therefore the Income-tax Officer was not justified in thinking that on that question there can be no two opinions. It was not open to the Income-tax Officer to go into the true scope of the relevant provisions of the Act in a proceeding under section 154 of the Income-tax Act, 1961. A mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may conceivably be two opinions. As seen earlier, the High Court of Bombay opined that the original assessments were in accordance with law though in our opinion the High Court was not justified in going into that question.In Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale, (1960) 1 S. C. R. 890=(AIR 1960 S. C. 137) this Court while spelling out the scope of the power of a High Court under Art. 226 of the Constitution ruled that an error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions cannot be said to be an error apparent on the face of the record. A decision on a debatable point of law is not a mistake apparent from the record- see Sidhramappa v. Commr. of Income-tax, Bombay, (1952) 21 ITR 333 = (AIR 1952 Bom 287 ).The power of the officers mentioned in S. 154 of the Income-tax Act, 1961 to correct "any mistake apparent from the record" is undoubtedly not more than that of the High Court to entertain a writ petition on the basis of an "error apparent on the face of the record". In this case it is not necessary for us to spell out the distinction between the expressions "error apparent on the face of the record" and "mistake apparent from the record". But suffice it to say that the Income-tax Officer was wholly wrong in holding that there was a mistake apparent from the record of the assessments of the first respondent. 9. For the | 0[ds]8. From what has been said above, it is clear thatthequestionr S. 17 (i) oftheIndianIncome-tax Act,1922was applicable tothecase ofthefirst respondent is not free from doubt. ThereforetheIncome-tax Officer was not justified in thinking that on thatquestione can be no two opinions. It was not open totheIncome-tax Officer to go intothetrue scope oftherelevant provisions oftheAct in a proceeding under section 154 oftheIncome-tax Act,1961. A mistake apparent ontherecord must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on whiche may conceivably be two opinions. As seen earlier,theHigh Court of Bombay opined thattheoriginal assessments were in accordance with law though in our opiniontheHigh Court was not justified in going into thatn Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale, (1960) 1 S. C. R. 890=(AIR 1960 S. C. 137) this Court while spelling outthescope ofthepower of a High Court under Art. 226 oftheConstitution ruled that an error which has to be established by a long drawn process of reasoning on points wheree may conceivably be two opinions cannot be said to be an error apparent ontheface oftherecord. A decision on a debatable point of law is not a mistake apparent fromtherecord- see Sidhramappa v. Commr. of Income-tax, Bombay, (1952) 21 ITR 333 = (AIR 1952 Bom 287 ).The power oftheofficers mentioned in S. 154 oftheIncome-tax Act,1961 to correct "any mistake apparent fromtherecord" is undoubtedly not more than that oftheHigh Court to entertain a writ petition onthebasis of an "error apparent ontheface oftherecord". In this case it is not necessary for us to spell outthedistinction betweentheexpressions "error apparent ontheface oftherecord" and "mistake apparent fromtherecord". But suffice it to say thattheIncome-tax Officer was wholly wrong in holding thate was a mistake apparent fromtherecord oftheassessments ofthefirst respondent. | 0 | 1,486 | 334 | ### Instruction:
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orders of assessment. They disputed the Income-tax Officers authority to make any correction. The Income-tax Officer did not accept the contention of the respondents and assessed them by applying the provisions of S. 17 (1) of the 1922 Act. The respondents challenged the validity of the orders rectifying the assessments, before the High Court of Bombay as mentioned earlier. The High Court took the view that the original assessments made on the respondents were prima facie in accordance with law and at any rate as there was no obvious or patent mistake in those orders of assessment, the Income-tax Officer was incompetent to pass the impugned orders. 2. The first question that we have to decide is whether on the facts and in the circumstances of the case, the Income-tax Officer was within his powers in making the impugned rectifications. He purported to make those rectifications under S. 154 of the Income-tax Act, 1961. That section to the extent material for our present purpose reads:"154 (1). With a view to rectifying any mistake apparent from the record- (a) the Income-tax Officer may amend any order of assessment or of refund or any other order passed by him. xx xx xx" The corresponding section in the Indian Income-tax Act, 1922 is S. 35. 3. We have now to see whether the Income-tax Officer was justified in opining that in the original orders of assessment, there was any apparent mistake. As seen earlier in the original assessments of the firm for the relevant assessment years. the Income-tax Officer adopted the slab rates applicable to registered firms. The question for decision is whether the first respondents firm came within the mischief of S. 17 (1) of the Indian Income-tax Act, 1922. Section 17 (1) reads:"Where a person is not resident in the taxable territories and is not a company, the tax, including super-tax, payable by him or on his behalf on his total income shall be an amount equal to- (a) the income-tax which would be payable on his total income at the maximum rate, plus (b) either the super-tax which would be payable on his total income at the rate of nineteen per cent, or the super-tax which would be payable on his total income if it were the total income of a person resident in the taxable territories whichever is greater ......." (Proviso to the section is not relevant for our present purpose). 4. Section 17 (1) can apply to a "person". The expression "person" is defined in S. 2 (9) of the Indian Income-tax Act, 1922 thus:""person" includes a Hindu undivided family and a local authority". 5. Unless a firm can be considered as a "person", S. 17 (1) cannot govern the assessment of the first respondent. In the Income-tax Act, 1961 (S. 2 (31)), the expression "person" is defined differently. That definition reads:""person" includes- (i) an individual, (ii) a Hindu undivided family, (iii) a company, (iv) a firm, (v) an association of persons or a body of individuals, whether incorporated or not, (vi) a local authority and (vii) every artificial juridical person, not falling within any of the preceding sub-clauses." 6. It is a matter for consideration whether the definition contained in S. 2 (31) of the Income-tax Act, 1961 is an amendment of the law or is merely declaratory of the law that was in force earlier. To pronounce upon this question, it may be necessary to examine various provisions in the Act as well as its scheme. 7. Section l13 of the Income-tax Act, 1961 corresponded to S. 17 (1) of the Indian Income-tax Act, 1922 but that section has now been omitted with effect from April 1, 1965 as a result of the Finance Act, 1965. 8. From what has been said above, it is clear that the question whether S. 17 (i) of the Indian Income-tax Act, 1922 was applicable to the case of the first respondent is not free from doubt. Therefore the Income-tax Officer was not justified in thinking that on that question there can be no two opinions. It was not open to the Income-tax Officer to go into the true scope of the relevant provisions of the Act in a proceeding under section 154 of the Income-tax Act, 1961. A mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may conceivably be two opinions. As seen earlier, the High Court of Bombay opined that the original assessments were in accordance with law though in our opinion the High Court was not justified in going into that question.In Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale, (1960) 1 S. C. R. 890=(AIR 1960 S. C. 137) this Court while spelling out the scope of the power of a High Court under Art. 226 of the Constitution ruled that an error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions cannot be said to be an error apparent on the face of the record. A decision on a debatable point of law is not a mistake apparent from the record- see Sidhramappa v. Commr. of Income-tax, Bombay, (1952) 21 ITR 333 = (AIR 1952 Bom 287 ).The power of the officers mentioned in S. 154 of the Income-tax Act, 1961 to correct "any mistake apparent from the record" is undoubtedly not more than that of the High Court to entertain a writ petition on the basis of an "error apparent on the face of the record". In this case it is not necessary for us to spell out the distinction between the expressions "error apparent on the face of the record" and "mistake apparent from the record". But suffice it to say that the Income-tax Officer was wholly wrong in holding that there was a mistake apparent from the record of the assessments of the first respondent. 9. For the
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8. From what has been said above, it is clear thatthequestionr S. 17 (i) oftheIndianIncome-tax Act,1922was applicable tothecase ofthefirst respondent is not free from doubt. ThereforetheIncome-tax Officer was not justified in thinking that on thatquestione can be no two opinions. It was not open totheIncome-tax Officer to go intothetrue scope oftherelevant provisions oftheAct in a proceeding under section 154 oftheIncome-tax Act,1961. A mistake apparent ontherecord must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on whiche may conceivably be two opinions. As seen earlier,theHigh Court of Bombay opined thattheoriginal assessments were in accordance with law though in our opiniontheHigh Court was not justified in going into thatn Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale, (1960) 1 S. C. R. 890=(AIR 1960 S. C. 137) this Court while spelling outthescope ofthepower of a High Court under Art. 226 oftheConstitution ruled that an error which has to be established by a long drawn process of reasoning on points wheree may conceivably be two opinions cannot be said to be an error apparent ontheface oftherecord. A decision on a debatable point of law is not a mistake apparent fromtherecord- see Sidhramappa v. Commr. of Income-tax, Bombay, (1952) 21 ITR 333 = (AIR 1952 Bom 287 ).The power oftheofficers mentioned in S. 154 oftheIncome-tax Act,1961 to correct "any mistake apparent fromtherecord" is undoubtedly not more than that oftheHigh Court to entertain a writ petition onthebasis of an "error apparent ontheface oftherecord". In this case it is not necessary for us to spell outthedistinction betweentheexpressions "error apparent ontheface oftherecord" and "mistake apparent fromtherecord". But suffice it to say thattheIncome-tax Officer was wholly wrong in holding thate was a mistake apparent fromtherecord oftheassessments ofthefirst respondent.
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State Of U.P. Vs. U.P.Rajya Khanij Vikas Nigam S.S. | teeth of statutory rules, such assurance had no legal efficacy. Moreover, an application was made on affidavit by the Secretary of the Corporation clarifying the position and praying for modification of the earlier order passed by the High Court in which such statement on behalf of the Corporation appeared. The High Court, however, rejected even that application. In our considered opinion, even on that ground, the High Court ought not to have issued final directions. 44. It is settled law that there can be no estoppel against a statute. If the field was occupied by statutory rules, the employees could get right only under those rules. The High Court was equally bound to consider those rules and to come to the conclusion whether under the statutory rules, the retrenched employees were entitled to absorption either in Government Department or in any other Public Sector Undertaking. Statement, assurance or even undertaking of any officer or a counsel of the respondent-Corporation or of the Government Pleader of the State is irrelevant. The High Court, in our view, ought to have considered the prayer of the Corporation and decided the question if it wanted to dispose of the matter on merits in spite of availability of alternative remedy to the employees. 45. Again, in our considered opinion, it was incumbent on the employees to show the right of absorption of retrenched employees in Government Department or other Public Sector Undertakings. The petitioners had prayed for a writ of mandamus which presupposes a legal right in favour of the applicant. Such right must be a subsisting right and enforceable in a Court of Law. There must be corresponding legal duty on the part of the respondent-Corporation or Government which required the Corporation or Government to do that which a statute required it to do. No such right of absorption has been shown by the petitioners. Nor any such corresponding duty of the respondents could be shown to the High Court by the employees. As noted above, the case of the Corporation was that the retrenched employees could be absorbed only in accordance with statutory rules framed under proviso to Article 309 of the Constitution. No such direction of absorption of all employees, hence, could be issued by the High Court. The High Court failed to appreciate all these relevant considerations. Even the application by which the Corporation sought to place on record statutory rules was rejected by the Court and a writ of mandamus was issued.46. It is well settled that a Court of Law can direct the Government or an instrumentality of State by mandamus to act in consonance with law and not in violation of statutory provisions. Unless a Court records a finding that act of absorption of all employees of the Corporation either in Government Department or in any other Public Sector Undertaking is in accordance with law, no writ can be issued. Therefore, even on that ground, the directions of the High Court deserve to be set aside.47. Regarding payment of compensation to the employees also, the High Court was not right. We have extracted the operative part of the order of the High Court in earlier part of the judgment. The High Court has stated that the appellants herein would absorb the employees of the Corporation and would "pay compensation in accordance with law". It was contended by the Corporation that there was no foundation in the entire writ petition as to the provisions of law under which such compensation could be claimed and violation of the law by the Corporation or by the State. No finding has been recorded by the High Court that a specific or particular provision of law had been violated which entitled the workers to claim compensation. No reasons had been recorded by the High Court in the impugned judgment for issuing such direction nor any basis for such direction has been shown. In our opinion, therefore, no such blanket direction could have been issued by the High Court which was not even capable of implementation.48. To us, one of the considerations in such matters is whether an order passed or direction issued is susceptible of implementation and enforcement, and if it is not implemented whether appropriate proceedings including proceedings for willful disobedience of the order of the Court can be initiated against the opposite party. The direction issued by the High Court falls short of this test and on that ground also, the order is vulnerable. 49. It is contended on behalf of the employees that the Corporation was not right when it stated that there was no work and several projects came to be closed. It was also contended that many employees were absorbed by the Corporation and there was an element of pick and choose. The said action was arbitrary, discriminatory, unreasonable and violative of Articles 14, 19 and 21 of the Constitution. Regarding loss caused to the Corporation, according to the Samiti, it was the result of wrong and improper decisions of the Corporation and the State Government. Poor employees should not suffer on that count. 50. In our considered view, however, all such actions could be examined by an appropriate Court/Tribunal under the Industrial Law and not by a writ Court exercising power of judicial review under Article 226 of the Constitution. If the impugned action of the Corporation of retrenchment of several employees is not in consonance with law, the employees are certainly entitled to relief from an appropriate authority. If any action is taken which is arbitrary, unreasonable or otherwise not in consonance with the provisions of law, such authority or Court/Tribunal is bound to consider it and legal and legitimate relief can always be granted keeping in view the evidence before it and considering statutory provisions in vogue. Unfortunately, the High Court did not consider all these aspects and issued a writ of mandamus which should not have been done. Hence, the order passed and directions issued by the High Court deserve to be set aside. | 1[ds]50. In our considered view, however, all such actions could be examined by an appropriate Court/Tribunal under the Industrial Law and not by a writ Court exercising power of judicial review under Article 226 of the Constitution. If the impugned action of the Corporation of retrenchment of several employees is not in consonance with law, the employees are certainly entitled to relief from an appropriate authority. If any action is taken which is arbitrary, unreasonable or otherwise not in consonance with the provisions of law, such authority or Court/Tribunal is bound to consider it and legal and legitimate relief can always be granted keeping in view the evidence before it and considering statutory provisions in vogue. Unfortunately, the High Court did not consider all these aspects and issued a writ of mandamus which should not have been done. Hence, the order passed and directions issued by the High Court deserve to be set aside.The High Court was obviously in error in passing the above order. The State and the Corporation, therefore, filed Special Leave Petition in this Court which was registered as Civil Appeal No. 5473 of 2005. It was contended before this Court that after difference of opinion between two Honble Judges, the matter was placed before a third Judge who decided it and directed to place it before a Division Bench which ought to have been done and the case ought to have been placed before a Division Bench. Even if Review was rejected against the order passed by the third Judge, proper procedure was required to be followed which was not done. The Senior Judge (Lucknow Bench) also ordered to place the matter before a Division Bench. The order passed by the Single Judge, therefore, could not be said to be legal and lawful.We have given most anxious and thoughtful consideration to the rival contentions of the parties. So far as preliminary objection raised by the Corporation before the High Court is concerned, in our considered view, the same wasand ought to have been upheld. It was urged before the High Court on behalf of the Corporation and the State Government that the writ petition was premature inasmuch as no retrenchment had been effected. Several disputed questions of fact were involved in the petition. If the contention of the Samiti was that there was illegal closure of Undertaking or there wasof wages by the employer, appropriate proceedings could have been initiated under Industrial Law. In fact, one of the Judges of the Division Bench upheld the contention and observed that the employees could have claimed closure compensation under Section 25 FFF of the Act or could have approached prescribed authority under the Payment of wages Act relying upon Section 33C(2) of the Act or Section 6H(2) of the U.P. Industrial Disputes Act. The other Single Judge of the Division Bench, however, held that the writ petition had been entertained and interim orders were also passed. Relying upon Suresh Chandra Tewari, the learned Judge held that "the petition cannot be dismissed on the ground of alternative remedy if the same has been entertained and interim order has been passed". (emphasis supplied).36. With respect to the learned Judge, it is neither the legal position nor such a proposition has been laid down in Suresh Chandra Tewari that once a petition is admitted, it cannot be dismissed on the ground of alternative remedy. It is no doubt correct that in the head note of All India Reporter (AIR), it is stated that "petition cannot be rejected on the ground of availability of alternative remedy of filing appeal". But it has not been so held in the actual decision of the Court.Even otherwise, the learned Judge was not right in law. True it is that issuance of rule nisi or passing of interim orders is a relevant consideration for not dismissing a petition if it appears to the High Court that the matter could be decided by aIt has been so held even by this Court in several cases that even if alternative remedy is available, it cannot be held that ais not maintainable. In our judgment, however, it cannot be laid down as a proposition of law that once a petition is admitted, it could never be dismissed on the ground of alternative remedy. If such bald contention is upheld, even this Court cannot order dismissal of a writ petition which ought not to have been entertained by the High Court under Article 226 of the Constitution in view of availability of alternative and equally efficacious remedy to the aggrieved party, once the High Court has entertained aalbeit wrongly and granted the relief to the petitioner.39. On the facts and in the circumstances of the case, particularly in view of assertions by the Corporation that its work had been substantially reduced; it was running into losses; the question was considered by the Board of Directors and it was resolved to retrench certain employees, it would have been appropriate, had the High Court not entertained the writ petition under Article 226 of the Constitution. [See also Scooters India v. Vijai E. V. Eldred, (1998) 6 SCCThere is yet one more reason. In the High Court, the Corporation filed an application stating therein that regarding absorption of employees, statutory rules had been framed by the State Government in exercise of power under the proviso to Article 309 of the Constitution. A prayer was, therefore, made to allow the application to bring statutory rules on record and to consider them. The Court, however, rejected the prayer. In our opinion, the High Court was not right in rejecting such prayer. If there were statutory rules and such rules provide for absorption of employees on certain grounds and on fulfillment of some conditions laid down in those rules, it was the duty of the High Court to consider those rules and to decide whether under the statutory rules, such absorption could be ordered.43. After all, the High Court was considering the prayer of the petitioners to grant a writ in the nature of mandamus. It was, therefore, expected of the High Court to keep in view the relevant provisions of law. The High Court mainly relied upon an assurance said to have been given by the Secretary on behalf of the Corporation that excess employees would be absorbed either in the Government Department or in other Public Sector Undertakings. From the record it appears that it was the case of the Secretary of the Corporation that no such assurance was given by him to the Honble Court. But even if he had given such assurance, it was of no consequence since in the teeth of statutory rules, such assurance had no legal efficacy. Moreover, an application was made on affidavit by the Secretary of the Corporation clarifying the position and praying for modification of the earlier order passed by the High Court in which such statement on behalf of the Corporation appeared. The High Court, however, rejected even that application. In our considered opinion, even on that ground, the High Court ought not to have issued final directions.Again, in our considered opinion, it was incumbent on the employees to show the right of absorption of retrenched employees in Government Department or other Public Sector Undertakings. The petitioners had prayed for a writ of mandamus which presupposes a legal right in favour of the applicant. Such right must be a subsisting right and enforceable in a Court of Law. There must be corresponding legal duty on the part of theor Government which required the Corporation or Government to do that which a statute required it to do. No such right of absorption has been shown by the petitioners. Nor any such corresponding duty of the respondents could be shown to the High Court by the employees. As noted above, the case of the Corporation was that the retrenched employees could be absorbed only in accordance with statutory rules framed under proviso to Article 309 of the Constitution. No such direction of absorption of all employees, hence, could be issued by the High Court. The High Court failed to appreciate all these relevant considerations. Even the application by which the Corporation sought to place on record statutory rules was rejected by the Court and a writ of mandamus was issued.46. It is well settled that a Court of Law can direct the Government or an instrumentality of State by mandamus to act in consonance with law and not in violation of statutory provisions. Unless a Court records a finding that act of absorption of all employees of the Corporation either in Government Department or in any other Public Sector Undertaking is in accordance with law, no writ can be issued. Therefore, even on that ground, the directions of the High Court deserve to be set aside.47. Regarding payment of compensation to the employees also, the High Court was not right. We have extracted the operative part of the order of the High Court in earlier part of the judgment. The High Court has stated that the appellants herein would absorb the employees of the Corporation and would "pay compensation in accordance with law". It was contended by the Corporation that there was no foundation in the entire writ petition as to the provisions of law under which such compensation could be claimed and violation of the law by the Corporation or by the State. No finding has been recorded by the High Court that a specific or particular provision of law had been violated which entitled the workers to claim compensation. No reasons had been recorded by the High Court in the impugned judgment for issuing such direction nor any basis for such direction has been shown. In our opinion, therefore, no such blanket direction could have been issued by the High Court which was not even capable of implementation.48.To us, one of the considerations in such matters is whether an order passed or direction issued is susceptible of implementation and enforcement, and if it is not implemented whether appropriate proceedings including proceedings for willful disobedience of the order of the Court can be initiated against the opposite party.The direction issued by the High Court falls short of this test and on that ground also, the order is vulnerable. | 1 | 7,350 | 1,874 | ### Instruction:
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teeth of statutory rules, such assurance had no legal efficacy. Moreover, an application was made on affidavit by the Secretary of the Corporation clarifying the position and praying for modification of the earlier order passed by the High Court in which such statement on behalf of the Corporation appeared. The High Court, however, rejected even that application. In our considered opinion, even on that ground, the High Court ought not to have issued final directions. 44. It is settled law that there can be no estoppel against a statute. If the field was occupied by statutory rules, the employees could get right only under those rules. The High Court was equally bound to consider those rules and to come to the conclusion whether under the statutory rules, the retrenched employees were entitled to absorption either in Government Department or in any other Public Sector Undertaking. Statement, assurance or even undertaking of any officer or a counsel of the respondent-Corporation or of the Government Pleader of the State is irrelevant. The High Court, in our view, ought to have considered the prayer of the Corporation and decided the question if it wanted to dispose of the matter on merits in spite of availability of alternative remedy to the employees. 45. Again, in our considered opinion, it was incumbent on the employees to show the right of absorption of retrenched employees in Government Department or other Public Sector Undertakings. The petitioners had prayed for a writ of mandamus which presupposes a legal right in favour of the applicant. Such right must be a subsisting right and enforceable in a Court of Law. There must be corresponding legal duty on the part of the respondent-Corporation or Government which required the Corporation or Government to do that which a statute required it to do. No such right of absorption has been shown by the petitioners. Nor any such corresponding duty of the respondents could be shown to the High Court by the employees. As noted above, the case of the Corporation was that the retrenched employees could be absorbed only in accordance with statutory rules framed under proviso to Article 309 of the Constitution. No such direction of absorption of all employees, hence, could be issued by the High Court. The High Court failed to appreciate all these relevant considerations. Even the application by which the Corporation sought to place on record statutory rules was rejected by the Court and a writ of mandamus was issued.46. It is well settled that a Court of Law can direct the Government or an instrumentality of State by mandamus to act in consonance with law and not in violation of statutory provisions. Unless a Court records a finding that act of absorption of all employees of the Corporation either in Government Department or in any other Public Sector Undertaking is in accordance with law, no writ can be issued. Therefore, even on that ground, the directions of the High Court deserve to be set aside.47. Regarding payment of compensation to the employees also, the High Court was not right. We have extracted the operative part of the order of the High Court in earlier part of the judgment. The High Court has stated that the appellants herein would absorb the employees of the Corporation and would "pay compensation in accordance with law". It was contended by the Corporation that there was no foundation in the entire writ petition as to the provisions of law under which such compensation could be claimed and violation of the law by the Corporation or by the State. No finding has been recorded by the High Court that a specific or particular provision of law had been violated which entitled the workers to claim compensation. No reasons had been recorded by the High Court in the impugned judgment for issuing such direction nor any basis for such direction has been shown. In our opinion, therefore, no such blanket direction could have been issued by the High Court which was not even capable of implementation.48. To us, one of the considerations in such matters is whether an order passed or direction issued is susceptible of implementation and enforcement, and if it is not implemented whether appropriate proceedings including proceedings for willful disobedience of the order of the Court can be initiated against the opposite party. The direction issued by the High Court falls short of this test and on that ground also, the order is vulnerable. 49. It is contended on behalf of the employees that the Corporation was not right when it stated that there was no work and several projects came to be closed. It was also contended that many employees were absorbed by the Corporation and there was an element of pick and choose. The said action was arbitrary, discriminatory, unreasonable and violative of Articles 14, 19 and 21 of the Constitution. Regarding loss caused to the Corporation, according to the Samiti, it was the result of wrong and improper decisions of the Corporation and the State Government. Poor employees should not suffer on that count. 50. In our considered view, however, all such actions could be examined by an appropriate Court/Tribunal under the Industrial Law and not by a writ Court exercising power of judicial review under Article 226 of the Constitution. If the impugned action of the Corporation of retrenchment of several employees is not in consonance with law, the employees are certainly entitled to relief from an appropriate authority. If any action is taken which is arbitrary, unreasonable or otherwise not in consonance with the provisions of law, such authority or Court/Tribunal is bound to consider it and legal and legitimate relief can always be granted keeping in view the evidence before it and considering statutory provisions in vogue. Unfortunately, the High Court did not consider all these aspects and issued a writ of mandamus which should not have been done. Hence, the order passed and directions issued by the High Court deserve to be set aside.
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alternative remedy. If such bald contention is upheld, even this Court cannot order dismissal of a writ petition which ought not to have been entertained by the High Court under Article 226 of the Constitution in view of availability of alternative and equally efficacious remedy to the aggrieved party, once the High Court has entertained aalbeit wrongly and granted the relief to the petitioner.39. On the facts and in the circumstances of the case, particularly in view of assertions by the Corporation that its work had been substantially reduced; it was running into losses; the question was considered by the Board of Directors and it was resolved to retrench certain employees, it would have been appropriate, had the High Court not entertained the writ petition under Article 226 of the Constitution. [See also Scooters India v. Vijai E. V. Eldred, (1998) 6 SCCThere is yet one more reason. In the High Court, the Corporation filed an application stating therein that regarding absorption of employees, statutory rules had been framed by the State Government in exercise of power under the proviso to Article 309 of the Constitution. A prayer was, therefore, made to allow the application to bring statutory rules on record and to consider them. The Court, however, rejected the prayer. In our opinion, the High Court was not right in rejecting such prayer. If there were statutory rules and such rules provide for absorption of employees on certain grounds and on fulfillment of some conditions laid down in those rules, it was the duty of the High Court to consider those rules and to decide whether under the statutory rules, such absorption could be ordered.43. After all, the High Court was considering the prayer of the petitioners to grant a writ in the nature of mandamus. It was, therefore, expected of the High Court to keep in view the relevant provisions of law. The High Court mainly relied upon an assurance said to have been given by the Secretary on behalf of the Corporation that excess employees would be absorbed either in the Government Department or in other Public Sector Undertakings. From the record it appears that it was the case of the Secretary of the Corporation that no such assurance was given by him to the Honble Court. But even if he had given such assurance, it was of no consequence since in the teeth of statutory rules, such assurance had no legal efficacy. Moreover, an application was made on affidavit by the Secretary of the Corporation clarifying the position and praying for modification of the earlier order passed by the High Court in which such statement on behalf of the Corporation appeared. The High Court, however, rejected even that application. In our considered opinion, even on that ground, the High Court ought not to have issued final directions.Again, in our considered opinion, it was incumbent on the employees to show the right of absorption of retrenched employees in Government Department or other Public Sector Undertakings. The petitioners had prayed for a writ of mandamus which presupposes a legal right in favour of the applicant. Such right must be a subsisting right and enforceable in a Court of Law. There must be corresponding legal duty on the part of theor Government which required the Corporation or Government to do that which a statute required it to do. No such right of absorption has been shown by the petitioners. Nor any such corresponding duty of the respondents could be shown to the High Court by the employees. As noted above, the case of the Corporation was that the retrenched employees could be absorbed only in accordance with statutory rules framed under proviso to Article 309 of the Constitution. No such direction of absorption of all employees, hence, could be issued by the High Court. The High Court failed to appreciate all these relevant considerations. Even the application by which the Corporation sought to place on record statutory rules was rejected by the Court and a writ of mandamus was issued.46. It is well settled that a Court of Law can direct the Government or an instrumentality of State by mandamus to act in consonance with law and not in violation of statutory provisions. Unless a Court records a finding that act of absorption of all employees of the Corporation either in Government Department or in any other Public Sector Undertaking is in accordance with law, no writ can be issued. Therefore, even on that ground, the directions of the High Court deserve to be set aside.47. Regarding payment of compensation to the employees also, the High Court was not right. We have extracted the operative part of the order of the High Court in earlier part of the judgment. The High Court has stated that the appellants herein would absorb the employees of the Corporation and would "pay compensation in accordance with law". It was contended by the Corporation that there was no foundation in the entire writ petition as to the provisions of law under which such compensation could be claimed and violation of the law by the Corporation or by the State. No finding has been recorded by the High Court that a specific or particular provision of law had been violated which entitled the workers to claim compensation. No reasons had been recorded by the High Court in the impugned judgment for issuing such direction nor any basis for such direction has been shown. In our opinion, therefore, no such blanket direction could have been issued by the High Court which was not even capable of implementation.48.To us, one of the considerations in such matters is whether an order passed or direction issued is susceptible of implementation and enforcement, and if it is not implemented whether appropriate proceedings including proceedings for willful disobedience of the order of the Court can be initiated against the opposite party.The direction issued by the High Court falls short of this test and on that ground also, the order is vulnerable.
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KERALA PUBLIC SERVICE COMMISSION Vs. K.N. RADHAMANI & ORS. ETC | GOs without the benchmark pay stipulation for recruitment to the posts of clerk/cashier from in-service category and made SSLC qualification to be acceptable eligibility criteria. This practice developed under the 1969 Act is indicative of the fact that for in-service candidates applying for direct recruitment to the posts of clerk/cashier in District Co-operative Banks, the minimum eligibility criteria so far as qualification is concerned is SSLC or equivalent and the floor-level pay stipulation would not apply. This practise can be sustained applying principle akin to contemporaneous expositio. The provisions of Rule 186 relate to Co-operative Societies in general whereas the GO of 1988 relates to service Regulations of a sub-species- District/Central Co-operative Banks. 24. Now we shall turn to the Coordinate Bench decision delivered in the case of Valsala Devi (supra). On behalf of KPSC it has been argued that it is a binding precedent and our attention has been particularly drawn to the last paragraph of this judgment in which opinion of the Bench is reflected. There are, however three factors which we have to consider before we come to a conclusion as to whether the finding of the Coordinate Bench could be treated to be a binding precedent for us or not in this set of proceedings. First is that Valsala Devi (supra) considered the issue of promotion from feeder posts and was not a contest in relation to direct recruitment to the subject post. The second factor is that the circular of 1982 and the Service Regulation of 1988 were not considered in that decision. We have gone through the Bench decision from which the appeal arose and we did not find any discussion on these circulars and regulations. Thirdly, the Coordinate Bench did not have the advantage of considering the reasoning contained in the Full Bench decision, which is under appeal before us. The impact of statutory instruments in the form of GOs were not brought to the notice of the Coordinate Bench and hence not considered in the case of Valsala Devi (supra). The legality of the 1982 circular and the 1988 GO has not been questioned by KPSC. There is overlapping effect of the 1969 Rules and the GOs issued in exercise of power under Section 80 of the Act in the field of laying down qualification criteria for the subject-posts. But in such a situation, in our opinion it would be imprudent on our part to treat such overlapping zone as collision point to determine which provision carries greater legislative strength. In such circumstances, the Court has to take a harmonious approach and in extreme cases apply the reading down principle to reconcile inconsistent provisions flowing from different provisions having same statutory origin. The Kerala Co-operative Societies Rules empower the Government to make rules to provide for, inter-alia, qualifications for employment in certain classes of societies. Sub-clause (3) of Section 80 of the same statute permits the Government to make rules for regulating the qualifications, remuneration and other conditions of service. The Rules made under Section 80(3) are thus to address the detailed stipulations pertaining to conditions of service of the officers and servants of different classes of societies specified in Section 80(1). 25. Moreover, the authorities have been dealing with the qualification criteria at specific level for a particular class of society by issuing circulars and GOs over a period of time and in our opinion such implementation criteria has acquired enforceability status on the basis of usage at the administrative level. The 1982 Instruction has not been invalidated by any subsequent Government action or judicial order. Nothing on that count has been brought to our notice. The authorities appear to have carved out the posts of clerk/cashier in Co-operative Banks to subject them to the instruments made in various forms under Section 80(3) of the Act, whereas Rule 186 has general application. The 1988 Regulations relate to Co-operative Banks only, and source of power for making such Regulations appear to be Section 80(3) of the 1969 Act. Thus, in respect of such special category, Regulations made under Section 80(3) of the Act ought to prevail. 26. In these circumstances, in our opinion, if an advertisement is made providing for eligibility criteria different from that statutorily prescribed, it would be open to the candidates to challenge the legality of such eligibility criteria. We do not think in the peculiar circumstances of this case it was permissible on the part of KPSC to prescribe qualification as minimum eligibility criteria which is beyond that prescribed by the statute. While it is true that none of the candidates have had challenged the legality of the qualification condition stipulated in the advertisement, majority have come to this Court at a time in close proximity to the publication of the employment notification. The judgment of the Coordinate Bench has not been decided on the points argued before us. Nor the Coordinate Bench had the advantage of going through the reasoning contained in the Full Bench decision though before the said judgment was delivered by the Coordinate Bench, the Full Bench decision was rendered. For these reasons, in our opinion, the Coordinate Bench decision would not constitute a binding precedent so far as the present set of proceedings is concerned. In these circumstances, we dismiss the five appeals of the Commission. The Writ Appeal No. 865 of 2013 which was filed by the Commission before the Kerala High Court against the judgment in WP (C) No. 21073 of 2011 dated 22nd February, 2013 being Transferred Case (Civil) No. 60 of 2014 - Kerala Public Service Commission v. Yesudas and Ors. is also dismissed. Notices were not issued in the two Interlocutory Applications, I.A. No. 2 of 2012 and I.A. No. 82851 of 2021. 27. From Annexures B to I.A. No. 2 of 2012, we find that for taking further steps in the matter of appointment of the applicants thereof, the Commission was waiting for the position of SLP….(CC) No. 17182 of 2008 (now Civil Appeal No.1802 of 2010). | 1[ds]16. The proceedings out of which that appeal arose related to an earlier advertisement dated 26th October, 1999. In these cases, however, we are primarily concerned with the advertisement of 2006. Moreover, the case of Valsala Devi (supra) was in relation to promotion whereas in the present set of proceedings, the vacancies are to be filled up by direct recruitment from in-service candidates. Thirdly, the reasoning on which the High Court had rejected the plea of the candidates was laches, as recorded in the Coordinate Bench judgment. Only in Civil Appeal No. 2822 of 2010, the appellants had applied for the posts in question both under the 1999 and 2006 advertisements. They were not successful before the High Court on the ground of having filed a belated writ petition, after delivery of the Full Bench decision.17. The Coordinate Bench in the case of Valsala Devi (supra) had sustained the stand of the Commission on two grounds. The first was that the advertisement had been issued for all the candidates. The rationale appears to be that the appellant had not been discriminated against. Secondly, the Court found nothing wrong in prescribing higher qualification in the advertisement by the KPSC.18. So far as Civil Appeal Nos. 2822 and 2823 of 2010 are concerned, we do not find any error in the judgment of the High Court in rejecting the writ petition on the ground of delay. In disputes related to service, particularly in the field of recruitment, fate of a large number of candidates are involved. An aspirant for the posts advertised has to demonstrate promptitude in approaching the Court if in his perception, the eligibility criteria is fixed beyond that stipulated by law. Delayed arrival of a candidate in the judicial forum can have chaotic consequences if decisions taken on the basis of the disputed eligibility criteria are required to be upset much after the selection process is over. The High Court has rightly exercised its discretion in dismissing the said two writ petitions. We dismiss both the appeals.19. So far as rest of the appeals are concerned, these arise out of the 2006 advertisement. The rejected candidates had instituted the proceedings immediately after their applications were rejected. Though the candidates did not challenge legality of the notified eligibility criteria, there was no inordinate delay in questioning the Commissions action. So far as decision of the Coordinate Bench in Valsala Devi (supra) is concerned, there is no doubt that the said judgment was delivered in respect of a different advertisement, but the eligibility criteria remained substantially same. A plain reading of clause 186 of the 1969 Rules shows that those from in-service category with base education of SSLC or equivalent are eligible for participation in recruitment process for those posts which have starting pay below Rs.250/-.20. Before the Full Bench, main argument of the Commission was anchored on Rule 186 as well as to the GO of 1986 which has been referred to in the judgment as Exhibit P5. Submission of KPSC is that the said Exhibit P5 was Rule made under Section 80 of the 1969 Act and this was not required to be published. But the said Rule was again altered by a GO dated 23rd March, 1988, and for in- service candidates, only three years experience in affiliated primary co-operative society with minimum qualification of SSLC with JDC was prescribed under revised Rule 8(i)(b) of the Service Regulation.21. As regards, source of power of making these regulations under respective GOs, KPSC had taken stand before the Full Bench that these were made under Section 80 of the said Act. Question has been raised about implementation of the said Rules as there was no consultation with the State Co-operative Union for making these Rules. The Constitution Bench decision in the case of State Of U. P. v. Manbodhan Lal Srivastava [(AIR) 1957 SC 912] has been referred to before us. In this case, the question of lack of consultation with Public Service Commission and the effect thereof in the light of the provisions of Article 320 of the Constitution of India was examined by the Constitution Bench. It was, inter-alia, held in this judgment:-We have already indicated that Article 320(3)(c) of the Constitution does not confer any rights on a public servant so that the absence of consultation or any irregularity in consultation, should not afford him a cause of action in a court of law, or entitle him to relief under the special powers of a High Court under Article 226 of the Constitution or of this Court under Article 32. It is not a right which could be recognized and enforced by a writ. On the other hand, Article 311 of the Constitution has been construed as conferring a right on a civil servant of the Union or a State, which he can enforce in a court of law. Hence, if the provisions of Article 311, have been complied with in this case — and it has not been contended at any stage that they had not been complied with — he has no remedy against any irregularity that the State Government may have committed. Unless, it can be held, and we are not prepared to hold, that Article 320(3)(c) is in the nature of a rider or proviso to Article 311, it is not possible to construe Article 320(3)(c) in the sense of affording a cause of action to a public servant against whom some action has been taken by his employer.22. The judicial exercise we have to undertake is to examine the applicability of the provisions of Rule 186 made under Section 109 of the 1969 Act and the scope of operation of the Regulations made under Section 80 thereof. We do not accept the argument that because these Regulations were made without prior consultation with the State Co-operative Unions, the Rules would not be implementable. KPSC itself relied on the said provisions to justify making of the GO of 1986. Moreover, following the Constitution Bench judgment in the case of Manbodhan Lal Srivastava (supra), we hold that lack of consultation as specified in Section 80(3) of the Act by itself would not render any Rule made thereunder a stillborn statutory instrument. KPSCs own stand before the Full Bench appeared to be that rules made under Section 109 as also under Section 80 can co-exist. By issuing the 1982 order, the Registrar of the Co-operative Societies had in substance suspended the applicability of the floor-level pay stipulation, directing that pending amendment of the rules the qualification under Rule 186 for different categories of posts have to be decided based on pre-revision scales of pay. On this count, the Commissions position is that it was not within the power of jurisdiction of the Registrar of Co- operative Societies to keep on hold the provisions of statutory rules. But this factor read with the GO of 23rd March, 1988 establishes that the State Government had intended to keep in abeyance the benchmark pay provision as specified in Rule 186 thereof. KPSC cannot ignore existence of these provisions giving their own interpretation to law and statutory instruments made under it.24. Now we shall turn to the Coordinate Bench decision delivered in the case of Valsala Devi (supra). On behalf of KPSC it has been argued that it is a binding precedent and our attention has been particularly drawn to the last paragraph of this judgment in which opinion of the Bench is reflected. There are, however three factors which we have to consider before we come to a conclusion as to whether the finding of the Coordinate Bench could be treated to be a binding precedent for us or not in this set of proceedings. First is that Valsala Devi (supra) considered the issue of promotion from feeder posts and was not a contest in relation to direct recruitment to the subject post. The second factor is that the circular of 1982 and the Service Regulation of 1988 were not considered in that decision. We have gone through the Bench decision from which the appeal arose and we did not find any discussion on these circulars and regulations. Thirdly, the Coordinate Bench did not have the advantage of considering the reasoning contained in the Full Bench decision, which is under appeal before us. The impact of statutory instruments in the form of GOs were not brought to the notice of the Coordinate Bench and hence not considered in the case of Valsala Devi (supra). The legality of the 1982 circular and the 1988 GO has not been questioned by KPSC. There is overlapping effect of the 1969 Rules and the GOs issued in exercise of power under Section 80 of the Act in the field of laying down qualification criteria for the subject-posts. But in such a situation, in our opinion it would be imprudent on our part to treat such overlapping zone as collision point to determine which provision carries greater legislative strength. In such circumstances, the Court has to take a harmonious approach and in extreme cases apply the reading down principle to reconcile inconsistent provisions flowing from different provisions having same statutory origin. The Kerala Co-operative Societies Rules empower the Government to make rules to provide for, inter-alia, qualifications for employment in certain classes of societies. Sub-clause (3) of Section 80 of the same statute permits the Government to make rules for regulating the qualifications, remuneration and other conditions of service. The Rules made under Section 80(3) are thus to address the detailed stipulations pertaining to conditions of service of the officers and servants of different classes of societies specified in Section 80(1).25. Moreover, the authorities have been dealing with the qualification criteria at specific level for a particular class of society by issuing circulars and GOs over a period of time and in our opinion such implementation criteria has acquired enforceability status on the basis of usage at the administrative level. The 1982 Instruction has not been invalidated by any subsequent Government action or judicial order. Nothing on that count has been brought to our notice. The authorities appear to have carved out the posts of clerk/cashier in Co-operative Banks to subject them to the instruments made in various forms under Section 80(3) of the Act, whereas Rule 186 has general application. The 1988 Regulations relate to Co-operative Banks only, and source of power for making such Regulations appear to be Section 80(3) of the 1969 Act. Thus, in respect of such special category, Regulations made under Section 80(3) of the Act ought to prevail.26. In these circumstances, in our opinion, if an advertisement is made providing for eligibility criteria different from that statutorily prescribed, it would be open to the candidates to challenge the legality of such eligibility criteria. We do not think in the peculiar circumstances of this case it was permissible on the part of KPSC to prescribe qualification as minimum eligibility criteria which is beyond that prescribed by the statute. While it is true that none of the candidates have had challenged the legality of the qualification condition stipulated in the advertisement, majority have come to this Court at a time in close proximity to the publication of the employment notification. The judgment of the Coordinate Bench has not been decided on the points argued before us. Nor the Coordinate Bench had the advantage of going through the reasoning contained in the Full Bench decision though before the said judgment was delivered by the Coordinate Bench, the Full Bench decision was rendered. For these reasons, in our opinion, the Coordinate Bench decision would not constitute a binding precedent so far as the present set of proceedings is concerned. In these circumstances, we dismiss the five appeals of the Commission. The Writ Appeal No. 865 of 2013 which was filed by the Commission before the Kerala High Court against the judgment in WP (C) No. 21073 of 2011 dated 22nd February, 2013 being Transferred Case (Civil) No. 60 of 2014 - Kerala Public Service Commission v. Yesudas and Ors. is also dismissed. Notices were not issued in the two Interlocutory Applications, I.A. No. 2 of 2012 and I.A. No. 82851 of 2021.27. From Annexures B to I.A. No. 2 of 2012, we find that for taking further steps in the matter of appointment of the applicants thereof, the Commission was waiting for the position of SLP….(CC) No. 17182 of 2008 (now Civil Appeal No.1802 of 2010). | 1 | 6,623 | 2,311 | ### Instruction:
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GOs without the benchmark pay stipulation for recruitment to the posts of clerk/cashier from in-service category and made SSLC qualification to be acceptable eligibility criteria. This practice developed under the 1969 Act is indicative of the fact that for in-service candidates applying for direct recruitment to the posts of clerk/cashier in District Co-operative Banks, the minimum eligibility criteria so far as qualification is concerned is SSLC or equivalent and the floor-level pay stipulation would not apply. This practise can be sustained applying principle akin to contemporaneous expositio. The provisions of Rule 186 relate to Co-operative Societies in general whereas the GO of 1988 relates to service Regulations of a sub-species- District/Central Co-operative Banks. 24. Now we shall turn to the Coordinate Bench decision delivered in the case of Valsala Devi (supra). On behalf of KPSC it has been argued that it is a binding precedent and our attention has been particularly drawn to the last paragraph of this judgment in which opinion of the Bench is reflected. There are, however three factors which we have to consider before we come to a conclusion as to whether the finding of the Coordinate Bench could be treated to be a binding precedent for us or not in this set of proceedings. First is that Valsala Devi (supra) considered the issue of promotion from feeder posts and was not a contest in relation to direct recruitment to the subject post. The second factor is that the circular of 1982 and the Service Regulation of 1988 were not considered in that decision. We have gone through the Bench decision from which the appeal arose and we did not find any discussion on these circulars and regulations. Thirdly, the Coordinate Bench did not have the advantage of considering the reasoning contained in the Full Bench decision, which is under appeal before us. The impact of statutory instruments in the form of GOs were not brought to the notice of the Coordinate Bench and hence not considered in the case of Valsala Devi (supra). The legality of the 1982 circular and the 1988 GO has not been questioned by KPSC. There is overlapping effect of the 1969 Rules and the GOs issued in exercise of power under Section 80 of the Act in the field of laying down qualification criteria for the subject-posts. But in such a situation, in our opinion it would be imprudent on our part to treat such overlapping zone as collision point to determine which provision carries greater legislative strength. In such circumstances, the Court has to take a harmonious approach and in extreme cases apply the reading down principle to reconcile inconsistent provisions flowing from different provisions having same statutory origin. The Kerala Co-operative Societies Rules empower the Government to make rules to provide for, inter-alia, qualifications for employment in certain classes of societies. Sub-clause (3) of Section 80 of the same statute permits the Government to make rules for regulating the qualifications, remuneration and other conditions of service. The Rules made under Section 80(3) are thus to address the detailed stipulations pertaining to conditions of service of the officers and servants of different classes of societies specified in Section 80(1). 25. Moreover, the authorities have been dealing with the qualification criteria at specific level for a particular class of society by issuing circulars and GOs over a period of time and in our opinion such implementation criteria has acquired enforceability status on the basis of usage at the administrative level. The 1982 Instruction has not been invalidated by any subsequent Government action or judicial order. Nothing on that count has been brought to our notice. The authorities appear to have carved out the posts of clerk/cashier in Co-operative Banks to subject them to the instruments made in various forms under Section 80(3) of the Act, whereas Rule 186 has general application. The 1988 Regulations relate to Co-operative Banks only, and source of power for making such Regulations appear to be Section 80(3) of the 1969 Act. Thus, in respect of such special category, Regulations made under Section 80(3) of the Act ought to prevail. 26. In these circumstances, in our opinion, if an advertisement is made providing for eligibility criteria different from that statutorily prescribed, it would be open to the candidates to challenge the legality of such eligibility criteria. We do not think in the peculiar circumstances of this case it was permissible on the part of KPSC to prescribe qualification as minimum eligibility criteria which is beyond that prescribed by the statute. While it is true that none of the candidates have had challenged the legality of the qualification condition stipulated in the advertisement, majority have come to this Court at a time in close proximity to the publication of the employment notification. The judgment of the Coordinate Bench has not been decided on the points argued before us. Nor the Coordinate Bench had the advantage of going through the reasoning contained in the Full Bench decision though before the said judgment was delivered by the Coordinate Bench, the Full Bench decision was rendered. For these reasons, in our opinion, the Coordinate Bench decision would not constitute a binding precedent so far as the present set of proceedings is concerned. In these circumstances, we dismiss the five appeals of the Commission. The Writ Appeal No. 865 of 2013 which was filed by the Commission before the Kerala High Court against the judgment in WP (C) No. 21073 of 2011 dated 22nd February, 2013 being Transferred Case (Civil) No. 60 of 2014 - Kerala Public Service Commission v. Yesudas and Ors. is also dismissed. Notices were not issued in the two Interlocutory Applications, I.A. No. 2 of 2012 and I.A. No. 82851 of 2021. 27. From Annexures B to I.A. No. 2 of 2012, we find that for taking further steps in the matter of appointment of the applicants thereof, the Commission was waiting for the position of SLP….(CC) No. 17182 of 2008 (now Civil Appeal No.1802 of 2010).
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the applicability of the floor-level pay stipulation, directing that pending amendment of the rules the qualification under Rule 186 for different categories of posts have to be decided based on pre-revision scales of pay. On this count, the Commissions position is that it was not within the power of jurisdiction of the Registrar of Co- operative Societies to keep on hold the provisions of statutory rules. But this factor read with the GO of 23rd March, 1988 establishes that the State Government had intended to keep in abeyance the benchmark pay provision as specified in Rule 186 thereof. KPSC cannot ignore existence of these provisions giving their own interpretation to law and statutory instruments made under it.24. Now we shall turn to the Coordinate Bench decision delivered in the case of Valsala Devi (supra). On behalf of KPSC it has been argued that it is a binding precedent and our attention has been particularly drawn to the last paragraph of this judgment in which opinion of the Bench is reflected. There are, however three factors which we have to consider before we come to a conclusion as to whether the finding of the Coordinate Bench could be treated to be a binding precedent for us or not in this set of proceedings. First is that Valsala Devi (supra) considered the issue of promotion from feeder posts and was not a contest in relation to direct recruitment to the subject post. The second factor is that the circular of 1982 and the Service Regulation of 1988 were not considered in that decision. We have gone through the Bench decision from which the appeal arose and we did not find any discussion on these circulars and regulations. Thirdly, the Coordinate Bench did not have the advantage of considering the reasoning contained in the Full Bench decision, which is under appeal before us. The impact of statutory instruments in the form of GOs were not brought to the notice of the Coordinate Bench and hence not considered in the case of Valsala Devi (supra). The legality of the 1982 circular and the 1988 GO has not been questioned by KPSC. There is overlapping effect of the 1969 Rules and the GOs issued in exercise of power under Section 80 of the Act in the field of laying down qualification criteria for the subject-posts. But in such a situation, in our opinion it would be imprudent on our part to treat such overlapping zone as collision point to determine which provision carries greater legislative strength. In such circumstances, the Court has to take a harmonious approach and in extreme cases apply the reading down principle to reconcile inconsistent provisions flowing from different provisions having same statutory origin. The Kerala Co-operative Societies Rules empower the Government to make rules to provide for, inter-alia, qualifications for employment in certain classes of societies. Sub-clause (3) of Section 80 of the same statute permits the Government to make rules for regulating the qualifications, remuneration and other conditions of service. The Rules made under Section 80(3) are thus to address the detailed stipulations pertaining to conditions of service of the officers and servants of different classes of societies specified in Section 80(1).25. Moreover, the authorities have been dealing with the qualification criteria at specific level for a particular class of society by issuing circulars and GOs over a period of time and in our opinion such implementation criteria has acquired enforceability status on the basis of usage at the administrative level. The 1982 Instruction has not been invalidated by any subsequent Government action or judicial order. Nothing on that count has been brought to our notice. The authorities appear to have carved out the posts of clerk/cashier in Co-operative Banks to subject them to the instruments made in various forms under Section 80(3) of the Act, whereas Rule 186 has general application. The 1988 Regulations relate to Co-operative Banks only, and source of power for making such Regulations appear to be Section 80(3) of the 1969 Act. Thus, in respect of such special category, Regulations made under Section 80(3) of the Act ought to prevail.26. In these circumstances, in our opinion, if an advertisement is made providing for eligibility criteria different from that statutorily prescribed, it would be open to the candidates to challenge the legality of such eligibility criteria. We do not think in the peculiar circumstances of this case it was permissible on the part of KPSC to prescribe qualification as minimum eligibility criteria which is beyond that prescribed by the statute. While it is true that none of the candidates have had challenged the legality of the qualification condition stipulated in the advertisement, majority have come to this Court at a time in close proximity to the publication of the employment notification. The judgment of the Coordinate Bench has not been decided on the points argued before us. Nor the Coordinate Bench had the advantage of going through the reasoning contained in the Full Bench decision though before the said judgment was delivered by the Coordinate Bench, the Full Bench decision was rendered. For these reasons, in our opinion, the Coordinate Bench decision would not constitute a binding precedent so far as the present set of proceedings is concerned. In these circumstances, we dismiss the five appeals of the Commission. The Writ Appeal No. 865 of 2013 which was filed by the Commission before the Kerala High Court against the judgment in WP (C) No. 21073 of 2011 dated 22nd February, 2013 being Transferred Case (Civil) No. 60 of 2014 - Kerala Public Service Commission v. Yesudas and Ors. is also dismissed. Notices were not issued in the two Interlocutory Applications, I.A. No. 2 of 2012 and I.A. No. 82851 of 2021.27. From Annexures B to I.A. No. 2 of 2012, we find that for taking further steps in the matter of appointment of the applicants thereof, the Commission was waiting for the position of SLP….(CC) No. 17182 of 2008 (now Civil Appeal No.1802 of 2010).
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Moideenkutty Haji Vs. Director General & Others | 1. Leave granted.2. Heard the learned counsel appearing for the parties.3. In a Writ Petition filed before the Kerala High Court, the learned Single Judge decided the Writ Petition in favour of the petitioner stating as follows:"6. According to the Counter Affidavit filed by the respondent the competent authority to consider the application is the Additional 6th respondent. Counsel for the petitioner submits that orders have not been passed by the first respondent. If the applications made by the petitioner are pending before the additional 6th respondent I direct the said officer to pass orders on the applications and communicate the same to the 2nd respondent as expeditiously as possible at any rate within eight weeks from the date of receipt of a copy of this judgment."4. Against this, an appeal was carried, which was allowed. According to the Division Bench, the aluminium roof that was put up by the petitioner was not a temporary structure and would therefore fall foul of the Ancient Monuments and Archaeological Sites and Remains (Amendment & Validation) Act, 2010. When the matter came up before us, by an order dated 07.07.2017, we had asked for a Report from a Chartered Engineer. The Report dated 28.08.2017 has since been submitted to this Court. The Report is a short one consisting of 12 paragraphs and is set out hereinbelow:"1. The building is not structurally sound due to bad climatic conditions. The building is very close to the sea. My prediction is that, during the construction time they didnt take any remedy regarding the salty sea water, wind etc. due to this the roof slab of the building is fully damaged, this causes dampness of the roof slab. In this condition the building will not withstand more than 10 years.2. They have partially constructed a roof with an angle section and roofing sheet. It is also a temporary arrangement for the protection of building dampness.3. The additional construction on the roof slab is not at all habitable because the roof slab surface is not in level and it contains number of sunken area (14.48sq.m sunken area). They have partially completed the roofing works. (Total area to be covered 560.62sq.m in that 331.92sq.m already covered). Height between slab top to truss tie member is 1.9 m to 2.5m only. (Ridge height is 2.2m from tie to ridge tap).4. The roofing works are fully temporary ones because mild steel work is not suitable in sea shore constructions because it is easily corrodes.5. Distance between fort and building is 40m.6. Height of the existing building is 19.1m (Including head room cum OH tank).7. The existing building, the height head room cum over head water tank is almost same level as concerned with roofing sheets work. It means building height doesnt change even after construction of roofing sheets work.8. The buildings height is more than fort height.9. The building is finished with emulsion paint over cement plastering.10. In between the building and fort, number of small buildings are there with same finish and have used the same materials.11. NH 17 is in between the fort and building.12. We can only see a small area of the fort from the ground floor. From the roof slab one fourth is visible."5. It can be seen that the roof slab of the building is fully damaged and therefore, requires repair. It is obvious that the roofing works that have been undertaken, are, as has been held by the Report, not "construction" within the meaning of the Act, but repairs. | 1[ds]5. It can be seen that the roof slab of the building is fully damaged and therefore, requires repair. It is obvious that the roofing works that have been undertaken, are, as has been held by the Report, not "construction" within the meaning of the Act, but repairs. | 1 | 663 | 62 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
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1. Leave granted.2. Heard the learned counsel appearing for the parties.3. In a Writ Petition filed before the Kerala High Court, the learned Single Judge decided the Writ Petition in favour of the petitioner stating as follows:"6. According to the Counter Affidavit filed by the respondent the competent authority to consider the application is the Additional 6th respondent. Counsel for the petitioner submits that orders have not been passed by the first respondent. If the applications made by the petitioner are pending before the additional 6th respondent I direct the said officer to pass orders on the applications and communicate the same to the 2nd respondent as expeditiously as possible at any rate within eight weeks from the date of receipt of a copy of this judgment."4. Against this, an appeal was carried, which was allowed. According to the Division Bench, the aluminium roof that was put up by the petitioner was not a temporary structure and would therefore fall foul of the Ancient Monuments and Archaeological Sites and Remains (Amendment & Validation) Act, 2010. When the matter came up before us, by an order dated 07.07.2017, we had asked for a Report from a Chartered Engineer. The Report dated 28.08.2017 has since been submitted to this Court. The Report is a short one consisting of 12 paragraphs and is set out hereinbelow:"1. The building is not structurally sound due to bad climatic conditions. The building is very close to the sea. My prediction is that, during the construction time they didnt take any remedy regarding the salty sea water, wind etc. due to this the roof slab of the building is fully damaged, this causes dampness of the roof slab. In this condition the building will not withstand more than 10 years.2. They have partially constructed a roof with an angle section and roofing sheet. It is also a temporary arrangement for the protection of building dampness.3. The additional construction on the roof slab is not at all habitable because the roof slab surface is not in level and it contains number of sunken area (14.48sq.m sunken area). They have partially completed the roofing works. (Total area to be covered 560.62sq.m in that 331.92sq.m already covered). Height between slab top to truss tie member is 1.9 m to 2.5m only. (Ridge height is 2.2m from tie to ridge tap).4. The roofing works are fully temporary ones because mild steel work is not suitable in sea shore constructions because it is easily corrodes.5. Distance between fort and building is 40m.6. Height of the existing building is 19.1m (Including head room cum OH tank).7. The existing building, the height head room cum over head water tank is almost same level as concerned with roofing sheets work. It means building height doesnt change even after construction of roofing sheets work.8. The buildings height is more than fort height.9. The building is finished with emulsion paint over cement plastering.10. In between the building and fort, number of small buildings are there with same finish and have used the same materials.11. NH 17 is in between the fort and building.12. We can only see a small area of the fort from the ground floor. From the roof slab one fourth is visible."5. It can be seen that the roof slab of the building is fully damaged and therefore, requires repair. It is obvious that the roofing works that have been undertaken, are, as has been held by the Report, not "construction" within the meaning of the Act, but repairs.
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5. It can be seen that the roof slab of the building is fully damaged and therefore, requires repair. It is obvious that the roofing works that have been undertaken, are, as has been held by the Report, not "construction" within the meaning of the Act, but repairs.
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Brihanmumbai Electric Supply & Transport Undertaking Vs. Maharashtra Electricity Regulatory Commission (MERC) & Others | gave due recognition to objective behind the Act viz. to promote competition and give the consumer open to choose the distribution licensee from which it seeks electricity as is clear from the following paragraphs: 102. On the other hand, in our view, the provisions of both the 1903 and 1910 Electricity Acts encourage competition in the electricity trade and the same is also incorporated in the licences issued in favour of the distribution licensees, which also include licensees generating power for supply. The element of competition has been included in the Preamble to the 2003 Act and permeates the same in its various provisions.103. As submitted by Mr Chagla, the Act is meant to be consumer-friendly and one of the objectives it sets out to achieve is to give the consumer an option to choose the distribution licensee from whom it wishes to receive supply of electrical energy. The intervention of MIDC, Marol Industries Association and the appeals filed by it, has obviously been made in that context. In MSR Leathers vs. S.Palaniappan & Anr. (2013) 1 SCC 177 it was observed: “24. That brings us to the question whether an offence punishable under Section 138 can be committed only once as held by this Court in Sadanandan case1. The holder of a cheque as seen earlier can present it before a bank any number of times within the period of six months or during the period of its validity, whichever is earlier. This right of the holder to present the cheque for encashment carries with it a corresponding obligation on the part of the drawer to ensure that the cheque drawn by him is honoured by the bank who stands in the capacity of an agent of the drawer vis-à-vis the holder of the cheque. If the holder of the cheque has a right, as indeed is in the unanimous opinion expressed in the decisions on the subject, there is no reason why the corresponding obligation of the drawer should also not continue every time the cheque is presented for encashment if it satisfies the requirements stipulated in clause (a) of the proviso to Section 138. There is nothing in that proviso to even remotely suggest that clause (a) would have no application to a cheque presented for the second time if the same has already been dishonoured once. Indeed if the legislative intent was to restrict prosecution only to cases arising out of the first dishonour of a cheque nothing prevented it from stipulating so in clause (a) itself. In the absence of any such provision a dishonour whether based on a second or any successive presentation of a cheque for encashment would be a dishonour within the meaning of Section 138 and clause (a) of the proviso thereto. We have, therefore, no manner of doubt that so long as the cheque remains unpaid it is the continuing obligation of the drawer to make good the same by either arranging the funds in the account on which the cheque is drawn or liquidating the liability otherwise. It is true that a dishonour of the cheque can be made a basis for prosecution of the offender but once, but that is far from saying that the holder of the cheque does not have the discretion to choose out of several such defaults, one default, on which to launch such a prosecution. The omission or the failure of the holder to institute prosecution does not, therefore, give any immunity to the drawer so long as the cheque is dishonoured within its validity period and the conditions precedent for prosecution in terms of the proviso to Section 138 are satisfied.” While dealing with the issue No.2 above, we have already held that TPC and BEST are parallel distribution licensee in the South Bombay Area.27. The appellant has sought to rely on the expression “Save as otherwise provided in this Act” in Section 43(1) of the Act to read into Section 43(1) the exception for local authorities provided for in Section 42(3). The TPC has successfully refuted this submission by pointing out that these words in Section 43(1) are required to be read in the context in which they appear. The said words were inserted in the section by way of an amendment to the Act in 2007. An “Explanation” to Section 43(1) was also added by the same amendment providing that “application” by a consumer in Section 43(1) means an application complete in all respects along with documents showing payment of necessary charges and other compliances, meaning thereby that the obligation of the distribution licensee to supply within the specified time period will begin only after it has received such completed application by the applicant. Further, Sections 45 and 46 provide for the distribution licensee’s powers to recover charges for electricity supplied and the expenditure incurred in providing electric line or plant for giving supply. Section 47 provides that the distribution licensee may require any person demanding electricity supply from him to give a reasonable security, failing which the distribution licensee may refuse to give supply of electricity to such consumer. We are of the opinion that it is in this context that the expression “save as otherwise provided in this Act” in Section 43 (1) is to be construed. 28. Before we part with we would like to make it clear that there is a dispute between TPC and R-infra) (respondent No.9) which is the subject matter of Civil Appeal Nos. 4667-68/2013. R Infra is a distribution licensee in suburban Bombay where TPC is also a licensee. Both supply electricity to different consumers. Dispute is between them with regard to cross subsidiary surcharge (CSS) payable by consumer taking supply from TPC or R Infra network. We make it clear, by way of abundant caution, that we have not touched upon the said dispute and obviously so as even otherwise the subject matter in the instance case is totally different. Therefore Civil Appeal Nos.4667-68/2013 shall be decided on its own merits. | 0[ds]RE: Jurisdiction of the Regulatory Commission.7. This contention was raised primarily on the ground that there was an alternative remedy provided to the consumer to raise his grievances before the Consumer Grievances Redressal Forum (CGRF) established under Section 42 (5) of the Act. Therefore, the consumer should have approached the said Forum instead of filing petition before the Regulatory Commission. This contention is totally misconceived and rightly rejected by the authorities below. As noted above, petition was filed by the consumer seeking direction against TPC to supply electricity to him. Thus, he approached the Regulatory Commission to enforce a distribution licensee obligation under the Act. As on that date, he was not the consumer of TPC but wanted to become its consumer. In so far as CGRF is concerned, which each distribution licensee is required to set up under Section 42 (5) of the Act, it deals with the grievances of the consumer.Thus, respondent No.3 not being a consumer could not have approached CGRF. Further, we find that in Maharashtra Electricity Regulatory v. Reliance Energy Ltd. (2007) 8 SCC 381 , this Court has held that the Regulatory Commission has the power to require a licensee to fulfill its obligations under the Act. Thus, we are of the opinion that the Regulatory Commission had the requisite jurisdiction to entertain the petition filed by the consumer. Presumably, for this reason, this contention was pressed half hearted before us and given up in the middle.RE: Whether TPC is deemed distributionThere are two facets of the submissions made by Mr. Naphade. In the first instance it is to be found that there is a stipulation of period in the manner stated in the first proviso. Second aspect is as to whether it is incumbent, in all cases, to apply for licence under the provisions of Sections 14 and 15 of the Act immediately after the expiry of one year from the date of commencement of the said Act. In so far as first aspect is concerned, the argument of the appellant loses sight of the fact that in the first proviso the period for which any person can be a deemed licensee is not only such period which is stipulated in the licence, clearance or approval granted to him under the repealed laws or such Act specified in the Schedule. It also provides that the provisions of repealed laws or such Act specified in the Schedule in respect of such a licence shall apply for a period of one year from the date of commencement of Act 2003 or such earlier period as may be specified at the request of the licensee by the Regulatory Commission. In the present case, the Regulatory Commission formulated MERC (Specific Conditions of License Applicable to TPCL) Regulation 2008 i.e. Specific Licence Conditions. These were formulated under Section 16 of the Act 2003 and it is in these conditions there is a specific stipulation regarding term of TPC licence up to 15.8.2014. We, therefore, are unable to accept the submissions of the appellant that the licence was valid for a period of one year only. It would be useful to refer to Section 16 of the Act under which aforesaid Specific Licence Conditions of TPC are formulated.Conditions of licence.- The Appropriate Commission may specify any general or specific conditions which shall apply either to a licensee or class of licensees and such conditions shall be deemed to be conditions of such licence:Provided that the Appropriate Commission shall, within one year from the appointed date, specify any general or specific conditions of licence applicable to the licensees referred to in the first, second, third, fourth and fifth provisos to section 14 after the expiry of one year from the commencement of thisto the aforesaid section very categorically enables the Regulatory Commission to specify general or specific condition of licence applicable to licensees referred to in the first to fifth proviso to Section 14 after expiry of one year after the commencement of that Act. Since as on the date of commencement of the Act, TPC became deemed licensee under the first proviso as its predecessors were holding the distribution licence under the repealed laws and thereafter specific conditions of licence are formulated by the Regulatory Commission under Section 16 mentioning the period of 15.8.2014, it becomes clear that the combined fact of that would be that YPC would be deemed licence till 15.8.2014. Tatalicense to supply electricity in the South Mumbai area is clearly established by virtue of theThe Erstwhile Licensee authorized Tata Power to supply electricity to all consumers in Mumbai, including the South Mumbai area;(b) When the new Act came into force, by virtue of the 1st Proviso to Section 14, Tata Power was deemed to be a licensee under thatis also clear from Section 172(b) of the Act. It is trite law that once the purpose of the deeming provision is ascertained, full effect must be given to the statutory fiction and the fiction is to be carried to its logical end.17. An argument was sought to be raised before us that Regulation 2008 laying down specific conditions for TPC are flouted as they were not made by the Regulatory Commission within the mandatory period of one year. However, no such argument was raised earlier and there is no challenge to the validity of the aforesaid Regulations which are made by the Regulatory Commission under its statutory powers and therefore are having statutory force. Once, we come to the conclusion that TPC can be treated as deemed distribution licensee under the first proviso to Section 14 of the Act 2003 and the area of the licence is the same which overlaps with the area covered by BEST, argument predicated on sixth proviso to Section 14 would not be available to the BEST.RE: AVAILABILLITY OF OPEN ACCESS TO TPC IN THE AREA COVERED BY BEST, WHICH IS A LOCAL AUTHORITYY OF TPC TO EXTEND ITS NETWORK IN BEST AREA OF SUPPLY WITHOUT ITS APPROVAL/CONSENT.After considering the rival contentions, we are of the opinion that the interpretation suggested by Mr. Mehta needs to prevail and therefore we do not find any fault with the view taken by the Appellate Tribunal. We have already reproduced above provisions of Section 42 (3) of the Act. As pointed out above, Section 42 of the Act deals with the duties of distribution licensee and open access. Sub-Section (1) thereof provides that it shall be the duty of a distribution licensee to develop and maintain an efficient co-ordinated and economical distribution system in his area of supply and to supply electricity in accordance with the provisions contained in the Act. Sub-section (2) casts an obligation upon the State Commission to introduce open access in phases and subject to such conditions, as may be specified, these conditions may include the cross subsidies and other operational constraints. It is thereafter in sub-section (3) of Section 42 provision is made for wheeling of electricity with respect to supply stating that duties of distribution licensee shall be of a common carrier providing non-discriminatory open access. Thus sub-section (3) provides for open access and casts a duty upon the distribution licensee in this behalf. Here, it excludes local authority, as distributor of electricity from such an obligation. However, when it comes to the duty of distribution licensee to supply the electricity under section 43, it mandates that same is to be given to the owner or occupier of any premises on his application within one month from the receipt of the said application. This duty under Section 43 imposed upon a distribution licensee does not distinguish between a local authority and other distribution licensee. It is also not a case of the appellant that in a particular area where a local authority is a distribution licensee, there cannot be any other distribution licensee at all.21. Thus, on a conjoint reading of Sections 42 and 43 of the Act along with the objectives and purpose for which Act 2003 is enacted, it becomes clear that there are two ways in which a consumer stated in a particular area can avail supply of electricity, as pointed out by the learned senior counsel for TPC and noted above. When an application is made by a consumer to a distribution licensee for supply of electricity, such a distribution licensee for supply of electricity, such a distribution licensee can request other distribution licensee in the area to provide it network to make available for wheeling electricity to such consumers and this open access is to be given as per the provisions of section 42 (3) of the Act. It is here only that local authority is exempted from such an obligation and may refuse to provide makes it network available. Second option is, under section 43 of the Act, to provide the electricity to the consumer by the distribution licensee from its own network. Therefore, if in a particular area local authority has its network and it does not permit wheeling of electricity from by making available its network, the other distribution licensee will have to provide the electricity from its own network. For this purpose, if it is not having its network, it will have to lay down its network if it requires in order to supply electricity to a consumer seeking supply.22. This interpretation of ours is in consonance of the objective and purpose of the Act. The aforesaid objective is further clarified by the Tariff Policy and the National Electricity Policy under section 3 of the Act which emphasized the need for efficiency and competition in the distribution business. On going through the statement of objects and reasons contained in the new Act, the interpretation, which we are leading to, gets further facilitated. Prior to this Act, there were three Acts, namely of 1910, 1948 and 1998 which were governing the laws relating to electricity and were operating in the field. Within few years, it was felt that the three Acts of 1910, 1948 and 1998 which were operating in the field needed to be brought in a new self contained comprehensive legislation with the policy of encouraging private sector participation in generation, transmission and distribution and also the objectives of distancing the regulatory responsibilities from the Government and giving it to the Regulatory Commissions. With these objectives in mind the Electricity Act, 2003 has been enacted. Significant addition is the provisions for newer concepts like power trading and open access. Various features of the 2003 Act which are outlined in the statement of objects and reasons to this Act. Notably, generation is being delicensed and captive generation is being freely permitted. The Act makes provision for private transmission licensees. It now provides open access in transmission from the outset. While open access in transmission implies freedom to the licensee to procure power from any source of his choice, open access in distribution, with which we are concerned here, means freedom to the consumer to get supply from any source of his choice. The provision of open access to consumers ensures right of the consumer to get supply from a person other than the distribution licensee of his area of supply by using the distribution system of such distribution licensee.23. The concept of open access under the Act enables competing generating companies and trading licensees, besides the area distribution licensees, to sell electricity to consumers when open access in distribution is introduced by the State Electricity Regulatory Commissions. Supply by way of open access is a completely different regime as is also clear from the fact that consumers who have been allowed open access under Section 42 may enter into an agreement with any person for supply of electricity on such terms and conditions, including tariff, as may be agreed upon by them under Section 49 of the Act unlike consumers who take supply under section 43 of the Act.24. Once we read the provisions in the aforesaid manner, it becomes clear that there is no exemption from universal service obligation to any distribution licensee under the Act, on account of the presence of aas a distribution licensee in the particular area of supply, which is also reinforced by Paragraph 5.4.7 of the National Electricity Policy which clearly states that the second licensee in the same area shall have the obligation to supply to all consumers in accordance with Section 43. In this context, it is relevant to reproduce the following observations in Chandu Khamaru v. Nayan Malik reported in (2011) 12 SCCprovisions in the Electricity Act, 2003 make it amply clear that a distribution licensee has a statutory duty to supply electricity to an owner of occupier of any premises located in the area of supply of the distribution licensee, if such owner or occupier of the premises applies for it, and correspondingly every owner or occupier of any premises has a statutory right to apply for and obtain such electric supply from the distribution licensee.It is, therefore, difficult to accept the extreme position taken by the appellant that if local authority is a distribution licensee in a particular area, there cannot be any other distribution licensee in that area without the permission of such a local authority. Not only such a contention would negate the effect of universal supply obligation under Section 43, it will also amount to providing an exception which is not there either in Section 43 or Section 14 of the Act namely to treat local authority in special category and by giving it the benefit even that benefit which is not specified under the Act.26. It is trite that Court should lean in favour of an interpretation which subserves the objective of the Act namely the purposive interpretation. In Tata Power Co.Ltd. v. Reliance Energy Ltd. & Ors. (2008) 10 SCC 321 , this Court gave due recognition to objective behind the Act viz. to promote competition and give the consumer open to choose the distribution licensee from which it seeks electricity as is clear from the followingOn the other hand, in our view, the provisions of both the 1903 and 1910 Electricity Acts encourage competition in the electricity trade and the same is also incorporated in the licences issued in favour of the distribution licensees, which also include licensees generating power for supply. The element of competition has been included in the Preamble to the 2003 Act and permeates the same in its various provisions.103. As submitted by Mr Chagla, the Act is meant to be consumer-friendly and one of the objectives it sets out to achieve is to give the consumer an option to choose the distribution licensee from whom it wishes to receive supply of electrical energy. The intervention of MIDC, Marol Industries Association and the appeals filed by it, has obviously been made in thatMSR Leathers vs. S.Palaniappan & Anr. (2013) 1 SCC 177 it wasThat brings us to the question whether an offence punishable under Section 138 can be committed only once as held by this Court in Sadanandan case1. The holder of a cheque as seen earlier can present it before a bank any number of times within the period of six months or during the period of its validity, whichever is earlier. This right of the holder to present the cheque for encashment carries with it a corresponding obligation on the part of the drawer to ensure that the cheque drawn by him is honoured by the bank who stands in the capacity of an agent of the drawer vis-à-vis the holder of the cheque. If the holder of the cheque has a right, as indeed is in the unanimous opinion expressed in the decisions on the subject, there is no reason why the corresponding obligation of the drawer should also not continue every time the cheque is presented for encashment if it satisfies the requirements stipulated in clause (a) of the proviso to Section 138. There is nothing in that proviso to even remotely suggest that clause (a) would have no application to a cheque presented for the second time if the same has already been dishonoured once. Indeed if the legislative intent was to restrict prosecution only to cases arising out of the first dishonour of a cheque nothing prevented it from stipulating so in clause (a) itself. In the absence of any such provision a dishonour whether based on a second or any successive presentation of a cheque for encashment would be a dishonour within the meaning of Section 138 and clause (a) of the proviso thereto. We have, therefore, no manner of doubt that so long as the cheque remains unpaid it is the continuing obligation of the drawer to make good the same by either arranging the funds in the account on which the cheque is drawn or liquidating the liability otherwise. It is true that a dishonour of the cheque can be made a basis for prosecution of the offender but once, but that is far from saying that the holder of the cheque does not have the discretion to choose out of several such defaults, one default, on which to launch such a prosecution. The omission or the failure of the holder to institute prosecution does not, therefore, give any immunity to the drawer so long as the cheque is dishonoured within its validity period and the conditions precedent for prosecution in terms of the proviso to Section 138 aredealing with the issue No.2 above, we have already held that TPC and BEST are parallel distribution licensee in the South Bombay Area.27. The appellant has sought to rely on the expressionas otherwise provided in thisin Section 43(1) of the Act to read into Section 43(1) the exception for local authorities provided for in Section 42(3). The TPC has successfully refuted this submission by pointing out that these words in Section 43(1) are required to be read in the context in which they appear. The said words were inserted in the section by way of an amendment to the Act in 2007. Anto Section 43(1) was also added by the same amendment providing thatby a consumer in Section 43(1) means an application complete in all respects along with documents showing payment of necessary charges and other compliances, meaning thereby that the obligation of the distribution licensee to supply within the specified time period will begin only after it has received such completed application by the applicant. Further, Sections 45 and 46 provide for the distributionpowers to recover charges for electricity supplied and the expenditure incurred in providing electric line or plant for giving supply. Section 47 provides that the distribution licensee may require any person demanding electricity supply from him to give a reasonable security, failing which the distribution licensee may refuse to give supply of electricity to such consumer. We are of the opinion that it is in this context that the expressions otherwise provided in thisin Section 43 (1) is to be | 0 | 7,824 | 3,413 | ### 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:
gave due recognition to objective behind the Act viz. to promote competition and give the consumer open to choose the distribution licensee from which it seeks electricity as is clear from the following paragraphs: 102. On the other hand, in our view, the provisions of both the 1903 and 1910 Electricity Acts encourage competition in the electricity trade and the same is also incorporated in the licences issued in favour of the distribution licensees, which also include licensees generating power for supply. The element of competition has been included in the Preamble to the 2003 Act and permeates the same in its various provisions.103. As submitted by Mr Chagla, the Act is meant to be consumer-friendly and one of the objectives it sets out to achieve is to give the consumer an option to choose the distribution licensee from whom it wishes to receive supply of electrical energy. The intervention of MIDC, Marol Industries Association and the appeals filed by it, has obviously been made in that context. In MSR Leathers vs. S.Palaniappan & Anr. (2013) 1 SCC 177 it was observed: “24. That brings us to the question whether an offence punishable under Section 138 can be committed only once as held by this Court in Sadanandan case1. The holder of a cheque as seen earlier can present it before a bank any number of times within the period of six months or during the period of its validity, whichever is earlier. This right of the holder to present the cheque for encashment carries with it a corresponding obligation on the part of the drawer to ensure that the cheque drawn by him is honoured by the bank who stands in the capacity of an agent of the drawer vis-à-vis the holder of the cheque. If the holder of the cheque has a right, as indeed is in the unanimous opinion expressed in the decisions on the subject, there is no reason why the corresponding obligation of the drawer should also not continue every time the cheque is presented for encashment if it satisfies the requirements stipulated in clause (a) of the proviso to Section 138. There is nothing in that proviso to even remotely suggest that clause (a) would have no application to a cheque presented for the second time if the same has already been dishonoured once. Indeed if the legislative intent was to restrict prosecution only to cases arising out of the first dishonour of a cheque nothing prevented it from stipulating so in clause (a) itself. In the absence of any such provision a dishonour whether based on a second or any successive presentation of a cheque for encashment would be a dishonour within the meaning of Section 138 and clause (a) of the proviso thereto. We have, therefore, no manner of doubt that so long as the cheque remains unpaid it is the continuing obligation of the drawer to make good the same by either arranging the funds in the account on which the cheque is drawn or liquidating the liability otherwise. It is true that a dishonour of the cheque can be made a basis for prosecution of the offender but once, but that is far from saying that the holder of the cheque does not have the discretion to choose out of several such defaults, one default, on which to launch such a prosecution. The omission or the failure of the holder to institute prosecution does not, therefore, give any immunity to the drawer so long as the cheque is dishonoured within its validity period and the conditions precedent for prosecution in terms of the proviso to Section 138 are satisfied.” While dealing with the issue No.2 above, we have already held that TPC and BEST are parallel distribution licensee in the South Bombay Area.27. The appellant has sought to rely on the expression “Save as otherwise provided in this Act” in Section 43(1) of the Act to read into Section 43(1) the exception for local authorities provided for in Section 42(3). The TPC has successfully refuted this submission by pointing out that these words in Section 43(1) are required to be read in the context in which they appear. The said words were inserted in the section by way of an amendment to the Act in 2007. An “Explanation” to Section 43(1) was also added by the same amendment providing that “application” by a consumer in Section 43(1) means an application complete in all respects along with documents showing payment of necessary charges and other compliances, meaning thereby that the obligation of the distribution licensee to supply within the specified time period will begin only after it has received such completed application by the applicant. Further, Sections 45 and 46 provide for the distribution licensee’s powers to recover charges for electricity supplied and the expenditure incurred in providing electric line or plant for giving supply. Section 47 provides that the distribution licensee may require any person demanding electricity supply from him to give a reasonable security, failing which the distribution licensee may refuse to give supply of electricity to such consumer. We are of the opinion that it is in this context that the expression “save as otherwise provided in this Act” in Section 43 (1) is to be construed. 28. Before we part with we would like to make it clear that there is a dispute between TPC and R-infra) (respondent No.9) which is the subject matter of Civil Appeal Nos. 4667-68/2013. R Infra is a distribution licensee in suburban Bombay where TPC is also a licensee. Both supply electricity to different consumers. Dispute is between them with regard to cross subsidiary surcharge (CSS) payable by consumer taking supply from TPC or R Infra network. We make it clear, by way of abundant caution, that we have not touched upon the said dispute and obviously so as even otherwise the subject matter in the instance case is totally different. Therefore Civil Appeal Nos.4667-68/2013 shall be decided on its own merits.
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the distribution licensee.It is, therefore, difficult to accept the extreme position taken by the appellant that if local authority is a distribution licensee in a particular area, there cannot be any other distribution licensee in that area without the permission of such a local authority. Not only such a contention would negate the effect of universal supply obligation under Section 43, it will also amount to providing an exception which is not there either in Section 43 or Section 14 of the Act namely to treat local authority in special category and by giving it the benefit even that benefit which is not specified under the Act.26. It is trite that Court should lean in favour of an interpretation which subserves the objective of the Act namely the purposive interpretation. In Tata Power Co.Ltd. v. Reliance Energy Ltd. & Ors. (2008) 10 SCC 321 , this Court gave due recognition to objective behind the Act viz. to promote competition and give the consumer open to choose the distribution licensee from which it seeks electricity as is clear from the followingOn the other hand, in our view, the provisions of both the 1903 and 1910 Electricity Acts encourage competition in the electricity trade and the same is also incorporated in the licences issued in favour of the distribution licensees, which also include licensees generating power for supply. The element of competition has been included in the Preamble to the 2003 Act and permeates the same in its various provisions.103. As submitted by Mr Chagla, the Act is meant to be consumer-friendly and one of the objectives it sets out to achieve is to give the consumer an option to choose the distribution licensee from whom it wishes to receive supply of electrical energy. The intervention of MIDC, Marol Industries Association and the appeals filed by it, has obviously been made in thatMSR Leathers vs. S.Palaniappan & Anr. (2013) 1 SCC 177 it wasThat brings us to the question whether an offence punishable under Section 138 can be committed only once as held by this Court in Sadanandan case1. The holder of a cheque as seen earlier can present it before a bank any number of times within the period of six months or during the period of its validity, whichever is earlier. This right of the holder to present the cheque for encashment carries with it a corresponding obligation on the part of the drawer to ensure that the cheque drawn by him is honoured by the bank who stands in the capacity of an agent of the drawer vis-à-vis the holder of the cheque. If the holder of the cheque has a right, as indeed is in the unanimous opinion expressed in the decisions on the subject, there is no reason why the corresponding obligation of the drawer should also not continue every time the cheque is presented for encashment if it satisfies the requirements stipulated in clause (a) of the proviso to Section 138. There is nothing in that proviso to even remotely suggest that clause (a) would have no application to a cheque presented for the second time if the same has already been dishonoured once. Indeed if the legislative intent was to restrict prosecution only to cases arising out of the first dishonour of a cheque nothing prevented it from stipulating so in clause (a) itself. In the absence of any such provision a dishonour whether based on a second or any successive presentation of a cheque for encashment would be a dishonour within the meaning of Section 138 and clause (a) of the proviso thereto. We have, therefore, no manner of doubt that so long as the cheque remains unpaid it is the continuing obligation of the drawer to make good the same by either arranging the funds in the account on which the cheque is drawn or liquidating the liability otherwise. It is true that a dishonour of the cheque can be made a basis for prosecution of the offender but once, but that is far from saying that the holder of the cheque does not have the discretion to choose out of several such defaults, one default, on which to launch such a prosecution. The omission or the failure of the holder to institute prosecution does not, therefore, give any immunity to the drawer so long as the cheque is dishonoured within its validity period and the conditions precedent for prosecution in terms of the proviso to Section 138 aredealing with the issue No.2 above, we have already held that TPC and BEST are parallel distribution licensee in the South Bombay Area.27. The appellant has sought to rely on the expressionas otherwise provided in thisin Section 43(1) of the Act to read into Section 43(1) the exception for local authorities provided for in Section 42(3). The TPC has successfully refuted this submission by pointing out that these words in Section 43(1) are required to be read in the context in which they appear. The said words were inserted in the section by way of an amendment to the Act in 2007. Anto Section 43(1) was also added by the same amendment providing thatby a consumer in Section 43(1) means an application complete in all respects along with documents showing payment of necessary charges and other compliances, meaning thereby that the obligation of the distribution licensee to supply within the specified time period will begin only after it has received such completed application by the applicant. Further, Sections 45 and 46 provide for the distributionpowers to recover charges for electricity supplied and the expenditure incurred in providing electric line or plant for giving supply. Section 47 provides that the distribution licensee may require any person demanding electricity supply from him to give a reasonable security, failing which the distribution licensee may refuse to give supply of electricity to such consumer. We are of the opinion that it is in this context that the expressions otherwise provided in thisin Section 43 (1) is to be
|
Samnuggur Jute Factory Company, Limited Vs. Their Workmen | been justified in confining its attention to the evidence led before it. That is in fact what the tribunal has done in a part of its judgment. Now this evidence consists of the testimony of three witnesses. Ramrachha himself gave evidence and Tewari purported to support it. It is true as Sri Setalvad has pointed out that Ramrachha has gone back upon his previous statement, that he had received the money within the premises of the factory. In his evidence before the tribunal, he has stated that the money was paid to him by mainuddin at his own place. Tewari also attempts to support Ramrachha in that part of the case. Ramrachha however has stated that he had advanced money to Mainuddin along with four other durwans and it was that loan which was repaid by Mainuddin. Though Tewari supported Ramrachha in a part of his case, he did not agree that he had advanced any money to Mainuddin. That is the state of the evidence adduced on behalf of Ramrachha. Then we have the evidence of Ukil. Ukil was told that some scuffle had taken place and on that he went to the rear side of godown 1. On reaching that place, he found that Mainuddin had been caught by Kesoram. He also noticed that four durwans including Ramrachha were also there and they were sitting. On enquiry the witness was told by Mainuddin that all his money had already been taken away by Ramrachha and that he was about to come to the witness to lodging a complaint. Then Ukil told Ramrachha to return the money to Mainuddin and the money was accordingly returned. In his cross-examination the witness has attempted to improve his story by adding that when he reached the spot he heard Mainuddin crying and shouting that everything of him has been snatched away. That is the evidence adduced on behalf of the appellant. Now it is clear that the evidence given by Ukil can hardly justify Sri Setalvads contention that either of the two charges framed against Ramrachha had been proved. Ukil was not present when money passed hands and so it would not be possible to treat his evidence as establishing the fact that Mainuddin had been robbed of his money and that it doing so, Ramrachha and his companions were guilty of riotous conduct. It is true that the witness had referred to the fact that Mainuddin was crying and shouting but considering the way in which this detail has been introduced in cross-examination, we are not prepared to attach any value to that evidence.It has also been shown that the other durwan who gave evidence denied that he had advanced any money. But the tribunal has pointed out and we think rightly that the said denial would not really assist the appellants case, because Tewari would very much like to support the appellants version in the present proceedings. It is somewhat remarkable that though four durwans were involved in the incident along with Ramrachha, Ramrachha alone has been proceeded against in this drastic way. A charge was framed against another durwan and he was suspended of four days; he was then reprimanded and taken back in service. Therefore, as the tribunal has observed, it is not surprising that the other durwans would not be too keen in supporting the case of Ramrachha. In our opinion, therefore, the tribunal was right in holding that the appellants case against Ramrachha had not been proved.5. Sri Setalvad, however, contends that if we read Cl. 14(c) (xv) of the standing orders, the case against Ramrachha must be held to be proved. He argues that the said clause prohibits the collection of moneys within the mill premises during working hours for purposes not sanctioned by the management. And he has invited our attention to the fact that notice had been put up on the notice-board by the appellant prohibiting employees from advancing loans to co-employees within the premises of the factory. The argument is that if this clause in the standing orders is read in the light of the circulars, it would cover the case of a receipt by Ramrachha of the loan advanced by him to Mainuddin. We do not think that we can accept this contention. The collection of moneys within the mill premises to which the clause refers must be collection made by the person who collects them; if a debtor makes over to his co-employee and returns some amount received by him by way of loan of his own account, we do not think that this conduct could be brought within the mischief of the relevant clause of the standing orders. It whilst collecting moneys force had been used and Mainuddin had been compelled to part with money, that might have been another matter. Therefore, on the facts proved in this case, we do not think that the case of Ramrachha can be legitimately brought within the purview of Cl. 14(c)(xv) of the standing orders.Sri Setalvad has then pressed us to consider the question as to whether it would be expedient to direct reinstatement of Ramrachha. As we have repeatedly, held, in cases where it is shown that an industrial employee has been improperly dismissed, as a general has been improperly dismissed, as a general rule he is entitled to claim reinstatement. There may however be cases in which industrial adjudication may take the view that if the case presents certain unusual features reinstatement may not be granted and compensation instead may meet the ends of justice. We do not think that the present case falls in this latter category. It is true that the incident book place in 1955 and we are dealing with this appeal today. But for the delay made in the present case, the blame must substantially be shared by the appellant itself. Therefore we are not impressed by the argument that instead of ordering reinstatement of Ramrachha some compensation should be ordered to be paid to him. | 0[ds]d, if the industrial tribunal deals with the question of the validity of the dismissal of an industrial employee and it a appears that the dismissal was the result of a domestic enquiry, fairly and properly held, the jurisdiction of the tribunal is limited. The award delivered by the tribunal in the present case shows a somewhat combined approach. It examined the evidence for itself and it also observed in two or three places that it was not sitting as a Court of appeal over the domestic enquiry. In our opinion, the tribunal need not have adopted this halting approach in the present case, because, as we have recently held, if at the end of the domestic enquiry the inquiring officer does not make a report, that itself introduces a serious infirmity in the enquiry and the industrial can in that case ignore the domestic enquiry and deal with the merits of the dispute for itself. Therefore it must be said that in the present case when the tribunal took the view that it should not deal with the matter as a Court of appeal, it was really limiting its jurisdiction unduly. As the tribunal has adopted a somewhat mixed approach, we have heard Sri Setalvad at length in support of his contention that the tribunal was in error in ordering the reinstatement of Ramrachha.As we have just indicated, the dispute between the parties lies within a very narrow compass. Since the report made by Mr. Jacks has not been produced and it may well be that no report was made, the evidence produced before Mr. Jacks would serve no purpose in the present enquiry and the tribunal would therefore have been justified in confining its attention to the evidence led before it. That is in fact what the tribunal has done in a part of its judgment. Now this evidence consists of the testimony of three witnesses. Ramrachha himself gave evidence and Tewari purported to support it. It is true as Sri Setalvad has pointed out that Ramrachha has gone back upon his previous statement, that he had received the money within the premises of the factory. In his evidence before the tribunal, he has stated that the money was paid to him by mainuddin at his own place. Tewari also attempts to support Ramrachha in that part of the case. Ramrachha however has stated that he had advanced money to Mainuddin along with four other durwans and it was that loan which was repaid by Mainuddin. Though Tewari supported Ramrachha in a part of his case, he did not agree that he had advanced any money to Mainuddin. That is the state of the evidence adduced on behalf of Ramrachha. Then we have the evidence of Ukil. Ukil was told that some scuffle had taken place and on that he went to the rear side of godown 1. On reaching that place, he found that Mainuddin had been caught by Kesoram. He also noticed that four durwans including Ramrachha were also there and they were sitting. On enquiry the witness was told by Mainuddin that all his money had already been taken away by Ramrachha and that he was about to come to the witness to lodging a complaint. Then Ukil told Ramrachha to return the money to Mainuddin and the money was accordingly returned. In histhe witness has attempted to improve his story by adding that when he reached the spot he heard Mainuddin crying and shouting that everything of him has been snatched away. That is the evidence adduced on behalf of the appellant. Now it is clear that the evidence given by Ukil can hardly justify Sri Setalvads contention that either of the two charges framed against Ramrachha had been proved. Ukil was not present when money passed hands and so it would not be possible to treat his evidence as establishing the fact that Mainuddin had been robbed of his money and that it doing so, Ramrachha and his companions were guilty of riotous conduct. It is true that the witness had referred to the fact that Mainuddin was crying and shouting but considering the way in which this detail has been introduced inwe are not prepared to attach any value to that evidence.It has also been shown that the other durwan who gave evidence denied that he had advanced any money. But the tribunal has pointed out and we think rightly that the said denial would not really assist the appellants case, because Tewari would very much like to support the appellants version in the present proceedings. It is somewhat remarkable that though four durwans were involved in the incident along with Ramrachha, Ramrachha alone has been proceeded against in this drastic way. A charge was framed against another durwan and he was suspended of four days; he was then reprimanded and taken back in service. Therefore, as the tribunal has observed, it is not surprising that the other durwans would not be too keen in supporting the case of Ramrachha. In our opinion, therefore, the tribunal was right in holding that the appellants case against Ramrachha had not been proved.5.Sri Setalvad, however, contends that if we read Cl. 14(c) (xv) of the standing orders, the case against Ramrachha must be held to be proved. He argues that the said clause prohibits the collection of moneys within the mill premises during working hours for purposes not sanctioned by the management. And he has invited our attention to the fact that notice had been put up on theby the appellant prohibiting employees from advancing loans towithin the premises of the factory. The argument is that if this clause in the standing orders is read in the light of the circulars, it would cover the case of a receipt by Ramrachha of the loan advanced by him to Mainuddin.We do not think that we can accept this contention. The collection of moneys within the mill premises to which the clause refers must be collection made by the person who collects them; if a debtor makes over to hisand returns some amount received by him by way of loan of his own account, we do not think that this conduct could be brought within the mischief of the relevant clause of the standing orders. It whilst collecting moneys force had been used and Mainuddin had been compelled to part with money, that might have been another matter. Therefore, on the facts proved in this case, we do not think that the case of Ramrachha can be legitimately brought within the purview of Cl. 14(c)(xv) of the standing orders.Sri Setalvad has then pressed us to consider the question as to whether it would be expedient to direct reinstatement of Ramrachha. As we have repeatedly, held, in cases where it is shown that an industrial employee has been improperly dismissed, as a general has been improperly dismissed, as a general rule he is entitled to claim reinstatement. There may however be cases in which industrial adjudication may take the view that if the case presents certain unusual features reinstatement may not be granted and compensation instead may meet the ends of justice. We do not think that the present case falls in this latter category. It is true that the incident book place in 1955 and we are dealing with this appeal today. But for the delay made in the present case, the blame must substantially be shared by the appellant itself. Therefore we are not impressed by the argument that instead of ordering reinstatement of Ramrachha some compensation should be ordered to be paid to him. | 0 | 2,386 | 1,368 | ### 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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been justified in confining its attention to the evidence led before it. That is in fact what the tribunal has done in a part of its judgment. Now this evidence consists of the testimony of three witnesses. Ramrachha himself gave evidence and Tewari purported to support it. It is true as Sri Setalvad has pointed out that Ramrachha has gone back upon his previous statement, that he had received the money within the premises of the factory. In his evidence before the tribunal, he has stated that the money was paid to him by mainuddin at his own place. Tewari also attempts to support Ramrachha in that part of the case. Ramrachha however has stated that he had advanced money to Mainuddin along with four other durwans and it was that loan which was repaid by Mainuddin. Though Tewari supported Ramrachha in a part of his case, he did not agree that he had advanced any money to Mainuddin. That is the state of the evidence adduced on behalf of Ramrachha. Then we have the evidence of Ukil. Ukil was told that some scuffle had taken place and on that he went to the rear side of godown 1. On reaching that place, he found that Mainuddin had been caught by Kesoram. He also noticed that four durwans including Ramrachha were also there and they were sitting. On enquiry the witness was told by Mainuddin that all his money had already been taken away by Ramrachha and that he was about to come to the witness to lodging a complaint. Then Ukil told Ramrachha to return the money to Mainuddin and the money was accordingly returned. In his cross-examination the witness has attempted to improve his story by adding that when he reached the spot he heard Mainuddin crying and shouting that everything of him has been snatched away. That is the evidence adduced on behalf of the appellant. Now it is clear that the evidence given by Ukil can hardly justify Sri Setalvads contention that either of the two charges framed against Ramrachha had been proved. Ukil was not present when money passed hands and so it would not be possible to treat his evidence as establishing the fact that Mainuddin had been robbed of his money and that it doing so, Ramrachha and his companions were guilty of riotous conduct. It is true that the witness had referred to the fact that Mainuddin was crying and shouting but considering the way in which this detail has been introduced in cross-examination, we are not prepared to attach any value to that evidence.It has also been shown that the other durwan who gave evidence denied that he had advanced any money. But the tribunal has pointed out and we think rightly that the said denial would not really assist the appellants case, because Tewari would very much like to support the appellants version in the present proceedings. It is somewhat remarkable that though four durwans were involved in the incident along with Ramrachha, Ramrachha alone has been proceeded against in this drastic way. A charge was framed against another durwan and he was suspended of four days; he was then reprimanded and taken back in service. Therefore, as the tribunal has observed, it is not surprising that the other durwans would not be too keen in supporting the case of Ramrachha. In our opinion, therefore, the tribunal was right in holding that the appellants case against Ramrachha had not been proved.5. Sri Setalvad, however, contends that if we read Cl. 14(c) (xv) of the standing orders, the case against Ramrachha must be held to be proved. He argues that the said clause prohibits the collection of moneys within the mill premises during working hours for purposes not sanctioned by the management. And he has invited our attention to the fact that notice had been put up on the notice-board by the appellant prohibiting employees from advancing loans to co-employees within the premises of the factory. The argument is that if this clause in the standing orders is read in the light of the circulars, it would cover the case of a receipt by Ramrachha of the loan advanced by him to Mainuddin. We do not think that we can accept this contention. The collection of moneys within the mill premises to which the clause refers must be collection made by the person who collects them; if a debtor makes over to his co-employee and returns some amount received by him by way of loan of his own account, we do not think that this conduct could be brought within the mischief of the relevant clause of the standing orders. It whilst collecting moneys force had been used and Mainuddin had been compelled to part with money, that might have been another matter. Therefore, on the facts proved in this case, we do not think that the case of Ramrachha can be legitimately brought within the purview of Cl. 14(c)(xv) of the standing orders.Sri Setalvad has then pressed us to consider the question as to whether it would be expedient to direct reinstatement of Ramrachha. As we have repeatedly, held, in cases where it is shown that an industrial employee has been improperly dismissed, as a general has been improperly dismissed, as a general rule he is entitled to claim reinstatement. There may however be cases in which industrial adjudication may take the view that if the case presents certain unusual features reinstatement may not be granted and compensation instead may meet the ends of justice. We do not think that the present case falls in this latter category. It is true that the incident book place in 1955 and we are dealing with this appeal today. But for the delay made in the present case, the blame must substantially be shared by the appellant itself. Therefore we are not impressed by the argument that instead of ordering reinstatement of Ramrachha some compensation should be ordered to be paid to him.
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### Explanation:
no purpose in the present enquiry and the tribunal would therefore have been justified in confining its attention to the evidence led before it. That is in fact what the tribunal has done in a part of its judgment. Now this evidence consists of the testimony of three witnesses. Ramrachha himself gave evidence and Tewari purported to support it. It is true as Sri Setalvad has pointed out that Ramrachha has gone back upon his previous statement, that he had received the money within the premises of the factory. In his evidence before the tribunal, he has stated that the money was paid to him by mainuddin at his own place. Tewari also attempts to support Ramrachha in that part of the case. Ramrachha however has stated that he had advanced money to Mainuddin along with four other durwans and it was that loan which was repaid by Mainuddin. Though Tewari supported Ramrachha in a part of his case, he did not agree that he had advanced any money to Mainuddin. That is the state of the evidence adduced on behalf of Ramrachha. Then we have the evidence of Ukil. Ukil was told that some scuffle had taken place and on that he went to the rear side of godown 1. On reaching that place, he found that Mainuddin had been caught by Kesoram. He also noticed that four durwans including Ramrachha were also there and they were sitting. On enquiry the witness was told by Mainuddin that all his money had already been taken away by Ramrachha and that he was about to come to the witness to lodging a complaint. Then Ukil told Ramrachha to return the money to Mainuddin and the money was accordingly returned. In histhe witness has attempted to improve his story by adding that when he reached the spot he heard Mainuddin crying and shouting that everything of him has been snatched away. That is the evidence adduced on behalf of the appellant. Now it is clear that the evidence given by Ukil can hardly justify Sri Setalvads contention that either of the two charges framed against Ramrachha had been proved. Ukil was not present when money passed hands and so it would not be possible to treat his evidence as establishing the fact that Mainuddin had been robbed of his money and that it doing so, Ramrachha and his companions were guilty of riotous conduct. It is true that the witness had referred to the fact that Mainuddin was crying and shouting but considering the way in which this detail has been introduced inwe are not prepared to attach any value to that evidence.It has also been shown that the other durwan who gave evidence denied that he had advanced any money. But the tribunal has pointed out and we think rightly that the said denial would not really assist the appellants case, because Tewari would very much like to support the appellants version in the present proceedings. It is somewhat remarkable that though four durwans were involved in the incident along with Ramrachha, Ramrachha alone has been proceeded against in this drastic way. A charge was framed against another durwan and he was suspended of four days; he was then reprimanded and taken back in service. Therefore, as the tribunal has observed, it is not surprising that the other durwans would not be too keen in supporting the case of Ramrachha. In our opinion, therefore, the tribunal was right in holding that the appellants case against Ramrachha had not been proved.5.Sri Setalvad, however, contends that if we read Cl. 14(c) (xv) of the standing orders, the case against Ramrachha must be held to be proved. He argues that the said clause prohibits the collection of moneys within the mill premises during working hours for purposes not sanctioned by the management. And he has invited our attention to the fact that notice had been put up on theby the appellant prohibiting employees from advancing loans towithin the premises of the factory. The argument is that if this clause in the standing orders is read in the light of the circulars, it would cover the case of a receipt by Ramrachha of the loan advanced by him to Mainuddin.We do not think that we can accept this contention. The collection of moneys within the mill premises to which the clause refers must be collection made by the person who collects them; if a debtor makes over to hisand returns some amount received by him by way of loan of his own account, we do not think that this conduct could be brought within the mischief of the relevant clause of the standing orders. It whilst collecting moneys force had been used and Mainuddin had been compelled to part with money, that might have been another matter. Therefore, on the facts proved in this case, we do not think that the case of Ramrachha can be legitimately brought within the purview of Cl. 14(c)(xv) of the standing orders.Sri Setalvad has then pressed us to consider the question as to whether it would be expedient to direct reinstatement of Ramrachha. As we have repeatedly, held, in cases where it is shown that an industrial employee has been improperly dismissed, as a general has been improperly dismissed, as a general rule he is entitled to claim reinstatement. There may however be cases in which industrial adjudication may take the view that if the case presents certain unusual features reinstatement may not be granted and compensation instead may meet the ends of justice. We do not think that the present case falls in this latter category. It is true that the incident book place in 1955 and we are dealing with this appeal today. But for the delay made in the present case, the blame must substantially be shared by the appellant itself. Therefore we are not impressed by the argument that instead of ordering reinstatement of Ramrachha some compensation should be ordered to be paid to him.
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Budge Budge Jute Mills Co. Ltd Vs. The Workmen and Ors | department of the mill was 31 tons of yarn but yarn produced on 31 July, 1961 came to only 11 tons, and on 1 August, 1961 it was only 5 tons. We, however, find considerable difficulty in relying on these figures firstly, because the permanent workmen of the mills had not gone on strike and were attending and working in the mills and therefore those is the spinning department must have worked, and secondly, according to the evidence of the labour officer of those mills, out of 1, 500 total permanent posts, 1, 250 were permanent workmen, and therefore, the mills depended on 250 badli workmen only all of whom could not have been working in the spinning department so that their absence would result in failure of production of yarn Further the statement Ex. A. 13 shows that on a normal working day the spinning department employed only 35 36, 34 and 16 badlis in shifts A, B, C and the general shift. If the Caledonian Jute Mills required only 250 badlis throughout all the departments, it is difficult to appreciate how there could be a total collapse in the spinning department so as to make the working of the weaving and other departments impossible.15. The position in the Budge Budge Mills as on 5 August, 1961, as appearing from the mill-managers statement, Ex. A. 2(10), was that on a normal day they had 882 looms working, that on 5 August, 1961 the mills worked 478 looms and that with 882 looms working i.e. their entire complement, they would require 49, 430 lbs. of yarn. The mills, however, had 28, 350 lbs. of yarn only in stock, there being thus a deficiency of 21, 080 lb. The position in Cheviet Mills was that their normal requirement was 35, 957 lb. of yarn but the production on 30 July, 1961 came to 20, 400 lb. only with result that there was a deficit of 15, 557 lb., i.e. approximately 30 per cent.16. Even if the figures given by the three mills is to be correct, though in the case of Caledonian Mills it is difficult, as aforesaid, to reconcile them in the light of the evidence showing the requirement of only 250 non-permanent workmen out of the total of 1, 500 workmen, the question still is whether these mills could have continued to work despite the absence of badli workmen. Except giving a few figures in respect of certain days picked out by the mill-managers, the mills did not place full and detailed particulars which could satisfy the tribunal that they were reduced to such a position that their working became inevitably impossible. As already stated, it was not the case of any one of these three mills that their permanent workmen stopped work. Indeed, the position was that they continued to attend the mills till their stoppage by the managements forced on them compulsory absence. The question necessarily arising in ones mind is whether with a large percentage of permanent workmen amongst the total personnel required by the mills, could not the mills have worked on a reduced number of looms so as to carry on with such quantity of yarn which could be produced by the permanent workmen in the spinning department. And, instead of closing the mills, as the management of Budge Budge Mills did on 6 August, 1961 and the managements of the other two mills on other days, why could not the mills have continued the work on a scale reduced to the extent necessitated by the refusal of the badli workmen to work ? In this connexion it must be noted that it could not be as if all the badli workmen were engaged in the spinning department so that their absence would bring about a total collapse of that and the other departments doing subsequent series of manufacturing processes. As the statement of Caledonian Mills illustrates, the mills required only 250 badlis spread over all their departments. It is impossible to believe that the badlis in spinning department by remaining absent could have brought about a total halt of the mills so that even the permanent workmen could not be allowed to work. With the small percentage of badli workmen as compared to the number of the permanent workmen it is difficult to appreciate why even with reduced production of yarn the mills could not have worked on a reduced scale, working a lesser number of looms.17. None of the eight mills attempted to demonstrate before the tribunal that such a course was not feasible. The position, it seems, was that on the badli workmen refusing to attend to the work, the managements asked the permanent workmen to persuade the badlis to join work, and on the former showing indifference to their request, the managements in a huff closed the mills. In these circumstances it is difficult to say that the mills were able to justify their action or to convince the tribunal that their closure was so inevitable that the permanent workmen could be refused the relief they claimed.18. Counsel for the mills then argued that even if that was the true position, the tribunal in any event could not have awarded payment to the workmen for the period from 3 September, 1961 when the managements were prepared to reopen the mills till 25 September, 1961 when the workmen actually resumed work. As already stated, neither the sirens nor the notices put up in the mills premises inviting the workmen to resume work on 3 September, 1961 could be said to be adequate or satisfactory notice to the workmen to resume work on that day. It is not the case of the mills that they have served notices either on the workmen individually or on the unions or the accredited representatives of the workmen. The tribunal, on these facts, could not have blamed the workmen for not resuming work on 3 September, 1961 or for their continued absence till 25 September, 1961. | 0[ds]6. It is common ground that the permanent workmen, at whose instance the present reference was made, were not concerned in the dispute between the badli workmen and the managements. They continued to work as usual until the mills were worked and remained absent only when they were closed so that it is impossible to place any responsibility on the permanent workmen for their closure or lockout, as the case may be. As regards the period from 2 to 25 September, 1961 the workman did not live either on the premises or in the vicinity of the mills. Some of them, indeed, lived even ten or more miles away, and therefore in the absence of a notice to the unions or the accredited leaders of the workmen, notices put up on the mills premises and the blowing of the sirens would not draw the attention of the workmen to the decision of the managements to reopen the mills on 3 September, 1961. Clearly, therefore, it was impossible to blame the workmen for remaining absent from 3 September, 1961 and onwards. They could and did resume work on 25 September, 1961 as a settlement had been arrived at between the managements and the unions under which it was agreed that the workmen should start work and the unions could notify to their members that they could at once resume work.We are no longer concerned with the controversy as to whether the managements action amounted to a closure or a lockout as counsel for the mills agreed that we should proceed on the footing that it was a lockout.10. It is an undisputed fact that the permanent workmen did not join bands with the badlis and continued to attend the mills until they were stopped by the managements. They were not, therefore, responsible for the mills alleged inability to continue to work. As already stated, the jute mills were expected to have 85 percent of their total labour to consist of permanent workmen and to have only 15 percent badli workmen.11. If the mills were to abide by the recommendation of the Central Wage Board referred to earlier and did in fact do so, their working would be affected to the extent of 15 per cent only were the badli workmen to refuse to accept work. Since all the 15 per cent badli workmen would not be concentrated in the spinning department, their refusal to accept work would affect the production of yarn in that department proportionately to the number of those 15 per cent engaged in that department. At the same time, the refusal of badlis to work would also affect the weaving department to the extent of their number there and to that extent of their number there and to that extent a reduced number of looms would be worked requiring to that extent reduced quantity of yarn. The same would be the position in other subsequent processes. Unless, therefore, all the 15 per cent of the badli workmen were concentrated in the spinning department only, it is difficult to appreciate the argument that the refusal by the badli workmen must necessarily result in the collapse of the working of thehowever, find considerable difficulty in relying on these figures firstly, because the permanent workmen of the mills had not gone on strike and were attending and working in the mills and therefore those is the spinning department must have worked, and secondly, according to the evidence of the labour officer of those mills, out of 1, 500 total permanent posts, 1, 250 were permanent workmen, and therefore, the mills depended on 250 badli workmen only all of whom could not have been working in the spinning department so that their absence would result in failure of production of yarn Further the statement Ex. A. 13 shows that on a normal working day the spinning department employed only 35 36, 34 and 16 badlis in shifts A, B, C and the general shift. If the Caledonian Jute Mills required only 250 badlis throughout all the departments, it is difficult to appreciate how there could be a total collapse in the spinning department so as to make the working of the weaving and other departments impossible.15. The position in the Budge Budge Mills as on 5 August, 1961, as appearing from thestatement, Ex. A. 2(10), was that on a normal day they had 882 looms working, that on 5 August, 1961 the mills worked 478 looms and that with 882 looms working i.e. their entire complement, they would require 49, 430 lbs. of yarn. The mills, however, had 28, 350 lbs. of yarn only in stock, there being thus a deficiency of 21, 080 lb. The position in Cheviet Mills was that their normal requirement was 35, 957 lb. of yarn but the production on 30 July, 1961 came to 20, 400 lb. only with result that there was a deficit of 15, 557 lb., i.e. approximately 30 per cent.16. Even if the figures given by the three mills is to be correct, though in the case of Caledonian Mills it is difficult, as aforesaid, to reconcile them in the light of the evidence showing the requirement of only 250workmen out of the total of 1, 500 workmen, the question still is whether these mills could have continued to work despite the absence of badli workmen. Except giving a few figures in respect of certain days picked out by thethe mills did not place full and detailed particulars which could satisfy the tribunal that they were reduced to such a position that their working became inevitably impossible. As already stated, it was not the case of any one of these three mills that their permanent workmen stopped work. Indeed, the position was that they continued to attend the mills till their stoppage by the managements forced on them compulsory absence. Thequestion necessarily arising in ones mind is whether with a large percentage of permanent workmen amongst the total personnel required by the mills, could not the mills have worked on a reduced number of looms so as to carry on with such quantity of yarn which could be produced by the permanent workmen in the spinning department. And, instead of closing the mills, as the management of Budge Budge Mills did on 6 August, 1961 and the managements of the other two mills on other days, why could not the mills have continued the work on a scale reduced to the extent necessitated by the refusal of the badli workmen to work ?In this connexion it must be noted that it could not be as if all the badli workmen were engaged in the spinning department so that their absence would bring about a total collapse of that and the other departments doing subsequent series of manufacturing processes. As the statement of Caledonian Mills illustrates, the mills required only 250 badlis spread over all their departments. It is impossible to believe that the badlis in spinning department by remaining absent could have brought about a total halt of the mills so that even the permanent workmen could not be allowed to work. With the small percentage of badli workmen as compared to the number of the permanent workmen it is difficult to appreciate why even with reduced production of yarn the mills could not have worked on a reduced scale, working a lesser number of looms.17. None of the eight mills attempted to demonstrate before the tribunal that such a course was not feasible. The position, it seems, was that on the badli workmen refusing to attend to the work, the managements asked the permanent workmen to persuade the badlis to join work, and on the former showing indifference to their request, the managements in a huff closed the mills. In these circumstances it is difficult to say that the mills were able to justify their action or to convince the tribunal that their closure was so inevitable that the permanent workmen could be refused the relief they claimed.As already stated, neither the sirens nor the notices put up in the mills premises inviting the workmen to resume work on 3 September, 1961 could be said to be adequate or satisfactory notice to the workmen to resume work on that day. It is not the case of the mills that they have served notices either on the workmen individually or on the unions or the accredited representatives of the workmen. The tribunal, on these facts, could not have blamed the workmen for not resuming work on 3 September, 1961 or for their continued absence till 25 September, 1961. | 0 | 3,729 | 1,566 | ### Instruction:
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department of the mill was 31 tons of yarn but yarn produced on 31 July, 1961 came to only 11 tons, and on 1 August, 1961 it was only 5 tons. We, however, find considerable difficulty in relying on these figures firstly, because the permanent workmen of the mills had not gone on strike and were attending and working in the mills and therefore those is the spinning department must have worked, and secondly, according to the evidence of the labour officer of those mills, out of 1, 500 total permanent posts, 1, 250 were permanent workmen, and therefore, the mills depended on 250 badli workmen only all of whom could not have been working in the spinning department so that their absence would result in failure of production of yarn Further the statement Ex. A. 13 shows that on a normal working day the spinning department employed only 35 36, 34 and 16 badlis in shifts A, B, C and the general shift. If the Caledonian Jute Mills required only 250 badlis throughout all the departments, it is difficult to appreciate how there could be a total collapse in the spinning department so as to make the working of the weaving and other departments impossible.15. The position in the Budge Budge Mills as on 5 August, 1961, as appearing from the mill-managers statement, Ex. A. 2(10), was that on a normal day they had 882 looms working, that on 5 August, 1961 the mills worked 478 looms and that with 882 looms working i.e. their entire complement, they would require 49, 430 lbs. of yarn. The mills, however, had 28, 350 lbs. of yarn only in stock, there being thus a deficiency of 21, 080 lb. The position in Cheviet Mills was that their normal requirement was 35, 957 lb. of yarn but the production on 30 July, 1961 came to 20, 400 lb. only with result that there was a deficit of 15, 557 lb., i.e. approximately 30 per cent.16. Even if the figures given by the three mills is to be correct, though in the case of Caledonian Mills it is difficult, as aforesaid, to reconcile them in the light of the evidence showing the requirement of only 250 non-permanent workmen out of the total of 1, 500 workmen, the question still is whether these mills could have continued to work despite the absence of badli workmen. Except giving a few figures in respect of certain days picked out by the mill-managers, the mills did not place full and detailed particulars which could satisfy the tribunal that they were reduced to such a position that their working became inevitably impossible. As already stated, it was not the case of any one of these three mills that their permanent workmen stopped work. Indeed, the position was that they continued to attend the mills till their stoppage by the managements forced on them compulsory absence. The question necessarily arising in ones mind is whether with a large percentage of permanent workmen amongst the total personnel required by the mills, could not the mills have worked on a reduced number of looms so as to carry on with such quantity of yarn which could be produced by the permanent workmen in the spinning department. And, instead of closing the mills, as the management of Budge Budge Mills did on 6 August, 1961 and the managements of the other two mills on other days, why could not the mills have continued the work on a scale reduced to the extent necessitated by the refusal of the badli workmen to work ? In this connexion it must be noted that it could not be as if all the badli workmen were engaged in the spinning department so that their absence would bring about a total collapse of that and the other departments doing subsequent series of manufacturing processes. As the statement of Caledonian Mills illustrates, the mills required only 250 badlis spread over all their departments. It is impossible to believe that the badlis in spinning department by remaining absent could have brought about a total halt of the mills so that even the permanent workmen could not be allowed to work. With the small percentage of badli workmen as compared to the number of the permanent workmen it is difficult to appreciate why even with reduced production of yarn the mills could not have worked on a reduced scale, working a lesser number of looms.17. None of the eight mills attempted to demonstrate before the tribunal that such a course was not feasible. The position, it seems, was that on the badli workmen refusing to attend to the work, the managements asked the permanent workmen to persuade the badlis to join work, and on the former showing indifference to their request, the managements in a huff closed the mills. In these circumstances it is difficult to say that the mills were able to justify their action or to convince the tribunal that their closure was so inevitable that the permanent workmen could be refused the relief they claimed.18. Counsel for the mills then argued that even if that was the true position, the tribunal in any event could not have awarded payment to the workmen for the period from 3 September, 1961 when the managements were prepared to reopen the mills till 25 September, 1961 when the workmen actually resumed work. As already stated, neither the sirens nor the notices put up in the mills premises inviting the workmen to resume work on 3 September, 1961 could be said to be adequate or satisfactory notice to the workmen to resume work on that day. It is not the case of the mills that they have served notices either on the workmen individually or on the unions or the accredited representatives of the workmen. The tribunal, on these facts, could not have blamed the workmen for not resuming work on 3 September, 1961 or for their continued absence till 25 September, 1961.
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work would also affect the weaving department to the extent of their number there and to that extent of their number there and to that extent a reduced number of looms would be worked requiring to that extent reduced quantity of yarn. The same would be the position in other subsequent processes. Unless, therefore, all the 15 per cent of the badli workmen were concentrated in the spinning department only, it is difficult to appreciate the argument that the refusal by the badli workmen must necessarily result in the collapse of the working of thehowever, find considerable difficulty in relying on these figures firstly, because the permanent workmen of the mills had not gone on strike and were attending and working in the mills and therefore those is the spinning department must have worked, and secondly, according to the evidence of the labour officer of those mills, out of 1, 500 total permanent posts, 1, 250 were permanent workmen, and therefore, the mills depended on 250 badli workmen only all of whom could not have been working in the spinning department so that their absence would result in failure of production of yarn Further the statement Ex. A. 13 shows that on a normal working day the spinning department employed only 35 36, 34 and 16 badlis in shifts A, B, C and the general shift. If the Caledonian Jute Mills required only 250 badlis throughout all the departments, it is difficult to appreciate how there could be a total collapse in the spinning department so as to make the working of the weaving and other departments impossible.15. The position in the Budge Budge Mills as on 5 August, 1961, as appearing from thestatement, Ex. A. 2(10), was that on a normal day they had 882 looms working, that on 5 August, 1961 the mills worked 478 looms and that with 882 looms working i.e. their entire complement, they would require 49, 430 lbs. of yarn. The mills, however, had 28, 350 lbs. of yarn only in stock, there being thus a deficiency of 21, 080 lb. The position in Cheviet Mills was that their normal requirement was 35, 957 lb. of yarn but the production on 30 July, 1961 came to 20, 400 lb. only with result that there was a deficit of 15, 557 lb., i.e. approximately 30 per cent.16. Even if the figures given by the three mills is to be correct, though in the case of Caledonian Mills it is difficult, as aforesaid, to reconcile them in the light of the evidence showing the requirement of only 250workmen out of the total of 1, 500 workmen, the question still is whether these mills could have continued to work despite the absence of badli workmen. Except giving a few figures in respect of certain days picked out by thethe mills did not place full and detailed particulars which could satisfy the tribunal that they were reduced to such a position that their working became inevitably impossible. As already stated, it was not the case of any one of these three mills that their permanent workmen stopped work. Indeed, the position was that they continued to attend the mills till their stoppage by the managements forced on them compulsory absence. Thequestion necessarily arising in ones mind is whether with a large percentage of permanent workmen amongst the total personnel required by the mills, could not the mills have worked on a reduced number of looms so as to carry on with such quantity of yarn which could be produced by the permanent workmen in the spinning department. And, instead of closing the mills, as the management of Budge Budge Mills did on 6 August, 1961 and the managements of the other two mills on other days, why could not the mills have continued the work on a scale reduced to the extent necessitated by the refusal of the badli workmen to work ?In this connexion it must be noted that it could not be as if all the badli workmen were engaged in the spinning department so that their absence would bring about a total collapse of that and the other departments doing subsequent series of manufacturing processes. As the statement of Caledonian Mills illustrates, the mills required only 250 badlis spread over all their departments. It is impossible to believe that the badlis in spinning department by remaining absent could have brought about a total halt of the mills so that even the permanent workmen could not be allowed to work. With the small percentage of badli workmen as compared to the number of the permanent workmen it is difficult to appreciate why even with reduced production of yarn the mills could not have worked on a reduced scale, working a lesser number of looms.17. None of the eight mills attempted to demonstrate before the tribunal that such a course was not feasible. The position, it seems, was that on the badli workmen refusing to attend to the work, the managements asked the permanent workmen to persuade the badlis to join work, and on the former showing indifference to their request, the managements in a huff closed the mills. In these circumstances it is difficult to say that the mills were able to justify their action or to convince the tribunal that their closure was so inevitable that the permanent workmen could be refused the relief they claimed.As already stated, neither the sirens nor the notices put up in the mills premises inviting the workmen to resume work on 3 September, 1961 could be said to be adequate or satisfactory notice to the workmen to resume work on that day. It is not the case of the mills that they have served notices either on the workmen individually or on the unions or the accredited representatives of the workmen. The tribunal, on these facts, could not have blamed the workmen for not resuming work on 3 September, 1961 or for their continued absence till 25 September, 1961.
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SAMAJ PARIVARTANA SAMUDAYA Vs. STATE OF KARNATAKA | I.A. No. 247 of 2015 in WP(C) No. 562 of 2009 [Application For Clarification/directions On Behalf of Federation Of Indian Mineral Industries, Southern Region (Fimi South)] I.A. No. 247 of 2015 has been filed, inter alia, seeking following reliefs: a. Direct/clarify that iron ore lessees in the State of Karnataka will not be required to contribute ten percent of the sale proceeds, ex mines, to the SPV established pursuant to orders of this Honble Court, from the date on which the said lessees become liable to make payment, under Section 9B of the Act, to the DMF; 2. We have considered the report of the Central Empowered Committee (CEC for short) dated 25th October, 2017 filed in this regard; affidavit dated 29th November, 2017 filed on behalf of the Federation of Indian Mineral Industries, Southern Region (FIMI South); and the report of the CEC dated 19th March, 2018 (i.e. Report No. 13 of 2018). 3. While FIMI (South) is seeking discontinuation of its obligation to pay ten percent (10%) by way of contribution to the Special Purpose Vehicle (SPV) in the light of the total accumulation that has accrued as on date, the CEC in its Report (No. 13 of 2018) dated 19th March, 2018 has urged that the contribution towards the SPV should continue, broadly, for the reason that the Comprehensive Environment Plan for the Mining Impact Zone (CEPMIZ) is still a vision document and the exact quantum of funds required for its implementation is not clear. That apart, the CEC in its report (No. 13 of 2018) has stated that the ambit of the CEPMIZ, in the interest of social justice, may expand and, therefore, it would not be prudent at this stage to discontinue the contributions made by the lessees. The CEC has also stated that the CEPMIZ Scheme is envisaged for execution over a period of ten (10) years and various relevant factors including cost-escalation have still to be worked out. Accordingly, it is suggested by the CEC in its aforesaid report (No. 13 of 2018) dated 19th March, 2018 that the Special Purpose Vehicle i.e. M/s. Karnataka Mining Environment Restoration Corporation (M/s KMERC) be directed to submit a project Report before this Court indicating very broadly the different facets of the CEPMIZ Scheme; work to be undertaken and the cost which can be reasonably expected to be incurred. It is only thereafter that the prayers made in I.A. No. 247 ought to be considered. | 1[ds]2. We have considered the report of the Central Empowered Committee (CEC for short) dated 25th October, 2017 filed in this regard; affidavit dated 29th November, 2017 filed on behalf of the Federation of Indian Mineral Industries, Southern Region (FIMI South); and the report of the CEC dated 19th March, 2018 (i.e. Report No. 13 of 2018).3. While FIMI (South) is seeking discontinuation of its obligation to pay ten percent (10%) by way of contribution to the Special Purpose Vehicle (SPV) in the light of the total accumulation that has accrued as on date, the CEC in its Report (No. 13 of 2018) dated 19th March, 2018 has urged that the contribution towards the SPV should continue, broadly, for the reason that the Comprehensive Environment Plan for the Mining Impact Zone (CEPMIZ) is still a vision document and the exact quantum of funds required for its implementation is not clear. That apart, the CEC in its report (No. 13 of 2018) has stated that the ambit of the CEPMIZ, in the interest of social justice, may expand and, therefore, it would not be prudent at this stage to discontinue the contributions made by the lessees. The CEC has also stated that the CEPMIZ Scheme is envisaged for execution over a period of ten (10) years and various relevant factors including cost-escalation have still to be worked out. Accordingly, it is suggested by the CEC in its aforesaid report (No. 13 of 2018) dated 19th March, 2018 that the Special Purpose Vehicle i.e. M/s. Karnataka Mining Environment Restoration Corporation (M/s KMERC) be directed to submit a project Report before this Court indicating very broadly the different facets of the CEPMIZ Scheme; work to be undertaken and the cost which can be reasonably expected to be incurred. It is only thereafter that the prayers made in I.A. No. 247 ought to be considered. | 1 | 491 | 375 | ### 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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I.A. No. 247 of 2015 in WP(C) No. 562 of 2009 [Application For Clarification/directions On Behalf of Federation Of Indian Mineral Industries, Southern Region (Fimi South)] I.A. No. 247 of 2015 has been filed, inter alia, seeking following reliefs: a. Direct/clarify that iron ore lessees in the State of Karnataka will not be required to contribute ten percent of the sale proceeds, ex mines, to the SPV established pursuant to orders of this Honble Court, from the date on which the said lessees become liable to make payment, under Section 9B of the Act, to the DMF; 2. We have considered the report of the Central Empowered Committee (CEC for short) dated 25th October, 2017 filed in this regard; affidavit dated 29th November, 2017 filed on behalf of the Federation of Indian Mineral Industries, Southern Region (FIMI South); and the report of the CEC dated 19th March, 2018 (i.e. Report No. 13 of 2018). 3. While FIMI (South) is seeking discontinuation of its obligation to pay ten percent (10%) by way of contribution to the Special Purpose Vehicle (SPV) in the light of the total accumulation that has accrued as on date, the CEC in its Report (No. 13 of 2018) dated 19th March, 2018 has urged that the contribution towards the SPV should continue, broadly, for the reason that the Comprehensive Environment Plan for the Mining Impact Zone (CEPMIZ) is still a vision document and the exact quantum of funds required for its implementation is not clear. That apart, the CEC in its report (No. 13 of 2018) has stated that the ambit of the CEPMIZ, in the interest of social justice, may expand and, therefore, it would not be prudent at this stage to discontinue the contributions made by the lessees. The CEC has also stated that the CEPMIZ Scheme is envisaged for execution over a period of ten (10) years and various relevant factors including cost-escalation have still to be worked out. Accordingly, it is suggested by the CEC in its aforesaid report (No. 13 of 2018) dated 19th March, 2018 that the Special Purpose Vehicle i.e. M/s. Karnataka Mining Environment Restoration Corporation (M/s KMERC) be directed to submit a project Report before this Court indicating very broadly the different facets of the CEPMIZ Scheme; work to be undertaken and the cost which can be reasonably expected to be incurred. It is only thereafter that the prayers made in I.A. No. 247 ought to be considered.
### Response:
1
### Explanation:
2. We have considered the report of the Central Empowered Committee (CEC for short) dated 25th October, 2017 filed in this regard; affidavit dated 29th November, 2017 filed on behalf of the Federation of Indian Mineral Industries, Southern Region (FIMI South); and the report of the CEC dated 19th March, 2018 (i.e. Report No. 13 of 2018).3. While FIMI (South) is seeking discontinuation of its obligation to pay ten percent (10%) by way of contribution to the Special Purpose Vehicle (SPV) in the light of the total accumulation that has accrued as on date, the CEC in its Report (No. 13 of 2018) dated 19th March, 2018 has urged that the contribution towards the SPV should continue, broadly, for the reason that the Comprehensive Environment Plan for the Mining Impact Zone (CEPMIZ) is still a vision document and the exact quantum of funds required for its implementation is not clear. That apart, the CEC in its report (No. 13 of 2018) has stated that the ambit of the CEPMIZ, in the interest of social justice, may expand and, therefore, it would not be prudent at this stage to discontinue the contributions made by the lessees. The CEC has also stated that the CEPMIZ Scheme is envisaged for execution over a period of ten (10) years and various relevant factors including cost-escalation have still to be worked out. Accordingly, it is suggested by the CEC in its aforesaid report (No. 13 of 2018) dated 19th March, 2018 that the Special Purpose Vehicle i.e. M/s. Karnataka Mining Environment Restoration Corporation (M/s KMERC) be directed to submit a project Report before this Court indicating very broadly the different facets of the CEPMIZ Scheme; work to be undertaken and the cost which can be reasonably expected to be incurred. It is only thereafter that the prayers made in I.A. No. 247 ought to be considered.
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Special Land Acquisition Officer and Ors Vs. N. Savitha | Miscellaneous First Appeal No. 7954 of 2014 (LAC) and Miscellaneous First Appeal No. 6429 of 2015 (LAC) by which the High Court has allowed the Miscellaneous First Appeal No. 7954 of 2014 (LAC) preferred by the respondent herein – original claimant – original landowner and has enhanced the amount of compensation in respect of the acquired land to Rs. 40 lakhs per acre and consequently has dismissed the Miscellaneous First Appeal No. 6429 of 2015 (LAC) preferred by the State, the State has preferred the present appeals. 2. The facts leading to the present appeals in a nutshell are as under:- 2.1 That the land of the respondent herein – original landowner – claimant situated at Bechark Revenue Village, Belagola Hobli, Srirangapattana was acquired by the appellants for a public purpose – for improvement of Ranganathittu Bird Sanctuary. A notification under Section 4 of the Land Acquisition Act was issued/published on 24.11.2008, which was followed by notification under Section 6 in the year 2009. The Land Acquisition Officer passed an award on 10.07.2010 fixing the market value of the acquired land @ Rs.21,488/- per guntha. The Reference Court enhanced the amount of compensation to Rs.30,49,200/- per acre, i.e., Rs.76,230/- per guntha. 2.2 Feeling aggrieved and dissatisfied with the judgment and award passed by the Reference Court in determining the market price at Rs.30,49,200/- per acre (Rs.76,230/- per guntha), the original claimant preferred first appeal before the High Court and requested to enhance the amount of compensation. Before the High Court, the original claimant heavily relied upon a document produced as Ex.P.17 – by which for the lands acquired in the year 2011 the amount of compensation was awarded @ Rs.60 lakhs per acre. Mainly relying on Ex.P.17 and thereafter on guesswork, by the impugned judgment and order the High Court has enhanced the amount of compensation to Rs.40 lakhs per acre with all consequential statutory benefits. 2.3 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court in enhancing the amount of compensation to Rs.40 lakhs per acre solely relying upon Ex.P.17 and on guesswork, the State has preferred the present appeals. 3. We have heard learned counsel appearing on behalf of the respective parties at length. 4. At the outset, it is required to be noted and it is not in dispute that while enhancing the amount of compensation to Rs.40 lakhs per acre, the High Court has heavily relied upon Ex.P.17 – by which in respect of the lands acquired in the year 2011 the compensation was awarded @ Rs.60 lakhs per acre. However, it is required to be noted that the award – Ex.P.17 was a consent award and was in respect of the property acquired in the year 2011 and which was acquired for a different purpose, namely, for formation of double line railway broad gauge between Bengaluru and Mysore City. But in the present case, Section 4 notification has been issued in the year 2008, i.e., three years before the land acquired in the case of Ex.P.17. Therefore, the award – Ex.P.17, which has been relied upon by the High Court is for the acquisition subsequent to the land acquired in the present case, i.e., after a period of three years and therefore the High Court ought not to have relied upon the same while determining the market price of the land acquired in 2008 considering the market price determined for the lands acquired in the year 2011 and on the basis of some guesswork. 5. Even otherwise, it is required to be noted that Ex.P.17 is a consent award. Therefore, the consent award ought not to have been relied upon and/or considered for the purpose of determining the compensation in case of another acquisition. In case of a consent award, one is required to consider the circumstances under which the consent award was passed and the parties agreed to accept the compensation at a particular rate. In a given case, due to urgent requirement, the acquiring body and/or the beneficiary of the acquisition may agree to give a particular compensation. Therefore, a consent award cannot be the basis to award and/or determine the compensation in other acquisition, more particularly, when there are other evidences on record. Therefore, the High Court has erred in determining the compensation @ Rs.40 lakhs per acre relying upon the award – Ex.P.17 in respect of the land which was for the lands acquired in the year 2011. 6. Even otherwise, it is required to be noted that in the present case, the High Court has determined the compensation relying upon Ex.P.17 mechanically. The High Court has not at all considered whether the lands acquired in the present case is similarly situated to the lands acquired in the case of Ex.P.17. As per the settled position of law, there may be different market prices/compensation with respect to different lands, may be in the same village and/or nearby location. The land, which is on a prime location and which is on the highway and/or at a proximity to a highway may have a different market price than the land which is situated in a different location/interior of the village and which might not have a good potential for development. Therefore, also, the High Court has committed a grave error in solely relying upon Ex.P.17 to determine the market value of the lands in the instant case. 7. In view of the above and for the reasons stated above, the impugned judgment and order passed by the High Court determining the compensation @ Rs.40 lakhs per acre relying upon Ex.P.17 is unsustainable. However, at the same time, considering the fact that there were other documentary evidences on record, which ought to have been considered by the High Court, we deem it appropriate to remand the matter to the High Court to decide the first appeals afresh in accordance with law and on merits and to determine the market price/compensation considering the other evidences on record, if any. | 1[ds]4. At the outset, it is required to be noted and it is not in dispute that while enhancing the amount of compensation to Rs.40 lakhs per acre, the High Court has heavily relied upon Ex.P.17 – by which in respect of the lands acquired in the year 2011 the compensation was awarded @ Rs.60 lakhs per acre. However, it is required to be noted that the award – Ex.P.17 was a consent award and was in respect of the property acquired in the year 2011 and which was acquired for a different purpose, namely, for formation of double line railway broad gauge between Bengaluru and Mysore City. But in the present case, Section 4 notification has been issued in the year 2008, i.e., three years before the land acquired in the case of Ex.P.17. Therefore, the award – Ex.P.17, which has been relied upon by the High Court is for the acquisition subsequent to the land acquired in the present case, i.e., after a period of three years and therefore the High Court ought not to have relied upon the same while determining the market price of the land acquired in 2008 considering the market price determined for the lands acquired in the year 2011 and on the basis of some guesswork.5. Even otherwise, it is required to be noted that Ex.P.17 is a consent award. Therefore, the consent award ought not to have been relied upon and/or considered for the purpose of determining the compensation in case of another acquisition. In case of a consent award, one is required to consider the circumstances under which the consent award was passed and the parties agreed to accept the compensation at a particular rate. In a given case, due to urgent requirement, the acquiring body and/or the beneficiary of the acquisition may agree to give a particular compensation. Therefore, a consent award cannot be the basis to award and/or determine the compensation in other acquisition, more particularly, when there are other evidences on record. Therefore, the High Court has erred in determining the compensation @ Rs.40 lakhs per acre relying upon the award – Ex.P.17 in respect of the land which was for the lands acquired in the year 2011.6. Even otherwise, it is required to be noted that in the present case, the High Court has determined the compensation relying upon Ex.P.17 mechanically. The High Court has not at all considered whether the lands acquired in the present case is similarly situated to the lands acquired in the case of Ex.P.17. As per the settled position of law, there may be different market prices/compensation with respect to different lands, may be in the same village and/or nearby location. The land, which is on a prime location and which is on the highway and/or at a proximity to a highway may have a different market price than the land which is situated in a different location/interior of the village and which might not have a good potential for development. Therefore, also, the High Court has committed a grave error in solely relying upon Ex.P.17 to determine the market value of the lands in the instant case.7. In view of the above and for the reasons stated above, the impugned judgment and order passed by the High Court determining the compensation @ Rs.40 lakhs per acre relying upon Ex.P.17 is unsustainable. However, at the same time, considering the fact that there were other documentary evidences on record, which ought to have been considered by the High Court, we deem it appropriate to remand the matter to the High Court to decide the first appeals afresh in accordance with law and on merits and to determine the market price/compensation considering the other evidences on record, if any. | 1 | 1,123 | 682 | ### 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:
Miscellaneous First Appeal No. 7954 of 2014 (LAC) and Miscellaneous First Appeal No. 6429 of 2015 (LAC) by which the High Court has allowed the Miscellaneous First Appeal No. 7954 of 2014 (LAC) preferred by the respondent herein – original claimant – original landowner and has enhanced the amount of compensation in respect of the acquired land to Rs. 40 lakhs per acre and consequently has dismissed the Miscellaneous First Appeal No. 6429 of 2015 (LAC) preferred by the State, the State has preferred the present appeals. 2. The facts leading to the present appeals in a nutshell are as under:- 2.1 That the land of the respondent herein – original landowner – claimant situated at Bechark Revenue Village, Belagola Hobli, Srirangapattana was acquired by the appellants for a public purpose – for improvement of Ranganathittu Bird Sanctuary. A notification under Section 4 of the Land Acquisition Act was issued/published on 24.11.2008, which was followed by notification under Section 6 in the year 2009. The Land Acquisition Officer passed an award on 10.07.2010 fixing the market value of the acquired land @ Rs.21,488/- per guntha. The Reference Court enhanced the amount of compensation to Rs.30,49,200/- per acre, i.e., Rs.76,230/- per guntha. 2.2 Feeling aggrieved and dissatisfied with the judgment and award passed by the Reference Court in determining the market price at Rs.30,49,200/- per acre (Rs.76,230/- per guntha), the original claimant preferred first appeal before the High Court and requested to enhance the amount of compensation. Before the High Court, the original claimant heavily relied upon a document produced as Ex.P.17 – by which for the lands acquired in the year 2011 the amount of compensation was awarded @ Rs.60 lakhs per acre. Mainly relying on Ex.P.17 and thereafter on guesswork, by the impugned judgment and order the High Court has enhanced the amount of compensation to Rs.40 lakhs per acre with all consequential statutory benefits. 2.3 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court in enhancing the amount of compensation to Rs.40 lakhs per acre solely relying upon Ex.P.17 and on guesswork, the State has preferred the present appeals. 3. We have heard learned counsel appearing on behalf of the respective parties at length. 4. At the outset, it is required to be noted and it is not in dispute that while enhancing the amount of compensation to Rs.40 lakhs per acre, the High Court has heavily relied upon Ex.P.17 – by which in respect of the lands acquired in the year 2011 the compensation was awarded @ Rs.60 lakhs per acre. However, it is required to be noted that the award – Ex.P.17 was a consent award and was in respect of the property acquired in the year 2011 and which was acquired for a different purpose, namely, for formation of double line railway broad gauge between Bengaluru and Mysore City. But in the present case, Section 4 notification has been issued in the year 2008, i.e., three years before the land acquired in the case of Ex.P.17. Therefore, the award – Ex.P.17, which has been relied upon by the High Court is for the acquisition subsequent to the land acquired in the present case, i.e., after a period of three years and therefore the High Court ought not to have relied upon the same while determining the market price of the land acquired in 2008 considering the market price determined for the lands acquired in the year 2011 and on the basis of some guesswork. 5. Even otherwise, it is required to be noted that Ex.P.17 is a consent award. Therefore, the consent award ought not to have been relied upon and/or considered for the purpose of determining the compensation in case of another acquisition. In case of a consent award, one is required to consider the circumstances under which the consent award was passed and the parties agreed to accept the compensation at a particular rate. In a given case, due to urgent requirement, the acquiring body and/or the beneficiary of the acquisition may agree to give a particular compensation. Therefore, a consent award cannot be the basis to award and/or determine the compensation in other acquisition, more particularly, when there are other evidences on record. Therefore, the High Court has erred in determining the compensation @ Rs.40 lakhs per acre relying upon the award – Ex.P.17 in respect of the land which was for the lands acquired in the year 2011. 6. Even otherwise, it is required to be noted that in the present case, the High Court has determined the compensation relying upon Ex.P.17 mechanically. The High Court has not at all considered whether the lands acquired in the present case is similarly situated to the lands acquired in the case of Ex.P.17. As per the settled position of law, there may be different market prices/compensation with respect to different lands, may be in the same village and/or nearby location. The land, which is on a prime location and which is on the highway and/or at a proximity to a highway may have a different market price than the land which is situated in a different location/interior of the village and which might not have a good potential for development. Therefore, also, the High Court has committed a grave error in solely relying upon Ex.P.17 to determine the market value of the lands in the instant case. 7. In view of the above and for the reasons stated above, the impugned judgment and order passed by the High Court determining the compensation @ Rs.40 lakhs per acre relying upon Ex.P.17 is unsustainable. However, at the same time, considering the fact that there were other documentary evidences on record, which ought to have been considered by the High Court, we deem it appropriate to remand the matter to the High Court to decide the first appeals afresh in accordance with law and on merits and to determine the market price/compensation considering the other evidences on record, if any.
### Response:
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### Explanation:
4. At the outset, it is required to be noted and it is not in dispute that while enhancing the amount of compensation to Rs.40 lakhs per acre, the High Court has heavily relied upon Ex.P.17 – by which in respect of the lands acquired in the year 2011 the compensation was awarded @ Rs.60 lakhs per acre. However, it is required to be noted that the award – Ex.P.17 was a consent award and was in respect of the property acquired in the year 2011 and which was acquired for a different purpose, namely, for formation of double line railway broad gauge between Bengaluru and Mysore City. But in the present case, Section 4 notification has been issued in the year 2008, i.e., three years before the land acquired in the case of Ex.P.17. Therefore, the award – Ex.P.17, which has been relied upon by the High Court is for the acquisition subsequent to the land acquired in the present case, i.e., after a period of three years and therefore the High Court ought not to have relied upon the same while determining the market price of the land acquired in 2008 considering the market price determined for the lands acquired in the year 2011 and on the basis of some guesswork.5. Even otherwise, it is required to be noted that Ex.P.17 is a consent award. Therefore, the consent award ought not to have been relied upon and/or considered for the purpose of determining the compensation in case of another acquisition. In case of a consent award, one is required to consider the circumstances under which the consent award was passed and the parties agreed to accept the compensation at a particular rate. In a given case, due to urgent requirement, the acquiring body and/or the beneficiary of the acquisition may agree to give a particular compensation. Therefore, a consent award cannot be the basis to award and/or determine the compensation in other acquisition, more particularly, when there are other evidences on record. Therefore, the High Court has erred in determining the compensation @ Rs.40 lakhs per acre relying upon the award – Ex.P.17 in respect of the land which was for the lands acquired in the year 2011.6. Even otherwise, it is required to be noted that in the present case, the High Court has determined the compensation relying upon Ex.P.17 mechanically. The High Court has not at all considered whether the lands acquired in the present case is similarly situated to the lands acquired in the case of Ex.P.17. As per the settled position of law, there may be different market prices/compensation with respect to different lands, may be in the same village and/or nearby location. The land, which is on a prime location and which is on the highway and/or at a proximity to a highway may have a different market price than the land which is situated in a different location/interior of the village and which might not have a good potential for development. Therefore, also, the High Court has committed a grave error in solely relying upon Ex.P.17 to determine the market value of the lands in the instant case.7. In view of the above and for the reasons stated above, the impugned judgment and order passed by the High Court determining the compensation @ Rs.40 lakhs per acre relying upon Ex.P.17 is unsustainable. However, at the same time, considering the fact that there were other documentary evidences on record, which ought to have been considered by the High Court, we deem it appropriate to remand the matter to the High Court to decide the first appeals afresh in accordance with law and on merits and to determine the market price/compensation considering the other evidences on record, if any.
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M/S JANPRIYA BUILDESTATE PVT. LTD Vs. AMIT SONI & ORS | appellant has signed the tripartite agreement as a confirming party. On this basis, NCDRC found that both parties are jointly and severely liable to pay the amount. Lastly it is found that any other arrangement is only inter se between the opposite parties and shall not bind the complainant. 20. We take up the last finding first, namely, that any other arrangement is only inter se between the opposite parties and shall not bind the complainant. Apparently, this is the answer to clause 14.1 set up by the appellant. Clause 14.1 deals with the arrangement entered between the developer and the owner because it speaks about reimbursement and protecting the owner from any loss it may be visited with. The fact that developer has agreed to reimburse the land owner would not detract from any liability which the land owner may incur under the law and under the contract. While that may be so, the substratum of the finding of the NCDRC is clause 4.1 and the fact that the appellant is a confirming party. We are of the view that in the contracts in question, the NCDRC has not correctly appreciated the nature of the obligations and requirement under the Act to make a party liable. The NCDRC has not adverted to the relevant provisions, the collaboration agreement and the tripartite agreement which would spell out the nature of the obligations incurred by the developer and the appellant. The appellant, as the owner of the land on which the project was contemplated, has indeed undertaken certain obligations. So did the developer. It is, at this stage, that the consumer appears in the form of a party in the tripartite agreement. The learned counsel for the complainants has a case that the complainants were not aware of the terms of the collaboration agreement as such. 21. The mere fact without anything more that the appellant was a confirming party also would not advance the case of the complainant. We are unable to divine as to on what basis it could be said in a contract of this nature that merely because the appellant has confirmed terms of the agreement which is styled as a tripartite agreement, it would by itself make the appellant liable. This is a matter which should have been dealt with, with reference to the various other provisions in both the collaboration agreement and the tripartite agreement. Such an exercise was not undertaken by NCDRC. 22. There is another aspect which is perhaps determinative of the course of action which has appealed to us. Learned counsel for the complainants would point out that this Court must bear in mind that this is a case where the management of both the developer and the land owner have actually been carried out by the same group. Learned counsel would point out that understanding the pattern of the composition of the Board of Management would successfully show that in essence, a single entity is running the whole show. 23. The present scenario is that the developer has gone into a state of insolvency. Proceedings under the Insolvency and Bankruptcy Code (IBC) has been lodged. It is, no doubt, in such a scenario, that the home buyers, who despite an order which they have obtained, are left high and dry as they cannot proceed against the developer after having obtained relief which consist of refund with interest as already observed. This brings on the scene the IRP represented by Mr. Sai Deepak, learned counsel, who would point out that not only has the IRP been appointed but an order has been passed by the National Company Law Appellate Tribunal (NCLAT) in appeal against an order under Section 7 of the IBC. Learned counsel points out that there is an opportunity available to the home buyers made available by the order of the NCLAT which may be availed of by the home buyers. 24. The contention raised by the learned counsel for the complainant is that, in short, this is a fit case where the NCDRC should be asked to look into the complaint that both parties being a single entity, a case for lifting of the corporate veil is made out. As already noticed, it is also their case that the developer is nothing but a mere agent of the appellant. 25. Having regard to the Act being a beneficial piece of legislation, the Court should lean in favour of the hapless consumer so that any such manoeuvring by corporate entities if any does not succeed. 26. We have already scanned the pleadings of the parties. As fairly stated by the learned counsel for the complainants there is a complete lack of pleadings to support the case of the nature which is sought to be set up, viz., that this is a fit case for employing the doctrine of lifting of the corporate veil or that the appellant would be liable being the principal of the the developer. 27. In this context learned senior counsel for the appellant would also point out that apart from absence of pleadings, this is a matter which may go to the jurisdiction of the NCDRC having regard to limitations which have been carved out in law on the nature of the functions of the forum. 28. Having heard learned counsel for the parties, while we are of the view that we cannot uphold the order of the NCDRC in the manner in which it is being done, we should afford an opportunity to the respondents to seek amendment of the pleadings, if they are so advised, and to allow an opportunity to establish the case which is being set up which is based on matters which go beyond the scope of the findings by the NCDRC. At the same time, we must leave it open to the appellant to raise all contentions including the contentions against such pleadings being introduced as also the limitations on the jurisdiction of the NCDRC to make such an inquiry. | 1[ds]8. The obligations of the developer have been set out in clauses 6.1 to 6.6. Thereafter, the obligations of the land owner viz., the appellant, have been clearly articulated in clauses 7.1 to 7.7. Clause 8.1 contemplates that subject to Force Majeure conditions and due performance of their obligations by the land owners, the Developer shall complete the development of the project on the project land inter alia within a period of four years from the date of receipt of the sanctioned building plans with respect to the project, subject to the grace period indicated. Article 11 provides for various representations and warranties which have been made by the appellant in its capacity as the land owner.We may notice that the tripartite agreement reveals that the home buyer is put on notice of the collaboration agreement. There is reference to general power of attorney which has been executed by the appellant in favour of the developer. The tripartite agreement further refers to the fact that the buyer has inspected the collaboration agreement and has understood the limitations and obligations of the owner inter alia. Under clause 1.1, the developer has agreed to sell to the buyer and the buyer has agreed to purchase the apartment at the prices indicated in clause 3. The sale consideration is set out in clause 3. There is elaboration of the consideration in various sub clauses of clause 3. The payment is governed by clause 4 and the various sub clauses thereunder. Clause 5 deals with the basic concept of the proposed complex. Clause 6 deals with maintenance charges. It is stated in clause 7 that the company, subject to force majeure, undertakes to complete the construction. The meaning of the word company is not exactly clear and for reasons which shall follow, we do not intend to pronounce on the same.A perusal of the complaint does not reveal any specific complaint lodged against the appellant. The appellant is made respondent No. 2. The complaint, in short, was that the possession of the flat was not made over by 31.12.2015. Substantial amounts were paid as consideration. The complainant suffered financial losses without getting benefit of the use due to the sole conduct of the opposite party for not building within the promised time. Act and omission of the opposite party fall within the definition of unfair trade practices and restrictive trade practices it is averred. There is even allegation that there are malpractices on the part of the opposite party to take money from the buyers who purchased apartments / flats in Umang Realtech group housing project and to use it elsewhere and delay the project unreasonably for their wrongful gains causing wrongful losses and injuries to the complainant.The final prayer was to direct the opposite party to refund the entire amount collected from the complainants with 18 per cent interest from date of the collection of the amount. The appellant filed a reply therein. It is contended that there is no cause of action against the appellant. It was indicated that the appellant was a land owner. It had given vacant possession to the developer. There is no liability incurred by the appellant also. Clause 14.3 of the collaboration agreement was extracted in reply. Clause 14.3 indicated that the development and sale of project being the responsibility of the developer, the developer shall be liable to indemnify the land owner.16. Though the NCDRC did note the contention of the appellant, the matter came to be dealt with in the manner which we have indicated, namely, by directing the appellant and the developer to refund the amounts with interest.17. We have indicated the scheme of the Act. A claim can succeed in a case of this nature if the consumer establishes deficiency of service. No doubt, the law giver contemplates other elements as contemplated in the definition of the word complaint. The word deficiency has been widely worded. Equally so, is the word service. A statute of this nature must, indeed, if possible, be construed in favour of the consumer. However, that is a far cry from holding that if deficiency is not established, yet the opposite party must bear the liability which cannot be thrust on its shoulders. We would clarify that by making it clear that what we intend to say is that when there is no privity between the complainant and the opposite party, the opposite party could not become liable under the Act. In other words, if there is no law under which a person is to provide a service and if it does not fall within the residuary clause, namely, otherwise as defined under the word deficiency, it is necessary for a consumer to succeed, that there must be a contract. It is in that context, we indicated that the existence of an obligation under a contract is a sine qua non for a consumer to successfully prosecute a case under the Act.18. The NCDRC has despite the stand taken specifically by the appellant, proceeded to premise its finding on a particular clause. The clause in question which has persuaded the NCDRC to hold against the appellant, in our view, cannot by itself result in the appellant being held liable under the Act. We have noticed the scheme of the dealings between the parties. Apparently it originated with the collaboration agreement between the appellant and the developer. The home buyer comes in, undoubtedly, through the tripartite agreement. It is no doubt true that there is a power of attorney which is executed by the appellant in favour of the developer. We will not say anything on the power of attorney as there is an argument by the learned counsel for the complainant that the power of attorney clinchingly establishes that the appellant was the principal and the developer was a mere agent. We say that we are not reflecting anything more about this for the reason that this is not the case which was set up before the NCDRC. There are no pleadings in this regard. Very fairly, the learned counsel for the complainant has stated that there is no foundation for such a case and such a case is even not reflected in the order. The only aspect which appealed to the NCDRC was clause 4.1.19. Clause 4.1 contemplates revenue sharing and this clause is part of the collaboration agreement. The buyer in terms of the tripartite agreement must be understood to have familiarised itself with the terms of the collaboration agreement. The NCDRC has proceeded to hold that it is pertinent to note that the appellant was the signing and confirming party. Thereafter, reference is made to the consideration towards non-refundable security deposit paid by the developer to the appellant. And finally, the NCDRC has seized upon the terms of clause 4.1. Clause 4.1 deals with the revenue sharing between the appellant and the developer. Thereafter, NCDRC reiterates the fact that the appellant has signed the tripartite agreement as a confirming party. On this basis, NCDRC found that both parties are jointly and severely liable to pay the amount. Lastly it is found that any other arrangement is only inter se between the opposite parties and shall not bind the complainant.Apparently, this is the answer to clause 14.1 set up by the appellant. Clause 14.1 deals with the arrangement entered between the developer and the owner because it speaks about reimbursement and protecting the owner from any loss it may be visited with. The fact that developer has agreed to reimburse the land owner would not detract from any liability which the land owner may incur under the law and under the contract. While that may be so, the substratum of the finding of the NCDRC is clause 4.1 and the fact that the appellant is a confirming party. We are of the view that in the contracts in question, the NCDRC has not correctly appreciated the nature of the obligations and requirement under the Act to make a party liable. The NCDRC has not adverted to the relevant provisions, the collaboration agreement and the tripartite agreement which would spell out the nature of the obligations incurred by the developer and the appellant. The appellant, as the owner of the land on which the project was contemplated, has indeed undertaken certain obligations. So did the developer. It is, at this stage, that the consumer appears in the form of a party in the tripartite agreement. The learned counsel for the complainants has a case that the complainants were not aware of the terms of the collaboration agreement as such.21. The mere fact without anything more that the appellant was a confirming party also would not advance the case of the complainant. We are unable to divine as to on what basis it could be said in a contract of this nature that merely because the appellant has confirmed terms of the agreement which is styled as a tripartite agreement, it would by itself make the appellant liable. This is a matter which should have been dealt with, with reference to the various other provisions in both the collaboration agreement and the tripartite agreement. Such an exercise was not undertaken by NCDRC.22. There is another aspect which is perhaps determinative of the course of action which has appealed to us. Learned counsel for the complainants would point out that this Court must bear in mind that this is a case where the management of both the developer and the land owner have actually been carried out by the same group. Learned counsel would point out that understanding the pattern of the composition of the Board of Management would successfully show that in essence, a single entity is running the whole show.23. The present scenario is that the developer has gone into a state of insolvency. Proceedings under the Insolvency and Bankruptcy Code (IBC) has been lodged. It is, no doubt, in such a scenario, that the home buyers, who despite an order which they have obtained, are left high and dry as they cannot proceed against the developer after having obtained relief which consist of refund with interest as already observed. This brings on the scene the IRP represented by Mr. Sai Deepak, learned counsel, who would point out that not only has the IRP been appointed but an order has been passed by the National Company Law Appellate Tribunal (NCLAT) in appeal against an order under Section 7 of the IBC. Learned counsel points out that there is an opportunity available to the home buyers made available by the order of the NCLAT which may be availed of by the home buyers.25. Having regard to the Act being a beneficial piece of legislation, the Court should lean in favour of the hapless consumer so that any such manoeuvring by corporate entities if any does not succeed.26. We have already scanned the pleadings of the parties. As fairly stated by the learned counsel for the complainants there is a complete lack of pleadings to support the case of the nature which is sought to be set up, viz., that this is a fit case for employing the doctrine of lifting of the corporate veil or that the appellant would be liable being the principal of the the developer.28. Having heard learned counsel for the parties, while we are of the view that we cannot uphold the order of the NCDRC in the manner in which it is being done, we should afford an opportunity to the respondents to seek amendment of the pleadings, if they are so advised, and to allow an opportunity to establish the case which is being set up which is based on matters which go beyond the scope of the findings by the NCDRC. At the same time, we must leave it open to the appellant to raise all contentions including the contentions against such pleadings being introduced as also the limitations on the jurisdiction of the NCDRC to make such an inquiry. | 1 | 5,899 | 2,161 | ### 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:
appellant has signed the tripartite agreement as a confirming party. On this basis, NCDRC found that both parties are jointly and severely liable to pay the amount. Lastly it is found that any other arrangement is only inter se between the opposite parties and shall not bind the complainant. 20. We take up the last finding first, namely, that any other arrangement is only inter se between the opposite parties and shall not bind the complainant. Apparently, this is the answer to clause 14.1 set up by the appellant. Clause 14.1 deals with the arrangement entered between the developer and the owner because it speaks about reimbursement and protecting the owner from any loss it may be visited with. The fact that developer has agreed to reimburse the land owner would not detract from any liability which the land owner may incur under the law and under the contract. While that may be so, the substratum of the finding of the NCDRC is clause 4.1 and the fact that the appellant is a confirming party. We are of the view that in the contracts in question, the NCDRC has not correctly appreciated the nature of the obligations and requirement under the Act to make a party liable. The NCDRC has not adverted to the relevant provisions, the collaboration agreement and the tripartite agreement which would spell out the nature of the obligations incurred by the developer and the appellant. The appellant, as the owner of the land on which the project was contemplated, has indeed undertaken certain obligations. So did the developer. It is, at this stage, that the consumer appears in the form of a party in the tripartite agreement. The learned counsel for the complainants has a case that the complainants were not aware of the terms of the collaboration agreement as such. 21. The mere fact without anything more that the appellant was a confirming party also would not advance the case of the complainant. We are unable to divine as to on what basis it could be said in a contract of this nature that merely because the appellant has confirmed terms of the agreement which is styled as a tripartite agreement, it would by itself make the appellant liable. This is a matter which should have been dealt with, with reference to the various other provisions in both the collaboration agreement and the tripartite agreement. Such an exercise was not undertaken by NCDRC. 22. There is another aspect which is perhaps determinative of the course of action which has appealed to us. Learned counsel for the complainants would point out that this Court must bear in mind that this is a case where the management of both the developer and the land owner have actually been carried out by the same group. Learned counsel would point out that understanding the pattern of the composition of the Board of Management would successfully show that in essence, a single entity is running the whole show. 23. The present scenario is that the developer has gone into a state of insolvency. Proceedings under the Insolvency and Bankruptcy Code (IBC) has been lodged. It is, no doubt, in such a scenario, that the home buyers, who despite an order which they have obtained, are left high and dry as they cannot proceed against the developer after having obtained relief which consist of refund with interest as already observed. This brings on the scene the IRP represented by Mr. Sai Deepak, learned counsel, who would point out that not only has the IRP been appointed but an order has been passed by the National Company Law Appellate Tribunal (NCLAT) in appeal against an order under Section 7 of the IBC. Learned counsel points out that there is an opportunity available to the home buyers made available by the order of the NCLAT which may be availed of by the home buyers. 24. The contention raised by the learned counsel for the complainant is that, in short, this is a fit case where the NCDRC should be asked to look into the complaint that both parties being a single entity, a case for lifting of the corporate veil is made out. As already noticed, it is also their case that the developer is nothing but a mere agent of the appellant. 25. Having regard to the Act being a beneficial piece of legislation, the Court should lean in favour of the hapless consumer so that any such manoeuvring by corporate entities if any does not succeed. 26. We have already scanned the pleadings of the parties. As fairly stated by the learned counsel for the complainants there is a complete lack of pleadings to support the case of the nature which is sought to be set up, viz., that this is a fit case for employing the doctrine of lifting of the corporate veil or that the appellant would be liable being the principal of the the developer. 27. In this context learned senior counsel for the appellant would also point out that apart from absence of pleadings, this is a matter which may go to the jurisdiction of the NCDRC having regard to limitations which have been carved out in law on the nature of the functions of the forum. 28. Having heard learned counsel for the parties, while we are of the view that we cannot uphold the order of the NCDRC in the manner in which it is being done, we should afford an opportunity to the respondents to seek amendment of the pleadings, if they are so advised, and to allow an opportunity to establish the case which is being set up which is based on matters which go beyond the scope of the findings by the NCDRC. At the same time, we must leave it open to the appellant to raise all contentions including the contentions against such pleadings being introduced as also the limitations on the jurisdiction of the NCDRC to make such an inquiry.
### Response:
1
### Explanation:
NCDRC. There are no pleadings in this regard. Very fairly, the learned counsel for the complainant has stated that there is no foundation for such a case and such a case is even not reflected in the order. The only aspect which appealed to the NCDRC was clause 4.1.19. Clause 4.1 contemplates revenue sharing and this clause is part of the collaboration agreement. The buyer in terms of the tripartite agreement must be understood to have familiarised itself with the terms of the collaboration agreement. The NCDRC has proceeded to hold that it is pertinent to note that the appellant was the signing and confirming party. Thereafter, reference is made to the consideration towards non-refundable security deposit paid by the developer to the appellant. And finally, the NCDRC has seized upon the terms of clause 4.1. Clause 4.1 deals with the revenue sharing between the appellant and the developer. Thereafter, NCDRC reiterates the fact that the appellant has signed the tripartite agreement as a confirming party. On this basis, NCDRC found that both parties are jointly and severely liable to pay the amount. Lastly it is found that any other arrangement is only inter se between the opposite parties and shall not bind the complainant.Apparently, this is the answer to clause 14.1 set up by the appellant. Clause 14.1 deals with the arrangement entered between the developer and the owner because it speaks about reimbursement and protecting the owner from any loss it may be visited with. The fact that developer has agreed to reimburse the land owner would not detract from any liability which the land owner may incur under the law and under the contract. While that may be so, the substratum of the finding of the NCDRC is clause 4.1 and the fact that the appellant is a confirming party. We are of the view that in the contracts in question, the NCDRC has not correctly appreciated the nature of the obligations and requirement under the Act to make a party liable. The NCDRC has not adverted to the relevant provisions, the collaboration agreement and the tripartite agreement which would spell out the nature of the obligations incurred by the developer and the appellant. The appellant, as the owner of the land on which the project was contemplated, has indeed undertaken certain obligations. So did the developer. It is, at this stage, that the consumer appears in the form of a party in the tripartite agreement. The learned counsel for the complainants has a case that the complainants were not aware of the terms of the collaboration agreement as such.21. The mere fact without anything more that the appellant was a confirming party also would not advance the case of the complainant. We are unable to divine as to on what basis it could be said in a contract of this nature that merely because the appellant has confirmed terms of the agreement which is styled as a tripartite agreement, it would by itself make the appellant liable. This is a matter which should have been dealt with, with reference to the various other provisions in both the collaboration agreement and the tripartite agreement. Such an exercise was not undertaken by NCDRC.22. There is another aspect which is perhaps determinative of the course of action which has appealed to us. Learned counsel for the complainants would point out that this Court must bear in mind that this is a case where the management of both the developer and the land owner have actually been carried out by the same group. Learned counsel would point out that understanding the pattern of the composition of the Board of Management would successfully show that in essence, a single entity is running the whole show.23. The present scenario is that the developer has gone into a state of insolvency. Proceedings under the Insolvency and Bankruptcy Code (IBC) has been lodged. It is, no doubt, in such a scenario, that the home buyers, who despite an order which they have obtained, are left high and dry as they cannot proceed against the developer after having obtained relief which consist of refund with interest as already observed. This brings on the scene the IRP represented by Mr. Sai Deepak, learned counsel, who would point out that not only has the IRP been appointed but an order has been passed by the National Company Law Appellate Tribunal (NCLAT) in appeal against an order under Section 7 of the IBC. Learned counsel points out that there is an opportunity available to the home buyers made available by the order of the NCLAT which may be availed of by the home buyers.25. Having regard to the Act being a beneficial piece of legislation, the Court should lean in favour of the hapless consumer so that any such manoeuvring by corporate entities if any does not succeed.26. We have already scanned the pleadings of the parties. As fairly stated by the learned counsel for the complainants there is a complete lack of pleadings to support the case of the nature which is sought to be set up, viz., that this is a fit case for employing the doctrine of lifting of the corporate veil or that the appellant would be liable being the principal of the the developer.28. Having heard learned counsel for the parties, while we are of the view that we cannot uphold the order of the NCDRC in the manner in which it is being done, we should afford an opportunity to the respondents to seek amendment of the pleadings, if they are so advised, and to allow an opportunity to establish the case which is being set up which is based on matters which go beyond the scope of the findings by the NCDRC. At the same time, we must leave it open to the appellant to raise all contentions including the contentions against such pleadings being introduced as also the limitations on the jurisdiction of the NCDRC to make such an inquiry.
|
Shri Siddhvi Vinayaka Coconut and Co Vs. State of Andhra Pradesh | from the defect pointed out by this Court in Bhawani Cotton Mills case, 20 STC 290 = (AIR 1967 SC 1616 ) that a provision for taxation which would not be justifiable cannot be upheld merely on the ground that it provides also for a refund. The various periods mentioned in item 5-A are there because of historical reasons and they are only reproductions of provisions of earlier law. The decision in the Bhawani Cotton Mills case on which the petitioners relied cannot apply in this case because in the Act there under consideration there was no provision indicating the state at which the tax was to be levied. The very same levy was upheld in Rattan Lal and Co. v. Assessing Authority, 25 STC 136 = (AIR 1970 SC 1742 ) after the Act was amended by specifying the stage as the last purchase or sale of declared goods by a dealer liable to pay the tax and making the stage quite clear, and by giving the dealer an option not to include other transactions in his returns and thus saving him from the liability to pay the tax till he was the dealer liable to pay the tax. This Court then pointed out that the information whether his was the last purchase or sale was always possessed by a dealer and by providing that he need not include in his turnover any transaction except when he was the last dealer the position was made clear. It is this decision that will be applicable to the facts of this case.8. In this connection we may point our that the provisions of Rule 45 of the Andhra Pradesh General Sales Tax Rules are similar. It provides that every dealer has to maintain a true and correct account showing the value of the goods produced, manufactured, bought and sold by him, the names and addresses of the persons from whom goods were purchased, supported by a bill or delivery note issued by the seller. Every dealer carrying on business in the goods specified in the First, Second and Third Schedules whose total turnover exceeds Rs. 10,000 a year and every other dealer whose turnover exceeds Rs. 20,000 a year shall issue a bill or cash memorandum in respect of every sale involving an amount of Rs. 5 or more. Every such bill or cash memorandum shall be duly signed and dated and a counter-foil shall be kept by the dealer. The bills or cash memoranda issued by a dealer shall be serially numbered for each year and in each of the bills or cash memoranda issued the dealer shall specify the full name and style of his business, the number of his registration certificate, the particulars of goods sold and the price thereof and in the case of sales to a dealer the full name and address and the number of the registration certificate of the purchaser. The bills or cash memoranda issued in the case of sales of goods liable to a single point tax shall contain the following certificate... Certified that in respect of the turnover of the goods mentioned in item (s) of this bill the tax has been paid or/is payable by me or is payable by Sri/Ms...being the dealer who has purchased them from me. These make it amply clear that there can be no question of either a dealer in watery coconuts or in dry coconuts having to pay a tax over again hereafter. They can include in their return only goods which are liable to tax and need not include those which have already suffered tax.9. Another aspect of the 1971 Act that as a result of it there are two entries, 5 and 5-A in Schedule III, namely coconuts of all varieties and watery coconuts there is no possibility of watery coconuts suffering tax after they become dried coconuts, if they have already suffered tax as watery coconuts. Rule 45 provides sufficient safeguards for this purpose.10. We also accept the contention put forward on behalf of the State of Andhra Pradesh that watery coconuts and dried coconuts are two distinct commodities commercially speaking. Watery coconuts are put to a variety of uses e.g., for cooking purpose, for religious and social functions whereas dried coconuts are used mainly for extracting oil. This Court has in a number of cases held that the same commodity at different stages could be treated and taxed as commercially different articles. In A. Hajee Abdul Shakoor and Co. v. State of Madras, 1964-8 SCR 217 = (AIR 1964 SC 1729 ) this Court held that hides and skins in the untanned condition are undoubtedly different as articles of merchandise than tanned hides and skins and pointed out that the fact that certain articles are mentioned under the same heading in a statute or the constitution, does not mean that they all constitute one commodity. We may also refer to the decisions in Jagannath v. Union of India, 1962-2 SCR 118 = (AIR 1962 SC 148 ) where tobacco in the whole leaf and tobacco in the broken leaf were treated as two different commodities, East India Tobacco Co. v. State of Andhra Pradesh, 1963-1 SCR 404 = (AIR 1962 SC 1733 ) where Virginia tobacco and country tobacco were treated as two different commodities, and Venkataraman v. State of Madras, 1970-1 SCR 615 = (AIR 1970 508) where cane jaggery and plam jaggery were treated as two different commodities.11. We do not think that the Act can be said to contravene Section 15 of the Central Sales Tax Act. Under the Act though watery coconuts and dried coconuts are treated separately there is a provision for refund when the same watery coconuts, which have suffered tax, become dry coconuts, which have suffered tax, become dry coconuts later. It is for this contingency that, as we have pointed out earlier, provision for refund is made. In any case in the future no difficulty would arise as we pointed out earlier. | 0[ds]6. It is unnecessary to consider whether the Andhra Pradesh High Court was right in its decision that watery coconut is an oilseeds for the reasons given by them, especially after the amendment made by the Central Act which seems to proceed on the basis that only copra is an oilseeds as the Andhra Pradesh Act proceeds on the basis that watery coconut is also an oilseed. That amendment applies only to the period after 1 April, 1973 and these appeals and petitioners relate to the period before 17 April, 1971, Mr. Basi Reddy appearing for the State of Andhra Pradesh does not seek to question this finding either. Undoubtedly, it is the watery coconut that in due course becomes dry coconut or copra, Mr. Basi Reddy does not even seek to argue that the same watery coconut after having suffered tax should also be taxed as dry coconut.7. The first point to be noticed about the 1971 amendment is that in one of its aspects it deals with the period between August 1963 to April 1971 and validates taxes already levied and collected. Therefore, the proviso to entry 5-A of Schedule III which provides for refund does not really suffer from the defect pointed out by this Court in Bhawani Cotton Mills case, 20 STC 290 = (AIR 1967 SC 1616 ) that a provision for taxation which would not be justifiable cannot be upheld merely on the ground that it provides also for a refund. The various periods mentioned in item 5-A are there because of historical reasons and they are only reproductions of provisions of earlier law. The decision in the Bhawani Cotton Mills case on which the petitioners relied cannot apply in this case because in the Act there under consideration there was no provision indicating the state at which the tax was to be levied. The very same levy was upheld in Rattan Lal and Co. v. Assessing Authority, 25 STC 136 = (AIR 1970 SC 1742 ) after the Act was amended by specifying the stage as the last purchase or sale of declared goods by a dealer liable to pay the tax and making the stage quite clear, and by giving the dealer an option not to include other transactions in his returns and thus saving him from the liability to pay the tax till he was the dealer liable to pay the tax. This Court then pointed out that the information whether his was the last purchase or sale was always possessed by a dealer and by providing that he need not include in his turnover any transaction except when he was the last dealer the position was made clear. It is this decision that will be applicable to the facts of this case.8. In this connection we may point our that the provisions of Rule 45 of the Andhra Pradesh General Sales Tax Rules aremake it amply clear that there can be no question of either a dealer in watery coconuts or in dry coconuts having to pay a tax over again hereafter. They can include in their return only goods which are liable to tax and need not include those which have already suffered tax.9. Another aspect of the 1971 Act that as a result of it there are two entries, 5 and 5-A in Schedule III, namely coconuts of all varieties and watery coconuts there is no possibility of watery coconuts suffering tax after they become dried coconuts, if they have already suffered tax as watery coconuts. Rule 45 provides sufficient safeguards for this purpose.10. We also accept the contention put forward on behalf of the State of Andhra Pradesh that watery coconuts and dried coconuts are two distinct commodities commercially speaking. Watery coconuts are put to a variety of uses e.g., for cooking purpose, for religious and social functions whereas dried coconuts are used mainly for extracting oil. This Court has in a number of cases held that the same commodity at different stages could be treated and taxed as commercially different articles. In A. Hajee Abdul Shakoor and Co. v. State of Madras, 1964-8 SCR 217 = (AIR 1964 SC 1729 ) this Court held that hides and skins in the untanned condition are undoubtedly different as articles of merchandise than tanned hides and skins and pointed out that the fact that certain articles are mentioned under the same heading in a statute or the constitution, does not mean that they all constitute one commodity. We may also refer to the decisions in Jagannath v. Union of India, 1962-2 SCR 118 = (AIR 1962 SC 148 ) where tobacco in the whole leaf and tobacco in the broken leaf were treated as two different commodities, East India Tobacco Co. v. State of Andhra Pradesh, 1963-1 SCR 404 = (AIR 1962 SC 1733 ) where Virginia tobacco and country tobacco were treated as two different commodities, and Venkataraman v. State of Madras, 1970-1 SCR 615 = (AIR 1970 508) where cane jaggery and plam jaggery were treated as two different commodities.11. We do not think that the Act can be said to contravene Section 15 of the Central Sales Tax Act. Under the Act though watery coconuts and dried coconuts are treated separately there is a provision for refund when the same watery coconuts, which have suffered tax, become dry coconuts, which have suffered tax, become dry coconuts later. It is for this contingency that, as we have pointed out earlier, provision for refund is made. In any case in the future no difficulty would arise as we pointed out earlier. | 0 | 2,922 | 998 | ### 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:
from the defect pointed out by this Court in Bhawani Cotton Mills case, 20 STC 290 = (AIR 1967 SC 1616 ) that a provision for taxation which would not be justifiable cannot be upheld merely on the ground that it provides also for a refund. The various periods mentioned in item 5-A are there because of historical reasons and they are only reproductions of provisions of earlier law. The decision in the Bhawani Cotton Mills case on which the petitioners relied cannot apply in this case because in the Act there under consideration there was no provision indicating the state at which the tax was to be levied. The very same levy was upheld in Rattan Lal and Co. v. Assessing Authority, 25 STC 136 = (AIR 1970 SC 1742 ) after the Act was amended by specifying the stage as the last purchase or sale of declared goods by a dealer liable to pay the tax and making the stage quite clear, and by giving the dealer an option not to include other transactions in his returns and thus saving him from the liability to pay the tax till he was the dealer liable to pay the tax. This Court then pointed out that the information whether his was the last purchase or sale was always possessed by a dealer and by providing that he need not include in his turnover any transaction except when he was the last dealer the position was made clear. It is this decision that will be applicable to the facts of this case.8. In this connection we may point our that the provisions of Rule 45 of the Andhra Pradesh General Sales Tax Rules are similar. It provides that every dealer has to maintain a true and correct account showing the value of the goods produced, manufactured, bought and sold by him, the names and addresses of the persons from whom goods were purchased, supported by a bill or delivery note issued by the seller. Every dealer carrying on business in the goods specified in the First, Second and Third Schedules whose total turnover exceeds Rs. 10,000 a year and every other dealer whose turnover exceeds Rs. 20,000 a year shall issue a bill or cash memorandum in respect of every sale involving an amount of Rs. 5 or more. Every such bill or cash memorandum shall be duly signed and dated and a counter-foil shall be kept by the dealer. The bills or cash memoranda issued by a dealer shall be serially numbered for each year and in each of the bills or cash memoranda issued the dealer shall specify the full name and style of his business, the number of his registration certificate, the particulars of goods sold and the price thereof and in the case of sales to a dealer the full name and address and the number of the registration certificate of the purchaser. The bills or cash memoranda issued in the case of sales of goods liable to a single point tax shall contain the following certificate... Certified that in respect of the turnover of the goods mentioned in item (s) of this bill the tax has been paid or/is payable by me or is payable by Sri/Ms...being the dealer who has purchased them from me. These make it amply clear that there can be no question of either a dealer in watery coconuts or in dry coconuts having to pay a tax over again hereafter. They can include in their return only goods which are liable to tax and need not include those which have already suffered tax.9. Another aspect of the 1971 Act that as a result of it there are two entries, 5 and 5-A in Schedule III, namely coconuts of all varieties and watery coconuts there is no possibility of watery coconuts suffering tax after they become dried coconuts, if they have already suffered tax as watery coconuts. Rule 45 provides sufficient safeguards for this purpose.10. We also accept the contention put forward on behalf of the State of Andhra Pradesh that watery coconuts and dried coconuts are two distinct commodities commercially speaking. Watery coconuts are put to a variety of uses e.g., for cooking purpose, for religious and social functions whereas dried coconuts are used mainly for extracting oil. This Court has in a number of cases held that the same commodity at different stages could be treated and taxed as commercially different articles. In A. Hajee Abdul Shakoor and Co. v. State of Madras, 1964-8 SCR 217 = (AIR 1964 SC 1729 ) this Court held that hides and skins in the untanned condition are undoubtedly different as articles of merchandise than tanned hides and skins and pointed out that the fact that certain articles are mentioned under the same heading in a statute or the constitution, does not mean that they all constitute one commodity. We may also refer to the decisions in Jagannath v. Union of India, 1962-2 SCR 118 = (AIR 1962 SC 148 ) where tobacco in the whole leaf and tobacco in the broken leaf were treated as two different commodities, East India Tobacco Co. v. State of Andhra Pradesh, 1963-1 SCR 404 = (AIR 1962 SC 1733 ) where Virginia tobacco and country tobacco were treated as two different commodities, and Venkataraman v. State of Madras, 1970-1 SCR 615 = (AIR 1970 508) where cane jaggery and plam jaggery were treated as two different commodities.11. We do not think that the Act can be said to contravene Section 15 of the Central Sales Tax Act. Under the Act though watery coconuts and dried coconuts are treated separately there is a provision for refund when the same watery coconuts, which have suffered tax, become dry coconuts, which have suffered tax, become dry coconuts later. It is for this contingency that, as we have pointed out earlier, provision for refund is made. In any case in the future no difficulty would arise as we pointed out earlier.
### Response:
0
### Explanation:
6. It is unnecessary to consider whether the Andhra Pradesh High Court was right in its decision that watery coconut is an oilseeds for the reasons given by them, especially after the amendment made by the Central Act which seems to proceed on the basis that only copra is an oilseeds as the Andhra Pradesh Act proceeds on the basis that watery coconut is also an oilseed. That amendment applies only to the period after 1 April, 1973 and these appeals and petitioners relate to the period before 17 April, 1971, Mr. Basi Reddy appearing for the State of Andhra Pradesh does not seek to question this finding either. Undoubtedly, it is the watery coconut that in due course becomes dry coconut or copra, Mr. Basi Reddy does not even seek to argue that the same watery coconut after having suffered tax should also be taxed as dry coconut.7. The first point to be noticed about the 1971 amendment is that in one of its aspects it deals with the period between August 1963 to April 1971 and validates taxes already levied and collected. Therefore, the proviso to entry 5-A of Schedule III which provides for refund does not really suffer from the defect pointed out by this Court in Bhawani Cotton Mills case, 20 STC 290 = (AIR 1967 SC 1616 ) that a provision for taxation which would not be justifiable cannot be upheld merely on the ground that it provides also for a refund. The various periods mentioned in item 5-A are there because of historical reasons and they are only reproductions of provisions of earlier law. The decision in the Bhawani Cotton Mills case on which the petitioners relied cannot apply in this case because in the Act there under consideration there was no provision indicating the state at which the tax was to be levied. The very same levy was upheld in Rattan Lal and Co. v. Assessing Authority, 25 STC 136 = (AIR 1970 SC 1742 ) after the Act was amended by specifying the stage as the last purchase or sale of declared goods by a dealer liable to pay the tax and making the stage quite clear, and by giving the dealer an option not to include other transactions in his returns and thus saving him from the liability to pay the tax till he was the dealer liable to pay the tax. This Court then pointed out that the information whether his was the last purchase or sale was always possessed by a dealer and by providing that he need not include in his turnover any transaction except when he was the last dealer the position was made clear. It is this decision that will be applicable to the facts of this case.8. In this connection we may point our that the provisions of Rule 45 of the Andhra Pradesh General Sales Tax Rules aremake it amply clear that there can be no question of either a dealer in watery coconuts or in dry coconuts having to pay a tax over again hereafter. They can include in their return only goods which are liable to tax and need not include those which have already suffered tax.9. Another aspect of the 1971 Act that as a result of it there are two entries, 5 and 5-A in Schedule III, namely coconuts of all varieties and watery coconuts there is no possibility of watery coconuts suffering tax after they become dried coconuts, if they have already suffered tax as watery coconuts. Rule 45 provides sufficient safeguards for this purpose.10. We also accept the contention put forward on behalf of the State of Andhra Pradesh that watery coconuts and dried coconuts are two distinct commodities commercially speaking. Watery coconuts are put to a variety of uses e.g., for cooking purpose, for religious and social functions whereas dried coconuts are used mainly for extracting oil. This Court has in a number of cases held that the same commodity at different stages could be treated and taxed as commercially different articles. In A. Hajee Abdul Shakoor and Co. v. State of Madras, 1964-8 SCR 217 = (AIR 1964 SC 1729 ) this Court held that hides and skins in the untanned condition are undoubtedly different as articles of merchandise than tanned hides and skins and pointed out that the fact that certain articles are mentioned under the same heading in a statute or the constitution, does not mean that they all constitute one commodity. We may also refer to the decisions in Jagannath v. Union of India, 1962-2 SCR 118 = (AIR 1962 SC 148 ) where tobacco in the whole leaf and tobacco in the broken leaf were treated as two different commodities, East India Tobacco Co. v. State of Andhra Pradesh, 1963-1 SCR 404 = (AIR 1962 SC 1733 ) where Virginia tobacco and country tobacco were treated as two different commodities, and Venkataraman v. State of Madras, 1970-1 SCR 615 = (AIR 1970 508) where cane jaggery and plam jaggery were treated as two different commodities.11. We do not think that the Act can be said to contravene Section 15 of the Central Sales Tax Act. Under the Act though watery coconuts and dried coconuts are treated separately there is a provision for refund when the same watery coconuts, which have suffered tax, become dry coconuts, which have suffered tax, become dry coconuts later. It is for this contingency that, as we have pointed out earlier, provision for refund is made. In any case in the future no difficulty would arise as we pointed out earlier.
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M/S ZHEJIANG BONLY ELEVATOR GUIDE RAIL MANUFACTURE CO. LTD Vs. M/S JADE ELEVATOR COMPONENTS | the laws of People?s Republic of China having its office at Sanquiao Village, Fuchun Street, Fuyang, China, is engaged in the business of, inter alia, exporting and supplying high quality elevator guiderails, fish-plates, accessories and allied goods. The respondent, a partnership firm based in India having its office at Plot No.455, Road No.11, ?A? Cross Road, GIDC, Kathwada, Ahmedabad – 382430, Gujarat, is engaged in the business of supplying elevator components for use in the modernization of existing lifts and the new design of the elevator.3. The contract, namely, Commission Processing Contract (hereinafter referred to as „the Contract?) was entered into between the parties on 11.09.2014 in respect of supply of certain products under the Contract. In the course of performance of the Contract, as certain differences had arisen and the parties were unable to amicably settle the disputes which fell within the scope of the arbitration clause, the petitioner appointed Justice V.S. Agarwal, former Judge, High Court of Judicature at New Delhi as the sole arbitrator. On 30.03,2018, the petitioner called upon the respondent to consent to the appointment of the sole arbitrator within a period of thirty days from the receipt of the notice. The respondent received the said notice on 31.03.2018 and the respondent in its reply dated 05.04.2018 refused to concur and consent to the appointment of the sole arbitrator. Because of the aforesaid situation, the petitioner has been compelled to move this Court for appointment of the sole arbitrator. When the matter was listed before this Court after service of notice, the learned counsel for the respondent has placed reliance on the reply dated 05.04.2018 given by the counsel for the respondent. In the said reply, the facts asserted by the petitioner have been disputed. That apart, it has been stated that the claims put forth are beyond the provisions of the Contract. 4. To appreciate the controversy, it is required to be seen whether there is an arbitration clause for resolution of the disputes. Clause 15 of the agreement as translated in English reads as follows:- ?15. Dispute handling: Common processing contract disputes, the parties should be settled through consultation; consultation fails by treatment of to the arbitration body for arbitration or the court.? 5. It is submitted by learned counsel for the petitioner that if the clause of „dispute handling? is scrutinized appropriately, the disputes are to be settled through consultation and, if the consultation fails by treatment of to the arbitration body for arbitration or Court and, therefore, the matter has to be referred to arbitration. It is canvassed by him that the clause is not categorically specific that it has to be adjudicated in a court of law. It leads to choices and the choice expressed by the petitioner is arbitration.6. Learned counsel for the respondent, in his turn, would urge that when it is stated arbitration or Court, the petitioner should knock at the doors of the competent court but not resort to arbitration, for the clause cannot be regarded as an arbitration clause which stipulates that the disputes shall be referred to arbitration. 7. To appreciate the clause in question, it is necessary to appositely understand the anatomy of the clause. It stipulates the caption given to the clause „dispute handling?. It states that the disputes should be settled through consultation and if the consultation fails by treatment of to the arbitration body for arbitration or the court. On a query being made, learned counsel for the parties very fairly stated that though the translation is not happily worded, yet it postulates that the words ?arbitration or the court? are undisputable as far as the adjudication of the disputes is concerned. There is assertion that disputes have arisen between the parties. The intention of the parties, as it flows from the clause, is that efforts have to be made to settle the disputes in an amicable manner and, therefore, two options are available, either to go for arbitration or for litigation in a court of law. 8. This Court had the occasion to deal with such a clause in the agreement in INDTEL Technical Services Private Limited vs. W.S. Atkins Rail Limited (2008) 10 SCC 308 . In the said agreement, clause No.13 dealt with the settlement of disputes. Clauses 13.2 and 13.3 that throw light on the present case were couched in the following language:- ?13.2. Subject to Clause 13.3 all disputes or differences arising out of, or in connection with, this agreement which cannot be settled amicably by the parties shall be referred to adjudication;13.3. If any dispute or difference under this agreement touches or concerns any dispute or difference under either of the sub-contract agreements, then the parties agree that such dispute or difference hereunder will be referred to the adjudicator or the courts as the case may be appointed to decide the dispute or difference under the relevant sub-contract agreement and the parties hereto agree to abide by such decision as if it were a decision under this agreement.? 9. Interpreting the aforesaid clauses, the Judge designated by the learned Chief Justice of India held thus:- ?Furthermore, from the wording of Clause 13.2 and Clause 13.3, I am convinced, for the purpose of this application, that the parties to the memorandum intended to have their disputes resolved by arbitration and in the facts of this case the petition has to be allowed.? 10. The aforesaid passage makes it clear as crystal that emphasis has been laid on the intention of the parties to have their disputes resolved by arbitration. 11. In the case at hand, as we find, Clause 15 refers to arbitration or court. Thus, there is an option and the petitioner has invoked the arbitration clause and, therefore, we have no hesitation, in the obtaining factual matrix of the case, for appointment of an arbitrator and, accordingly, Justice Prakash Prabhakar Naolekar, formerly a Judge of this Court, is appointed as sole Arbitrator to arbitrate upon the disputes which have arisen between the parties. | 1[ds]8. This Court had the occasion to deal with such a clause in the agreement in INDTEL Technical Services Private Limited vs. W.S. Atkins Rail LimitedSubject to Clause 13.3 all disputes or differences arising out of, or in connection with, this agreement which cannot be settled amicably by the parties shall be referred to adjudication;13.3. If any dispute or difference under this agreement touches or concerns any dispute or difference under either of theagreements, then the parties agree that such dispute or difference hereunder will be referred to the adjudicator or the courts as the case may be appointed to decide the dispute or difference under the relevantagreement and the parties hereto agree to abide by such decision as if it were a decision under this agreement.Interpreting the aforesaid clauses, the Judge designated by the learned Chief Justice of India heldfrom the wording of Clause 13.2 and Clause 13.3, I am convinced, for the purpose of this application, that the parties to the memorandum intended to have their disputes resolved by arbitration and in the facts of this case the petition has to be allowed.The aforesaid passage makes it clear as crystal that emphasis has been laid on the intention of the parties to have their disputes resolved by arbitration.(2008) 10 SCCIn the case at hand, as we find, Clause 15 refers to arbitration or court. Thus, there is an option and the petitioner has invoked the arbitration clause and, therefore, we have no hesitation, in the obtaining factual matrix of the case, for appointment of an arbitrator and, accordingly, Justice Prakash Prabhakar Naolekar, formerly a Judge of this Court, is appointed as sole Arbitrator to arbitrate upon the disputes which have arisen between the parties. | 1 | 1,230 | 320 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
the laws of People?s Republic of China having its office at Sanquiao Village, Fuchun Street, Fuyang, China, is engaged in the business of, inter alia, exporting and supplying high quality elevator guiderails, fish-plates, accessories and allied goods. The respondent, a partnership firm based in India having its office at Plot No.455, Road No.11, ?A? Cross Road, GIDC, Kathwada, Ahmedabad – 382430, Gujarat, is engaged in the business of supplying elevator components for use in the modernization of existing lifts and the new design of the elevator.3. The contract, namely, Commission Processing Contract (hereinafter referred to as „the Contract?) was entered into between the parties on 11.09.2014 in respect of supply of certain products under the Contract. In the course of performance of the Contract, as certain differences had arisen and the parties were unable to amicably settle the disputes which fell within the scope of the arbitration clause, the petitioner appointed Justice V.S. Agarwal, former Judge, High Court of Judicature at New Delhi as the sole arbitrator. On 30.03,2018, the petitioner called upon the respondent to consent to the appointment of the sole arbitrator within a period of thirty days from the receipt of the notice. The respondent received the said notice on 31.03.2018 and the respondent in its reply dated 05.04.2018 refused to concur and consent to the appointment of the sole arbitrator. Because of the aforesaid situation, the petitioner has been compelled to move this Court for appointment of the sole arbitrator. When the matter was listed before this Court after service of notice, the learned counsel for the respondent has placed reliance on the reply dated 05.04.2018 given by the counsel for the respondent. In the said reply, the facts asserted by the petitioner have been disputed. That apart, it has been stated that the claims put forth are beyond the provisions of the Contract. 4. To appreciate the controversy, it is required to be seen whether there is an arbitration clause for resolution of the disputes. Clause 15 of the agreement as translated in English reads as follows:- ?15. Dispute handling: Common processing contract disputes, the parties should be settled through consultation; consultation fails by treatment of to the arbitration body for arbitration or the court.? 5. It is submitted by learned counsel for the petitioner that if the clause of „dispute handling? is scrutinized appropriately, the disputes are to be settled through consultation and, if the consultation fails by treatment of to the arbitration body for arbitration or Court and, therefore, the matter has to be referred to arbitration. It is canvassed by him that the clause is not categorically specific that it has to be adjudicated in a court of law. It leads to choices and the choice expressed by the petitioner is arbitration.6. Learned counsel for the respondent, in his turn, would urge that when it is stated arbitration or Court, the petitioner should knock at the doors of the competent court but not resort to arbitration, for the clause cannot be regarded as an arbitration clause which stipulates that the disputes shall be referred to arbitration. 7. To appreciate the clause in question, it is necessary to appositely understand the anatomy of the clause. It stipulates the caption given to the clause „dispute handling?. It states that the disputes should be settled through consultation and if the consultation fails by treatment of to the arbitration body for arbitration or the court. On a query being made, learned counsel for the parties very fairly stated that though the translation is not happily worded, yet it postulates that the words ?arbitration or the court? are undisputable as far as the adjudication of the disputes is concerned. There is assertion that disputes have arisen between the parties. The intention of the parties, as it flows from the clause, is that efforts have to be made to settle the disputes in an amicable manner and, therefore, two options are available, either to go for arbitration or for litigation in a court of law. 8. This Court had the occasion to deal with such a clause in the agreement in INDTEL Technical Services Private Limited vs. W.S. Atkins Rail Limited (2008) 10 SCC 308 . In the said agreement, clause No.13 dealt with the settlement of disputes. Clauses 13.2 and 13.3 that throw light on the present case were couched in the following language:- ?13.2. Subject to Clause 13.3 all disputes or differences arising out of, or in connection with, this agreement which cannot be settled amicably by the parties shall be referred to adjudication;13.3. If any dispute or difference under this agreement touches or concerns any dispute or difference under either of the sub-contract agreements, then the parties agree that such dispute or difference hereunder will be referred to the adjudicator or the courts as the case may be appointed to decide the dispute or difference under the relevant sub-contract agreement and the parties hereto agree to abide by such decision as if it were a decision under this agreement.? 9. Interpreting the aforesaid clauses, the Judge designated by the learned Chief Justice of India held thus:- ?Furthermore, from the wording of Clause 13.2 and Clause 13.3, I am convinced, for the purpose of this application, that the parties to the memorandum intended to have their disputes resolved by arbitration and in the facts of this case the petition has to be allowed.? 10. The aforesaid passage makes it clear as crystal that emphasis has been laid on the intention of the parties to have their disputes resolved by arbitration. 11. In the case at hand, as we find, Clause 15 refers to arbitration or court. Thus, there is an option and the petitioner has invoked the arbitration clause and, therefore, we have no hesitation, in the obtaining factual matrix of the case, for appointment of an arbitrator and, accordingly, Justice Prakash Prabhakar Naolekar, formerly a Judge of this Court, is appointed as sole Arbitrator to arbitrate upon the disputes which have arisen between the parties.
### Response:
1
### Explanation:
8. This Court had the occasion to deal with such a clause in the agreement in INDTEL Technical Services Private Limited vs. W.S. Atkins Rail LimitedSubject to Clause 13.3 all disputes or differences arising out of, or in connection with, this agreement which cannot be settled amicably by the parties shall be referred to adjudication;13.3. If any dispute or difference under this agreement touches or concerns any dispute or difference under either of theagreements, then the parties agree that such dispute or difference hereunder will be referred to the adjudicator or the courts as the case may be appointed to decide the dispute or difference under the relevantagreement and the parties hereto agree to abide by such decision as if it were a decision under this agreement.Interpreting the aforesaid clauses, the Judge designated by the learned Chief Justice of India heldfrom the wording of Clause 13.2 and Clause 13.3, I am convinced, for the purpose of this application, that the parties to the memorandum intended to have their disputes resolved by arbitration and in the facts of this case the petition has to be allowed.The aforesaid passage makes it clear as crystal that emphasis has been laid on the intention of the parties to have their disputes resolved by arbitration.(2008) 10 SCCIn the case at hand, as we find, Clause 15 refers to arbitration or court. Thus, there is an option and the petitioner has invoked the arbitration clause and, therefore, we have no hesitation, in the obtaining factual matrix of the case, for appointment of an arbitrator and, accordingly, Justice Prakash Prabhakar Naolekar, formerly a Judge of this Court, is appointed as sole Arbitrator to arbitrate upon the disputes which have arisen between the parties.
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P. Kasilingam Vs. P.S.G. College of Technology | beg to resign my office as Judge High Court of Judicature at Allahabad. "I will be on leave till 31st of July, 1977. My resignation shall be effective on 1st of August, 1977." 11. The Court in construing the words resign his office in proviso (a) to Art. 217(1) of the Constitution held that a High Court Judges letter addressed to the President intimating or notifying his intention to resign his office of a Judge on a future date, does not and cannot sever him from the office of the Judge, or terminate his tenure. It may be conceded that it is open to a servant to make his resignation operative from a future date and to withdraw such resignation before it s acceptance. The question as to when a Government servants resignation becomes effective came up for consideration by this Court in Raj Kumar v. Union of India. It was held that the services of a Government servant normally stand terminated from the date on which the letter of resignation is accepted by the appropriate authority, unless there is any law or statutory rule governing the conditions of service to the contrary. There is no reason why the same principle should not apply to the case of any other employee.We are, however, constrained to observe that the Government acted in breach of the rules of natural justice inasmuch as there was on its part non-compliance of the requirements of cl. (1) of sub-s. (2) of s. 39 of the Act, which reads:"39(2) On receipt of any such appeal, the appellate authority shall, after- (i) giving the parties an opportunity of making their representations, (ii) ..... ........ ( iii).............. make such order as it deems just and equitable." 12. It is contended on behalf of the respondent that the High Court instead of resting its decision on merits, should have directed the Government to re-hear the appeal under s.20 of the Act. It is submitted that there was a duty cast on the Government to hear the respondent since the Addl. Director of Technical Education had on the basis of the evidence adduced, come to a definitive finding that the letter of resignation submitted by the appellant was voluntary, before it came to a contrary conclusion. The contention has considerable force. It is needless to stress that ordinarily the Government must, in all such cases, as a matter of course, give the parties the opportunity of making their representations before taking a decision. 13. In our judgment it would however, really serve no useful purpose in remitting the appeal in this particular case to the Government for a re-hearing . It is not seriously disputed before us that the charges levelled against the appellant were not of such a nature as would merit his dismissal from service. On the contrary, it can easily be visualised that even if the appeal were sent back to the Government, it would either exonerate the appellant or may let him off with a minor penalty. The better course would be to restore the order of the Government for the reinstatement of the appellant in service, having regard to the facts and circumstances of the case.There still remains the question of back-wages. It is sought to be urged on behalf of the appellant that upon such reinstatement he would be entitled under the terms of sub- s.(1) of s.40 of the Act to all his arrears of pay and allowances. We are afraid, we can make no such direction in this appeal. There is nothing on record to show that any such appeal has been filed by the respondent. Sub-section (1) of s.40 makes deposit of arrears of salary and allowances upon reinstatement by the appellate authority referred to in s.20 of the Act, a pre-condition to the preferment of an appeal by the management under s.22. Only when such an appeal is preferred by the management the Tribunal is invested with jurisdiction to make a direction under sub-s.(1) of s.40 that the management shall deposit the arrears of pay and allowances due to the appellant within such time as it directs. In that event, it is of course, open to the ma nagement to raise a dispute according to sub-s.(3) of s.40 of the Act as to the amount to be deposited under sub-s.(1). In the instant case, however, since there is no appeal filed by the respondent under s.22 of the Act, the question of making a direction in terms of sub-s.(1) of s.40 of the Act does not arise. 14. It was, however, open to the Government while allowing the appeal preferred by the appellant under s. 20 of the Act to make a direction not only for his reinstatement but also for payment of all his arrears of pay and allowances. The words make such order as it deems just and equitable read in the context of cl.(iii) thereof: "(iii) considering all the circumstances of the case" occurring in sub-s.(2) of s.3 9 of the Act, are wide enough to include the power to make such a direction. Normally, the reinstatement of a person in service should carry a direction for payment of his back-wages. We regret to find that the Government has made no direction i n that behalf. We are, therefore, constrained to remit the matter to the Government. While adjudicating upon the claim of the appellant to payment of all his arrears of pay and allowances, the Government shall give an opportunity t o the respondent to have its say in the matter. The respondent is entitled, as a matter of law. it adjustment of equities between the parties by an account being taken of the salary earned by the appellant elsewhere or of any income derived by him from any source whatsoever, between the period from September 19, 1976 till the date of reinstatement. The appellant had a duty to mitigate his loss and it cannot be that during the aforesaid period he remained idle throughout.I n | 1[ds]Regrettably the High Court has in allowing the writ petition converted itself into a court of appeal and examined for itself the correctness of the conclusion reached by the Government and decided what was the proper view to be taken or the order to be made. It adverts to the three circumstances relied upon by the Government for reaching the conclusion that the letter of resignation was not voluntary and not accepting the report of the enquiry officer. It observes that though Prof. Shanmughasundaram, Head of the Department, had been examined during the enquiry, there was no specific question put to him during his cross-examination that the two letters had been typed by him. It further observes that there was absolutely no evidence at all as to who typed the letters in question and on whose typewriter they were got typed. It observes that the Government was also aware of the lack of evidence on this aspect of the case and it was for this reason they have not made any specific averment in the counter affidavit. They merely say the letter s seem to have been typed by the management themselves. This appears to be a mere conjecture and a finding based on such a conjecture cannot at all be supported as based on any acceptable evidence. It then proceeds to refute the suggestion of the Government that the corrections made in the two letters were in the handwriting of the Advocate appearing for the management, and goes on to say that the Government once again merely surmises that the letter contained corrections by the Advocate for the management. It also rejects the suspicion attaching to the submission of the letters of resignation and apology simultaneously by expressing that we do not see how the Government can delve into the mind of the management and find out whether there was necessity to give the letter of resignation and apology simultaneously.The Government was competent to come to the conclusion that it did upon the facts appearing on the record. The High Court could not speculate as to what were the circumstances which outweighed the finding recorded by the Addl. Director of Technical Education holding that the appellant had voluntarily submitted his resignation. The fact remains that the report submitted by him was not accepted by the Government and it came to the conclusion that the letter of resignation could not be treated to be voluntary. The Government was circumspect in viewing the circumstances surrounding the submission of the letter of resignation with certain amount of suspicion. The finding reached by the Government does not necessarily mean that the letter of resignation was obtained from the appellant under coercion. It may well be that the appellant was acting under an element of compulsion for he had become a victim of the situation brought about by the holding of a departmental enquiry and if the appellant placed in such circumstances submitted a letter of resignation it would not necessarily give rise to an inference that his act in doing so was voluntaryRegrettably the High Court has in allowing the writ petition converted itself into a court of appeal and examined for itself the correctness of the conclusion reached by the Government and decided what was the proper view to be taken or the order to be made. It adverts to the three circumstances relied upon by the Government for reaching the conclusion that the letter of resignation was not voluntary and not accepting the report of the enquiry officer. It observes that though Prof. Shanmughasundaram, Head of the Department, had been examined during the enquiry, there was no specific question put to him during his cross-examination that the two letters had been typed by him. It further observes that there was absolutely no evidence at all as to who typed the letters in question and on whose typewriter they were got typed. It observes that the Government was also aware of the lack of evidence on this aspect of the case and it was for this reason they have not made any specific averment in the counter affidavit. They merely say the letter s seem to have been typed by the management themselves. This appears to be a mere conjecture and a finding based on such a conjecture cannot at all be supported as based on any acceptable evidence. It then proceeds to refute the suggestion of the Government that the corrections made in the two letters were in the handwriting of the Advocate appearing for the management, and goes on to say that the Government once again merely surmises that the letter contained corrections by the Advocate for the management. It also rejects the suspicion attaching to the submission of the letters of resignation and apology simultaneously by expressing that we do not see how the Government can delve into the mind of the management and find out whether there was necessity to give the letter of resignation and apology simultaneously.The Government was competent to come to the conclusion that it did upon the facts appearing on the record. The High Court could not speculate as to what were the circumstances which outweighed the finding recorded by the Addl. Director of Technical Education holding that the appellant had voluntarily submitted his resignation. The fact remains that the report submitted by him was not accepted by the Government and it came to the conclusion that the letter of resignation could not be treated to be voluntary. The Government was circumspect in viewing the circumstances surrounding the submission of the letter of resignation with certain amount of suspicion. The finding reached by the Government does not necessarily mean that the letter of resignation was obtained from the appellant under coercion. It may well be that the appellant was acting under an element of compulsion for he had become a victim of the situation brought about by the holding of a departmental enquiry and if the appellant placed in such circumstances submitted a letter of resignation it would not necessarily give rise to an inference that his act in doing so was voluntaryThe contention has considerable force. It is needless to stress that ordinarily the Government must, in all such cases, as a matter of course, give the parties the opportunity of making their representations before taking a decisionIn our judgment it would however, really serve no useful purpose in remitting the appeal in this particular case to the Government for a re-hearing . It is not seriously disputed before us that the charges levelled against the appellant were not of such a nature as would merit his dismissal from service. On the contrary, it can easily be visualised that even if the appeal were sent back to the Government, it would either exonerate the appellant or may let him off with a minor penalty. The better course would be to restore the order of the Government for the reinstatement of the appellant in service, having regard to the facts and circumstances of the case.There still remains the question of back-wages. It is sought to be urged on behalf of the appellant that upon such reinstatement he would be entitled under the terms of sub- s.(1) of s.40 of the Act to all his arrears of pay and allowances. We are afraid, we can make no such direction in this appeal. There is nothing on record to show that any such appeal has been filed by the respondent. Sub-section (1) of s.40 makes deposit of arrears of salary and allowances upon reinstatement by the appellate authority referred to in s.20 of the Act, a pre-condition to the preferment of an appeal by the management under s.22. Only when such an appeal is preferred by the management the Tribunal is invested with jurisdiction to make a direction under sub-s.(1) of s.40 that the management shall deposit the arrears of pay and allowances due to the appellant within such time as it directs. In that event, it is of course, open to the ma nagement to raise a dispute according to sub-s.(3) of s.40 of the Act as to the amount to be deposited under sub-s.(1). In the instant case, however, since there is no appeal filed by the respondent under s.22 of the Act, the question of making a direction in terms of sub-s.(1) of s.40 of the Act does not arise7. There is no manner of doubt that the circumstances attendant upon the submission of the letter of resignation and the letter of apology on March 19, 1976 are somewhat strange. The manner in which the letter of resignation was obtained from the appellant on that day at 8.30 A.M. together with his letter of apology, just before the departmental enquiry was to commence at 9.00 A.M., clearly suggests that they were integral parts of the same transaction. It was somewhat unusual for a delinquent officer to be called to the residence of the Correspondent of the College along with the Principal and to have the two documents signed by him, as a condition for dropping the enquiry. It appears that the submission of let ter of apology, which virtually amounted to an admission of guilt, along with the unconditional letter of resignation, was part of a deal between the management and the appellant. It was meant to act as an inducement for the enquiry not to be proceeded with. One is left with the unfortunate impression that the management wanted to dispense with the services of the appellant. The Government was, therefore, justified in holding that if the appellant placed in such circumstances submitted his resignation, it would not necessarily give rise to an inference that his act in doing so was voluntary. The Government in dealing with an appeal under s. 20 of the Act was, at any rate, entitled to come to that conclusiony the High Court has in allowing the writ petition converted itself into a court of appeal and examined for itself the correctness of the conclusion reached by the Government and decided what was the proper view to be taken or the order to be made. It adverts to the three circumstances relied upon by the Government for reaching the conclusion that the letter of resignation was not voluntary and not accepting the report of the enquiry officer. It observes that though Prof. Shanmughasundaram, Head of the Department, had been examined during the enquiry, there was no specific question put to him during hisn that the two letters had been typed by him. It further observes that there was absolutely no evidence at all as to who typed the letters in question and on whose typewriter they were got typed. It observes that the Government was also aware of the lack of evidence on this aspect of the case and it was for this reason they have not made any specific averment in the counter affidavit. They merely say the letter s seem to have been typed by the management themselves. This appears to be a mere conjecture and a finding based on such a conjecture cannot at all be supported as based on any acceptable evidence. It then proceeds to refute the suggestion of the Government that the corrections made in the two letters were in the handwriting of the Advocate appearing for the management, and goes on to say that the Government once again merely surmises that the letter contained corrections by the Advocate for the management. It also rejects the suspicion attaching to the submission of the letters of resignation and apology simultaneously by expressing that we do not see how the Government can delve into the mind of the management and find out whether there was necessity to give the letter of resignation and apology simultaneously.The Government was competent to come to the conclusion that it did upon the facts appearing on the record. The High Court could not speculate as to what were the circumstances which outweighed the finding recorded by the Addl. Director of Technical Education holding that the appellant had voluntarily submitted his resignation. The fact remains that the report submitted by him was not accepted by the Government and it came to the conclusion that the letter of resignation could not be treated to be voluntary. The Government was circumspect in viewing the circumstances surrounding the submission of the letter of resignation with certain amount of suspicion. The finding reached by the Government does not necessarily mean that the letter of resignation was obtained from the appellant under coercion. It may well be that the appellant was acting under an element of compulsion for he had become a victim of the situation brought about by the holding of a departmental enquiry and if the appellant placed in such circumstances submitted a letter of resignation it would not necessarily give rise to an inference that his act in doing so was | 1 | 3,596 | 2,272 | ### 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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beg to resign my office as Judge High Court of Judicature at Allahabad. "I will be on leave till 31st of July, 1977. My resignation shall be effective on 1st of August, 1977." 11. The Court in construing the words resign his office in proviso (a) to Art. 217(1) of the Constitution held that a High Court Judges letter addressed to the President intimating or notifying his intention to resign his office of a Judge on a future date, does not and cannot sever him from the office of the Judge, or terminate his tenure. It may be conceded that it is open to a servant to make his resignation operative from a future date and to withdraw such resignation before it s acceptance. The question as to when a Government servants resignation becomes effective came up for consideration by this Court in Raj Kumar v. Union of India. It was held that the services of a Government servant normally stand terminated from the date on which the letter of resignation is accepted by the appropriate authority, unless there is any law or statutory rule governing the conditions of service to the contrary. There is no reason why the same principle should not apply to the case of any other employee.We are, however, constrained to observe that the Government acted in breach of the rules of natural justice inasmuch as there was on its part non-compliance of the requirements of cl. (1) of sub-s. (2) of s. 39 of the Act, which reads:"39(2) On receipt of any such appeal, the appellate authority shall, after- (i) giving the parties an opportunity of making their representations, (ii) ..... ........ ( iii).............. make such order as it deems just and equitable." 12. It is contended on behalf of the respondent that the High Court instead of resting its decision on merits, should have directed the Government to re-hear the appeal under s.20 of the Act. It is submitted that there was a duty cast on the Government to hear the respondent since the Addl. Director of Technical Education had on the basis of the evidence adduced, come to a definitive finding that the letter of resignation submitted by the appellant was voluntary, before it came to a contrary conclusion. The contention has considerable force. It is needless to stress that ordinarily the Government must, in all such cases, as a matter of course, give the parties the opportunity of making their representations before taking a decision. 13. In our judgment it would however, really serve no useful purpose in remitting the appeal in this particular case to the Government for a re-hearing . It is not seriously disputed before us that the charges levelled against the appellant were not of such a nature as would merit his dismissal from service. On the contrary, it can easily be visualised that even if the appeal were sent back to the Government, it would either exonerate the appellant or may let him off with a minor penalty. The better course would be to restore the order of the Government for the reinstatement of the appellant in service, having regard to the facts and circumstances of the case.There still remains the question of back-wages. It is sought to be urged on behalf of the appellant that upon such reinstatement he would be entitled under the terms of sub- s.(1) of s.40 of the Act to all his arrears of pay and allowances. We are afraid, we can make no such direction in this appeal. There is nothing on record to show that any such appeal has been filed by the respondent. Sub-section (1) of s.40 makes deposit of arrears of salary and allowances upon reinstatement by the appellate authority referred to in s.20 of the Act, a pre-condition to the preferment of an appeal by the management under s.22. Only when such an appeal is preferred by the management the Tribunal is invested with jurisdiction to make a direction under sub-s.(1) of s.40 that the management shall deposit the arrears of pay and allowances due to the appellant within such time as it directs. In that event, it is of course, open to the ma nagement to raise a dispute according to sub-s.(3) of s.40 of the Act as to the amount to be deposited under sub-s.(1). In the instant case, however, since there is no appeal filed by the respondent under s.22 of the Act, the question of making a direction in terms of sub-s.(1) of s.40 of the Act does not arise. 14. It was, however, open to the Government while allowing the appeal preferred by the appellant under s. 20 of the Act to make a direction not only for his reinstatement but also for payment of all his arrears of pay and allowances. The words make such order as it deems just and equitable read in the context of cl.(iii) thereof: "(iii) considering all the circumstances of the case" occurring in sub-s.(2) of s.3 9 of the Act, are wide enough to include the power to make such a direction. Normally, the reinstatement of a person in service should carry a direction for payment of his back-wages. We regret to find that the Government has made no direction i n that behalf. We are, therefore, constrained to remit the matter to the Government. While adjudicating upon the claim of the appellant to payment of all his arrears of pay and allowances, the Government shall give an opportunity t o the respondent to have its say in the matter. The respondent is entitled, as a matter of law. it adjustment of equities between the parties by an account being taken of the salary earned by the appellant elsewhere or of any income derived by him from any source whatsoever, between the period from September 19, 1976 till the date of reinstatement. The appellant had a duty to mitigate his loss and it cannot be that during the aforesaid period he remained idle throughout.I n
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of the Government for the reinstatement of the appellant in service, having regard to the facts and circumstances of the case.There still remains the question of back-wages. It is sought to be urged on behalf of the appellant that upon such reinstatement he would be entitled under the terms of sub- s.(1) of s.40 of the Act to all his arrears of pay and allowances. We are afraid, we can make no such direction in this appeal. There is nothing on record to show that any such appeal has been filed by the respondent. Sub-section (1) of s.40 makes deposit of arrears of salary and allowances upon reinstatement by the appellate authority referred to in s.20 of the Act, a pre-condition to the preferment of an appeal by the management under s.22. Only when such an appeal is preferred by the management the Tribunal is invested with jurisdiction to make a direction under sub-s.(1) of s.40 that the management shall deposit the arrears of pay and allowances due to the appellant within such time as it directs. In that event, it is of course, open to the ma nagement to raise a dispute according to sub-s.(3) of s.40 of the Act as to the amount to be deposited under sub-s.(1). In the instant case, however, since there is no appeal filed by the respondent under s.22 of the Act, the question of making a direction in terms of sub-s.(1) of s.40 of the Act does not arise7. There is no manner of doubt that the circumstances attendant upon the submission of the letter of resignation and the letter of apology on March 19, 1976 are somewhat strange. The manner in which the letter of resignation was obtained from the appellant on that day at 8.30 A.M. together with his letter of apology, just before the departmental enquiry was to commence at 9.00 A.M., clearly suggests that they were integral parts of the same transaction. It was somewhat unusual for a delinquent officer to be called to the residence of the Correspondent of the College along with the Principal and to have the two documents signed by him, as a condition for dropping the enquiry. It appears that the submission of let ter of apology, which virtually amounted to an admission of guilt, along with the unconditional letter of resignation, was part of a deal between the management and the appellant. It was meant to act as an inducement for the enquiry not to be proceeded with. One is left with the unfortunate impression that the management wanted to dispense with the services of the appellant. The Government was, therefore, justified in holding that if the appellant placed in such circumstances submitted his resignation, it would not necessarily give rise to an inference that his act in doing so was voluntary. The Government in dealing with an appeal under s. 20 of the Act was, at any rate, entitled to come to that conclusiony the High Court has in allowing the writ petition converted itself into a court of appeal and examined for itself the correctness of the conclusion reached by the Government and decided what was the proper view to be taken or the order to be made. It adverts to the three circumstances relied upon by the Government for reaching the conclusion that the letter of resignation was not voluntary and not accepting the report of the enquiry officer. It observes that though Prof. Shanmughasundaram, Head of the Department, had been examined during the enquiry, there was no specific question put to him during hisn that the two letters had been typed by him. It further observes that there was absolutely no evidence at all as to who typed the letters in question and on whose typewriter they were got typed. It observes that the Government was also aware of the lack of evidence on this aspect of the case and it was for this reason they have not made any specific averment in the counter affidavit. They merely say the letter s seem to have been typed by the management themselves. This appears to be a mere conjecture and a finding based on such a conjecture cannot at all be supported as based on any acceptable evidence. It then proceeds to refute the suggestion of the Government that the corrections made in the two letters were in the handwriting of the Advocate appearing for the management, and goes on to say that the Government once again merely surmises that the letter contained corrections by the Advocate for the management. It also rejects the suspicion attaching to the submission of the letters of resignation and apology simultaneously by expressing that we do not see how the Government can delve into the mind of the management and find out whether there was necessity to give the letter of resignation and apology simultaneously.The Government was competent to come to the conclusion that it did upon the facts appearing on the record. The High Court could not speculate as to what were the circumstances which outweighed the finding recorded by the Addl. Director of Technical Education holding that the appellant had voluntarily submitted his resignation. The fact remains that the report submitted by him was not accepted by the Government and it came to the conclusion that the letter of resignation could not be treated to be voluntary. The Government was circumspect in viewing the circumstances surrounding the submission of the letter of resignation with certain amount of suspicion. The finding reached by the Government does not necessarily mean that the letter of resignation was obtained from the appellant under coercion. It may well be that the appellant was acting under an element of compulsion for he had become a victim of the situation brought about by the holding of a departmental enquiry and if the appellant placed in such circumstances submitted a letter of resignation it would not necessarily give rise to an inference that his act in doing so was
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Naresh Charan Das Gupta Vs. Paresh Charan Das Gupta | has often been observed that undue influence may in the last analysis be brought under one or the other of these two categories - the will cannot be attacked on the ground of undue influence. The law was thus stated by Lord Penzance in Hall v. Hall ((1868) L.R. 1 P. & D. 481 & 482) :"But all influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like, - these are all legitimate and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes. If so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, - these, if carried to a degree in which the free play of the testators judgment, discretion, or wishes is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led, but not driven; and his will must be the offspring of his own volition, and not the record of some one elses".11. Section 61 of Indian Succession Act (Act XXXIX of 1925) enacts that,A will or any part of a will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void".Illustration (vii) to the section is very instructive, and is as follows :"A, being in such a state of health as to be capable of exercising his own judgment and volition, B uses urgent intercession and persuasion with him to induce him to make a will of a certain purport. A, in consequence of the intercession and persuasion, but in the free exercise of his judgment and volition, makes his will in the manner recommended by B. The will is not rendered invalid by the intercession and persuasion of B".12. Even if we accept the evidence of Indira, the case would, on the facts, fall within this Illustration. It is not disputed that the testator was in full possession of his mental faculties. There is no proof that the first respondent did or said anything which would have affected the free exercise by the testator of his volition. On the other hand, it is proved that the first respondent had no act or part in the preparation, execution, or registration of the will. It is a holograph will, and the evidence of P.Ws. 1 and 2 is that it was the testator himself who made all the arrangements for its execution, and that it was actually executed at the residence if P.W. 1. The document was presented for registration by the testator, and he kept it with himself, and it was taken out of his cash box after his death. He lived for nearly a year after the execution of the will, and even on the evidence of Indira, he was often thinking of it, and discussing it, but declared that it should stand. The cumulative effect of the evidence is clearly to establish that the will represents the free volition of the testator, and that it is not the result of undue influence by the first respondent or his relations. It should be mentioned that Indira herself sought to enforce her rights under the will shortly after the death of the testator, and that the appellant also obtained payment of legacy under the will for a period of 15 months. No ground has been established for our differing from the High Court in its appreciation of the evidence, and we agree with its conclusion that the will is not open to question on the ground of undue influence.It was also argued for the appellant that there was no proof that the will was duly attested as required by section 63 of the Indian Succession Act, and that it should therefore be held to be void. P.Ws. 1 and 2 are the two attestors, and they stated in examination-in-chief that the testator signed the will in their presence, and that they attested his signature. They did not add that they signed the will in the presence of the testator. Now, the contention is that in the absence of such evidence it must be held as that there was no due attestation. Both the Courts below have held against the appellant on this contention. The learned Judges of the High Court were of the opinion that as the execution and attestation took place at one sitting at the residence of P.W. 1, where the testator and the witnesses had assembled by appointment, they must all of them have been present until the matter was finished, and as the witnesses were not cross-examined on the question of attestation, it could properly be inferred that there was due attestation. It cannot be laid down as a matter of law that because the witnesses did not state in examination-in-chief that they signed the will in the presence of the testator, there was no due attestation. It will depend on the circumstances elicited in evidence whether the attesting witnesses signed in the presence of the testator. This is a pure question of fact depending on appreciation of evidence. The finding of the Court below that the will was duly attested is based on a consideration of all the materials, and must be accepted. Indeed, it is stated in the judgment of the Additional District Judges that "the fact of due execution and attestation of the will was not challenged on behalf of the caveator at the time of the hearing of the suit". This contention of the appellant must also be rejected. | 0[ds]In the present case, it is not in dispute that the testator executed the will in question, and that he had the requisite mental capacity at that time. The burden, therefore, is on the appellant to establish that the will was the result of undue influence brought to bear on him by the firstis not disputed that these recitals accord with what the testator had expressed in the correspondence at the time of the marriage and for some yearsare unable to agree. It is one thing for a father who feels that he has been wronged by a disobedient son to wish him well in life, and quite another thing to give him any of his properties. In the whole of the correspondence which has been read to us, there is nothing to suggest that he wanted the appellant to share in the estate. On the other hand, there are indications that even when the appellant was in financial difficulties, the testator considered that he was under no sort of obligation to come to his help. Vide Exs. 5(c) and C(1). It may be mentioned that after making the will on 28-11-1943 the testator continued to correspond with the appellant and the members of his family precisely in the same terms as before. Vide Exs. B(2), C(4) and A(10). That shows that the two currents of natural affection and settlement of properties flowed in distinct channels, and that the change in the course of the one had no effect on the direction of thecannot, therefore, be any doubt that the testator was all along smarting under a sense of social humiliation by reason of the inter-caste marriage, and that the recitals in the will were manifestations of a sore in his heart which had remained unhealed to theregard to the character of the testator and his filings in the matter it is not a matter for surprise that he should have cut off the appellant with a smalldo not consider that it is safe to act on this evidence. It is clear from Exhibit 1 that Indira and her husband had taken sides with the appellant as against the first respondent, and wrote to him that in spite of the will the appellant "should have his share as early as possible in order to avoid further complication", though it may be noted that they insisted on their rights under the will. Stripped of all its embellishments, the evidence of Indira, if true, comes only to this that the first respondent told his father that he could not live under the same roof with his brother, and that in view of that attitude, the testator gave no share to the appellant in the house. We are unable to see any undue influence in this. The first respondent was entitled to put forward his views in the matter, and so long as the ultimate decision lay with the testator and his mental capacity was unimpaired, there can be no question of undue influence.It is elementary law that it is not every influence which is brought to bear on a testator that can be characterised as "undue". It is open to a person to plead his case before the testator and to persuade him to make a disposition in his favour. And if the testator retains his mental capacity, and there is no element of fraud or coercion - it has often been observed that undue influence may in the last analysis be brought under one or the other of these two categories - the will cannot be attacked on the ground of undueif we accept the evidence of Indira, the case would, on the facts, fall within this Illustration. It is not disputed that the testator was in full possession of his mental faculties. There is no proof that the first respondent did or said anything which would have affected the free exercise by the testator of his volition. On the other hand, it is proved that the first respondent had no act or part in the preparation, execution, or registration of the will. It is a holograph will, and the evidence of P.Ws. 1 and 2 is that it was the testator himself who made all the arrangements for its execution, and that it was actually executed at the residence if P.W. 1. The document was presented for registration by the testator, and he kept it with himself, and it was taken out of his cash box after his death. He lived for nearly a year after the execution of the will, and even on the evidence of Indira, he was often thinking of it, and discussing it, but declared that it should stand. The cumulative effect of the evidence is clearly to establish that the will represents the free volition of the testator, and that it is not the result of undue influence by the first respondent or his relations. It should be mentioned that Indira herself sought to enforce her rights under the will shortly after the death of the testator, and that the appellant also obtained payment of legacy under the will for a period of 15 months. No ground has been established for our differing from the High Court in its appreciation of the evidence, and we agree with its conclusion that the will is not open to question on the ground of unduethe Courts below have held against the appellant on this contention. The learned Judges of the High Court were of the opinion that as the execution and attestation took place at one sitting at the residence of P.W. 1, where the testator and the witnesses had assembled by appointment, they must all of them have been present until the matter was finished, and as the witnesses were not cross-examined on the question of attestation, it could properly be inferred that there was due attestation. It cannot be laid down as a matter of law that because the witnesses did not state in examination-in-chief that they signed the will in the presence of the testator, there was no due attestation. It will depend on the circumstances elicited in evidence whether the attesting witnesses signed in the presence of the testator. This is a pure question of fact depending on appreciation of evidence. The finding of the Court below that the will was duly attested is based on a consideration of all the materials, and must be accepted. Indeed, it is stated in the judgment of the Additional District Judges that "the fact of due execution and attestation of the will was not challenged on behalf of the caveator at the time of the hearing of the suit". This contention of the appellant must also be rejected. | 0 | 3,673 | 1,231 | ### Instruction:
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has often been observed that undue influence may in the last analysis be brought under one or the other of these two categories - the will cannot be attacked on the ground of undue influence. The law was thus stated by Lord Penzance in Hall v. Hall ((1868) L.R. 1 P. & D. 481 & 482) :"But all influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like, - these are all legitimate and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes. If so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, - these, if carried to a degree in which the free play of the testators judgment, discretion, or wishes is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led, but not driven; and his will must be the offspring of his own volition, and not the record of some one elses".11. Section 61 of Indian Succession Act (Act XXXIX of 1925) enacts that,A will or any part of a will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void".Illustration (vii) to the section is very instructive, and is as follows :"A, being in such a state of health as to be capable of exercising his own judgment and volition, B uses urgent intercession and persuasion with him to induce him to make a will of a certain purport. A, in consequence of the intercession and persuasion, but in the free exercise of his judgment and volition, makes his will in the manner recommended by B. The will is not rendered invalid by the intercession and persuasion of B".12. Even if we accept the evidence of Indira, the case would, on the facts, fall within this Illustration. It is not disputed that the testator was in full possession of his mental faculties. There is no proof that the first respondent did or said anything which would have affected the free exercise by the testator of his volition. On the other hand, it is proved that the first respondent had no act or part in the preparation, execution, or registration of the will. It is a holograph will, and the evidence of P.Ws. 1 and 2 is that it was the testator himself who made all the arrangements for its execution, and that it was actually executed at the residence if P.W. 1. The document was presented for registration by the testator, and he kept it with himself, and it was taken out of his cash box after his death. He lived for nearly a year after the execution of the will, and even on the evidence of Indira, he was often thinking of it, and discussing it, but declared that it should stand. The cumulative effect of the evidence is clearly to establish that the will represents the free volition of the testator, and that it is not the result of undue influence by the first respondent or his relations. It should be mentioned that Indira herself sought to enforce her rights under the will shortly after the death of the testator, and that the appellant also obtained payment of legacy under the will for a period of 15 months. No ground has been established for our differing from the High Court in its appreciation of the evidence, and we agree with its conclusion that the will is not open to question on the ground of undue influence.It was also argued for the appellant that there was no proof that the will was duly attested as required by section 63 of the Indian Succession Act, and that it should therefore be held to be void. P.Ws. 1 and 2 are the two attestors, and they stated in examination-in-chief that the testator signed the will in their presence, and that they attested his signature. They did not add that they signed the will in the presence of the testator. Now, the contention is that in the absence of such evidence it must be held as that there was no due attestation. Both the Courts below have held against the appellant on this contention. The learned Judges of the High Court were of the opinion that as the execution and attestation took place at one sitting at the residence of P.W. 1, where the testator and the witnesses had assembled by appointment, they must all of them have been present until the matter was finished, and as the witnesses were not cross-examined on the question of attestation, it could properly be inferred that there was due attestation. It cannot be laid down as a matter of law that because the witnesses did not state in examination-in-chief that they signed the will in the presence of the testator, there was no due attestation. It will depend on the circumstances elicited in evidence whether the attesting witnesses signed in the presence of the testator. This is a pure question of fact depending on appreciation of evidence. The finding of the Court below that the will was duly attested is based on a consideration of all the materials, and must be accepted. Indeed, it is stated in the judgment of the Additional District Judges that "the fact of due execution and attestation of the will was not challenged on behalf of the caveator at the time of the hearing of the suit". This contention of the appellant must also be rejected.
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the correspondence which has been read to us, there is nothing to suggest that he wanted the appellant to share in the estate. On the other hand, there are indications that even when the appellant was in financial difficulties, the testator considered that he was under no sort of obligation to come to his help. Vide Exs. 5(c) and C(1). It may be mentioned that after making the will on 28-11-1943 the testator continued to correspond with the appellant and the members of his family precisely in the same terms as before. Vide Exs. B(2), C(4) and A(10). That shows that the two currents of natural affection and settlement of properties flowed in distinct channels, and that the change in the course of the one had no effect on the direction of thecannot, therefore, be any doubt that the testator was all along smarting under a sense of social humiliation by reason of the inter-caste marriage, and that the recitals in the will were manifestations of a sore in his heart which had remained unhealed to theregard to the character of the testator and his filings in the matter it is not a matter for surprise that he should have cut off the appellant with a smalldo not consider that it is safe to act on this evidence. It is clear from Exhibit 1 that Indira and her husband had taken sides with the appellant as against the first respondent, and wrote to him that in spite of the will the appellant "should have his share as early as possible in order to avoid further complication", though it may be noted that they insisted on their rights under the will. Stripped of all its embellishments, the evidence of Indira, if true, comes only to this that the first respondent told his father that he could not live under the same roof with his brother, and that in view of that attitude, the testator gave no share to the appellant in the house. We are unable to see any undue influence in this. The first respondent was entitled to put forward his views in the matter, and so long as the ultimate decision lay with the testator and his mental capacity was unimpaired, there can be no question of undue influence.It is elementary law that it is not every influence which is brought to bear on a testator that can be characterised as "undue". It is open to a person to plead his case before the testator and to persuade him to make a disposition in his favour. And if the testator retains his mental capacity, and there is no element of fraud or coercion - it has often been observed that undue influence may in the last analysis be brought under one or the other of these two categories - the will cannot be attacked on the ground of undueif we accept the evidence of Indira, the case would, on the facts, fall within this Illustration. It is not disputed that the testator was in full possession of his mental faculties. There is no proof that the first respondent did or said anything which would have affected the free exercise by the testator of his volition. On the other hand, it is proved that the first respondent had no act or part in the preparation, execution, or registration of the will. It is a holograph will, and the evidence of P.Ws. 1 and 2 is that it was the testator himself who made all the arrangements for its execution, and that it was actually executed at the residence if P.W. 1. The document was presented for registration by the testator, and he kept it with himself, and it was taken out of his cash box after his death. He lived for nearly a year after the execution of the will, and even on the evidence of Indira, he was often thinking of it, and discussing it, but declared that it should stand. The cumulative effect of the evidence is clearly to establish that the will represents the free volition of the testator, and that it is not the result of undue influence by the first respondent or his relations. It should be mentioned that Indira herself sought to enforce her rights under the will shortly after the death of the testator, and that the appellant also obtained payment of legacy under the will for a period of 15 months. No ground has been established for our differing from the High Court in its appreciation of the evidence, and we agree with its conclusion that the will is not open to question on the ground of unduethe Courts below have held against the appellant on this contention. The learned Judges of the High Court were of the opinion that as the execution and attestation took place at one sitting at the residence of P.W. 1, where the testator and the witnesses had assembled by appointment, they must all of them have been present until the matter was finished, and as the witnesses were not cross-examined on the question of attestation, it could properly be inferred that there was due attestation. It cannot be laid down as a matter of law that because the witnesses did not state in examination-in-chief that they signed the will in the presence of the testator, there was no due attestation. It will depend on the circumstances elicited in evidence whether the attesting witnesses signed in the presence of the testator. This is a pure question of fact depending on appreciation of evidence. The finding of the Court below that the will was duly attested is based on a consideration of all the materials, and must be accepted. Indeed, it is stated in the judgment of the Additional District Judges that "the fact of due execution and attestation of the will was not challenged on behalf of the caveator at the time of the hearing of the suit". This contention of the appellant must also be rejected.
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M/s. Damodar Engineering and Construction Company Vs. Board of Trustees For The Port of Calcutta | M. N. VENKATACHALIAH, CJI and S. C. Agrawal & A. S. Anand, JJ. By this petition, the petitioner, as proprietor of M/s. Damodar Engineering & Construction Company, is seeking special leave against the judgment dated July 17, 1992 of the learned Single Judge of the Calcutta High Court whereby the application filed by the respondent, namely, the Board of Trustees for the Port of Calcutta, challenging a reference to an Arbitrator and for removal of the arbitrator under Sections 5, 11 and 33 of the Arbitration Act, 1940 (hereinafter referred to as the Act) has been allowed and the reference has been superseded and the appointment of the arbitrator, (respondent No. 2 in the said application of the respondent), was revoked 2. The petitioner entered into a contract with the respondent in the year 1976 for construction of a permanent road between Ranichak and the Main Feeder Road at Haldia. The said contract contained an arbitration clause. The petitioner, invoking the arbitration clause, referred the disputes arising out of the contract to the arbitration of an arbitrator appointed by the Institute of Engineers India. The Statement of Claim filed by the petitioner before the arbitrator covered a number of matters including refund of security deposit amounting to Rs. 60, 940/- as well as compound interest @ 18% per annum on the said amount from February 10, 1977 till date of payment. The arbitrator made an award on September 26, 1984 whereby he awarded a sum of Rs. 4, 95, 000/- to the petitioner. The said award was, however, set aside, in appeal, by a Division Bench of the Calcutta High Court by judgment dated December 11, 1989. Special leave petition (Civil) No. 2929-30 of 1990 filed by the petitioner against the said judgment of the Calcutta High Court were disposed of by this court by order dated July 23, 1990, whereby it was directed that "... in all these matters a sum of Rs. 7, 50, 000/- (Rupees Seven lakhs and fifty thousand only) should be paid to the petitioner in full and final settlement of these matters within within 3 months from today. If the said sum is not paid within the prescribed period the petitioner shall be entitled to interest at the rate of 12% per annum." * 3. While the aforementioned proceedings for setting aside the arbitral award were pending the petitioner invoked the arbitration clause for a second time and the same arbitrator was appointed again to arbitrate on the dispute. The Statement of Claim for Rs. 5, 85, 456.71 in the said reference related to refund of the security deposit of Rs. 60, 943/-. The claim for Rs. 2, 92, 526.40 for loss of profit in business on account of withholding of the sum of Rs. 60, 943/- as well as claim for Rs. 1, 94, 132.31 by way of compound interest @ 18% per annum on the said amount of Rs. 60, 943/- from 1978 to October 1986 and certain other incidental claims. The second reference to the arbitration was challenged by the respondent by filing an application under Section 5, 11 and 33 of the Act which has been allowed by the learned Single Judge of the High Court 4. We have heard the petitioner, who appeared in person, as well as Shri N. N. Gooptu, Advocate General for the State of West Bengal who, on the request of the court presented his case, as well as the learned Solicitor General for the respondent 5. Having regard to the claim made by the petitioner in the first reference to arbitration which included the claim for refund of security deposit of Rs. 60, 943/- as well as the claim for interest on the said amount and the order dated July 23, 1990 passed by this court on the special leave petitions filed by the petitioner whereby it was directed that a sum of Rs. 7, 50, 000/- should be paid to the petitioner "in full and final settlement of these matters", we do not find any merit in the case of the petitioner. No ground is made out for interference with the order passed by the learned Single Judge of the High Court | 0[ds]5. Having regard to the claim made by the petitioner in the first reference to arbitration which included the claim for refund of security deposit of Rs. 60, 943/as well as the claim for interest on the said amount and the order dated July 23, 1990 passed by this court on the special leave petitions filed by the petitioner whereby it was directed that a sum of Rs. 7, 50, 000/should be paid to the petitioner "in full and final settlement of these matters", we do not find any merit in the case of the petitioner. No ground is made out for interference with the order passed by the learned Single Judge of the High Court | 0 | 794 | 131 | ### Instruction:
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M. N. VENKATACHALIAH, CJI and S. C. Agrawal & A. S. Anand, JJ. By this petition, the petitioner, as proprietor of M/s. Damodar Engineering & Construction Company, is seeking special leave against the judgment dated July 17, 1992 of the learned Single Judge of the Calcutta High Court whereby the application filed by the respondent, namely, the Board of Trustees for the Port of Calcutta, challenging a reference to an Arbitrator and for removal of the arbitrator under Sections 5, 11 and 33 of the Arbitration Act, 1940 (hereinafter referred to as the Act) has been allowed and the reference has been superseded and the appointment of the arbitrator, (respondent No. 2 in the said application of the respondent), was revoked 2. The petitioner entered into a contract with the respondent in the year 1976 for construction of a permanent road between Ranichak and the Main Feeder Road at Haldia. The said contract contained an arbitration clause. The petitioner, invoking the arbitration clause, referred the disputes arising out of the contract to the arbitration of an arbitrator appointed by the Institute of Engineers India. The Statement of Claim filed by the petitioner before the arbitrator covered a number of matters including refund of security deposit amounting to Rs. 60, 940/- as well as compound interest @ 18% per annum on the said amount from February 10, 1977 till date of payment. The arbitrator made an award on September 26, 1984 whereby he awarded a sum of Rs. 4, 95, 000/- to the petitioner. The said award was, however, set aside, in appeal, by a Division Bench of the Calcutta High Court by judgment dated December 11, 1989. Special leave petition (Civil) No. 2929-30 of 1990 filed by the petitioner against the said judgment of the Calcutta High Court were disposed of by this court by order dated July 23, 1990, whereby it was directed that "... in all these matters a sum of Rs. 7, 50, 000/- (Rupees Seven lakhs and fifty thousand only) should be paid to the petitioner in full and final settlement of these matters within within 3 months from today. If the said sum is not paid within the prescribed period the petitioner shall be entitled to interest at the rate of 12% per annum." * 3. While the aforementioned proceedings for setting aside the arbitral award were pending the petitioner invoked the arbitration clause for a second time and the same arbitrator was appointed again to arbitrate on the dispute. The Statement of Claim for Rs. 5, 85, 456.71 in the said reference related to refund of the security deposit of Rs. 60, 943/-. The claim for Rs. 2, 92, 526.40 for loss of profit in business on account of withholding of the sum of Rs. 60, 943/- as well as claim for Rs. 1, 94, 132.31 by way of compound interest @ 18% per annum on the said amount of Rs. 60, 943/- from 1978 to October 1986 and certain other incidental claims. The second reference to the arbitration was challenged by the respondent by filing an application under Section 5, 11 and 33 of the Act which has been allowed by the learned Single Judge of the High Court 4. We have heard the petitioner, who appeared in person, as well as Shri N. N. Gooptu, Advocate General for the State of West Bengal who, on the request of the court presented his case, as well as the learned Solicitor General for the respondent 5. Having regard to the claim made by the petitioner in the first reference to arbitration which included the claim for refund of security deposit of Rs. 60, 943/- as well as the claim for interest on the said amount and the order dated July 23, 1990 passed by this court on the special leave petitions filed by the petitioner whereby it was directed that a sum of Rs. 7, 50, 000/- should be paid to the petitioner "in full and final settlement of these matters", we do not find any merit in the case of the petitioner. No ground is made out for interference with the order passed by the learned Single Judge of the High Court
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5. Having regard to the claim made by the petitioner in the first reference to arbitration which included the claim for refund of security deposit of Rs. 60, 943/as well as the claim for interest on the said amount and the order dated July 23, 1990 passed by this court on the special leave petitions filed by the petitioner whereby it was directed that a sum of Rs. 7, 50, 000/should be paid to the petitioner "in full and final settlement of these matters", we do not find any merit in the case of the petitioner. No ground is made out for interference with the order passed by the learned Single Judge of the High Court
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Commissioner of Income Tax, Punjab Jammu & Kashmir, Himachal Vs. Punjab Distilling Industries Limited | of showing that they were not a part of the trading transactions. The question was not really whether the charges were security deposits but whether they were part of the trading transactions or had been made at anterior stages. This Court decided that they were part of the trading transactions and were not relatable to an anterior stage. That is all that it was called upon to decide and did decide.13. That on the earlier occasion this Court was not concerned with the question whether the charges made were security deposits or not would appear from the following observations occurring at p. 690 of (Supp 1 SCR) : (at p. 349 of AIR) "Mr. Sanyal was prepared to argue that even if the amounts were securities deposited for the return of the bottles, they would still be trading receipts, for they were part of the trading transactions and the return of the bottles was necessary to enable the appellant to carry on its trade, namely, to sell liquor in them. As we have held that the amounts had not been paid as security for the return of the bottles, we do not consider it necessary to pronounce upon this contention," This Court, therefore, did not decide that if the deposits had been made to secure the return of the bottles, they could not be a trading receipt. The High Court was in error in distinguishing the present case from the earlier one on the basis that this Court had then so decided.14. We now turn to the question whether under the amended rules there was any right in the distiller to the return of the bottles. We think there was not and in this respect the two cases are identical; in none was the charge in fact a security deposit. The reason for that view is this. The liquor passed through three sales before it reached the consumer; first the distiller sold it to a wholesaler, then the wholesaler to a retailer and Lastly, the retailer to the consumer. If the rules created an obligation on the wholesaler to return the bottles to the distiller, then the rules would provide for a return of the bottles to the wholesaler by the retailer and to the retailer by the consumer; without such rules it would be idle to require the wholesaler to return the bottles to the distiller. We have not been shown anything creating a right in the wholesaler or the retailer to a return of bottles. Clearly, the consumers were under no obligation to return the bottles in which they bought liquor. Sub-clause (v) of the rule on which the High Court based itself, referred to the return of the bottles in which liquor was sold. In the absence of a right in the wholesaler to a return of the bottles from the retailer it would be insensible to read that provision as creating as obligation on the wholesaler to return the bottles. He had no means under the rules to perform, that obligation. That rule, therefore, must be read as intending only to lay down that if the wholesaler could not return the bottles, his deposit was liable to be confiscated under sub-cl. (vi). Again, the rules do not lay down any procedure by which the distiller might enforce the return of the bottles to him, which they would have undoubtedly done if it was intended to give him a right to the return of the bottles. Indeed there is nothing to show that he can obtain such a return. Whether the wholesaler would be liable to punishment under the Act for breach of his obligation to return the bottles or not is to no purpose, for we are now concerned with the right of the distiller to obtain a return of the bottles. It seems to us that the only reason why the rules required a wholesaler to return the bottles to the distiller was to authorize the imposition of a term of the sale upon the breach of which, the charges made for the bottles would cease to be refundable.15. We now come to the last point of distinction made by the High Court. On the earlier occasion this Court had said that the amount deposited was refundable under the terms of the contract constituting the trading transaction and was, therefore, a trading receipt. The learned Judges of the High Court seem to have been of the opinion that since the rule was amended, the deposits had to be made under it and, therefore, were not thereafter received under the contract or as part of the trading transaction constituted by it. With great respect to the learned Judges, there appears to be some confusion here. The rule by its own force does not compel a deposit to be made. The terms of the rule made this perfectly clear. All that it does is to empower a distiller to take a deposit. But the deposit must be taken under a contract made in regard to it; it is not taken under the rule itself. In other words, all that the rule does is to authorise the making of a contract concerning the deposit on the terms mentioned in it, the object apparently being to avoid any question as to its validity arising later. We may here point out that the trade in liquor is largely controlled by Government regulations. It must, therefore, be held that the deposit was actually taken under a contract; it was none the less so though the contract was authorised by the statutory rules. The third point of distinction on which the High Court relied was, therefore, also without foundation. Whether if the deposits had been made without a contract and directly under the rules and in respect of a trading transaction made by a contract they would have been trading receipts or not, is not a question that arises in the present appeals and on that question we express no opinion now. | 1[ds]is of interest to note that the earlier case also concerned an identical question and had been answered both by the High Court and this Court in thelicensee referred to in the earlier of the rules quoted is the wholesaler to whom the distiller sold his liquor. It is not very clear what is meant by the words "upto 10% of the bottles issued" or the words "falling short of the 90 per cent limit". It is not necessary, however, to pursue this matter for we shall not be concerned with the precise meaning of these words. It is not in dispute that some charge described as a deposit was realised on the term that it would be refunded in certain eventualities and that is enough for our purpose for the only question is whether this charge was a trading receipt.5.The High Court thought that the earlier judgment of this Court had been based on three considerations, namely, (1) that the charge concerned had been made without Governments sanction and entirely as a condition imposed by the assessee itself for the sale of its liquor; (2) that it could not be security deposit for the return of the bottles for there was no right to their return and (3) that it was refundable under the contract of sale itself.In the High Courts view if these circumstances were not there, our decision would have been different. The High Court held that since the amended rules came into force, none of these considerations was available and, therefore, the charges could not be held to be tradingis not in dispute that if the High Court was in error in this reasoning, the present case will be governed by the earlier decision.6. With respect to the learned Judges of the High Court, we think that the earlier judgment of this Court has been misunderstood by them. That judgment had not been based on the three points mentioned by the High Court and this we now proceed to show. The first point of distinction between the two cases is based on the observation in the earlier case that the additional amounts had been taken without Governments sanction and entirely as a condition imposed by the appellant itself for the sale of its liquor. The High Court apparently thought that by this observation it was suggested that if the amounts had been taken under Governments sanction, then they would not have been taxable. We are wholly unable to agree that this is a correct reading of that judgment. That observation contained only a recital of fact and was made for the purpose a distinguishing these amounts from the other amounts charged by the assessee as price of bottles to which we have earlier referred. The other amount was charged under a scheme framed by the Government and called the "buy back scheme." We find nothing in the earlier judgment to show that the conclusion there arrived at was based on the fact that the charge had not been made with the sanction of the Government. That nothing turned on whether a charge was made under a Government scheme or purely as a matter of contract would indeed appear to have always been the common case. Thus even before the amended rules had come into force, the assessee had been collecting under the aforesaid "buy back scheme" which had the sanction of the Government, from its customers as price of the bottles, a charge which was refundable on the return of the bottles. The charge now under consideration is a charge additional to that collected under the buy back scheme and this we have earlier said. It has never been in dispute, either in the earlier case or now, that the charge under the buy back scheme which was collected under Governments sanction constituted a taxable income. This Court had never said, nor was it ever contended by the assessee that a collection would not be taxable if it had been made with the sanction of the Government. The first point of distinction sought to be made by the High Court is, therefore, unfounded.7. The second point made by the High Court was that the observation in the earlier judgment that the charge could not be a security for the return of the bottles as there was no right to such return, was no longer applicable as under the amended rules there was a right to the return of the bottles. We do not agree for reasons to be stated later, that under the amended rules there was such a right but we will assume for the present that there was. Now, the argument in connection with which that observation was made was that if the charges were deposits for securing the return of the bottles, they were not trading receipts. By the aforesaid observation this Court dealt with the first part of this argument and said that the assumption that the charges were for securing the return of the bottles was unfounded for there was no right to such return. If the charges were not by way of security deposit the argument must, of course, fail. So that was one answer that was given to the argument. But this Court did not stop there and proceed to consider the argument as a whole, namely, whether if the charges were security deposits, they were not trading receipts.None of these cases, therefore, was concerned with the question whether a security deposit was by its very nature such that it could not be a trading receipt. The first case dealt with an actual security deposit but it was held that that deposit was not a trading receipt not for the reason that it was a security deposit but for the reason that it formed the structure under which trading transactions producing trading receipts were conducted and was not itself connected with any trading transaction. In the second case, the receipt was held to be a loan; that it might be also a security deposit was not even mentioned. It was held not to be a trading receipt because it had no connection with the trading transactions but related to a stage anterior to the trading transaction.12. It is, therefore, clear that the contention that the charges formed a security deposit had been advanced only for the purpose of showing that they were not a part of the trading transactions. The question was not really whether the charges were security deposits but whether they were part of the trading transactions or had been made at anterior stages. This Court decided that they were part of the trading transactions and were not relatable to an anterior stage. That is all that it was called upon to decide and did decide.13. That on the earlier occasion this Court was not concerned with the question whether the charges made were security deposits or not would appear from the following observations occurring at p. 690 of (Supp 1 SCR) : (at p. 349 of AIR) "Mr. Sanyal was prepared to argue that even if the amounts were securities deposited for the return of the bottles, they would still be trading receipts, for they were part of the trading transactions and the return of the bottles was necessary to enable the appellant to carry on its trade, namely, to sell liquor in them. As we have held that the amounts had not been paid as security for the return of the bottles, we do not consider it necessary to pronounce upon this contention," This Court, therefore, did not decide that if the deposits had been made to secure the return of the bottles, they could not be a trading receipt. The High Court was in error in distinguishing the present case from the earlier one on the basis that this Court had then sothink there was not and in this respect the two cases are identical; in none was the charge in fact a security deposit. The reason for that view is this. The liquor passed through three sales before it reached the consumer; first the distiller sold it to a wholesaler, then the wholesaler to a retailer and Lastly, the retailer to the consumer. If the rules created an obligation on the wholesaler to return the bottles to the distiller, then the rules would provide for a return of the bottles to the wholesaler by the retailer and to the retailer by the consumer; without such rules it would be idle to require the wholesaler to return the bottles to the distiller. We have not been shown anything creating a right in the wholesaler or the retailer to a return of bottles. Clearly, the consumers were under no obligation to return the bottles in which they bought liquor.(v) of the rule on which the High Court based itself, referred to the return of the bottles in which liquor was sold. In the absence of a right in the wholesaler to a return of the bottles from the retailer it would be insensible to read that provision as creating as obligation on the wholesaler to return the bottles. He had no means under the rules to perform, that obligation. That rule, therefore, must be read as intending only to lay down that if the wholesaler could not return the bottles, his deposit was liable to be confiscated under(vi). Again, the rules do not lay down any procedure by which the distiller might enforce the return of the bottles to him, which they would have undoubtedly done if it was intended to give him a right to the return of the bottles. Indeed there is nothing to show that he can obtain such a return. Whether the wholesaler would be liable to punishment under the Act for breach of his obligation to return the bottles or not is to no purpose, for we are now concerned with the right of the distiller to obtain a return of the bottles. It seems to us that the only reason why the rules required a wholesaler to return the bottles to the distiller was to authorize the imposition of a term of the sale upon the breach of which, the charges made for the bottles would cease to be refundable.15. We now come to the last point of distinction made by the High Court. On the earlier occasion this Court had said that the amount deposited was refundable under the terms of the contract constituting the trading transaction and was, therefore, a trading receipt. The learned Judges of the High Court seem to have been of the opinion that since the rule was amended, the deposits had to be made under it and, therefore, were not thereafter received under the contract or as part of the trading transaction constituted by it. With great respect to the learned Judges, there appears to be some confusion here. The rule by its own force does not compel a deposit to be made. The terms of the rule made this perfectly clear. All that it does is to empower a distiller to take a deposit. But the deposit must be taken under a contract made in regard to it; it is not taken under the rule itself. In other words, all that the rule does is to authorise the making of a contract concerning the deposit on the terms mentioned in it, the object apparently being to avoid any question as to its validity arising later. We may here point out that the trade in liquor is largely controlled by Government regulations. It must, therefore, be held that the deposit was actually taken under a contract; it was none the less so though the contract was authorised by the statutory rules. The third point of distinction on which the High Court relied was, therefore, also without foundation. Whether if the deposits had been made without a contract and directly under the rules and in respect of a trading transaction made by a contract they would have been trading receipts or not, is not a question that arises in the present appeals and on that question we express no opinion now. | 1 | 3,898 | 2,195 | ### Instruction:
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of showing that they were not a part of the trading transactions. The question was not really whether the charges were security deposits but whether they were part of the trading transactions or had been made at anterior stages. This Court decided that they were part of the trading transactions and were not relatable to an anterior stage. That is all that it was called upon to decide and did decide.13. That on the earlier occasion this Court was not concerned with the question whether the charges made were security deposits or not would appear from the following observations occurring at p. 690 of (Supp 1 SCR) : (at p. 349 of AIR) "Mr. Sanyal was prepared to argue that even if the amounts were securities deposited for the return of the bottles, they would still be trading receipts, for they were part of the trading transactions and the return of the bottles was necessary to enable the appellant to carry on its trade, namely, to sell liquor in them. As we have held that the amounts had not been paid as security for the return of the bottles, we do not consider it necessary to pronounce upon this contention," This Court, therefore, did not decide that if the deposits had been made to secure the return of the bottles, they could not be a trading receipt. The High Court was in error in distinguishing the present case from the earlier one on the basis that this Court had then so decided.14. We now turn to the question whether under the amended rules there was any right in the distiller to the return of the bottles. We think there was not and in this respect the two cases are identical; in none was the charge in fact a security deposit. The reason for that view is this. The liquor passed through three sales before it reached the consumer; first the distiller sold it to a wholesaler, then the wholesaler to a retailer and Lastly, the retailer to the consumer. If the rules created an obligation on the wholesaler to return the bottles to the distiller, then the rules would provide for a return of the bottles to the wholesaler by the retailer and to the retailer by the consumer; without such rules it would be idle to require the wholesaler to return the bottles to the distiller. We have not been shown anything creating a right in the wholesaler or the retailer to a return of bottles. Clearly, the consumers were under no obligation to return the bottles in which they bought liquor. Sub-clause (v) of the rule on which the High Court based itself, referred to the return of the bottles in which liquor was sold. In the absence of a right in the wholesaler to a return of the bottles from the retailer it would be insensible to read that provision as creating as obligation on the wholesaler to return the bottles. He had no means under the rules to perform, that obligation. That rule, therefore, must be read as intending only to lay down that if the wholesaler could not return the bottles, his deposit was liable to be confiscated under sub-cl. (vi). Again, the rules do not lay down any procedure by which the distiller might enforce the return of the bottles to him, which they would have undoubtedly done if it was intended to give him a right to the return of the bottles. Indeed there is nothing to show that he can obtain such a return. Whether the wholesaler would be liable to punishment under the Act for breach of his obligation to return the bottles or not is to no purpose, for we are now concerned with the right of the distiller to obtain a return of the bottles. It seems to us that the only reason why the rules required a wholesaler to return the bottles to the distiller was to authorize the imposition of a term of the sale upon the breach of which, the charges made for the bottles would cease to be refundable.15. We now come to the last point of distinction made by the High Court. On the earlier occasion this Court had said that the amount deposited was refundable under the terms of the contract constituting the trading transaction and was, therefore, a trading receipt. The learned Judges of the High Court seem to have been of the opinion that since the rule was amended, the deposits had to be made under it and, therefore, were not thereafter received under the contract or as part of the trading transaction constituted by it. With great respect to the learned Judges, there appears to be some confusion here. The rule by its own force does not compel a deposit to be made. The terms of the rule made this perfectly clear. All that it does is to empower a distiller to take a deposit. But the deposit must be taken under a contract made in regard to it; it is not taken under the rule itself. In other words, all that the rule does is to authorise the making of a contract concerning the deposit on the terms mentioned in it, the object apparently being to avoid any question as to its validity arising later. We may here point out that the trade in liquor is largely controlled by Government regulations. It must, therefore, be held that the deposit was actually taken under a contract; it was none the less so though the contract was authorised by the statutory rules. The third point of distinction on which the High Court relied was, therefore, also without foundation. Whether if the deposits had been made without a contract and directly under the rules and in respect of a trading transaction made by a contract they would have been trading receipts or not, is not a question that arises in the present appeals and on that question we express no opinion now.
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but related to a stage anterior to the trading transaction.12. It is, therefore, clear that the contention that the charges formed a security deposit had been advanced only for the purpose of showing that they were not a part of the trading transactions. The question was not really whether the charges were security deposits but whether they were part of the trading transactions or had been made at anterior stages. This Court decided that they were part of the trading transactions and were not relatable to an anterior stage. That is all that it was called upon to decide and did decide.13. That on the earlier occasion this Court was not concerned with the question whether the charges made were security deposits or not would appear from the following observations occurring at p. 690 of (Supp 1 SCR) : (at p. 349 of AIR) "Mr. Sanyal was prepared to argue that even if the amounts were securities deposited for the return of the bottles, they would still be trading receipts, for they were part of the trading transactions and the return of the bottles was necessary to enable the appellant to carry on its trade, namely, to sell liquor in them. As we have held that the amounts had not been paid as security for the return of the bottles, we do not consider it necessary to pronounce upon this contention," This Court, therefore, did not decide that if the deposits had been made to secure the return of the bottles, they could not be a trading receipt. The High Court was in error in distinguishing the present case from the earlier one on the basis that this Court had then sothink there was not and in this respect the two cases are identical; in none was the charge in fact a security deposit. The reason for that view is this. The liquor passed through three sales before it reached the consumer; first the distiller sold it to a wholesaler, then the wholesaler to a retailer and Lastly, the retailer to the consumer. If the rules created an obligation on the wholesaler to return the bottles to the distiller, then the rules would provide for a return of the bottles to the wholesaler by the retailer and to the retailer by the consumer; without such rules it would be idle to require the wholesaler to return the bottles to the distiller. We have not been shown anything creating a right in the wholesaler or the retailer to a return of bottles. Clearly, the consumers were under no obligation to return the bottles in which they bought liquor.(v) of the rule on which the High Court based itself, referred to the return of the bottles in which liquor was sold. In the absence of a right in the wholesaler to a return of the bottles from the retailer it would be insensible to read that provision as creating as obligation on the wholesaler to return the bottles. He had no means under the rules to perform, that obligation. That rule, therefore, must be read as intending only to lay down that if the wholesaler could not return the bottles, his deposit was liable to be confiscated under(vi). Again, the rules do not lay down any procedure by which the distiller might enforce the return of the bottles to him, which they would have undoubtedly done if it was intended to give him a right to the return of the bottles. Indeed there is nothing to show that he can obtain such a return. Whether the wholesaler would be liable to punishment under the Act for breach of his obligation to return the bottles or not is to no purpose, for we are now concerned with the right of the distiller to obtain a return of the bottles. It seems to us that the only reason why the rules required a wholesaler to return the bottles to the distiller was to authorize the imposition of a term of the sale upon the breach of which, the charges made for the bottles would cease to be refundable.15. We now come to the last point of distinction made by the High Court. On the earlier occasion this Court had said that the amount deposited was refundable under the terms of the contract constituting the trading transaction and was, therefore, a trading receipt. The learned Judges of the High Court seem to have been of the opinion that since the rule was amended, the deposits had to be made under it and, therefore, were not thereafter received under the contract or as part of the trading transaction constituted by it. With great respect to the learned Judges, there appears to be some confusion here. The rule by its own force does not compel a deposit to be made. The terms of the rule made this perfectly clear. All that it does is to empower a distiller to take a deposit. But the deposit must be taken under a contract made in regard to it; it is not taken under the rule itself. In other words, all that the rule does is to authorise the making of a contract concerning the deposit on the terms mentioned in it, the object apparently being to avoid any question as to its validity arising later. We may here point out that the trade in liquor is largely controlled by Government regulations. It must, therefore, be held that the deposit was actually taken under a contract; it was none the less so though the contract was authorised by the statutory rules. The third point of distinction on which the High Court relied was, therefore, also without foundation. Whether if the deposits had been made without a contract and directly under the rules and in respect of a trading transaction made by a contract they would have been trading receipts or not, is not a question that arises in the present appeals and on that question we express no opinion now.
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Pure Drinks Private Limited Vs. Mumbai Mazdoor Sabha, Bombay | assistance to Mr. Damania in the facts and circumstance of the matter before us.(23) MR. Damania next relied on the decision of the Supreme Court in the case of the State of punjab v. Bhagatram, (1975) I S. C. C. 155, A. I. R. 1974 S. C. 2335, where it was held that unless the previous statement of witnesses are supplied, the dismissed person will not be able to conduct an effective and useful cross-examination and hence it is unfair to deny the Government servant copies of the earlier statements of witnesses. (24) MR. Damania also relied on the decision of the learned single Judge of the Allahabad High court in Misra v. Collector of Central Excise, Allahabad, [1962-I L. L. J. 671], where it was held that the failure to supply to the petitioner, a Government servant, the written complaint lodged by the complainant at the initial stage on which the inquiry was started and the failure to furnish him copies of statements of certain witnesses recorded by an officer the formal inquiry was started, resulted in an infirmity in the inquiry which disclosed that the petitioner did not get a reasonable opportunity to show cause against the proposed punishment as required by Art. 311 of the Constitution. (25) WHILE we are in respectful agreement with the ratio laid down by the Supreme Court and the learned single Judge of the Allahabad High Court in the circumstances of the matters before them, the same can be of no assistance to Mr. Damania in the facts and circumstances of the matter before us, which fall squarely within the Supreme Court in Telcos case, [1969-II L. L. J. 799]. Those matters were, unlike the matter before us, under Art. 311 of the Constitution, pertaining to a departmental inquiry against a Government servant. Furthermore, in Bhagatrams case, A. I. R 1974 S. C. 2335, what was given to the Government servant was only a synopsis of the statements of the witnesses recorded by the Vigilance Department during the preliminary inquiry, whereas, entire statements, unlike in the matter before us, had been taken on record. This is brought to the forefront from the contents of Para. 6 of the judgment which reads as under : "the State contended that the respondent was not entitled to get copies of statements. The reasoning of the State was that the respondent was given the opportunity to cross-examine the witnesses and during the cross-examination the respondent would have the opportunity of confronting the witnesses with the statements. It is contended that the synopsis was adequate to acquaint the respondent with the gist of the evidence". This passage discloses that the respondent in that case could possibly not have had the opportunity confronting the witnesses with the statements, unless they were on record. This is not the position in the matter before us, where none of the statements recorded during the departmental enquiry or thereafter. These are the salient features which distinguish those cases from the facts of the matter before us, which as we have already stated, falls within the ratio laid down by the Supreme Court in Telcos case.(26) MR. Damania next relied on the decision of the learned single Judge of the Madras High court in Thangaswamy v. S. I. R. Employees Co-op. Credit Society, [1961-2 L. L. J. 754], where it was held that in the absence of the rules, the question whether the inquiry is vitiated or not should be approached not from the point of view of a specific contravention of a particular rule, but from the point of view whether the result of the inquiry has been vitiated on the ground that the principles of natural justice and not been respected. It was further held that the omission to supply copies of statements of witnesses to the petitioner-employee in advance of the inquiry involved violation of the principles of natural justice and was prejudicial to the finding against him. It was further held, in the facts and circumstances of that case, that it was the plain duty of the inquiring body to supply the petitioner with statements of witnesses as requested by him or to give an opportunity to peruse the statements and take extracts on a date earlier than the date of inquiry. (27) IT is unnecessary to dilate at any length on that decision of the learned single Judge of the madras High Court, in view of the authoritative ratio and decision of the Supreme Court in Telcos case, [1969-II L. L. J. 799], referred to above and by which we are bound. (28) MR. Damania finally relied on certain observations of the Division Bench of the Delhi Court in Daljitsingh Sadhusingh v. Union of India, A. I. R. 1970 Delhi 52, at p. 56, as under :"The right to cross-examine means to cross-examine effectively. In the absence of the copies of these two statements the petitioner could not confront S. S. Duggal and E. N. Ramamurti when they appeared as witnesses, against him in the inquiry with their statements made to the Special police Establishment. "(29) ONCE again, while we are in respectful agreement with these observation, they must be read in the light in which they have been made and the facts and circumstances of that case, which was yet another case under Art. 311 of the Constitution, and which resulted in the Delhi High court holding that the failure to furnish to the petitioner copies of the statements made by two persons before the Special Police Establishment in the criminal investigation and failure even to give inspection of these statements to the petitioner, amounted to a denial of reasonable opportunity to the petitioner of defending himself. In any event, it is unnecessary it dilate at any length on the decision of the Delhi High Court in Daljit Singhs case, A. I. R. 1970 Delhi 52 in the light of the decision and ratio of the Supreme Court in Telcos case (supra) by which we are bound. | 1[ds](16) ANALYSING the matter in the widest range permissible, we may state that we went through the evidence recorded by enquiry officer. Theof the companys witnesses by Joe Sanches is detailed and probing. Though he did ask for a copy of the statement of B. B. Singh to be furnished, the failure to do so by thecan, in no way be said to have prevented an effectiveof the companys witnesses by Joe Sanches be lost sight of is that, in the main, in all material particulars the evidence of B. B. Singh is based on what he was informed by Amrit Singh and which B. B. Singh in his turn conveyed to Chaddha. The Tribunal has itself, in the impugned order observed: "amrit Singh seems to have made a verbal report which was recorded by B. B. Singh with a view to forward it to the office of management". Hence the evidence of B. B. Singh before the enquiry officer is at best essentially hearsay. Mr. Shetye produced before us a copy of the statement of B. B. Singh during the preliminary investigation. Mr. Shetye emphasised that he was producing this document from that the files of the company and not from the record before the enquiry officer. This was not challenged by Mr. Damania with his habitual fairness. This statement is dated 29th November, 1971 and is in the form of a letter or report addressed by B. B. Singh to the Manager of theIn order to make assurance doubly sure that no prejudice whatsoever could have been caused to the workman, we perused this latter or report. It reveals that all that B. B. Singh has stated to the manager is based entirely on hearsay, namely what B. B. Singh was informed by Amrit Singh. We passed on this document to Mr. Damania for his persual, observing that the contents thereof were hearsay. Mr. Damania was unable, and rightly so, to contend to the contrary after perusing the document. It is difficult to see how any prejudice could conceivably have been caused to the workman by theto him of a copy of this statement or report. B. B. Singh was not a witness on whom anything of consequence revolved. The fact that in addition to B. B. Singh, amrit Singh, Chaddha and other persons were also called as witnesses further whittles down the importance of B. B. Singh as a witness of any consequence. The Gravamen of the grievance of the 1stbefore us, as was before the Tribunal, was the failure of theto furnish the statement at B. B. Singh, who was not a witness of any great importance. The main and essential witness were Amrit Singh and Chaddha and other employees of the company who gave evidence against the workman, regarding whom no grievance has been made no doubt discreetly so, in respect ofof statements made by them during the preliminaryHENCE, looking at the matter from the widest angle permissible and giving the widest latitude possible to the workman, we cannot see our way to coming to the finding which M. Damania invites us to do, viz. , that the refusal of theto furnish to the workman a copy of B. B. Singhs statement made by him during the preliminary investigation, caused the workman any prejudice or resulted in the violation of the principles of natural justice in any manner whatsoever. (19) WHAT also cannot be lost sight of is that, as rightly contended by Mr. Shetye, not only was B. B. Singhat great length, but none of the statements recorded at the time of the preliminary investigation formed part of the inquiry proceedings, nor was any reliance placed on the same by the enquiry officer while submitting his report nor was the order of dismissal based upon the statements recorded during the preliminary investigation. No material was relied upon or used against the workman without his being given an opportunity to explain it. In a departmental inquiry, such as the present, the observance of strict rules of evidence as contemplated by the Evidence Act is not called for. However, what is required is that the principles of natural justice must be observed. This was done in the matter beforeWE respectfully agree with this ratio laid down by the Privy Council. However, what cannot be lost sight of is that, unlike the facts of the matter before us, this ratio of the Privy Council is based on the facts of the case before it, which was a matter under Ss. 537 and 162 of the Cr. P. C. , 1898. There can be no doubt that under the Cr. P. C. of 1898, S. 162 thereof in terms gave right, and no doubt a valuable one, to the accused person to be furnished with copies of statements made by witnesses to a police officer. Hence a violation of such a right positively given in terms to the accused person under that section, resulted in the aforesaid ratio being laid down by the Privy Council. In the matter before us there is no such right given to the workman either by statue, orders or rules, viz. , that he is entitled to be furnished with copies of statements or reports collected by a private employer during a preliminary investigations to ascertain whether disciplinary action should be launched against the concerned workman. This is brought to the forefront by the decision of the Supreme Court in Telcos case,L. L. J. 799]. Hence this ratio of the Privy Council enunciated in the light of the facts and circumstance of the case before it, can be of no assistance to Mr. Damania in the facts and circumstance of the matter beforeWHILE we are in respectful agreement with the ratio laid down by the Supreme Court and the learned single Judge of the Allahabad High Court in the circumstances of the matters before them, the same can be of no assistance to Mr. Damania in the facts and circumstances of the matter before us, which fall squarely within the Supreme Court in Telcos case,L. L. J. 799]. Those matters were, unlike the matter before us, under Art. 311 of the Constitution, pertaining to a departmental inquiry against a Government servant. Furthermore, in Bhagatrams case, A. I. R 1974 S. C. 2335, what was given to the Government servant was only a synopsis of the statements of the witnesses recorded by the Vigilance Department during the preliminary inquiry, whereas, entire statements, unlike in the matter before us, had been taken on record. This is brought to the forefront from the contents of Para. 6 of the judgment which reads as under : "the State contended that the respondent was not entitled to get copies of statements. The reasoning of the State was that the respondent was given the opportunity tothe witnesses and during thethe respondent would have the opportunity of confronting the witnesses with the statements. It is contended that the synopsis was adequate to acquaint the respondent with the gist of the evidence". This passage discloses that the respondent in that case could possibly not have had the opportunity confronting the witnesses with the statements, unless they were on record. This is not the position in the matter before us, where none of the statements recorded during the departmental enquiry or thereafter. These are the salient features which distinguish those cases from the facts of the matter before us, which as we have already stated, falls within the ratio laid down by the Supreme Court in TelcosONCE again, while we are in respectful agreement with these observation, they must be read in the light in which they have been made and the facts and circumstances of that case, which was yet another case under Art. 311 of the Constitution, and which resulted in the Delhi High court holding that the failure to furnish to the petitioner copies of the statements made by two persons before the Special Police Establishment in the criminal investigation and failure even to give inspection of these statements to the petitioner, amounted to a denial of reasonable opportunity to the petitioner of defending himself. In any event, it is unnecessary it dilate at any length on the decision of the Delhi High Court in Daljit Singhs case, A. I. R. 1970 Delhi 52 in the light of the decision and ratio of the Supreme Court in Telcos case (supra) by which we are bound. | 1 | 5,327 | 1,558 | ### 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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assistance to Mr. Damania in the facts and circumstance of the matter before us.(23) MR. Damania next relied on the decision of the Supreme Court in the case of the State of punjab v. Bhagatram, (1975) I S. C. C. 155, A. I. R. 1974 S. C. 2335, where it was held that unless the previous statement of witnesses are supplied, the dismissed person will not be able to conduct an effective and useful cross-examination and hence it is unfair to deny the Government servant copies of the earlier statements of witnesses. (24) MR. Damania also relied on the decision of the learned single Judge of the Allahabad High court in Misra v. Collector of Central Excise, Allahabad, [1962-I L. L. J. 671], where it was held that the failure to supply to the petitioner, a Government servant, the written complaint lodged by the complainant at the initial stage on which the inquiry was started and the failure to furnish him copies of statements of certain witnesses recorded by an officer the formal inquiry was started, resulted in an infirmity in the inquiry which disclosed that the petitioner did not get a reasonable opportunity to show cause against the proposed punishment as required by Art. 311 of the Constitution. (25) WHILE we are in respectful agreement with the ratio laid down by the Supreme Court and the learned single Judge of the Allahabad High Court in the circumstances of the matters before them, the same can be of no assistance to Mr. Damania in the facts and circumstances of the matter before us, which fall squarely within the Supreme Court in Telcos case, [1969-II L. L. J. 799]. Those matters were, unlike the matter before us, under Art. 311 of the Constitution, pertaining to a departmental inquiry against a Government servant. Furthermore, in Bhagatrams case, A. I. R 1974 S. C. 2335, what was given to the Government servant was only a synopsis of the statements of the witnesses recorded by the Vigilance Department during the preliminary inquiry, whereas, entire statements, unlike in the matter before us, had been taken on record. This is brought to the forefront from the contents of Para. 6 of the judgment which reads as under : "the State contended that the respondent was not entitled to get copies of statements. The reasoning of the State was that the respondent was given the opportunity to cross-examine the witnesses and during the cross-examination the respondent would have the opportunity of confronting the witnesses with the statements. It is contended that the synopsis was adequate to acquaint the respondent with the gist of the evidence". This passage discloses that the respondent in that case could possibly not have had the opportunity confronting the witnesses with the statements, unless they were on record. This is not the position in the matter before us, where none of the statements recorded during the departmental enquiry or thereafter. These are the salient features which distinguish those cases from the facts of the matter before us, which as we have already stated, falls within the ratio laid down by the Supreme Court in Telcos case.(26) MR. Damania next relied on the decision of the learned single Judge of the Madras High court in Thangaswamy v. S. I. R. Employees Co-op. Credit Society, [1961-2 L. L. J. 754], where it was held that in the absence of the rules, the question whether the inquiry is vitiated or not should be approached not from the point of view of a specific contravention of a particular rule, but from the point of view whether the result of the inquiry has been vitiated on the ground that the principles of natural justice and not been respected. It was further held that the omission to supply copies of statements of witnesses to the petitioner-employee in advance of the inquiry involved violation of the principles of natural justice and was prejudicial to the finding against him. It was further held, in the facts and circumstances of that case, that it was the plain duty of the inquiring body to supply the petitioner with statements of witnesses as requested by him or to give an opportunity to peruse the statements and take extracts on a date earlier than the date of inquiry. (27) IT is unnecessary to dilate at any length on that decision of the learned single Judge of the madras High Court, in view of the authoritative ratio and decision of the Supreme Court in Telcos case, [1969-II L. L. J. 799], referred to above and by which we are bound. (28) MR. Damania finally relied on certain observations of the Division Bench of the Delhi Court in Daljitsingh Sadhusingh v. Union of India, A. I. R. 1970 Delhi 52, at p. 56, as under :"The right to cross-examine means to cross-examine effectively. In the absence of the copies of these two statements the petitioner could not confront S. S. Duggal and E. N. Ramamurti when they appeared as witnesses, against him in the inquiry with their statements made to the Special police Establishment. "(29) ONCE again, while we are in respectful agreement with these observation, they must be read in the light in which they have been made and the facts and circumstances of that case, which was yet another case under Art. 311 of the Constitution, and which resulted in the Delhi High court holding that the failure to furnish to the petitioner copies of the statements made by two persons before the Special Police Establishment in the criminal investigation and failure even to give inspection of these statements to the petitioner, amounted to a denial of reasonable opportunity to the petitioner of defending himself. In any event, it is unnecessary it dilate at any length on the decision of the Delhi High Court in Daljit Singhs case, A. I. R. 1970 Delhi 52 in the light of the decision and ratio of the Supreme Court in Telcos case (supra) by which we are bound.
### Response:
1
### Explanation:
The Gravamen of the grievance of the 1stbefore us, as was before the Tribunal, was the failure of theto furnish the statement at B. B. Singh, who was not a witness of any great importance. The main and essential witness were Amrit Singh and Chaddha and other employees of the company who gave evidence against the workman, regarding whom no grievance has been made no doubt discreetly so, in respect ofof statements made by them during the preliminaryHENCE, looking at the matter from the widest angle permissible and giving the widest latitude possible to the workman, we cannot see our way to coming to the finding which M. Damania invites us to do, viz. , that the refusal of theto furnish to the workman a copy of B. B. Singhs statement made by him during the preliminary investigation, caused the workman any prejudice or resulted in the violation of the principles of natural justice in any manner whatsoever. (19) WHAT also cannot be lost sight of is that, as rightly contended by Mr. Shetye, not only was B. B. Singhat great length, but none of the statements recorded at the time of the preliminary investigation formed part of the inquiry proceedings, nor was any reliance placed on the same by the enquiry officer while submitting his report nor was the order of dismissal based upon the statements recorded during the preliminary investigation. No material was relied upon or used against the workman without his being given an opportunity to explain it. In a departmental inquiry, such as the present, the observance of strict rules of evidence as contemplated by the Evidence Act is not called for. However, what is required is that the principles of natural justice must be observed. This was done in the matter beforeWE respectfully agree with this ratio laid down by the Privy Council. However, what cannot be lost sight of is that, unlike the facts of the matter before us, this ratio of the Privy Council is based on the facts of the case before it, which was a matter under Ss. 537 and 162 of the Cr. P. C. , 1898. There can be no doubt that under the Cr. P. C. of 1898, S. 162 thereof in terms gave right, and no doubt a valuable one, to the accused person to be furnished with copies of statements made by witnesses to a police officer. Hence a violation of such a right positively given in terms to the accused person under that section, resulted in the aforesaid ratio being laid down by the Privy Council. In the matter before us there is no such right given to the workman either by statue, orders or rules, viz. , that he is entitled to be furnished with copies of statements or reports collected by a private employer during a preliminary investigations to ascertain whether disciplinary action should be launched against the concerned workman. This is brought to the forefront by the decision of the Supreme Court in Telcos case,L. L. J. 799]. Hence this ratio of the Privy Council enunciated in the light of the facts and circumstance of the case before it, can be of no assistance to Mr. Damania in the facts and circumstance of the matter beforeWHILE we are in respectful agreement with the ratio laid down by the Supreme Court and the learned single Judge of the Allahabad High Court in the circumstances of the matters before them, the same can be of no assistance to Mr. Damania in the facts and circumstances of the matter before us, which fall squarely within the Supreme Court in Telcos case,L. L. J. 799]. Those matters were, unlike the matter before us, under Art. 311 of the Constitution, pertaining to a departmental inquiry against a Government servant. Furthermore, in Bhagatrams case, A. I. R 1974 S. C. 2335, what was given to the Government servant was only a synopsis of the statements of the witnesses recorded by the Vigilance Department during the preliminary inquiry, whereas, entire statements, unlike in the matter before us, had been taken on record. This is brought to the forefront from the contents of Para. 6 of the judgment which reads as under : "the State contended that the respondent was not entitled to get copies of statements. The reasoning of the State was that the respondent was given the opportunity tothe witnesses and during thethe respondent would have the opportunity of confronting the witnesses with the statements. It is contended that the synopsis was adequate to acquaint the respondent with the gist of the evidence". This passage discloses that the respondent in that case could possibly not have had the opportunity confronting the witnesses with the statements, unless they were on record. This is not the position in the matter before us, where none of the statements recorded during the departmental enquiry or thereafter. These are the salient features which distinguish those cases from the facts of the matter before us, which as we have already stated, falls within the ratio laid down by the Supreme Court in TelcosONCE again, while we are in respectful agreement with these observation, they must be read in the light in which they have been made and the facts and circumstances of that case, which was yet another case under Art. 311 of the Constitution, and which resulted in the Delhi High court holding that the failure to furnish to the petitioner copies of the statements made by two persons before the Special Police Establishment in the criminal investigation and failure even to give inspection of these statements to the petitioner, amounted to a denial of reasonable opportunity to the petitioner of defending himself. In any event, it is unnecessary it dilate at any length on the decision of the Delhi High Court in Daljit Singhs case, A. I. R. 1970 Delhi 52 in the light of the decision and ratio of the Supreme Court in Telcos case (supra) by which we are bound.
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State of Madras Vs. A. M. Safiulla and Company | SHAH, J. 1. This appeal arises out of a proceeding which was treated as companion to the proceeding out of which Appeal No. 578 of 1966, The State of Madras v. P. M. Batcha & Co. ([1967] 20 S.T.C. 273), has arisen. In this case, for the year 1954-55, following the judgment of the Madras High Court in Messrs M. A. Noor Mohamed & Co. v. State of Madras and Another ([1956] 7 S.T.C. 792; A.I.R. 1957 Mad. 33) , the Commercial Tax Officer passed an order on October 12, 1959, that the net turnover of the respondents was "nil"; the tax paid was "nil"; tax due was "nil"; and the balance was "nil". He further recorded that "no demand under section 8-B(2) or section 3(2)" arose. This order was not communicated to the respondents. After the judgment of this Court in The State of Madras and Another v. M/s M. A. Noor Mohammed & Company ([1960] 11 S.T.C. 570; A.I.R. 1960 S.C. 1254), the proceedings under section 32 were commenced by the Deputy Commissioner and the turnover was determined and brought to tax. 2. In The State of Madras v. P. M. Batcha & Company ([1967] 20 S.T.C. 273) - C.A. No. 578 of 1966 - the original order of assessment was made when Act 9 of 1939 was in operation and the order of assessment was sought to be revised under Act 1 of 1959. In the present case, the order of assessment was made after Act 1 of 1959 was brought into force, and process of revision of assessment was initiated under section 32 of Act 1 of 1959. But, in our judgment, the order determining the net turnover being "nil" is not one against which a person may object. It raises no grievance which can be ventilated by him; the order does not compute the turnover, nor does it determine the tax. Failure to serve a notice of such an order does not invalidate the order, and no appeal against such an order lies under section 31. There is, therefore, no bar to the exercise of the jurisdiction of the Deputy Commissioner under section 32 of the Act to review "the order of nil assessment".The High Court was, in our judgment, in error in holding that the jurisdiction of the Deputy Commissioner was barred, because the order of "nil assessment" was not communicated and on that account the period for filing the appeal had not expired, and therefore the jurisdiction of the Deputy Commissioner could not be exercised. | 1[ds]But, in our judgment, the order determining the net turnover being "nil" is not one against which a person may object. It raises no grievance which can be ventilated by him; the order does not compute the turnover, nor does it determine the tax. Failure to serve a notice of such an order does not invalidate the order, and no appeal against such an order lies under section 31. There is, therefore, no bar to the exercise of the jurisdiction of the Deputy Commissioner under section 32 of the Act to review "the order of nil assessment".The High Court was, in our judgment, in error in holding that the jurisdiction of the Deputy Commissioner was barred, because the order of "nil assessment" was not communicated and on that account the period for filing the appeal had not expired, and therefore the jurisdiction of the Deputy Commissioner could not be exercised. | 1 | 511 | 176 | ### 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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SHAH, J. 1. This appeal arises out of a proceeding which was treated as companion to the proceeding out of which Appeal No. 578 of 1966, The State of Madras v. P. M. Batcha & Co. ([1967] 20 S.T.C. 273), has arisen. In this case, for the year 1954-55, following the judgment of the Madras High Court in Messrs M. A. Noor Mohamed & Co. v. State of Madras and Another ([1956] 7 S.T.C. 792; A.I.R. 1957 Mad. 33) , the Commercial Tax Officer passed an order on October 12, 1959, that the net turnover of the respondents was "nil"; the tax paid was "nil"; tax due was "nil"; and the balance was "nil". He further recorded that "no demand under section 8-B(2) or section 3(2)" arose. This order was not communicated to the respondents. After the judgment of this Court in The State of Madras and Another v. M/s M. A. Noor Mohammed & Company ([1960] 11 S.T.C. 570; A.I.R. 1960 S.C. 1254), the proceedings under section 32 were commenced by the Deputy Commissioner and the turnover was determined and brought to tax. 2. In The State of Madras v. P. M. Batcha & Company ([1967] 20 S.T.C. 273) - C.A. No. 578 of 1966 - the original order of assessment was made when Act 9 of 1939 was in operation and the order of assessment was sought to be revised under Act 1 of 1959. In the present case, the order of assessment was made after Act 1 of 1959 was brought into force, and process of revision of assessment was initiated under section 32 of Act 1 of 1959. But, in our judgment, the order determining the net turnover being "nil" is not one against which a person may object. It raises no grievance which can be ventilated by him; the order does not compute the turnover, nor does it determine the tax. Failure to serve a notice of such an order does not invalidate the order, and no appeal against such an order lies under section 31. There is, therefore, no bar to the exercise of the jurisdiction of the Deputy Commissioner under section 32 of the Act to review "the order of nil assessment".The High Court was, in our judgment, in error in holding that the jurisdiction of the Deputy Commissioner was barred, because the order of "nil assessment" was not communicated and on that account the period for filing the appeal had not expired, and therefore the jurisdiction of the Deputy Commissioner could not be exercised.
### Response:
1
### Explanation:
But, in our judgment, the order determining the net turnover being "nil" is not one against which a person may object. It raises no grievance which can be ventilated by him; the order does not compute the turnover, nor does it determine the tax. Failure to serve a notice of such an order does not invalidate the order, and no appeal against such an order lies under section 31. There is, therefore, no bar to the exercise of the jurisdiction of the Deputy Commissioner under section 32 of the Act to review "the order of nil assessment".The High Court was, in our judgment, in error in holding that the jurisdiction of the Deputy Commissioner was barred, because the order of "nil assessment" was not communicated and on that account the period for filing the appeal had not expired, and therefore the jurisdiction of the Deputy Commissioner could not be exercised.
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Employees' State Insurance Corporation Vs. Harrisons Malayalam Limited | respondent- Company itself obviously pertaining to another contract work which might have been undertaken by it really clinches the issue against the respondent. There is another decision of this Court to which our attention was invited by learned counsel for the Corporation in the case of ESI Corpn. v. Hotel Kalpaka International S.C. It has been held by this Court, speaking through Mohan, J., that under Section 40 of the Act primary liability is of the employer to pay, not only the employers contribution but also the employees contribution. Therefore, he cannot be heard to contend that since he had not deducted the employees contribution on the wages of the employees, he could not be made liable for the same. It cannot be said that the demand could not be enforced against a closed business as such a finding would, instead of promoting the scheme and avoiding the mischief, perpetrate the mischief. It was further observed that it cannot also be said that because the employees had gone away there is no liability to contribute. The liability to contribute arose from the date of commencement of the establishment and is a continuing liability till the closure. The very object of establishing a common fund under Section 26 for the benefit of all the employees will again be thwarted if such a construction is put. 5. In view of the aforesaid decisions of this Court, especially the first decision which is rendered in the case of the respondent-Company itself, there is no escape from the conclusion that the claim of the appellant-Corporation could not have been successfully challenged by the respondent only on the specious plea that during the relevant period from 1971 to 1982 no data was available with the respondent about the exact number of employees employed by it and the payment made to them during the relevant period. Therefore, on that short ground the appeal will have to be allowed. However, before we do so, we must note two further contentions canvassed by the learned counsel for the respondent seeking a remand of these proceedings to the Insurance Court. Firstly, it was submitted that the workmen engaged by the respondent were of casual nature and the respondents own work was that of a casual contract and, therefore, no liability to contribute under the Act would arise in such a case. Secondly, it was submitted that the total claim of Rs. 2 lakhs and odd was on the basis that the sub-contractors were paid Rs. 33 lakhs and odd during the relevant time by the respondent but that included not only the payment of wages to the employees of the sub-contractors, but also it included transport charges and other miscellaneous items and such a contention was put forward in the application before the Insurance Court. It was, therefore, submitted that even if on the main contention the respondent fails on the aforesaid two grounds, for considering these two contentions the matter may be remanded for a fresh decision of the Insurance Court. 6. So far as the first ground seeking for remand is concerned, reliance was placed on para 4 of the judgment of this Court in the respondents own case in Harrison (supra). It has been observed therein that : (CLR page 16 para 4) "Shri Pai while not disputing the fact that the Act applies to casual workmen, contended that it cannot be made applicable to the workmen of casual contractors such as the plumbers, electricity repairers, air conditioner repairers, computer repairers, T.V. repairers etc. whom contractors engage for temporary repair works. There is indeed great force in this contention. However, in the present case there is nothing on record to show that the contractor engaged was such casual contractor and the work executed by him was of a casual nature. 7. We fail to appreciate how these observations made in the case of the respondent itself in that earlier case can be of any avail to the respondent in the present case. It is nor the case of the respondent nor was it proved on record even in the alternative that the work which the sub-contractors employees did was of such a nature that the main contract itself undertaken by the respondent could be treated to have resulted in the contract work being of casual nature. On the contrary, the evidence is that for 11 years from 1971 to 1982 the respondent did the construction work for McDowell Company. Thus it was almost of a perennial nature spread over 11 years and during that time the workmen were engaged, though according to the respondent through sub-contractors. Consequently, there would remain no occasion for remanding the proceedings for considering the first objection.8. Regarding the second objection it is necessary to note that though it was the contention of the respondent in application before the Insurance Court that it had engaged subcontractors who brought their own workmen during the relevant period for carrying out the work of the respondent, there was documentary evidence on record by way of letters dated 5.12.1986, 27.1.1986 and 18.11.1986 received from the so-called sub-contractors to show that they were in fact employees of the respondent and were not sub-contractors. When such evidence was led before the Insurance Court by the Corporation it was incumbent upon the respondent to join the issue and to seek a decision of the Insurance Court on this alternative aspect. That was not done presumably because it was not worthwhile doing so. Therefore it is now too late in the day for the respondent to claim a remand even on this ground especially-when we are told that the respondent is one of the well-known companies in Kerala and was carrying construction activities on a large scale for different clients at the relevant time and the claim involved is only Rs. 2 lakhs and odd. For all these reasons, therefore, we are not inclined to accept even the second objection of the respondent for seeking a remand of these proceedings. | 1[ds]7. We fail to appreciate how these observations made in the case of the respondent itself in that earlier case can be of any avail to the respondent in the present case. It is nor the case of the respondent nor was it proved on record even in the alternative that the work which theemployees did was of such a nature that the main contract itself undertaken by the respondent could be treated to have resulted in the contract work being of casual nature. On the contrary, the evidence is that for 11 years from 1971 to 1982 the respondent did the construction work for McDowell Company. Thus it was almost of a perennial nature spread over 11 years and during that time the workmen were engaged, though according to the respondent throughConsequently, there would remain no occasion for remanding the proceedings for considering the first objection.8. Regarding the second objection it is necessary to note that though it was the contention of the respondent in application before the Insurance Court that it had engaged subcontractors who brought their own workmen during the relevant period for carrying out the work of the respondent, there was documentary evidence on record by way of letters dated 5.12.1986, 27.1.1986 and 18.11.1986 received from thes to show that they were in fact employees of the respondent and were notWhen such evidence was led before the Insurance Court by the Corporation it was incumbent upon the respondent to join the issue and to seek a decision of the Insurance Court on this alternative aspect. That was not done presumably because it was not worthwhile doing so. Therefore it is now too late in the day for the respondent to claim a remand even on this groundwe are told that the respondent is one of thecompanies in Kerala and was carrying construction activities on a large scale for different clients at the relevant time and the claim involved is only Rs. 2 lakhs and odd. For all these reasons, therefore, we are not inclined to accept even the second objection of the respondent for seeking a remand of these proceedings. | 1 | 2,056 | 375 | ### 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:
respondent- Company itself obviously pertaining to another contract work which might have been undertaken by it really clinches the issue against the respondent. There is another decision of this Court to which our attention was invited by learned counsel for the Corporation in the case of ESI Corpn. v. Hotel Kalpaka International S.C. It has been held by this Court, speaking through Mohan, J., that under Section 40 of the Act primary liability is of the employer to pay, not only the employers contribution but also the employees contribution. Therefore, he cannot be heard to contend that since he had not deducted the employees contribution on the wages of the employees, he could not be made liable for the same. It cannot be said that the demand could not be enforced against a closed business as such a finding would, instead of promoting the scheme and avoiding the mischief, perpetrate the mischief. It was further observed that it cannot also be said that because the employees had gone away there is no liability to contribute. The liability to contribute arose from the date of commencement of the establishment and is a continuing liability till the closure. The very object of establishing a common fund under Section 26 for the benefit of all the employees will again be thwarted if such a construction is put. 5. In view of the aforesaid decisions of this Court, especially the first decision which is rendered in the case of the respondent-Company itself, there is no escape from the conclusion that the claim of the appellant-Corporation could not have been successfully challenged by the respondent only on the specious plea that during the relevant period from 1971 to 1982 no data was available with the respondent about the exact number of employees employed by it and the payment made to them during the relevant period. Therefore, on that short ground the appeal will have to be allowed. However, before we do so, we must note two further contentions canvassed by the learned counsel for the respondent seeking a remand of these proceedings to the Insurance Court. Firstly, it was submitted that the workmen engaged by the respondent were of casual nature and the respondents own work was that of a casual contract and, therefore, no liability to contribute under the Act would arise in such a case. Secondly, it was submitted that the total claim of Rs. 2 lakhs and odd was on the basis that the sub-contractors were paid Rs. 33 lakhs and odd during the relevant time by the respondent but that included not only the payment of wages to the employees of the sub-contractors, but also it included transport charges and other miscellaneous items and such a contention was put forward in the application before the Insurance Court. It was, therefore, submitted that even if on the main contention the respondent fails on the aforesaid two grounds, for considering these two contentions the matter may be remanded for a fresh decision of the Insurance Court. 6. So far as the first ground seeking for remand is concerned, reliance was placed on para 4 of the judgment of this Court in the respondents own case in Harrison (supra). It has been observed therein that : (CLR page 16 para 4) "Shri Pai while not disputing the fact that the Act applies to casual workmen, contended that it cannot be made applicable to the workmen of casual contractors such as the plumbers, electricity repairers, air conditioner repairers, computer repairers, T.V. repairers etc. whom contractors engage for temporary repair works. There is indeed great force in this contention. However, in the present case there is nothing on record to show that the contractor engaged was such casual contractor and the work executed by him was of a casual nature. 7. We fail to appreciate how these observations made in the case of the respondent itself in that earlier case can be of any avail to the respondent in the present case. It is nor the case of the respondent nor was it proved on record even in the alternative that the work which the sub-contractors employees did was of such a nature that the main contract itself undertaken by the respondent could be treated to have resulted in the contract work being of casual nature. On the contrary, the evidence is that for 11 years from 1971 to 1982 the respondent did the construction work for McDowell Company. Thus it was almost of a perennial nature spread over 11 years and during that time the workmen were engaged, though according to the respondent through sub-contractors. Consequently, there would remain no occasion for remanding the proceedings for considering the first objection.8. Regarding the second objection it is necessary to note that though it was the contention of the respondent in application before the Insurance Court that it had engaged subcontractors who brought their own workmen during the relevant period for carrying out the work of the respondent, there was documentary evidence on record by way of letters dated 5.12.1986, 27.1.1986 and 18.11.1986 received from the so-called sub-contractors to show that they were in fact employees of the respondent and were not sub-contractors. When such evidence was led before the Insurance Court by the Corporation it was incumbent upon the respondent to join the issue and to seek a decision of the Insurance Court on this alternative aspect. That was not done presumably because it was not worthwhile doing so. Therefore it is now too late in the day for the respondent to claim a remand even on this ground especially-when we are told that the respondent is one of the well-known companies in Kerala and was carrying construction activities on a large scale for different clients at the relevant time and the claim involved is only Rs. 2 lakhs and odd. For all these reasons, therefore, we are not inclined to accept even the second objection of the respondent for seeking a remand of these proceedings.
### Response:
1
### Explanation:
7. We fail to appreciate how these observations made in the case of the respondent itself in that earlier case can be of any avail to the respondent in the present case. It is nor the case of the respondent nor was it proved on record even in the alternative that the work which theemployees did was of such a nature that the main contract itself undertaken by the respondent could be treated to have resulted in the contract work being of casual nature. On the contrary, the evidence is that for 11 years from 1971 to 1982 the respondent did the construction work for McDowell Company. Thus it was almost of a perennial nature spread over 11 years and during that time the workmen were engaged, though according to the respondent throughConsequently, there would remain no occasion for remanding the proceedings for considering the first objection.8. Regarding the second objection it is necessary to note that though it was the contention of the respondent in application before the Insurance Court that it had engaged subcontractors who brought their own workmen during the relevant period for carrying out the work of the respondent, there was documentary evidence on record by way of letters dated 5.12.1986, 27.1.1986 and 18.11.1986 received from thes to show that they were in fact employees of the respondent and were notWhen such evidence was led before the Insurance Court by the Corporation it was incumbent upon the respondent to join the issue and to seek a decision of the Insurance Court on this alternative aspect. That was not done presumably because it was not worthwhile doing so. Therefore it is now too late in the day for the respondent to claim a remand even on this groundwe are told that the respondent is one of thecompanies in Kerala and was carrying construction activities on a large scale for different clients at the relevant time and the claim involved is only Rs. 2 lakhs and odd. For all these reasons, therefore, we are not inclined to accept even the second objection of the respondent for seeking a remand of these proceedings.
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Commissioner Of Income-Tax, Madras Vs. S. Raman Chettiar | in his assessable income interest received by him on arrears of rent on the ground that it was agricultural income. This view was held to be wrong by the Privy Council. The Income Tax Officer issued notices under S. 34 on August 8, 1948, without obtaining the approval of the Commissioner. Section 34 was amended by the Income-tax Business Profits Tax (Amendment) Act, 1948 (XLVIII of 1948). Assessments were made on the basis of the above notices dated August, 8, 1948. The question referred to the High Court was: "Whether in the circumstances of the case assessment proceedings were validly initiated under S. 34 of the Indian Income Tax Act". This Court held that:"As the Amending Act repealed the original Section 34 not from the day it was promulgated but from an earlier date, March 30, 1948, and substituted in its place the re-enacted Section containing the proviso, and provided that the re-enacted Section shall be deemed to have come into force with retrospective effect on March 30, 1948, the application of Section 6 of the General Clauses act was excluded. As the notices were all issued on August 8, 1948, at a time when on the statute book must be deemed to be existing a provision enjoining a duty upon the Income-tax Officer to record his reasons and submit then for the approval of the Commissioner before issuing notice under Section 34, unless that approval was obtained the notices could not be issued. The notices issued by the Income-tax Officer without complying with the conditions laid down in the proviso to Section 34(1) as re-enacted were invalid, and the entire proceedings for reassessment were illegal."In view of the question referred to the High Court, this Court was not really concerned with the validity of the returns made, but Mr. Sastri relies on certain observations made by the High Court and this Court. When the reference was before the Patna High Court in Commissioner of Income-tax, Bihar and Orissa v. Partap Singh Bahadur, 1956-30 ITR 484 : (AIR 1957 Pat 61 ) the learned counsel had contended that it was physically impossible for the Income Tax Officer to comply with the requirements of the amended S. 34 on August 8, 1948. The High Court, regarding this contention, observed that"the argument is correct, but the Income Tax Department was not prejudiced because notices under S. 34 could be re-issued after the 8th of September, the date of the Amending Act, and after complying with the requirements of the amended Section 34."This Court, in the appeal from the above decision, after holding that the notices were invalid, observed:"Indeed, there was time enough for fresh notices to have been issued, and we fail to see why the old notices were not recalled and fresh ones issued."These observations certainly show that this Court assumed that fresh notices could have been issued in that case. Mr. Sastri says that the Department has done exactly what the Supreme Court indicated in that case should be done. But, apart from the fact that there is no discussion on the question of the validity of the return, it is possible to say that on the facts in that case fresh notices could have been issued. In Maharajah Partap Singhs case, 1961-41 ITR 421 : (AIR 1961 SC 1026 ) the Maharajah had filed return for four assessment years 1944-45 to 1947-48 under S. 22, and assessments had been made but the income of the assessee with regard to interest on arrears of rent was not included. His returns in pursuance to a notice under S. 34 could not be treated as a return under S. 22(3) because he had already filed returns and was not purporting to revise his previous returns. But in the present case the assessee had never filed a return under S. 22. The first return he filed was in response to a notice under S. 34, but he could have filed this return even without a notice under S. 34, for the four years prescribed by S. 34(3) had not expired.10. This Court in 1959-36 ITR 569 : (AIR 1959 SC 1154 ) held that a return showing income below taxable limit was a good return and the Income-tax Officer could not choose to ignore the return and issue a notice under S. 34, Hidayatullah J., speaking for the Court, observed that "it is a little difficult to understand how the existence of a return can be ignored once it is filed." But this case is not of much help in determining whether the return in this case is a good return within S. 22(3) of the Act.11. Mr. Sastri further contends that if the notice under S. 34 is held to be bad, it must follow that the return made in pursuance of it must also be treated as bad. We are satisfied that there is no substance in this contention. The decision of the Calcutta High Court in R. K. Das and Co. v. Commissioner of Income-tax West Bengal, 1956-30 ITR 439 : (AIR 1956 Cal 161 ) certainly supports Mr. Sastris contention but, with respect, we are unable to agree with the reasoning of the High Court. Apart from fact that this Court did not approve of this decision in AIR 1959 SC 1 154, we are unable to appreciate that if the Income-tax Officer had based his assessment on the return treating it to be a return under S. 22(3), the assessment would not stand a moments scrutiny.12. We think that some confusion has crept into this branch of the Income Tax Law by the use of the words voluntary return and a non-voluntary return. Section 22 (3) does not use this expression and whatever the impelling cause or motive if a return otherwise valid is filed by an assessee before the receipt of a valid notice under S. 34, it is to be treated as a return within S. 22(3) for it falls within the language of the sub-section. | 0[ds]These observations certainly show that this Court assumed that fresh notices could have been issued in that case. Mr. Sastri says that the Department has done exactly what the Supreme Court indicated in that case should be done. But, apart from the fact that there is no discussion on the question of the validity of the return, it is possible to say that on the facts in that case fresh notices could have beenare satisfied that there is no substance in this contention. The decision of the Calcutta High Court in R. K. Das and Co. v. Commissioner of Income-tax West Bengal, 1956-30 ITR 439 : (AIR 1956 Cal 161 ) certainly supports Mr. Sastris contention but, with respect, we are unable to agree with the reasoning of the High Court. Apart from fact that this Court did not approve of this decision in AIR 1959 SC 1 154, we are unable to appreciate that if the Income-tax Officer had based his assessment on the return treating it to be a return under S. 22(3), the assessment would not stand a moments scrutiny.12. We think that some confusion has crept into this branch of the Income Tax Law by the use of the words voluntary return and a non-voluntary return. Section 22 (3) does not use this expression and whatever the impelling cause or motive if a return otherwise valid is filed by an assessee before the receipt of a valid notice under S. 34, it is to be treated as a return within S. 22(3) for it falls within the language of the sub-section.In our opinion the appellant is not raising any new point. It is true that in the above cited proposition the appellant says that the return is valid but this follows the assertion that the notice issued on April 3, 1948 is22(3) permits an assessee to furnish a return at any time before the assessment is made. By virtue of S. 34(3), as it stood in 1949, assessment could have been made at least up to March 31, 1949, if the return was valid. Therefore, it may be implied, as laid down in Santosha Nadar v. First AdditionalITR 715 (Mad) and Commissioner ofBombay City II v. Bagwandas Amersey,ITR 239 (Bom) that the return must be filed before the time mentioned in S. 34(3). This condition is, however, satisfied in this case. Mr. Sastri says that it is further implicit in S. 22(3) that the return must be voluntary we are unable to appreciate that every return made under S. 22(3) must be a voluntary return, in the sense that it must be suo motu. If a return is made in pursuance to a general notice under S. 22(1) or a special notice under S. 22 (2), it is a return made voluntarily but not suo motu. It is a return made in response to a public notice or a special notice. If no return is made in response to notices under S. 22(1), and S. 22(2), the Act attaches certain penalties. In our view, it is not correct first to describe a return made under S. 22(3) in response to a notice under S. 22(1) or S. 22(2) as voluntary, and then say that a return made in response to a notice under S. 34 is not voluntary just because it warns the assessee that some income has escaped assessment. In our opinion, both types of returns are under S. 22(3) of the Act. In the first type of cases it is directly under S. 22(3). In case of a notice under S. 34, it is deemed to be notice under S. 22(2) and the return deemed to be a return under S. 22(3). From the language of S. 22(3), we are unable to say that the return dated September 4, 1948, was not a return within S. 22(3). | 0 | 2,893 | 763 | ### 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:
in his assessable income interest received by him on arrears of rent on the ground that it was agricultural income. This view was held to be wrong by the Privy Council. The Income Tax Officer issued notices under S. 34 on August 8, 1948, without obtaining the approval of the Commissioner. Section 34 was amended by the Income-tax Business Profits Tax (Amendment) Act, 1948 (XLVIII of 1948). Assessments were made on the basis of the above notices dated August, 8, 1948. The question referred to the High Court was: "Whether in the circumstances of the case assessment proceedings were validly initiated under S. 34 of the Indian Income Tax Act". This Court held that:"As the Amending Act repealed the original Section 34 not from the day it was promulgated but from an earlier date, March 30, 1948, and substituted in its place the re-enacted Section containing the proviso, and provided that the re-enacted Section shall be deemed to have come into force with retrospective effect on March 30, 1948, the application of Section 6 of the General Clauses act was excluded. As the notices were all issued on August 8, 1948, at a time when on the statute book must be deemed to be existing a provision enjoining a duty upon the Income-tax Officer to record his reasons and submit then for the approval of the Commissioner before issuing notice under Section 34, unless that approval was obtained the notices could not be issued. The notices issued by the Income-tax Officer without complying with the conditions laid down in the proviso to Section 34(1) as re-enacted were invalid, and the entire proceedings for reassessment were illegal."In view of the question referred to the High Court, this Court was not really concerned with the validity of the returns made, but Mr. Sastri relies on certain observations made by the High Court and this Court. When the reference was before the Patna High Court in Commissioner of Income-tax, Bihar and Orissa v. Partap Singh Bahadur, 1956-30 ITR 484 : (AIR 1957 Pat 61 ) the learned counsel had contended that it was physically impossible for the Income Tax Officer to comply with the requirements of the amended S. 34 on August 8, 1948. The High Court, regarding this contention, observed that"the argument is correct, but the Income Tax Department was not prejudiced because notices under S. 34 could be re-issued after the 8th of September, the date of the Amending Act, and after complying with the requirements of the amended Section 34."This Court, in the appeal from the above decision, after holding that the notices were invalid, observed:"Indeed, there was time enough for fresh notices to have been issued, and we fail to see why the old notices were not recalled and fresh ones issued."These observations certainly show that this Court assumed that fresh notices could have been issued in that case. Mr. Sastri says that the Department has done exactly what the Supreme Court indicated in that case should be done. But, apart from the fact that there is no discussion on the question of the validity of the return, it is possible to say that on the facts in that case fresh notices could have been issued. In Maharajah Partap Singhs case, 1961-41 ITR 421 : (AIR 1961 SC 1026 ) the Maharajah had filed return for four assessment years 1944-45 to 1947-48 under S. 22, and assessments had been made but the income of the assessee with regard to interest on arrears of rent was not included. His returns in pursuance to a notice under S. 34 could not be treated as a return under S. 22(3) because he had already filed returns and was not purporting to revise his previous returns. But in the present case the assessee had never filed a return under S. 22. The first return he filed was in response to a notice under S. 34, but he could have filed this return even without a notice under S. 34, for the four years prescribed by S. 34(3) had not expired.10. This Court in 1959-36 ITR 569 : (AIR 1959 SC 1154 ) held that a return showing income below taxable limit was a good return and the Income-tax Officer could not choose to ignore the return and issue a notice under S. 34, Hidayatullah J., speaking for the Court, observed that "it is a little difficult to understand how the existence of a return can be ignored once it is filed." But this case is not of much help in determining whether the return in this case is a good return within S. 22(3) of the Act.11. Mr. Sastri further contends that if the notice under S. 34 is held to be bad, it must follow that the return made in pursuance of it must also be treated as bad. We are satisfied that there is no substance in this contention. The decision of the Calcutta High Court in R. K. Das and Co. v. Commissioner of Income-tax West Bengal, 1956-30 ITR 439 : (AIR 1956 Cal 161 ) certainly supports Mr. Sastris contention but, with respect, we are unable to agree with the reasoning of the High Court. Apart from fact that this Court did not approve of this decision in AIR 1959 SC 1 154, we are unable to appreciate that if the Income-tax Officer had based his assessment on the return treating it to be a return under S. 22(3), the assessment would not stand a moments scrutiny.12. We think that some confusion has crept into this branch of the Income Tax Law by the use of the words voluntary return and a non-voluntary return. Section 22 (3) does not use this expression and whatever the impelling cause or motive if a return otherwise valid is filed by an assessee before the receipt of a valid notice under S. 34, it is to be treated as a return within S. 22(3) for it falls within the language of the sub-section.
### Response:
0
### Explanation:
These observations certainly show that this Court assumed that fresh notices could have been issued in that case. Mr. Sastri says that the Department has done exactly what the Supreme Court indicated in that case should be done. But, apart from the fact that there is no discussion on the question of the validity of the return, it is possible to say that on the facts in that case fresh notices could have beenare satisfied that there is no substance in this contention. The decision of the Calcutta High Court in R. K. Das and Co. v. Commissioner of Income-tax West Bengal, 1956-30 ITR 439 : (AIR 1956 Cal 161 ) certainly supports Mr. Sastris contention but, with respect, we are unable to agree with the reasoning of the High Court. Apart from fact that this Court did not approve of this decision in AIR 1959 SC 1 154, we are unable to appreciate that if the Income-tax Officer had based his assessment on the return treating it to be a return under S. 22(3), the assessment would not stand a moments scrutiny.12. We think that some confusion has crept into this branch of the Income Tax Law by the use of the words voluntary return and a non-voluntary return. Section 22 (3) does not use this expression and whatever the impelling cause or motive if a return otherwise valid is filed by an assessee before the receipt of a valid notice under S. 34, it is to be treated as a return within S. 22(3) for it falls within the language of the sub-section.In our opinion the appellant is not raising any new point. It is true that in the above cited proposition the appellant says that the return is valid but this follows the assertion that the notice issued on April 3, 1948 is22(3) permits an assessee to furnish a return at any time before the assessment is made. By virtue of S. 34(3), as it stood in 1949, assessment could have been made at least up to March 31, 1949, if the return was valid. Therefore, it may be implied, as laid down in Santosha Nadar v. First AdditionalITR 715 (Mad) and Commissioner ofBombay City II v. Bagwandas Amersey,ITR 239 (Bom) that the return must be filed before the time mentioned in S. 34(3). This condition is, however, satisfied in this case. Mr. Sastri says that it is further implicit in S. 22(3) that the return must be voluntary we are unable to appreciate that every return made under S. 22(3) must be a voluntary return, in the sense that it must be suo motu. If a return is made in pursuance to a general notice under S. 22(1) or a special notice under S. 22 (2), it is a return made voluntarily but not suo motu. It is a return made in response to a public notice or a special notice. If no return is made in response to notices under S. 22(1), and S. 22(2), the Act attaches certain penalties. In our view, it is not correct first to describe a return made under S. 22(3) in response to a notice under S. 22(1) or S. 22(2) as voluntary, and then say that a return made in response to a notice under S. 34 is not voluntary just because it warns the assessee that some income has escaped assessment. In our opinion, both types of returns are under S. 22(3) of the Act. In the first type of cases it is directly under S. 22(3). In case of a notice under S. 34, it is deemed to be notice under S. 22(2) and the return deemed to be a return under S. 22(3). From the language of S. 22(3), we are unable to say that the return dated September 4, 1948, was not a return within S. 22(3).
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Bhaskar Textile Mills Limited Vs. Jharsuguda Municipality and Others | under the Act of 1920 after April 1, 1966 when the repeal became effective on the coming into force of the Act. It was, however, contended in that case that cl. la of Schedule 9 of the Act keeps the repealed enactment alive for tax purposes and, therefore, the municipality had the authority to impose the property tax under the Act of 1920 notwithstanding its repeal by the new Act. This Court, however, took the view that the provisions contained in the Schedule are of a transitional nature. They were intended to apply during the period of transition following upon the repeal of old municipal laws and the introduction of the li new law. The object of clause 12 of Schedule 9 was to authorise the levy of taxes which, on the commencement of the Act, Were levied under the repealed laws. This Court further added that the municipality might have been levying property tax since long on properties situated within its limits, but until April 1, 1966 the villages of Ramakrishnapuram and Sriharipur am were outside those limits. Qua the areas newly included within the municipal limits, the tax was being imposed for the first time and therefore it was incumbent on the municipality to follow the procedure prescribed by the first proviso to section 81(2). Residents and tax payers of those areas never had an opportunity to object to the imposition of the tax and that valuable opportunity cannot be denied to them. It is obligatory upon the municipality not only to invite objections to the proposed tax but also to consider the objections received by it within the specified period.For the State, however, reliance was placed in that case on s.3(4) of the Act to contend that the inclusion of the two villages within the municipal area attracts of its own force every provision of the Act with effect from the dale on which the final notification is published. by the Government under s.3(3). In support of this contention it cited the decision of this Court in Atlas Cycle Industrial Ltd. v. State of Haryana &Anr. This argument on behalf of the State was, however, repelled and the Court observed:"Far from supporting the argument, we consider that the decision shows how a provision like the one contained in Section 3(4) cannot have the effect contended for by the appellant. In the Atlas Cycle case, section 5(4) of the Punjab Municipality Act, 1911 provided that when any local area was included in the municipality, "this Act and...all . rules, bye-laws, orders, directions and powers made, issued or conferred under this Act and- in force throughout the whole municipality at the time, shall apply to such areas."."15. But this Court took the view that since section 5(4) of the Punjab Act did not, significantly, refer to notifications and since section 62(1) of the Punjab Act spoke of "notification" for the imposition of taxes, it was not competent to the municipality to levy and collect octroi from the company on the strength merely of the provision contained in s. 5(4) of the Punjab Act. That case, however, is distinguishable and cannot be of much assistance for solving the problem before us. Section 5 of the Orissa Municipal Act makes all the provisions of the Act and of any rules, by-laws, notifications, or orders made thereunder, which immediately before such inclusion were in force throughout such municipality, applicable to such area, unless the State Government, in and by the notification, otherwise direct. This section, therefore, includes not only the provisions of the Act, rules and bye-laws but also includes notifications. This distinguishes the. . present case from the Visakhapatnam Municipalitys case (supra).For the appellant, next reliance was placed upon Bagalkot City Municipality v. Bagalkot Cement.(1) In that case also at the time of the imposition of the octroi duty the respondents factory was situated outside the municipal district and was not subject to the octroi duty. Subsequently, the Government extended the municipal district so that the factory came to be included within that district. The appellant in that case contended that upon such extension its octroi limits also stood extended to include the factory and the respondent became liable to pay octroi duty in respect of goods brought into the factory. The majority view was that the expression "municipal district" in the bye-law referred to the municipal district as existing when the bye-law was framed. The context prevented the definition of "municipal . district" in the Act, namely, the municipal district as from time to time existing from being applied under s.20 of the Bombay General Clauses Act to interpret the bye-law The bye-law had been made without being published to the respondent, and if it was so read referring to the municipal district from time to time existing it would be invalid for non-compliance with the provisions of s.48 of the Act. This case again is distinguishable in view of the wording of s.5 of the Orissa Municipal Act:16. Lastly it is urged that the octroi duty levied in this case by the Municipality is unreasonable and excessive. The Municipality is required to provide certain amenities not only for the permanent residents within the municipality, but also even for casual visitors who may on occasions enter the limits of the municipality. The entry of large quantities of goods within the municipality almost daily from outside necessarily creates innumerable problems such as provisions of water supply, lighting facilities, facilities for conservancy, sanitation, maintenance of good roads and markets etc. which the Jharsuguda Municipality has done and there is no allegation to the contrary by the appellant. From the material placed before us we are of the view that the levy is not an unreasonable one. It is not also excessive. . The imposition of octroi cannot, therefore, be challenged on the ground that there is violation of Art. 19(1)(g) of the Constitution.Considering the case from any aspect the imposition of octroi duty, in our opinion, does not suffer from any infirmity.17 | 1[ds]But this Court took the view that since section 5(4) of the Punjab Act did not, significantly, refer to notifications and since section 62(1) of the Punjab Act spoke of "notification" for the imposition of taxes, it was not competent to the municipality to levy and collect octroi from the company on the strength merely of the provision contained in s. 5(4) of the Punjab Act. That case, however, is distinguishable and cannot be of much assistance for solving the problem before us. Section 5 of the Orissa Municipal Act makes all the provisions of the Act and of any rules, by-laws, notifications, or orders made thereunder, which immediately before such inclusion were in force throughout such municipality, applicable to such area, unless the State Government, in and by the notification, otherwise direct. This section, therefore, includes not only the provisions of the Act, rules and bye-laws but also includes notifications. This distinguishes the. . present case from the Visakhapatnam Municipalitys case (supra).For the appellant, next reliance was placed upon Bagalkot City Municipality v. Bagalkot Cement.(1) In that case also at the time of the imposition of the octroi duty the respondents factory was situated outside the municipal district and was not subject to the octroi duty. Subsequently, the Government extended the municipal district so that the factory came to be included within that district. The appellant in that case contended that upon such extension its octroi limits also stood extended to include the factory and the respondent became liable to pay octroi duty in respect of goods brought into the factory. The majority view was that the expression "municipal district" in the bye-law referred to the municipal district as existing when the bye-law was framed. The context prevented the definition of "municipal . district" in the Act, namely, the municipal district as from time to time existing from being applied under s.20 of the Bombay General Clauses Act to interpret the bye-law The bye-law had been made without being published to the respondent, and if it was so read referring to the municipal district from time to time existing it would be invalid for non-compliance with the provisions of s.48 of the Act. This case again is distinguishable in view of the wording of s.5 of the Orissa Municipalit is urged that the octroi duty levied in this case by the Municipality is unreasonable and excessive. The Municipality is required to provide certain amenities not only for the permanent residents within the municipality, but also even for casual visitors who may on occasions enter the limits of the municipality. The entry of large quantities of goods within the municipality almost daily from outside necessarily creates innumerable problems such as provisions of water supply, lighting facilities, facilities for conservancy, sanitation, maintenance of good roads and markets etc. which the Jharsuguda Municipality has done and there is no allegation to the contrary by the appellant.From the material placed before us we are of the view that the levy is not an unreasonable one. It is not also excessive. . The imposition of octroi cannot, therefore, be challenged on the ground that there is violation of Art. 19(1)(g) of the Constitution.Considering the case from any aspect the imposition of octroi duty, in our opinion, does not suffer from any infirmity.The argument proceeds on the assumption that the proviso to s.4(1) applies. But a bare persual of the proviso clearly indicates that the requirement is thatof the adult male population of the town to which it refers should be engaged in pursuits. The provision, to our mind, applies not to all the classes ofof s.4 but it applies only to cl.(a) ofof s.4, because it is cl.(a) of s.4(1) which talks of town. Therefore, the proviso, in . . Our opinion, has no application to the present case and that cannot be taken to be a ground for challenging the notification for inclusion of village Ektali in the Jharsuguda Municipality. This takes us to the third ground.The appellant had filed an objection underof s.4. The said objection was examined by the District Magistrate, Sambalpur and the Revenue Divisional Commissioner (Northern Division), Sambalpur: They overruled the objection treating it to be of general nature. Thereafter, the Community Development and the Panchati Raj (Grama Panchayat) Department were consulted to agree with this proposal, to which they agreed, and it was thereafter. that the Urban Development Department issued a final notification dated 12th August, 1975 to include the above village into the municipal limits of Jharsuguda Municipality. The contention of the appellant that the objection had not been considered by the State Government cannot be accepted in as much as the objection is required to be made through the Magistrate of the district. Naturally, the District Magistrate while forwarding the objection to the State Government made his comment. The Revenue Divisional Commissioner intervenes in the channel of communication between the District Magistrate and the State Government and he, therefore, had an occasion to. process the matter.Government while dealing with the matter consulted the. Panchayati Raj Department and ultimately notified in terms of notification dated 12th August, 1975. In the circumstances it cannot be accepted that the objection filed by the appellant had not been considered by the Statethe material placed before us we are of the view that the levy is not an unreasonable one. It is not also excessive. . The imposition of octroi cannot, therefore, be challenged on the ground that there is violation of Art. 19(1)(g) of the Constitution.Considering the case from any aspect the imposition of octroi duty, in our opinion, does not suffer from any infirmity. | 1 | 4,581 | 1,081 | ### Instruction:
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under the Act of 1920 after April 1, 1966 when the repeal became effective on the coming into force of the Act. It was, however, contended in that case that cl. la of Schedule 9 of the Act keeps the repealed enactment alive for tax purposes and, therefore, the municipality had the authority to impose the property tax under the Act of 1920 notwithstanding its repeal by the new Act. This Court, however, took the view that the provisions contained in the Schedule are of a transitional nature. They were intended to apply during the period of transition following upon the repeal of old municipal laws and the introduction of the li new law. The object of clause 12 of Schedule 9 was to authorise the levy of taxes which, on the commencement of the Act, Were levied under the repealed laws. This Court further added that the municipality might have been levying property tax since long on properties situated within its limits, but until April 1, 1966 the villages of Ramakrishnapuram and Sriharipur am were outside those limits. Qua the areas newly included within the municipal limits, the tax was being imposed for the first time and therefore it was incumbent on the municipality to follow the procedure prescribed by the first proviso to section 81(2). Residents and tax payers of those areas never had an opportunity to object to the imposition of the tax and that valuable opportunity cannot be denied to them. It is obligatory upon the municipality not only to invite objections to the proposed tax but also to consider the objections received by it within the specified period.For the State, however, reliance was placed in that case on s.3(4) of the Act to contend that the inclusion of the two villages within the municipal area attracts of its own force every provision of the Act with effect from the dale on which the final notification is published. by the Government under s.3(3). In support of this contention it cited the decision of this Court in Atlas Cycle Industrial Ltd. v. State of Haryana &Anr. This argument on behalf of the State was, however, repelled and the Court observed:"Far from supporting the argument, we consider that the decision shows how a provision like the one contained in Section 3(4) cannot have the effect contended for by the appellant. In the Atlas Cycle case, section 5(4) of the Punjab Municipality Act, 1911 provided that when any local area was included in the municipality, "this Act and...all . rules, bye-laws, orders, directions and powers made, issued or conferred under this Act and- in force throughout the whole municipality at the time, shall apply to such areas."."15. But this Court took the view that since section 5(4) of the Punjab Act did not, significantly, refer to notifications and since section 62(1) of the Punjab Act spoke of "notification" for the imposition of taxes, it was not competent to the municipality to levy and collect octroi from the company on the strength merely of the provision contained in s. 5(4) of the Punjab Act. That case, however, is distinguishable and cannot be of much assistance for solving the problem before us. Section 5 of the Orissa Municipal Act makes all the provisions of the Act and of any rules, by-laws, notifications, or orders made thereunder, which immediately before such inclusion were in force throughout such municipality, applicable to such area, unless the State Government, in and by the notification, otherwise direct. This section, therefore, includes not only the provisions of the Act, rules and bye-laws but also includes notifications. This distinguishes the. . present case from the Visakhapatnam Municipalitys case (supra).For the appellant, next reliance was placed upon Bagalkot City Municipality v. Bagalkot Cement.(1) In that case also at the time of the imposition of the octroi duty the respondents factory was situated outside the municipal district and was not subject to the octroi duty. Subsequently, the Government extended the municipal district so that the factory came to be included within that district. The appellant in that case contended that upon such extension its octroi limits also stood extended to include the factory and the respondent became liable to pay octroi duty in respect of goods brought into the factory. The majority view was that the expression "municipal district" in the bye-law referred to the municipal district as existing when the bye-law was framed. The context prevented the definition of "municipal . district" in the Act, namely, the municipal district as from time to time existing from being applied under s.20 of the Bombay General Clauses Act to interpret the bye-law The bye-law had been made without being published to the respondent, and if it was so read referring to the municipal district from time to time existing it would be invalid for non-compliance with the provisions of s.48 of the Act. This case again is distinguishable in view of the wording of s.5 of the Orissa Municipal Act:16. Lastly it is urged that the octroi duty levied in this case by the Municipality is unreasonable and excessive. The Municipality is required to provide certain amenities not only for the permanent residents within the municipality, but also even for casual visitors who may on occasions enter the limits of the municipality. The entry of large quantities of goods within the municipality almost daily from outside necessarily creates innumerable problems such as provisions of water supply, lighting facilities, facilities for conservancy, sanitation, maintenance of good roads and markets etc. which the Jharsuguda Municipality has done and there is no allegation to the contrary by the appellant. From the material placed before us we are of the view that the levy is not an unreasonable one. It is not also excessive. . The imposition of octroi cannot, therefore, be challenged on the ground that there is violation of Art. 19(1)(g) of the Constitution.Considering the case from any aspect the imposition of octroi duty, in our opinion, does not suffer from any infirmity.17
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But this Court took the view that since section 5(4) of the Punjab Act did not, significantly, refer to notifications and since section 62(1) of the Punjab Act spoke of "notification" for the imposition of taxes, it was not competent to the municipality to levy and collect octroi from the company on the strength merely of the provision contained in s. 5(4) of the Punjab Act. That case, however, is distinguishable and cannot be of much assistance for solving the problem before us. Section 5 of the Orissa Municipal Act makes all the provisions of the Act and of any rules, by-laws, notifications, or orders made thereunder, which immediately before such inclusion were in force throughout such municipality, applicable to such area, unless the State Government, in and by the notification, otherwise direct. This section, therefore, includes not only the provisions of the Act, rules and bye-laws but also includes notifications. This distinguishes the. . present case from the Visakhapatnam Municipalitys case (supra).For the appellant, next reliance was placed upon Bagalkot City Municipality v. Bagalkot Cement.(1) In that case also at the time of the imposition of the octroi duty the respondents factory was situated outside the municipal district and was not subject to the octroi duty. Subsequently, the Government extended the municipal district so that the factory came to be included within that district. The appellant in that case contended that upon such extension its octroi limits also stood extended to include the factory and the respondent became liable to pay octroi duty in respect of goods brought into the factory. The majority view was that the expression "municipal district" in the bye-law referred to the municipal district as existing when the bye-law was framed. The context prevented the definition of "municipal . district" in the Act, namely, the municipal district as from time to time existing from being applied under s.20 of the Bombay General Clauses Act to interpret the bye-law The bye-law had been made without being published to the respondent, and if it was so read referring to the municipal district from time to time existing it would be invalid for non-compliance with the provisions of s.48 of the Act. This case again is distinguishable in view of the wording of s.5 of the Orissa Municipalit is urged that the octroi duty levied in this case by the Municipality is unreasonable and excessive. The Municipality is required to provide certain amenities not only for the permanent residents within the municipality, but also even for casual visitors who may on occasions enter the limits of the municipality. The entry of large quantities of goods within the municipality almost daily from outside necessarily creates innumerable problems such as provisions of water supply, lighting facilities, facilities for conservancy, sanitation, maintenance of good roads and markets etc. which the Jharsuguda Municipality has done and there is no allegation to the contrary by the appellant.From the material placed before us we are of the view that the levy is not an unreasonable one. It is not also excessive. . The imposition of octroi cannot, therefore, be challenged on the ground that there is violation of Art. 19(1)(g) of the Constitution.Considering the case from any aspect the imposition of octroi duty, in our opinion, does not suffer from any infirmity.The argument proceeds on the assumption that the proviso to s.4(1) applies. But a bare persual of the proviso clearly indicates that the requirement is thatof the adult male population of the town to which it refers should be engaged in pursuits. The provision, to our mind, applies not to all the classes ofof s.4 but it applies only to cl.(a) ofof s.4, because it is cl.(a) of s.4(1) which talks of town. Therefore, the proviso, in . . Our opinion, has no application to the present case and that cannot be taken to be a ground for challenging the notification for inclusion of village Ektali in the Jharsuguda Municipality. This takes us to the third ground.The appellant had filed an objection underof s.4. The said objection was examined by the District Magistrate, Sambalpur and the Revenue Divisional Commissioner (Northern Division), Sambalpur: They overruled the objection treating it to be of general nature. Thereafter, the Community Development and the Panchati Raj (Grama Panchayat) Department were consulted to agree with this proposal, to which they agreed, and it was thereafter. that the Urban Development Department issued a final notification dated 12th August, 1975 to include the above village into the municipal limits of Jharsuguda Municipality. The contention of the appellant that the objection had not been considered by the State Government cannot be accepted in as much as the objection is required to be made through the Magistrate of the district. Naturally, the District Magistrate while forwarding the objection to the State Government made his comment. The Revenue Divisional Commissioner intervenes in the channel of communication between the District Magistrate and the State Government and he, therefore, had an occasion to. process the matter.Government while dealing with the matter consulted the. Panchayati Raj Department and ultimately notified in terms of notification dated 12th August, 1975. In the circumstances it cannot be accepted that the objection filed by the appellant had not been considered by the Statethe material placed before us we are of the view that the levy is not an unreasonable one. It is not also excessive. . The imposition of octroi cannot, therefore, be challenged on the ground that there is violation of Art. 19(1)(g) of the Constitution.Considering the case from any aspect the imposition of octroi duty, in our opinion, does not suffer from any infirmity.
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Rangilal Choudhury Vs. Dahu Sao & Others | was nominating the candidate for the constituency which was already mentioned in the heading. It seems to us therefore that in view of the mistake that occurred in the printing of the form and in view of the fact that the name of the constituency for which the election was being held was already in the heading, the mistake of the proposer in putting in the word "Bihar" instead of the word "Dhanbad", which resulted in a defect in the filling up of the form was not of a substantial character and that it was quite clear on the form in this case that the nomination was for the Dhanbad assembly constituency. The returning officer does not seem to have attached any importance to the name of the constituency in the heading in this case and also seems to have ignored the fact that this was a bye-election to one constituency, when he came to consider the defect which undoubtedly was there in this respect in the nomination paper. We therefore agree with the High Court that in the peculiar circumstances created by the mistake in printing the Hindi nomination form by the Government, the defect which has occurred in this case is not of a substantial character and it was quite clear that the nomination paper was for the Dhanbad assembly constituency and was in consequence improperly rejected by the returning officer.5. As we have already said, this was the only ground on which the nomination paper was challenged as defective before the returning officer; but before the election tribunal the appellant also contended that the nomination paper was defective as columns 2 and 5 of the part which has to be filled in by the proposer were not properly filled in and were defective; and it was urged that the defect there was substantial and therefore even if the reason for the rejection of the nomination paper as given by the returning officer was not substantial, these defects were substantial and the rejection should be upheld on the ground of these defects. Column 2 requires the electoral roll number of the proposer and column 5 of the candidate to be filled in there. Further according to the directions given in the form columns 2 and 5 should contain the name of the constituency the part of the electoral roll and the serial number in that part. The purpose of this provision is that the returning officer should be able readily to check that the proposer and the candidate are voters on the electoral roll. In the present case only the serial number and the house number are mentioned in columns 2 and 5 and not the name of the constituency and the number of the part. Undoubtedly therefore there was a defect in these two columns. Apparently the constituency was the same, viz., Dhanbad, as will appear from the address given in column 4. No part number could be given as the electoral roll in this particular case was not numbered by Parts. The question is whether in these circumstances this defect can be called a defect of a substantial character. In this connection we cannot ignore the provisions of S. 33 (4) of the Act, which casts a duty on the returning officer to satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral roll and gives him the power to permit the removal of any defect in this connection. The returning officer does not seem to have noted this defect in the form for if he had done so he would have given an opportunity to the proposer to make the corrections. It is true that the failure of the returning officer to give this opportunity for correction does not mean that the defect can be ignored, if it is of a substantial character. But considering the purpose for which the electoral roll numbers are given, it seems that the returning officer found no difficulty in checking that the proposer as well as the candidate was a voter on the electoral rolls. The High Court in this connection referred to the evidence of the respondent who stated that when his nomination paper was taken of for scrutiny, the returning officer compared the names in the nomination paper with those in the electoral rolls. It seems therefore that in this case the returning officer found no difficulty in tracing the names of the proposer and the candidate in the electoral rolls and that is why no objection was raised before him as to the defect in columns 2 and 5. In the circumstances it must be held that the defect was of an unsubstantial character and would not result in the rejection of the nomination paper. We may in this connection refer to Karnail Singh v. Election Tribunal Hissar, (1954) 10 ELR 189 (SC), where this Court observed that it was quite clear on the evidence that there was no difficulty in identifying the candidate and the candidate himself pointed out to the returning officer his own name in the electoral rolls. Therefore the defect in columns 2 and 5 was in the circumstances held to be a technical one and not of a substantial character. The principle of that case in our opinion applies to the present case also, for there is no doubt here that the returning officer found no difficulty in identifying the proposer as well as the candidate and as a matter of fact the evidence is that the candidate himself pointed out the place in the electoral rolls where his name was entered. We therefore agree with the High Court that in the circumstances of this case the defects in columns 2 and 5 were of an unsubstantial character and the rejection of the nomination paper cannot be upheld on this further ground which was not even urged before the returning officer. | 0[ds]It may be mentioned that it is no ones case that there is any constituency like Bihar assembly constituency. It may also be mentioned that this was a bye-election and not a Generalsuch a case it seems to usthat if the nomination form discloses the constituency for which the nomination is being made even though the form may not have been properly filled the in that respect, the defect in filling the form would not be of a substantial character. It is true that in this case there was a defect in filling up the blank by the proposer inasmuch as he wrote the word "Bihar" before the words "assembly constituency" instead of the word "Dhanbad", which he should have done; and if there were nothing else in the form to disclose the constituency for which the nomination was being made there would have been a substantial defect in the nomination form which would justify the returning officer in rejecting the same. But the circumstances of the present case are rather peculiar. We have already mentioned that the printed Hindi form which was used in this case printed the heading wrongly inasmuch as the heading was not in accordance with the heading prescribed under the Rules. In the specimen form in the Rules, the blank space is meant for the State in which the election is being held; but because of the mistake in printing the heading in this case, the blank space could only be filled up with the name of the constituency, and that was what was done. This name was filled in apparently by the candidate himself and not by the proposer. But equally clearly the name of the constituency was there when the proposer in his turn came to fill up that part of the form which he had to fill. It seems that the proposer was thus misled, as the name of the constituency was already there in the heading to write the word "Bihar" in the second blank space in his proposal instead of the word "Dhanbad" to indicate the constituency. That was undoubtedly a defect in the form as filled in by theseems that the proposer was thus misled, as the name of the constituency was already there in the heading to write the word "Bihar" in the second blank space in his proposal instead of the word "Dhanbad" to indicate the constituency. That was undoubtedly a defect in the form as filled in by theIt seems to us that the defect appeared partly because of the mistake in the printing of the Hindi form which was supplied to the candidates for the purposes of the nomination to this bye-election. The form however as put in clearly shows in the heading the particular assembly constituency for which the election was being held. Then follows the part which has to be filled in by the proposer and there the proposer made a mistake in filling the word "Bihar" instead of the word "Dhanbad" in the blank space relating to the constituency. Considering however that the name of the constituency was already there in the heading, it would in our opinion be not improper in the circumstances of this case to say at the proposer was nominating the candidate for the constituency which was already mentioned in the heading. It seems to us therefore that in view of the mistake that occurred in the printing of the form and in view of the fact that the name of the constituency for which the election was being held was already in the heading, the mistake of the proposer in putting in the word "Bihar" instead of the word "Dhanbad", which resulted in a defect in the filling up of the form was not of a substantial character and that it was quite clear on the form in this case that the nomination was for the Dhanbad assembly constituency. The returning officer does not seem to have attached any importance to the name of the constituency in the heading in this case and also seems to have ignored the fact that this was a bye-election to one constituency, when he came to consider the defect which undoubtedly was there in this respect in the nomination paper. We therefore agree with the High Court that in the peculiar circumstances created by the mistake in printing the Hindi nomination form by the Government, the defect which has occurred in this case is not of a substantial character and it was quite clear that the nomination paper was for the Dhanbad assembly constituency and was in consequence improperly rejected by the returningthe present case only the serial number and the house number are mentioned in columns 2 and 5 and not the name of the constituency and the number of the part. Undoubtedly therefore there was a defect in these two columns. Apparently the constituency was the same, viz., Dhanbad, as will appear from the address given in column 4. No part number could be given as the electoral roll in this particular case was not numbered bythis connection we cannot ignore the provisions of S. 33 (4) of the Act, which casts a duty on the returning officer to satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral roll and gives him the power to permit the removal of any defect in this connection. The returning officer does not seem to have noted this defect in the form for if he had done so he would have given an opportunity to the proposer to make the corrections. It is true that the failure of the returning officer to give this opportunity for correction does not mean that the defect can be ignored, if it is of a substantial character. But considering the purpose for which the electoral roll numbers are given, it seems that the returning officer found no difficulty in checking that the proposer as well as the candidate was a voter on the electoral rolls. The High Court in this connection referred to the evidence of the respondent who stated that when his nomination paper was taken of for scrutiny, the returning officer compared the names in the nomination paper with those in the electoral rolls. It seems therefore that in this case the returning officer found no difficulty in tracing the names of the proposer and the candidate in the electoral rolls and that is why no objection was raised before him as to the defect in columns 2 and 5. In the circumstances it must be held that the defect was of an unsubstantial character and would not result in the rejection of the nominationprinciple of that case in our opinion applies to the present case also, for there is no doubt here that the returning officer found no difficulty in identifying the proposer as well as the candidate and as a matter of fact the evidence is that the candidate himself pointed out the place in the electoral rolls where his name was entered. We therefore agree with the High Court that in the circumstances of this case the defects in columns 2 and 5 were of an unsubstantial character and the rejection of the nomination paper cannot be upheld on this further ground which was not even urged before the returning officer. | 0 | 2,854 | 1,319 | ### Instruction:
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was nominating the candidate for the constituency which was already mentioned in the heading. It seems to us therefore that in view of the mistake that occurred in the printing of the form and in view of the fact that the name of the constituency for which the election was being held was already in the heading, the mistake of the proposer in putting in the word "Bihar" instead of the word "Dhanbad", which resulted in a defect in the filling up of the form was not of a substantial character and that it was quite clear on the form in this case that the nomination was for the Dhanbad assembly constituency. The returning officer does not seem to have attached any importance to the name of the constituency in the heading in this case and also seems to have ignored the fact that this was a bye-election to one constituency, when he came to consider the defect which undoubtedly was there in this respect in the nomination paper. We therefore agree with the High Court that in the peculiar circumstances created by the mistake in printing the Hindi nomination form by the Government, the defect which has occurred in this case is not of a substantial character and it was quite clear that the nomination paper was for the Dhanbad assembly constituency and was in consequence improperly rejected by the returning officer.5. As we have already said, this was the only ground on which the nomination paper was challenged as defective before the returning officer; but before the election tribunal the appellant also contended that the nomination paper was defective as columns 2 and 5 of the part which has to be filled in by the proposer were not properly filled in and were defective; and it was urged that the defect there was substantial and therefore even if the reason for the rejection of the nomination paper as given by the returning officer was not substantial, these defects were substantial and the rejection should be upheld on the ground of these defects. Column 2 requires the electoral roll number of the proposer and column 5 of the candidate to be filled in there. Further according to the directions given in the form columns 2 and 5 should contain the name of the constituency the part of the electoral roll and the serial number in that part. The purpose of this provision is that the returning officer should be able readily to check that the proposer and the candidate are voters on the electoral roll. In the present case only the serial number and the house number are mentioned in columns 2 and 5 and not the name of the constituency and the number of the part. Undoubtedly therefore there was a defect in these two columns. Apparently the constituency was the same, viz., Dhanbad, as will appear from the address given in column 4. No part number could be given as the electoral roll in this particular case was not numbered by Parts. The question is whether in these circumstances this defect can be called a defect of a substantial character. In this connection we cannot ignore the provisions of S. 33 (4) of the Act, which casts a duty on the returning officer to satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral roll and gives him the power to permit the removal of any defect in this connection. The returning officer does not seem to have noted this defect in the form for if he had done so he would have given an opportunity to the proposer to make the corrections. It is true that the failure of the returning officer to give this opportunity for correction does not mean that the defect can be ignored, if it is of a substantial character. But considering the purpose for which the electoral roll numbers are given, it seems that the returning officer found no difficulty in checking that the proposer as well as the candidate was a voter on the electoral rolls. The High Court in this connection referred to the evidence of the respondent who stated that when his nomination paper was taken of for scrutiny, the returning officer compared the names in the nomination paper with those in the electoral rolls. It seems therefore that in this case the returning officer found no difficulty in tracing the names of the proposer and the candidate in the electoral rolls and that is why no objection was raised before him as to the defect in columns 2 and 5. In the circumstances it must be held that the defect was of an unsubstantial character and would not result in the rejection of the nomination paper. We may in this connection refer to Karnail Singh v. Election Tribunal Hissar, (1954) 10 ELR 189 (SC), where this Court observed that it was quite clear on the evidence that there was no difficulty in identifying the candidate and the candidate himself pointed out to the returning officer his own name in the electoral rolls. Therefore the defect in columns 2 and 5 was in the circumstances held to be a technical one and not of a substantial character. The principle of that case in our opinion applies to the present case also, for there is no doubt here that the returning officer found no difficulty in identifying the proposer as well as the candidate and as a matter of fact the evidence is that the candidate himself pointed out the place in the electoral rolls where his name was entered. We therefore agree with the High Court that in the circumstances of this case the defects in columns 2 and 5 were of an unsubstantial character and the rejection of the nomination paper cannot be upheld on this further ground which was not even urged before the returning officer.
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the blank space could only be filled up with the name of the constituency, and that was what was done. This name was filled in apparently by the candidate himself and not by the proposer. But equally clearly the name of the constituency was there when the proposer in his turn came to fill up that part of the form which he had to fill. It seems that the proposer was thus misled, as the name of the constituency was already there in the heading to write the word "Bihar" in the second blank space in his proposal instead of the word "Dhanbad" to indicate the constituency. That was undoubtedly a defect in the form as filled in by theseems that the proposer was thus misled, as the name of the constituency was already there in the heading to write the word "Bihar" in the second blank space in his proposal instead of the word "Dhanbad" to indicate the constituency. That was undoubtedly a defect in the form as filled in by theIt seems to us that the defect appeared partly because of the mistake in the printing of the Hindi form which was supplied to the candidates for the purposes of the nomination to this bye-election. The form however as put in clearly shows in the heading the particular assembly constituency for which the election was being held. Then follows the part which has to be filled in by the proposer and there the proposer made a mistake in filling the word "Bihar" instead of the word "Dhanbad" in the blank space relating to the constituency. Considering however that the name of the constituency was already there in the heading, it would in our opinion be not improper in the circumstances of this case to say at the proposer was nominating the candidate for the constituency which was already mentioned in the heading. It seems to us therefore that in view of the mistake that occurred in the printing of the form and in view of the fact that the name of the constituency for which the election was being held was already in the heading, the mistake of the proposer in putting in the word "Bihar" instead of the word "Dhanbad", which resulted in a defect in the filling up of the form was not of a substantial character and that it was quite clear on the form in this case that the nomination was for the Dhanbad assembly constituency. The returning officer does not seem to have attached any importance to the name of the constituency in the heading in this case and also seems to have ignored the fact that this was a bye-election to one constituency, when he came to consider the defect which undoubtedly was there in this respect in the nomination paper. We therefore agree with the High Court that in the peculiar circumstances created by the mistake in printing the Hindi nomination form by the Government, the defect which has occurred in this case is not of a substantial character and it was quite clear that the nomination paper was for the Dhanbad assembly constituency and was in consequence improperly rejected by the returningthe present case only the serial number and the house number are mentioned in columns 2 and 5 and not the name of the constituency and the number of the part. Undoubtedly therefore there was a defect in these two columns. Apparently the constituency was the same, viz., Dhanbad, as will appear from the address given in column 4. No part number could be given as the electoral roll in this particular case was not numbered bythis connection we cannot ignore the provisions of S. 33 (4) of the Act, which casts a duty on the returning officer to satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral roll and gives him the power to permit the removal of any defect in this connection. The returning officer does not seem to have noted this defect in the form for if he had done so he would have given an opportunity to the proposer to make the corrections. It is true that the failure of the returning officer to give this opportunity for correction does not mean that the defect can be ignored, if it is of a substantial character. But considering the purpose for which the electoral roll numbers are given, it seems that the returning officer found no difficulty in checking that the proposer as well as the candidate was a voter on the electoral rolls. The High Court in this connection referred to the evidence of the respondent who stated that when his nomination paper was taken of for scrutiny, the returning officer compared the names in the nomination paper with those in the electoral rolls. It seems therefore that in this case the returning officer found no difficulty in tracing the names of the proposer and the candidate in the electoral rolls and that is why no objection was raised before him as to the defect in columns 2 and 5. In the circumstances it must be held that the defect was of an unsubstantial character and would not result in the rejection of the nominationprinciple of that case in our opinion applies to the present case also, for there is no doubt here that the returning officer found no difficulty in identifying the proposer as well as the candidate and as a matter of fact the evidence is that the candidate himself pointed out the place in the electoral rolls where his name was entered. We therefore agree with the High Court that in the circumstances of this case the defects in columns 2 and 5 were of an unsubstantial character and the rejection of the nomination paper cannot be upheld on this further ground which was not even urged before the returning officer.
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Dhrangadhra Chemical Works Ltd Vs. State Of Saurashtra | into the patta from the condenser. This instruction is also given by the companys officer".24. It was on a consideration of this evidence that the Industrial Tribunal came to the conclusion that the supervision and control exercised by the appellants extended to all stages of the manufacture from beginning to end.We are of opinion that far from there being no evidence to support the conclusion reached by the Industrial Tribunal there were materials on the record on the basis of which it could come to the conclusion that the agarias are not independent contractors but workmen within the meaning of the Act.25. Learned counsel for the appellants laid particular stress on two features in this case which, in his submission, were consistent only with the position that the agarias are independent contractors. One is that they do piece-work and the other that they employ their own labour and pay for it. In our opinion neither of these two circumstances is decisive of the question. As regards the first, the argument of the appellants is that as the agarias are under no obligation to work for fixed hours or days and are to be paid wages not per day or hours but for the quantity of salt actually produced and passed, at a certain rate,the very basis on which the relationship of employer and employees rests is lacking, and that they can only be regarded as independent contractors. There is, however, abundant authority in England that a person can be a workman even though he is paid not per day but by the job.The following observations of Crompton, J. in Sadler v. Henlock, (1855) 4 El and Bl 570 at p. 578: 119 ER 209 at p. 212 (I), are pertinent in this behalf :-"The test here is, whether the defendant retained the power of controlling the work. No distinction can be drawn from the circumstances of the man being employed at so much a day or by the job. I think that here the relation was that of master and servant, not of contractor and contractee".(See also Blake v. Thirst, 1863-32 LJ Ex 188 (J), and Halsburys "Laws of England", Hailsham edition, Vol. 22, page 119, para 194, wherein it is stated that if a person is a worker and not a contractor, "it makes no difference that his work is piece- work").26. As regards the second feature relied on for the appellants it is contended that the agarias are entitled to engage other persons to do the work, that these persons are engaged by the agarias and are paid by them, that the appellants have no control over them and that these facts can be reconciled only with the position that the agarias are independent contractors. This argument, however, proceeds on a misapprehension of the true legal position.The broad distinction between a workman and an independent contractor lies in this that while the former agrees himself to work, the latter agrees to get other persons to work. Now a person who agrees himself to work and does so work and is therefore a workman does not cease to be such by reasons merely of the fact that he gets other persons to work along with him and that those persons are controlled and paid by him. What determines whether a person is a workman or an independent contractor is whether he has agreed to work personally or not. If he has, then he is a workman and the fact that he takes assistance from other persons would not affect his status. The position is thus summarised in Halsbury Laws of England, Vol. 14, pages 651-652 :-"The workman must have consented to give his personal services and not merely to get the work done, but if he is bound under his contract to work personally, he is not excluded from the definition, simply because he has assistance from others, who work under him".(See also Grainger v. Aynsley: Bromley v. Tams. 1881-6 QBD 182 (K); Weaver v. Floyd, 1852-21 LJ QB 151 (L), and Whitely v. Armitage, 1864- 13 WR 144 (MM).27. In the instant case the agarias are professional labourers. They themselves personally work along with the members of their families in the production of salt and would, therefore, he workman. The fact that they are free to engage others to assist them and pay for them would not, in view of the above authorities, affect their status as workmen.28. There are no doubt considerable difficulties that may arise if the agarias were held to be workmen within the meaning of S. 2 (s) of the Act. Rules regarding hours of work, etc., applicable to other workmen may not be conveniently applied to them and the nature as well as the manner and method of their work would be such as cannot be regulated by any directions given by the Industrial Tribunal. These difficulties, however, are no deterrent against holding the agarias to be workmen within the meaning of the definition if they fulfil its requirements. The Industrial Tribunal would have to very well consider what relief, if any, may possibly be granted to them having regard to all the circumstances of the case and may not be able to regulate the work to be done by the agarias and the remuneration to be paid to them by the employer in the manner it is used to do in the case of other industries where the conditions of employment and the work to be done by the employees is of a different character.These considerations would necessarily have to be borne in mind while the Industrial Tribunal is adjudicating upon the disputes which have been referred to it for adjudication. They do not, however, militate against the conclusion which we have come to above that the decision of the Industrial Tribunal to the effect that the agarias are workmen within the definition of the term contained in S. 2 (s) of the Act was justified on the materials on the record. | 0[ds]14.The principle which emerges from these authorities is that the prima facie test for the determination of the relationship between master and servant is the existence of the fight in the master to supervise and control the work done by the servant not only in the matter of directing what work the servant is to do but also the manner in which he shall do hisThere is considerable force in this contention of the respondents. The question whether the relationship between the parties is one as between employer and employee or between master and servant is a pure question ofis equally well settled that the decision of the Tribunal on a question of fact which it has jurisdiction to determine is not liable to be questioned in proceedings under Art. 226 of the Constitution unless at the least it is shown to be fully unsupported by evidence.It was on a consideration of this evidence that the Industrial Tribunal came to the conclusion that the supervision and control exercised by the appellants extended to all stages of the manufacture from beginning to end.We are of opinion that far from there being no evidence to support the conclusion reached by the Industrial Tribunal there were materials on the record on the basis of which it could come to the conclusion that the agarias are not independent contractors but workmen within the meaning of theour opinion neither of these two circumstances is decisive of the question. As regards the first, the argument of the appellants is that as the agarias are under no obligation to work for fixed hours or days and are to be paid wages not per day or hours but for the quantity of salt actually produced and passed, at a certain rate,the very basis on which the relationship of employer and employees rests is lacking, and that they can only be regarded as independent contractors. There is, however, abundant authority in England that a person can be a workman even though he is paid not per day but by theargument, however, proceeds on a misapprehension of the true legal position.The broad distinction between a workman and an independent contractor lies in this that while the former agrees himself to work, the latter agrees to get other persons to work. Now a person who agrees himself to work and does so work and is therefore a workman does not cease to be such by reasons merely of the fact that he gets other persons to work along with him and that those persons are controlled and paid by him. What determines whether a person is a workman or an independent contractor is whether he has agreed to work personally or not. If he has, then he is a workman and the fact that he takes assistance from other persons would not affect his status.In the instant case the agarias are professional labourers. They themselves personally work along with the members of their families in the production of salt and would, therefore, he workman. The fact that they are free to engage others to assist them and pay for them would not, in view of the above authorities, affect their status as workmen.28. There are no doubt considerable difficulties that may arise if the agarias were held to be workmen within the meaning of S. 2 (s) of the Act. Rules regarding hours of work, etc., applicable to other workmen may not be conveniently applied to them and the nature as well as the manner and method of their work would be such as cannot be regulated by any directions given by the Industrial Tribunal. These difficulties, however, are no deterrent against holding the agarias to be workmen within the meaning of the definition if they fulfil its requirements. The Industrial Tribunal would have to very well consider what relief, if any, may possibly be granted to them having regard to all the circumstances of the case and may not be able to regulate the work to be done by the agarias and the remuneration to be paid to them by the employer in the manner it is used to do in the case of other industries where the conditions of employment and the work to be done by the employees is of a different character.These considerations would necessarily have to be borne in mind while the Industrial Tribunal is adjudicating upon the disputes which have been referred to it for adjudication. They do not, however, militate against the conclusion which we have come to above that the decision of the Industrial Tribunal to the effect that the agarias are workmen within the definition of the term contained in S. 2 (s) of the Act was justified on the materials on the record. | 0 | 5,337 | 839 | ### Instruction:
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into the patta from the condenser. This instruction is also given by the companys officer".24. It was on a consideration of this evidence that the Industrial Tribunal came to the conclusion that the supervision and control exercised by the appellants extended to all stages of the manufacture from beginning to end.We are of opinion that far from there being no evidence to support the conclusion reached by the Industrial Tribunal there were materials on the record on the basis of which it could come to the conclusion that the agarias are not independent contractors but workmen within the meaning of the Act.25. Learned counsel for the appellants laid particular stress on two features in this case which, in his submission, were consistent only with the position that the agarias are independent contractors. One is that they do piece-work and the other that they employ their own labour and pay for it. In our opinion neither of these two circumstances is decisive of the question. As regards the first, the argument of the appellants is that as the agarias are under no obligation to work for fixed hours or days and are to be paid wages not per day or hours but for the quantity of salt actually produced and passed, at a certain rate,the very basis on which the relationship of employer and employees rests is lacking, and that they can only be regarded as independent contractors. There is, however, abundant authority in England that a person can be a workman even though he is paid not per day but by the job.The following observations of Crompton, J. in Sadler v. Henlock, (1855) 4 El and Bl 570 at p. 578: 119 ER 209 at p. 212 (I), are pertinent in this behalf :-"The test here is, whether the defendant retained the power of controlling the work. No distinction can be drawn from the circumstances of the man being employed at so much a day or by the job. I think that here the relation was that of master and servant, not of contractor and contractee".(See also Blake v. Thirst, 1863-32 LJ Ex 188 (J), and Halsburys "Laws of England", Hailsham edition, Vol. 22, page 119, para 194, wherein it is stated that if a person is a worker and not a contractor, "it makes no difference that his work is piece- work").26. As regards the second feature relied on for the appellants it is contended that the agarias are entitled to engage other persons to do the work, that these persons are engaged by the agarias and are paid by them, that the appellants have no control over them and that these facts can be reconciled only with the position that the agarias are independent contractors. This argument, however, proceeds on a misapprehension of the true legal position.The broad distinction between a workman and an independent contractor lies in this that while the former agrees himself to work, the latter agrees to get other persons to work. Now a person who agrees himself to work and does so work and is therefore a workman does not cease to be such by reasons merely of the fact that he gets other persons to work along with him and that those persons are controlled and paid by him. What determines whether a person is a workman or an independent contractor is whether he has agreed to work personally or not. If he has, then he is a workman and the fact that he takes assistance from other persons would not affect his status. The position is thus summarised in Halsbury Laws of England, Vol. 14, pages 651-652 :-"The workman must have consented to give his personal services and not merely to get the work done, but if he is bound under his contract to work personally, he is not excluded from the definition, simply because he has assistance from others, who work under him".(See also Grainger v. Aynsley: Bromley v. Tams. 1881-6 QBD 182 (K); Weaver v. Floyd, 1852-21 LJ QB 151 (L), and Whitely v. Armitage, 1864- 13 WR 144 (MM).27. In the instant case the agarias are professional labourers. They themselves personally work along with the members of their families in the production of salt and would, therefore, he workman. The fact that they are free to engage others to assist them and pay for them would not, in view of the above authorities, affect their status as workmen.28. There are no doubt considerable difficulties that may arise if the agarias were held to be workmen within the meaning of S. 2 (s) of the Act. Rules regarding hours of work, etc., applicable to other workmen may not be conveniently applied to them and the nature as well as the manner and method of their work would be such as cannot be regulated by any directions given by the Industrial Tribunal. These difficulties, however, are no deterrent against holding the agarias to be workmen within the meaning of the definition if they fulfil its requirements. The Industrial Tribunal would have to very well consider what relief, if any, may possibly be granted to them having regard to all the circumstances of the case and may not be able to regulate the work to be done by the agarias and the remuneration to be paid to them by the employer in the manner it is used to do in the case of other industries where the conditions of employment and the work to be done by the employees is of a different character.These considerations would necessarily have to be borne in mind while the Industrial Tribunal is adjudicating upon the disputes which have been referred to it for adjudication. They do not, however, militate against the conclusion which we have come to above that the decision of the Industrial Tribunal to the effect that the agarias are workmen within the definition of the term contained in S. 2 (s) of the Act was justified on the materials on the record.
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14.The principle which emerges from these authorities is that the prima facie test for the determination of the relationship between master and servant is the existence of the fight in the master to supervise and control the work done by the servant not only in the matter of directing what work the servant is to do but also the manner in which he shall do hisThere is considerable force in this contention of the respondents. The question whether the relationship between the parties is one as between employer and employee or between master and servant is a pure question ofis equally well settled that the decision of the Tribunal on a question of fact which it has jurisdiction to determine is not liable to be questioned in proceedings under Art. 226 of the Constitution unless at the least it is shown to be fully unsupported by evidence.It was on a consideration of this evidence that the Industrial Tribunal came to the conclusion that the supervision and control exercised by the appellants extended to all stages of the manufacture from beginning to end.We are of opinion that far from there being no evidence to support the conclusion reached by the Industrial Tribunal there were materials on the record on the basis of which it could come to the conclusion that the agarias are not independent contractors but workmen within the meaning of theour opinion neither of these two circumstances is decisive of the question. As regards the first, the argument of the appellants is that as the agarias are under no obligation to work for fixed hours or days and are to be paid wages not per day or hours but for the quantity of salt actually produced and passed, at a certain rate,the very basis on which the relationship of employer and employees rests is lacking, and that they can only be regarded as independent contractors. There is, however, abundant authority in England that a person can be a workman even though he is paid not per day but by theargument, however, proceeds on a misapprehension of the true legal position.The broad distinction between a workman and an independent contractor lies in this that while the former agrees himself to work, the latter agrees to get other persons to work. Now a person who agrees himself to work and does so work and is therefore a workman does not cease to be such by reasons merely of the fact that he gets other persons to work along with him and that those persons are controlled and paid by him. What determines whether a person is a workman or an independent contractor is whether he has agreed to work personally or not. If he has, then he is a workman and the fact that he takes assistance from other persons would not affect his status.In the instant case the agarias are professional labourers. They themselves personally work along with the members of their families in the production of salt and would, therefore, he workman. The fact that they are free to engage others to assist them and pay for them would not, in view of the above authorities, affect their status as workmen.28. There are no doubt considerable difficulties that may arise if the agarias were held to be workmen within the meaning of S. 2 (s) of the Act. Rules regarding hours of work, etc., applicable to other workmen may not be conveniently applied to them and the nature as well as the manner and method of their work would be such as cannot be regulated by any directions given by the Industrial Tribunal. These difficulties, however, are no deterrent against holding the agarias to be workmen within the meaning of the definition if they fulfil its requirements. The Industrial Tribunal would have to very well consider what relief, if any, may possibly be granted to them having regard to all the circumstances of the case and may not be able to regulate the work to be done by the agarias and the remuneration to be paid to them by the employer in the manner it is used to do in the case of other industries where the conditions of employment and the work to be done by the employees is of a different character.These considerations would necessarily have to be borne in mind while the Industrial Tribunal is adjudicating upon the disputes which have been referred to it for adjudication. They do not, however, militate against the conclusion which we have come to above that the decision of the Industrial Tribunal to the effect that the agarias are workmen within the definition of the term contained in S. 2 (s) of the Act was justified on the materials on the record.
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Awadesh Kumar Bhatnagar Vs. Gwalior Rayon Silk Manufacturing Weaving Limited & Another | of the appellant for having certain slips produced is an after-thought. The Labour Court has also held that the plea of the appellant that he issued the additional slips by mistake cannot be believed. This finding has been recorded by the Labour Court after independently going through the materials on record. The Labour Court has further found that an attempt was made by the appellant to induce Jodha Ram to destroy certain pages in the daily work register. This conduct clearly shows that the appellant tried to destroy the evidence that may be used against him and that conduct clearly reveals a guilty mind. Having recorded such a finding against the workman, it is difficult for us to appreciate as to how the Labour Court came to record a finding that by mere non-production of the slips, as required by the workman, the enquiry proceedings have been held in violation of the principles of natural justice. The Industrial Court, under those circumstances was, perfectly justified in holding that the approach made by the Labour Court was erroneous. We are of the view that the finding of the Industrial Court that there is no violation of the principles of natural justice is correct. Therefore, the first contention of Mr. Naunit Lal has to be rejected.17. Coming to the second contention, we have already referred to the fact that the Labour Court has found that Abde Ali was competent to hold the enquiry against the appellant. The order of discharge has been held to be invalid by the Labour Court on the ground that it has not been signed by the manager, namely, Shri Srivastava. So far as this is concerned, the Industrial Court has held that the order has been signed both by Abde Ali as well as by Bhagrodia, who was the secretary of the mills and who had the power to appoint and dismiss an employee of the company. According to Mr. Naunit Lal, though Abde Ali may be competent to conduct an enquiry, the order of discharge has to be passed only by the manager or other officer authorised as required by cl. 12(4)(f). In this case as the manager Shri Srivastava has not signed the order, it is invalid.18. We are not inclined to accept the above contention of Mr. Naunit Lal. The matter can be considered from two points of view. We will proceed on the basis that Abde Ali alone has signed the order. Even according to the appellant, he is a person competent to hold the enquiry. The question is whether he is also competent to pass an order punishing an employee under cl. 12(4)(f). We have already referred to the definition of "Manager" as well as cl. 12. (4)(a) and (f) of the Standing Orders. A person authorised by the manager is himself a manager under cl. (1)(a). Under Ext.D 39A, Abde Ali has been authorised by Shri Srivastava to conduct all enquiries under the Act in accordance with the standing orders applicable to the workman and also to conduct all proceedings in respect of the enquiry. The authorisation given under Ext.D 39A to Abde Ali is comprehensive enough to constitute him as a person authorised by the manager and as such he is a manager under cl. (1)(a) of the Standing Orders. If so, he is person competent under cl. 12(4)(f) to pass an order discharging the appellant by way of punishment.19. The Industrial Court has found that the order has been also signed by Bhagrodia, who was the secretary of the mills, Admittedly, he is an officer, superior in rank to that of the manager and he is the appointing and dismissing authority for all clerical and other staff. When an authority higher than the manager has passed the order or discharge, it cannot certainly be held to be invalid. A reasonable interpretation of cl. 12(4)(f) of the Standing Orders is that an authority lower in rank to that of a manager or other officer authorised under Standing Order 1(a), cannot pass an order of punishment. Therefore, on this ground also the order can be held to be valid.20. There is an additional circumstance which has not been noted by the Labour Court. Bhagrodia has given evidence to the effect that the Factory Manager Shri Srivastava was subordinate to him. He has further deposed that whenever Shri Srivastava went out of station, he used to authorise him to exercise all powers of the manager under the standing orders of the company. During the enquiry proceedings against the appellant, Shri Srivastava went on leave and he authorised the witness to pass the necessary orders on the basis of the enquiry. The witness has further deposed that after considering the enquiry proceedings, he passed the order discharging the appellant from service. This evidence has not been challenged in cross-examination. If so, it follows that even by giving a strict meaning to the expression "manager" under the Standing Orders, Bhagrodia is a person who has been authorised by the manager for the purpose of the standing orders and as such he is a manager under the definition and as such competent to pass the order under cl. 12(4)(f) of the Standing Orders. Considering the matter from any point of view, it follows that the view of the Industrial Court, that the order of discharge has been passed by the competent officer is correct.21. The above aspects referred to by us, have not been referred to by the Labour Court when it held that the order is invalid as having been passed by a person without authority. Therefore, the second contention of Mr. Naunit Lal also fails.22. Coming to the last contention, we are not satisfied that the Industrial Court has in any manner exceeded its jurisdiction under Ss.66 and 67 of the Act. We have pointed out the very serious mistakes committed by the Labour Court. The Industrial Court has acted well within its jurisdiction in setting aside the order of the Labour Court. | 0[ds]16. Coming to the first contention of Mr. Naunit Lal, the finding of the Labour Court and accepted by the Industrial Court is that both Abde Ali as well as Trivedi, who conducted the enquiry, were persons empowered to do so. The authority letter Ext. D 39A clearly shows that both these officers have been authorised by the Factory Manager Shri Srivastava to conduct all enquiries under the Act and the standing orders and they have also been authorised to do all things necessary in connection with the enquiry. In view of the concurrent findings of these two authorities, it must be held that the enquiry proceedings have been properly conducted by the officers, competent under the standing orders. The plea that the enquiry proceedings suffer from violation of the principles of natural justice is based upon the circumstance that certain slips that were required to be summoned by the workmen were not made available. It is no doubt true that the appellant filed an application before the enquiry officer on May 2, 1963, requesting him to make available certain gate passes. The purpose was stated to be to enable the appellant to furthertwo witnesses Devidattaji and Jamadar Govardhan. The enquiry officer has made a note that this application was received after the said two witness had been examined on May 3, 1963. The enquiry officer passed an order that the two witnesses had been examined long ago and there is no justification for recalling them. On this ground the application filed by the appellant for production of slips was rejected. Prima facie it may appear that When an employee who is facing an enquiry for misconduct requires certain materials in the possession of the company to be produced and they were not made available, the workman may be prejudiced in properly placing his defence. But in the circumstances of this case, the finding of the Industrial Court that no prejudice has been caused to the appellant is justified. The Labour Court itself has recorded a finding to the effect that the appellant is responsible for not having applied for production of the slips in question and that he never put any question to the witnesses concerned regarding those slips. The reasoning of the Labour Court itself clearly shows that this plea of the appellant for having certain slips produced is anThe Labour Court has also held that the plea of the appellant that he issued the additional slips by mistake cannot be believed. This finding has been recorded by the Labour Court after independently going through the materials on record. The Labour Court has further found that an attempt was made by the appellant to induce Jodha Ram to destroy certain pages in the daily work register. This conduct clearly shows that the appellant tried to destroy the evidence that may be used against him and that conduct clearly reveals a guilty mind. Having recorded such a finding against the workman, it is difficult for us to appreciate as to how the Labour Court came to record a finding that by mereof the slips, as required by the workman, the enquiry proceedings have been held in violation of the principles of natural justice. The Industrial Court, under those circumstances was, perfectly justified in holding that the approach made by the Labour Court was erroneous. We are of the view that the finding of the Industrial Court that there is no violation of the principles of natural justice is correct. Therefore, the first contention of Mr. Naunit Lal has to be rejected.17. Coming to the second contention, we have already referred to the fact that the Labour Court has found that Abde Ali was competent to hold the enquiry against the appellant. The order of discharge has been held to be invalid by the Labour Court on the ground that it has not been signed by the manager, namely, Shri Srivastava. So far as this is concerned, the Industrial Court has held that the order has been signed both by Abde Ali as well as by Bhagrodia, who was the secretary of the mills and who had the power to appoint and dismiss an employee of the company. According to Mr. Naunit Lal, though Abde Ali may be competent to conduct an enquiry, the order of discharge has to be passed only by the manager or other officer authorised as required by cl. 12(4)(f). In this case as the manager Shri Srivastava has not signed the order, it is invalid.18. We are not inclined to accept the above contention of Mr. Naunit Lal. The matter can be considered from two points of view. We will proceed on the basis that Abde Ali alone has signed the order. Even according to the appellant, he is a person competent to hold the enquiry. The question is whether he is also competent to pass an order punishing an employee under cl. 12(4)(f). We have already referred to the definition of "Manager" as well as cl. 12. (4)(a) and (f) of the Standing Orders. A person authorised by the manager is himself a manager under cl. (1)(a). Under Ext.D 39A, Abde Ali has been authorised by Shri Srivastava to conduct all enquiries under the Act in accordance with the standing orders applicable to the workman and also to conduct all proceedings in respect of the enquiry. The authorisation given under Ext.D 39A to Abde Ali is comprehensive enough to constitute him as a person authorised by the manager and as such he is a manager under cl. (1)(a) of the Standing Orders. If so, he is person competent under cl. 12(4)(f) to pass an order discharging the appellant by way of punishment.19. The Industrial Court has found that the order has been also signed by Bhagrodia, who was the secretary of the mills, Admittedly, he is an officer, superior in rank to that of the manager and he is the appointing and dismissing authority for all clerical and other staff. When an authority higher than the manager has passed the order or discharge, it cannot certainly be held to be invalid. A reasonable interpretation of cl. 12(4)(f) of the Standing Orders is that an authority lower in rank to that of a manager or other officer authorised under Standing Order 1(a), cannot pass an order of punishment. Therefore, on this ground also the order can be held to be valid.There is an additional circumstance which has not been noted by the Labour Court. Bhagrodia has given evidence to the effect that the Factory Manager Shri Srivastava was subordinate to him. He has further deposed that whenever Shri Srivastava went out of station, he used to authorise him to exercise all powers of the manager under the standing orders of the company. During the enquiry proceedings against the appellant, Shri Srivastava went on leave and he authorised the witness to pass the necessary orders on the basis of the enquiry. The witness has further deposed that after considering the enquiry proceedings, he passed the order discharging the appellant from service. This evidence has not been challenged inIf so, it follows that even by giving a strict meaning to the expression "manager" under the Standing Orders, Bhagrodia is a person who has been authorised by the manager for the purpose of the standing orders and as such he is a manager under the definition and as such competent to pass the order under cl. 12(4)(f) of the Standing Orders. Considering the matter from any point of view, it follows that the view of the Industrial Court, that the order of discharge has been passed by the competent officer is correct.21. The above aspects referred to by us, have not been referred to by the Labour Court when it held that the order is invalid as having been passed by a person without authority. Therefore, the second contention of Mr. Naunit Lal also fails.22. Coming to the last contention, we are not satisfied that the Industrial Court has in any manner exceeded its jurisdiction under Ss.66 and 67 of the Act. We have pointed out the very serious mistakes committed by the Labour Court. The Industrial Court has acted well within its jurisdiction in setting aside the order of the Labour Court. | 0 | 4,184 | 1,541 | ### 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:
of the appellant for having certain slips produced is an after-thought. The Labour Court has also held that the plea of the appellant that he issued the additional slips by mistake cannot be believed. This finding has been recorded by the Labour Court after independently going through the materials on record. The Labour Court has further found that an attempt was made by the appellant to induce Jodha Ram to destroy certain pages in the daily work register. This conduct clearly shows that the appellant tried to destroy the evidence that may be used against him and that conduct clearly reveals a guilty mind. Having recorded such a finding against the workman, it is difficult for us to appreciate as to how the Labour Court came to record a finding that by mere non-production of the slips, as required by the workman, the enquiry proceedings have been held in violation of the principles of natural justice. The Industrial Court, under those circumstances was, perfectly justified in holding that the approach made by the Labour Court was erroneous. We are of the view that the finding of the Industrial Court that there is no violation of the principles of natural justice is correct. Therefore, the first contention of Mr. Naunit Lal has to be rejected.17. Coming to the second contention, we have already referred to the fact that the Labour Court has found that Abde Ali was competent to hold the enquiry against the appellant. The order of discharge has been held to be invalid by the Labour Court on the ground that it has not been signed by the manager, namely, Shri Srivastava. So far as this is concerned, the Industrial Court has held that the order has been signed both by Abde Ali as well as by Bhagrodia, who was the secretary of the mills and who had the power to appoint and dismiss an employee of the company. According to Mr. Naunit Lal, though Abde Ali may be competent to conduct an enquiry, the order of discharge has to be passed only by the manager or other officer authorised as required by cl. 12(4)(f). In this case as the manager Shri Srivastava has not signed the order, it is invalid.18. We are not inclined to accept the above contention of Mr. Naunit Lal. The matter can be considered from two points of view. We will proceed on the basis that Abde Ali alone has signed the order. Even according to the appellant, he is a person competent to hold the enquiry. The question is whether he is also competent to pass an order punishing an employee under cl. 12(4)(f). We have already referred to the definition of "Manager" as well as cl. 12. (4)(a) and (f) of the Standing Orders. A person authorised by the manager is himself a manager under cl. (1)(a). Under Ext.D 39A, Abde Ali has been authorised by Shri Srivastava to conduct all enquiries under the Act in accordance with the standing orders applicable to the workman and also to conduct all proceedings in respect of the enquiry. The authorisation given under Ext.D 39A to Abde Ali is comprehensive enough to constitute him as a person authorised by the manager and as such he is a manager under cl. (1)(a) of the Standing Orders. If so, he is person competent under cl. 12(4)(f) to pass an order discharging the appellant by way of punishment.19. The Industrial Court has found that the order has been also signed by Bhagrodia, who was the secretary of the mills, Admittedly, he is an officer, superior in rank to that of the manager and he is the appointing and dismissing authority for all clerical and other staff. When an authority higher than the manager has passed the order or discharge, it cannot certainly be held to be invalid. A reasonable interpretation of cl. 12(4)(f) of the Standing Orders is that an authority lower in rank to that of a manager or other officer authorised under Standing Order 1(a), cannot pass an order of punishment. Therefore, on this ground also the order can be held to be valid.20. There is an additional circumstance which has not been noted by the Labour Court. Bhagrodia has given evidence to the effect that the Factory Manager Shri Srivastava was subordinate to him. He has further deposed that whenever Shri Srivastava went out of station, he used to authorise him to exercise all powers of the manager under the standing orders of the company. During the enquiry proceedings against the appellant, Shri Srivastava went on leave and he authorised the witness to pass the necessary orders on the basis of the enquiry. The witness has further deposed that after considering the enquiry proceedings, he passed the order discharging the appellant from service. This evidence has not been challenged in cross-examination. If so, it follows that even by giving a strict meaning to the expression "manager" under the Standing Orders, Bhagrodia is a person who has been authorised by the manager for the purpose of the standing orders and as such he is a manager under the definition and as such competent to pass the order under cl. 12(4)(f) of the Standing Orders. Considering the matter from any point of view, it follows that the view of the Industrial Court, that the order of discharge has been passed by the competent officer is correct.21. The above aspects referred to by us, have not been referred to by the Labour Court when it held that the order is invalid as having been passed by a person without authority. Therefore, the second contention of Mr. Naunit Lal also fails.22. Coming to the last contention, we are not satisfied that the Industrial Court has in any manner exceeded its jurisdiction under Ss.66 and 67 of the Act. We have pointed out the very serious mistakes committed by the Labour Court. The Industrial Court has acted well within its jurisdiction in setting aside the order of the Labour Court.
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0
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Court itself clearly shows that this plea of the appellant for having certain slips produced is anThe Labour Court has also held that the plea of the appellant that he issued the additional slips by mistake cannot be believed. This finding has been recorded by the Labour Court after independently going through the materials on record. The Labour Court has further found that an attempt was made by the appellant to induce Jodha Ram to destroy certain pages in the daily work register. This conduct clearly shows that the appellant tried to destroy the evidence that may be used against him and that conduct clearly reveals a guilty mind. Having recorded such a finding against the workman, it is difficult for us to appreciate as to how the Labour Court came to record a finding that by mereof the slips, as required by the workman, the enquiry proceedings have been held in violation of the principles of natural justice. The Industrial Court, under those circumstances was, perfectly justified in holding that the approach made by the Labour Court was erroneous. We are of the view that the finding of the Industrial Court that there is no violation of the principles of natural justice is correct. Therefore, the first contention of Mr. Naunit Lal has to be rejected.17. Coming to the second contention, we have already referred to the fact that the Labour Court has found that Abde Ali was competent to hold the enquiry against the appellant. The order of discharge has been held to be invalid by the Labour Court on the ground that it has not been signed by the manager, namely, Shri Srivastava. So far as this is concerned, the Industrial Court has held that the order has been signed both by Abde Ali as well as by Bhagrodia, who was the secretary of the mills and who had the power to appoint and dismiss an employee of the company. According to Mr. Naunit Lal, though Abde Ali may be competent to conduct an enquiry, the order of discharge has to be passed only by the manager or other officer authorised as required by cl. 12(4)(f). In this case as the manager Shri Srivastava has not signed the order, it is invalid.18. We are not inclined to accept the above contention of Mr. Naunit Lal. The matter can be considered from two points of view. We will proceed on the basis that Abde Ali alone has signed the order. Even according to the appellant, he is a person competent to hold the enquiry. The question is whether he is also competent to pass an order punishing an employee under cl. 12(4)(f). We have already referred to the definition of "Manager" as well as cl. 12. (4)(a) and (f) of the Standing Orders. A person authorised by the manager is himself a manager under cl. (1)(a). Under Ext.D 39A, Abde Ali has been authorised by Shri Srivastava to conduct all enquiries under the Act in accordance with the standing orders applicable to the workman and also to conduct all proceedings in respect of the enquiry. The authorisation given under Ext.D 39A to Abde Ali is comprehensive enough to constitute him as a person authorised by the manager and as such he is a manager under cl. (1)(a) of the Standing Orders. If so, he is person competent under cl. 12(4)(f) to pass an order discharging the appellant by way of punishment.19. The Industrial Court has found that the order has been also signed by Bhagrodia, who was the secretary of the mills, Admittedly, he is an officer, superior in rank to that of the manager and he is the appointing and dismissing authority for all clerical and other staff. When an authority higher than the manager has passed the order or discharge, it cannot certainly be held to be invalid. A reasonable interpretation of cl. 12(4)(f) of the Standing Orders is that an authority lower in rank to that of a manager or other officer authorised under Standing Order 1(a), cannot pass an order of punishment. Therefore, on this ground also the order can be held to be valid.There is an additional circumstance which has not been noted by the Labour Court. Bhagrodia has given evidence to the effect that the Factory Manager Shri Srivastava was subordinate to him. He has further deposed that whenever Shri Srivastava went out of station, he used to authorise him to exercise all powers of the manager under the standing orders of the company. During the enquiry proceedings against the appellant, Shri Srivastava went on leave and he authorised the witness to pass the necessary orders on the basis of the enquiry. The witness has further deposed that after considering the enquiry proceedings, he passed the order discharging the appellant from service. This evidence has not been challenged inIf so, it follows that even by giving a strict meaning to the expression "manager" under the Standing Orders, Bhagrodia is a person who has been authorised by the manager for the purpose of the standing orders and as such he is a manager under the definition and as such competent to pass the order under cl. 12(4)(f) of the Standing Orders. Considering the matter from any point of view, it follows that the view of the Industrial Court, that the order of discharge has been passed by the competent officer is correct.21. The above aspects referred to by us, have not been referred to by the Labour Court when it held that the order is invalid as having been passed by a person without authority. Therefore, the second contention of Mr. Naunit Lal also fails.22. Coming to the last contention, we are not satisfied that the Industrial Court has in any manner exceeded its jurisdiction under Ss.66 and 67 of the Act. We have pointed out the very serious mistakes committed by the Labour Court. The Industrial Court has acted well within its jurisdiction in setting aside the order of the Labour Court.
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Life Insurance Corporation of India Vs. Bibi Padmawati | doctor who might have attended on Diwan Balkishan during his stay in the hospital has been produced. Besides the very fact that Diwan Balkishan was in the hospital for such a short time indicates that he could hardly have been suffering from any such serious ailment as tuberculosis of lungs. Further, Diwan Balkishan would not have access to this register and, therefore, these entries would not prove that he knew what he was suffering from in the absence of evidence that somebody told him during these two occasions when he was in the hospital what he was suffering from. Therefore, even assuming that Dr. Amir-ud-Dins evidence can be accepted (though, as already indicated, we think that the trial courts estimate of that evidence was more correct), we agree with the High Court that it has not been proved that Diwan Balkishan knew that he had been suffering from pulmonary tuberculosis when he made the revival applications in 1948. As the High Court has rightly pointed out there was no evidence of outward symptoms which would have shown that Diwan Balkishan knew that he was suffering from tuberculosis. Further, we agree with the High Court that if Diwan Balkishan was really suffering from tuberculosis and knew about it he would never have allowed the policies to lapse, for, then, he might be subjected to further medical examination. Lastly, the fact that there was no medical examination again when the policies were revived show that there was nothing outwardly wrong with Diwan Balkishan as otherwise the company would never have revived the policies without re-examination. We, therefore, agree with the High Court that, on the facts of this case, it cannot be said that Diwan Balkishan was suffering from tuberculosis of the lungs or any other serious disease when he applied for revival in 1948 or knew that he was7. Reliance in this connection has been placed on the application for revival in which Diwan Balkishan declared that he had had no "sickness, ailment or injury" after the policies were issued to him and that he was of sound constitution and temperate habits and in good health. The form also provided that if any of the statements or representations contained therein proved to be incomplete or untrue then the revival would be ipso facto null and void. It is said that Diwan Balkishan was admitted to the hospital twice in 1945 and, therefore, his statement that he had no "sickness, ailment or injury" after the policies were issued to him was untrue, and so the revival would be void. this argument is met by the respondent by clause 4 of the policy relating to indisputability. That clause provided that "a policy after the expiry of two years from the date on which it is effected becomes indisputable except when the company shows that a statement made in the proposal for assurance or in any statement made in the proposal for assurance or in any statement made before a medical examiner or a referee or a friend of the assured or in any other document leading to the issue or revival of the policy, on a material matter, was fraudulently made by the policy-holder and that the policy-holder knew at the time of making it that the statement was false." Now this clause clearly shows that the policy becomes indisputable after the expiry of two years from the date on which it is effected, i.e., the date on which it was originally issued. In the present case the two-year period from the date the policies were originally issued had expired before the death. This clause also covers the case of revival, for it covers any statement made in any document relating to revival of the policy. But it is argued on behalf of the appellant that the clause would only apply if two years pass after the revival for revival amounts to novation of the contract of insurance. Now the revival receipt has not been produced and it is not possible to say whether the revival of the policies (even though it may amount to novation for certain purposes) was not form the dates on which the policies were originally effected. If they were revived from the date the policies were originally effected and, in the absence of the revival receipts, we must hold it to be so, the fourth clause would apply to the revived policies from the date they were effected and not from the date of revival, and in that case two years have to be counted from the date the policies were effected. We have already held that there was no fraud on the part of Diwan Balkishan and two years having passed from the date the policies were effected, the indisputability clause will apply and it is not open to the appellant to dispute the policies when fraud or misrepresentation has not been proved8. Besides we agree with the High Court that merely because the revival application did not mention that Diwan Balkishan was admitted to the hospital twice in 1945 is of no effect for the evidence in this case fails to prove that there was anything seriously wrong with Diwan Balkishan when he was admitted to the hospital on those occasions. When the revival form speaks of "sickness, ailment or injury", these words must be interpreted to include only more serious disorders leaving a permanent mark upon the insureds health; passing ailments or disorders are not considered by the court to be material to the risk. Unless, therefore, it could be proved that Diwan Balkishan was afflicted with a serious ailment or disease during the period after the insurance policies had been issued and before the revival applications were made, the mere fact that he did not mention any passing ailment or disorder which might have necessitated his going to the hospital twice for short periods would not show that his statement in the revival applications was false to the extent of making the revival void. | 0[ds]It was conceded before the Highn our opinion,there was no evidence whatever to suggest that there was any fraud or misrepresentation as to the state of his health by Diwan Balkishan in 1944 before he took out the two policies in September and November,seems to us that, in these circumstances, the High Court need not have differed from the trial courts estimate of the value of Dr.The only other evidence on which stress has been laid is the entries in the admission register of patients. It appears that Diwan Balkishan was admitted to the hospital twice in 1945, once on February 21, 1945, and second time on April 17, 1945. The High Court has held that these entries are inadmissible. They certainly show the disease from which Diwan Balkishan was suffering as tuberculosis of lungs. It may be added that on the first occasion Diwan Balkishan remained in the hospital for seven days and on the second for five days. Even if these entries are admissible, we doubt if they are of any value in establishing that Diwan Balkishan was suffering from tuberculosis. The procedure for making these entries in the admission register has not been proved and no doctor who might have attended on Diwan Balkishan during his stay in the hospital has been produced. Besides the very fact that Diwan Balkishan was in the hospital for such a short time indicates that he could hardly have been suffering from any such serious ailment as tuberculosis of lungs. Further, Diwan Balkishan would not have access to this register and, therefore, these entries would not prove that he knew what he was suffering from in the absence of evidence that somebody told him during these two occasions when he was in the hospital what he was suffering from. Therefore, even assuming that Dr.evidence can be accepted (though, as already indicated, we think that the trial courts estimate of that evidence was more correct), we agree with the High Court that it has not been proved that Diwan Balkishan knew that he had been suffering from pulmonary tuberculosis when he made the revival applications in 1948. As the High Court has rightly pointed out there was no evidence of outward symptoms which would have shown that Diwan Balkishan knew that he was suffering from tuberculosis. Further, we agree with the High Court that if Diwan Balkishan was really suffering from tuberculosis and knew about it he would never have allowed the policies to lapse, for, then, he might be subjected to further medical examination. Lastly, the fact that there was no medical examination again when the policies were revived show that there was nothing outwardly wrong with Diwan Balkishan as otherwise the company would never have revived the policies withoutWe, therefore, agree with the High Court that, on the facts of this case, it cannot be said that Diwan Balkishan was suffering from tuberculosis of the lungs or any other serious disease when he applied for revival in 1948 or knew that hethis clause clearly shows that the policy becomes indisputable after the expiry of two years from the date on which it is effected, i.e., the date on which it was originally issued. In the present case theperiod from the date the policies were originally issued had expired before the death. This clause also covers the case of revival, for it covers any statement made in any document relating to revival of the policy. But it is argued on behalf of the appellant that the clause would only apply if two years pass after the revival for revival amounts to novation of the contract of insurance. Now the revival receipt has not been produced and it is not possible to say whether the revival of the policies (even though it may amount to novation for certain purposes) was not form the dates on which the policies were originally effected. If they were revived from the date the policies were originally effected and, in the absence of the revival receipts, we must hold it to be so, the fourth clause would apply to the revived policies from the date they were effected and not from the date of revival, and in that case two years have to be counted from the date the policies were effected. We have already held that there was no fraud on the part of Diwan Balkishan and two years having passed from the date the policies were effected, the indisputability clause will apply and it is not open to the appellant to dispute the policies when fraud or misrepresentation has not been proved8. Besides we agree with the High Court that merely because the revival application did not mention that Diwan Balkishan was admitted to the hospital twice in 1945 is of no effect for the evidence in this case fails to prove that there was anything seriously wrong with Diwan Balkishan when he was admitted to the hospital on those occasions. When the revival form speaks of "sickness, ailment or injury", these words must be interpreted to include only more serious disorders leaving a permanent mark upon the insureds health; passing ailments or disorders are not considered by the court to be material to the risk. Unless, therefore, it could be proved that Diwan Balkishan was afflicted with a serious ailment or disease during the period after the insurance policies had been issued and before the revival applications were made, the mere fact that he did not mention any passing ailment or disorder which might have necessitated his going to the hospital twice for short periods would not show that his statement in the revival applications was false to the extent of making the revival | 0 | 2,473 | 1,023 | ### 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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doctor who might have attended on Diwan Balkishan during his stay in the hospital has been produced. Besides the very fact that Diwan Balkishan was in the hospital for such a short time indicates that he could hardly have been suffering from any such serious ailment as tuberculosis of lungs. Further, Diwan Balkishan would not have access to this register and, therefore, these entries would not prove that he knew what he was suffering from in the absence of evidence that somebody told him during these two occasions when he was in the hospital what he was suffering from. Therefore, even assuming that Dr. Amir-ud-Dins evidence can be accepted (though, as already indicated, we think that the trial courts estimate of that evidence was more correct), we agree with the High Court that it has not been proved that Diwan Balkishan knew that he had been suffering from pulmonary tuberculosis when he made the revival applications in 1948. As the High Court has rightly pointed out there was no evidence of outward symptoms which would have shown that Diwan Balkishan knew that he was suffering from tuberculosis. Further, we agree with the High Court that if Diwan Balkishan was really suffering from tuberculosis and knew about it he would never have allowed the policies to lapse, for, then, he might be subjected to further medical examination. Lastly, the fact that there was no medical examination again when the policies were revived show that there was nothing outwardly wrong with Diwan Balkishan as otherwise the company would never have revived the policies without re-examination. We, therefore, agree with the High Court that, on the facts of this case, it cannot be said that Diwan Balkishan was suffering from tuberculosis of the lungs or any other serious disease when he applied for revival in 1948 or knew that he was7. Reliance in this connection has been placed on the application for revival in which Diwan Balkishan declared that he had had no "sickness, ailment or injury" after the policies were issued to him and that he was of sound constitution and temperate habits and in good health. The form also provided that if any of the statements or representations contained therein proved to be incomplete or untrue then the revival would be ipso facto null and void. It is said that Diwan Balkishan was admitted to the hospital twice in 1945 and, therefore, his statement that he had no "sickness, ailment or injury" after the policies were issued to him was untrue, and so the revival would be void. this argument is met by the respondent by clause 4 of the policy relating to indisputability. That clause provided that "a policy after the expiry of two years from the date on which it is effected becomes indisputable except when the company shows that a statement made in the proposal for assurance or in any statement made in the proposal for assurance or in any statement made before a medical examiner or a referee or a friend of the assured or in any other document leading to the issue or revival of the policy, on a material matter, was fraudulently made by the policy-holder and that the policy-holder knew at the time of making it that the statement was false." Now this clause clearly shows that the policy becomes indisputable after the expiry of two years from the date on which it is effected, i.e., the date on which it was originally issued. In the present case the two-year period from the date the policies were originally issued had expired before the death. This clause also covers the case of revival, for it covers any statement made in any document relating to revival of the policy. But it is argued on behalf of the appellant that the clause would only apply if two years pass after the revival for revival amounts to novation of the contract of insurance. Now the revival receipt has not been produced and it is not possible to say whether the revival of the policies (even though it may amount to novation for certain purposes) was not form the dates on which the policies were originally effected. If they were revived from the date the policies were originally effected and, in the absence of the revival receipts, we must hold it to be so, the fourth clause would apply to the revived policies from the date they were effected and not from the date of revival, and in that case two years have to be counted from the date the policies were effected. We have already held that there was no fraud on the part of Diwan Balkishan and two years having passed from the date the policies were effected, the indisputability clause will apply and it is not open to the appellant to dispute the policies when fraud or misrepresentation has not been proved8. Besides we agree with the High Court that merely because the revival application did not mention that Diwan Balkishan was admitted to the hospital twice in 1945 is of no effect for the evidence in this case fails to prove that there was anything seriously wrong with Diwan Balkishan when he was admitted to the hospital on those occasions. When the revival form speaks of "sickness, ailment or injury", these words must be interpreted to include only more serious disorders leaving a permanent mark upon the insureds health; passing ailments or disorders are not considered by the court to be material to the risk. Unless, therefore, it could be proved that Diwan Balkishan was afflicted with a serious ailment or disease during the period after the insurance policies had been issued and before the revival applications were made, the mere fact that he did not mention any passing ailment or disorder which might have necessitated his going to the hospital twice for short periods would not show that his statement in the revival applications was false to the extent of making the revival void.
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### Explanation:
It was conceded before the Highn our opinion,there was no evidence whatever to suggest that there was any fraud or misrepresentation as to the state of his health by Diwan Balkishan in 1944 before he took out the two policies in September and November,seems to us that, in these circumstances, the High Court need not have differed from the trial courts estimate of the value of Dr.The only other evidence on which stress has been laid is the entries in the admission register of patients. It appears that Diwan Balkishan was admitted to the hospital twice in 1945, once on February 21, 1945, and second time on April 17, 1945. The High Court has held that these entries are inadmissible. They certainly show the disease from which Diwan Balkishan was suffering as tuberculosis of lungs. It may be added that on the first occasion Diwan Balkishan remained in the hospital for seven days and on the second for five days. Even if these entries are admissible, we doubt if they are of any value in establishing that Diwan Balkishan was suffering from tuberculosis. The procedure for making these entries in the admission register has not been proved and no doctor who might have attended on Diwan Balkishan during his stay in the hospital has been produced. Besides the very fact that Diwan Balkishan was in the hospital for such a short time indicates that he could hardly have been suffering from any such serious ailment as tuberculosis of lungs. Further, Diwan Balkishan would not have access to this register and, therefore, these entries would not prove that he knew what he was suffering from in the absence of evidence that somebody told him during these two occasions when he was in the hospital what he was suffering from. Therefore, even assuming that Dr.evidence can be accepted (though, as already indicated, we think that the trial courts estimate of that evidence was more correct), we agree with the High Court that it has not been proved that Diwan Balkishan knew that he had been suffering from pulmonary tuberculosis when he made the revival applications in 1948. As the High Court has rightly pointed out there was no evidence of outward symptoms which would have shown that Diwan Balkishan knew that he was suffering from tuberculosis. Further, we agree with the High Court that if Diwan Balkishan was really suffering from tuberculosis and knew about it he would never have allowed the policies to lapse, for, then, he might be subjected to further medical examination. Lastly, the fact that there was no medical examination again when the policies were revived show that there was nothing outwardly wrong with Diwan Balkishan as otherwise the company would never have revived the policies withoutWe, therefore, agree with the High Court that, on the facts of this case, it cannot be said that Diwan Balkishan was suffering from tuberculosis of the lungs or any other serious disease when he applied for revival in 1948 or knew that hethis clause clearly shows that the policy becomes indisputable after the expiry of two years from the date on which it is effected, i.e., the date on which it was originally issued. In the present case theperiod from the date the policies were originally issued had expired before the death. This clause also covers the case of revival, for it covers any statement made in any document relating to revival of the policy. But it is argued on behalf of the appellant that the clause would only apply if two years pass after the revival for revival amounts to novation of the contract of insurance. Now the revival receipt has not been produced and it is not possible to say whether the revival of the policies (even though it may amount to novation for certain purposes) was not form the dates on which the policies were originally effected. If they were revived from the date the policies were originally effected and, in the absence of the revival receipts, we must hold it to be so, the fourth clause would apply to the revived policies from the date they were effected and not from the date of revival, and in that case two years have to be counted from the date the policies were effected. We have already held that there was no fraud on the part of Diwan Balkishan and two years having passed from the date the policies were effected, the indisputability clause will apply and it is not open to the appellant to dispute the policies when fraud or misrepresentation has not been proved8. Besides we agree with the High Court that merely because the revival application did not mention that Diwan Balkishan was admitted to the hospital twice in 1945 is of no effect for the evidence in this case fails to prove that there was anything seriously wrong with Diwan Balkishan when he was admitted to the hospital on those occasions. When the revival form speaks of "sickness, ailment or injury", these words must be interpreted to include only more serious disorders leaving a permanent mark upon the insureds health; passing ailments or disorders are not considered by the court to be material to the risk. Unless, therefore, it could be proved that Diwan Balkishan was afflicted with a serious ailment or disease during the period after the insurance policies had been issued and before the revival applications were made, the mere fact that he did not mention any passing ailment or disorder which might have necessitated his going to the hospital twice for short periods would not show that his statement in the revival applications was false to the extent of making the revival
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Amrit Singh Vs. State Of Punjab | guilty of commission of the offence beyond any shadow of doubt. The circumstances upon which the High Court relied were considered by this Court to be hazardous to base conviction. 17. In State of Rajasthan v. Smt. Kamla [AIR 1991 SC 967 ], this Court again on the fact situation obtaining therein did not base its judgment of conviction on the circumstantial evidence laid therein. A similar question came up for consideration recently in Sunny Kapoor v. State (U.T. of Chandigarh), [JT 2006 (11) SC 298 ], wherein it was observed: "19. The appellants have been convicted on the basis of circumstantial evidence. It is now well settled by a catena of decisions of this Court that for proving the guilt of commission of an offence under Section 302 IPC, the prosecution must lead evidence to connect all links in the chain so as to clearly point the guilt of the accused alone and nobody else." 18. Post mortem examination was held at 11.00 a.m. on 4th November, 2003. The time of death was said to be within 24 hours. The deceased died of bleeding from her private parts, which indisputably was the result of rape. Exact time as to when the occurrence took place is not known and it would be hazardous to make any guess in this behalf. Deceased died a painful death which would appear from impression of teeth on her lips. She did not have even a developed body; public and axillary hairs not grown and breasts were also not developed. Organs of generation external and internal were that hymen was torn, complete pereneal tear, multiple vaginal laceration, complete vault tear and uterus was infantile. No rigor mortis was noticed. Dead body was found at or before 10.00 p.m. as her body was brought to home at that time. There exists a controversy as to whether Appellant was arrested immediately on 9.11.2003 or 12.11.2003. He was indisputably suspected of commission of the offences. He was either arrested or he fled away from his house. It was true that according to PWs. 2 and 3 he was arrested immediately whereas according to the Investigating Officer, he was found absent from his house and the house was locked. Sending of a telegram to the Chief Justice of the High Court is not in dispute but the Courts below did not lay much stress thereupon as allegations made by the grandfather of Appellant in that behalf were withdrawn at a later stage. Appellant examined two defence witnesses who proved the fact that a telegram was sent but later on an application was filed which was marked as Exhibit DA, from a perusal whereof it appears that the complaint was withdrawn by Makhan Singh, maternal grandfather of the accused. It is, however, interesting to note that it was a former Sarpanch of the village who caused the production of the body of Appellant before the Investigating Officer; if latters statement is to be believed. The place of occurrence also plays some importance. It was on the cotton field of Appellant himself. Height of cotton crop according to the villagers goes upto 6 ft. The cotton crop was in front of the house of Appellant. 19. Mr. Aggarwal has also drawn our attention to a suggestion made to PW-2 that four young boys aged about 10 years were seen in the cotton field from outside areas. If an outsider had committed the crime, she would definitely cried out but Appellant, a neighbour and known to her was a person of trust. She was seen to be holding Appellants finger. It is clear that she was allured by Appellant to accompany him to his own field which was near his house. We, however, do not agree with the contention of the learned counsel for the State that in this case, the provisions of the Identification of Prisoners Act will have any application. The provisions of the said Act may not be ultra vires to the Constitution but it cannot be said to be applicable in a case of this nature. It cannot be said to be an area which is contemplated under the Act. Appellant had a right to give or not to give sample of his hair. He could not have been made a witness against himself against his will.20. Offence of rape took place on an agricultural field. She might have suffered a lot of pain. She might have resisted also. She might have been gagged. Possibilities of some assault on her person cannot be ruled out. It would, however, be improper to hold that he killed her intentionally.21. The opinion of the learned Trial Judge as also the High Court that Appellant being aged about 31 years and not suffering from any disease, was in a dominating position and might have got her mouth gagged cannot be held be irrelevant. Some marks of violence not only on the neck but also on her mouth were found. Submission of Mr. Aggarwal, however, that Appellant might not have an intention to kill the deceased, thus, may have some farce. The death occurred not as a result of strangulation but because of excessive bleeding. Deceased had bleeded half a liter of blood. Dr. Reshamchand Singh, PW-1 did not state that injury on the neck could have contributed to her death. The death occurred, therefore, as a consequence of and not because of any specific overt act on the part of Appellant.22. Imposition of death penalty in a case of this nature, in our opinion, was, thus, improper. Even otherwise, it cannot be said to be a rarest of rare cases. The manner in which the deceased was raped may be brutal but it could have been a momentary lapse on the part of Appellant, seeing a lonely girl at a secluded place. He had no pre-meditation for commission of the offence. The offence may look a heinous, but under no circumstances, it can be said to be a rarest of rare cases. | 1[ds]19. Mr. Aggarwal has also drawn our attention to a suggestion made to PW-2 that four young boys aged about 10 years were seen in the cotton field from outside areas. If an outsider had committed the crime, she would definitely cried out but Appellant, a neighbour and known to her was a person of trust. She was seen to be holding Appellants finger. It is clear that she was allured by Appellant to accompany him to his own field which was near his house. We, however, do not agree with the contention of the learned counsel for the State that in this case, the provisions of the Identification of Prisoners Act will have any application. The provisions of the said Act may not be ultra vires to the Constitution but it cannot be said to be applicable in a case of this nature. It cannot be said to be an area which is contemplated under the Act. Appellant had a right to give or not to give sample of his hair. He could not have been made a witness against himself against his will.20. Offence of rape took place on an agricultural field. She might have suffered a lot of pain. She might have resisted also. She might have been gagged. Possibilities of some assault on her person cannot be ruled out. It would, however, be improper to hold that he killed her intentionally.21. The opinion of the learned Trial Judge as also the High Court that Appellant being aged about 31 years and not suffering from any disease, was in a dominating position and might have got her mouth gagged cannot be held be irrelevant. Some marks of violence not only on the neck but also on her mouth were found. Submission of Mr. Aggarwal, however, that Appellant might not have an intention to kill the deceased, thus, may have some farce. The death occurred not as a result of strangulation but because of excessive bleeding. Deceased had bleeded half a liter of blood. Dr. Reshamchand Singh, PW-1 did not state that injury on the neck could have contributed to her death. The death occurred, therefore, as a consequence of and not because of any specific overt act on the part of Appellant.22. Imposition of death penalty in a case of this nature, in our opinion, was, thus, improper. Even otherwise, it cannot be said to be a rarest of rare cases. The manner in which the deceased was raped may be brutal but it could have been a momentary lapse on the part of Appellant, seeing a lonely girl at a secluded place. He had no pre-meditation for commission of the offence. The offence may look a heinous, but under no circumstances, it can be said to be a rarest of rare cases. | 1 | 3,485 | 526 | ### 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:
guilty of commission of the offence beyond any shadow of doubt. The circumstances upon which the High Court relied were considered by this Court to be hazardous to base conviction. 17. In State of Rajasthan v. Smt. Kamla [AIR 1991 SC 967 ], this Court again on the fact situation obtaining therein did not base its judgment of conviction on the circumstantial evidence laid therein. A similar question came up for consideration recently in Sunny Kapoor v. State (U.T. of Chandigarh), [JT 2006 (11) SC 298 ], wherein it was observed: "19. The appellants have been convicted on the basis of circumstantial evidence. It is now well settled by a catena of decisions of this Court that for proving the guilt of commission of an offence under Section 302 IPC, the prosecution must lead evidence to connect all links in the chain so as to clearly point the guilt of the accused alone and nobody else." 18. Post mortem examination was held at 11.00 a.m. on 4th November, 2003. The time of death was said to be within 24 hours. The deceased died of bleeding from her private parts, which indisputably was the result of rape. Exact time as to when the occurrence took place is not known and it would be hazardous to make any guess in this behalf. Deceased died a painful death which would appear from impression of teeth on her lips. She did not have even a developed body; public and axillary hairs not grown and breasts were also not developed. Organs of generation external and internal were that hymen was torn, complete pereneal tear, multiple vaginal laceration, complete vault tear and uterus was infantile. No rigor mortis was noticed. Dead body was found at or before 10.00 p.m. as her body was brought to home at that time. There exists a controversy as to whether Appellant was arrested immediately on 9.11.2003 or 12.11.2003. He was indisputably suspected of commission of the offences. He was either arrested or he fled away from his house. It was true that according to PWs. 2 and 3 he was arrested immediately whereas according to the Investigating Officer, he was found absent from his house and the house was locked. Sending of a telegram to the Chief Justice of the High Court is not in dispute but the Courts below did not lay much stress thereupon as allegations made by the grandfather of Appellant in that behalf were withdrawn at a later stage. Appellant examined two defence witnesses who proved the fact that a telegram was sent but later on an application was filed which was marked as Exhibit DA, from a perusal whereof it appears that the complaint was withdrawn by Makhan Singh, maternal grandfather of the accused. It is, however, interesting to note that it was a former Sarpanch of the village who caused the production of the body of Appellant before the Investigating Officer; if latters statement is to be believed. The place of occurrence also plays some importance. It was on the cotton field of Appellant himself. Height of cotton crop according to the villagers goes upto 6 ft. The cotton crop was in front of the house of Appellant. 19. Mr. Aggarwal has also drawn our attention to a suggestion made to PW-2 that four young boys aged about 10 years were seen in the cotton field from outside areas. If an outsider had committed the crime, she would definitely cried out but Appellant, a neighbour and known to her was a person of trust. She was seen to be holding Appellants finger. It is clear that she was allured by Appellant to accompany him to his own field which was near his house. We, however, do not agree with the contention of the learned counsel for the State that in this case, the provisions of the Identification of Prisoners Act will have any application. The provisions of the said Act may not be ultra vires to the Constitution but it cannot be said to be applicable in a case of this nature. It cannot be said to be an area which is contemplated under the Act. Appellant had a right to give or not to give sample of his hair. He could not have been made a witness against himself against his will.20. Offence of rape took place on an agricultural field. She might have suffered a lot of pain. She might have resisted also. She might have been gagged. Possibilities of some assault on her person cannot be ruled out. It would, however, be improper to hold that he killed her intentionally.21. The opinion of the learned Trial Judge as also the High Court that Appellant being aged about 31 years and not suffering from any disease, was in a dominating position and might have got her mouth gagged cannot be held be irrelevant. Some marks of violence not only on the neck but also on her mouth were found. Submission of Mr. Aggarwal, however, that Appellant might not have an intention to kill the deceased, thus, may have some farce. The death occurred not as a result of strangulation but because of excessive bleeding. Deceased had bleeded half a liter of blood. Dr. Reshamchand Singh, PW-1 did not state that injury on the neck could have contributed to her death. The death occurred, therefore, as a consequence of and not because of any specific overt act on the part of Appellant.22. Imposition of death penalty in a case of this nature, in our opinion, was, thus, improper. Even otherwise, it cannot be said to be a rarest of rare cases. The manner in which the deceased was raped may be brutal but it could have been a momentary lapse on the part of Appellant, seeing a lonely girl at a secluded place. He had no pre-meditation for commission of the offence. The offence may look a heinous, but under no circumstances, it can be said to be a rarest of rare cases.
### Response:
1
### Explanation:
19. Mr. Aggarwal has also drawn our attention to a suggestion made to PW-2 that four young boys aged about 10 years were seen in the cotton field from outside areas. If an outsider had committed the crime, she would definitely cried out but Appellant, a neighbour and known to her was a person of trust. She was seen to be holding Appellants finger. It is clear that she was allured by Appellant to accompany him to his own field which was near his house. We, however, do not agree with the contention of the learned counsel for the State that in this case, the provisions of the Identification of Prisoners Act will have any application. The provisions of the said Act may not be ultra vires to the Constitution but it cannot be said to be applicable in a case of this nature. It cannot be said to be an area which is contemplated under the Act. Appellant had a right to give or not to give sample of his hair. He could not have been made a witness against himself against his will.20. Offence of rape took place on an agricultural field. She might have suffered a lot of pain. She might have resisted also. She might have been gagged. Possibilities of some assault on her person cannot be ruled out. It would, however, be improper to hold that he killed her intentionally.21. The opinion of the learned Trial Judge as also the High Court that Appellant being aged about 31 years and not suffering from any disease, was in a dominating position and might have got her mouth gagged cannot be held be irrelevant. Some marks of violence not only on the neck but also on her mouth were found. Submission of Mr. Aggarwal, however, that Appellant might not have an intention to kill the deceased, thus, may have some farce. The death occurred not as a result of strangulation but because of excessive bleeding. Deceased had bleeded half a liter of blood. Dr. Reshamchand Singh, PW-1 did not state that injury on the neck could have contributed to her death. The death occurred, therefore, as a consequence of and not because of any specific overt act on the part of Appellant.22. Imposition of death penalty in a case of this nature, in our opinion, was, thus, improper. Even otherwise, it cannot be said to be a rarest of rare cases. The manner in which the deceased was raped may be brutal but it could have been a momentary lapse on the part of Appellant, seeing a lonely girl at a secluded place. He had no pre-meditation for commission of the offence. The offence may look a heinous, but under no circumstances, it can be said to be a rarest of rare cases.
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Mohan Singh Vs. State of Punjab | be either an L.G. or S.G. shot. The expert, however, says that the general shape of the undamaged portion indicated that the shot was possibly an L.G. shot. He was not categorical about it. He was sure that is was a factory-made one. There are 6 and 9 shots in an L.G. and S.G. cartridge of standard size respectively.6. Now in this case there were five injuries on the deceased all caused by shots. There were three injuries on Swaran Kaur. Even assuming that all these three injuries were caused by three of the shots which entered Dial Singhs body, a position which we find it difficult to accept as natural in view of the force with which they have entered Swaran Kaurs body, there were two more shots, one found in the wall of Sardul Singhs house and another found in front of Malagar Singhs house. There are thus seven shots the presence of which have to be explained. The learned Judges of the High Court thought that the shot found in front of Malagar Singhs could have dropped from the person of Dial Singh when he was moving into the house of Malagar Singh or dropped from his apparel in which it had got caught after piercing through a wound. This is a proposition which appears to us to be farfetched. There is no evidence to support such a proposition. The expert was not asked about it nor was the doctor who conducted the post mortem. It appears to us that the shots which could pierce through a body and hit another person at a distance of 30 feet and cause grievous injuries to that person cannot drop from the body of the first person or get caught in his apparel after piercing through his wounds. It also appears to us that the shots which passed through the body of Dial Singh could not have travelled another 30 feet and hit Swaran Kaur with such force as to fracture her femur. Furthermore, the location of the injures on Swaran Kaur compared to the location of the injuries on the body of the deceased person cannot be explained as easily as was thought possible by the learned Judges of the High Court. The expert stated that the shots after entering the body of Dial Singh had deflected downwards and this was particularly true in the case of injury number one; secondly that Dial Singh must have instinctively ducked while receiving the shots or at the instant when the shots came out of his body. It is not possible to accept that all the three shots which entered Swaran Kaur could have deflected downwards. If Dial Singh had also ducked then the shot which was deflected could have gone still lower and could not have hit her at all. The evidence of Joginder Kaur that immediately after the gun-fire the deceased was seen in a bending position and staggering with his hands placed on his wound cannot support this conclusion. A gunshot takes much less than a split-second to enter a body and we are unable to agree that Dial Singh could have ducked and that might have been responsible for the shots which entered his body finding a lower target when they came out of his body.7. The expert stated that he came to the conclusion that the injuries on Dial Singh and Swaran Kaur were probably caused by one gunfire only. It must first of all be noted that he is not categorical about it. The reasons for his conclusions are the dimensions of the injuries. He had not seen the injuries and it would need superhuman ability to come to a conclusion on this subject by merely looking at the description of the injuries or even the photographs given by the doctors. The dimensions of the injuries noted by the doctors cannot be correct to the extent of 1/100th of an inch. Most of the experts answers are not categorical. He did not have an opportunity of seeing the injuries and exist wounds of the shots himself. He was mostly giving his answers on the basis of observations made by others and measurements noted by them. A small difference in the measurements one way or the other might make all the difference to the final result. We think it would be unsafe to place implicit reliance on the evidence of the expert for the reasons we have already given and hold that the shots which hit Swaran Kaur and which resulted in the death of Dial Singh were fired from the same gun in a single shot. Furthermore, when Karam Singh started out of his house, having heard about the appellant and his people having come to his house and abused and the appellant being armed with a gun, he is not likely to have gone out unarmed. He was accompanied by Dial Singh when he met the appellant and his party. Swaran Kaur was appellants aunt. She was trying to persuade Karam Singh and others not to abuse. So she could not have gone behind Dial Singh while doing so and been hit by the bullets which hit Dial Singh. It seems more likely that the injury was caused to Swaran Kaur from a member of Karam Singhs party as pleaded by the appellant. In any case we consider that it is not established beyond reasonable doubt that the shots which hit Swaran Kaur were the same shots which hit Dial Singh. An accused pleading the right of self-defence need not prove it beyond reasonable doubt. It is enough if he establishes facts which on the test of preponderance of probabilities make his defence acceptable. In any event, the discarding of the prosecution story by us as respects the manner of the causing of the injuries on Swaran Kaur means that the whole story as to the manner of occurrence becomes very doubtful. In such a situation the benefit of doubt must go to the accused. | 1[ds]7. The expert stated that he came to the conclusion that the injuries on Dial Singh and Swaran Kaur were probably caused by one gunfire only. It must first of all be noted that he is not categorical about it. The reasons for his conclusions are the dimensions of the injuries. He had not seen the injuries and it would need superhuman ability to come to a conclusion on this subject by merely looking at the description of the injuries or even the photographs given by the doctors. The dimensions of the injuries noted by the doctors cannot be correct to the extent of 1/100th of an inch. Most of the experts answers are not categorical. He did not have an opportunity of seeing the injuries and exist wounds of the shots himself. He was mostly giving his answers on the basis of observations made by others and measurements noted by them. A small difference in the measurements one way or the other might make all the difference to the final result. We think it would be unsafe to place implicit reliance on the evidence of the expert for the reasons we have already given and hold that the shots which hit Swaran Kaur and which resulted in the death of Dial Singh were fired from the same gun in a single shot. Furthermore, when Karam Singh started out of his house, having heard about the appellant and his people having come to his house and abused and the appellant being armed with a gun, he is not likely to have gone out unarmed. He was accompanied by Dial Singh when he met the appellant and his party. Swaran Kaur was appellants aunt. She was trying to persuade Karam Singh and others not to abuse. So she could not have gone behind Dial Singh while doing so and been hit by the bullets which hit Dial Singh. It seems more likely that the injury was caused to Swaran Kaur from a member of Karam Singhs party as pleaded by the appellant. In any case we consider that it is not established beyond reasonable doubt that the shots which hit Swaran Kaur were the same shots which hit Dial Singh. An accused pleading the right ofneed not prove it beyond reasonable doubt. It is enough if he establishes facts which on the test of preponderance of probabilities make his defence acceptable. In any event, the discarding of the prosecution story by us as respects the manner of the causing of the injuries on Swaran Kaur means that the whole story as to the manner of occurrence becomes very doubtful. In such a situation the benefit of doubt must go to the accused. | 1 | 1,802 | 482 | ### 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:
be either an L.G. or S.G. shot. The expert, however, says that the general shape of the undamaged portion indicated that the shot was possibly an L.G. shot. He was not categorical about it. He was sure that is was a factory-made one. There are 6 and 9 shots in an L.G. and S.G. cartridge of standard size respectively.6. Now in this case there were five injuries on the deceased all caused by shots. There were three injuries on Swaran Kaur. Even assuming that all these three injuries were caused by three of the shots which entered Dial Singhs body, a position which we find it difficult to accept as natural in view of the force with which they have entered Swaran Kaurs body, there were two more shots, one found in the wall of Sardul Singhs house and another found in front of Malagar Singhs house. There are thus seven shots the presence of which have to be explained. The learned Judges of the High Court thought that the shot found in front of Malagar Singhs could have dropped from the person of Dial Singh when he was moving into the house of Malagar Singh or dropped from his apparel in which it had got caught after piercing through a wound. This is a proposition which appears to us to be farfetched. There is no evidence to support such a proposition. The expert was not asked about it nor was the doctor who conducted the post mortem. It appears to us that the shots which could pierce through a body and hit another person at a distance of 30 feet and cause grievous injuries to that person cannot drop from the body of the first person or get caught in his apparel after piercing through his wounds. It also appears to us that the shots which passed through the body of Dial Singh could not have travelled another 30 feet and hit Swaran Kaur with such force as to fracture her femur. Furthermore, the location of the injures on Swaran Kaur compared to the location of the injuries on the body of the deceased person cannot be explained as easily as was thought possible by the learned Judges of the High Court. The expert stated that the shots after entering the body of Dial Singh had deflected downwards and this was particularly true in the case of injury number one; secondly that Dial Singh must have instinctively ducked while receiving the shots or at the instant when the shots came out of his body. It is not possible to accept that all the three shots which entered Swaran Kaur could have deflected downwards. If Dial Singh had also ducked then the shot which was deflected could have gone still lower and could not have hit her at all. The evidence of Joginder Kaur that immediately after the gun-fire the deceased was seen in a bending position and staggering with his hands placed on his wound cannot support this conclusion. A gunshot takes much less than a split-second to enter a body and we are unable to agree that Dial Singh could have ducked and that might have been responsible for the shots which entered his body finding a lower target when they came out of his body.7. The expert stated that he came to the conclusion that the injuries on Dial Singh and Swaran Kaur were probably caused by one gunfire only. It must first of all be noted that he is not categorical about it. The reasons for his conclusions are the dimensions of the injuries. He had not seen the injuries and it would need superhuman ability to come to a conclusion on this subject by merely looking at the description of the injuries or even the photographs given by the doctors. The dimensions of the injuries noted by the doctors cannot be correct to the extent of 1/100th of an inch. Most of the experts answers are not categorical. He did not have an opportunity of seeing the injuries and exist wounds of the shots himself. He was mostly giving his answers on the basis of observations made by others and measurements noted by them. A small difference in the measurements one way or the other might make all the difference to the final result. We think it would be unsafe to place implicit reliance on the evidence of the expert for the reasons we have already given and hold that the shots which hit Swaran Kaur and which resulted in the death of Dial Singh were fired from the same gun in a single shot. Furthermore, when Karam Singh started out of his house, having heard about the appellant and his people having come to his house and abused and the appellant being armed with a gun, he is not likely to have gone out unarmed. He was accompanied by Dial Singh when he met the appellant and his party. Swaran Kaur was appellants aunt. She was trying to persuade Karam Singh and others not to abuse. So she could not have gone behind Dial Singh while doing so and been hit by the bullets which hit Dial Singh. It seems more likely that the injury was caused to Swaran Kaur from a member of Karam Singhs party as pleaded by the appellant. In any case we consider that it is not established beyond reasonable doubt that the shots which hit Swaran Kaur were the same shots which hit Dial Singh. An accused pleading the right of self-defence need not prove it beyond reasonable doubt. It is enough if he establishes facts which on the test of preponderance of probabilities make his defence acceptable. In any event, the discarding of the prosecution story by us as respects the manner of the causing of the injuries on Swaran Kaur means that the whole story as to the manner of occurrence becomes very doubtful. In such a situation the benefit of doubt must go to the accused.
### Response:
1
### Explanation:
7. The expert stated that he came to the conclusion that the injuries on Dial Singh and Swaran Kaur were probably caused by one gunfire only. It must first of all be noted that he is not categorical about it. The reasons for his conclusions are the dimensions of the injuries. He had not seen the injuries and it would need superhuman ability to come to a conclusion on this subject by merely looking at the description of the injuries or even the photographs given by the doctors. The dimensions of the injuries noted by the doctors cannot be correct to the extent of 1/100th of an inch. Most of the experts answers are not categorical. He did not have an opportunity of seeing the injuries and exist wounds of the shots himself. He was mostly giving his answers on the basis of observations made by others and measurements noted by them. A small difference in the measurements one way or the other might make all the difference to the final result. We think it would be unsafe to place implicit reliance on the evidence of the expert for the reasons we have already given and hold that the shots which hit Swaran Kaur and which resulted in the death of Dial Singh were fired from the same gun in a single shot. Furthermore, when Karam Singh started out of his house, having heard about the appellant and his people having come to his house and abused and the appellant being armed with a gun, he is not likely to have gone out unarmed. He was accompanied by Dial Singh when he met the appellant and his party. Swaran Kaur was appellants aunt. She was trying to persuade Karam Singh and others not to abuse. So she could not have gone behind Dial Singh while doing so and been hit by the bullets which hit Dial Singh. It seems more likely that the injury was caused to Swaran Kaur from a member of Karam Singhs party as pleaded by the appellant. In any case we consider that it is not established beyond reasonable doubt that the shots which hit Swaran Kaur were the same shots which hit Dial Singh. An accused pleading the right ofneed not prove it beyond reasonable doubt. It is enough if he establishes facts which on the test of preponderance of probabilities make his defence acceptable. In any event, the discarding of the prosecution story by us as respects the manner of the causing of the injuries on Swaran Kaur means that the whole story as to the manner of occurrence becomes very doubtful. In such a situation the benefit of doubt must go to the accused.
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Jagannath S/O Anna Khakare & Others Vs. The State of Maharashtra, Through Its Secretary, Energy Department & Others | Court has reiterated the principle that the Company registered under the Companies Act is a legal person, separate and distinct from its individual members. The property of the Company is not the property of the shareholders, but a shareholder has merely an interest in the Company arising under its Articles of Association, measured by a sum of money for the purpose of liability and by a share in the profit.16. It has also been urged by the Respondents that the policy prescribed under Article 15(4) of the Constitution of reservation is only an enabling provision and it is for the respective State either to enact a legislation or issue executive instructions providing reservation. Reliance is placed on the judgment in the matter of Dr.GulshanPrakash & others Vs. State of Haryana & others, reported in AIR 2010 SC 288 , for the same purpose. It is the contention of Respondents that the Corporation has provided for 5% seats to project affected persons category. The policy of the State Government prescribing higher age limit is not binding on the Company and the Company can formulate its own resolutions in consonance with its Articles of Association.17. It has also been urged that an identical challenge raised to the very advertisement has been turned down by this Court and as such, these writ petitions need not be entertained.18. Before turning to the judgment concerning challenge to the advertisement no.1/2012, it would be appropriate to refer to the judgment in the matter of Mukund s/o Uttamrao Somde Vs. State of Maharashtra & others, (Writ Petition No.138 of 2010, decided by Division Bench of this Court on 22.01.2010). The advertisement issued by the Respondent-Company bearing no. 1/2009 dated 01.12.2009 prescribing upper age limit of 30 years for open category candidates to fill up the post of Junior Operator, was the subject matter of challenge in the petition. It was the contention of the petitioners therein that the Respondent-Company is obliged to retain maximum age limit of 33 years. In paragraph no.7 of the judgment, the Division Bench has observed thus:7. Having considered the rival submissions, we find merits in the stand taken by the Respondent No.2 that the condition imposed in the advertisement of upper age limit of 30 years while inviting the applications for the concerned posts, is a policy decision of the Respondent No. 2 and the same cannot be lightly interfered with. The scope of judicial review to interfere with the policy matter and in particular, relating to the necessary qualification mentioned therein, would be possible only if the said policy decision was shown to be in violation with some statutory or constitutional provision. No statutory provision has been brought to our notice, which would persuade us to take the view that the policy decision of the Respondent No.2 to restrict upper age limit to 30 years, is in breach of such statutory provision.It has also been observed in the judgment that prospective applicants cannot entertain expectation that for all the times to come, the same selection norms will prevail.19. In Writ Petition No.139 of 2010, decided by the Division Bench at Bombay on 22.01.2010, challenge raised by the petitioners therein in respect of prescribing upper age limit of 30 years by the Company in respect of open category candidates to fill the posts of Junior Operator or Technician was a matter of consideration and the Court, for the reasons recorded in the judgment, has turned down the challenge.20. In Writ Petition No.5741/2012, decided by the Division Bench of this Court on 07.09.2012 (Sharad Tukaram Bhise Vs. State of Maharashtra & another), challenge was raised to the advertisement no.1/2012, which is the very advertisement under challenge in the instant group of petitions. The challenge is confined to the age relaxation so far as candidates belonging to backward class is concerned and it was contended that it should be in tune with age limit prescribed in the Government Resolution dated 17.08.2004 issued by the State Government. The Division Bench, placing reliance on the judgment in the matter of Mukund s/o Uttamrao Somde Vs. State of Maharashtra & others in W.P. No. 138/2010, has turned down the challenge and dismissed the petition. It has been observed in the judgment that, the Government Resolution is only recommendatory and cannot be treated to be binding on the Respondent-Company. The selection process, which has been notified by the Company, will have to be proceeded as per the policy decision of the Company, which has been taken at the highest level by the Board of Directors.21. In another writ petition, taking exception to the very advertisement, decided by the Division Bench of this Court at Bombay, in the matter of Sandip Santaji Hade Vs. Chief Engineer, M.S.E.D.Co.Ltd. (Writ Petition No.6072 of 2012, decided on 2012), challenge raised to the very advertisement i.e. No.1/2012 on the ground of failure to provide age relaxation in consonance with Government Resolution dated 03.02.2007, applicable to project affected persons category, has been turned down by the Division Bench following decision of the Division Bench in the matter of Sharad Tukaram Bhise.22. It is to be noted that since the Division Bench at Bombay has turned down the challenge raised to the very advertisement, the instant petitions, taking exception to the advertisement on the identical grounds, need not be entertained. Since the Division Bench at Bombay has taken a view that the Government Resolution is only recommendatory in nature and cannot be treated as binding on Respondent No.2, instant petitions raising identical challenge do not deserve consideration. It has also to be taken note of that since policy prescribed by the Government under the Resolution has not been adopted by the Respondent-Company nor there is any statutory provision pointed out showing binding nature of the directives, the contentions raised by the petitioners in the group of instant petitions do not deserve acceptance.23. For the reasons stated above, we are of the view that these writ petitions are devoid of substance and deserve to be dismissed. | 0[ds]20. In Writ Petition No.5741/2012, decided by the Division Bench of this Court on 07.09.2012 (Sharad Tukaram Bhise Vs. State of Maharashtraanother), challenge was raised to the advertisement no.1/2012, which is the very advertisement under challenge in the instant group of petitions. The challenge is confined to the age relaxation so far as candidates belonging to backward class is concerned and it was contended that it should be in tune with age limit prescribed in the Government Resolution dated 17.08.2004 issued by the State Government. The Division Bench, placing reliance on the judgment in the matter of Mukund s/o Uttamrao Somde Vs. State of Maharashtraothers in W.P. No. 138/2010, has turned down the challenge and dismissed the petition. It has been observed in the judgment that, the Government Resolution is only recommendatory and cannot be treated to be binding on theThe selection process, which has been notified by the Company, will have to be proceeded as per the policy decision of the Company, which has been taken at the highest level by the Board of Directors.21. In another writ petition, taking exception to the very advertisement, decided by the Division Bench of this Court at Bombay, in the matter of Sandip Santaji Hade Vs. Chief Engineer, M.S.E.D.Co.Ltd. (Writ Petition No.6072 of 2012, decided on 2012), challenge raised to the very advertisement i.e. No.1/2012 on the ground of failure to provide age relaxation in consonance with Government Resolution dated 03.02.2007, applicable to project affected persons category, has been turned down by the Division Bench following decision of the Division Bench in the matter of Sharad Tukaram Bhise.22. It is to be noted that since the Division Bench at Bombay has turned down the challenge raised to the very advertisement, the instant petitions, taking exception to the advertisement on the identical grounds, need not be entertained. Since the Division Bench at Bombay has taken a view that the Government Resolution is only recommendatory in nature and cannot be treated as binding on Respondent No.2, instant petitions raising identical challenge do not deserve consideration. It has also to be taken note of that since policy prescribed by the Government under the Resolution has not been adopted by thenor there is any statutory provision pointed out showing binding nature of the directives, the contentions raised by the petitioners in the group of instant petitions do not deserve acceptance.23. For the reasons stated above, we are of the view that these writ petitions are devoid of substance and deserve to be dismissed. | 0 | 5,692 | 464 | ### Instruction:
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Court has reiterated the principle that the Company registered under the Companies Act is a legal person, separate and distinct from its individual members. The property of the Company is not the property of the shareholders, but a shareholder has merely an interest in the Company arising under its Articles of Association, measured by a sum of money for the purpose of liability and by a share in the profit.16. It has also been urged by the Respondents that the policy prescribed under Article 15(4) of the Constitution of reservation is only an enabling provision and it is for the respective State either to enact a legislation or issue executive instructions providing reservation. Reliance is placed on the judgment in the matter of Dr.GulshanPrakash & others Vs. State of Haryana & others, reported in AIR 2010 SC 288 , for the same purpose. It is the contention of Respondents that the Corporation has provided for 5% seats to project affected persons category. The policy of the State Government prescribing higher age limit is not binding on the Company and the Company can formulate its own resolutions in consonance with its Articles of Association.17. It has also been urged that an identical challenge raised to the very advertisement has been turned down by this Court and as such, these writ petitions need not be entertained.18. Before turning to the judgment concerning challenge to the advertisement no.1/2012, it would be appropriate to refer to the judgment in the matter of Mukund s/o Uttamrao Somde Vs. State of Maharashtra & others, (Writ Petition No.138 of 2010, decided by Division Bench of this Court on 22.01.2010). The advertisement issued by the Respondent-Company bearing no. 1/2009 dated 01.12.2009 prescribing upper age limit of 30 years for open category candidates to fill up the post of Junior Operator, was the subject matter of challenge in the petition. It was the contention of the petitioners therein that the Respondent-Company is obliged to retain maximum age limit of 33 years. In paragraph no.7 of the judgment, the Division Bench has observed thus:7. Having considered the rival submissions, we find merits in the stand taken by the Respondent No.2 that the condition imposed in the advertisement of upper age limit of 30 years while inviting the applications for the concerned posts, is a policy decision of the Respondent No. 2 and the same cannot be lightly interfered with. The scope of judicial review to interfere with the policy matter and in particular, relating to the necessary qualification mentioned therein, would be possible only if the said policy decision was shown to be in violation with some statutory or constitutional provision. No statutory provision has been brought to our notice, which would persuade us to take the view that the policy decision of the Respondent No.2 to restrict upper age limit to 30 years, is in breach of such statutory provision.It has also been observed in the judgment that prospective applicants cannot entertain expectation that for all the times to come, the same selection norms will prevail.19. In Writ Petition No.139 of 2010, decided by the Division Bench at Bombay on 22.01.2010, challenge raised by the petitioners therein in respect of prescribing upper age limit of 30 years by the Company in respect of open category candidates to fill the posts of Junior Operator or Technician was a matter of consideration and the Court, for the reasons recorded in the judgment, has turned down the challenge.20. In Writ Petition No.5741/2012, decided by the Division Bench of this Court on 07.09.2012 (Sharad Tukaram Bhise Vs. State of Maharashtra & another), challenge was raised to the advertisement no.1/2012, which is the very advertisement under challenge in the instant group of petitions. The challenge is confined to the age relaxation so far as candidates belonging to backward class is concerned and it was contended that it should be in tune with age limit prescribed in the Government Resolution dated 17.08.2004 issued by the State Government. The Division Bench, placing reliance on the judgment in the matter of Mukund s/o Uttamrao Somde Vs. State of Maharashtra & others in W.P. No. 138/2010, has turned down the challenge and dismissed the petition. It has been observed in the judgment that, the Government Resolution is only recommendatory and cannot be treated to be binding on the Respondent-Company. The selection process, which has been notified by the Company, will have to be proceeded as per the policy decision of the Company, which has been taken at the highest level by the Board of Directors.21. In another writ petition, taking exception to the very advertisement, decided by the Division Bench of this Court at Bombay, in the matter of Sandip Santaji Hade Vs. Chief Engineer, M.S.E.D.Co.Ltd. (Writ Petition No.6072 of 2012, decided on 2012), challenge raised to the very advertisement i.e. No.1/2012 on the ground of failure to provide age relaxation in consonance with Government Resolution dated 03.02.2007, applicable to project affected persons category, has been turned down by the Division Bench following decision of the Division Bench in the matter of Sharad Tukaram Bhise.22. It is to be noted that since the Division Bench at Bombay has turned down the challenge raised to the very advertisement, the instant petitions, taking exception to the advertisement on the identical grounds, need not be entertained. Since the Division Bench at Bombay has taken a view that the Government Resolution is only recommendatory in nature and cannot be treated as binding on Respondent No.2, instant petitions raising identical challenge do not deserve consideration. It has also to be taken note of that since policy prescribed by the Government under the Resolution has not been adopted by the Respondent-Company nor there is any statutory provision pointed out showing binding nature of the directives, the contentions raised by the petitioners in the group of instant petitions do not deserve acceptance.23. For the reasons stated above, we are of the view that these writ petitions are devoid of substance and deserve to be dismissed.
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### Explanation:
20. In Writ Petition No.5741/2012, decided by the Division Bench of this Court on 07.09.2012 (Sharad Tukaram Bhise Vs. State of Maharashtraanother), challenge was raised to the advertisement no.1/2012, which is the very advertisement under challenge in the instant group of petitions. The challenge is confined to the age relaxation so far as candidates belonging to backward class is concerned and it was contended that it should be in tune with age limit prescribed in the Government Resolution dated 17.08.2004 issued by the State Government. The Division Bench, placing reliance on the judgment in the matter of Mukund s/o Uttamrao Somde Vs. State of Maharashtraothers in W.P. No. 138/2010, has turned down the challenge and dismissed the petition. It has been observed in the judgment that, the Government Resolution is only recommendatory and cannot be treated to be binding on theThe selection process, which has been notified by the Company, will have to be proceeded as per the policy decision of the Company, which has been taken at the highest level by the Board of Directors.21. In another writ petition, taking exception to the very advertisement, decided by the Division Bench of this Court at Bombay, in the matter of Sandip Santaji Hade Vs. Chief Engineer, M.S.E.D.Co.Ltd. (Writ Petition No.6072 of 2012, decided on 2012), challenge raised to the very advertisement i.e. No.1/2012 on the ground of failure to provide age relaxation in consonance with Government Resolution dated 03.02.2007, applicable to project affected persons category, has been turned down by the Division Bench following decision of the Division Bench in the matter of Sharad Tukaram Bhise.22. It is to be noted that since the Division Bench at Bombay has turned down the challenge raised to the very advertisement, the instant petitions, taking exception to the advertisement on the identical grounds, need not be entertained. Since the Division Bench at Bombay has taken a view that the Government Resolution is only recommendatory in nature and cannot be treated as binding on Respondent No.2, instant petitions raising identical challenge do not deserve consideration. It has also to be taken note of that since policy prescribed by the Government under the Resolution has not been adopted by thenor there is any statutory provision pointed out showing binding nature of the directives, the contentions raised by the petitioners in the group of instant petitions do not deserve acceptance.23. For the reasons stated above, we are of the view that these writ petitions are devoid of substance and deserve to be dismissed.
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Kirloskar Oil Engines Ltd Vs. Their Workmen | claim for the deduction of income-tax payable by it on the profits of the bonus year according to the formula. There is no dispute about the material facts in respect of this claim. If the income-tax payable by the appellant on the amount of profits ascertained after deducting from the gross profits the admissible depreciation claimed is allowed to the appellant, it would amount to Rs. 2.25 lakhs. This was and is conceded by the respondents. They, however, urged before the tribunal that for the previous year ending on 31-3-1953, the appellant had sustained a loss of Rs. 9 lakhs and under S. 24 (2) of the Income-tax Act the appellant would be entitled to absorb the said loss in the profits of this year and as a consequence it would in fact not be liable to pay any tax for the relevant year. The respondents case was that in such a case the appellant was not entitled to claim any deduction on account of income-tax. This argument has been accepted by the tribunal and it has disallowed the whole of the claim made by the appellant in respect of the whole of the item of income-tax. 5. In Associated Cement Companies Ltd., Bombay v. Their Workmen, Civil Appeals Nos. 459 and 460 of 1957, D/-5-5-l959: (AIR 1959 SC 967 ),we have considered this point and we have held that in working out the Full Bench formula the employer is entitled to claim the appropriate amount of income-tax payable on the profits determined under the formula even though under the provisions of the aforesaid section of the Income-tax Act he may not be required to pay the said tax.In view of the said decision we must hold that the tribunal was in error in not allowing the appellants claim for deduction of Rs. 2.25 lakhs as a prior charge under the item of income-tax payable for the relevant year. It has been fairly conceded by Mr. Phadke, for the respondents, and we think rightly, that if this item is allowed to the appellant the conclusion of the tribunal that there was available surplus from which bonus could be paid to the respondents cannot be sustained. The award shows that the available surplus from which bonus has been ordered to be paid is Rs. 2.26 lakhs. If Rs. 2.25 lakhs is deducted from the surplus we are left with a figure of only .01 lakhs whereas the amount ordered to be paid by way of bonus is 0.37 lakhs. 6. There is another point on which the appellant has attacked the award under appeal. The appellant had made a claim for interest it 4 per cent. on depreciation fund used as working capital. This claim amounts to 0.32 lakhs. The tribunal has disallowed this claim on the ground that the employer cannot claim any allowance on depreciation fund.This point also has been considered by us in the case of A. C. C. Ltd., (AIR 1959 SC 967 ) (supra), and we have held that if it is shown that the amount in the depreciation fund was in fact available to the employer and has been used by him as working capital he would be entitled to claim a return on it. At what rate of interest the return should be allowed is a question of fact to be determined in each case in the light of relevant circumstances.It is true that in this case the appellant has not filed any statement on oath showing that the amount from the depreciation fund on which it claims a return at 4 per cent. was available to it and has in fact been used as working capital. On the other hand a claim for .32 lakhs was made by way of return on the said fund and it was not disputed by the respondents on the ground that the fund had not been used as working capital or was in fact not available to the appellant. It appears that it was known to the parties that the tribunal had for some time past been taking the view that depreciation fund cannot earn any return even though it is used as working capital. That explains for the state of the pleadings in the present case. However, it is unnecessary to decide whether the appellant is entitled to any return on the depreciation fund in this case because, as we have just indicated, if only the amount of income-tax claimed by it is allowed that itself would entitle the appellant to succeed in this appeal. 7. Mr. Naunit Lal who appeared for respondent 2, however, attempted to argue that the tribunal was not justified in awarding to the appellant Rs. 1.39 lakhs by way of provision for rehabilitation. His contention was that a claim for rehabilitation had not been established by the appellant by proper evidence. We do not think there is any substance in this argument. Mr. Mandke, the appellants Works Manager, has made an affidavit in the proceedings before the tribunal that he had prepared Ex. C. 15 from his personal knowledge and that the said statement correctly showed the life of the machinery employed by the appellant and the period after which it would require to be replaced. The said witness had also filed other statements in support of the appellants claim including Ex. C. 8 which explain the method adopted by the witness for arriving at the amount of rehabilitation claimed by the appellant. It appears that the appellant offered this witness for examination before the tribunal but the respondents did not desire to cross-examine him and so he did not step into the witness-box.That is why the tribunal held that the estimate given by the appellant for rehabilitation, replacement and modernisation should be accepted and the quota asked for by the appellant should be allowed from out of profits. On these facts it is impossible to accept the argument that the claim for rehabilitation has not been proved by the appellant. | 1[ds]If the income-tax payable by the appellant on the amount of profits ascertained after deducting from the gross profits the admissible depreciation claimed is allowed to the appellant, it would amount to Rs. 2.25 lakhs5. In Associated Cement Companies Ltd., Bombay v. Their Workmen, Civil Appeals Nos. 459 and 460 of 1957, D/-5-5-l959: (AIR 1959 SC 967 ),we have considered this point and we have held that in working out the Full Bench formula the employer is entitled to claim the appropriate amount of income-tax payable on the profits determined under the formula even though under the provisions of the aforesaid section of the Income-tax Act he may not be required to pay the said tax.In view of the said decision we must hold that the tribunal was in error in not allowing the appellants claim for deduction of Rs. 2.25 lakhs as a prior charge under the item of income-tax payable for the relevant yearIt is true that in this case the appellant has not filed any statement on oath showing that the amount from the depreciation fund on which it claims a return at 4 per cent. was available to it and has in fact been used as working capital. On the other hand a claim for .32 lakhs was made by way of return on the said fund and it was not disputed by the respondents on the ground that the fund had not been used as working capital or was in fact not available to the appellant. It appears that it was known to the parties that the tribunal had for some time past been taking the view that depreciation fund cannot earn any return even though it is used as working capital. That explains for the state of the pleadings in the present case. However, it is unnecessary to decide whether the appellant is entitled to any return on the depreciation fund in this case because, as we have just indicated, if only the amount of income-tax claimed by it is allowed that itself would entitle the appellant to succeed in this appealMr. Mandke, the appellants Works Manager, has made an affidavit in the proceedings before the tribunal that he had prepared Ex. C. 15 from his personal knowledge and that the said statement correctly showed the life of the machinery employed by the appellant and the period after which it would require to be replaced. The said witness had also filed other statements in support of the appellants claim including Ex. C. 8 which explain the method adopted by the witness for arriving at the amount of rehabilitation claimed by the appellant. It appears that the appellant offered this witness for examination before the tribunal but the respondents did not desire to cross-examine him and so he did not step into the witness-box.That is why the tribunal held that the estimate given by the appellant for rehabilitation, replacement and modernisation should be accepted and the quota asked for by the appellant should be allowed from out of profits. On these facts it is impossible to accept the argument that the claim for rehabilitation has not been proved by the appellant. | 1 | 1,603 | 561 | ### Instruction:
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claim for the deduction of income-tax payable by it on the profits of the bonus year according to the formula. There is no dispute about the material facts in respect of this claim. If the income-tax payable by the appellant on the amount of profits ascertained after deducting from the gross profits the admissible depreciation claimed is allowed to the appellant, it would amount to Rs. 2.25 lakhs. This was and is conceded by the respondents. They, however, urged before the tribunal that for the previous year ending on 31-3-1953, the appellant had sustained a loss of Rs. 9 lakhs and under S. 24 (2) of the Income-tax Act the appellant would be entitled to absorb the said loss in the profits of this year and as a consequence it would in fact not be liable to pay any tax for the relevant year. The respondents case was that in such a case the appellant was not entitled to claim any deduction on account of income-tax. This argument has been accepted by the tribunal and it has disallowed the whole of the claim made by the appellant in respect of the whole of the item of income-tax. 5. In Associated Cement Companies Ltd., Bombay v. Their Workmen, Civil Appeals Nos. 459 and 460 of 1957, D/-5-5-l959: (AIR 1959 SC 967 ),we have considered this point and we have held that in working out the Full Bench formula the employer is entitled to claim the appropriate amount of income-tax payable on the profits determined under the formula even though under the provisions of the aforesaid section of the Income-tax Act he may not be required to pay the said tax.In view of the said decision we must hold that the tribunal was in error in not allowing the appellants claim for deduction of Rs. 2.25 lakhs as a prior charge under the item of income-tax payable for the relevant year. It has been fairly conceded by Mr. Phadke, for the respondents, and we think rightly, that if this item is allowed to the appellant the conclusion of the tribunal that there was available surplus from which bonus could be paid to the respondents cannot be sustained. The award shows that the available surplus from which bonus has been ordered to be paid is Rs. 2.26 lakhs. If Rs. 2.25 lakhs is deducted from the surplus we are left with a figure of only .01 lakhs whereas the amount ordered to be paid by way of bonus is 0.37 lakhs. 6. There is another point on which the appellant has attacked the award under appeal. The appellant had made a claim for interest it 4 per cent. on depreciation fund used as working capital. This claim amounts to 0.32 lakhs. The tribunal has disallowed this claim on the ground that the employer cannot claim any allowance on depreciation fund.This point also has been considered by us in the case of A. C. C. Ltd., (AIR 1959 SC 967 ) (supra), and we have held that if it is shown that the amount in the depreciation fund was in fact available to the employer and has been used by him as working capital he would be entitled to claim a return on it. At what rate of interest the return should be allowed is a question of fact to be determined in each case in the light of relevant circumstances.It is true that in this case the appellant has not filed any statement on oath showing that the amount from the depreciation fund on which it claims a return at 4 per cent. was available to it and has in fact been used as working capital. On the other hand a claim for .32 lakhs was made by way of return on the said fund and it was not disputed by the respondents on the ground that the fund had not been used as working capital or was in fact not available to the appellant. It appears that it was known to the parties that the tribunal had for some time past been taking the view that depreciation fund cannot earn any return even though it is used as working capital. That explains for the state of the pleadings in the present case. However, it is unnecessary to decide whether the appellant is entitled to any return on the depreciation fund in this case because, as we have just indicated, if only the amount of income-tax claimed by it is allowed that itself would entitle the appellant to succeed in this appeal. 7. Mr. Naunit Lal who appeared for respondent 2, however, attempted to argue that the tribunal was not justified in awarding to the appellant Rs. 1.39 lakhs by way of provision for rehabilitation. His contention was that a claim for rehabilitation had not been established by the appellant by proper evidence. We do not think there is any substance in this argument. Mr. Mandke, the appellants Works Manager, has made an affidavit in the proceedings before the tribunal that he had prepared Ex. C. 15 from his personal knowledge and that the said statement correctly showed the life of the machinery employed by the appellant and the period after which it would require to be replaced. The said witness had also filed other statements in support of the appellants claim including Ex. C. 8 which explain the method adopted by the witness for arriving at the amount of rehabilitation claimed by the appellant. It appears that the appellant offered this witness for examination before the tribunal but the respondents did not desire to cross-examine him and so he did not step into the witness-box.That is why the tribunal held that the estimate given by the appellant for rehabilitation, replacement and modernisation should be accepted and the quota asked for by the appellant should be allowed from out of profits. On these facts it is impossible to accept the argument that the claim for rehabilitation has not been proved by the appellant.
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### Explanation:
If the income-tax payable by the appellant on the amount of profits ascertained after deducting from the gross profits the admissible depreciation claimed is allowed to the appellant, it would amount to Rs. 2.25 lakhs5. In Associated Cement Companies Ltd., Bombay v. Their Workmen, Civil Appeals Nos. 459 and 460 of 1957, D/-5-5-l959: (AIR 1959 SC 967 ),we have considered this point and we have held that in working out the Full Bench formula the employer is entitled to claim the appropriate amount of income-tax payable on the profits determined under the formula even though under the provisions of the aforesaid section of the Income-tax Act he may not be required to pay the said tax.In view of the said decision we must hold that the tribunal was in error in not allowing the appellants claim for deduction of Rs. 2.25 lakhs as a prior charge under the item of income-tax payable for the relevant yearIt is true that in this case the appellant has not filed any statement on oath showing that the amount from the depreciation fund on which it claims a return at 4 per cent. was available to it and has in fact been used as working capital. On the other hand a claim for .32 lakhs was made by way of return on the said fund and it was not disputed by the respondents on the ground that the fund had not been used as working capital or was in fact not available to the appellant. It appears that it was known to the parties that the tribunal had for some time past been taking the view that depreciation fund cannot earn any return even though it is used as working capital. That explains for the state of the pleadings in the present case. However, it is unnecessary to decide whether the appellant is entitled to any return on the depreciation fund in this case because, as we have just indicated, if only the amount of income-tax claimed by it is allowed that itself would entitle the appellant to succeed in this appealMr. Mandke, the appellants Works Manager, has made an affidavit in the proceedings before the tribunal that he had prepared Ex. C. 15 from his personal knowledge and that the said statement correctly showed the life of the machinery employed by the appellant and the period after which it would require to be replaced. The said witness had also filed other statements in support of the appellants claim including Ex. C. 8 which explain the method adopted by the witness for arriving at the amount of rehabilitation claimed by the appellant. It appears that the appellant offered this witness for examination before the tribunal but the respondents did not desire to cross-examine him and so he did not step into the witness-box.That is why the tribunal held that the estimate given by the appellant for rehabilitation, replacement and modernisation should be accepted and the quota asked for by the appellant should be allowed from out of profits. On these facts it is impossible to accept the argument that the claim for rehabilitation has not been proved by the appellant.
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APMC Yashwanthapura through its Secretary Vs. M/s. Selva Foods through its Managing Partner | market fee can not be collected on the produce which the respondent has purchased from outside the State as an importer and processed within the area of the appellant Market Committee. In support of his contentions, the learned counsel has placed reliance on the judgment in the case of Gujarat Ambuja Exports Limited and Another v. State of Uttarakhand and Others (2016) 3 SCC 601 and also the judgment in the case of ITC Ltd., v. State of Karnataka and Others 2005 SCC OnLine Kar 86 : 2005 AIHC 2950. 11. In this case, it is not in dispute that the respondent is a trader as defined under provisions of the Act and has purchased spices, which are notified as agricultural produce, not only from market areas within the State of Karnataka but also from outside the State of Karnataka. After such imports, they process the goods and sell the processed goods within the market area. Even the processed goods are notified items as per the schedule under the Act. 12. A reading of Section 65 of the Act, which is the charging section, it is clear that, the Market Committee shall levy and collect the market fees from every buyer in respect of agricultural produce bought by such buyer in the market area, at such rate as may be specified in the bye-laws. As per the second proviso to Section 65(2) of the Act, if on any agricultural produce market fee has already been levied and collected under sub-Section (2) in any market area within the State and such agricultural produce is processed and sold in any other market area within the State or exported outside the State, it shall be exempted from the levy of market fee. However, a reading of the explanation, makes it clear, the applicability of second proviso excluded to any agricultural produce imported from outside the State and processed and sold in any market area within the State; or any other agricultural produce imported or caused to be imported by any person either on his own account or as an agent for another person, from outside the State into any market area within the State for the purpose of processing or manufacturing except for ones own domestic consumption. Further, as per Section (2-A)(ia), if the produce is sold by an importer to the purchaser, the importer to realise the market fee from the purchaser and shall be liable to pay the same to the committee. A harmonious reading of the Section 65(2) of the Act, its second proviso, and explanation to the same and clause (2-A)(ia), makes it clear that if any dealer imports agricultural produce from outside the State into any market area within the State of Karnataka for the purpose of processing and sale, the applicability of second proviso to sub-section (2) of Section 65 of the Act stands excluded. The explanation to sub-section (2) of Section 65 of the Act, makes it clear that even the processed items from the agricultural produce imported from outside the State of Karnataka, attract market fee on sales within the market area of the appellant – Market Committee. It is also clear from the aforesaid Section, it is the obligation of the importer to realise the market fee from the purchaser and pay the same to the Market Committee. 13. In the case of G. Giridhar Prabhu & Ors.1 while interpreting the provisions of Karnataka Agricultural Produce Marketing Regulation Act, 1966 this Court has held that a person purchasing the raw cashew nuts, then extracting cashew kernels by means of manufacturing process for the purpose of sale in domestic and international market, is held to be a trader within the meaning of sub-section (2) of Section 48 or importer under Section 2(14-A) of the Act, therefore, would be liable to collect the market fee from his buyers and to pay such fees to the Marketing Committee. 14. In the case of Gujarat Ambuja Exports Limited & Anr. (2016) 3 SCC 601 while considering the provisions of Uttarakhand Agricultural Produce Marketing (Development and Regulation) Act, this Court has held that agricultural produce which is brought into market area not for the purpose of sale, but only for the purpose of manufacture or further processing activities, cannot be subjected to market fees. Similarly, in the case of ITC Ltd. 2005 SCC OnLine Kar 86 : 2005 AIHC 2950 , learned Single Judge of the High Court of Karnataka has held that mere activity of stocking and processing of even the imported notified agricultural produces, which are imported into the market area do not attract payment of market fees. 15. We also endorse the view in the aforesaid judgments but in the case on hand respondent is a buyer as defined under sub-section (2) of Section 65 of the Act and we cannot ignore the second proviso and Explanation to Section 65(2) of the Act. It is not a case where the respondent is denying sale of the imported agricultural produce within the market area of the appellant after processing. In that view of the matter it is not entitled for exemption from payment of market fees. At the same time we make it clear that if one merely imports notified agricultural produce from outside the State for the purpose of cleaning and processing without selling the processed produce within the market area is not liable to pay market fee. As much as in this case without disputing the factum of sale within the market area post the import, the respondent has defended the proceedings only on the ground that once the agricultural produce is processed it will not attract market fee as such the same cannot be accepted. It is the sale within the market area that attracts levy of market fee, and not the first purchase that was outside the market area. Notably the goods sold are also notified agricultural produce specified in the Schedule. Validity of the item under the Schedule is not under challenge. | 1[ds]11. In this case, it is not in dispute that the respondent is a trader as defined under provisions of the Act and has purchased spices, which are notified as agricultural produce, not only from market areas within the State of Karnataka but also from outside the State of Karnataka. After such imports, they process the goods and sell the processed goods within the market area. Even the processed goods are notified items as per the schedule under the Act.12. A reading of Section 65 of the Act, which is the charging section, it is clear that, the Market Committee shall levy and collect the market fees from every buyer in respect of agricultural produce bought by such buyer in the market area, at such rate as may be specified in the bye-laws. As per the second proviso to Section 65(2) of the Act, if on any agricultural produce market fee has already been levied and collected under sub-Section (2) in any market area within the State and such agricultural produce is processed and sold in any other market area within the State or exported outside the State, it shall be exempted from the levy of market fee. However, a reading of the explanation, makes it clear, the applicability of second proviso excluded to any agricultural produce imported from outside the State and processed and sold in any market area within the State; or any other agricultural produce imported or caused to be imported by any person either on his own account or as an agent for another person, from outside the State into any market area within the State for the purpose of processing or manufacturing except for ones own domestic consumption. Further, as per Section (2-A)(ia), if the produce is sold by an importer to the purchaser, the importer to realise the market fee from the purchaser and shall be liable to pay the same to the committee. A harmonious reading of the Section 65(2) of the Act, its second proviso, and explanation to the same and clause (2-A)(ia), makes it clear that if any dealer imports agricultural produce from outside the State into any market area within the State of Karnataka for the purpose of processing and sale, the applicability of second proviso to sub-section (2) of Section 65 of the Act stands excluded. The explanation to sub-section (2) of Section 65 of the Act, makes it clear that even the processed items from the agricultural produce imported from outside the State of Karnataka, attract market fee on sales within the market area of the appellant – Market Committee. It is also clear from the aforesaid Section, it is the obligation of the importer to realise the market fee from the purchaser and pay the same to the Market Committee.13. In the case of G. Giridhar Prabhu & Ors.1 while interpreting the provisions of Karnataka Agricultural Produce Marketing Regulation Act, 1966 this Court has held that a person purchasing the raw cashew nuts, then extracting cashew kernels by means of manufacturing process for the purpose of sale in domestic and international market, is held to be a trader within the meaning of sub-section (2) of Section 48 or importer under Section 2(14-A) of the Act, therefore, would be liable to collect the market fee from his buyers and to pay such fees to the Marketing Committee.14. In the case of Gujarat Ambuja Exports Limited & Anr. (2016) 3 SCC 601 while considering the provisions of Uttarakhand Agricultural Produce Marketing (Development and Regulation) Act, this Court has held that agricultural produce which is brought into market area not for the purpose of sale, but only for the purpose of manufacture or further processing activities, cannot be subjected to market fees. Similarly, in the case of ITC Ltd. 2005 SCC OnLine Kar 86 : 2005 AIHC 2950 , learned Single Judge of the High Court of Karnataka has held that mere activity of stocking and processing of even the imported notified agricultural produces, which are imported into the market area do not attract payment of market fees.15. We also endorse the view in the aforesaid judgments but in the case on hand respondent is a buyer as defined under sub-section (2) of Section 65 of the Act and we cannot ignore the second proviso and Explanation to Section 65(2) of the Act. It is not a case where the respondent is denying sale of the imported agricultural produce within the market area of the appellant after processing. In that view of the matter it is not entitled for exemption from payment of market fees. At the same time we make it clear that if one merely imports notified agricultural produce from outside the State for the purpose of cleaning and processing without selling the processed produce within the market area is not liable to pay market fee. As much as in this case without disputing the factum of sale within the market area post the import, the respondent has defended the proceedings only on the ground that once the agricultural produce is processed it will not attract market fee as such the same cannot be accepted. It is the sale within the market area that attracts levy of market fee, and not the first purchase that was outside the market area. Notably the goods sold are also notified agricultural produce specified in the Schedule. Validity of the item under the Schedule is not under challenge. | 1 | 2,921 | 1,009 | ### 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:
market fee can not be collected on the produce which the respondent has purchased from outside the State as an importer and processed within the area of the appellant Market Committee. In support of his contentions, the learned counsel has placed reliance on the judgment in the case of Gujarat Ambuja Exports Limited and Another v. State of Uttarakhand and Others (2016) 3 SCC 601 and also the judgment in the case of ITC Ltd., v. State of Karnataka and Others 2005 SCC OnLine Kar 86 : 2005 AIHC 2950. 11. In this case, it is not in dispute that the respondent is a trader as defined under provisions of the Act and has purchased spices, which are notified as agricultural produce, not only from market areas within the State of Karnataka but also from outside the State of Karnataka. After such imports, they process the goods and sell the processed goods within the market area. Even the processed goods are notified items as per the schedule under the Act. 12. A reading of Section 65 of the Act, which is the charging section, it is clear that, the Market Committee shall levy and collect the market fees from every buyer in respect of agricultural produce bought by such buyer in the market area, at such rate as may be specified in the bye-laws. As per the second proviso to Section 65(2) of the Act, if on any agricultural produce market fee has already been levied and collected under sub-Section (2) in any market area within the State and such agricultural produce is processed and sold in any other market area within the State or exported outside the State, it shall be exempted from the levy of market fee. However, a reading of the explanation, makes it clear, the applicability of second proviso excluded to any agricultural produce imported from outside the State and processed and sold in any market area within the State; or any other agricultural produce imported or caused to be imported by any person either on his own account or as an agent for another person, from outside the State into any market area within the State for the purpose of processing or manufacturing except for ones own domestic consumption. Further, as per Section (2-A)(ia), if the produce is sold by an importer to the purchaser, the importer to realise the market fee from the purchaser and shall be liable to pay the same to the committee. A harmonious reading of the Section 65(2) of the Act, its second proviso, and explanation to the same and clause (2-A)(ia), makes it clear that if any dealer imports agricultural produce from outside the State into any market area within the State of Karnataka for the purpose of processing and sale, the applicability of second proviso to sub-section (2) of Section 65 of the Act stands excluded. The explanation to sub-section (2) of Section 65 of the Act, makes it clear that even the processed items from the agricultural produce imported from outside the State of Karnataka, attract market fee on sales within the market area of the appellant – Market Committee. It is also clear from the aforesaid Section, it is the obligation of the importer to realise the market fee from the purchaser and pay the same to the Market Committee. 13. In the case of G. Giridhar Prabhu & Ors.1 while interpreting the provisions of Karnataka Agricultural Produce Marketing Regulation Act, 1966 this Court has held that a person purchasing the raw cashew nuts, then extracting cashew kernels by means of manufacturing process for the purpose of sale in domestic and international market, is held to be a trader within the meaning of sub-section (2) of Section 48 or importer under Section 2(14-A) of the Act, therefore, would be liable to collect the market fee from his buyers and to pay such fees to the Marketing Committee. 14. In the case of Gujarat Ambuja Exports Limited & Anr. (2016) 3 SCC 601 while considering the provisions of Uttarakhand Agricultural Produce Marketing (Development and Regulation) Act, this Court has held that agricultural produce which is brought into market area not for the purpose of sale, but only for the purpose of manufacture or further processing activities, cannot be subjected to market fees. Similarly, in the case of ITC Ltd. 2005 SCC OnLine Kar 86 : 2005 AIHC 2950 , learned Single Judge of the High Court of Karnataka has held that mere activity of stocking and processing of even the imported notified agricultural produces, which are imported into the market area do not attract payment of market fees. 15. We also endorse the view in the aforesaid judgments but in the case on hand respondent is a buyer as defined under sub-section (2) of Section 65 of the Act and we cannot ignore the second proviso and Explanation to Section 65(2) of the Act. It is not a case where the respondent is denying sale of the imported agricultural produce within the market area of the appellant after processing. In that view of the matter it is not entitled for exemption from payment of market fees. At the same time we make it clear that if one merely imports notified agricultural produce from outside the State for the purpose of cleaning and processing without selling the processed produce within the market area is not liable to pay market fee. As much as in this case without disputing the factum of sale within the market area post the import, the respondent has defended the proceedings only on the ground that once the agricultural produce is processed it will not attract market fee as such the same cannot be accepted. It is the sale within the market area that attracts levy of market fee, and not the first purchase that was outside the market area. Notably the goods sold are also notified agricultural produce specified in the Schedule. Validity of the item under the Schedule is not under challenge.
### Response:
1
### Explanation:
11. In this case, it is not in dispute that the respondent is a trader as defined under provisions of the Act and has purchased spices, which are notified as agricultural produce, not only from market areas within the State of Karnataka but also from outside the State of Karnataka. After such imports, they process the goods and sell the processed goods within the market area. Even the processed goods are notified items as per the schedule under the Act.12. A reading of Section 65 of the Act, which is the charging section, it is clear that, the Market Committee shall levy and collect the market fees from every buyer in respect of agricultural produce bought by such buyer in the market area, at such rate as may be specified in the bye-laws. As per the second proviso to Section 65(2) of the Act, if on any agricultural produce market fee has already been levied and collected under sub-Section (2) in any market area within the State and such agricultural produce is processed and sold in any other market area within the State or exported outside the State, it shall be exempted from the levy of market fee. However, a reading of the explanation, makes it clear, the applicability of second proviso excluded to any agricultural produce imported from outside the State and processed and sold in any market area within the State; or any other agricultural produce imported or caused to be imported by any person either on his own account or as an agent for another person, from outside the State into any market area within the State for the purpose of processing or manufacturing except for ones own domestic consumption. Further, as per Section (2-A)(ia), if the produce is sold by an importer to the purchaser, the importer to realise the market fee from the purchaser and shall be liable to pay the same to the committee. A harmonious reading of the Section 65(2) of the Act, its second proviso, and explanation to the same and clause (2-A)(ia), makes it clear that if any dealer imports agricultural produce from outside the State into any market area within the State of Karnataka for the purpose of processing and sale, the applicability of second proviso to sub-section (2) of Section 65 of the Act stands excluded. The explanation to sub-section (2) of Section 65 of the Act, makes it clear that even the processed items from the agricultural produce imported from outside the State of Karnataka, attract market fee on sales within the market area of the appellant – Market Committee. It is also clear from the aforesaid Section, it is the obligation of the importer to realise the market fee from the purchaser and pay the same to the Market Committee.13. In the case of G. Giridhar Prabhu & Ors.1 while interpreting the provisions of Karnataka Agricultural Produce Marketing Regulation Act, 1966 this Court has held that a person purchasing the raw cashew nuts, then extracting cashew kernels by means of manufacturing process for the purpose of sale in domestic and international market, is held to be a trader within the meaning of sub-section (2) of Section 48 or importer under Section 2(14-A) of the Act, therefore, would be liable to collect the market fee from his buyers and to pay such fees to the Marketing Committee.14. In the case of Gujarat Ambuja Exports Limited & Anr. (2016) 3 SCC 601 while considering the provisions of Uttarakhand Agricultural Produce Marketing (Development and Regulation) Act, this Court has held that agricultural produce which is brought into market area not for the purpose of sale, but only for the purpose of manufacture or further processing activities, cannot be subjected to market fees. Similarly, in the case of ITC Ltd. 2005 SCC OnLine Kar 86 : 2005 AIHC 2950 , learned Single Judge of the High Court of Karnataka has held that mere activity of stocking and processing of even the imported notified agricultural produces, which are imported into the market area do not attract payment of market fees.15. We also endorse the view in the aforesaid judgments but in the case on hand respondent is a buyer as defined under sub-section (2) of Section 65 of the Act and we cannot ignore the second proviso and Explanation to Section 65(2) of the Act. It is not a case where the respondent is denying sale of the imported agricultural produce within the market area of the appellant after processing. In that view of the matter it is not entitled for exemption from payment of market fees. At the same time we make it clear that if one merely imports notified agricultural produce from outside the State for the purpose of cleaning and processing without selling the processed produce within the market area is not liable to pay market fee. As much as in this case without disputing the factum of sale within the market area post the import, the respondent has defended the proceedings only on the ground that once the agricultural produce is processed it will not attract market fee as such the same cannot be accepted. It is the sale within the market area that attracts levy of market fee, and not the first purchase that was outside the market area. Notably the goods sold are also notified agricultural produce specified in the Schedule. Validity of the item under the Schedule is not under challenge.
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The Central Provident Fund Commissioner, New Delhi Vs. Lala J.R. Education Society | Kurian Joseph, J.1. Delay condoned.2. Leave granted.3. Appellants are aggrieved since the application filed under Order VII, Rule 11, CPC has been rejected.4. According to the appellants, the respondents having exhausted all the remedies under the Employees Provident Funds and Miscellaneous Provisions Act, 1952, cannot thereafter approach the Civil Court, which is barred under Section 7L(4) of the Employees Provident Funds and Miscellaneous Provisions Act, 1952.5. On an application filed under Order VII, Rule 11, CPC, the Civil Court can only see the pleadings in the plaint and not anything else including written statement.6. The main grievance urged in the plaint is that the procedure under the Act has not been followed and, therefore, the appellants are entitled to file a suit. If that be so, the plaintiff is entitled to file a suit, as held by this Court in the case of Dhulabhai and Others v. The State of Madhya Pradesh and Anr. reported in (1968) 3 SCR 662. 7. According to the appellants, the respondents have suppressed crucial facts in the plaint, which if seen, the suit is only to be dismissed at the threshold. Rejection of a plaint on institutional grounds is different from dismissal of a suit at pre-trial stage on the ground of maintainability. For dismissal on a preliminary issue, the Court is entitled and liable to look into the entire documents including those furnished by the defendant.8. In view of the above observations, the | 0[ds]Rejection of a plaint on institutional grounds is different from dismissal of a suit at pre-trial stage on the ground of maintainability. For dismissal on a preliminary issue, the Court is entitled and liable to look into the entire documents including those furnished by the defendant. | 0 | 279 | 53 | ### 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:
Kurian Joseph, J.1. Delay condoned.2. Leave granted.3. Appellants are aggrieved since the application filed under Order VII, Rule 11, CPC has been rejected.4. According to the appellants, the respondents having exhausted all the remedies under the Employees Provident Funds and Miscellaneous Provisions Act, 1952, cannot thereafter approach the Civil Court, which is barred under Section 7L(4) of the Employees Provident Funds and Miscellaneous Provisions Act, 1952.5. On an application filed under Order VII, Rule 11, CPC, the Civil Court can only see the pleadings in the plaint and not anything else including written statement.6. The main grievance urged in the plaint is that the procedure under the Act has not been followed and, therefore, the appellants are entitled to file a suit. If that be so, the plaintiff is entitled to file a suit, as held by this Court in the case of Dhulabhai and Others v. The State of Madhya Pradesh and Anr. reported in (1968) 3 SCR 662. 7. According to the appellants, the respondents have suppressed crucial facts in the plaint, which if seen, the suit is only to be dismissed at the threshold. Rejection of a plaint on institutional grounds is different from dismissal of a suit at pre-trial stage on the ground of maintainability. For dismissal on a preliminary issue, the Court is entitled and liable to look into the entire documents including those furnished by the defendant.8. In view of the above observations, the
### Response:
0
### Explanation:
Rejection of a plaint on institutional grounds is different from dismissal of a suit at pre-trial stage on the ground of maintainability. For dismissal on a preliminary issue, the Court is entitled and liable to look into the entire documents including those furnished by the defendant.
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M/S. J. K. Cotton Spinning & Weaving Nulls Co. Ltd Vs. Sales Tax Officer, Kanpur And Another | put on rolls, dyed, calendered and pressed. All these processes would be regarded as integrated processes and included "in the manufacture" of cloth. It would be difficult to regard goods used only in the process of weaving cloth and not goods used in the anterior processes as goods used in the manufacture of cloth. To read the expression "in the manufacture" of cloth in that restricted sense, would raise many anomalies. Raw cotton and machinery for weaving cotton and even vehicles for transporting raw and finished goods would qualify under R. 13, but not spinning machinery, without which the business cannot be carried on. In our judgment, R. 13 does not justify the importation of restrictions which are not clearly exprssed, nor imperatively intended. Goods used as equipment, as tools, as stores, as spare parts, or as accessories in the manufacture or processing of goods, in mining, and in the generation and distribution of power need not, to qualify for special treatment under S.8 (1), be ingredients or commodities used in the processes, nor must they be directly and actually needed for "turning out or the creation of goods."9. In our judgment if a process or activity is so integrally related to the ultimate manufacture of goods so that without that process or activity manufacture may, even if theoretically possible, be commercially inexpedient goods intended for use in the process or activity as specified in R.13 will quality for special treatment.This is not to say that every category of goods "in connection with" manufacture of, or "in relation to" manufacture, or which facilitates the conduct the business of manufacture will be included within Rule 13. Attention in this connection may be invited to a judgment of this Court in which it was held that vehicles used by a Company (which mined ore and turned out copper in carrying on activities as a miner and as a manufacture) fell within Rule 13, even if the vehicle were used merely for removing ore from the mine to the factory, and finished goods from the factory to the place of storage. Spare parts and accessories required for the effective operation of those vehicles were also held to fall within Rule 13. See Indian Copper Corporation Ltd. v. Commr. of Commercial Taxes, Bihar, C.A. No. 1021 of 1963, dated 19-10-1964 : (reported in AIR 1965 SC 891 ).10. The High Court has rightly pointed out that unless designs are prepared it would be "impossible for the workmen" to turn out goods for sale.If the process of designing is so intimately connected with the process of manufacture of cloth, we see no reason to regard the process of designing as not being a part of the process of manufacture within the meaning of R. 13 read with S. 8 (3) (b). The process of designing may be distinct from the actual process of turning out finished goods. But there is no warrant for limiting the meaning of the expression "in the manufacture of goods" to the process of production of goods only. The expression "in the manufacture" takes in within its compass, all processes which are directly related to the actual production. Goods intended as equipment for use in the manufacture of goods for sale are expressly made admissible for specification. Drawing and photographic materials falling within the description of goods intended for use as "equipment" in the process of designing which is directly related to the actual production of goods and without which commercial production would be inexpedient must be regarded as goods intended for use "in the manufacture of goods."11. Building materials including lime and cement not required in the manufacture of tiles for sale cannot however be regarded within the meaning of R. 13, as raw materials in the manufacture or processing of goods or even as "plant". It is true that buildings must be constructed for housing the factory in which machinery is installed. Whether a building is a "plant" within the meaning of R. 13, is a difficult question on which no opinion need be expressed. But to qualify for specification under S. 8 (3) (b) goods must be intended for use of the nature mentioned in R. 13, in the manufacture of goods. Building materials used as raw materials for construction of "plant" cannot be said to be used as plant in the manufacture of goods. The Legislature has contemplated that the goods to qualify under S. 8 (3) (b) must be intended for use as raw materials or as plant or as equipment in the manufacture or processing of goods, and it cannot be said that building materials fall within this description. The High Court was, therefore, right in rejecting the claim of the Company in that behalf.12. The expression "electricals" is somewhat vague. But in a factory manufacturing cotton and other textiles, certain electrical equipment in the present stage of development would be commercially necessary. For instance, without electric lighting it would be very difficult to carry on the business. Again electrical humidifiers, exhaust fans and similar electrical equipment would in the modern conditions of technological development normally be regarded as equipment necessary to effectually carry on the manufacturing process. We are not prepared to agree with the High Court that in order that "electrical equipment" should fall within the terms of R. 13, it must be an ingredient of the finished goods to be prepared, or "it must be a commodity which is used in the creation of goods."If, having regard to normal conditions prevalent in the industry, production of the finished goods would be difficult without the use of electrical equipment, the equipment would be regarded as intended for use in the manufacture of goods for sale and such a test, in our judgment, is satisfied by the expression electricals." This would of course not include electrical equipment not directly connected with the process of manufacture. Office equipment such as fans, coolers, air-conditioning units, would not be admissible to special rates under S. 8 (1). | 1[ds]10. The High Court has rightly pointed out that unless designs are prepared it would be "impossible for the workmen" to turn out goods for sale.If the process of designing is so intimately connected with the process of manufacture of cloth, we see no reason to regard the process of designing as not being a part of the process of manufacture within the meaning of R. 13 read with S. 8 (3) (b). The process of designing may be distinct from the actual process of turning out finished goods. But there is no warrant for limiting the meaning of the expression "in the manufacture of goods" to the process of production of goods only. The expression "in the manufacture" takes in within its compass, all processes which are directly related to the actual production. Goods intended as equipment for use in the manufacture of goods for sale are expressly made admissible for specification. Drawing and photographic materials falling within the description of goods intended for use as "equipment" in the process of designing which is directly related to the actual production of goods and without which commercial production would be inexpedient must be regarded as goods intended for use "in the manufacture of goods."11. Building materials including lime and cement not required in the manufacture of tiles for sale cannot however be regarded within the meaning of R. 13, as raw materials in the manufacture or processing of goods or even as "plant". It is true that buildings must be constructed for housing the factory in which machinery is installed. Whether a building is a "plant" within the meaning of R. 13, is a difficult question on which no opinion need be expressed. But to qualify for specification under S. 8 (3) (b) goods must be intended for use of the nature mentioned in R. 13, in the manufacture of goods. Building materials used as raw materials for construction of "plant" cannot be said to be used as plant in the manufacture of goods. The Legislature has contemplated that the goods to qualify under S. 8 (3) (b) must be intended for use as raw materials or as plant or as equipment in the manufacture or processing of goods, and it cannot be said that building materials fall within this description. The High Court was, therefore, right in rejecting the claim of the Company in that behalf.12. The expression "electricals" is somewhat vague. But in a factory manufacturing cotton and other textiles, certain electrical equipment in the present stage of development would be commercially necessary. For instance, without electric lighting it would be very difficult to carry on the business. Again electrical humidifiers, exhaust fans and similar electrical equipment would in the modern conditions of technological development normally be regarded as equipment necessary to effectually carry on the manufacturing process. We are not prepared to agree with the High Court that in order that "electrical equipment" should fall within the terms of R. 13, it must be an ingredient of the finished goods to be prepared, or "it must be a commodity which is used in the creation of goods."If, having regard to normal conditions prevalent in the industry, production of the finished goods would be difficult without the use of electrical equipment, the equipment would be regarded as intended for use in the manufacture of goods for sale and such a test, in our judgment, is satisfied by the expression electricals." This would of course not include electrical equipment not directly connected with the process of manufacture. Office equipment such as fans, coolers, air-conditioning units, would not be admissible to special rates under S. 8 (1).In the first instance, it must be pointed out that the High Court has, in rejecting the petition, dealt with certain matters which were never in issue between the Company and the Sales Tax Officer. By the order of the Sales Tax Officer "machinery", and "colours and chemicals" were not deleted from the certificate, and the exclusion of "building materials, cement and lime" was expressly restricted so that it was not to operate in resepct of cement used in manufacture of tiles for sale. The Sales Tax Officer had rejected the claim of the Company only in respect of drawing instruments, photographic materials, building materials including lime and cement (except cement used in manufacture of tiles forelectricals, iron, steel and coal, and it was not open to the High Court to expand the scope of the petition challenging the correctness of the order of the Sales Tax Officer, and to deal with matters which were never in issue or to decide that other categories of goods which the Sales Tax Officer had not ordered to be deleted did not fall within the terms of S. 8(3)(b) read with R. 13.The High Court confirmed the exclusion of drawing and photographic materials on the ground that those materials are required merely in the preparation of designs which though necessary for turning out textile goods cannot be said to be goods intended for use in the manufacture of goods. In the view of the High Court, designing is a process distinct from the process of manufacture, i. e., of making or fabricating raw materials by hand, art or machinery, and work into forms convenient for use. But without a design of the goods sought to be manufactured in a factory which is geared to production of goods of uniform pattern, it would be impossible to attempt manufacture of goods on a commercial scale. The production itself has to be of a set pattern, and deviation from the design prepared would be impermissible. That without the use of drawing and photographic materials, designing of patterns would, if not impossible, be very difficult, is conceded. But the High Court was apparently of the view, and that view is supported by counsel for the Sales Tax Officer, that goods intended for use in the manufacture of goods or processing of goods for sale must of necessity to be goods which are used as "ingredient or commodity in the creation of goods", or which are "directly and actually needed for turning out or making of the goods."9. In our judgment if a process or activity is so integrally related to the ultimate manufacture of goods so that without that process or activity manufacture may, even if theoretically possible, be commercially inexpedient goods intended for use in the process or activity as specified in R.13 will quality for special treatment.This is not to say that every category of goods "in connection with" manufacture of, or "in relation to" manufacture, or which facilitates the conduct the business of manufacture will be included within Rule 13. Attention in this connection may be invited to a judgment of this Court in which it was held that vehicles used by a Company (which mined ore and turned out copper in carrying on activities as a miner and as a manufacture) fell within Rule 13, even if the vehicle were used merely for removing ore from the mine to the factory, and finished goods from the factory to the place of storage. Spare parts and accessories required for the effective operation of those vehicles were also held to fall within Rule 13. See Indian Copper Corporation Ltd. v. Commr. of Commercial Taxes, Bihar, C.A. No. 1021 of 1963, dated: (reported in AIR 1965 SC 891 ). | 1 | 3,278 | 1,395 | ### 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:
put on rolls, dyed, calendered and pressed. All these processes would be regarded as integrated processes and included "in the manufacture" of cloth. It would be difficult to regard goods used only in the process of weaving cloth and not goods used in the anterior processes as goods used in the manufacture of cloth. To read the expression "in the manufacture" of cloth in that restricted sense, would raise many anomalies. Raw cotton and machinery for weaving cotton and even vehicles for transporting raw and finished goods would qualify under R. 13, but not spinning machinery, without which the business cannot be carried on. In our judgment, R. 13 does not justify the importation of restrictions which are not clearly exprssed, nor imperatively intended. Goods used as equipment, as tools, as stores, as spare parts, or as accessories in the manufacture or processing of goods, in mining, and in the generation and distribution of power need not, to qualify for special treatment under S.8 (1), be ingredients or commodities used in the processes, nor must they be directly and actually needed for "turning out or the creation of goods."9. In our judgment if a process or activity is so integrally related to the ultimate manufacture of goods so that without that process or activity manufacture may, even if theoretically possible, be commercially inexpedient goods intended for use in the process or activity as specified in R.13 will quality for special treatment.This is not to say that every category of goods "in connection with" manufacture of, or "in relation to" manufacture, or which facilitates the conduct the business of manufacture will be included within Rule 13. Attention in this connection may be invited to a judgment of this Court in which it was held that vehicles used by a Company (which mined ore and turned out copper in carrying on activities as a miner and as a manufacture) fell within Rule 13, even if the vehicle were used merely for removing ore from the mine to the factory, and finished goods from the factory to the place of storage. Spare parts and accessories required for the effective operation of those vehicles were also held to fall within Rule 13. See Indian Copper Corporation Ltd. v. Commr. of Commercial Taxes, Bihar, C.A. No. 1021 of 1963, dated 19-10-1964 : (reported in AIR 1965 SC 891 ).10. The High Court has rightly pointed out that unless designs are prepared it would be "impossible for the workmen" to turn out goods for sale.If the process of designing is so intimately connected with the process of manufacture of cloth, we see no reason to regard the process of designing as not being a part of the process of manufacture within the meaning of R. 13 read with S. 8 (3) (b). The process of designing may be distinct from the actual process of turning out finished goods. But there is no warrant for limiting the meaning of the expression "in the manufacture of goods" to the process of production of goods only. The expression "in the manufacture" takes in within its compass, all processes which are directly related to the actual production. Goods intended as equipment for use in the manufacture of goods for sale are expressly made admissible for specification. Drawing and photographic materials falling within the description of goods intended for use as "equipment" in the process of designing which is directly related to the actual production of goods and without which commercial production would be inexpedient must be regarded as goods intended for use "in the manufacture of goods."11. Building materials including lime and cement not required in the manufacture of tiles for sale cannot however be regarded within the meaning of R. 13, as raw materials in the manufacture or processing of goods or even as "plant". It is true that buildings must be constructed for housing the factory in which machinery is installed. Whether a building is a "plant" within the meaning of R. 13, is a difficult question on which no opinion need be expressed. But to qualify for specification under S. 8 (3) (b) goods must be intended for use of the nature mentioned in R. 13, in the manufacture of goods. Building materials used as raw materials for construction of "plant" cannot be said to be used as plant in the manufacture of goods. The Legislature has contemplated that the goods to qualify under S. 8 (3) (b) must be intended for use as raw materials or as plant or as equipment in the manufacture or processing of goods, and it cannot be said that building materials fall within this description. The High Court was, therefore, right in rejecting the claim of the Company in that behalf.12. The expression "electricals" is somewhat vague. But in a factory manufacturing cotton and other textiles, certain electrical equipment in the present stage of development would be commercially necessary. For instance, without electric lighting it would be very difficult to carry on the business. Again electrical humidifiers, exhaust fans and similar electrical equipment would in the modern conditions of technological development normally be regarded as equipment necessary to effectually carry on the manufacturing process. We are not prepared to agree with the High Court that in order that "electrical equipment" should fall within the terms of R. 13, it must be an ingredient of the finished goods to be prepared, or "it must be a commodity which is used in the creation of goods."If, having regard to normal conditions prevalent in the industry, production of the finished goods would be difficult without the use of electrical equipment, the equipment would be regarded as intended for use in the manufacture of goods for sale and such a test, in our judgment, is satisfied by the expression electricals." This would of course not include electrical equipment not directly connected with the process of manufacture. Office equipment such as fans, coolers, air-conditioning units, would not be admissible to special rates under S. 8 (1).
### Response:
1
### Explanation:
as raw materials in the manufacture or processing of goods or even as "plant". It is true that buildings must be constructed for housing the factory in which machinery is installed. Whether a building is a "plant" within the meaning of R. 13, is a difficult question on which no opinion need be expressed. But to qualify for specification under S. 8 (3) (b) goods must be intended for use of the nature mentioned in R. 13, in the manufacture of goods. Building materials used as raw materials for construction of "plant" cannot be said to be used as plant in the manufacture of goods. The Legislature has contemplated that the goods to qualify under S. 8 (3) (b) must be intended for use as raw materials or as plant or as equipment in the manufacture or processing of goods, and it cannot be said that building materials fall within this description. The High Court was, therefore, right in rejecting the claim of the Company in that behalf.12. The expression "electricals" is somewhat vague. But in a factory manufacturing cotton and other textiles, certain electrical equipment in the present stage of development would be commercially necessary. For instance, without electric lighting it would be very difficult to carry on the business. Again electrical humidifiers, exhaust fans and similar electrical equipment would in the modern conditions of technological development normally be regarded as equipment necessary to effectually carry on the manufacturing process. We are not prepared to agree with the High Court that in order that "electrical equipment" should fall within the terms of R. 13, it must be an ingredient of the finished goods to be prepared, or "it must be a commodity which is used in the creation of goods."If, having regard to normal conditions prevalent in the industry, production of the finished goods would be difficult without the use of electrical equipment, the equipment would be regarded as intended for use in the manufacture of goods for sale and such a test, in our judgment, is satisfied by the expression electricals." This would of course not include electrical equipment not directly connected with the process of manufacture. Office equipment such as fans, coolers, air-conditioning units, would not be admissible to special rates under S. 8 (1).In the first instance, it must be pointed out that the High Court has, in rejecting the petition, dealt with certain matters which were never in issue between the Company and the Sales Tax Officer. By the order of the Sales Tax Officer "machinery", and "colours and chemicals" were not deleted from the certificate, and the exclusion of "building materials, cement and lime" was expressly restricted so that it was not to operate in resepct of cement used in manufacture of tiles for sale. The Sales Tax Officer had rejected the claim of the Company only in respect of drawing instruments, photographic materials, building materials including lime and cement (except cement used in manufacture of tiles forelectricals, iron, steel and coal, and it was not open to the High Court to expand the scope of the petition challenging the correctness of the order of the Sales Tax Officer, and to deal with matters which were never in issue or to decide that other categories of goods which the Sales Tax Officer had not ordered to be deleted did not fall within the terms of S. 8(3)(b) read with R. 13.The High Court confirmed the exclusion of drawing and photographic materials on the ground that those materials are required merely in the preparation of designs which though necessary for turning out textile goods cannot be said to be goods intended for use in the manufacture of goods. In the view of the High Court, designing is a process distinct from the process of manufacture, i. e., of making or fabricating raw materials by hand, art or machinery, and work into forms convenient for use. But without a design of the goods sought to be manufactured in a factory which is geared to production of goods of uniform pattern, it would be impossible to attempt manufacture of goods on a commercial scale. The production itself has to be of a set pattern, and deviation from the design prepared would be impermissible. That without the use of drawing and photographic materials, designing of patterns would, if not impossible, be very difficult, is conceded. But the High Court was apparently of the view, and that view is supported by counsel for the Sales Tax Officer, that goods intended for use in the manufacture of goods or processing of goods for sale must of necessity to be goods which are used as "ingredient or commodity in the creation of goods", or which are "directly and actually needed for turning out or making of the goods."9. In our judgment if a process or activity is so integrally related to the ultimate manufacture of goods so that without that process or activity manufacture may, even if theoretically possible, be commercially inexpedient goods intended for use in the process or activity as specified in R.13 will quality for special treatment.This is not to say that every category of goods "in connection with" manufacture of, or "in relation to" manufacture, or which facilitates the conduct the business of manufacture will be included within Rule 13. Attention in this connection may be invited to a judgment of this Court in which it was held that vehicles used by a Company (which mined ore and turned out copper in carrying on activities as a miner and as a manufacture) fell within Rule 13, even if the vehicle were used merely for removing ore from the mine to the factory, and finished goods from the factory to the place of storage. Spare parts and accessories required for the effective operation of those vehicles were also held to fall within Rule 13. See Indian Copper Corporation Ltd. v. Commr. of Commercial Taxes, Bihar, C.A. No. 1021 of 1963, dated: (reported in AIR 1965 SC 891 ).
|
DESH RAJ Vs. BALKISHAN (D) THROUGH PROPOSED LR MS. ROHINI | by the State Government is in conflict with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), as amended by this Act, the provisions of the Code of Civil Procedure as amended by this Act shall prevail. 12. Hence, it is clear that post coming into force of the aforesaid Act, there are two regimes of civil procedure. Whereas commercial disputes [as defined under Section 2(c) of the Commercial Courts Act, 2015] are governed by the CPC as amended by Section 16 of the said Act; all other non-commercial disputes fall within the ambit of the unamended (or original) provisions of CPC. 13. The judgment of Oku Tech (supra) relied upon the learned Single Judge is no doubt good law, as recently upheld by this Court in SCG Contracts India Pvt. Ltd. v. KS Chamankar Infrastructure Pvt. Ltd., AIR 2019 SC 2691 but its ratio concerning the mandatory nature of the timeline prescribed for filing of written statement and the lack of discretion with Courts to condone any delay is applicable only to commercial disputes, as the judgment was undoubtedly rendered in the context of a commercial dispute qua the amended Order VIII Rule 1 CPC. 14. As regard the timeline for filing of written statement in a non- commercial dispute, the observations of this Court in a catena of decisions, most recently in Atcom Technologies Ltd. v. Y.A. Chunawala and Co., (2018) 6 SCC 639 holds the field. Unamended Order VIII Rule I, CPC continues to be directory and does not do away with the inherent discretion of Courts to condone certain delays. 15. Let us, therefore, consider whether the appellant has made out a case of exercising such discretionary jurisdiction? The present civil suit had been filed by the respondent for a decree of specific performance of an agreement to sell one floor of an ancestral property located in Devli Village, Delhi and permanent injunction against alienation of the same by petitioner to third parties. Counsel for respondent has not contested the non-commercial nature of the dispute, and even independently we are satisfied that the dispute does not fall within the parameters specified under Section 2(c) of the Commercial Courts Act, 2015 and in particular sub-clause (vii), as the immovable property here is not of a nature which is used exclusively in trade or commerce. Hence, the appellant is correct in contending that the High Court overlooked the nature of the dispute and mistakenly applied the ratio of a case rendered in light of a modified version of the Code of Civil Procedure, which would only be applicable to commercial disputes. 16. However, it would be gainsaid that although the unamended Order VIII Rule 1 of CPC is directory, it cannot be interpreted to bestow a free hand to on any litigant or lawyer to file written statement at their own sweet-will and/or to prolong the lis. The legislative objective behind prescription of timelines under the CPC must be given due weightage so that the disputes are resolved in a time-bound manner. Inherent discretion of Courts, like the ability to condone delays under Order VIII Rule 1 is a fairly defined concept and its contours have been shaped through judicial decisions over the ages. Illustratively, extreme hardship or delays occurring due to factors beyond control of parties despite proactive diligence, may be just and equitable instances for condonation of delay. 17. However, it is clear from the facts on record that numerous opportunities had been accorded to the appellant. He was served on 01.05.2017 and entered appearance through counsel on 15.05.2017. As per Order VIII Rule I of CPC, the appellant ideally ought to have filed his written statement by 31.05.2017; and at the very latest by 30.07.2017. In addition to two separate deadlines for filing of the written statement within the 90-day timeframe prescribed by the original Order VIII Rule 1, the Civil Court even post expiry of the 90-day period again gave one last and final opportunity on 18.09.2017 subject to payment of costs of Rs 3,000. None of these deadlines were complied with. Even on 11.10.2017, when the Court finally closed the appellants ability to file written statement and struck-off his defence from the record, no attempt was made to comply with the process of law. 18. It was only on 02.11.2017, after a delay of 95 days post the maximum extendable period under the Proviso of Order VIII Rule 1, CPC that the appellant claimed to have filed his written statement. Curiously however, even by the next hearing on 03.11.2017, the appellant had failed to provide a copy of the written statement to the respondent as had been noted by the Civil Court. 19. The only defence taken to these repeated and blatant lapses is that the appellants counsel was not turning up. No attempt has been made to even proffer a reasoned justification or explanation, and it is clear that appellant is seeking condonation in a casual manner. This ought not to be permitted or encouraged. Courts must act stringently to ensure that all proceedings are decided within reasonable time, and it is but the duty of the judicial system to cultivate a culture of respecting deadlines and time of the Court, its officers as well as of adversaries. 20. Routine condonations and cavalier attitudes towards the process of law affects the administration of justice. It affects docket management of Courts and causes avoidable delays, cost escalations and chaos. The effect of this is borne not only by the litigants, but also commerce in the country and the public-in-general who spend decades mired in technical processes. 21. It is obvious from the record that nothing prevented the appellant from filing the written statement through counsel or in person. He has, thus, failed to give any cogent reason for the delay and is unable to satisfy due diligence on his part though he is right in his submission that the High Court erroneously relied upon the ratio of Oku Tech (supra). | 0[ds]The present civil suit had been filed by the respondent for a decree of specific performance of an agreement to sell one floor of an ancestral property located in Devli Village, Delhi and permanent injunction against alienation of the same by petitioner to third parties. Counsel for respondent has not contested the non-commercial nature of the dispute, and even independently we are satisfied that the dispute does not fall within the parameters specified under Section 2(c) of the Commercial Courts Act, 2015 and in particular sub-clause (vii), as the immovable property here is not of a nature which is used exclusively in trade or commerce. Hence, the appellant is correct in contending that the High Court overlooked the nature of the dispute and mistakenly applied the ratio of a case rendered in light of a modified version of the Code of Civil Procedure, which would only be applicable to commercial disputes17. However, it is clear from the facts on record that numerous opportunities had been accorded to the appellant. He was served on 01.05.2017 and entered appearance through counsel on 15.05.2017. As per Order VIII Rule I of CPC, the appellant ideally ought to have filed his written statement by 31.05.2017; and at the very latest by 30.07.2017. In addition to two separate deadlines for filing of the written statement within the 90-day timeframe prescribed by the original Order VIII Rule 1, the Civil Court even post expiry of the 90-day period again gave one last and final opportunity on 18.09.2017 subject to payment of costs of Rs 3,000. None of these deadlines were complied with. Even on 11.10.2017, when the Court finally closed the appellants ability to file written statement and struck-off his defence from the record, no attempt was made to comply with the process of law18. It was only on 02.11.2017, after a delay of 95 days post the maximum extendable period under the Proviso of Order VIII Rule 1, CPC that the appellant claimed to have filed his written statement. Curiously however, even by the next hearing on 03.11.2017, the appellant had failed to provide a copy of the written statement to the respondent as had been noted by the Civil Court19. The only defence taken to these repeated and blatant lapses is that the appellants counsel was not turning up. No attempt has been made to even proffer a reasoned justification or explanation, and it is clear that appellant is seeking condonation in a casual manner. This ought not to be permitted or encouraged. Courts must act stringently to ensure that all proceedings are decided within reasonable time, and it is but the duty of the judicial system to cultivate a culture of respecting deadlines and time of the Court, its officers as well as of adversaries20. Routine condonations and cavalier attitudes towards the process of law affects the administration of justice. It affects docket management of Courts and causes avoidable delays, cost escalations and chaos. The effect of this is borne not only by the litigants, but also commerce in the country and the public-in-general who spend decades mired in technical processes21. It is obvious from the record that nothing prevented the appellant from filing the written statement through counsel or in person. He has, thus, failed to give any cogent reason for the delay and is unable to satisfy due diligence on his part though he is right in his submission that the High Court erroneously relied upon the ratio of Oku Tech (supra)Whereas commercial disputes [as defined under Section 2(c) of the Commercial Courts Act, 2015] are governed by the CPC as amended by Section 16 of the said Act; all other non-commercial disputes fall within the ambit of the unamended (or original) provisions of CPC13. The judgment of Oku Tech (supra) relied upon the learned Single Judge is no doubt good law, as recently upheld by this Court in SCG Contracts India Pvt. Ltd. v. KS Chamankar Infrastructure Pvt. Ltd., AIR 2019 SC 2691 but its ratio concerning the mandatory nature of the timeline prescribed for filing of written statement and the lack of discretion with Courts to condone any delay is applicable only to commercial disputes, as the judgment was undoubtedly rendered in the context of a commercial dispute qua the amended Order VIII Rule 1 CPC14. As regard the timeline for filing of written statement in a non- commercial dispute, the observations of this Court in a catena of decisions, most recently in Atcom Technologies Ltd. v. Y.A. Chunawala and Co., (2018) 6 SCC 639 holds the field. Unamended Order VIII Rule I, CPC continues to be directory and does not do away with the inherent discretion of Courts to condone certain delays. | 0 | 2,304 | 865 | ### 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:
by the State Government is in conflict with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), as amended by this Act, the provisions of the Code of Civil Procedure as amended by this Act shall prevail. 12. Hence, it is clear that post coming into force of the aforesaid Act, there are two regimes of civil procedure. Whereas commercial disputes [as defined under Section 2(c) of the Commercial Courts Act, 2015] are governed by the CPC as amended by Section 16 of the said Act; all other non-commercial disputes fall within the ambit of the unamended (or original) provisions of CPC. 13. The judgment of Oku Tech (supra) relied upon the learned Single Judge is no doubt good law, as recently upheld by this Court in SCG Contracts India Pvt. Ltd. v. KS Chamankar Infrastructure Pvt. Ltd., AIR 2019 SC 2691 but its ratio concerning the mandatory nature of the timeline prescribed for filing of written statement and the lack of discretion with Courts to condone any delay is applicable only to commercial disputes, as the judgment was undoubtedly rendered in the context of a commercial dispute qua the amended Order VIII Rule 1 CPC. 14. As regard the timeline for filing of written statement in a non- commercial dispute, the observations of this Court in a catena of decisions, most recently in Atcom Technologies Ltd. v. Y.A. Chunawala and Co., (2018) 6 SCC 639 holds the field. Unamended Order VIII Rule I, CPC continues to be directory and does not do away with the inherent discretion of Courts to condone certain delays. 15. Let us, therefore, consider whether the appellant has made out a case of exercising such discretionary jurisdiction? The present civil suit had been filed by the respondent for a decree of specific performance of an agreement to sell one floor of an ancestral property located in Devli Village, Delhi and permanent injunction against alienation of the same by petitioner to third parties. Counsel for respondent has not contested the non-commercial nature of the dispute, and even independently we are satisfied that the dispute does not fall within the parameters specified under Section 2(c) of the Commercial Courts Act, 2015 and in particular sub-clause (vii), as the immovable property here is not of a nature which is used exclusively in trade or commerce. Hence, the appellant is correct in contending that the High Court overlooked the nature of the dispute and mistakenly applied the ratio of a case rendered in light of a modified version of the Code of Civil Procedure, which would only be applicable to commercial disputes. 16. However, it would be gainsaid that although the unamended Order VIII Rule 1 of CPC is directory, it cannot be interpreted to bestow a free hand to on any litigant or lawyer to file written statement at their own sweet-will and/or to prolong the lis. The legislative objective behind prescription of timelines under the CPC must be given due weightage so that the disputes are resolved in a time-bound manner. Inherent discretion of Courts, like the ability to condone delays under Order VIII Rule 1 is a fairly defined concept and its contours have been shaped through judicial decisions over the ages. Illustratively, extreme hardship or delays occurring due to factors beyond control of parties despite proactive diligence, may be just and equitable instances for condonation of delay. 17. However, it is clear from the facts on record that numerous opportunities had been accorded to the appellant. He was served on 01.05.2017 and entered appearance through counsel on 15.05.2017. As per Order VIII Rule I of CPC, the appellant ideally ought to have filed his written statement by 31.05.2017; and at the very latest by 30.07.2017. In addition to two separate deadlines for filing of the written statement within the 90-day timeframe prescribed by the original Order VIII Rule 1, the Civil Court even post expiry of the 90-day period again gave one last and final opportunity on 18.09.2017 subject to payment of costs of Rs 3,000. None of these deadlines were complied with. Even on 11.10.2017, when the Court finally closed the appellants ability to file written statement and struck-off his defence from the record, no attempt was made to comply with the process of law. 18. It was only on 02.11.2017, after a delay of 95 days post the maximum extendable period under the Proviso of Order VIII Rule 1, CPC that the appellant claimed to have filed his written statement. Curiously however, even by the next hearing on 03.11.2017, the appellant had failed to provide a copy of the written statement to the respondent as had been noted by the Civil Court. 19. The only defence taken to these repeated and blatant lapses is that the appellants counsel was not turning up. No attempt has been made to even proffer a reasoned justification or explanation, and it is clear that appellant is seeking condonation in a casual manner. This ought not to be permitted or encouraged. Courts must act stringently to ensure that all proceedings are decided within reasonable time, and it is but the duty of the judicial system to cultivate a culture of respecting deadlines and time of the Court, its officers as well as of adversaries. 20. Routine condonations and cavalier attitudes towards the process of law affects the administration of justice. It affects docket management of Courts and causes avoidable delays, cost escalations and chaos. The effect of this is borne not only by the litigants, but also commerce in the country and the public-in-general who spend decades mired in technical processes. 21. It is obvious from the record that nothing prevented the appellant from filing the written statement through counsel or in person. He has, thus, failed to give any cogent reason for the delay and is unable to satisfy due diligence on his part though he is right in his submission that the High Court erroneously relied upon the ratio of Oku Tech (supra).
### Response:
0
### Explanation:
The present civil suit had been filed by the respondent for a decree of specific performance of an agreement to sell one floor of an ancestral property located in Devli Village, Delhi and permanent injunction against alienation of the same by petitioner to third parties. Counsel for respondent has not contested the non-commercial nature of the dispute, and even independently we are satisfied that the dispute does not fall within the parameters specified under Section 2(c) of the Commercial Courts Act, 2015 and in particular sub-clause (vii), as the immovable property here is not of a nature which is used exclusively in trade or commerce. Hence, the appellant is correct in contending that the High Court overlooked the nature of the dispute and mistakenly applied the ratio of a case rendered in light of a modified version of the Code of Civil Procedure, which would only be applicable to commercial disputes17. However, it is clear from the facts on record that numerous opportunities had been accorded to the appellant. He was served on 01.05.2017 and entered appearance through counsel on 15.05.2017. As per Order VIII Rule I of CPC, the appellant ideally ought to have filed his written statement by 31.05.2017; and at the very latest by 30.07.2017. In addition to two separate deadlines for filing of the written statement within the 90-day timeframe prescribed by the original Order VIII Rule 1, the Civil Court even post expiry of the 90-day period again gave one last and final opportunity on 18.09.2017 subject to payment of costs of Rs 3,000. None of these deadlines were complied with. Even on 11.10.2017, when the Court finally closed the appellants ability to file written statement and struck-off his defence from the record, no attempt was made to comply with the process of law18. It was only on 02.11.2017, after a delay of 95 days post the maximum extendable period under the Proviso of Order VIII Rule 1, CPC that the appellant claimed to have filed his written statement. Curiously however, even by the next hearing on 03.11.2017, the appellant had failed to provide a copy of the written statement to the respondent as had been noted by the Civil Court19. The only defence taken to these repeated and blatant lapses is that the appellants counsel was not turning up. No attempt has been made to even proffer a reasoned justification or explanation, and it is clear that appellant is seeking condonation in a casual manner. This ought not to be permitted or encouraged. Courts must act stringently to ensure that all proceedings are decided within reasonable time, and it is but the duty of the judicial system to cultivate a culture of respecting deadlines and time of the Court, its officers as well as of adversaries20. Routine condonations and cavalier attitudes towards the process of law affects the administration of justice. It affects docket management of Courts and causes avoidable delays, cost escalations and chaos. The effect of this is borne not only by the litigants, but also commerce in the country and the public-in-general who spend decades mired in technical processes21. It is obvious from the record that nothing prevented the appellant from filing the written statement through counsel or in person. He has, thus, failed to give any cogent reason for the delay and is unable to satisfy due diligence on his part though he is right in his submission that the High Court erroneously relied upon the ratio of Oku Tech (supra)Whereas commercial disputes [as defined under Section 2(c) of the Commercial Courts Act, 2015] are governed by the CPC as amended by Section 16 of the said Act; all other non-commercial disputes fall within the ambit of the unamended (or original) provisions of CPC13. The judgment of Oku Tech (supra) relied upon the learned Single Judge is no doubt good law, as recently upheld by this Court in SCG Contracts India Pvt. Ltd. v. KS Chamankar Infrastructure Pvt. Ltd., AIR 2019 SC 2691 but its ratio concerning the mandatory nature of the timeline prescribed for filing of written statement and the lack of discretion with Courts to condone any delay is applicable only to commercial disputes, as the judgment was undoubtedly rendered in the context of a commercial dispute qua the amended Order VIII Rule 1 CPC14. As regard the timeline for filing of written statement in a non- commercial dispute, the observations of this Court in a catena of decisions, most recently in Atcom Technologies Ltd. v. Y.A. Chunawala and Co., (2018) 6 SCC 639 holds the field. Unamended Order VIII Rule I, CPC continues to be directory and does not do away with the inherent discretion of Courts to condone certain delays.
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Mitesh Kumar Ramanbhai Patel & Others Vs. State of Gujarat & Others | of the case no interference was called for with impugned judgment passed in the High Court.5. A perusal of the consent form reveals that in the consent forms most of the columns were kept blank as it was not possible to mention subsequent events, and thereafter, date of notification under Section 4 of the Act and the date of declaration under Section 6 of the Act had been mentioned afterwards that too immediately before Award was passed which could not have been done unilaterally.6. The facts indicate that in the year 1995, a premature prayer was made by landowners to make a reference as they felt that the consent forms were kept blank and it was assured to them that they would be paid compensation at the rate of Rs. 50 per Square Meter. However, said amount was not mentioned in the Agreement and figure of Rs. 3.12 per square meter was mentioned in the blank forms. Be that as it may, even if 3.12 per square meter was agreed to, would not make much difference as to enforceability if such agreements. It appears that the reference court in the year 1995 directed the land owners to furnish the particulars of their holdings which was the subject matter of the consent Agreements. On failure to furnish particulars by the next date of hearing, the proceedings were closed sine die. Thus, the conduct of the land owners of filing application in 1995 clearly indicated that they were not willing to go by the consent agreement executed in the year 1989. Thus in all fairness the blank forms should not have been used for passing awards on consent basis.7. It would be highly unfair in the facts of the instant case to ask the land owners to abide by the consent terms executed way back in the year 1989 and to hand over land to State Government at the rate, which prevailed in 1989. The State Government had not taken the steps for seven years for acquisition of the land by issuance of the Notification under Section 4 of the Act. It was a sine qua non to issue notification under Section 4 of the Act to acquire land even with consent. After obtaining consent forms and possession, the State Government had waited for more than seven years and thereafter only in the year 1996 Notification under Section 4 of the Act was issued and consent awards were passed in the year 1997. Remaining 10% t0 20% amount was not paid. Ultimately as directed by the High Court the reference was made to the District Court. The reference court had rightly enhanced the compensation and then the matter travelled to the High Court in appeal filed by the State Government and cross objection by land owners for enhancement. At that time by way of interim order, direction was given to State to deposit the amount. The matter of interim order travelled to this Court and this court directed that amount be paid to the land owners as per determination made by the reference court. Pursuant to the order passed in the year 2011 amount had been disbursed to the land owners which was determined by the reference court at the rate of Rs. 21.48 per square Meter that too after filing of Contempt Petition.8. In the facts and circumstances of the case, the reference court was right in awarding the compensation on the market price which prevailed in the year 1997. In our opinion, though it was open to the State Government to enter into an agreement before issuance of the Notification under Section 4 of the Act, as held by this court in Ishwarlal Premchand Shah & Ors. v. State of Gujarat, AIR 1996 SC 1616 , in which the agreements were entered into three years before. However, in the peculiar facts of these cases, it is apparent that the State Government could not have waited for seven years after the consent forms were obtained in 1989 at particular rate prevailing at relevant time to make acquisition in the year 1996 and it would be totally unjust to pass consent awards on the basis of almost blank consent forms obtained in the year 1989. The relevant date of determination of compensation is the date of issuance of notification under Section 4 of the Act. It was incumbent upon the State Government to obtain fresh consent forms in view of repudiation made in 1995 the way of filing application before Land Acquisition Collector, whether the land owners were willing, due to lapse of time, to hand over the land in 1997 at the rate which prevailed in the year 1989 but that was not so done in the instant cases. Thus we are of the considered opinion that reference was rightly made and reference could not be said to be not maintainable as the land owners way back in the year 1995 had submitted the application that they were not satisfied with the validity and correctness of the Agreement and again immediately they had filed applications seeking reference when consent award was passed. In the fact of the case it could not be said that land owners consented in 1996/ 1997 for acquisition at the rate of 1989. It could not have been termed to be a consent award in the eye of law.9. In the circumstances, we are of the considered opinion that the Reference court was justified in making the determination of the compensation at the rate of Rs. 21.48/- per square meter and that was appropriate compensation to be awarded to the land owners. Merely payment of the meagre rent to the land owners for the occupation, would not come to the rescue of the respondents not to pay the actual value of the land that prevailed in 1996. There was deprivation of possession and usufruct for 7/8 years that could not have been compensated in terms of meagre rent, in the peculiar facts and circumstances of the cases.10 | 1[ds]5. A perusal of the consent form reveals that in the consent forms most of the columns were kept blank as it was not possible to mention subsequent events, and thereafter, date of notification under Section 4 of the Act and the date of declaration under Section 6 of the Act had been mentioned afterwards that too immediately before Award was passed which could not have been done unilaterally.6. The facts indicate that in the year 1995, a premature prayer was made by landowners to make a reference as they felt that the consent forms were kept blank and it was assured to them that they would be paid compensation at the rate of Rs. 50 per Square Meter. However, said amount was not mentioned in the Agreement and figure of Rs. 3.12 per square meter was mentioned in the blank forms. Be that as it may, even if 3.12 per square meter was agreed to, would not make much difference as to enforceability if such agreements. It appears that the reference court in the year 1995 directed the land owners to furnish the particulars of their holdings which was the subject matter of the consent Agreements. On failure to furnish particulars by the next date of hearing, the proceedings were closed sine die. Thus, the conduct of the land owners of filing application in 1995 clearly indicated that they were not willing to go by the consent agreement executed in the year 1989. Thus in all fairness the blank forms should not have been used for passing awards on consent basis.7. It would be highly unfair in the facts of the instant case to ask the land owners to abide by the consent terms executed way back in the year 1989 and to hand over land to State Government at the rate, which prevailed in 1989. The State Government had not taken the steps for seven years for acquisition of the land by issuance of the Notification under Section 4 of the Act. It was a sine qua non to issue notification under Section 4 of the Act to acquire land even with consent. After obtaining consent forms and possession, the State Government had waited for more than seven years and thereafter only in the year 1996 Notification under Section 4 of the Act was issued and consent awards were passed in the year 1997. Remaining 10% t0 20% amount was not paid. Ultimately as directed by the High Court the reference was made to the District Court. The reference court had rightly enhanced the compensation and then the matter travelled to the High Court in appeal filed by the State Government and cross objection by land owners for enhancement. At that time by way of interim order, direction was given to State to deposit the amount. The matter of interim order travelled to this Court and this court directed that amount be paid to the land owners as per determination made by the reference court. Pursuant to the order passed in the year 2011 amount had been disbursed to the land owners which was determined by the reference court at the rate of Rs. 21.48 per square Meter that too after filing of Contempt Petition.8. In the facts and circumstances of the case, the reference court was right in awarding the compensation on the market price which prevailed in the year 1997. In our opinion, though it was open to the State Government to enter into an agreement before issuance of the Notification under Section 4 of the Act, as held by this court in Ishwarlal Premchand Shah & Ors. v. State of Gujarat, AIR 1996 SC 1616 , in which the agreements were entered into three years before. However, in the peculiar facts of these cases, it is apparent that the State Government could not have waited for seven years after the consent forms were obtained in 1989 at particular rate prevailing at relevant time to make acquisition in the year 1996 and it would be totally unjust to pass consent awards on the basis of almost blank consent forms obtained in the year 1989. The relevant date of determination of compensation is the date of issuance of notification under Section 4 of the Act. It was incumbent upon the State Government to obtain fresh consent forms in view of repudiation made in 1995 the way of filing application before Land Acquisition Collector, whether the land owners were willing, due to lapse of time, to hand over the land in 1997 at the rate which prevailed in the year 1989 but that was not so done in the instant cases. Thus we are of the considered opinion that reference was rightly made and reference could not be said to be not maintainable as the land owners way back in the year 1995 had submitted the application that they were not satisfied with the validity and correctness of the Agreement and again immediately they had filed applications seeking reference when consent award was passed. In the fact of the case it could not be said that land owners consented in 1996/ 1997 for acquisition at the rate of 1989. It could not have been termed to be a consent award in the eye of law.9. In the circumstances, we are of the considered opinion that the Reference court was justified in making the determination of the compensation at the rate of Rs. 21.48/per square meter and that was appropriate compensation to be awarded to the land owners. Merely payment of the meagre rent to the land owners for the occupation, would not come to the rescue of the respondents not to pay the actual value of the land that prevailed in 1996. There was deprivation of possession and usufruct for 7/8 years that could not have been compensated in terms of meagre rent, in the peculiar facts and circumstances of the cases. | 1 | 1,449 | 1,048 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
of the case no interference was called for with impugned judgment passed in the High Court.5. A perusal of the consent form reveals that in the consent forms most of the columns were kept blank as it was not possible to mention subsequent events, and thereafter, date of notification under Section 4 of the Act and the date of declaration under Section 6 of the Act had been mentioned afterwards that too immediately before Award was passed which could not have been done unilaterally.6. The facts indicate that in the year 1995, a premature prayer was made by landowners to make a reference as they felt that the consent forms were kept blank and it was assured to them that they would be paid compensation at the rate of Rs. 50 per Square Meter. However, said amount was not mentioned in the Agreement and figure of Rs. 3.12 per square meter was mentioned in the blank forms. Be that as it may, even if 3.12 per square meter was agreed to, would not make much difference as to enforceability if such agreements. It appears that the reference court in the year 1995 directed the land owners to furnish the particulars of their holdings which was the subject matter of the consent Agreements. On failure to furnish particulars by the next date of hearing, the proceedings were closed sine die. Thus, the conduct of the land owners of filing application in 1995 clearly indicated that they were not willing to go by the consent agreement executed in the year 1989. Thus in all fairness the blank forms should not have been used for passing awards on consent basis.7. It would be highly unfair in the facts of the instant case to ask the land owners to abide by the consent terms executed way back in the year 1989 and to hand over land to State Government at the rate, which prevailed in 1989. The State Government had not taken the steps for seven years for acquisition of the land by issuance of the Notification under Section 4 of the Act. It was a sine qua non to issue notification under Section 4 of the Act to acquire land even with consent. After obtaining consent forms and possession, the State Government had waited for more than seven years and thereafter only in the year 1996 Notification under Section 4 of the Act was issued and consent awards were passed in the year 1997. Remaining 10% t0 20% amount was not paid. Ultimately as directed by the High Court the reference was made to the District Court. The reference court had rightly enhanced the compensation and then the matter travelled to the High Court in appeal filed by the State Government and cross objection by land owners for enhancement. At that time by way of interim order, direction was given to State to deposit the amount. The matter of interim order travelled to this Court and this court directed that amount be paid to the land owners as per determination made by the reference court. Pursuant to the order passed in the year 2011 amount had been disbursed to the land owners which was determined by the reference court at the rate of Rs. 21.48 per square Meter that too after filing of Contempt Petition.8. In the facts and circumstances of the case, the reference court was right in awarding the compensation on the market price which prevailed in the year 1997. In our opinion, though it was open to the State Government to enter into an agreement before issuance of the Notification under Section 4 of the Act, as held by this court in Ishwarlal Premchand Shah & Ors. v. State of Gujarat, AIR 1996 SC 1616 , in which the agreements were entered into three years before. However, in the peculiar facts of these cases, it is apparent that the State Government could not have waited for seven years after the consent forms were obtained in 1989 at particular rate prevailing at relevant time to make acquisition in the year 1996 and it would be totally unjust to pass consent awards on the basis of almost blank consent forms obtained in the year 1989. The relevant date of determination of compensation is the date of issuance of notification under Section 4 of the Act. It was incumbent upon the State Government to obtain fresh consent forms in view of repudiation made in 1995 the way of filing application before Land Acquisition Collector, whether the land owners were willing, due to lapse of time, to hand over the land in 1997 at the rate which prevailed in the year 1989 but that was not so done in the instant cases. Thus we are of the considered opinion that reference was rightly made and reference could not be said to be not maintainable as the land owners way back in the year 1995 had submitted the application that they were not satisfied with the validity and correctness of the Agreement and again immediately they had filed applications seeking reference when consent award was passed. In the fact of the case it could not be said that land owners consented in 1996/ 1997 for acquisition at the rate of 1989. It could not have been termed to be a consent award in the eye of law.9. In the circumstances, we are of the considered opinion that the Reference court was justified in making the determination of the compensation at the rate of Rs. 21.48/- per square meter and that was appropriate compensation to be awarded to the land owners. Merely payment of the meagre rent to the land owners for the occupation, would not come to the rescue of the respondents not to pay the actual value of the land that prevailed in 1996. There was deprivation of possession and usufruct for 7/8 years that could not have been compensated in terms of meagre rent, in the peculiar facts and circumstances of the cases.10
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5. A perusal of the consent form reveals that in the consent forms most of the columns were kept blank as it was not possible to mention subsequent events, and thereafter, date of notification under Section 4 of the Act and the date of declaration under Section 6 of the Act had been mentioned afterwards that too immediately before Award was passed which could not have been done unilaterally.6. The facts indicate that in the year 1995, a premature prayer was made by landowners to make a reference as they felt that the consent forms were kept blank and it was assured to them that they would be paid compensation at the rate of Rs. 50 per Square Meter. However, said amount was not mentioned in the Agreement and figure of Rs. 3.12 per square meter was mentioned in the blank forms. Be that as it may, even if 3.12 per square meter was agreed to, would not make much difference as to enforceability if such agreements. It appears that the reference court in the year 1995 directed the land owners to furnish the particulars of their holdings which was the subject matter of the consent Agreements. On failure to furnish particulars by the next date of hearing, the proceedings were closed sine die. Thus, the conduct of the land owners of filing application in 1995 clearly indicated that they were not willing to go by the consent agreement executed in the year 1989. Thus in all fairness the blank forms should not have been used for passing awards on consent basis.7. It would be highly unfair in the facts of the instant case to ask the land owners to abide by the consent terms executed way back in the year 1989 and to hand over land to State Government at the rate, which prevailed in 1989. The State Government had not taken the steps for seven years for acquisition of the land by issuance of the Notification under Section 4 of the Act. It was a sine qua non to issue notification under Section 4 of the Act to acquire land even with consent. After obtaining consent forms and possession, the State Government had waited for more than seven years and thereafter only in the year 1996 Notification under Section 4 of the Act was issued and consent awards were passed in the year 1997. Remaining 10% t0 20% amount was not paid. Ultimately as directed by the High Court the reference was made to the District Court. The reference court had rightly enhanced the compensation and then the matter travelled to the High Court in appeal filed by the State Government and cross objection by land owners for enhancement. At that time by way of interim order, direction was given to State to deposit the amount. The matter of interim order travelled to this Court and this court directed that amount be paid to the land owners as per determination made by the reference court. Pursuant to the order passed in the year 2011 amount had been disbursed to the land owners which was determined by the reference court at the rate of Rs. 21.48 per square Meter that too after filing of Contempt Petition.8. In the facts and circumstances of the case, the reference court was right in awarding the compensation on the market price which prevailed in the year 1997. In our opinion, though it was open to the State Government to enter into an agreement before issuance of the Notification under Section 4 of the Act, as held by this court in Ishwarlal Premchand Shah & Ors. v. State of Gujarat, AIR 1996 SC 1616 , in which the agreements were entered into three years before. However, in the peculiar facts of these cases, it is apparent that the State Government could not have waited for seven years after the consent forms were obtained in 1989 at particular rate prevailing at relevant time to make acquisition in the year 1996 and it would be totally unjust to pass consent awards on the basis of almost blank consent forms obtained in the year 1989. The relevant date of determination of compensation is the date of issuance of notification under Section 4 of the Act. It was incumbent upon the State Government to obtain fresh consent forms in view of repudiation made in 1995 the way of filing application before Land Acquisition Collector, whether the land owners were willing, due to lapse of time, to hand over the land in 1997 at the rate which prevailed in the year 1989 but that was not so done in the instant cases. Thus we are of the considered opinion that reference was rightly made and reference could not be said to be not maintainable as the land owners way back in the year 1995 had submitted the application that they were not satisfied with the validity and correctness of the Agreement and again immediately they had filed applications seeking reference when consent award was passed. In the fact of the case it could not be said that land owners consented in 1996/ 1997 for acquisition at the rate of 1989. It could not have been termed to be a consent award in the eye of law.9. In the circumstances, we are of the considered opinion that the Reference court was justified in making the determination of the compensation at the rate of Rs. 21.48/per square meter and that was appropriate compensation to be awarded to the land owners. Merely payment of the meagre rent to the land owners for the occupation, would not come to the rescue of the respondents not to pay the actual value of the land that prevailed in 1996. There was deprivation of possession and usufruct for 7/8 years that could not have been compensated in terms of meagre rent, in the peculiar facts and circumstances of the cases.
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MAXOPP INVESTMENT LTD Vs. COMMR.OF I.T NEW DELHI | profit and if the object is to derive income by way of dividend then the profit would be said to have accrued from investment. To this extent, the High Court may be correct. At the same time, we do not agree with the test of dominant intention applied by the Punjab and Haryana High Court, which we have already discarded. In that event, the question is as to on what basis those cases are to be decided where the shares of other companies are purchased by the assessees as stock-in-trade and not as investment. We proceed to discuss this aspect hereinafter. 39. In those cases, where shares are held as stock-in-trade, the main 38 purpose is to trade in those shares and earn profits therefrom. However, we are not concerned with those profits which would naturally be treated as income under the head profits and gains from business and profession. What happens is that, in the process, when the shares are held as stock-in-trade, certain dividend is also earned, though incidentally, which is also an income. However, by virtue of Section 10 (34) of the Act, this dividend income is not to be included in the total income and is exempt from tax. This triggers the applicability of Section 14A of the Act which is based on the theory of apportionment of expenditure between taxable and non-taxable income as held in Walfort Share and Stock Brokers P Ltd. case. Therefore, to that extent, depending upon the facts of each case, the expenditure incurred in acquiring those shares will have to be apportioned. 40. We note from the facts in the State Bank of Patiala cases that the AO, while passing the assessment order, had already restricted the disallowance to the amount which was claimed as exempt income by applying the formula contained in Rule 8D of the Rules and holding that section 14A of the Act would be applicable. In spite of this exercise of apportionment of expenditure carried out by the AO, CIT(A) disallowed the entire deduction of expenditure. That view of the CIT(A) was clearly untenable and rightly set aside by the ITAT. Therefore, on facts, the Punjab and Haryana High Court has arrived at a correct conclusion by 39 affirming the view of the ITAT, though we are not subscribing to the theory of dominant intention applied by the High Court. It is to be kept in mind that in those cases where shares are held as stock-in-trade, it becomes a business activity of the assessee to deal in those shares as a business proposition. Whether dividend is earned or not becomes immaterial. In fact, it would be a quirk of fate that when the investee company declared dividend, those shares are held by the assessee, though the assessee has to ultimately trade those shares by selling them to earn profits. The situation here is, therefore, different from the case like Maxopp Investment Ltd. where the assessee would continue to hold those shares as it wants to retain control over the investee company. In that case, whenever dividend is declared by the investee company that would necessarily be earned by the assessee and the assessee alone. Therefore, even at the time of investing into those shares, the assessee knows that it may generate dividend income as well and as and when such dividend income is generated that would be earned by the assessee. In contrast, where the shares are held as stock-in-trade, this may not be necessarily a situation. The main purpose is to liquidate those shares whenever the share price goes up in order to earn profits. In the result, the appeals filed by the Revenue challenging the judgment of the Punjab and Haryana High Court in State Bank of Patiala also fail, though law in this respect has been clarified 40 hereinabove. 41. Having regard to the language of Section 14A(2) of the Act, read with Rule 8D of the Rules, we also make it clear that before applying the theory of apportionment, the AO needs to record satisfaction that having regard to the kind of the assessee, suo moto disallowance under Section 14A was not correct. It will be in those cases where the assessee in his return has himself apportioned but the AO was not accepting the said apportionment. In that eventuality, it will have to record its satisfaction to this effect. Further, while recording such a satisfaction, nature of loan taken by the assessee for purchasing the shares/making the investment in shares is to be examined by the AO. 42. Civil Appeal No. 1423 of 2015 is filed by M/s. Avon Cycles Limited, Ludhiana, wherein the AO had invoked section 14A of the Act read with Rule 8D of the Rules and apportioned the expenditure. The CIT(A) had set aside the disallowance, which view was upturned by the ITAT in the following words: ...Admittedly the assessee had paid total interest of Rs.2.92 crores out of which interest paid on term loan raised for specific purpose totals to Rs.1.70 crores and balance interest paid by the assessee is Rs.1.21 crores. The funds utilized by the assessee being mixed funds and in view of the provisions of Rule 8D(2)(ii) of the Income Tax Rules the disallowance is confirmed at Rs.10,49,851/-, we find no merit in the ad hoc disallowance made by the CIT (Appeals) at Rs.5,00,000/-. Consequently, ground of appeal raised by the Revenue is partly allowed and ground raised by the assessee in cross-objection is allowed... 41 Taking note of the aforesaid finding of fact, the High Court has dismissed the appeal of the assessee observing as under: In the present case, after examining the balance-sheet of the assessee, a finding of fact has been recorded that the funds utilized by the assessee being mixed funds, therefore, the interest paid by the assessee is also an interest on the investments made. Such being a finding of fact, we do not find that any substantial question of law arises for consideration of this Court. | 0[ds]3. Though, it is clear from the plain language of the aforesaid provision that no deduction is to be allowed in respect of expenditure incurred by the assessee in relation to income which does not form part of the total income under the Act, the effect whereof is that if certain income is earned which is not to be included while computing total income, any 5 expenditure incurred to earn that income is also not allowed as a deduction. It is well known that tax is leviable on the net income. Net income is arrived at after deducting the expenditures incurred in earning that income. Therefore, from the gross income, expenditure incurred to earn that income is allowed as a deduction and thereafter tax is levied on the net income. The purpose behind Section 14A of the Act, by not permitting deduction of the expenditure incurred in relation to income, which does not form part of total income, is to ensure that the assessee does not get double benefit. Once a particular income itself is not to be included in the total income and is exempted from tax, there is no reasonable basis for giving benefit of deduction of the expenditure incurred in earning such an income. For example, income in the form of dividend earned on shares held in a company is not taxable. If a person takes interest bearing loan from the Bank and invests that loan in shares/stocks, dividend earned therefrom is not taxable. Normally, interest paid on the loan would be expenditure incurred for earning dividend income. Such an interest would not be allowed as deduction as it is an expenditure incurred in relation to dividend income which itself is spared from tax net. There is no quarrel upto this extent.26. It would be pertinent to mention that earlier judgment of the same High Court in the case of Dhanuka and Sons v. CIT9 was cited by the Revenue.However, this judgment was distinguished on the ground that, in that case, there was no dispute that part of the income of the assessee from its business was from dividend whereas the assessee was unable to produce any material before the authorities below showing the source from which such shares were acquiredObviously, assessees are banking upon the reasons which prevailed with the High Courts that have taken the view which are favourable to the assessees and the Revenue is relying upon the reasoning given by Delhi High Court as well as Calcutta High Court in Dhanuka and Sons case32. In the first instance, it needs to be recognised that as per section 14A(1) of the Act, deduction of that expenditure is not to be allowed which has been incurred by the assessee in relation to income which does not form part of the total income under this Act. Axiomatically, it is that expenditure alone which has been incurred in relation to the income 33 which is includible in total income that has to be disallowed. If an expenditure incurred has no causal connection with the exempted income, then such an expenditure would obviously be treated as not related to the income that is exempted from tax, and such expenditure would be allowed as business expenditure. To put it differently, such expenditure would then be considered as incurred in respect of other income which is to be treated as part of the total income.33. There is no quarrel in assigning this meaning to section 14A of the Act. In fact, all the High Courts, whether it is the Delhi High Court on the one hand or the Punjab and Haryana High Court on the other hand, have agreed in providing this interpretation to section 14A of the Act. The entire dispute is as to what interpretation is to be given to the words in relation to in the given scenario, viz. where the dividend income on the shares is earned, though the dominant purpose for subscribing in those shares of the investee company was not to earn dividend. We have two scenarios in these sets of appeals. In one group of cases the main purpose for investing in shares was to gain control over the investee company. Other cases are those where the shares of investee company were held by the assessees as stock-in-trade (i.e. as a business activity) and not as investment to earn dividends.We are of the opinion that the dominant purpose for which the investment into shares is made by an assessee may not be relevant. No doubt, the assessee like Maxopp Investment Limited may have made the investment in order to gain control of the investee company. However, that does not appear to be a relevant factor in determining the issue at hand. Fact remains that such dividend income is non-taxable. In this scenario, if expenditure is incurred on earning the dividend income, that much of the expenditure which is attributable to the dividend income has to be disallowed and cannot be treated as business expenditure. Keeping this objective behind Section14A of the Act in mind, the said provision has to be interpreted, particularly, the word in relation to the income that does not form part of total income. Considered in this hue, the principle of apportionment of expenses comes into play as that is the principle which is engrained in Section 14A of the Act. This is so held in Walfort Share and Stock Brokers P Ltd.35. The Delhi High Court, therefore, correctly observed that prior to introduction of Section 14A of the Act, the law was that when an assessee had a composite and indivisible business which had elements of both taxable and non-taxable income, the entire expenditure in respect of said business was deductible and, in such a case, the principle of apportionment of the expenditure relating to the non-taxable income did not apply. The principle of apportionment was made available only where the business was divisible. It is to find a cure to the aforesaid problem that the Legislature has not only inserted Section 14A by the Finance (Amendment) Act, 2001 but also made it retrospective, i.e., 1962 when the Income Tax Act itself came into force. The aforesaid intent was expressed loudly and clearly in the Memorandum explaining the provisions of the Finance Bill, 2001. We, thus, agree with the view taken by the Delhi High Court, and are not inclined to accept the opinion of Punjab & Haryana High Court which went by dominant purpose theory. The aforesaid reasoning would be applicable in cases where 36 shares are held as investment in the investee company, may be for the purpose of having controlling interest therein. On that reasoning, appeals of Maxopp Investment Limited as well as similar cases where shares were purchased by the assessees to have controlling interest in the investee companies have to fail and are, therefore, dismissed.On this specific aspect, CBDT has issued circular No. 18/2015 dated November 02, 2015.37. This Circular has already been reproduced in Para 19 above. This Circular takes note of the judgment of this Court in Nawanshahar case wherein it is held that investments made by a banking concern are part of the business or banking. Therefore, the income arises from such investments is attributable to business of banking falling under the head profits and gains of business and profession. On that basis, the Circular contains the decision of the Board that no appeal would be filed on this ground by the officers of the Department and if the appeals are already filed, they should be withdrawn. A reading of this circular would make it clear that the issue was as to whether income by way of interest on securities shall be chargeable to income tax under the head income from other sources or it is to fall under the head profits and gains of 37 business and profession. The Board, going by the decision of this Court in Nawanshahar case, clarified that it has to be treated as income falling under the head profits and gains of business and profession. The Board also went to the extent of saying that this would not be limited only to co-operative societies/Banks claiming deduction under Section 80P(2)(a)(i) of the Act but would also be applicable to all banks/commercial banks, to which Banking Regulation Act, 1949 applies.38. From this, Punjab and Haryana High Court pointed out that this circular carves out a distinction between stock-in-trade and investment and provides that if the motive behind purchase and sale of shares is to earn profit, then the same would be treated as trading profit and if the object is to derive income by way of dividend then the profit would be said to have accrued from investment. To this extent, the High Court may be correct. At the same time, we do not agree with the test of dominant intention applied by the Punjab and Haryana High Court, which we have already discarded. In that event, the question is as to on what basis those cases are to be decided where the shares of other companies are purchased by the assessees as stock-in-trade and not as investment. We proceed to discuss this aspect hereinafter.39. In those cases, where shares are held as stock-in-trade, the main 38 purpose is to trade in those shares and earn profits therefrom. However, we are not concerned with those profits which would naturally be treated as income under the head profits and gains from business and profession. What happens is that, in the process, when the shares are held as stock-in-trade, certain dividend is also earned, though incidentally, which is also an income. However, by virtue of Section 10 (34) of the Act, this dividend income is not to be included in the total income and is exempt from tax. This triggers the applicability of Section 14A of the Act which is based on the theory of apportionment of expenditure between taxable and non-taxable income as held in Walfort Share and Stock Brokers P Ltd. case. Therefore, to that extent, depending upon the facts of each case, the expenditure incurred in acquiring those shares will have to be apportioned.40. We note from the facts in the State Bank of Patiala cases that the AO, while passing the assessment order, had already restricted the disallowance to the amount which was claimed as exempt income by applying the formula contained in Rule 8D of the Rules and holding that section 14A of the Act would be applicable. In spite of this exercise of apportionment of expenditure carried out by the AO, CIT(A) disallowed the entire deduction of expenditure. That view of the CIT(A) was clearly untenable and rightly set aside by the ITAT. Therefore, on facts, the Punjab and Haryana High Court has arrived at a correct conclusion by 39 affirming the view of the ITAT, though we are not subscribing to the theory of dominant intention applied by the High Court. It is to be kept in mind that in those cases where shares are held as stock-in-trade, it becomes a business activity of the assessee to deal in those shares as a business proposition. Whether dividend is earned or not becomes immaterial. In fact, it would be a quirk of fate that when the investee company declared dividend, those shares are held by the assessee, though the assessee has to ultimately trade those shares by selling them to earn profits. The situation here is, therefore, different from the case like Maxopp Investment Ltd. where the assessee would continue to hold those shares as it wants to retain control over the investee company. In that case, whenever dividend is declared by the investee company that would necessarily be earned by the assessee and the assessee alone. Therefore, even at the time of investing into those shares, the assessee knows that it may generate dividend income as well and as and when such dividend income is generated that would be earned by the assessee. In contrast, where the shares are held as stock-in-trade, this may not be necessarily a situation. The main purpose is to liquidate those shares whenever the share price goes up in order to earn profits. In the result, the appeals filed by the Revenue challenging the judgment of the Punjab and Haryana High Court in State Bank of Patiala also fail, though law in this respect has been clarified 40 hereinabove.41. Having regard to the language of Section 14A(2) of the Act, read with Rule 8D of the Rules, we also make it clear that before applying the theory of apportionment, the AO needs to record satisfaction that having regard to the kind of the assessee, suo moto disallowance under Section 14A was not correct. It will be in those cases where the assessee in his return has himself apportioned but the AO was not accepting the said apportionment. In that eventuality, it will have to record its satisfaction to this effect. Further, while recording such a satisfaction, nature of loan taken by the assessee for purchasing the shares/making the investment in shares is to be examined by the AO.43. Few appeals are filed by the Revenue against the assessees which pertained to the period prior to the introduction of Rule 8D of the Rules. Here, the case is decided in favour of the assessees also on the ground that Rule 8D of the Rules is prospective in nature and could not have been made applicable in respect of the Assessment Years prior to 2007 when this Rule was inserted. This view has already been upheld by this Court in Civil Appeal No. 2165 of 2012 (Commissioner of Income Tax, Mumbai v. M/s. Essar Teleholdings Ltd. through its Manager), pronounced on January 31, 2018, that the said Rule is prospective in nature. On | 0 | 11,362 | 2,519 | ### 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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profit and if the object is to derive income by way of dividend then the profit would be said to have accrued from investment. To this extent, the High Court may be correct. At the same time, we do not agree with the test of dominant intention applied by the Punjab and Haryana High Court, which we have already discarded. In that event, the question is as to on what basis those cases are to be decided where the shares of other companies are purchased by the assessees as stock-in-trade and not as investment. We proceed to discuss this aspect hereinafter. 39. In those cases, where shares are held as stock-in-trade, the main 38 purpose is to trade in those shares and earn profits therefrom. However, we are not concerned with those profits which would naturally be treated as income under the head profits and gains from business and profession. What happens is that, in the process, when the shares are held as stock-in-trade, certain dividend is also earned, though incidentally, which is also an income. However, by virtue of Section 10 (34) of the Act, this dividend income is not to be included in the total income and is exempt from tax. This triggers the applicability of Section 14A of the Act which is based on the theory of apportionment of expenditure between taxable and non-taxable income as held in Walfort Share and Stock Brokers P Ltd. case. Therefore, to that extent, depending upon the facts of each case, the expenditure incurred in acquiring those shares will have to be apportioned. 40. We note from the facts in the State Bank of Patiala cases that the AO, while passing the assessment order, had already restricted the disallowance to the amount which was claimed as exempt income by applying the formula contained in Rule 8D of the Rules and holding that section 14A of the Act would be applicable. In spite of this exercise of apportionment of expenditure carried out by the AO, CIT(A) disallowed the entire deduction of expenditure. That view of the CIT(A) was clearly untenable and rightly set aside by the ITAT. Therefore, on facts, the Punjab and Haryana High Court has arrived at a correct conclusion by 39 affirming the view of the ITAT, though we are not subscribing to the theory of dominant intention applied by the High Court. It is to be kept in mind that in those cases where shares are held as stock-in-trade, it becomes a business activity of the assessee to deal in those shares as a business proposition. Whether dividend is earned or not becomes immaterial. In fact, it would be a quirk of fate that when the investee company declared dividend, those shares are held by the assessee, though the assessee has to ultimately trade those shares by selling them to earn profits. The situation here is, therefore, different from the case like Maxopp Investment Ltd. where the assessee would continue to hold those shares as it wants to retain control over the investee company. In that case, whenever dividend is declared by the investee company that would necessarily be earned by the assessee and the assessee alone. Therefore, even at the time of investing into those shares, the assessee knows that it may generate dividend income as well and as and when such dividend income is generated that would be earned by the assessee. In contrast, where the shares are held as stock-in-trade, this may not be necessarily a situation. The main purpose is to liquidate those shares whenever the share price goes up in order to earn profits. In the result, the appeals filed by the Revenue challenging the judgment of the Punjab and Haryana High Court in State Bank of Patiala also fail, though law in this respect has been clarified 40 hereinabove. 41. Having regard to the language of Section 14A(2) of the Act, read with Rule 8D of the Rules, we also make it clear that before applying the theory of apportionment, the AO needs to record satisfaction that having regard to the kind of the assessee, suo moto disallowance under Section 14A was not correct. It will be in those cases where the assessee in his return has himself apportioned but the AO was not accepting the said apportionment. In that eventuality, it will have to record its satisfaction to this effect. Further, while recording such a satisfaction, nature of loan taken by the assessee for purchasing the shares/making the investment in shares is to be examined by the AO. 42. Civil Appeal No. 1423 of 2015 is filed by M/s. Avon Cycles Limited, Ludhiana, wherein the AO had invoked section 14A of the Act read with Rule 8D of the Rules and apportioned the expenditure. The CIT(A) had set aside the disallowance, which view was upturned by the ITAT in the following words: ...Admittedly the assessee had paid total interest of Rs.2.92 crores out of which interest paid on term loan raised for specific purpose totals to Rs.1.70 crores and balance interest paid by the assessee is Rs.1.21 crores. The funds utilized by the assessee being mixed funds and in view of the provisions of Rule 8D(2)(ii) of the Income Tax Rules the disallowance is confirmed at Rs.10,49,851/-, we find no merit in the ad hoc disallowance made by the CIT (Appeals) at Rs.5,00,000/-. Consequently, ground of appeal raised by the Revenue is partly allowed and ground raised by the assessee in cross-objection is allowed... 41 Taking note of the aforesaid finding of fact, the High Court has dismissed the appeal of the assessee observing as under: In the present case, after examining the balance-sheet of the assessee, a finding of fact has been recorded that the funds utilized by the assessee being mixed funds, therefore, the interest paid by the assessee is also an interest on the investments made. Such being a finding of fact, we do not find that any substantial question of law arises for consideration of this Court.
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is to fall under the head profits and gains of 37 business and profession. The Board, going by the decision of this Court in Nawanshahar case, clarified that it has to be treated as income falling under the head profits and gains of business and profession. The Board also went to the extent of saying that this would not be limited only to co-operative societies/Banks claiming deduction under Section 80P(2)(a)(i) of the Act but would also be applicable to all banks/commercial banks, to which Banking Regulation Act, 1949 applies.38. From this, Punjab and Haryana High Court pointed out that this circular carves out a distinction between stock-in-trade and investment and provides that if the motive behind purchase and sale of shares is to earn profit, then the same would be treated as trading profit and if the object is to derive income by way of dividend then the profit would be said to have accrued from investment. To this extent, the High Court may be correct. At the same time, we do not agree with the test of dominant intention applied by the Punjab and Haryana High Court, which we have already discarded. In that event, the question is as to on what basis those cases are to be decided where the shares of other companies are purchased by the assessees as stock-in-trade and not as investment. We proceed to discuss this aspect hereinafter.39. In those cases, where shares are held as stock-in-trade, the main 38 purpose is to trade in those shares and earn profits therefrom. However, we are not concerned with those profits which would naturally be treated as income under the head profits and gains from business and profession. What happens is that, in the process, when the shares are held as stock-in-trade, certain dividend is also earned, though incidentally, which is also an income. However, by virtue of Section 10 (34) of the Act, this dividend income is not to be included in the total income and is exempt from tax. This triggers the applicability of Section 14A of the Act which is based on the theory of apportionment of expenditure between taxable and non-taxable income as held in Walfort Share and Stock Brokers P Ltd. case. Therefore, to that extent, depending upon the facts of each case, the expenditure incurred in acquiring those shares will have to be apportioned.40. We note from the facts in the State Bank of Patiala cases that the AO, while passing the assessment order, had already restricted the disallowance to the amount which was claimed as exempt income by applying the formula contained in Rule 8D of the Rules and holding that section 14A of the Act would be applicable. In spite of this exercise of apportionment of expenditure carried out by the AO, CIT(A) disallowed the entire deduction of expenditure. That view of the CIT(A) was clearly untenable and rightly set aside by the ITAT. Therefore, on facts, the Punjab and Haryana High Court has arrived at a correct conclusion by 39 affirming the view of the ITAT, though we are not subscribing to the theory of dominant intention applied by the High Court. It is to be kept in mind that in those cases where shares are held as stock-in-trade, it becomes a business activity of the assessee to deal in those shares as a business proposition. Whether dividend is earned or not becomes immaterial. In fact, it would be a quirk of fate that when the investee company declared dividend, those shares are held by the assessee, though the assessee has to ultimately trade those shares by selling them to earn profits. The situation here is, therefore, different from the case like Maxopp Investment Ltd. where the assessee would continue to hold those shares as it wants to retain control over the investee company. In that case, whenever dividend is declared by the investee company that would necessarily be earned by the assessee and the assessee alone. Therefore, even at the time of investing into those shares, the assessee knows that it may generate dividend income as well and as and when such dividend income is generated that would be earned by the assessee. In contrast, where the shares are held as stock-in-trade, this may not be necessarily a situation. The main purpose is to liquidate those shares whenever the share price goes up in order to earn profits. In the result, the appeals filed by the Revenue challenging the judgment of the Punjab and Haryana High Court in State Bank of Patiala also fail, though law in this respect has been clarified 40 hereinabove.41. Having regard to the language of Section 14A(2) of the Act, read with Rule 8D of the Rules, we also make it clear that before applying the theory of apportionment, the AO needs to record satisfaction that having regard to the kind of the assessee, suo moto disallowance under Section 14A was not correct. It will be in those cases where the assessee in his return has himself apportioned but the AO was not accepting the said apportionment. In that eventuality, it will have to record its satisfaction to this effect. Further, while recording such a satisfaction, nature of loan taken by the assessee for purchasing the shares/making the investment in shares is to be examined by the AO.43. Few appeals are filed by the Revenue against the assessees which pertained to the period prior to the introduction of Rule 8D of the Rules. Here, the case is decided in favour of the assessees also on the ground that Rule 8D of the Rules is prospective in nature and could not have been made applicable in respect of the Assessment Years prior to 2007 when this Rule was inserted. This view has already been upheld by this Court in Civil Appeal No. 2165 of 2012 (Commissioner of Income Tax, Mumbai v. M/s. Essar Teleholdings Ltd. through its Manager), pronounced on January 31, 2018, that the said Rule is prospective in nature. On
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Commnr. Of Income Tax, Gauhati Vs. M/S. Sati Oil Udyog Ltd. | correctly declared by the assessee. In such a situation, this Court held:- “We must therefore eschew literalness in the interpretation of Section 52 Sub-section (2) and try to arrive at an interpretation which avoids this absurdity and mischief and makes the provision rational and sensible, unless of course, our hands are tied and we cannot find any escape from the tyranny of the literal interpretation. It is now a well settled rule of construction that where the plain literal interpretation of a statutory provision produces a manifestly absurd and unjust result which could never have been intended by the legislature, the court may modify the language used by the legislature or even do some violence to it, so as to achieve the obvious intention of the legislature and produce a rational construction, Vide: Luke v. Inland Revenue Commissioner [1963] AC 557. The Court may also in such a case read into the statutory provision a condition which, though not expressed, is implicit as constituting the basic assumption underlying the statutory provision. We think that, having regard to this well recognised rule of interpretation, a fair and reasonable construction of Section 52 sub-section (2) would be to read into it a condition that it would apply only where the consideration for the transfer is under-stated or in other words, the assessee has actually received a larger consideration for the transfer than what is declared in the instrument of transfer and it would have no application in case of a bonafide transaction where the full value of the consideration for the transfer is correctly declared by the assessee.” The Court further went on to hold:- “Thus it is not enough to attract the applicability of Sub-section (2) that the fair market value of the capital asset transferred by the assessee as on the date of the transfer exceeds the full value of the consideration declared in respect of the transfer by not less than 15% of the value so declared, but it is furthermore necessary that the full value of the consideration in respect of the transfer is understated or in other words, shown at a lesser figure than that actually received by the assessee. Subsection (2) has no application in case of an honest and bonafide transaction where the consideration in respect of the transfer has been correctly declared or disclosed by the assessee, even if the condition of 15% difference between the fair market value of the capital asset as on the date of the transfer and the full value of the consideration declared by the assessee is satisfied. If therefore the Revenue seeks to bring a case within sub-section (2), it must show not only that the fair market value of the capital asset as on the date of the transfer exceeds the full value of the consideration declared by the assessee by not less than 15% of the value so declared, but also that the consideration has been under-stated and the assessee has actually received more than what is declared by him. There are two distinct conditions which have to be satisfied before sub-section (2) can be invoked by the Revenue and the burden of showing that these two conditions are satisfied rests on the Revenue. It is for the Revenue to show that each of these two conditions is satisfied and the Revenue cannot claim to have discharged this burden which lies upon it, by merely establishing that the fair market value of the capital asset as on the date of the transfer exceeds by 15% or more the full value of the consideration declared in respect of the transfer and the first condition is therefore satisfied. The Revenue must go further and prove that the second condition is also satisfied. Merely by showing that the first condition is satisfied, the Revenue cannot ask the Court to presume that the second condition too is fulfilled, because even in a case where the first condition of 15% difference is satisfied, the transaction may be a perfectly honest and bonafide transaction and there may be no under-statement of the consideration. The fulfilment of the second condition has therefore to be established independently of the first condition and merely because the first condition is satisfied, no inference can necessarily follow that the second condition is also fulfilled. Each condition has got to be viewed and established independently before sub-section (2) can be invoked and the burden of doing so is clearly on the Revenue. It is a well settled rule of law that the onus of establishing that the conditions of taxability are fulfilled is always on the Revenue and the second condition being as much a condition of taxability as the first, the burden lies on the Revenue to show that there is understatement of the consideration and the second condition is fulfilled. Moreover, to throw the burden of showing that there is no understatement of the consideration, on the assessee would be to cast an almost impossible burden upon him to establish the negative, namely, that he did not receive any consideration beyond that declared by him.” Finally, the Court held: “We must therefore hold that Sub-section (2) of Section 52 can be invoked only where the consideration for the transfer has been understated by the assessee or in other words, the consideration actually received by the assessee is more than what is declared or disclosed by him and the burden of proving such under-statement or concealment is on the Revenue. This burden may be discharged by the Revenue by establishing facts and circumstances from which a reasonable inference can be drawn that the assessee has not correctly declared or disclosed the consideration received by him and there is understatement of concealment of the consideration in respect of the transfer. Subsection (2) has no application in case of an honest and bonafide transaction where the consideration received by the assessee has been correctly declared or disclosed by him, and there is no concealment or suppression of the consideration.” | 1[ds]8. On a cursory reading of the provision, it is clear that the object of Section 143(1A) is the prevention of evasion of tax. By the introduction of this provision, persons who have filed returns in which they have sought to evade the tax properly payable by them is meant to have a deterrent effect and a hefty amount of 20% as additional income tax is payable on the difference between what is declared in the return and what is assessed to tax.Even on a reading of Section 143 1(a) which is referred to in Section 143 (1A), a loss is envisaged as being declared in a return made under Section 139. It is clear, therefore, that the retrospective amendment made in 1993 would only be clarificatory of the position that existed in 1989 itself.In the present case as well, all assessees were put on notice in 1989 itself that the expressioncontained in Section 143 (1A) would be wide enough to include losses also. That being the case, on facts here there is in fact no retrospective imposition of additional tax – such tax was imposable on losses as well from 1989 itself.In the present case, the question that arises before us is also as to whether bonafide assessees are caught within the net of Section 143 (1A). We hasten to add that unlike in J.K. Synthetics case, Section 143 (1A) has in fact been challenged on Constitutional grounds before the High Court on the facts of the present case. This being the case, we feel that since the provision has the deterrent effect of preventing tax evasion, it should be made to apply only to tax evaders.On a strictly literal interpretation of Section 52 (2), the moment the fair market value of a capital asset by an assessee exceeds the full value of the consideration declared by the assessee, in an amount of not less than 15% of the value declared, the full value for the consideration for such capital asset shall be taken to be the fair market value. A strictly literal reading would take into the tax net persons who have entered into bonafide transactions where the full value of the consideration for the transfer is correctly declared by the assessee. | 1 | 6,390 | 418 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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correctly declared by the assessee. In such a situation, this Court held:- “We must therefore eschew literalness in the interpretation of Section 52 Sub-section (2) and try to arrive at an interpretation which avoids this absurdity and mischief and makes the provision rational and sensible, unless of course, our hands are tied and we cannot find any escape from the tyranny of the literal interpretation. It is now a well settled rule of construction that where the plain literal interpretation of a statutory provision produces a manifestly absurd and unjust result which could never have been intended by the legislature, the court may modify the language used by the legislature or even do some violence to it, so as to achieve the obvious intention of the legislature and produce a rational construction, Vide: Luke v. Inland Revenue Commissioner [1963] AC 557. The Court may also in such a case read into the statutory provision a condition which, though not expressed, is implicit as constituting the basic assumption underlying the statutory provision. We think that, having regard to this well recognised rule of interpretation, a fair and reasonable construction of Section 52 sub-section (2) would be to read into it a condition that it would apply only where the consideration for the transfer is under-stated or in other words, the assessee has actually received a larger consideration for the transfer than what is declared in the instrument of transfer and it would have no application in case of a bonafide transaction where the full value of the consideration for the transfer is correctly declared by the assessee.” The Court further went on to hold:- “Thus it is not enough to attract the applicability of Sub-section (2) that the fair market value of the capital asset transferred by the assessee as on the date of the transfer exceeds the full value of the consideration declared in respect of the transfer by not less than 15% of the value so declared, but it is furthermore necessary that the full value of the consideration in respect of the transfer is understated or in other words, shown at a lesser figure than that actually received by the assessee. Subsection (2) has no application in case of an honest and bonafide transaction where the consideration in respect of the transfer has been correctly declared or disclosed by the assessee, even if the condition of 15% difference between the fair market value of the capital asset as on the date of the transfer and the full value of the consideration declared by the assessee is satisfied. If therefore the Revenue seeks to bring a case within sub-section (2), it must show not only that the fair market value of the capital asset as on the date of the transfer exceeds the full value of the consideration declared by the assessee by not less than 15% of the value so declared, but also that the consideration has been under-stated and the assessee has actually received more than what is declared by him. There are two distinct conditions which have to be satisfied before sub-section (2) can be invoked by the Revenue and the burden of showing that these two conditions are satisfied rests on the Revenue. It is for the Revenue to show that each of these two conditions is satisfied and the Revenue cannot claim to have discharged this burden which lies upon it, by merely establishing that the fair market value of the capital asset as on the date of the transfer exceeds by 15% or more the full value of the consideration declared in respect of the transfer and the first condition is therefore satisfied. The Revenue must go further and prove that the second condition is also satisfied. Merely by showing that the first condition is satisfied, the Revenue cannot ask the Court to presume that the second condition too is fulfilled, because even in a case where the first condition of 15% difference is satisfied, the transaction may be a perfectly honest and bonafide transaction and there may be no under-statement of the consideration. The fulfilment of the second condition has therefore to be established independently of the first condition and merely because the first condition is satisfied, no inference can necessarily follow that the second condition is also fulfilled. Each condition has got to be viewed and established independently before sub-section (2) can be invoked and the burden of doing so is clearly on the Revenue. It is a well settled rule of law that the onus of establishing that the conditions of taxability are fulfilled is always on the Revenue and the second condition being as much a condition of taxability as the first, the burden lies on the Revenue to show that there is understatement of the consideration and the second condition is fulfilled. Moreover, to throw the burden of showing that there is no understatement of the consideration, on the assessee would be to cast an almost impossible burden upon him to establish the negative, namely, that he did not receive any consideration beyond that declared by him.” Finally, the Court held: “We must therefore hold that Sub-section (2) of Section 52 can be invoked only where the consideration for the transfer has been understated by the assessee or in other words, the consideration actually received by the assessee is more than what is declared or disclosed by him and the burden of proving such under-statement or concealment is on the Revenue. This burden may be discharged by the Revenue by establishing facts and circumstances from which a reasonable inference can be drawn that the assessee has not correctly declared or disclosed the consideration received by him and there is understatement of concealment of the consideration in respect of the transfer. Subsection (2) has no application in case of an honest and bonafide transaction where the consideration received by the assessee has been correctly declared or disclosed by him, and there is no concealment or suppression of the consideration.”
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8. On a cursory reading of the provision, it is clear that the object of Section 143(1A) is the prevention of evasion of tax. By the introduction of this provision, persons who have filed returns in which they have sought to evade the tax properly payable by them is meant to have a deterrent effect and a hefty amount of 20% as additional income tax is payable on the difference between what is declared in the return and what is assessed to tax.Even on a reading of Section 143 1(a) which is referred to in Section 143 (1A), a loss is envisaged as being declared in a return made under Section 139. It is clear, therefore, that the retrospective amendment made in 1993 would only be clarificatory of the position that existed in 1989 itself.In the present case as well, all assessees were put on notice in 1989 itself that the expressioncontained in Section 143 (1A) would be wide enough to include losses also. That being the case, on facts here there is in fact no retrospective imposition of additional tax – such tax was imposable on losses as well from 1989 itself.In the present case, the question that arises before us is also as to whether bonafide assessees are caught within the net of Section 143 (1A). We hasten to add that unlike in J.K. Synthetics case, Section 143 (1A) has in fact been challenged on Constitutional grounds before the High Court on the facts of the present case. This being the case, we feel that since the provision has the deterrent effect of preventing tax evasion, it should be made to apply only to tax evaders.On a strictly literal interpretation of Section 52 (2), the moment the fair market value of a capital asset by an assessee exceeds the full value of the consideration declared by the assessee, in an amount of not less than 15% of the value declared, the full value for the consideration for such capital asset shall be taken to be the fair market value. A strictly literal reading would take into the tax net persons who have entered into bonafide transactions where the full value of the consideration for the transfer is correctly declared by the assessee.
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CHAMAN LAL (D) THR. LRS Vs. KAMLAWATI (D) THR. L.RS | Punjab Court Act. We say so as the fulcrum of the dispute was the gift deed itself being the document in question. The document was originally penned down in Urdu with the Persian dialect and was thereafter translated to the Punjabi language. The next translation was done in English as also the transliteration. Thus there would be a reliance on an inaccurate document if the translation and the transliteration was not accurate. This is the objective which was sought to be subserved by getting an authenticated translation done in the High Court and the concession/submission of the appellants herein recorded in order dated 02.04.2002 in respect of the translation, albeit the order being set aside. The acknowledgment of both the parties to the accuracy of the translation and the transliteration could not be doubted thereafter. If the substratum being the document has been inaccurately translated then there would be a fundamental legal infirmity in the interpretation to be given and in determining the controversy in question. We are thus not inclined to accept this preliminary objection sought to be raised by learned senior counsel for the appellant on the right of the High Court to look into the question on merits. 12. We are fortified in our aforesaid view by earlier judicial pronouncements. We may note that these judgments are in the context of the provisions for second appeal under Section 100 of the said Code as it existed prior to the amendment of 1976, which is almost pari materia to the existing provision which applies to Punjab (as noticed in Pankajakshi (D) through LRs & Ors.Per se construction of documents (unless documents of title) to prove a question of fact do not involve an issue of law unless it can be shown that the material evidence contained in that was misunderstood by the court of fact. (1963) 2 SCR 208 In the facts of the present case we are, in fact, dealing with a document of title, i.e., the Gift Deed. Thus, there can be little doubt that if the translation of the document itself is not correctly done, an aspect which was addressed to by the High Court by getting the translation done, which was accepted, then the correct translation would have to be re- construed. It is this principle, which was recognized in Sir Chunilal V. Mehta & Sons Ltd. v. Century Shipping and Manufacturing Co. Ltd. 1962 Supp (3) SCR 549 while observing in para 2 as under: 2. ….Indeed it is well settled that the construction of a document of title or of a document which is the foundation of the rights of parties necessarily raises a question of law. 13. Returning to the factual controversy in issue and the analysis of the same by the High Court, the perusal of the gift deed shows that what is sought to be gifted does not mention any lesser land than the whole land. If the plea of the appellant was to be accepted, then there should have been some area stated to have been gifted while the other would have been held back. This is not so. Of course, the submission of the learned senior counsel for the appellant is that the area remained undivided and that is why the partition was being sought. 14. We may also notice that when the reference is made to Rs.800/-, it is in the context of half the value of Rs.1600/-, a methodology adopted which is prevalent in this part of the country while recording such translation wherefor accuracy of the figures, half the amount is mentioned to ensure that the actual figure is correctly reflected. Not only that the translation would show that the donee is deemed to be the owner in possession of my gifted land . Thus, whatever land was gifted, the possession was handed over. In the facts of the present case the possession of the complete land is undisputedly initially with the Ist defendant then with the IInd defendant and thereafter with the IIIrd and IVth defendants. 15. We may also take note of the fact that jamabandi for the first time was done in the name of late Gurdev Kaur for 1969-70. Prior to that the whole land remained in the name of late Chaman Lal, the original owner. It is not as if the jamabandi was done for half the land in favour of late Chaman Lal and half in favour of late Gurdev Kaur. If at all a grievance would have arisen on behalf of late Chaman Lal that could have been an occasion for it. The first time the matter is sought to be raised is 17 years later and after about 16 years of the land in question being sold to the IInd defendant. Thus, the conduct of the parties also suggests that the parties understood that whole land was gifted and the possession of the whole land was handed over. 16. Learned counsel for the appellant also sought to draw an inference in favour of the appellant by submitting that what had weighed with the trial court and the first appellate court was that the document of gift was stamped on the basis that the value of the gift was Rs.800/- and not Rs.1600/-. 17. In this behalf learned senior counsel for the respondent has pointed out to us that the Indian Stamp (Punjab Amendment) Act, 1958 received the assent of the Governor of Punjab on 23.04.1958 and was published in the Gazette on 25.4.1958. Transaction in question was prior to that date. That plea will thus not hold much water. 18. We are, thus, unequivocally of the view that the status of the property is not liable to be disturbed after such a prolong period of time in the context of the facts and the legal position which has emerged since 10.3.1958. The gift deed can be read in one manner, and only in one manner. 19. We are thus not inclined to entertain the present appeal. | 0[ds]11. On consideration of the matter, we find that the High Court cannot be said to have exceeded its jurisdiction, as has to be exercised within the ambit of Section 41 of the Punjab Court Act. We say so as the fulcrum of the dispute was the gift deed itself being the document in question. The document was originally penned down in Urdu with the Persian dialect and was thereafter translated to the Punjabi language. The next translation was done in English as also the transliteration. Thus there would be a reliance on an inaccurate document if the translation and the transliteration was not accurate. This is the objective which was sought to be subserved by getting an authenticated translation done in the High Court and the concession/submission of the appellants herein recorded in order dated 02.04.2002 in respect of the translation, albeit the order being set aside. The acknowledgment of both the parties to the accuracy of the translation and the transliteration could not be doubted thereafter. If the substratum being the document has been inaccurately translated then there would be a fundamental legal infirmity in the interpretation to be given and in determining the controversy in question. We are thus not inclined to accept this preliminary objection sought to be raised by learned senior counsel for the appellant on the right of the High Court to look into the question on merits11. On consideration of the matter, we find that the High Court cannot be said to have exceeded its jurisdiction, as has to be exercised within the ambit of Section 41 of the Punjab Court Act. We say so as the fulcrum of the dispute was the gift deed itself being the document in question. The document was originally penned down in Urdu with the Persian dialect and was thereafter translated to the Punjabi language. The next translation was done in English as also the transliteration. Thus there would be a reliance on an inaccurate document if the translation and the transliteration was not accurate. This is the objective which was sought to be subserved by getting an authenticated translation done in the High Court and the concession/submission of the appellants herein recorded in order dated 02.04.2002 in respect of the translation, albeit the order being set aside. The acknowledgment of both the parties to the accuracy of the translation and the transliteration could not be doubted thereafter. If the substratum being the document has been inaccurately translated then there would be a fundamental legal infirmity in the interpretation to be given and in determining the controversy in question. We are thus not inclined to accept this preliminary objection sought to be raised by learned senior counsel for the appellant on the right of the High Court to look into the question on merits12. We are fortified in our aforesaid view by earlier judicial pronouncements. We may note that these judgments are in the context of the provisions for second appeal under Section 100 of the said Code as it existed prior to the amendment of 1976, which is almost pari materia to the existing provision which applies to Punjab (as noticed in Pankajakshi (D) through LRs & Ors.Per se construction of documents (unless documents of title) to prove a question of fact do not involve an issue of law unless it can be shown that the material evidence contained in that was misunderstood by the court of fact. (1963) 2 SCR 208 In the facts of the present case we are, in fact, dealing with a document of title, i.e., the Gift Deed. Thus, there can be little doubt that if the translation of the document itself is not correctly done, an aspect which was addressed to by the High Court by getting the translation done, which was accepted, then the correct translation would have to be re- construed. It is this principle, which was recognized in Sir Chunilal V. Mehta & Sons Ltd. v. Century Shipping and Manufacturing Co. Ltd. 1962 Supp (3) SCR 549 while observing in para 2 as under:2. ….Indeed it is well settled that the construction of a document of title or of a document which is the foundation of the rights of parties necessarily raises a question of law13. Returning to the factual controversy in issue and the analysis of the same by the High Court, the perusal of the gift deed shows that what is sought to be gifteddoes not mention any lesser land than the whole land. If the plea of the appellant was to be accepted, then there should have been some area stated to have been gifted while the other would have been held back. This is not so. Of course, the submission of the learned senior counsel for the appellant is that the area remained undivided and that is why the partition was being sought14. We may also notice that when the reference is made to Rs.800/-, it is in the context of half the value of Rs.1600/-, a methodology adopted which is prevalent in this part of the country while recording such translation wherefor accuracy of the figures, half the amount is mentioned to ensure that the actual figure is correctly reflected. Not only that the translation would show that the donee is deemed to be the owner in possession of my gifted land . Thus, whatever land was gifted, the possession was handed over. In the facts of the present case the possession of the complete land is undisputedly initially with the Ist defendant then with the IInd defendant and thereafter with the IIIrd and IVth defendants15. We may also take note of the fact that jamabandi for the first time was done in the name of late Gurdev Kaur for 1969-70. Prior to that the whole land remained in the name of late Chaman Lal, the original owner. It is not as if the jamabandi was done for half the land in favour of late Chaman Lal and half in favour of late Gurdev Kaur. If at all a grievance would have arisen on behalf of late Chaman Lal that could have been an occasion for it. The first time the matter is sought to be raised is 17 years later and after about 16 years of the land in question being sold to the IInd defendant. Thus, the conduct of the parties also suggests that the parties understood that whole land was gifted and the possession of the whole land was handed over17. In this behalf learned senior counsel for the respondent has pointed out to us that the Indian Stamp (Punjab Amendment) Act, 1958 received the assent of the Governor of Punjab on 23.04.1958 and was published in the Gazette on 25.4.1958. Transaction in question was prior to that date. That plea will thus not hold much water18. We are, thus, unequivocally of the view that the status of the property is not liable to be disturbed after such a prolong period of time in the context of the facts and the legal position which has emerged since 10.3.1958. The gift deed can be read in one manner, and only in one manner19. We are thus not inclined to entertain the present appeal. | 0 | 2,395 | 1,294 | ### Instruction:
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Punjab Court Act. We say so as the fulcrum of the dispute was the gift deed itself being the document in question. The document was originally penned down in Urdu with the Persian dialect and was thereafter translated to the Punjabi language. The next translation was done in English as also the transliteration. Thus there would be a reliance on an inaccurate document if the translation and the transliteration was not accurate. This is the objective which was sought to be subserved by getting an authenticated translation done in the High Court and the concession/submission of the appellants herein recorded in order dated 02.04.2002 in respect of the translation, albeit the order being set aside. The acknowledgment of both the parties to the accuracy of the translation and the transliteration could not be doubted thereafter. If the substratum being the document has been inaccurately translated then there would be a fundamental legal infirmity in the interpretation to be given and in determining the controversy in question. We are thus not inclined to accept this preliminary objection sought to be raised by learned senior counsel for the appellant on the right of the High Court to look into the question on merits. 12. We are fortified in our aforesaid view by earlier judicial pronouncements. We may note that these judgments are in the context of the provisions for second appeal under Section 100 of the said Code as it existed prior to the amendment of 1976, which is almost pari materia to the existing provision which applies to Punjab (as noticed in Pankajakshi (D) through LRs & Ors.Per se construction of documents (unless documents of title) to prove a question of fact do not involve an issue of law unless it can be shown that the material evidence contained in that was misunderstood by the court of fact. (1963) 2 SCR 208 In the facts of the present case we are, in fact, dealing with a document of title, i.e., the Gift Deed. Thus, there can be little doubt that if the translation of the document itself is not correctly done, an aspect which was addressed to by the High Court by getting the translation done, which was accepted, then the correct translation would have to be re- construed. It is this principle, which was recognized in Sir Chunilal V. Mehta & Sons Ltd. v. Century Shipping and Manufacturing Co. Ltd. 1962 Supp (3) SCR 549 while observing in para 2 as under: 2. ….Indeed it is well settled that the construction of a document of title or of a document which is the foundation of the rights of parties necessarily raises a question of law. 13. Returning to the factual controversy in issue and the analysis of the same by the High Court, the perusal of the gift deed shows that what is sought to be gifted does not mention any lesser land than the whole land. If the plea of the appellant was to be accepted, then there should have been some area stated to have been gifted while the other would have been held back. This is not so. Of course, the submission of the learned senior counsel for the appellant is that the area remained undivided and that is why the partition was being sought. 14. We may also notice that when the reference is made to Rs.800/-, it is in the context of half the value of Rs.1600/-, a methodology adopted which is prevalent in this part of the country while recording such translation wherefor accuracy of the figures, half the amount is mentioned to ensure that the actual figure is correctly reflected. Not only that the translation would show that the donee is deemed to be the owner in possession of my gifted land . Thus, whatever land was gifted, the possession was handed over. In the facts of the present case the possession of the complete land is undisputedly initially with the Ist defendant then with the IInd defendant and thereafter with the IIIrd and IVth defendants. 15. We may also take note of the fact that jamabandi for the first time was done in the name of late Gurdev Kaur for 1969-70. Prior to that the whole land remained in the name of late Chaman Lal, the original owner. It is not as if the jamabandi was done for half the land in favour of late Chaman Lal and half in favour of late Gurdev Kaur. If at all a grievance would have arisen on behalf of late Chaman Lal that could have been an occasion for it. The first time the matter is sought to be raised is 17 years later and after about 16 years of the land in question being sold to the IInd defendant. Thus, the conduct of the parties also suggests that the parties understood that whole land was gifted and the possession of the whole land was handed over. 16. Learned counsel for the appellant also sought to draw an inference in favour of the appellant by submitting that what had weighed with the trial court and the first appellate court was that the document of gift was stamped on the basis that the value of the gift was Rs.800/- and not Rs.1600/-. 17. In this behalf learned senior counsel for the respondent has pointed out to us that the Indian Stamp (Punjab Amendment) Act, 1958 received the assent of the Governor of Punjab on 23.04.1958 and was published in the Gazette on 25.4.1958. Transaction in question was prior to that date. That plea will thus not hold much water. 18. We are, thus, unequivocally of the view that the status of the property is not liable to be disturbed after such a prolong period of time in the context of the facts and the legal position which has emerged since 10.3.1958. The gift deed can be read in one manner, and only in one manner. 19. We are thus not inclined to entertain the present appeal.
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preliminary objection sought to be raised by learned senior counsel for the appellant on the right of the High Court to look into the question on merits11. On consideration of the matter, we find that the High Court cannot be said to have exceeded its jurisdiction, as has to be exercised within the ambit of Section 41 of the Punjab Court Act. We say so as the fulcrum of the dispute was the gift deed itself being the document in question. The document was originally penned down in Urdu with the Persian dialect and was thereafter translated to the Punjabi language. The next translation was done in English as also the transliteration. Thus there would be a reliance on an inaccurate document if the translation and the transliteration was not accurate. This is the objective which was sought to be subserved by getting an authenticated translation done in the High Court and the concession/submission of the appellants herein recorded in order dated 02.04.2002 in respect of the translation, albeit the order being set aside. The acknowledgment of both the parties to the accuracy of the translation and the transliteration could not be doubted thereafter. If the substratum being the document has been inaccurately translated then there would be a fundamental legal infirmity in the interpretation to be given and in determining the controversy in question. We are thus not inclined to accept this preliminary objection sought to be raised by learned senior counsel for the appellant on the right of the High Court to look into the question on merits12. We are fortified in our aforesaid view by earlier judicial pronouncements. We may note that these judgments are in the context of the provisions for second appeal under Section 100 of the said Code as it existed prior to the amendment of 1976, which is almost pari materia to the existing provision which applies to Punjab (as noticed in Pankajakshi (D) through LRs & Ors.Per se construction of documents (unless documents of title) to prove a question of fact do not involve an issue of law unless it can be shown that the material evidence contained in that was misunderstood by the court of fact. (1963) 2 SCR 208 In the facts of the present case we are, in fact, dealing with a document of title, i.e., the Gift Deed. Thus, there can be little doubt that if the translation of the document itself is not correctly done, an aspect which was addressed to by the High Court by getting the translation done, which was accepted, then the correct translation would have to be re- construed. It is this principle, which was recognized in Sir Chunilal V. Mehta & Sons Ltd. v. Century Shipping and Manufacturing Co. Ltd. 1962 Supp (3) SCR 549 while observing in para 2 as under:2. ….Indeed it is well settled that the construction of a document of title or of a document which is the foundation of the rights of parties necessarily raises a question of law13. Returning to the factual controversy in issue and the analysis of the same by the High Court, the perusal of the gift deed shows that what is sought to be gifteddoes not mention any lesser land than the whole land. If the plea of the appellant was to be accepted, then there should have been some area stated to have been gifted while the other would have been held back. This is not so. Of course, the submission of the learned senior counsel for the appellant is that the area remained undivided and that is why the partition was being sought14. We may also notice that when the reference is made to Rs.800/-, it is in the context of half the value of Rs.1600/-, a methodology adopted which is prevalent in this part of the country while recording such translation wherefor accuracy of the figures, half the amount is mentioned to ensure that the actual figure is correctly reflected. Not only that the translation would show that the donee is deemed to be the owner in possession of my gifted land . Thus, whatever land was gifted, the possession was handed over. In the facts of the present case the possession of the complete land is undisputedly initially with the Ist defendant then with the IInd defendant and thereafter with the IIIrd and IVth defendants15. We may also take note of the fact that jamabandi for the first time was done in the name of late Gurdev Kaur for 1969-70. Prior to that the whole land remained in the name of late Chaman Lal, the original owner. It is not as if the jamabandi was done for half the land in favour of late Chaman Lal and half in favour of late Gurdev Kaur. If at all a grievance would have arisen on behalf of late Chaman Lal that could have been an occasion for it. The first time the matter is sought to be raised is 17 years later and after about 16 years of the land in question being sold to the IInd defendant. Thus, the conduct of the parties also suggests that the parties understood that whole land was gifted and the possession of the whole land was handed over17. In this behalf learned senior counsel for the respondent has pointed out to us that the Indian Stamp (Punjab Amendment) Act, 1958 received the assent of the Governor of Punjab on 23.04.1958 and was published in the Gazette on 25.4.1958. Transaction in question was prior to that date. That plea will thus not hold much water18. We are, thus, unequivocally of the view that the status of the property is not liable to be disturbed after such a prolong period of time in the context of the facts and the legal position which has emerged since 10.3.1958. The gift deed can be read in one manner, and only in one manner19. We are thus not inclined to entertain the present appeal.
|
M/S. French India Importing Corporation, Delhi Vs. The Chief Controller Of Imports & Exports And Others | as mentioned in this Agreement to realise customs duty on goods imported after the merror should be taken into consideration in applying the saving provisions of the order in notification S. R. O. 3315.25. We are unable to persuade ourselves that there is any justification in reading into the order S. R. O. 3315 anything to the contrary that might have been expressed in the Indo-French Agreement. It is true that the provisions of this para, of the Indo-French Agreement were referred to in the majority judgment in the Universal Imports Agency case, AIR 1961 SC 41 and it was said that the conclusion already reached was reinforced by what appeared in para 17. It is one thing however for a court to consider that conclusion reached on legal principles is in keeping, with the intention expressed in a document between high contracting parties, it is quite another thing to say that the conclusion reached on legal principles should be departed from because it seems to be at variance with what has been said in such a document. In view of what was agreed to in para 17 of the Indo-French Agreement there would have been no difficulty for the Government of India to make provision when providing for the saving of the operation of certain laws to be applied to the French Establishments in respect of "things done" before the commencement of the order to exempt the levy of customs duty from such saving. That was not done. There is nothing in law that we are aware of which would compel the Government of India because of the above Agreement, in para 17 to extend the provisions of levy of customs duty in the Sea Customs Act in respect of things done before the commencement of the order. Though the Government of India could have well made the exception when inserting the saving clause in the order S. R. O. 3315 in respect of levy of customs duty they did not do so. It will be improper in our opinion to hold that even though the Government of India did not expect it we should do so to give effect to what is considered to be the Government of Indias intention as expressed in the Indo-French Agreement. Reference has also been made to another order made by the Government of India. i.e. S.R.O. 3314 which saved the operation of the pre-existing French law except in so far as it had been affected by S.R.O. 3315.26. Paragraph 5 of this order provides that all laws in force in the French Establishments immediately before the commencement of the order and not repealed by paragraph 6 of the French Establishments (Application of Laws Order) 1954 that is the order in S. R. O. 3315 shall continue to be in force until repealed or amended by competent authority. Para 6 of the same order (S.R.O. 3314) provides that all taxes duties, cesses or fees which immediately before the commencement of the order were being lawfully levied in the French Establishment : in so far as such levy has not been discontinued by any of the laws extende to the French Establishments by the French Establishments (Application of Law Order) 1954 continued to be levied. Thus if any customs duty had been payable under the French law which was in force prior to November 1, 1954, that would have continued to be payable in respect of "things done" which are saved from the operation of the Indian laws in the matter by para 6 of S.R.O. 3315.27. We are unable to see how either of these provisions in S. R.O. 3314 or anything else therein can deprive the petitioners from the benefit of the saving clause in para 6 of the French Establishments (Application of Laws Order) 1954, in respect of the levy of customs duty.28. What is it that is saved by this saving provision in para 6? It is the things done before the commencement of the order. If that thing done did not include the bringing of the goods across the customs barrier, it would not have been-saved. It was held in the Universal Imports Agency case, AIR 1961 SC 41 that bringing the goods across the customs barrier was a "thing done" before the commencement of the order when the contract in pursuance of which this was done, was concluded before the date of commencement of order. Under the saving clause in para, 6. this "thing done" - i.e. the bringing the goods across the customs barrier - is saved from a body of Indian laws and is incurred to be controlled by a corresponding body of the previously prevailing French laws. It is not possible without reading into para. 6. some words like - "provided that in respect of levy of customs duty under the Sea Customs Act, the corresponding French law will cease to have effect, if the actual import takes place after the commencement of the order" - to hold that the levy of customs duty will be governed by the Indian law in respect even of an import - which was a "thing done" before the commencement : of the order.29. We are of opinion that on the law as laid down in the Universal Imports Agency case the importation of goods in the present case in pursuance of a contract which was concluded before the date of the commencement of the order (S.R.O. 3315) was governed by the French laws and not by the Indian Laws, no less as regards the question of levy of customs duty than as regards the question of import licences. Under the French lavy no duty was payable on these imports. Consequently these petitioners were not liable to pay duty on these imports.30. In our opinion the petitioners are entitled to the relief they have prayed for both against the levy of customs duty and against the order imposing penalty for importation without licence.31. We should accordingly allow the petition.ORDER32. | 1[ds]In our opinion, these are wholly immaterial. Learned Counsel had to admit that there was no legal requirement to have a Letter of Credit and also that it was not inn contravention of French law which prevailed before November 1, 1954, to obtain foreign exchange requirements by what are termed "open market purchases". In fact, in the case of the Universal Imports Agency AIR 1961 SC 41 the orders impugned were passed and were sought to be supported before this Court on the ground that the foreign exchange requirements were met by "open market purchases" and that in consequence the importation was not authorized by the French law, and this contention was expressly negatived. We therefore hold that the petitioners are entitled to relief so far as the petition relates to the quashing of the order imposing the penalty and for a direction to refund the same.We find ourselves unable to accept this argument. The expression "free port" in the case of Pondicherry merely meant freedom from restriction as to importation in the shape of licence, etc., and not a complete absence of duties leviable on importation. But that apart, if the submission of the learned counsel amounted to saying that the point about the exemption of the petitioner from payment of customs duty is also covered by the decision of this Court in Universal Imports Agencys case AIR 1961 SC 41 we consider it wholly unjustified. As we have already shown, the liability to pay customs duty was admitted by the petitioner and the reasoning by which he sought relief in this Court proceeded on the basis that such duties were exigible. Besides, the entire reasoning of Subba Rao, J., was directed to show that the authorisation under the French law to effect the import should be held to protect the petitioners then before the Court from being treated as having imported goods without a licence under the Imports and Exports (Control)for instance, if S.R.O. 3315 contained a specific proviso excepting from the saving as regards "things done" the obligation, say, to pay duties of customs, it could hardly be contended that as the imports under pre-transfer contracts should be deemed to be authorised even if the goods arrive subsequent thereto, they should be exempt from the payment of duty. No doubt there is no such express provision but such a situation can also arise by necessarywe have already pointed out, this is exactly what is sought to be achieved by the conjoint operation of para. 6 of S.R.O. 3314 and the extension of fiscal laws to Pondicherry effected by paragraph 3 of S.R.O. 3315. It is precisely this that is also brought out by paragarph 4 of the notification dated November 1, 1954, extracted earlier. In the circumstances it looks somewhat curious that the petitioners now before us, who as interveners in the petitions by the Universal Imports Agency etc., supported the invoking of para. 6 of S.R.O. 3314, or Art. 17 of the Articles of Agreement and para 4 of the notification dated November 1, 1954, as an aid to the construction of the words "things done" in para. 6 of S.R.O. 3315 - the Government resisting their use as an aid, should now take up the position that these materials are irrelevant for determining the scope of those crucial words.In our opinion the petitioners are not entitled to have their goods imported into Pondicherry after November 1, 1954, without payment of customs duty notwithstanding that the contracts by reason of which the goods were imported, were entered into or the shipment took place before that date.17. The result is that the petition is allowed and the orders of the Government, of the Central Board of Revenue and the Collector of Customs are quashed only in so far as they impose a penalty on the petitioner for importing goods without a licence under the Imports and Exports (Control) Act, 1947, and the Import Control Order. The respondents were entitled to demand and to enforce the payment of customs duty and the relief prayed in the petition in so far as it relates to the quashing of the order in that respect and the refund of the duty collected, fails and isare unable to persuade ourselves that there is any justification in reading into the order S. R. O. 3315 anything to the contrary that might have been expressed in the Indo-French Agreement. It is true that the provisions of this para, of the Indo-French Agreement were referred to in the majority judgment in the Universal Imports Agency case, AIR 1961 SC 41 and it was said that the conclusion already reached was reinforced by what appeared in para 17. It is one thing however for a court to consider that conclusion reached on legal principles is in keeping, with the intention expressed in a document between high contracting parties, it is quite another thing to say that the conclusion reached on legal principles should be departed from because it seems to be at variance with what has been said in such a document. In view of what was agreed to in para 17 of the Indo-French Agreement there would have been no difficulty for the Government of India to make provision when providing for the saving of the operation of certain laws to be applied to the French Establishments in respect of "things done" before the commencement of the order to exempt the levy of customs duty from such saving. That was not done. There is nothing in law that we are aware of which would compel the Government of India because of the above Agreement, in para 17 to extend the provisions of levy of customs duty in the Sea Customs Act in respect of things done before the commencement of the order. Though the Government of India could have well made the exception when inserting the saving clause in the order S. R. O. 3315 in respect of levy of customs duty they did not do so. It will be improper in our opinion to hold that even though the Government of India did not expect it we should do so to give effect to what is considered to be the Government of Indias intention as expressed in the Indo-French Agreement. Reference has also been made to another order made by the Government of India. i.e. S.R.O. 3314 which saved the operation of the pre-existing French law except in so far as it had been affected by S.R.O. 3315. | 1 | 8,198 | 1,179 | ### Instruction:
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as mentioned in this Agreement to realise customs duty on goods imported after the merror should be taken into consideration in applying the saving provisions of the order in notification S. R. O. 3315.25. We are unable to persuade ourselves that there is any justification in reading into the order S. R. O. 3315 anything to the contrary that might have been expressed in the Indo-French Agreement. It is true that the provisions of this para, of the Indo-French Agreement were referred to in the majority judgment in the Universal Imports Agency case, AIR 1961 SC 41 and it was said that the conclusion already reached was reinforced by what appeared in para 17. It is one thing however for a court to consider that conclusion reached on legal principles is in keeping, with the intention expressed in a document between high contracting parties, it is quite another thing to say that the conclusion reached on legal principles should be departed from because it seems to be at variance with what has been said in such a document. In view of what was agreed to in para 17 of the Indo-French Agreement there would have been no difficulty for the Government of India to make provision when providing for the saving of the operation of certain laws to be applied to the French Establishments in respect of "things done" before the commencement of the order to exempt the levy of customs duty from such saving. That was not done. There is nothing in law that we are aware of which would compel the Government of India because of the above Agreement, in para 17 to extend the provisions of levy of customs duty in the Sea Customs Act in respect of things done before the commencement of the order. Though the Government of India could have well made the exception when inserting the saving clause in the order S. R. O. 3315 in respect of levy of customs duty they did not do so. It will be improper in our opinion to hold that even though the Government of India did not expect it we should do so to give effect to what is considered to be the Government of Indias intention as expressed in the Indo-French Agreement. Reference has also been made to another order made by the Government of India. i.e. S.R.O. 3314 which saved the operation of the pre-existing French law except in so far as it had been affected by S.R.O. 3315.26. Paragraph 5 of this order provides that all laws in force in the French Establishments immediately before the commencement of the order and not repealed by paragraph 6 of the French Establishments (Application of Laws Order) 1954 that is the order in S. R. O. 3315 shall continue to be in force until repealed or amended by competent authority. Para 6 of the same order (S.R.O. 3314) provides that all taxes duties, cesses or fees which immediately before the commencement of the order were being lawfully levied in the French Establishment : in so far as such levy has not been discontinued by any of the laws extende to the French Establishments by the French Establishments (Application of Law Order) 1954 continued to be levied. Thus if any customs duty had been payable under the French law which was in force prior to November 1, 1954, that would have continued to be payable in respect of "things done" which are saved from the operation of the Indian laws in the matter by para 6 of S.R.O. 3315.27. We are unable to see how either of these provisions in S. R.O. 3314 or anything else therein can deprive the petitioners from the benefit of the saving clause in para 6 of the French Establishments (Application of Laws Order) 1954, in respect of the levy of customs duty.28. What is it that is saved by this saving provision in para 6? It is the things done before the commencement of the order. If that thing done did not include the bringing of the goods across the customs barrier, it would not have been-saved. It was held in the Universal Imports Agency case, AIR 1961 SC 41 that bringing the goods across the customs barrier was a "thing done" before the commencement of the order when the contract in pursuance of which this was done, was concluded before the date of commencement of order. Under the saving clause in para, 6. this "thing done" - i.e. the bringing the goods across the customs barrier - is saved from a body of Indian laws and is incurred to be controlled by a corresponding body of the previously prevailing French laws. It is not possible without reading into para. 6. some words like - "provided that in respect of levy of customs duty under the Sea Customs Act, the corresponding French law will cease to have effect, if the actual import takes place after the commencement of the order" - to hold that the levy of customs duty will be governed by the Indian law in respect even of an import - which was a "thing done" before the commencement : of the order.29. We are of opinion that on the law as laid down in the Universal Imports Agency case the importation of goods in the present case in pursuance of a contract which was concluded before the date of the commencement of the order (S.R.O. 3315) was governed by the French laws and not by the Indian Laws, no less as regards the question of levy of customs duty than as regards the question of import licences. Under the French lavy no duty was payable on these imports. Consequently these petitioners were not liable to pay duty on these imports.30. In our opinion the petitioners are entitled to the relief they have prayed for both against the levy of customs duty and against the order imposing penalty for importation without licence.31. We should accordingly allow the petition.ORDER32.
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foreign exchange requirements were met by "open market purchases" and that in consequence the importation was not authorized by the French law, and this contention was expressly negatived. We therefore hold that the petitioners are entitled to relief so far as the petition relates to the quashing of the order imposing the penalty and for a direction to refund the same.We find ourselves unable to accept this argument. The expression "free port" in the case of Pondicherry merely meant freedom from restriction as to importation in the shape of licence, etc., and not a complete absence of duties leviable on importation. But that apart, if the submission of the learned counsel amounted to saying that the point about the exemption of the petitioner from payment of customs duty is also covered by the decision of this Court in Universal Imports Agencys case AIR 1961 SC 41 we consider it wholly unjustified. As we have already shown, the liability to pay customs duty was admitted by the petitioner and the reasoning by which he sought relief in this Court proceeded on the basis that such duties were exigible. Besides, the entire reasoning of Subba Rao, J., was directed to show that the authorisation under the French law to effect the import should be held to protect the petitioners then before the Court from being treated as having imported goods without a licence under the Imports and Exports (Control)for instance, if S.R.O. 3315 contained a specific proviso excepting from the saving as regards "things done" the obligation, say, to pay duties of customs, it could hardly be contended that as the imports under pre-transfer contracts should be deemed to be authorised even if the goods arrive subsequent thereto, they should be exempt from the payment of duty. No doubt there is no such express provision but such a situation can also arise by necessarywe have already pointed out, this is exactly what is sought to be achieved by the conjoint operation of para. 6 of S.R.O. 3314 and the extension of fiscal laws to Pondicherry effected by paragraph 3 of S.R.O. 3315. It is precisely this that is also brought out by paragarph 4 of the notification dated November 1, 1954, extracted earlier. In the circumstances it looks somewhat curious that the petitioners now before us, who as interveners in the petitions by the Universal Imports Agency etc., supported the invoking of para. 6 of S.R.O. 3314, or Art. 17 of the Articles of Agreement and para 4 of the notification dated November 1, 1954, as an aid to the construction of the words "things done" in para. 6 of S.R.O. 3315 - the Government resisting their use as an aid, should now take up the position that these materials are irrelevant for determining the scope of those crucial words.In our opinion the petitioners are not entitled to have their goods imported into Pondicherry after November 1, 1954, without payment of customs duty notwithstanding that the contracts by reason of which the goods were imported, were entered into or the shipment took place before that date.17. The result is that the petition is allowed and the orders of the Government, of the Central Board of Revenue and the Collector of Customs are quashed only in so far as they impose a penalty on the petitioner for importing goods without a licence under the Imports and Exports (Control) Act, 1947, and the Import Control Order. The respondents were entitled to demand and to enforce the payment of customs duty and the relief prayed in the petition in so far as it relates to the quashing of the order in that respect and the refund of the duty collected, fails and isare unable to persuade ourselves that there is any justification in reading into the order S. R. O. 3315 anything to the contrary that might have been expressed in the Indo-French Agreement. It is true that the provisions of this para, of the Indo-French Agreement were referred to in the majority judgment in the Universal Imports Agency case, AIR 1961 SC 41 and it was said that the conclusion already reached was reinforced by what appeared in para 17. It is one thing however for a court to consider that conclusion reached on legal principles is in keeping, with the intention expressed in a document between high contracting parties, it is quite another thing to say that the conclusion reached on legal principles should be departed from because it seems to be at variance with what has been said in such a document. In view of what was agreed to in para 17 of the Indo-French Agreement there would have been no difficulty for the Government of India to make provision when providing for the saving of the operation of certain laws to be applied to the French Establishments in respect of "things done" before the commencement of the order to exempt the levy of customs duty from such saving. That was not done. There is nothing in law that we are aware of which would compel the Government of India because of the above Agreement, in para 17 to extend the provisions of levy of customs duty in the Sea Customs Act in respect of things done before the commencement of the order. Though the Government of India could have well made the exception when inserting the saving clause in the order S. R. O. 3315 in respect of levy of customs duty they did not do so. It will be improper in our opinion to hold that even though the Government of India did not expect it we should do so to give effect to what is considered to be the Government of Indias intention as expressed in the Indo-French Agreement. Reference has also been made to another order made by the Government of India. i.e. S.R.O. 3314 which saved the operation of the pre-existing French law except in so far as it had been affected by S.R.O. 3315.
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Laxami Devi Vs. State Of Bihar | compensation for the expropriation. 22. The Constitution Bench of this Court had to interpret Section 17 in Raja Anand Brahma Shah v. State of U.P. (1967) 1 SCR 373 , but in somewhat different circumstances. The State proposed to take over large tracts of land “for limestone quarry” on urgency basis; by virtue of Section 17(4), Section 5A was held not to be available. The Collector of Mirzapur was directed by the Notification under Section 17(1) of the Act to take possession of the “waste or arable land” even in the absence of an Award being published. The Constitution Bench held that the limestone quarries belonging to the Appellant, which were proposed to be acquired, could not possibly be conceived of or categorised as “waste or arable land, the acquisition, inasmuch as it proceeded under Section 17, could not pass muster of law. What is very pertinent for the present purposes is that the Constitution Bench had declined issuance of a mandamus commanding the State to restore possession of the land to the Appellant, not because this was inconceivable or impermissible in law or because of any provisions in the L.A. Act, but rather because the lands had validly vested in the State of U.P. under the U.P. Zamindari Abolition and Land Reforms Act, 1951. The conundrum of the restoration of the land had directly arisen before the Constitution Bench and since it declined the prayer for other reasons, it follows that there is no constraint or impediment for the grant of an appropriate Writ in this regard. This will fortify our distillation of the ratio desidendi of Satendra Prasad Jain which is circumscribed and restricted to the extent that the State is not empowered to withdraw from an acquisition once it has taken possession of the said lands. 23. We do, however, recognize that Satendra Prasad Jain has been interpreted more broadly in the past. In Allahabad Development Authority vs. Naziruzzaman (1996) 6 SCC 424 , General Manager, Telecommunication vs. Dr. Madan Mohan Pradhan 1995 Supp (4) SCC 268, and Banda Development Authority, Banda vs. Mota Lal Agarwal (2011) 5 SCC 394 , this Court has dismissed the landowners’ challenges to the respective acquisitions on the basis of Avinash Sharma and Satendra Prasad Jain. It is pertinent to note that all three of these cases were brief in their explanations of Avinash Sharma and Satendra Prasad Jain, and did not examine their rationes decidendi, their innate contradictions, their intentions or their consequences at any length. We thus feel it appropriate to rely on our own detailed exploration of these cases, as opposed to simply placing reliance on the largely contradictory case law that has developed over the years. It was for this reason that we had revisited the curial concept of ratio decidendi. 24. The scenario before us depicts the carelessness and the callousness of the State, quite different from the situation in Satendra Prasad Jain and Avinash Sharma. The Appellants herein are being denied just and fair compensation for their land in proceedings which commenced in 1987, despite the directions of the High Court passed as early as in 1988 to pass an award within four months. The raison d’etre behind the introduction of Section 11A was for the landowners to have a remedy in the event of an award not being passed expeditiously. If Satendra Prasad Jain is interpreted to mean that Section 11A will not apply to any acquisition under the urgency provisions, landowners such as the Appellants before us will have no protection, even if they are not paid full compensation for their land for decades. This cannot be in keeping with the legislative intent behind this Section. Furthermore, keeping empirical evidence in sight, we make bold to opine that circumstances require this Court to reconsider its view that even if the stated public interest or cause has ceased to exist, any other cause can substitute it, especially where the urgency provisions have been invoked.25. We feel it imperative to distinguish between the setting aside of an acquisition and the reversion of possession to the erstwhile landowners. While the L.A. Act and the judgments discussed above do not allow for the latter, we are of the considered opinion that this does not necessarily imply that the former is also not an option. Both the abovementioned cases dealt with a factual situation in which the Government was attempting to set the acquisition of the land at naught so that they would not have to pay compensation to acquire it. Setting aside of the acquisition in those cases was tantamount to reverting the possession to the original owners. In this scenario, however, the two do not have to go hand in hand. In allowing the acquisition of land that the Government finds necessary to be set aside, we would not necessarily be holding that the land revert to the Appellants, as the alternative of permitting the Government to keep possession provided it re-acquires the land with a new Section 4 notification exists. This option, particularly in the present factual matrix, does the least violence to the intent and content of the L.A. Act, in that it upholds Section 11A even in cases of acquisition under Section 17 while preserving the requirement of Section 17 that the unencumbered possession of the land remain vested in the Government. It also protects the rights of the landowners, thus fulfilling the intent of Section 11A, while allowing the Government to acquire land in cases of emergencies without its title being challenged, which is the avowed intention of Section 17. Any other interpretation of the law would serve to protect only those landowners who had approached the Court to stop the Government from undoing an emergency acquisition, while leaving in the cold equally aggrieved landowners seeking to enforce their right to fair compensation for their land. Even equity demands that the party bearing the consequence of the delay in the Award ought not to be the innocent landowner, but the errant State. | 1[ds]8. Section 11A has been introduced by Act 68 of 1984 prescribing a limitation of two years for the making of an Award by the Collector. It is only post this event that Section 16 empowers the Collector to take possession of the land which thereupon vests absolutely in the Government, free from all encumbrances. We may clarify that the wordhas two connotations – the first and primary one relates to possession of land; and the second, an adjunctory one, pertains additionally to the title of that land. But this distinction has not been drawn in India since this Court has held in several cases thatin the circumstances with which we are presently concerned, covers and encompasses the possession as well as the title of the land.The salient concomitants of Section 17(1) deserve enumeration. Firstly, the Section is attracted even though an Award has not been made which, it appears to us, clearly indicates that the completion of this exercise has not been obliterated or dispensed with but has been merely deferred. An unambiguous and unequivocal statement could have been made excluding the requirement of publishing an Award. Secondly, it is available only on the expiration of fifteen days from the issuance of the Section 9 notice. This hiatus of fifteen days must be honoured as its purpose appears to be to enable the affected or aggrieved parties to seek appropriate remedy before they are divested of the possession and the title over their land. The Government shall perforce have to invite and then consider Objections preferred under Section 5A, which procedure as painstakingly and steadfastly observed by this Court constitutes the Constitutional right to property of every citizen; inasmuch as Section 17(4) enables the obliteration of this valuable right, this Court has repeatedly restated that valid and pressing reasons must be present to justify the invocation of these provisions by the Government. Thirdly, possession of the land can be taken only if it is needed for public purpose, which term stands defined in the preceding Section 3(f).A conjoint reading of Sections 17 and 3(f) makes it apparent to us that urgency provisions cannot be pressed into service or resorted to if the acquisition of land is for Companies; however we must be quick to add that this question does not arise before us. Fourthly, possession of such lands would vest in the Government only when the foregoing factors have been formally and strictly complied with. This Section enables the curtailment of aConstitutional right to property and can be resorted to only if the provisions and preconditions are punctiliously and meticulously adhered to, lest the vesting be struck down and set aside by the Court in its writ jurisdiction, on the application of the Taylor vs. Taylor (1875) 1 Ch D 426 and several judgments of this Court which has followed this decisionion (4) sounds the death knell to the arguments put forward for the Respondent State, inasmuch as it allows the option to the appropriate Government to make the provisions of Section 5A inapplicable. Paraphrased differently, even where the urgency provisions contained in Section 17 are resorted to, ordinarily the provisions of Section 5A have to be adhered to, i.e. inviting and then deciding the Objections filed by the landowners. Significantly,(4) of Section 17 does not, as it very easily could have, exempt compliance with the publication of the Declaration under Section 6 and the hearing of parties preparatory to the passing of an Award under Sections 9 to 11 of the Act. There is, therefore, not even an iota of doubt that remains pertaining to the absolute necessity of the passing of an Award under Section 11 of the L.A. Act. We are in no manner of doubt, and we reiterate, that the tender of the estimated compensation is the precondition, the sine qua non, enabling the Government to take possession of land under the foregoing subsections; and must be followed by the exercise of computation of compensation in a procedure corresponding to that in Section 11. We shall revert to the question of whether the constraints contained in Section 11A will also apply to acquisitions in which Section 17 has been resorted to.The plea before us from the Appellants is that the land should revert to them under Section 11A, since an Award under Section 11 has still not been made despite the passage of almost three decades from the date of the subject Notification. This Court has continuously held that once land has vested in the State, the question ofits possession in the erstwhile landowners is no longer available as an option to the State. This legal position was enunciated close to a half century ago in Avinash Sharma and has been subsequently reiterated in numerous judgments.The scenario before us depicts the carelessness and the callousness of the State, quite different from the situation in Satendra Prasad Jain and Avinash Sharma. The Appellants herein are being denied just and fair compensation for their land in proceedings which commenced in 1987, despite the directions of the High Court passed as early as in 1988 to pass an award within four months. The raisonbehind the introduction of Section 11A was for the landowners to have a remedy in the event of an award not being passed expeditiously. If Satendra Prasad Jain is interpreted to mean that Section 11A will not apply to any acquisition under the urgency provisions, landowners such as the Appellants before us will have no protection, even if they are not paid full compensation for their land for decades. This cannot be in keeping with the legislative intent behind this Section. Furthermore, keeping empirical evidence in sight, we make bold to opine that circumstances require this Court to reconsider its view that even if the stated public interest or cause has ceased to exist, any other cause can substitute it, especially where the urgency provisions have been invoked.25. We feel it imperative to distinguish between the setting aside of an acquisition and the reversion of possession to the erstwhile landowners. While the L.A. Act and the judgments discussed above do not allow for the latter, we are of the considered opinion that this does not necessarily imply that the former is also not an option. Both the abovementioned cases dealt with a factual situation in which the Government was attempting to set the acquisition of the land at naught so that they would not have to pay compensation to acquire it. Setting aside of the acquisition in those cases was tantamount to reverting the possession to the original owners. In this scenario, however, the two do not have to go hand in hand. In allowing the acquisition of land that the Government finds necessary to be set aside, we would not necessarily be holding that the land revert to the Appellants, as the alternative of permitting the Government to keep possession provided itthe land with a new Section 4 notification exists. This option, particularly in the present factual matrix, does the least violence to the intent and content of the L.A. Act, in that it upholds Section 11A even in cases of acquisition under Section 17 while preserving the requirement of Section 17 that the unencumbered possession of the land remain vested in the Government. It also protects the rights of the landowners, thus fulfilling the intent of Section 11A, while allowing the Government to acquire land in cases of emergencies without its title being challenged, which is the avowed intention of Section 17. Any other interpretation of the law would serve to protect only those landowners who had approached the Court to stop the Government from undoing an emergency acquisition, while leaving in the cold equally aggrieved landowners seeking to enforce their right to fair compensation for their land. Even equity demands that the party bearing the consequence of the delay in the Award ought not to be the innocent landowner, but the errant State. | 1 | 10,035 | 1,438 | ### Instruction:
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compensation for the expropriation. 22. The Constitution Bench of this Court had to interpret Section 17 in Raja Anand Brahma Shah v. State of U.P. (1967) 1 SCR 373 , but in somewhat different circumstances. The State proposed to take over large tracts of land “for limestone quarry” on urgency basis; by virtue of Section 17(4), Section 5A was held not to be available. The Collector of Mirzapur was directed by the Notification under Section 17(1) of the Act to take possession of the “waste or arable land” even in the absence of an Award being published. The Constitution Bench held that the limestone quarries belonging to the Appellant, which were proposed to be acquired, could not possibly be conceived of or categorised as “waste or arable land, the acquisition, inasmuch as it proceeded under Section 17, could not pass muster of law. What is very pertinent for the present purposes is that the Constitution Bench had declined issuance of a mandamus commanding the State to restore possession of the land to the Appellant, not because this was inconceivable or impermissible in law or because of any provisions in the L.A. Act, but rather because the lands had validly vested in the State of U.P. under the U.P. Zamindari Abolition and Land Reforms Act, 1951. The conundrum of the restoration of the land had directly arisen before the Constitution Bench and since it declined the prayer for other reasons, it follows that there is no constraint or impediment for the grant of an appropriate Writ in this regard. This will fortify our distillation of the ratio desidendi of Satendra Prasad Jain which is circumscribed and restricted to the extent that the State is not empowered to withdraw from an acquisition once it has taken possession of the said lands. 23. We do, however, recognize that Satendra Prasad Jain has been interpreted more broadly in the past. In Allahabad Development Authority vs. Naziruzzaman (1996) 6 SCC 424 , General Manager, Telecommunication vs. Dr. Madan Mohan Pradhan 1995 Supp (4) SCC 268, and Banda Development Authority, Banda vs. Mota Lal Agarwal (2011) 5 SCC 394 , this Court has dismissed the landowners’ challenges to the respective acquisitions on the basis of Avinash Sharma and Satendra Prasad Jain. It is pertinent to note that all three of these cases were brief in their explanations of Avinash Sharma and Satendra Prasad Jain, and did not examine their rationes decidendi, their innate contradictions, their intentions or their consequences at any length. We thus feel it appropriate to rely on our own detailed exploration of these cases, as opposed to simply placing reliance on the largely contradictory case law that has developed over the years. It was for this reason that we had revisited the curial concept of ratio decidendi. 24. The scenario before us depicts the carelessness and the callousness of the State, quite different from the situation in Satendra Prasad Jain and Avinash Sharma. The Appellants herein are being denied just and fair compensation for their land in proceedings which commenced in 1987, despite the directions of the High Court passed as early as in 1988 to pass an award within four months. The raison d’etre behind the introduction of Section 11A was for the landowners to have a remedy in the event of an award not being passed expeditiously. If Satendra Prasad Jain is interpreted to mean that Section 11A will not apply to any acquisition under the urgency provisions, landowners such as the Appellants before us will have no protection, even if they are not paid full compensation for their land for decades. This cannot be in keeping with the legislative intent behind this Section. Furthermore, keeping empirical evidence in sight, we make bold to opine that circumstances require this Court to reconsider its view that even if the stated public interest or cause has ceased to exist, any other cause can substitute it, especially where the urgency provisions have been invoked.25. We feel it imperative to distinguish between the setting aside of an acquisition and the reversion of possession to the erstwhile landowners. While the L.A. Act and the judgments discussed above do not allow for the latter, we are of the considered opinion that this does not necessarily imply that the former is also not an option. Both the abovementioned cases dealt with a factual situation in which the Government was attempting to set the acquisition of the land at naught so that they would not have to pay compensation to acquire it. Setting aside of the acquisition in those cases was tantamount to reverting the possession to the original owners. In this scenario, however, the two do not have to go hand in hand. In allowing the acquisition of land that the Government finds necessary to be set aside, we would not necessarily be holding that the land revert to the Appellants, as the alternative of permitting the Government to keep possession provided it re-acquires the land with a new Section 4 notification exists. This option, particularly in the present factual matrix, does the least violence to the intent and content of the L.A. Act, in that it upholds Section 11A even in cases of acquisition under Section 17 while preserving the requirement of Section 17 that the unencumbered possession of the land remain vested in the Government. It also protects the rights of the landowners, thus fulfilling the intent of Section 11A, while allowing the Government to acquire land in cases of emergencies without its title being challenged, which is the avowed intention of Section 17. Any other interpretation of the law would serve to protect only those landowners who had approached the Court to stop the Government from undoing an emergency acquisition, while leaving in the cold equally aggrieved landowners seeking to enforce their right to fair compensation for their land. Even equity demands that the party bearing the consequence of the delay in the Award ought not to be the innocent landowner, but the errant State.
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only if it is needed for public purpose, which term stands defined in the preceding Section 3(f).A conjoint reading of Sections 17 and 3(f) makes it apparent to us that urgency provisions cannot be pressed into service or resorted to if the acquisition of land is for Companies; however we must be quick to add that this question does not arise before us. Fourthly, possession of such lands would vest in the Government only when the foregoing factors have been formally and strictly complied with. This Section enables the curtailment of aConstitutional right to property and can be resorted to only if the provisions and preconditions are punctiliously and meticulously adhered to, lest the vesting be struck down and set aside by the Court in its writ jurisdiction, on the application of the Taylor vs. Taylor (1875) 1 Ch D 426 and several judgments of this Court which has followed this decisionion (4) sounds the death knell to the arguments put forward for the Respondent State, inasmuch as it allows the option to the appropriate Government to make the provisions of Section 5A inapplicable. Paraphrased differently, even where the urgency provisions contained in Section 17 are resorted to, ordinarily the provisions of Section 5A have to be adhered to, i.e. inviting and then deciding the Objections filed by the landowners. Significantly,(4) of Section 17 does not, as it very easily could have, exempt compliance with the publication of the Declaration under Section 6 and the hearing of parties preparatory to the passing of an Award under Sections 9 to 11 of the Act. There is, therefore, not even an iota of doubt that remains pertaining to the absolute necessity of the passing of an Award under Section 11 of the L.A. Act. We are in no manner of doubt, and we reiterate, that the tender of the estimated compensation is the precondition, the sine qua non, enabling the Government to take possession of land under the foregoing subsections; and must be followed by the exercise of computation of compensation in a procedure corresponding to that in Section 11. We shall revert to the question of whether the constraints contained in Section 11A will also apply to acquisitions in which Section 17 has been resorted to.The plea before us from the Appellants is that the land should revert to them under Section 11A, since an Award under Section 11 has still not been made despite the passage of almost three decades from the date of the subject Notification. This Court has continuously held that once land has vested in the State, the question ofits possession in the erstwhile landowners is no longer available as an option to the State. This legal position was enunciated close to a half century ago in Avinash Sharma and has been subsequently reiterated in numerous judgments.The scenario before us depicts the carelessness and the callousness of the State, quite different from the situation in Satendra Prasad Jain and Avinash Sharma. The Appellants herein are being denied just and fair compensation for their land in proceedings which commenced in 1987, despite the directions of the High Court passed as early as in 1988 to pass an award within four months. The raisonbehind the introduction of Section 11A was for the landowners to have a remedy in the event of an award not being passed expeditiously. If Satendra Prasad Jain is interpreted to mean that Section 11A will not apply to any acquisition under the urgency provisions, landowners such as the Appellants before us will have no protection, even if they are not paid full compensation for their land for decades. This cannot be in keeping with the legislative intent behind this Section. Furthermore, keeping empirical evidence in sight, we make bold to opine that circumstances require this Court to reconsider its view that even if the stated public interest or cause has ceased to exist, any other cause can substitute it, especially where the urgency provisions have been invoked.25. We feel it imperative to distinguish between the setting aside of an acquisition and the reversion of possession to the erstwhile landowners. While the L.A. Act and the judgments discussed above do not allow for the latter, we are of the considered opinion that this does not necessarily imply that the former is also not an option. Both the abovementioned cases dealt with a factual situation in which the Government was attempting to set the acquisition of the land at naught so that they would not have to pay compensation to acquire it. Setting aside of the acquisition in those cases was tantamount to reverting the possession to the original owners. In this scenario, however, the two do not have to go hand in hand. In allowing the acquisition of land that the Government finds necessary to be set aside, we would not necessarily be holding that the land revert to the Appellants, as the alternative of permitting the Government to keep possession provided itthe land with a new Section 4 notification exists. This option, particularly in the present factual matrix, does the least violence to the intent and content of the L.A. Act, in that it upholds Section 11A even in cases of acquisition under Section 17 while preserving the requirement of Section 17 that the unencumbered possession of the land remain vested in the Government. It also protects the rights of the landowners, thus fulfilling the intent of Section 11A, while allowing the Government to acquire land in cases of emergencies without its title being challenged, which is the avowed intention of Section 17. Any other interpretation of the law would serve to protect only those landowners who had approached the Court to stop the Government from undoing an emergency acquisition, while leaving in the cold equally aggrieved landowners seeking to enforce their right to fair compensation for their land. Even equity demands that the party bearing the consequence of the delay in the Award ought not to be the innocent landowner, but the errant State.
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M/S Bansal Wire Industries Ltd Vs. State Of U.P | arises in cases before us due to this feature. As we have pointed out, the statement of reasons for amendment spoke of Section 14(iv) as a `"definition" of "iron and steel". A definition is expected to be exhaustive. Its very terms may, however, show that it is not meant to be exhaustive. For example, a purported definition may say that the term sought to be defined "includes" what it specifies, but, in that case, the definition itself is not complete." 30. It is thus clear, that if the object of newly substituted clause (iv) of Section 14 of the Central Act was to make iron and steel taxable as one substance, the item could have been "Goods of iron and steel" or, to be more clear, "Iron and steel irrespective of change of form or shape or character of goods made out of them". The more natural meaning, therefore is that each item specified in Section 14(iv) forms a separate species for each series of sales. When one commercial commodity is, by manufacturing process etc., transformed into another, it becomes a separate commodity for sales tax purposes. If iron bars were drawn into "wire", such wire shall be a different taxable commodity. 31. Parliament can restrict powers of State Government to tax "declared goods". Section 2(c) of the Central Act defines "declared goods" as those declared under Section 14 of Central Act as `goods of special importance in Inter State Trade or Commerce. Section 14 of the Central Act gives a list of such goods and Section 15 specifies restrictions on power of States to tax such goods. 32. This Court in the case of Rajasthan Roller Flour Mills Assn. vs. State of Rajasthan, reported in 1994 Supp (1) SCC 413, observed as under:- "16. ...... "that is to say" assigned in Strouds Judicial Dictionary (Fourth Edn.) Vol. 5 at page 2753 to the following effect:"That is to say.-- (1) `That is to say is the commencement of an ancillary clause which explains the meaning of the principal clause. It has the following properties: (1) it must not be contrary to the principal clause; (2) it must neither increase nor diminish it; (3) but where the principal clause is general in terms it may restrict it:....."17. ................."The quotation, given above, from Strouds Judicial Dictionary shows that, ordinarily, the expression, `that is to say is employed to make clear and fix the meaning of what is to be explained or defined. Such words are not used, as a rule, to amplify a meaning while removing a possible doubt for which purpose the word `includes is generally employed ... but, in the context of single point sales tax, subject to special conditions when imposed on separate categories of specified goods, the expression was apparently meant to exhaustively enumerate the kinds of goods in a given list. The purpose of an enumeration in a statute dealing with sales tax at a single point in a series of sales would, very naturally, be to indicate the types of goods each of which would constitute a separate class for a series of sales. Otherwise, the listing itself loses all meaning and would be without any purpose behind it." 33. It is thus clear, that the language used in entry no. (ix) is plain and unambiguous and that the items which are mentioned there are "tools, alloy and special steel". By using the words "of any of the above categories" in entry Nos. (ix) would refer to entries (i) to (viii) and it cannot and does not refer to entry no (xv). However, entry (xvi) of Clause (iv) would be included in entry (xvi) particularly within the expression now therein any of the aforesaid categories. Therefore, the specific entry "tool, alloy and special steel" being not applicable to entry (xv), the contention of the counsel for the appellant has to be rejected. It is, therefore, held that the stainless steel wire is not covered within entry (ix) of clause (iv) of Section 14 of Central Sales Tax Act.34. It is a settled principle of law that the words used in the section, rule or notification should not be rendered redundant and should be given effect to. It is also one of the cardinal principles of interpretation of any statue that some meaning must be given to the words used in the section. Expression "Wire rods and wires" which is mentioned in item no. (xv) would not and cannot cover the expression "tools, alloy and special steels" of entry no. (ix) nor it would refer to the expression "Iron and Steel" as each item used in entry nos. (ix) and (xv) are independent items not depending on each other at all as has been held in the case of Pyare Lal Mehrotra (supra).35. In arriving at the aforesaid conclusion, we find support from the decision of this Court in Union of India vs. Hansoli Devi reported in (2002) 7 SCC 273 wherein this Court held that it is a cardinal principle of construction of a statute that when the language of the statute is plain and unambiguous, the court must give effect to the words used in the statute.36. Besides, in a taxing Act one has to look merely at what is clearly said and there is no room for any intendment. In a taxing statute nothing is to be read in, nothing is to be implied, one can only look fairly at the language used.37. Therefore, the findings and the decision arrived at by the High Court that stainless steel wire is not covered under the entry of "tools, alloys and special steels" in entry no. (ix) and, therefore, does not fall under "Iron and Steel" as defined under Section 14(iv) of the Central Act have to be upheld. Hence, the said commodity cannot be treated as a declared commodity under Section 14 of the Central Act and provision of Section 15 of the Central Act does not apply to the facts of the present appeals. | 0[ds]26. In the aforesaid decision in Pyare Lal Mehrotra (supra) the very word "that is to say", as per Section 14 of the Central Act was considered and it was held that originally expression "that is to say" is employed to make clear and fix the meaning of what is to be explained or defined and that such words are not used, as a rule, to amplify a meaning while removing a possible doubt for which purpose the word "includes" is generally employed. In the context of Section 14 of the Central Act, this Court in the said decision held that the expression "that is to say" is used in Section 14 apparently to mean to exhaustively enumerate the kinds of goods in a given list. It was also held in the said decision that the purpose of an enumeration in a statute dealing with sales tax at a single point in a series of sales would, very naturally, be to indicate the types of goods each of which would constitute a separate class for a series of sales.Therefore, in view of the position settled by this Court, it is clearly established that so far the items as mentioned in clause (iv) of Section 14 of the Central Act is concerned, each of the categories falling under "iron and steel" constitutes a new species and each one of them is separate commodity for the purposes of sales tax.28. The expression "of any of the above categories" appearing in entry Nos. (ix) and (xvi) of clause (iv) of Section 14 of the Central Act would indicate that they would each be items referred in the preceding items. Therefore, even the expression "of any of the above categories" in entry No. (ix) of clause (iv) would only relate to steel and alloy produced for any of the materials mentioned in item nos. (i) to (viii). Thus "stainless steel wire" produced by the appellant cannot be read into item no. (xv) which reads as "wire rods and wires-rolled, drawn, galvanized, aluminized, tinned or coated such as by copper".It is thus clear, that if the object of newly substituted clause (iv) of Section 14 of the Central Act was to make iron and steel taxable as one substance, the item could have been "Goods of iron and steel" or, to be more clear, "Iron and steel irrespective of change of form or shape or character of goods made out of them". The more natural meaning, therefore is that each item specified in Section 14(iv) forms a separate species for each series of sales. When one commercial commodity is, by manufacturing process etc., transformed into another, it becomes a separate commodity for sales tax purposes. If iron bars were drawn into "wire", such wire shall be a different taxable commodity.It is thus clear, that the language used in entry no. (ix) is plain and unambiguous and that the items which are mentioned there are "tools, alloy and special steel". By using the words "of any of the above categories" in entry Nos. (ix) would refer to entries (i) to (viii) and it cannot and does not refer to entry no (xv). However, entry (xvi) of Clause (iv) would be included in entry (xvi) particularly within the expression now therein any of the aforesaid categories. Therefore, the specific entry "tool, alloy and special steel" being not applicable to entry (xv), the contention of the counsel for the appellant has to be rejected. It is, therefore, held that the stainless steel wire is not covered within entry (ix) of clause (iv) of Section 14 of Central Sales Tax Act.34. It is a settled principle of law that the words used in the section, rule or notification should not be rendered redundant and should be given effect to. It is also one of the cardinal principles of interpretation of any statue that some meaning must be given to the words used in the section. Expression "Wire rods and wires" which is mentioned in item no. (xv) would not and cannot cover the expression "tools, alloy and special steels" of entry no. (ix) nor it would refer to the expression "Iron and Steel" as each item used in entry nos. (ix) and (xv) are independent items not depending on each other at all as has been held in the case of Pyare Lal Mehrotra (supra).35. In arriving at the aforesaid conclusion, we find support from the decision of this Court in Union of India vs. Hansoli Devi reported in (2002) 7 SCC 273 wherein this Court held that it is a cardinal principle of construction of a statute that when the language of the statute is plain and unambiguous, the court must give effect to the words used in the statute.36. Besides, in a taxing Act one has to look merely at what is clearly said and there is no room for any intendment. In a taxing statute nothing is to be read in, nothing is to be implied, one can only look fairly at the language used.37. Therefore, the findings and the decision arrived at by the High Court that stainless steel wire is not covered under the entry of "tools, alloys and special steels" in entry no. (ix) and, therefore, does not fall under "Iron and Steel" as defined under Section 14(iv) of the Central Act have to be upheld. Hence, the said commodity cannot be treated as a declared commodity under Section 14 of the Central Act and provision of Section 15 of the Central Act does not apply to the facts of the present appeals. | 0 | 4,669 | 1,119 | ### 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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arises in cases before us due to this feature. As we have pointed out, the statement of reasons for amendment spoke of Section 14(iv) as a `"definition" of "iron and steel". A definition is expected to be exhaustive. Its very terms may, however, show that it is not meant to be exhaustive. For example, a purported definition may say that the term sought to be defined "includes" what it specifies, but, in that case, the definition itself is not complete." 30. It is thus clear, that if the object of newly substituted clause (iv) of Section 14 of the Central Act was to make iron and steel taxable as one substance, the item could have been "Goods of iron and steel" or, to be more clear, "Iron and steel irrespective of change of form or shape or character of goods made out of them". The more natural meaning, therefore is that each item specified in Section 14(iv) forms a separate species for each series of sales. When one commercial commodity is, by manufacturing process etc., transformed into another, it becomes a separate commodity for sales tax purposes. If iron bars were drawn into "wire", such wire shall be a different taxable commodity. 31. Parliament can restrict powers of State Government to tax "declared goods". Section 2(c) of the Central Act defines "declared goods" as those declared under Section 14 of Central Act as `goods of special importance in Inter State Trade or Commerce. Section 14 of the Central Act gives a list of such goods and Section 15 specifies restrictions on power of States to tax such goods. 32. This Court in the case of Rajasthan Roller Flour Mills Assn. vs. State of Rajasthan, reported in 1994 Supp (1) SCC 413, observed as under:- "16. ...... "that is to say" assigned in Strouds Judicial Dictionary (Fourth Edn.) Vol. 5 at page 2753 to the following effect:"That is to say.-- (1) `That is to say is the commencement of an ancillary clause which explains the meaning of the principal clause. It has the following properties: (1) it must not be contrary to the principal clause; (2) it must neither increase nor diminish it; (3) but where the principal clause is general in terms it may restrict it:....."17. ................."The quotation, given above, from Strouds Judicial Dictionary shows that, ordinarily, the expression, `that is to say is employed to make clear and fix the meaning of what is to be explained or defined. Such words are not used, as a rule, to amplify a meaning while removing a possible doubt for which purpose the word `includes is generally employed ... but, in the context of single point sales tax, subject to special conditions when imposed on separate categories of specified goods, the expression was apparently meant to exhaustively enumerate the kinds of goods in a given list. The purpose of an enumeration in a statute dealing with sales tax at a single point in a series of sales would, very naturally, be to indicate the types of goods each of which would constitute a separate class for a series of sales. Otherwise, the listing itself loses all meaning and would be without any purpose behind it." 33. It is thus clear, that the language used in entry no. (ix) is plain and unambiguous and that the items which are mentioned there are "tools, alloy and special steel". By using the words "of any of the above categories" in entry Nos. (ix) would refer to entries (i) to (viii) and it cannot and does not refer to entry no (xv). However, entry (xvi) of Clause (iv) would be included in entry (xvi) particularly within the expression now therein any of the aforesaid categories. Therefore, the specific entry "tool, alloy and special steel" being not applicable to entry (xv), the contention of the counsel for the appellant has to be rejected. It is, therefore, held that the stainless steel wire is not covered within entry (ix) of clause (iv) of Section 14 of Central Sales Tax Act.34. It is a settled principle of law that the words used in the section, rule or notification should not be rendered redundant and should be given effect to. It is also one of the cardinal principles of interpretation of any statue that some meaning must be given to the words used in the section. Expression "Wire rods and wires" which is mentioned in item no. (xv) would not and cannot cover the expression "tools, alloy and special steels" of entry no. (ix) nor it would refer to the expression "Iron and Steel" as each item used in entry nos. (ix) and (xv) are independent items not depending on each other at all as has been held in the case of Pyare Lal Mehrotra (supra).35. In arriving at the aforesaid conclusion, we find support from the decision of this Court in Union of India vs. Hansoli Devi reported in (2002) 7 SCC 273 wherein this Court held that it is a cardinal principle of construction of a statute that when the language of the statute is plain and unambiguous, the court must give effect to the words used in the statute.36. Besides, in a taxing Act one has to look merely at what is clearly said and there is no room for any intendment. In a taxing statute nothing is to be read in, nothing is to be implied, one can only look fairly at the language used.37. Therefore, the findings and the decision arrived at by the High Court that stainless steel wire is not covered under the entry of "tools, alloys and special steels" in entry no. (ix) and, therefore, does not fall under "Iron and Steel" as defined under Section 14(iv) of the Central Act have to be upheld. Hence, the said commodity cannot be treated as a declared commodity under Section 14 of the Central Act and provision of Section 15 of the Central Act does not apply to the facts of the present appeals.
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26. In the aforesaid decision in Pyare Lal Mehrotra (supra) the very word "that is to say", as per Section 14 of the Central Act was considered and it was held that originally expression "that is to say" is employed to make clear and fix the meaning of what is to be explained or defined and that such words are not used, as a rule, to amplify a meaning while removing a possible doubt for which purpose the word "includes" is generally employed. In the context of Section 14 of the Central Act, this Court in the said decision held that the expression "that is to say" is used in Section 14 apparently to mean to exhaustively enumerate the kinds of goods in a given list. It was also held in the said decision that the purpose of an enumeration in a statute dealing with sales tax at a single point in a series of sales would, very naturally, be to indicate the types of goods each of which would constitute a separate class for a series of sales.Therefore, in view of the position settled by this Court, it is clearly established that so far the items as mentioned in clause (iv) of Section 14 of the Central Act is concerned, each of the categories falling under "iron and steel" constitutes a new species and each one of them is separate commodity for the purposes of sales tax.28. The expression "of any of the above categories" appearing in entry Nos. (ix) and (xvi) of clause (iv) of Section 14 of the Central Act would indicate that they would each be items referred in the preceding items. Therefore, even the expression "of any of the above categories" in entry No. (ix) of clause (iv) would only relate to steel and alloy produced for any of the materials mentioned in item nos. (i) to (viii). Thus "stainless steel wire" produced by the appellant cannot be read into item no. (xv) which reads as "wire rods and wires-rolled, drawn, galvanized, aluminized, tinned or coated such as by copper".It is thus clear, that if the object of newly substituted clause (iv) of Section 14 of the Central Act was to make iron and steel taxable as one substance, the item could have been "Goods of iron and steel" or, to be more clear, "Iron and steel irrespective of change of form or shape or character of goods made out of them". The more natural meaning, therefore is that each item specified in Section 14(iv) forms a separate species for each series of sales. When one commercial commodity is, by manufacturing process etc., transformed into another, it becomes a separate commodity for sales tax purposes. If iron bars were drawn into "wire", such wire shall be a different taxable commodity.It is thus clear, that the language used in entry no. (ix) is plain and unambiguous and that the items which are mentioned there are "tools, alloy and special steel". By using the words "of any of the above categories" in entry Nos. (ix) would refer to entries (i) to (viii) and it cannot and does not refer to entry no (xv). However, entry (xvi) of Clause (iv) would be included in entry (xvi) particularly within the expression now therein any of the aforesaid categories. Therefore, the specific entry "tool, alloy and special steel" being not applicable to entry (xv), the contention of the counsel for the appellant has to be rejected. It is, therefore, held that the stainless steel wire is not covered within entry (ix) of clause (iv) of Section 14 of Central Sales Tax Act.34. It is a settled principle of law that the words used in the section, rule or notification should not be rendered redundant and should be given effect to. It is also one of the cardinal principles of interpretation of any statue that some meaning must be given to the words used in the section. Expression "Wire rods and wires" which is mentioned in item no. (xv) would not and cannot cover the expression "tools, alloy and special steels" of entry no. (ix) nor it would refer to the expression "Iron and Steel" as each item used in entry nos. (ix) and (xv) are independent items not depending on each other at all as has been held in the case of Pyare Lal Mehrotra (supra).35. In arriving at the aforesaid conclusion, we find support from the decision of this Court in Union of India vs. Hansoli Devi reported in (2002) 7 SCC 273 wherein this Court held that it is a cardinal principle of construction of a statute that when the language of the statute is plain and unambiguous, the court must give effect to the words used in the statute.36. Besides, in a taxing Act one has to look merely at what is clearly said and there is no room for any intendment. In a taxing statute nothing is to be read in, nothing is to be implied, one can only look fairly at the language used.37. Therefore, the findings and the decision arrived at by the High Court that stainless steel wire is not covered under the entry of "tools, alloys and special steels" in entry no. (ix) and, therefore, does not fall under "Iron and Steel" as defined under Section 14(iv) of the Central Act have to be upheld. Hence, the said commodity cannot be treated as a declared commodity under Section 14 of the Central Act and provision of Section 15 of the Central Act does not apply to the facts of the present appeals.
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Krishnapasuba Rao Kundapur (Dead) After Him His 1. r. & Another Vs. Dattatraya Krishnaji Karani | the contention, it is necessary to set out the following facts. The respondent landlord purchased the aforesaid City Survey No. 1577/17 on June 17, 1946 Defendant No. 1 was the lessee of the property under a rent note dated August 28, 1948 executed by the previous owner. The lease was for five years and expired on August 28, 1948. The present suit was instituted on June 3, 1957. The rent note covered the entire City Survey No. 1577/17 including not only the suit land but also the portion on the northeast corner outside the purview of the suit. On the northeast corner there is a temporary structure erected by the landlord, and this structure is in the occupation of a sub-lessee, one Malkajappa Nargund. The Courts below have concurrently found that the suit in respect of the land excluding the northeastern portion is maintainable. This finding is no longer challenged. In this appeal, we are, therefore, not concerned with the tenancy in respect of the portion on the northeast corner. Defendant No. 1 constructed a building on the suit land, and both defendants are carrying on business there. The respondent now seeks to recover possession of the suit land under S. 18(1)(i) of the Act. Section 5(8) of the Act defines premises thus:"5. In this Act unless there is anything repugnant to the subject or context -* * * *(8) premises means-(a) any land not being used for agricultural purposes,(b) any building or part of a building let separately (other than a farm building) including-(i) the garden, grounds garages and outhouses, if any, appurtenant to such building or part of building.(ii) any furniture supplied by the landlord for use in such building or part of a building,(iii) any fittings affixed to such building or part of a building for the more beneficial. enjoyment thereof,but does not include a room or other accommodation in a hotel or lodging house,4. The definition of landlord in S. 5(3) of the Act shows that a landlord is a person who is entitled to receive rent in respect of any premises or who would be entitled to receive the rent if the premises were let to a tenant. Section 5(11) shows that a tenant is a person by whom or on whose account rent is payable for any premises Section 13(1)(i) reads:"13. (1) Notwithstanding anything contained in this Act but subject to the provisions of S. 15, a landlord shall be entitled to recover possession of any premises if the Court is satisfied-* * * *(i) that where the premises are land such land is reasonably and bona fide required by the landlord for the erection of a new building:5. The language of S. 13(1) read with the definitions of premises, landlord and tenant in S. 5 shows that the expression premises in S. 13(1) refers to the subject-matter of a letting for which rent is payable and in respect of which there is a relationship of landlord and tenant.6. A combined reading of Ss. 5(8) and 13(1)(i) shows that under S. 13(1)(i) the landlord can obtain a decree for eviction in respect of premises which are land and not in respect of premises which are building or are garden, grounds etc., appurtenant to the building. The question in issue is whether the suit premises are land or whether they are building and ground, appurtenant to the building.7. Clause 2 of the rent note dated August 28, 1943 covered the entire City Survey No. 1577/17, but we are now concerned only with the letting of the portion of the property excluding the shop on the northeastern corner. The rent note stated that the subject-matter of this letting for which the rent was payable by the tenant was open land with a "khatta. It is common case before us that "khatta is not a building. Clause 1 stated that on a portion of the land the tenant had built a shed of corrugated iron sheets at his own cost. Clause 5 stated that on the termination of the tenancy the tenant would remove the structures raised by him including the timber the pillars, the iron materials and the stores used for paying the floor. On a plain reading of the lease, it is clear that the subject-matter of the letting was open land and the rent was payable in respect of the open land only and not in respect of the structures raised by defendant No. 1. We were referred to decisions in respect of building leases. It is a question of construction of a building lease whether the lease is a demise of the land only, or whether it is a demise of the land together with the building to be constructed by the tenant. See Bhatia Co-operative Housing Society Ltd. v. 12. V. D. C. Patel, 1953 SCR 185 at pp 194-196: (AIR 1953 SC 16 at pp. 20-21); Dr. K. A. Dhairvawan v. J. R. Thakur, 1959 SCR 799 at pp. 803-808. (AIR 1958 SC 789 at pp. 791-794). In this case, we are not concerned with a building lease. The building on the land was constructed by the tenant at this own cost before the execution of the rent note. The building belonged to the tenant and was not the subject-matter of the letting. The land only was the subject-matter of the letting. Consequently, the premises are land within the meaning of S. 13(1)(i).8. The decision in Vinayak Gopal v. Laxman Kashinath, AIR 1957 Bom 94 relied on by the appellants has no application. That case decided that an open plot of land may be premises let for residence, education, business, trade or storage within the meaning of S. 6 (1) of the Act. The problem in the present case is not whether an open plot of land can be let for residence, education, business, trade or storage, but whether an open plot of land only has been let by the landlord to the tenant. No other contentions were urged before us. | 0[ds]The Courts below have concurrently found that the suit in respect of the land excluding the northeastern portion is maintainable. This finding is no longer challenged. In this appeal, we are, therefore, not concerned with the tenancy in respect of the portion on the northeast corner. Defendant No. 1 constructed a building on the suit land, and both defendants are carrying on business there.The definition of landlord in S. 5(3) of the Act shows that a landlord is a person who is entitled to receive rent in respect of any premises or who would be entitled to receive the rent if the premises were let to a tenant. Section 5(11) shows that a tenant is a person by whom or on whose account rent is payable for anyThe language of S. 13(1) read with the definitions of premises, landlord and tenant in S. 5 shows that the expression premises in S. 13(1) refers to theof a letting for which rent is payable and in respect of which there is a relationship of landlord and tenant.6. A combined reading of Ss. 5(8) and 13(1)(i) shows that under S. 13(1)(i) the landlord can obtain a decree for eviction in respect of premises which are land and not in respect of premises which are building or are garden, grounds etc., appurtenant to thea plain reading of the lease, it is clear that theof the letting was open land and the rent was payable in respect of the open land only and not in respect of the structures raised by defendant No. 1. We were referred to decisions in respect of building leases. It is a question of construction of a building lease whether the lease is a demise of the land only, or whether it is a demise of the land together with the building to be constructed by the tenant. See BhatiaHousing Society Ltd. v. 12. V. D. C. Patel, 1953 SCR 185 at pp(AIR 1953 SC 16 at pp.Dr. K. A. Dhairvawan v. J. R. Thakur, 1959 SCR 799 at pp.(AIR 1958 SC 789 at pp.In this case, we are not concerned with a building lease. The building on the land was constructed by the tenant at this own cost before the execution of the rent note. The building belonged to the tenant and was not theof the letting. The land only was theof the letting. Consequently, the premises are land within the meaning of S.a plain reading of the lease, it is clear that theof the letting was open land and the rent was payable in respect of the open land only and not in respect of the structures raised by defendant No. 1. We were referred to decisions in respect of building leases. It is a question of construction of a building lease whether the lease is a demise of the land only, or whether it is a demise of the land together with the building to be constructed by the tenant. See Bhatiag Society Ltd. v. 12. V. D. C. Patel, 1953 SCR 185 at ppR 1953 SC 16 at pp.. K. A. Dhairvawan v. J. R. Thakur, 1959 SCR 799 at pp.R 1958 SC 789 at pp.In this case, we are not concerned with a building lease. The building on the land was constructed by the tenant at this own cost before the execution of the rent note. The building belonged to the tenant and was not theof the letting. The land only was the13(1)(i).8. The decision in Vinayak Gopal v. Laxman Kashinath, AIR 1957 Bom 94 relied on by the appellants has no application. That case decided that an open plot of land may be premises let for residence, education, business, trade or storage within the meaning of S. 6 (1) of the Act. The problem in the present case is not whether an open plot of land can be let for residence, education, business, trade or storage, but whether an open plot of land only has been let by the landlord to the tenant. No other contentions were urged before us. | 0 | 1,609 | 778 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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the contention, it is necessary to set out the following facts. The respondent landlord purchased the aforesaid City Survey No. 1577/17 on June 17, 1946 Defendant No. 1 was the lessee of the property under a rent note dated August 28, 1948 executed by the previous owner. The lease was for five years and expired on August 28, 1948. The present suit was instituted on June 3, 1957. The rent note covered the entire City Survey No. 1577/17 including not only the suit land but also the portion on the northeast corner outside the purview of the suit. On the northeast corner there is a temporary structure erected by the landlord, and this structure is in the occupation of a sub-lessee, one Malkajappa Nargund. The Courts below have concurrently found that the suit in respect of the land excluding the northeastern portion is maintainable. This finding is no longer challenged. In this appeal, we are, therefore, not concerned with the tenancy in respect of the portion on the northeast corner. Defendant No. 1 constructed a building on the suit land, and both defendants are carrying on business there. The respondent now seeks to recover possession of the suit land under S. 18(1)(i) of the Act. Section 5(8) of the Act defines premises thus:"5. In this Act unless there is anything repugnant to the subject or context -* * * *(8) premises means-(a) any land not being used for agricultural purposes,(b) any building or part of a building let separately (other than a farm building) including-(i) the garden, grounds garages and outhouses, if any, appurtenant to such building or part of building.(ii) any furniture supplied by the landlord for use in such building or part of a building,(iii) any fittings affixed to such building or part of a building for the more beneficial. enjoyment thereof,but does not include a room or other accommodation in a hotel or lodging house,4. The definition of landlord in S. 5(3) of the Act shows that a landlord is a person who is entitled to receive rent in respect of any premises or who would be entitled to receive the rent if the premises were let to a tenant. Section 5(11) shows that a tenant is a person by whom or on whose account rent is payable for any premises Section 13(1)(i) reads:"13. (1) Notwithstanding anything contained in this Act but subject to the provisions of S. 15, a landlord shall be entitled to recover possession of any premises if the Court is satisfied-* * * *(i) that where the premises are land such land is reasonably and bona fide required by the landlord for the erection of a new building:5. The language of S. 13(1) read with the definitions of premises, landlord and tenant in S. 5 shows that the expression premises in S. 13(1) refers to the subject-matter of a letting for which rent is payable and in respect of which there is a relationship of landlord and tenant.6. A combined reading of Ss. 5(8) and 13(1)(i) shows that under S. 13(1)(i) the landlord can obtain a decree for eviction in respect of premises which are land and not in respect of premises which are building or are garden, grounds etc., appurtenant to the building. The question in issue is whether the suit premises are land or whether they are building and ground, appurtenant to the building.7. Clause 2 of the rent note dated August 28, 1943 covered the entire City Survey No. 1577/17, but we are now concerned only with the letting of the portion of the property excluding the shop on the northeastern corner. The rent note stated that the subject-matter of this letting for which the rent was payable by the tenant was open land with a "khatta. It is common case before us that "khatta is not a building. Clause 1 stated that on a portion of the land the tenant had built a shed of corrugated iron sheets at his own cost. Clause 5 stated that on the termination of the tenancy the tenant would remove the structures raised by him including the timber the pillars, the iron materials and the stores used for paying the floor. On a plain reading of the lease, it is clear that the subject-matter of the letting was open land and the rent was payable in respect of the open land only and not in respect of the structures raised by defendant No. 1. We were referred to decisions in respect of building leases. It is a question of construction of a building lease whether the lease is a demise of the land only, or whether it is a demise of the land together with the building to be constructed by the tenant. See Bhatia Co-operative Housing Society Ltd. v. 12. V. D. C. Patel, 1953 SCR 185 at pp 194-196: (AIR 1953 SC 16 at pp. 20-21); Dr. K. A. Dhairvawan v. J. R. Thakur, 1959 SCR 799 at pp. 803-808. (AIR 1958 SC 789 at pp. 791-794). In this case, we are not concerned with a building lease. The building on the land was constructed by the tenant at this own cost before the execution of the rent note. The building belonged to the tenant and was not the subject-matter of the letting. The land only was the subject-matter of the letting. Consequently, the premises are land within the meaning of S. 13(1)(i).8. The decision in Vinayak Gopal v. Laxman Kashinath, AIR 1957 Bom 94 relied on by the appellants has no application. That case decided that an open plot of land may be premises let for residence, education, business, trade or storage within the meaning of S. 6 (1) of the Act. The problem in the present case is not whether an open plot of land can be let for residence, education, business, trade or storage, but whether an open plot of land only has been let by the landlord to the tenant. No other contentions were urged before us.
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### Explanation:
The Courts below have concurrently found that the suit in respect of the land excluding the northeastern portion is maintainable. This finding is no longer challenged. In this appeal, we are, therefore, not concerned with the tenancy in respect of the portion on the northeast corner. Defendant No. 1 constructed a building on the suit land, and both defendants are carrying on business there.The definition of landlord in S. 5(3) of the Act shows that a landlord is a person who is entitled to receive rent in respect of any premises or who would be entitled to receive the rent if the premises were let to a tenant. Section 5(11) shows that a tenant is a person by whom or on whose account rent is payable for anyThe language of S. 13(1) read with the definitions of premises, landlord and tenant in S. 5 shows that the expression premises in S. 13(1) refers to theof a letting for which rent is payable and in respect of which there is a relationship of landlord and tenant.6. A combined reading of Ss. 5(8) and 13(1)(i) shows that under S. 13(1)(i) the landlord can obtain a decree for eviction in respect of premises which are land and not in respect of premises which are building or are garden, grounds etc., appurtenant to thea plain reading of the lease, it is clear that theof the letting was open land and the rent was payable in respect of the open land only and not in respect of the structures raised by defendant No. 1. We were referred to decisions in respect of building leases. It is a question of construction of a building lease whether the lease is a demise of the land only, or whether it is a demise of the land together with the building to be constructed by the tenant. See BhatiaHousing Society Ltd. v. 12. V. D. C. Patel, 1953 SCR 185 at pp(AIR 1953 SC 16 at pp.Dr. K. A. Dhairvawan v. J. R. Thakur, 1959 SCR 799 at pp.(AIR 1958 SC 789 at pp.In this case, we are not concerned with a building lease. The building on the land was constructed by the tenant at this own cost before the execution of the rent note. The building belonged to the tenant and was not theof the letting. The land only was theof the letting. Consequently, the premises are land within the meaning of S.a plain reading of the lease, it is clear that theof the letting was open land and the rent was payable in respect of the open land only and not in respect of the structures raised by defendant No. 1. We were referred to decisions in respect of building leases. It is a question of construction of a building lease whether the lease is a demise of the land only, or whether it is a demise of the land together with the building to be constructed by the tenant. See Bhatiag Society Ltd. v. 12. V. D. C. Patel, 1953 SCR 185 at ppR 1953 SC 16 at pp.. K. A. Dhairvawan v. J. R. Thakur, 1959 SCR 799 at pp.R 1958 SC 789 at pp.In this case, we are not concerned with a building lease. The building on the land was constructed by the tenant at this own cost before the execution of the rent note. The building belonged to the tenant and was not theof the letting. The land only was the13(1)(i).8. The decision in Vinayak Gopal v. Laxman Kashinath, AIR 1957 Bom 94 relied on by the appellants has no application. That case decided that an open plot of land may be premises let for residence, education, business, trade or storage within the meaning of S. 6 (1) of the Act. The problem in the present case is not whether an open plot of land can be let for residence, education, business, trade or storage, but whether an open plot of land only has been let by the landlord to the tenant. No other contentions were urged before us.
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Gurnam Singh & Others Vs. Surjit Singh & Others | P. Jaganmohan Reddy, J.1. This appeal is by certificate against the judgment of the Punjab High Court dismissing the pre-emption suit of the appellant by reversing the concurrent judgment of the trial court and the 1st Appellate court.2. The plaintiffs alleged that they had purchased on 10-5-55 the share of Khotu and Chandu Ram in Khewat 2, Khata 26 to 44 and 6 bigas and 7 biswas in Khewat No. 3 Khatas 49 to 54 comprising in all an area of 213 bigas and 14 biswas. On 16-4-57 respondents 1 to 6 purchased 926 bighas in Khewats nos. 2 and 3 for Rs. 43,600/-. Nearly a year thereafter the deed of sale was registered on 19-3-68. The plaintiffs filed a pre-emption suit against respondents 1-6 on the ground that they were Biswadars and co-shares in the land in dispute. For the purpose of this appeal, it is not necessary to consider their claim of Biswadari rights because the claim on which the plaintiffs rely mainly is of their being co-shares along with the vendors in the lands sold to respondents 1-6. The suit was decreed on 4-1-60 and on appeal the District Court confirmed the decree on 6-3-61. The High Court, however, in second appeal reversed that decree on the ground that the appellants had not established that they had on the date of the decree any lands in which they were co-shares with the vendors in the land sold to respondents 1-6. At this stage, we may mention that before the decree was passed by the trial court, the appellants had sold their co-shares right in Khewat No. 2 Khatas Nos. 26-44 and Khewat 3 Khatas 49-54. It was their case that after the sale this deal had co-ownership rights in 6 bighas and 7 biswas and consequently they were entitled to a decree for pre-emption. The trial court on oral evidence held that 6 bighas and 7 biswas that were said to have been retained by the appellants pertained to the co-ownership in the suit lands and consequently they had the right to pre-empt. As we said earlier, the first appellate court also tool the same view. The main question is whether the appellants had superior rights of pre-emption. What the appellants have to establish under Section 15 (b) forthly of the Punjab Pre-emption Act is that the sale was out of joint land or property which had not been made by the co-sharers jointly and that they were the other co-sharers who had not joined in the sale.It is well settled that this right had to subsist on the plaintiffs not only at the time when the sale sought to be pre-empted was effective but up to the date of the decree. Though it was not disputed that the plaintiffs were co-shares in the aforesaid khatas of khewats no.s 2 and 3, what was contested was that after the transfer of practically the entire area on that date the plaintiffs ceased to be co-sharers who could pre-empt the sale relating to 926 bigas in khewats 2 and 3 because it was nowhere proved in which khata or khewat the area had been left and in what manner the plaintiffs remained co-shares so far as the suit lands were concerned. The High Court pointed out that the appellants had not produces the sale deed dated 19-5-69 (59?) by and under which they had sold their co-ownership rights in khewat no. 2 khatas 26-44 and khewat no. 3 khatas 49-54.3. In view of the omission to file the most important document, it was not possible to ascertain whether 6 bighas and 7 biswas which were said to have been left to them did in fact pertain to khewat 2, khatas 26-44, and khewat 3, khatas 49-54. The omission to file a document which was in the power and possession of the appellants entitled the High Court to draw an adverse inference against the appellants and in that view they allowed the appeal and dismissed the suit. Some argument seems to have been advanced in the High Court based on the definition of holdings in Section 3 (3) as meaning a share or portion of an estate held by one owner or jointly by two or more land owners. On this basis it was contended that the appellants being owners of the land which held the estate they must be regarded as co-shares in the land in dispute. The High Court pointed out that by no stretch of reasoning each and every land owner in the village which is an estate can be regarded as a co-sharer every parcel of land situated in that village no matter whether he has any share in that particular land or not. It appears to us that the issue is a narrow one namely whether the appellants had established that even if they had a co-ownership as alleged by them, in Khewat nos. 2 and 3, when they sold those rights, 6 bighas and 7 biswas, which they alleged were retained by them in khewats nos. 2 and 3. No amount of oral evidence can establish this fact when in fact they could have established (it) by a registered document. As pointed out by the High Court, even the Patwari was not asked about it. For some reason, which the appellant must know best, they have not produced the sale deed either in the High Court or even at this stage. The sale deed is a public document and could have been easily looked into if they would have asked for it to be admitted at the appellate stage. The suppression of the document justified the drawing of an adverse inference that if it was produced, it would have established that the appellants had no lands left after they sold them on 19-5-1969 (59?). As the appellants have not established that they are co-owners in the lands sold on the date of the decree they are no entitled to a decree of pre-emption. | 0[ds]3. In view of the omission to file the most important document, it was not possible to ascertain whether 6 bighas and 7 biswas which were said to have been left to them did in fact pertain to khewat 2, khatasand khewat 3, khatasThe omission to file a document which was in the power and possession of the appellants entitled the High Court to draw an adverse inference against the appellants and in that view they allowed the appeal and dismissed the suit. Some argument seems to have been advanced in the High Court based on the definition of holdings in Section 3 (3) as meaning a share or portion of an estate held by one owner or jointly by two or more land owners. On this basis it was contended that the appellants being owners of the land which held the estate they must be regarded asin the land in dispute. The High Court pointed out that by no stretch of reasoning each and every land owner in the village which is an estate can be regarded as aevery parcel of land situated in that village no matter whether he has any share in that particular land or not. It appears to us that the issue is a narrow one namely whether the appellants had established that even if they had aas alleged by them, in Khewat nos. 2 and 3, when they sold those rights, 6 bighas and 7 biswas, which they alleged were retained by them in khewats nos. 2 and 3. No amount of oral evidence can establish this fact when in fact they could have established (it) by a registered document. As pointed out by the High Court, even the Patwari was not asked about it. For some reason, which the appellant must know best, they have not produced the sale deed either in the High Court or even at this stage. The sale deed is a public document and could have been easily looked into if they would have asked for it to be admitted at the appellate stage. The suppression of the document justified the drawing of an adverse inference that if it was produced, it would have established that the appellants had no lands left after they sold them on(59?). As the appellants have not established that they arein the lands sold on the date of the decree they are no entitled to a decree of | 0 | 1,070 | 440 | ### 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:
P. Jaganmohan Reddy, J.1. This appeal is by certificate against the judgment of the Punjab High Court dismissing the pre-emption suit of the appellant by reversing the concurrent judgment of the trial court and the 1st Appellate court.2. The plaintiffs alleged that they had purchased on 10-5-55 the share of Khotu and Chandu Ram in Khewat 2, Khata 26 to 44 and 6 bigas and 7 biswas in Khewat No. 3 Khatas 49 to 54 comprising in all an area of 213 bigas and 14 biswas. On 16-4-57 respondents 1 to 6 purchased 926 bighas in Khewats nos. 2 and 3 for Rs. 43,600/-. Nearly a year thereafter the deed of sale was registered on 19-3-68. The plaintiffs filed a pre-emption suit against respondents 1-6 on the ground that they were Biswadars and co-shares in the land in dispute. For the purpose of this appeal, it is not necessary to consider their claim of Biswadari rights because the claim on which the plaintiffs rely mainly is of their being co-shares along with the vendors in the lands sold to respondents 1-6. The suit was decreed on 4-1-60 and on appeal the District Court confirmed the decree on 6-3-61. The High Court, however, in second appeal reversed that decree on the ground that the appellants had not established that they had on the date of the decree any lands in which they were co-shares with the vendors in the land sold to respondents 1-6. At this stage, we may mention that before the decree was passed by the trial court, the appellants had sold their co-shares right in Khewat No. 2 Khatas Nos. 26-44 and Khewat 3 Khatas 49-54. It was their case that after the sale this deal had co-ownership rights in 6 bighas and 7 biswas and consequently they were entitled to a decree for pre-emption. The trial court on oral evidence held that 6 bighas and 7 biswas that were said to have been retained by the appellants pertained to the co-ownership in the suit lands and consequently they had the right to pre-empt. As we said earlier, the first appellate court also tool the same view. The main question is whether the appellants had superior rights of pre-emption. What the appellants have to establish under Section 15 (b) forthly of the Punjab Pre-emption Act is that the sale was out of joint land or property which had not been made by the co-sharers jointly and that they were the other co-sharers who had not joined in the sale.It is well settled that this right had to subsist on the plaintiffs not only at the time when the sale sought to be pre-empted was effective but up to the date of the decree. Though it was not disputed that the plaintiffs were co-shares in the aforesaid khatas of khewats no.s 2 and 3, what was contested was that after the transfer of practically the entire area on that date the plaintiffs ceased to be co-sharers who could pre-empt the sale relating to 926 bigas in khewats 2 and 3 because it was nowhere proved in which khata or khewat the area had been left and in what manner the plaintiffs remained co-shares so far as the suit lands were concerned. The High Court pointed out that the appellants had not produces the sale deed dated 19-5-69 (59?) by and under which they had sold their co-ownership rights in khewat no. 2 khatas 26-44 and khewat no. 3 khatas 49-54.3. In view of the omission to file the most important document, it was not possible to ascertain whether 6 bighas and 7 biswas which were said to have been left to them did in fact pertain to khewat 2, khatas 26-44, and khewat 3, khatas 49-54. The omission to file a document which was in the power and possession of the appellants entitled the High Court to draw an adverse inference against the appellants and in that view they allowed the appeal and dismissed the suit. Some argument seems to have been advanced in the High Court based on the definition of holdings in Section 3 (3) as meaning a share or portion of an estate held by one owner or jointly by two or more land owners. On this basis it was contended that the appellants being owners of the land which held the estate they must be regarded as co-shares in the land in dispute. The High Court pointed out that by no stretch of reasoning each and every land owner in the village which is an estate can be regarded as a co-sharer every parcel of land situated in that village no matter whether he has any share in that particular land or not. It appears to us that the issue is a narrow one namely whether the appellants had established that even if they had a co-ownership as alleged by them, in Khewat nos. 2 and 3, when they sold those rights, 6 bighas and 7 biswas, which they alleged were retained by them in khewats nos. 2 and 3. No amount of oral evidence can establish this fact when in fact they could have established (it) by a registered document. As pointed out by the High Court, even the Patwari was not asked about it. For some reason, which the appellant must know best, they have not produced the sale deed either in the High Court or even at this stage. The sale deed is a public document and could have been easily looked into if they would have asked for it to be admitted at the appellate stage. The suppression of the document justified the drawing of an adverse inference that if it was produced, it would have established that the appellants had no lands left after they sold them on 19-5-1969 (59?). As the appellants have not established that they are co-owners in the lands sold on the date of the decree they are no entitled to a decree of pre-emption.
### Response:
0
### Explanation:
3. In view of the omission to file the most important document, it was not possible to ascertain whether 6 bighas and 7 biswas which were said to have been left to them did in fact pertain to khewat 2, khatasand khewat 3, khatasThe omission to file a document which was in the power and possession of the appellants entitled the High Court to draw an adverse inference against the appellants and in that view they allowed the appeal and dismissed the suit. Some argument seems to have been advanced in the High Court based on the definition of holdings in Section 3 (3) as meaning a share or portion of an estate held by one owner or jointly by two or more land owners. On this basis it was contended that the appellants being owners of the land which held the estate they must be regarded asin the land in dispute. The High Court pointed out that by no stretch of reasoning each and every land owner in the village which is an estate can be regarded as aevery parcel of land situated in that village no matter whether he has any share in that particular land or not. It appears to us that the issue is a narrow one namely whether the appellants had established that even if they had aas alleged by them, in Khewat nos. 2 and 3, when they sold those rights, 6 bighas and 7 biswas, which they alleged were retained by them in khewats nos. 2 and 3. No amount of oral evidence can establish this fact when in fact they could have established (it) by a registered document. As pointed out by the High Court, even the Patwari was not asked about it. For some reason, which the appellant must know best, they have not produced the sale deed either in the High Court or even at this stage. The sale deed is a public document and could have been easily looked into if they would have asked for it to be admitted at the appellate stage. The suppression of the document justified the drawing of an adverse inference that if it was produced, it would have established that the appellants had no lands left after they sold them on(59?). As the appellants have not established that they arein the lands sold on the date of the decree they are no entitled to a decree of
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Anil Mahajan Vs. Bhor Industries Ltd., & Another | offence of cheating. It depends upon the intention of the accused at the time of inducement. The subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent, dishonest intention is shown at the beginning of the transaction.7. The order of the learned Additional Sessions Judge has been set aside by the High Court by the impugned judgment. The High Court, except noticing that the ratio of the judgment of this Court cannot be applied to all cases in a uniform way, has neither discussed the said judgment nor stated as to how it was wrongly applied by the learned Additional Sessions Judge. There is hardly any discussion in the impugned judgment for reversing a well considered judgment of the learned Additional Sessions Judge. 8. The substance of the complaint is to be seen. Mere use of the expression "cheating" in the complaint is of no consequence. Except mention of the words "deceive" and "cheat" in the complaint filed before the Magistrate and "cheating" in the complaint filed before the police, there is no averment about the deceit, cheating or fraudulent intention of the accused at the time of entering into MOU wherefrom it can be inferred that the accused had the intention to deceive the complainant to pay. According to the complainant, a sum of Rs 3,05,39,086 out of the total amount of Rs 3,38,62,860 was paid leaving balance of Rs 33,23,774. We need not go into the question of the difference of the amounts mentioned in the complaint which is much more than what is mentioned in the notice and also the defence of the accused and the stand taken in reply to notice because the complainants own case is that over rupees three crores was paid and for balance, the accused was giving reasons as above noticed. The additional reason for not going into these aspects is that a civil suit is pending inter se the parties for the amounts in question. 9. In Alpic Finance Ltd. v. P. Sadasivan (2001 (3) SCC 513 : 2001 SCC (Cri) 565 ) this Court was considering a case where the complainant had alleged that the accused was not regular in making payment and committed default in payment of instalments and the bank had dishonoured certain cheques issued by him. Further allegation of the complainant was that on physical verification certain chairs were found missing from the premises of the accused and thus it was alleged that the accused committed cheating and caused misappropriation of the property belonging to the complainant. Noticing the decision in the case of Nagawwa v. Veeranna Shivalingappa Konjalgi (1976 (3) SCC 736 : 1976 SCC (Cri) 507 ) wherein it was held that the Magistrate while issuing process should satisfy himself as to whether the allegations in the complaint, if proved, would ultimately end in the conviction of the accused, and the circumstances under which the process issued by the Magistrate could be quashed, the contours of the powers of the High Court under S.482 CrPC were laid down and it was held: "10. The facts in the present case have to be appreciated in the light of the various decisions of this Court. When somebody suffers injury to his person, property or reputation, he may have remedies both under civil and criminal law. The injury alleged may form the basis of civil claim and may also constitute the ingredients of some crime punishable under criminal law. When there is dispute between the parties arising out of a transaction involving passing of valuable properties between them, the aggrieved person may have a right to sue for damages or compensation and at the same time, law permits the victim to proceed against the wrongdoer for having committed an offence of criminal breach of trust or cheating. Here the main offence alleged by the appellant is that the respondents committed the offence under S.420 IPC and the case of the appellant is that the respondents have cheated him and thereby dishonestly induced him to deliver property. To deceive is to induce a man to believe that a thing is true which is false and which the person practising the deceit knows or believes to be false. It must also be shown that there existed a fraudulent and dishonest intention at the time of commission of the offence. There is no allegation that the respondents made any wilful misrepresentation. Even according to the appellant, the parties entered into a valid lease agreement and the grievance of the appellant is that the respondents failed to discharge their contractual obligations. In the complaint, there is no allegation that there was fraud or dishonest inducement on the part of the respondents and thereby the respondents parted with the property. It is trite law and common sense that an honest man entering into a contract is deemed to represent that he has the present intention of carrying it out but if, having accepted the pecuniary advantage involved in the transaction, he fails to pay his debt, he does not necessarily evade the debt by deception.11. Moreover, the appellant has no case that the respondents obtained the article by any fraudulent inducement or by wilful misrepresentation. We are told that the respondents, though committed default in paying some instalments, have paid substantial amount towards the consideration." (emphasis supplied by us) 10. We have examined the complaint and it is clear from its substance that present is a simple case of civil disputes between the parties. Requisite averments so as to make out a case of cheating are absolutely absent. The principles laid down in Alpic Finance Ltd. case (2001 (3) SCC 513 : 2001 SCC (Cri) 565 ) were rightly applied by learned Additional Sessions Judge and it cannot be said that the ratio of the said decision was wrongly applied. On due consideration, the learned Additional Sessions Judge had rightly set aside the order of the Magistrate issuing process to the appellant. | 1[ds]8. The substance of the complaint is to be seen. Mere use of the expression "cheating" in the complaint is of no consequence. Except mention of the words "deceive" and "cheat" in the complaint filed before the Magistrate and "cheating" in the complaint filed before the police, there is no averment about the deceit, cheating or fraudulent intention of the accused at the time of entering into MOU wherefrom it can be inferred that the accused had the intention to deceive the complainant to pay. According to the complainant, a sum of Rs 3,05,39,086 out of the total amount of Rs 3,38,62,860 was paid leaving balance of Rs 33,23,774. We need not go into the question of the difference of the amounts mentioned in the complaint which is much more than what is mentioned in the notice and also the defence of the accused and the stand taken in reply to notice because the complainants own case is that over rupees three crores was paid and for balance, the accused was giving reasons as above noticed. The additional reason for not going into these aspects is that a civil suit is pending inter se the parties for the amounts in question.We have examined the complaint and it is clear from its substance that present is a simple case of civil disputes between the parties. Requisite averments so as to make out a case of cheating are absolutely absent. The principles laid down in Alpic Finance Ltd. case (2001 (3) SCC 513 : 2001 SCC (Cri) 565 ) were rightly applied by learned Additional Sessions Judge and it cannot be said that the ratio of the said decision was wrongly applied. On due consideration, the learned Additional Sessions Judge had rightly set aside the order of the Magistrate issuing process to the appellant. | 1 | 2,131 | 335 | ### 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:
offence of cheating. It depends upon the intention of the accused at the time of inducement. The subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent, dishonest intention is shown at the beginning of the transaction.7. The order of the learned Additional Sessions Judge has been set aside by the High Court by the impugned judgment. The High Court, except noticing that the ratio of the judgment of this Court cannot be applied to all cases in a uniform way, has neither discussed the said judgment nor stated as to how it was wrongly applied by the learned Additional Sessions Judge. There is hardly any discussion in the impugned judgment for reversing a well considered judgment of the learned Additional Sessions Judge. 8. The substance of the complaint is to be seen. Mere use of the expression "cheating" in the complaint is of no consequence. Except mention of the words "deceive" and "cheat" in the complaint filed before the Magistrate and "cheating" in the complaint filed before the police, there is no averment about the deceit, cheating or fraudulent intention of the accused at the time of entering into MOU wherefrom it can be inferred that the accused had the intention to deceive the complainant to pay. According to the complainant, a sum of Rs 3,05,39,086 out of the total amount of Rs 3,38,62,860 was paid leaving balance of Rs 33,23,774. We need not go into the question of the difference of the amounts mentioned in the complaint which is much more than what is mentioned in the notice and also the defence of the accused and the stand taken in reply to notice because the complainants own case is that over rupees three crores was paid and for balance, the accused was giving reasons as above noticed. The additional reason for not going into these aspects is that a civil suit is pending inter se the parties for the amounts in question. 9. In Alpic Finance Ltd. v. P. Sadasivan (2001 (3) SCC 513 : 2001 SCC (Cri) 565 ) this Court was considering a case where the complainant had alleged that the accused was not regular in making payment and committed default in payment of instalments and the bank had dishonoured certain cheques issued by him. Further allegation of the complainant was that on physical verification certain chairs were found missing from the premises of the accused and thus it was alleged that the accused committed cheating and caused misappropriation of the property belonging to the complainant. Noticing the decision in the case of Nagawwa v. Veeranna Shivalingappa Konjalgi (1976 (3) SCC 736 : 1976 SCC (Cri) 507 ) wherein it was held that the Magistrate while issuing process should satisfy himself as to whether the allegations in the complaint, if proved, would ultimately end in the conviction of the accused, and the circumstances under which the process issued by the Magistrate could be quashed, the contours of the powers of the High Court under S.482 CrPC were laid down and it was held: "10. The facts in the present case have to be appreciated in the light of the various decisions of this Court. When somebody suffers injury to his person, property or reputation, he may have remedies both under civil and criminal law. The injury alleged may form the basis of civil claim and may also constitute the ingredients of some crime punishable under criminal law. When there is dispute between the parties arising out of a transaction involving passing of valuable properties between them, the aggrieved person may have a right to sue for damages or compensation and at the same time, law permits the victim to proceed against the wrongdoer for having committed an offence of criminal breach of trust or cheating. Here the main offence alleged by the appellant is that the respondents committed the offence under S.420 IPC and the case of the appellant is that the respondents have cheated him and thereby dishonestly induced him to deliver property. To deceive is to induce a man to believe that a thing is true which is false and which the person practising the deceit knows or believes to be false. It must also be shown that there existed a fraudulent and dishonest intention at the time of commission of the offence. There is no allegation that the respondents made any wilful misrepresentation. Even according to the appellant, the parties entered into a valid lease agreement and the grievance of the appellant is that the respondents failed to discharge their contractual obligations. In the complaint, there is no allegation that there was fraud or dishonest inducement on the part of the respondents and thereby the respondents parted with the property. It is trite law and common sense that an honest man entering into a contract is deemed to represent that he has the present intention of carrying it out but if, having accepted the pecuniary advantage involved in the transaction, he fails to pay his debt, he does not necessarily evade the debt by deception.11. Moreover, the appellant has no case that the respondents obtained the article by any fraudulent inducement or by wilful misrepresentation. We are told that the respondents, though committed default in paying some instalments, have paid substantial amount towards the consideration." (emphasis supplied by us) 10. We have examined the complaint and it is clear from its substance that present is a simple case of civil disputes between the parties. Requisite averments so as to make out a case of cheating are absolutely absent. The principles laid down in Alpic Finance Ltd. case (2001 (3) SCC 513 : 2001 SCC (Cri) 565 ) were rightly applied by learned Additional Sessions Judge and it cannot be said that the ratio of the said decision was wrongly applied. On due consideration, the learned Additional Sessions Judge had rightly set aside the order of the Magistrate issuing process to the appellant.
### Response:
1
### Explanation:
8. The substance of the complaint is to be seen. Mere use of the expression "cheating" in the complaint is of no consequence. Except mention of the words "deceive" and "cheat" in the complaint filed before the Magistrate and "cheating" in the complaint filed before the police, there is no averment about the deceit, cheating or fraudulent intention of the accused at the time of entering into MOU wherefrom it can be inferred that the accused had the intention to deceive the complainant to pay. According to the complainant, a sum of Rs 3,05,39,086 out of the total amount of Rs 3,38,62,860 was paid leaving balance of Rs 33,23,774. We need not go into the question of the difference of the amounts mentioned in the complaint which is much more than what is mentioned in the notice and also the defence of the accused and the stand taken in reply to notice because the complainants own case is that over rupees three crores was paid and for balance, the accused was giving reasons as above noticed. The additional reason for not going into these aspects is that a civil suit is pending inter se the parties for the amounts in question.We have examined the complaint and it is clear from its substance that present is a simple case of civil disputes between the parties. Requisite averments so as to make out a case of cheating are absolutely absent. The principles laid down in Alpic Finance Ltd. case (2001 (3) SCC 513 : 2001 SCC (Cri) 565 ) were rightly applied by learned Additional Sessions Judge and it cannot be said that the ratio of the said decision was wrongly applied. On due consideration, the learned Additional Sessions Judge had rightly set aside the order of the Magistrate issuing process to the appellant.
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Phatu Rochiram Mulchandani Vs. Kar.Indusl.Area Devt.Board | recovery of any tax or impost or any dues payable to the Government." 38. It is clear from the above that prior permission of the Court is required in respect of any attachment, distress or execution put in force or for sale of the properties or effects of the Company. We are of the opinion that the serving of cancellation notice simplicitor would not come within the mischief of this section as that by itself does not amount to attachment, distress or execution etc. No doubt, after the commencement of the winding up, possession of the land could not be taken without the leave of the Court. Precisely for this reason the Board had filed the application seeking permission. But according to us no such prior permission was required before cancelling the lease. In fact, it is only after the cancellation of the leases that the Board would become entitled to file such an application under Section 537 of the Act. Had the Board gone ahead further and taken the possession, after the cancellation and then approached the Company Judge, the situation which occurred in M/s. Anco Communication Ltd. (supra) would have prevailed. On the other hand, it would have been premature on the part of the Board to approach the Company Judge for permission to resume the land without cancelling the lease in the first instance.39. We thus, hold that no prior permission was required by the Board for cancelling the lease. Q.4. Re: Validity of the order of the Company Court granting the permission. 40. Once the application for permission to resume the land is filed, undoubtedly it is permissible for the Company Judge to go into the validity of the action of the applicant. Thus, in the instant case the Company Judge could find out as to whether cancellation of lease is proper or not. The Company Judge could also go into the question as to whether the Company had become the owner of the property, or it was only a lessee. Company Judge could also go into the question as to whether the property in question is required by the Company and parameters of the provisions of Section 535 of the Companies Act are satisfied or not.41. In view of our elaborate discussion above, we do not find action of the Board to be illegal or blemished. The land was allotted to the Company for specified project which the Company failed to establish. Let us examine the Scheme of the KIAD Act at this point of time, KIAD Act is enacted to make special provisions for securing the establishment of industrial areas in the State and generally to promote the establishment and orderly development of industries therein, and for that purpose, to establish an Industrial Areas, Development Board, and for purposes connected with such matters. Chapter II deals with the declaration and alteration of Industrial Areas. Chapter III deals with establishment and constitution of the Board. Chapter IV deals with functions and powers of the Board and Chapter V deals with Finance, Accounts and Audit of the Board. Chapter VI deals with application of Public Premises Act and non-application of Karnataka Rent Control Act, 1961 to the premises of the Board. Chapter VII deals with Acquisition and disposal of land. Chapter VIII contains the supplementary and miscellaneous provisions. Section 13 in Chapter IV defines the functions of the Board as generally to promote and assist in the rapid and orderly establishment, growth and development of industries in industrial areas; and in particular, to develop industrial areas declared by the State Government and make them available for undertakings, to establish themselves; to establish, maintain, develop and manage industrial estates within industrial areas; and to undertake such schemes of programmes of works for the furtherance of the purposes for which the Board is established and for all purposes connected therewith.42. Section 33 in Chapter VIII of KIAD Act provides that if the Board is satisfied that if a lessee of any land in an industrial area fails to provide any amenity or carry out any development of the land, the Board may after due notice in that behalf, may itself provide such amenity or carry out such development at the expense of the Lessee. Section 34 provides for penalty for construction or use of land and building contrary to terms of holding. Section 34 A provides for demolition or alteration of unauthorized construction or alteration. Section 35 of the Act enables a person authorized by the Board to enter upon any land for the purpose of inspection, survey, measurement, valuation or enquiry. Section 41 enables the Board by notification to make regulations consistent with the Act and Rules thereunder, to carry out the purposes of the Act with the previous approval of the State Government.43. Thus, when it was found that the Company has not been able to establish the factory for which the land was allotted, under the statute itself powers are given to the Board to cancel the allotment and resume such land.44. We, further find that the Company is now in liquidation. Till date there is no validly propounded scheme of rehabilitation under Section 391 to 394 of the Companies Act. Some obscure proposals, without concrete Scheme as required under the Act, cannot be made a sheet anchor to come in the way of the rights of the Board which still remains the owners of these plots. It, therefore, cannot even be said that the land in question is required by the Company. The O.L. could claim rights over this land only if it had become the property of the Company and the ownership was vested in it. Even that is not so (whether cost of construction should be reimbursed to Company). 45. The up-shot of the aforesaid discussion would be to hold that termination notice dated 19.1.2002 of the Board is valid. Likewise the order of the Company Judge permitting the board to take possession of the land in question is legal and justified. | 0[ds]Prima facie, we are of the opinion that this appeal was maintainable and should not have been dismissed on the ground that the appellant did not have locus standi to prefer the said appeal. The appellant is very much concerned with the outcome of the proceedings in as much as, if the ownership of the land in question vests with the Company and proceeds from the sale of this land comes into the kitty of the Company, the effect of that would be to reduce the liability of the creditors, particularly the financial institutions. In turn, it may result in reducing the personal liability of the appellant who has given guarantees to the financial institutions for the loan advances to the Company. However, we leave the matter at that, as Counsel for the respondents did not press the issue of maintainability very seriously.Admittedly, the Lease Agreement dated 21.12.1984 was entered into between the Board and the Company vide which the Board had agreed to lease to the Company the land in question upon certain terms and conditions. In consideration, the Company had paid a sum of Rs. 3,07,102/- as the initial deposit/ premium and it was also to pay the yearly rent of Rs. 6,921/- for the period of lease which was 11 years, computed from 4.8.1984. Clause 2 of the Lease Agreement stipulated various others covenants. Having regard to the nature of functions which the Board performs, which has been constituted for industrial development in that area, the plots in question were given to the Company exclusively for the purpose of establishing an industry/ factory for manufacture of AH/ FM Radio Audio Tape Recorder in combination with radio. The lease provided that the premises shall be used only for the aforesaid purpose and not for any other purpose. The lease also provided that the civil construction work and erection of factory shall be completed within stipulated period which was 24 months from the date of letter of allotment i.e. 21.02.1983. This time, however, could be extended in writing for good and sufficient reasons furnished by the Company. On extension being given, the Company was to complete the number of works within the extended period. For this purpose time bound schedule was provided in clause 2(P)(1) of the Lease Agreement which is reproduced(1) (i) To submit the property of the plan of the civil construction to him lessor or prior approval within six months from the date of receipt of letter of allotment within two months from the due date of.(ii) The civil constructions works within three months from the approval of the blue prints, after obtaining licence from the Chief Inspector of Factory and Boilers of Karnataka State.(iii) To complete civil construction works and erection of factory within twenty months from the date of letter of allotment that is the TWENTY FIRST day of February One Thousand nine hundred and Eighty Three.(iv) To commence production within twenty four months from the ate of letter of allotment that is the Twenty First day of February one thousand nine hundred and Eighty Three.For good and sufficient reasons, the Lessor may extend the time in writing in any of the cases mentioned in sub clauses (i) to (iv) above, by such period as the Lessor. In his discretion deem fit and the Lessee shall complete the item of works for which extension of the time given within such extended time.Failure to fulfill any of the conditions (I) to (IV) mentioned above shall result in allotment begin cancelled and agreement being terminated under clause 4 and a sum not exceeding 5% of the cost of land as indicted in Clause 1 of the lease agreement subject to a maximum of Rs.10,000/- and minimum of Rs.1000/- and interest due and payable as per clause 1 from the date of taking possession to the date of resumption of the land by the Board shall be forfeited to themainly because the agreement in question is termed asat by itself will not be the sole determinative factor. However, various clauses of the agreement also clearly manifest that it was an agreement vide which lease for 11 years period was created in favour of the Company. However at the same time, it was also not a Lease Agreement simplicitor. It did not provide that on expiry of the lease period, the demised property is to be reverted back to the Board. Under this very lease agreement, certain rights were to accrue in favour of the Company, albeit on fulfilling various obligations imposed upon the Company under the Lease Agreement. In nut shell, the specified purpose of this Lease Agreement was to give the plots in question to the Company for setting up of radio factory/ industry. The Company was even allowed to construct the building for this purpose at its own cost within 24 months from the date of letter of allotment. On fulfilling these and other conditions, at the end of 11 years the Company could become entitled to even purchase the land at the sale price which was to be determined by the Board. So much so at that time the rental paid for the period of lease was to be adjusted against the sale consideration. However, this right to purchase the plot in question after the expiry of the lease period could accrue in favour of the Company only on fulfilling the covenants stipulated in clause 2(P). On the Companys failure to do so the Lease Agreement gave right to the Board to determine this lease and resume the land. In that event, the question of right to purchase the land could not arise. It is, thus, in the nature of Lease-cum-Sale Agreement, which started with lease and could culminate into sale.Having considered the nature of agreement in question, in the instant case it is found as a matter of record that the Company failed to complete the construction and start factory on the demised land. In fact, no factory could be set up at all. One plot was allotted to the Company on 21.12.1984. Second plot was allotted to the Company on 10.1.1989. When the project did not take off by the prescribed time, the Board passed two separate resumption orders, both dated 6.5.1992 in respect of these two plots. Even thereafter, the company could not start factory operations. In fact, against these resumption orders Writ Petition No. 11957 of 1993 was filed by the Company and interim protection was given to the company because of which the Board could not take possession of the plots. However, this writ petition was dismissed by the High Court on 14.9.1999.25. It is clear from the above that right to purchase the land did not fructify in favour of the Company. On the contrary, while the relationship between the Company and the Board was still that of lessee and lessor, the lease came to be determined by the Board because of the breach of the covenants of lease agreement. We, therefore, cannot accept the contention of the learned Senior Counsel for the appellant that the Company had become the owner of the plots in question.As mentioned above, on the failure of the Company to complete the project within the specified period, the Board served resumption letter dated 6.5.1992 upon the Company stating that the land would be resumed on 8.6.1992 for failure to implement the project in time. On the same date in respect of second plot, a show cause notice was also issued by the Board to the Company to show cause within 15 days as to why action be not taken to cancel the allotment for failure to execute the agreement and to implement the project. The Company submitted its reply dated 28.5.1992, inter alia, stating that development of the two plots could not be viewed independently more so when the Board itself had allotted the second plot as part of a consolidated project. It was further stated that the project involved an investment of Rs. 9 crores and the Company had already invested nearly Rs. 5 crores on the project by availing financial assistance from the financial institutions after pledging both the plots. The resumption proceedings were drawn thereafter. After considering this reply, vide letter dated 15.6.1992, the Board directed the Company to submit the following documents:-(i) Copy of the loan sanctioned letter from IDBI and the details of balance loan to be released by them.(ii) Certificate of investment on the project so far made issued by the financial institutions.(iii) Proof for having invested Rs. 5 crores on the project so far along with supporting documents.(iv) PERT Chart for implementing the project indicating monthly progress.27. The Company submitted its reply/ detailed representation dated 4.7.1992 in response to the above. Thereafter, the Board also asked the Company to furnish the proof of investment and in response thereto the Company submitted certificate issued by the Chartered Accountant. After considering the replies the Board was not satisfied and, therefore, issued another resumption order in respect of first plot dated 22.3.1993 stating that the possession will be taken on 21.8.1993 for failure to implement the project in time. At this moment, Writ Petition was filed by the Company against this order in which the interim order was passed staying the resumption proceedings because of which the Board could not take possession of the said plot. While these proceedings were pending, winding up petition was filed against the Company by one of its creditors in the year 1994 and winding up orders were passed in the said Company petition on 15.11.1996.28. On 13.8.1997, another show cause notice in respect of second plot was issued to the Company asking it to show cause as to why the allotment be not cancelled. This notice was returned undelivered as factory was closed. Accordingly, notice was published in Deccan Herald Newspaper on 8.1.1998. In response to that public notice, IDBI informed the Board that the Company had been ordered to be wound up by the High Court on 15.11.1996. The Board did not take further action immediately thereafter. In the meantime, W.P. No. 11957 of 1993 filed against the resumption order dated 22.3.1993 in respect of Plot No. 19(A+B) came up for hearing before the High Court on 14.9.1999 and was dismissed with the followingthe matter came up today, learned counsel for the petitioner and the respondents submitted that the petitioner Company has been wound up in pursuance of the order of this court in Company Petition No. 18 of 1994 and, therefore, this petition may be dismissed, as having become infructuous.Petition is dismissed accordingly.On 19.1.2002, the Board passed the orders terminating the lease in respect of both the plots. In this termination order, after giving the past history of events which have already been noted above and mentioning that the Company had failed to construct the factory building and implement the industrial projects on the main land within the extended period and to execute lease agreement in respect of additional land, thereafter it was also stated that pursuant to the earlier resumption order, a writ petition was filed and because of the stay orders passed therein the Board could not resume the land. This writ petition was dismissed on 14.9.1999. Though the Board could act thereafter, however in the meantime High Court of Karnataka had passed orders dated 10.4.2001 in the matter of The Karnataka Industrial Areas Development Board v. M/s. Electro Mobiles (India) Ltd.; holding that when the allotment is on lease-cum-sale basis and possession is delivered to the allottee in pursuance of the allotment, it becomes a lease irrespective of the fact that whether a lease deed is executed or not. For this reason the Board did not attempt to resume the possession merely by cancelling the allotment without terminating the lease or taking action in accordance with law. It was for this reason that the Board was formally terminating the lease by the said notice dated 19.1.2002. The termination notice also mentioned that this was being done under Section 34B of the Karnataka Industrial Areas Development Act, 1966.30. We have already held that the Company had committed clear breach in not completing the project and setting up the factory within the time given on the Lease Agreement or the time as extended by the Board. In such circumstances, the Lease Agreement gave a definite right to the Board to terminate the lease. We are, therefore, of the opinion that the Board was very well within its right to terminate the lease as provided in the LeaseAs the Company had gone into liquidation and there was an order of winding up when the notice of cancelling the lease was given, the next question is as to whether prior permission of the Company Court was necessary before terminating the lease. Case of the appellant is that such prior permission is required under Section 537 of the Companies Act and the appellant has relied upon the judgment of Karnataka High Court in the case of Karnataka State Electronics Development Corporation Ltd. v. The Official Liquidator of M/s Anco Communication Ltd. On the other hand, respondent stated that before terminating the lease no prior permission under the aforesaid provision of the Companies Act was needed and it was only for resuming the land that such a permission was required which led the Board to file an application for this very purpose. The respondents have relied upon the judgment of the Karnataka High Court in the case of M/s. Hanuman Silks (supra). It, therefore, becomes necessary to discuss these two judgments in the first instance.32. In M/s. Anco Communication Ltd. (Supra) there was an allotment of industrial plot in favour of Anco by the Karnataka State Electronics Development Corporation (Corporation) on lease-cum-sale basis for which an agreement was executed. As per the said agreement, the Company was to establish its manufacturing unit within two years from the date of allotment of the Industrial Plot. In the meantime, the said Anco went into liquidation and winding up orders dated 8.6.2000 were passed. Much after the winding up orders, the corporation cancelled the lease-cum-sale deed on 28.6.2003 and tookof the industrial plot. Thereafter, the Corporation filed the application in the Company Petition requesting the Company Judge to declare the Cancellation Order passed by the Corporation to be valid and direct the O.L. not to interfere with its paper possession. The Company Judge rejected the said application keeping in view the language employed in Section 537 of the Companies Act. The Corporation filed appeal which came to be dismissed by the Division Bench. The Division Bench was not impressed with the arguments that the Corporation was not aware of the winding up proceedings and for this reason it had resumed the possession of the industrial plot, after cancellation thereof, without obtaining the leave of the Court. Once the plea of ignorance was denounced, the court addressed the question as to whether the Corporation could have cancelled the allotment of industrial plot made in favour of the Company in liquidation and answered the same in the negative with the followingNow the only question before us is, whether after an order was made by this Court in winding up the respondent Company (Company in liquidation), the applicant Corporation could have ventured to cancel the allotment of industrial plot made in favour of the Company in liquidation?This could be answered only after noticing the provisions of Sec. 537 of the Act.12. Section 537 of the Act, provides for avoidance of certain attachments, executions, etc. in winding up by or subject to supervision of Court. The winding up proceedings would commence from the date of presentation of the petition before this Court for winding up of the Company as envisaged under Section 433 of the Act and other similar provisions under the Act. Once such proceedings are initiated, any assets of the Company cannot be meddled without the leave of the Court. This settled legal proceedings, time and again is stated by various High Courts and also the highest Court. An elaboration of this settled legal principle, in our view, is wholly unnecessary.In the present case, an order of cancellation of the lease-cum-sale agreement is passed by the applicant Corporation, after presentation of the Company Petition and after passing the winding up order, but without the leave of the Court, and in our opinion, any such action is void. A void order cannot be regularised and, therefore, rightly the learned Company Judge has not acceded to the request made by the applicant Corporation. We do not see any error in the order passed by the learned Company Judge and, therefore, no interference with the said order is called for. Accordingly, appeal requires to be rejected and is rejected. No order as to costs. Ordered accordingly.Though the aforesaid observations give the impression that there cannot even be a cancellation of the allotment of industrial plot in respect of a Company in liquidation without the prior permission of the Company court, we are of the view that these observations are to be read in the factual context of the aforesaid case. As noted above, the Corporation had not only cancelled the lease but had even resumed the land by taking. Further, in the application filed before the Company Court, it did not pray for permission to take possession. On the contrary, the Corporation took up the stand that it already had the possession which should be declared as validly taken and the prayer made was to direct the Official Liquidator not to interfere with the possession. It is in this context that the High Court held that same could not be done without the leave of the court. We are of the opinion that the observations are to be read giving restricted meaning that possession could not be taken without the prior leave of the court. It may not be correct to hold that the law requires that prior permission of the Company Judge is mandated even for cancellation of the lease. In fact, question of resumption of land or taking possession thereof could have arisen only after the cancellation of the lease. We will dilate on this aspect further after discussing the judgment in M/s. Hanuman Silks (Supra).34. In M/s. Hanuman Silks (supra) the said Company was allotted plots by the Board for which lease-cum-sale agreements were entered into on 18.8.1993 and 19.8.1993. The Company was to erect the factory within 12 months and to commence the production within 24 months (same conditions as in the instant case). The Company failed to commence the civil construction work and did not complete the construction nor commenced production by these stipulated dates. Show cause notices were given by the Board and after that the plots allotted to the Company were resumed on 25.7.1995. The Company filed the petitions for quashing of the letters of resumption. The High Court formulated two questions which arose for consideration. We are concerned only with the first question which was couched in the followingAfter taking note of various provisions of the Act and discussing case law cited by both the parties, the Court concluded that no where does the Act provide for the Board taking back possession of leased plots from the lessee, without recourse to eviction proceedings, whatever be the circumstances. On the other hand, the Act contains a specific provision (Section 25) providing for application of Public Premises Act to premises leased by the Board. The absence of any provision enabling the Board to take possession from lessees and the express provision for making Public Premises Act applicable to the premises leased by the Board, leads to inescapable conclusion that termination of leases and eviction of lessees are left to be governed by contract and general law. Therefore, any act of forcible dispossession of a lessee by the Board will be an act otherwise than in accordance with law. The court further held that the power of re-entry and resumption that is reserved by the Board in the lease-cum-sale agreement, does not authorize the Board to directly or forcibly resume possession of the leased land, on termination of the lease. It only authorizes the Board to take possession of the leased land in accordance with law. It could be either by having recourse to the provisions of the Public Premises Act or by filing a Civil Suit for possession and not otherwise.36. It, thus, becomes clear that even though order of re-entry or resumption can be passed by the Board, but for taking possession the Board is supposed to have recourse to legal proceedings act in accordance with law. However, this was a case where the Company had not gone into liquidation and, therefore, the question of applicability of Section 537 of the Companies Act could not arise.37. In the present case, we are confronted with a situation where Company is in liquidation. Thereafter, we have to understand the implication of the provisions of Section 537, which reads asAvoidance of certain attachments, executions, etc., in winding up by Tribunal.(i) Where any Company is being wound up by Tribunal-(a) any attachment, distress or execution put in force, without leave of the Tribunal against the estate or effects of the Company, after the commencement of the winding up; or(b) any sale held, without leave of the Tribunal of any of the properties or effects of the Company after such commencement shall be void.(ii) Nothing in this Section applies to any proceedings for the recovery of any tax or impost or any dues payable to the Government.It is clear from the above that prior permission of the Court is required in respect of any attachment, distress or execution put in force or for sale of the properties or effects of the Company. We are of the opinion that the serving of cancellation notice simplicitor would not come within the mischief of this section as that by itself does not amount to attachment, distress or execution etc. No doubt, after the commencement of the winding up, possession of the land could not be taken without the leave of the Court. Precisely for this reason the Board had filed the application seeking permission. But according to us no such prior permission was required before cancelling the lease. In fact, it is only after the cancellation of the leases that the Board would become entitled to file such an application under Section 537 of the Act. Had the Board gone ahead further and taken the possession, after the cancellation and then approached the Company Judge, the situation which occurred in M/s. Anco Communication Ltd. (supra) would have prevailed. On the other hand, it would have been premature on the part of the Board to approach the Company Judge for permission to resume the land without cancelling the lease in the first instance.39. We thus, hold that no prior permission was required by the Board for cancelling the lease.Once the application for permission to resume the land is filed, undoubtedly it is permissible for the Company Judge to go into the validity of the action of the applicant. Thus, in the instant case the Company Judge could find out as to whether cancellation of lease is proper or not. The Company Judge could also go into the question as to whether the Company had become the owner of the property, or it was only a lessee. Company Judge could also go into the question as to whether the property in question is required by the Company and parameters of the provisions of Section 535 of the Companies Act are satisfied or not.41. In view of our elaborate discussion above, we do not find action of the Board to be illegal or blemished. The land was allotted to the Company for specified project which the Company failed to establish. Let us examine the Scheme of the KIAD Act at this point of time, KIAD Act is enacted to make special provisions for securing the establishment of industrial areas in the State and generally to promote the establishment and orderly development of industries therein, and for that purpose, to establish an Industrial Areas, Development Board, and for purposes connected with such matters. Chapter II deals with the declaration and alteration of Industrial Areas. Chapter III deals with establishment and constitution of the Board. Chapter IV deals with functions and powers of the Board and Chapter V deals with Finance, Accounts and Audit of the Board. Chapter VI deals with application of Public Premises Act and non-application of Karnataka Rent Control Act, 1961 to the premises of the Board. Chapter VII deals with Acquisition and disposal of land. Chapter VIII contains the supplementary and miscellaneous provisions. Section 13 in Chapter IV defines the functions of the Board as generally to promote and assist in the rapid and orderly establishment, growth and development of industries in industrial areas; and in particular, to develop industrial areas declared by the State Government and make them available for undertakings, to establish themselves; to establish, maintain, develop and manage industrial estates within industrial areas; and to undertake such schemes of programmes of works for the furtherance of the purposes for which the Board is established and for all purposes connected therewith.42. Section 33 in Chapter VIII of KIAD Act provides that if the Board is satisfied that if a lessee of any land in an industrial area fails to provide any amenity or carry out any development of the land, the Board may after due notice in that behalf, may itself provide such amenity or carry out such development at the expense of the Lessee. Section 34 provides for penalty for construction or use of land and building contrary to terms of holding. Section 34 A provides for demolition or alteration of unauthorized construction or alteration. Section 35 of the Act enables a person authorized by the Board to enter upon any land for the purpose of inspection, survey, measurement, valuation or enquiry. Section 41 enables the Board by notification to make regulations consistent with the Act and Rules thereunder, to carry out the purposes of the Act with the previous approval of the State Government.43. Thus, when it was found that the Company has not been able to establish the factory for which the land was allotted, under the statute itself powers are given to the Board to cancel the allotment and resume such land.44. We, further find that the Company is now in liquidation. Till date there is no validly propounded scheme of rehabilitation under Section 391 to 394 of the Companies Act. Some obscure proposals, without concrete Scheme as required under the Act, cannot be made a sheet anchor to come in the way of the rights of the Board which still remains the owners of these plots. It, therefore, cannot even be said that the land in question is required by the Company. The O.L. could claim rights over this land only if it had become the property of the Company and the ownership was vested in it. Even that is not so (whether cost of construction should be reimbursed to Company).The up-shot of the aforesaid discussion would be to hold that termination notice dated 19.1.2002 of the Board is valid. Likewise the order of the Company Judge permitting the board to take possession of the land in question is legal and | 0 | 9,320 | 4,994 | ### Instruction:
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recovery of any tax or impost or any dues payable to the Government." 38. It is clear from the above that prior permission of the Court is required in respect of any attachment, distress or execution put in force or for sale of the properties or effects of the Company. We are of the opinion that the serving of cancellation notice simplicitor would not come within the mischief of this section as that by itself does not amount to attachment, distress or execution etc. No doubt, after the commencement of the winding up, possession of the land could not be taken without the leave of the Court. Precisely for this reason the Board had filed the application seeking permission. But according to us no such prior permission was required before cancelling the lease. In fact, it is only after the cancellation of the leases that the Board would become entitled to file such an application under Section 537 of the Act. Had the Board gone ahead further and taken the possession, after the cancellation and then approached the Company Judge, the situation which occurred in M/s. Anco Communication Ltd. (supra) would have prevailed. On the other hand, it would have been premature on the part of the Board to approach the Company Judge for permission to resume the land without cancelling the lease in the first instance.39. We thus, hold that no prior permission was required by the Board for cancelling the lease. Q.4. Re: Validity of the order of the Company Court granting the permission. 40. Once the application for permission to resume the land is filed, undoubtedly it is permissible for the Company Judge to go into the validity of the action of the applicant. Thus, in the instant case the Company Judge could find out as to whether cancellation of lease is proper or not. The Company Judge could also go into the question as to whether the Company had become the owner of the property, or it was only a lessee. Company Judge could also go into the question as to whether the property in question is required by the Company and parameters of the provisions of Section 535 of the Companies Act are satisfied or not.41. In view of our elaborate discussion above, we do not find action of the Board to be illegal or blemished. The land was allotted to the Company for specified project which the Company failed to establish. Let us examine the Scheme of the KIAD Act at this point of time, KIAD Act is enacted to make special provisions for securing the establishment of industrial areas in the State and generally to promote the establishment and orderly development of industries therein, and for that purpose, to establish an Industrial Areas, Development Board, and for purposes connected with such matters. Chapter II deals with the declaration and alteration of Industrial Areas. Chapter III deals with establishment and constitution of the Board. Chapter IV deals with functions and powers of the Board and Chapter V deals with Finance, Accounts and Audit of the Board. Chapter VI deals with application of Public Premises Act and non-application of Karnataka Rent Control Act, 1961 to the premises of the Board. Chapter VII deals with Acquisition and disposal of land. Chapter VIII contains the supplementary and miscellaneous provisions. Section 13 in Chapter IV defines the functions of the Board as generally to promote and assist in the rapid and orderly establishment, growth and development of industries in industrial areas; and in particular, to develop industrial areas declared by the State Government and make them available for undertakings, to establish themselves; to establish, maintain, develop and manage industrial estates within industrial areas; and to undertake such schemes of programmes of works for the furtherance of the purposes for which the Board is established and for all purposes connected therewith.42. Section 33 in Chapter VIII of KIAD Act provides that if the Board is satisfied that if a lessee of any land in an industrial area fails to provide any amenity or carry out any development of the land, the Board may after due notice in that behalf, may itself provide such amenity or carry out such development at the expense of the Lessee. Section 34 provides for penalty for construction or use of land and building contrary to terms of holding. Section 34 A provides for demolition or alteration of unauthorized construction or alteration. Section 35 of the Act enables a person authorized by the Board to enter upon any land for the purpose of inspection, survey, measurement, valuation or enquiry. Section 41 enables the Board by notification to make regulations consistent with the Act and Rules thereunder, to carry out the purposes of the Act with the previous approval of the State Government.43. Thus, when it was found that the Company has not been able to establish the factory for which the land was allotted, under the statute itself powers are given to the Board to cancel the allotment and resume such land.44. We, further find that the Company is now in liquidation. Till date there is no validly propounded scheme of rehabilitation under Section 391 to 394 of the Companies Act. Some obscure proposals, without concrete Scheme as required under the Act, cannot be made a sheet anchor to come in the way of the rights of the Board which still remains the owners of these plots. It, therefore, cannot even be said that the land in question is required by the Company. The O.L. could claim rights over this land only if it had become the property of the Company and the ownership was vested in it. Even that is not so (whether cost of construction should be reimbursed to Company). 45. The up-shot of the aforesaid discussion would be to hold that termination notice dated 19.1.2002 of the Board is valid. Likewise the order of the Company Judge permitting the board to take possession of the land in question is legal and justified.
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effects of the Company after such commencement shall be void.(ii) Nothing in this Section applies to any proceedings for the recovery of any tax or impost or any dues payable to the Government.It is clear from the above that prior permission of the Court is required in respect of any attachment, distress or execution put in force or for sale of the properties or effects of the Company. We are of the opinion that the serving of cancellation notice simplicitor would not come within the mischief of this section as that by itself does not amount to attachment, distress or execution etc. No doubt, after the commencement of the winding up, possession of the land could not be taken without the leave of the Court. Precisely for this reason the Board had filed the application seeking permission. But according to us no such prior permission was required before cancelling the lease. In fact, it is only after the cancellation of the leases that the Board would become entitled to file such an application under Section 537 of the Act. Had the Board gone ahead further and taken the possession, after the cancellation and then approached the Company Judge, the situation which occurred in M/s. Anco Communication Ltd. (supra) would have prevailed. On the other hand, it would have been premature on the part of the Board to approach the Company Judge for permission to resume the land without cancelling the lease in the first instance.39. We thus, hold that no prior permission was required by the Board for cancelling the lease.Once the application for permission to resume the land is filed, undoubtedly it is permissible for the Company Judge to go into the validity of the action of the applicant. Thus, in the instant case the Company Judge could find out as to whether cancellation of lease is proper or not. The Company Judge could also go into the question as to whether the Company had become the owner of the property, or it was only a lessee. Company Judge could also go into the question as to whether the property in question is required by the Company and parameters of the provisions of Section 535 of the Companies Act are satisfied or not.41. In view of our elaborate discussion above, we do not find action of the Board to be illegal or blemished. The land was allotted to the Company for specified project which the Company failed to establish. Let us examine the Scheme of the KIAD Act at this point of time, KIAD Act is enacted to make special provisions for securing the establishment of industrial areas in the State and generally to promote the establishment and orderly development of industries therein, and for that purpose, to establish an Industrial Areas, Development Board, and for purposes connected with such matters. Chapter II deals with the declaration and alteration of Industrial Areas. Chapter III deals with establishment and constitution of the Board. Chapter IV deals with functions and powers of the Board and Chapter V deals with Finance, Accounts and Audit of the Board. Chapter VI deals with application of Public Premises Act and non-application of Karnataka Rent Control Act, 1961 to the premises of the Board. Chapter VII deals with Acquisition and disposal of land. Chapter VIII contains the supplementary and miscellaneous provisions. Section 13 in Chapter IV defines the functions of the Board as generally to promote and assist in the rapid and orderly establishment, growth and development of industries in industrial areas; and in particular, to develop industrial areas declared by the State Government and make them available for undertakings, to establish themselves; to establish, maintain, develop and manage industrial estates within industrial areas; and to undertake such schemes of programmes of works for the furtherance of the purposes for which the Board is established and for all purposes connected therewith.42. Section 33 in Chapter VIII of KIAD Act provides that if the Board is satisfied that if a lessee of any land in an industrial area fails to provide any amenity or carry out any development of the land, the Board may after due notice in that behalf, may itself provide such amenity or carry out such development at the expense of the Lessee. Section 34 provides for penalty for construction or use of land and building contrary to terms of holding. Section 34 A provides for demolition or alteration of unauthorized construction or alteration. Section 35 of the Act enables a person authorized by the Board to enter upon any land for the purpose of inspection, survey, measurement, valuation or enquiry. Section 41 enables the Board by notification to make regulations consistent with the Act and Rules thereunder, to carry out the purposes of the Act with the previous approval of the State Government.43. Thus, when it was found that the Company has not been able to establish the factory for which the land was allotted, under the statute itself powers are given to the Board to cancel the allotment and resume such land.44. We, further find that the Company is now in liquidation. Till date there is no validly propounded scheme of rehabilitation under Section 391 to 394 of the Companies Act. Some obscure proposals, without concrete Scheme as required under the Act, cannot be made a sheet anchor to come in the way of the rights of the Board which still remains the owners of these plots. It, therefore, cannot even be said that the land in question is required by the Company. The O.L. could claim rights over this land only if it had become the property of the Company and the ownership was vested in it. Even that is not so (whether cost of construction should be reimbursed to Company).The up-shot of the aforesaid discussion would be to hold that termination notice dated 19.1.2002 of the Board is valid. Likewise the order of the Company Judge permitting the board to take possession of the land in question is legal and
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WAPCOS LTD Vs. SALMA DAM JOINT VENTURE | arbitration cannot be resurrected merely because clause 20 of CoPA has not been expressly modified in the AoA. Hence, even this reason does not commend us. 33. As these are the only reasons which had weighed with the High Court to reject the argument of the appellant(s) regarding non-existence of arbitration agreement and the same being untenable in law, it must necessarily follow that the Arbitration Petition filed for and on behalf of SDJV through SSPPL was not maintainable. In other words, the Arbitration Petition should have been rejected for lack of subsisting or existing arbitration agreement between the parties on the date of filing of Arbitration Petition. 34. It is not unknown in commercial world that the parties amend original contract and even give up their claims under the subsisting agreement. The case on hand is one such case where the parties consciously and with full understanding executed AoA whereby the contractor gave up all his claims and consented to the new arrangement specified in AoA including that there will be no arbitration for the settlement of any claims by the contractor in future. Having chosen to adopt that path, it is not open to the contractor to now take recourse to arbitration process or to resurrect the claim which has been resolved in terms of the amended agreement, after availing of steep revision of rates being condition precedent. We may usefully rely on the underlying principle expounded by this Court in Damodar Valley Corporation vs. K. K. Kar (1974) 2 SCR 240 @ 243-244 , wherein the Court observed as follows:- …..As the contract is an outcome of the agreement between the parties it is equally open to the parties thereto to agree, to bring it to an end or to treat it as if it never existed. It may also be open to the parties to terminate the previous contract and substitute in its place a new contract or alter the original contract in such a way that it cannot subsist. In all these cases, since the entire contract is put an end to, the arbitration clause, which is a part of it, also perishes along with it. Section 62 of the Contract Act incorporates this principle when it provides that if the parties to a contract agree to substitute a new contract or to rescind or alter it, the original contract need not be performed. Where, therefore, the dispute between the parties is that the contract itself does not subsist either as a result of its being substituted by a new contract or by rescission or alteration, that dispute cannot be referred to the arbitration as the arbitration clause itself would perish if the averment is found to be valid. As the very jurisdiction of the arbitrator is dependent upon the existence of the arbitration clause under which he is appointed, the parties have no right to invoke a clause which perishes with the contract. In a subsequent decision in National Insurance Company Limited vs. Boghara Polyfab Private Limited (2009) 1 SCC 267 , in paragraph 52 this Court held as follows: 52. Some illustrations (not exhaustive) as to when claims are arbitrable and when they are not, when discharge of contract by accord and satisfaction are disputed, to round up the discussion on this subject are: (i) …. …. …. (ii) A claimant makes several claims. The admitted or undisputed claims are paid. Thereafter negotiations are held for settlement of the disputed claims resulting in an agreement in writing settling all the pending claims and disputes. On such settlement, the amount agreed is paid and the contractor also issues a discharge voucher/no- claim certificate/full and final receipt. After the contract is discharged by such accord and satisfaction, neither the contract nor any dispute survives for consideration. There cannot be any reference of any dispute to arbitration thereafter. (iii) …. …. …. (iv) …. …. …. (v) A claimant makes a claim for a huge sum, by way of damages. The respondent disputes the claim. The claimant who is keen to have a settlement and avoid litigation, voluntarily reduces the claim and requests for settlement. The respondent agrees and settles the claim and obtains a full and final discharge voucher. Here even if the claimant might have agreed for settlement due to financial compulsions and commercial pressure or economic duress, the decision was his free choice. There was no threat, coercion or compulsion by the respondent. Therefore, the accord and satisfaction is binding and valid and there cannot be any subsequent claim or reference to arbitration. Further, in Nathani Steels Ltd. v. Associated Constructions 1995 Supp (3) SCC 324 , this Court observed as follows:- 3......Even otherwise we feel that once the parties have arrived at a settlement in respect of any dispute or difference arising under a contract and that dispute or the difference is amicably settled by way of a final settlement by and between the parties, unless that settlement is set aside in proper proceedings, it cannot lie in the mouth of one of the parties to the settlement to spurn it on the ground that it was a mistake and proceed to invoke the Arbitration clause. If this is permitted the sanctity of contract, the settlement also being a contract, would be wholly lost and it would be open to one party to take the benefit under the settlement and then to question the same on the ground of mistake without having the settlement set aside. In the circumstances, we think that in the instant case since the dispute or difference was finally settled and payments were made as per the settlement, it was not open to the respondent unilaterally to treat the settlement as non est and proceed to invoke the Arbitration clause. We are, therefore, of the opinion that the High Court was wrong in the view that it took. 35. Having said this, no other issue need be addressed in these appeals. As a result, these appeals must succeed. | 0[ds]Going by the Contract Agreement read with relevant clauses of CoPA and FIDIC, it is obvious that the parties had agreed for resolution of all their differences or disputes arising from the Contract Agreement by process of settlement of disputes and arbitration23. It is pertinent to note that the execution of stated AoA has not been disputed by SDJV or for that matter by SSPPL. More so, these entities have not even challenged the implementation of AoA. On the other hand, it has come on record that all concerned gave effect to the terms set out in AoA by offering revised rates to SDJV in conformity with the agreed rates referred to in AoA and which payment was received and availed of by SDJV/SSPPL without any demur. We may hasten to add that even the subject Arbitration Petition does not question the execution of AoA or the applicability thereof. Indeed, the asseveration in the Arbitration Petition is that the claim set up by SDJV is in reference to items and bills raised subsequent to the execution of AoA26. Despite such peremptory agreement and declaration by the parties, SDJV proceeded on an erroneous basis that the arbitration agreement in Contract Agreement still subsists and can be enforced by it. As aforesaid, neither SDJV nor SSPPL have disputed the execution of AoA nor it is even remotely suggested in the Arbitration Petition that the AoA was executed by them under duress or coercion. From the indisputable circumstances, it becomes amply clear that the stated terms and conditions set out in the AoA were agreed upon by all concerned primarily due to revision of cost of the project upto Rs. 872.67 crores which is 3.44 times the original project cost, (i.e. Rs. 253.84 crores) as the same was subject to clauses 1.2 and 1.3 of Section-01 See – Clause 1.0 of Section-01 of AoA (in paragraph 22 above) . Notably, this AoA was executed at a stage when substantial part of the works (around 97%) had already been completed. In our opinion, the terms and conditions specified in AoA leave no manner of doubt that the arbitration agreement has been done away with – as is manifest from the unambiguous declaration that balance pending claims of Contractor stand buried and that there will be no arbitration for the settlement of claimsThat may be so, however, in our view, it will be of no avail. We will deal with this aspect a little later. Suffice it to observe that the terms and conditions of AoA make it amply clear that the arbitration agreement stands overridden in view of the express declaration in AoA in that regard referred to earlier28. As noticed earlier, AoA was executed on 09.06.2015 by which date, substantial part of the works (around 97 per cent) of the Dam and Spillway had been completed. The water filling in dam commenced on 26.07.2015 by closing diversion tunnel gate. That presupposes that the Dam and Spillway work was fully completed before that date. It is also not disputed that the project was inaugurated by the Prime Minister of India and the President of Afghanistan on 04.06.2016. The terms agreed upon between the parties and as recorded in AoA dated 09.06.2015 was the outcome of steep revision of rates. These circumstances are germane whilst answering the question under consideration. We have no manner of doubt that the purport of the terms and conditions incorporated in the AoA dated 09.06.2015 are unambiguous expression of intent to supersede the arbitration agreement incorporated in Contract Agreement dated 09.03.2006 and to resolve all the contentious issues regarding the claims of SDJV, in the manner specified therein30. As regards the first reason weighed with the High Court that the Technical Committee entertained the five appeals filed on behalf of the SDJV, that in our view cannot undo the effect of terms and conditions of AoA which had annulled the arbitration clause in the Contract Agreement. There are at least two other tangible reasons to overturn the stated opinion of the High Court. First, the Technical Committee was, as a matter of fact, constituted under clause 2.1 of Section – 02 of AoA by the CMD of WAPCOSL, as is evident from the communication dated 21.10.2015 sent by WAPCOSL to SDJV. That fact has been restated in the subsequent correspondence. The Technical Committee was, therefore, not constituted in terms of Clause 20.1 of CoPA as has been erroneously assumed by the High Court. Second, the fact that the Technical Committee processed the appeals instituted by SDJV does not mean that WAPCOSL had waived the terms and conditions of AoA, in particular clauses 1.2 and 1.3 of Section-01 thereof. No averment is found in the Arbitration Petition to even remotely suggest that it was a case of waiver express or tacit, by WAPCOSL qua the stipulation specified in clauses 1.2 and 1.3 of Section-01 of AoA. Hence, this reason weighed with the High Court is manifestly wrong and cannot stand the test of judicial scrutiny31. The second reason weighed with the High Court is again founded on incorrect assumption about the date of AoA. The High Court in paragraph 10.7 proceeds on the basis that AoA was executed as back as on 09.06.2005 and having noted that date, the High Court then observed that the project was inaugurated only in 2016. On this erroneous assumption, the High Court rejected the claim of the appellant(s) herein. As a matter of fact, the AoA was executed on 09.06.2015, at which point of time, 97 per cent of the project was completed and the same was rolled out by filling of the Dam from 26.07.2015 in less than one month, by closing diversion tunnel gate. Not only that, the project was dedicated to the people of Afghanistan soon thereafter on 04.06.2016. Thus understood, it becomes clear that the parties had agreed to give quietus to all the claims and adopt revised rates recommended by High Power Committee, as recorded in AoA executed on 09.06.2015. Suffice it to note that the basis for rejecting the argument of the appellant(s) is founded on erroneous assumption that AoA was executed on 09.06.2005. That is an error apparent on the face of the record32. The third reason weighed with the High Court is that clause 20.6 of CoPA, providing for resolution of disputes by arbitration has not been modified by AoA. Indeed, clause 4 of the Contract Agreement makes reference to clause 20 of CoPA. However, on a fair reading of clause 4 of the Contract Agreement and in particular 4.1 as reproduced hitherto, it would be crystal clear that the substance of the provision is to provide for process of settlement of disputes and arbitration. Reference to clause 20 of CoPA is only to indicate that the procedure specified therein may have to be followed whilst taking recourse to that process. However, as the substantive provision regarding remedy of arbitration itself has been done away with in terms of clauses 1.2 and 1.3 of Section-01 of AoA, there was no need to modify clause 20 in CoPA dealing with machinery provision. Thus, the remedy of arbitration cannot be resurrected merely because clause 20 of CoPA has not been expressly modified in the AoA. Hence, even this reason does not commend us33. As these are the only reasons which had weighed with the High Court to reject the argument of the appellant(s) regarding non-existence of arbitration agreement and the same being untenable in law, it must necessarily follow that the Arbitration Petition filed for and on behalf of SDJV through SSPPL was not maintainable. In other words, the Arbitration Petition should have been rejected for lack of subsisting or existing arbitration agreement between the parties on the date of filing of Arbitration Petition34. It is not unknown in commercial world that the parties amend original contract and even give up their claims under the subsisting agreement. The case on hand is one such case where the parties consciously and with full understanding executed AoA whereby the contractor gave up all his claims and consented to the new arrangement specified in AoA including that there will be no arbitration for the settlement of any claims by the contractor in future. Having chosen to adopt that path, it is not open to the contractor to now take recourse to arbitration process or to resurrect the claim which has been resolved in terms of the amended agreement, after availing of steep revision of rates being condition precedent35. Having said this, no other issue need be addressed in these appeals. As a result, these appeals must succeed. | 0 | 6,600 | 1,562 | ### Instruction:
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arbitration cannot be resurrected merely because clause 20 of CoPA has not been expressly modified in the AoA. Hence, even this reason does not commend us. 33. As these are the only reasons which had weighed with the High Court to reject the argument of the appellant(s) regarding non-existence of arbitration agreement and the same being untenable in law, it must necessarily follow that the Arbitration Petition filed for and on behalf of SDJV through SSPPL was not maintainable. In other words, the Arbitration Petition should have been rejected for lack of subsisting or existing arbitration agreement between the parties on the date of filing of Arbitration Petition. 34. It is not unknown in commercial world that the parties amend original contract and even give up their claims under the subsisting agreement. The case on hand is one such case where the parties consciously and with full understanding executed AoA whereby the contractor gave up all his claims and consented to the new arrangement specified in AoA including that there will be no arbitration for the settlement of any claims by the contractor in future. Having chosen to adopt that path, it is not open to the contractor to now take recourse to arbitration process or to resurrect the claim which has been resolved in terms of the amended agreement, after availing of steep revision of rates being condition precedent. We may usefully rely on the underlying principle expounded by this Court in Damodar Valley Corporation vs. K. K. Kar (1974) 2 SCR 240 @ 243-244 , wherein the Court observed as follows:- …..As the contract is an outcome of the agreement between the parties it is equally open to the parties thereto to agree, to bring it to an end or to treat it as if it never existed. It may also be open to the parties to terminate the previous contract and substitute in its place a new contract or alter the original contract in such a way that it cannot subsist. In all these cases, since the entire contract is put an end to, the arbitration clause, which is a part of it, also perishes along with it. Section 62 of the Contract Act incorporates this principle when it provides that if the parties to a contract agree to substitute a new contract or to rescind or alter it, the original contract need not be performed. Where, therefore, the dispute between the parties is that the contract itself does not subsist either as a result of its being substituted by a new contract or by rescission or alteration, that dispute cannot be referred to the arbitration as the arbitration clause itself would perish if the averment is found to be valid. As the very jurisdiction of the arbitrator is dependent upon the existence of the arbitration clause under which he is appointed, the parties have no right to invoke a clause which perishes with the contract. In a subsequent decision in National Insurance Company Limited vs. Boghara Polyfab Private Limited (2009) 1 SCC 267 , in paragraph 52 this Court held as follows: 52. Some illustrations (not exhaustive) as to when claims are arbitrable and when they are not, when discharge of contract by accord and satisfaction are disputed, to round up the discussion on this subject are: (i) …. …. …. (ii) A claimant makes several claims. The admitted or undisputed claims are paid. Thereafter negotiations are held for settlement of the disputed claims resulting in an agreement in writing settling all the pending claims and disputes. On such settlement, the amount agreed is paid and the contractor also issues a discharge voucher/no- claim certificate/full and final receipt. After the contract is discharged by such accord and satisfaction, neither the contract nor any dispute survives for consideration. There cannot be any reference of any dispute to arbitration thereafter. (iii) …. …. …. (iv) …. …. …. (v) A claimant makes a claim for a huge sum, by way of damages. The respondent disputes the claim. The claimant who is keen to have a settlement and avoid litigation, voluntarily reduces the claim and requests for settlement. The respondent agrees and settles the claim and obtains a full and final discharge voucher. Here even if the claimant might have agreed for settlement due to financial compulsions and commercial pressure or economic duress, the decision was his free choice. There was no threat, coercion or compulsion by the respondent. Therefore, the accord and satisfaction is binding and valid and there cannot be any subsequent claim or reference to arbitration. Further, in Nathani Steels Ltd. v. Associated Constructions 1995 Supp (3) SCC 324 , this Court observed as follows:- 3......Even otherwise we feel that once the parties have arrived at a settlement in respect of any dispute or difference arising under a contract and that dispute or the difference is amicably settled by way of a final settlement by and between the parties, unless that settlement is set aside in proper proceedings, it cannot lie in the mouth of one of the parties to the settlement to spurn it on the ground that it was a mistake and proceed to invoke the Arbitration clause. If this is permitted the sanctity of contract, the settlement also being a contract, would be wholly lost and it would be open to one party to take the benefit under the settlement and then to question the same on the ground of mistake without having the settlement set aside. In the circumstances, we think that in the instant case since the dispute or difference was finally settled and payments were made as per the settlement, it was not open to the respondent unilaterally to treat the settlement as non est and proceed to invoke the Arbitration clause. We are, therefore, of the opinion that the High Court was wrong in the view that it took. 35. Having said this, no other issue need be addressed in these appeals. As a result, these appeals must succeed.
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express declaration in AoA in that regard referred to earlier28. As noticed earlier, AoA was executed on 09.06.2015 by which date, substantial part of the works (around 97 per cent) of the Dam and Spillway had been completed. The water filling in dam commenced on 26.07.2015 by closing diversion tunnel gate. That presupposes that the Dam and Spillway work was fully completed before that date. It is also not disputed that the project was inaugurated by the Prime Minister of India and the President of Afghanistan on 04.06.2016. The terms agreed upon between the parties and as recorded in AoA dated 09.06.2015 was the outcome of steep revision of rates. These circumstances are germane whilst answering the question under consideration. We have no manner of doubt that the purport of the terms and conditions incorporated in the AoA dated 09.06.2015 are unambiguous expression of intent to supersede the arbitration agreement incorporated in Contract Agreement dated 09.03.2006 and to resolve all the contentious issues regarding the claims of SDJV, in the manner specified therein30. As regards the first reason weighed with the High Court that the Technical Committee entertained the five appeals filed on behalf of the SDJV, that in our view cannot undo the effect of terms and conditions of AoA which had annulled the arbitration clause in the Contract Agreement. There are at least two other tangible reasons to overturn the stated opinion of the High Court. First, the Technical Committee was, as a matter of fact, constituted under clause 2.1 of Section – 02 of AoA by the CMD of WAPCOSL, as is evident from the communication dated 21.10.2015 sent by WAPCOSL to SDJV. That fact has been restated in the subsequent correspondence. The Technical Committee was, therefore, not constituted in terms of Clause 20.1 of CoPA as has been erroneously assumed by the High Court. Second, the fact that the Technical Committee processed the appeals instituted by SDJV does not mean that WAPCOSL had waived the terms and conditions of AoA, in particular clauses 1.2 and 1.3 of Section-01 thereof. No averment is found in the Arbitration Petition to even remotely suggest that it was a case of waiver express or tacit, by WAPCOSL qua the stipulation specified in clauses 1.2 and 1.3 of Section-01 of AoA. Hence, this reason weighed with the High Court is manifestly wrong and cannot stand the test of judicial scrutiny31. The second reason weighed with the High Court is again founded on incorrect assumption about the date of AoA. The High Court in paragraph 10.7 proceeds on the basis that AoA was executed as back as on 09.06.2005 and having noted that date, the High Court then observed that the project was inaugurated only in 2016. On this erroneous assumption, the High Court rejected the claim of the appellant(s) herein. As a matter of fact, the AoA was executed on 09.06.2015, at which point of time, 97 per cent of the project was completed and the same was rolled out by filling of the Dam from 26.07.2015 in less than one month, by closing diversion tunnel gate. Not only that, the project was dedicated to the people of Afghanistan soon thereafter on 04.06.2016. Thus understood, it becomes clear that the parties had agreed to give quietus to all the claims and adopt revised rates recommended by High Power Committee, as recorded in AoA executed on 09.06.2015. Suffice it to note that the basis for rejecting the argument of the appellant(s) is founded on erroneous assumption that AoA was executed on 09.06.2005. That is an error apparent on the face of the record32. The third reason weighed with the High Court is that clause 20.6 of CoPA, providing for resolution of disputes by arbitration has not been modified by AoA. Indeed, clause 4 of the Contract Agreement makes reference to clause 20 of CoPA. However, on a fair reading of clause 4 of the Contract Agreement and in particular 4.1 as reproduced hitherto, it would be crystal clear that the substance of the provision is to provide for process of settlement of disputes and arbitration. Reference to clause 20 of CoPA is only to indicate that the procedure specified therein may have to be followed whilst taking recourse to that process. However, as the substantive provision regarding remedy of arbitration itself has been done away with in terms of clauses 1.2 and 1.3 of Section-01 of AoA, there was no need to modify clause 20 in CoPA dealing with machinery provision. Thus, the remedy of arbitration cannot be resurrected merely because clause 20 of CoPA has not been expressly modified in the AoA. Hence, even this reason does not commend us33. As these are the only reasons which had weighed with the High Court to reject the argument of the appellant(s) regarding non-existence of arbitration agreement and the same being untenable in law, it must necessarily follow that the Arbitration Petition filed for and on behalf of SDJV through SSPPL was not maintainable. In other words, the Arbitration Petition should have been rejected for lack of subsisting or existing arbitration agreement between the parties on the date of filing of Arbitration Petition34. It is not unknown in commercial world that the parties amend original contract and even give up their claims under the subsisting agreement. The case on hand is one such case where the parties consciously and with full understanding executed AoA whereby the contractor gave up all his claims and consented to the new arrangement specified in AoA including that there will be no arbitration for the settlement of any claims by the contractor in future. Having chosen to adopt that path, it is not open to the contractor to now take recourse to arbitration process or to resurrect the claim which has been resolved in terms of the amended agreement, after availing of steep revision of rates being condition precedent35. Having said this, no other issue need be addressed in these appeals. As a result, these appeals must succeed.
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Kulathil Mammu Vs. The State Of Kerala | one and it was only in June 1947 that the final decision to divide India as it was before August 15, 1947 was taken. Even so, the exact boundary between the two countries which were to come into existence was not settled till the Radcliffe award just about August 15, 1947. In such a situation it would in our opinion be odd to introduce the concept of domicile either in Art. 6 or Art 7. All these considerations therefore lead us to the conclusion that when the Constitution makers used the work "migrated" in Art. 6 and Art. 7 they used it in the wider sense to which we have referred earlier and not in the narrower sense and this meaning is in our opinion in accord with the circumstances which prevailed at the time which resulted in large movement of population from one side to the other. 11. Even so we are of opinion that there is one qualification which must be attached to the word "migrated" as used in these two Articles, even though that word has the wider meaning of going from one place to another in the context of these Articles. That qualification is that the movement should have been voluntary and should not have been for a specific purpose and for a short and limited period. A case where a person went on what may be called a visit from the territory of India to the territory of Pakistan for a short and limited period with a specific purpose would not be covered by the word "migrated" as used in Art. 7. Similarly a case where a person was forced to go from the territory of India to the territory of Pakistan as, for example, where he might have been kidnapped or abducted would not be covered by the word "migrated" as used in Art. 7. Barring such cases the word "migrated" as used in Arts. 6 and 7 has to wider meaning, namely, movement from one territory to another territory whether or not with the intention of permanent residence in the latter place. We may in this connection refer to State of Bihar v. Kumar Amar Singh, (S) AIR 1955 SC 282 . In that case a lady went to Karachi in July 1948 leaving her husband in India. Her case was that she had gone there for medical treatment, but this was found to be false. It was held that she had migrated from India to Pakistan after March 1, 1947 and even if Art. 5 could be said to be applicable on the assumption that her domicile was that of her husband, the case was covered by Art. 7 which applied notwithstanding anything in Art. 5. Thus this case shows that if migration was voluntary and not with a specific purpose and for a short and limited period. Art. 7 would apply irrespective of the fact whether the migration was with the intention of residing permanently in the place to which the person migrated. 12. This brings us to Smt. Shanno Devis case, AIR 1961 SC 58 . We are of opinion that the narrower meaning given in that case to the word "migrated" as used in Art. 6 is with respect not correct, and that the word "migrated" used in Arts. 6 and 7 has the wider meaning namely, coming or going from one place to another, whether or not with the intention of residence in the latter place, subject to the qualification which we have already indicated. 13. We may incidentally refer to Art. 9 also thought it does not directly arise in so far as the question before us is concerned. That Article provides that no person shall be a citizen of India by virtue of Art. 5, or be deemed to be a citizen of India by virtue of Art. 6 or Art. 8 if he has voluntarily acquired the citizenship of any foreign State. That Article came up for consideration in State of Madhya Pradesh v. Peer Mohd. 1963 Supp (1) SCR 429: (AIR 1963 SC 645 ) and it was held that it did not apply to a case of acquisition of foreign citizenship after the Constitution came into force but only applied to such cases where foreign citizenship was acquired before the Constitution commenced. By oversight however in Abdul Sattar Haji Ibrahim Patel v. State of Gujarat, AIR 1965 SC 810 , it has been stated that cases in which migration had taken place after January 26, 1950 fall to be considered under Art. 9 of the Constitution. Article 9 does not use the word "migration" and deals only with voluntary acquisition of citizenship of a foreign State before the Constitution came into force as already decided in Peer Mohds case, 1963 Supp (1) SCR 429: (AIR 1963 SC 645 ).We have thought it fit to refer to Art. 9 to correct the slip which has occurred in Abdul Sattars case, Air 1965 SC 810 .Cases of voluntary acquisition of foreign citizenship after the commencement of the Constitution have to be dealt with by the Government of India under the Citizenship Act, 1955. 14. Coming now to the facts of the present case it is obvious that Aboobacker went voluntarily to the territory of Pakistan sometime after March 1, 1947. It is equally obvious that he did not go for any specific purpose and for a short and limited period. His case therefore clearly falls within the meaning which we have given to the word "migrated" in Art. 7 and therefore by virtue of that Article he will be deemed not to be a citizen of India on the date of the commencement of the Constitution. Thereafter he has not acquired the citizenship of India and he should therefore be held to be a foreigner; and if that is so, it is not disputed that the order passed by the State Government is legal and the view taken by the High Court thereof is correct. | 0[ds]The first Article in that Part is Art. 5 and it lays down the normal rule of citizenship. Under that Article every person who has his domicile in the territory of India at the commencement of the Constitution and satisfies one of the three conditions laid down therein is a citizen of India. But the Constitution also deals with the abnormal situation that prevailed in the country about the time of its partition between India and Pakistan and Arts. 6 and 7 deal with that abnormal situation. It is well known that there was large movement of population form what is now the territory of Pakistan to the territory of India and vice versa from about March, 1947 and this continued late into 1948. Article 6 deals with this movement of population form the territory now included in Pakistan to the territory of India while Article 7 deals with the movement from the territory of India to what is now the territory of Pakistan. Both these Articles begin with a non obstante clause. Article 6 begins with the words "notwithstanding anything in Art. 5" and Art. 7 begins with the words "notwithstanding anything in Arts. 5 and 6". The presence of the non obstante clause in both these Articles clearly indicates that they were meant to deal with the abnormal situation to which we have already referred and prescribe conditions as to who shall be deemed to be citizens of India on the date of the commencement of the Constitution (Art. 6) and who shall not be so deemed (Art.t is also remarkable that both these Articles are silent on the question of domicile and the presence of the non obstante clause in the beginning of these Articles clearly shows in our opinion that the concept of domicile was not to be brought into them when deciding who shall be deemed citizens of India (Art. 6) or who shall not be deemed to be citizens of India (Art. 7).These two Articles make special provision for dealing with the abnormal situation created by large movement of population from one side to the other and vice versa and lay down special criteria of their own, in one case for deciding who shall be deemed to be citizens of India (Art. 6 ) and in the other case who shall not be deemed to be such citizens (Art. 7). It seems to us therefore that the Constitution makers did not intend that the concept of domicile should be brought into Articles 6 and 7 notwithstanding that such concept was present in Art. 5, which provides for the normal case of citizenship of India. In this situation it seems to us clear that when Art. 6 as well as Art. 7 use the word "migrated", the intention must have been to give the wider meaning to that word, namely, going from one territory to the other14. Coming now to the facts of the present case it is obvious that Aboobacker went voluntarily to the territory of Pakistan sometime after March 1, 1947. It is equally obvious that he did not go for any specific purpose and for a short and limited period. His case therefore clearly falls within the meaning which we have given to the word "migrated" in Art. 7 and therefore by virtue of that Article he will be deemed not to be a citizen of India on the date of the commencement of the Constitution. Thereafter he has not acquired the citizenship of India and he should therefore be held to be a foreigner; and if that is so, it is not disputed that the order passed by the State Government is legal and the view taken by the High Court thereof is correct18. My learned brother Wanchoo has held that the word migrate means no more than to go from one place to another and that the element of an intention to acquire a domicile is not necessary. He has, however, given instances of some cases in which going form one place to another would not be sufficient because either the going was involuntary or there was no intention to stay in the new place but to return. These instances, which I also adopt, show that migration is not bare physical movement from India to the territory now included in Pakistan but in such movement accompanied by an intention of some sort. What that intention should be is the matter in dispute20. Before I attempt to answer this question I shall say is few words about Arts. 6 and 7 because that will show how I view the word migrate used in them. Article 6**begins with the words "Notwithstanding anything in Art. 5" and lays down that a person who has migrated to the territory of India from the territory now included in Pakistan shall be deemed to be a citizen of India at the commencement of the Constitution if he or either of his parents or any of hiss was born in India as defined in the Government of India Act, 1935 (as originally enacted) and (a) in case such person had so migrated before the nineteenth day of July 1948 he had been ordinarily resident in the territory of India since the date of his migration, or (b) in case such person had so migrated on or after the nineteenth day of July 1948, he had been registered as citizen of India. The non obstante clause has the effect of segregating Art. 6 from Art. 526. Aboobackar left India in circumstances to which Art. 7 must clearly apply. That he was a minor makes no difference. The Constitution does not make a distinction between an adult and a minor. The intention of changing his abode from India to the territory now in Pakistan (whether he had it at the time or not) must be attributed to him because he returned to India several times and went back again under a Pakistan passport which clearly showed that he was intending to change his abode form India to Pakistan. His subsequent action shows the intention and an election to change the abode which the word migrate in Art. 7 of the Constitution obviously indicates. This was the view taken by Das Gupta, J. in Shanno Devis case, AIR 1961 SC 58 , and I think that the decision was correctAnother matter which must also be kept in mind is that Arts. 6 and 7 deal with the status at the commencement of the Constitution. Therefore, migration into the territory of India which conferred the status of citizenship under Art. 6 and migration form India which disabled a person from claiming citizenship under Art. 7 must be complete before the date of the commencement of the Constitution. If, therefore, intention to settle permanently in the country in which a person has moved is a necessary component of migration, such intention must have been formed before the commencement of the Constitution, and many persons who were compelled to move from their hearths and homes on account of a sense of insecurity resulting from riots and civil commotion still hoping that they would be going back to the abodes of their ancestors when the situation returned to normal, may not be deemed to have migrated at all. This, in my judgment, would introduce an element of uncertainty in the determination of citizenship and involve great hardship to the migrantsTwo cases in which this Court was called upon to consider the meaning of "migrate" may be referred to. In1 SCR 576 : (AIR 1961 SC 58 ), it was held by this Court that the expression "migrated to the territory of India" in Art. 6 of the Constitution means "come to the territory of India with the intention of residing there permanently". The dispute in that case arose in an election case, Mangal Sain who was born in 1927 of Indian parents in the territory which since August 15, 1947 had become part of Pakistan, moved in 1944 to Jullunder, and thereafter lived in the territory which is part of India, except for a short period when he went to Burma. It was contended in an election dispute that Mangal Sain was not a citizen of India and, therefore, could not stand for election. That contention was rejected by this Court on the finding that the respondent Mangal Sain who had earlier moved from a place in Pakistan to Jullunder and definitely made up his mind to make India his permanent home and, therefore, he satisfied the first requirement of Art. 6 after migration to the territory of India from the territory now included in Pakistan and it being established that Mangal Sain was born in India as defined in the Government of India Act, 1935, he satisfied the requirement of Cl. (a) of Art. 6. The Court in that case regarded movement from one territory to another, with intention to reside permanently in the new territory as a necessary ingredient.But in an earlier judgment of this Court in1 SCR 1259 : (S) AIR 1955 SC 282 ), the question (was ?) whether one Kumar Rani Sayeeda Khatoon was, because of migration from the territory of India after March 1, 1947, not to be deemed a citizen of India. Kumar Rani who was born in territory of India and had married Captain Maharaj Kumar Gopal Saran Narayan Singh of Gaya in 1920 left for Karachi in July 1948 and returned to India in December 1948 on a temporary permit. She again left for Pakistan in April 1949 on the expiry of the permit. Her claim that she went to Pakistan temporarily for medical treatment was not accepted. After her property in India was taken over by the Custodian of Evacuee Property, she obtained a permit for permanent return and came to India in 1950. This permit was later cancelled, and she was directed to leave India. In a petition filed before the High Court of Patna it was declared that Kumar Rani was a citizen of India and the order directing her to leave India was set aside. This Court reversed the order of the High Court holding that since Kumar Rani had migrated form the territory of India to the territory of Pakistan, she had disqualified herself from claiming citizenship of India. The facts proved in Kumar Amar Singhs case,1 SCR 1259 : (S) AIR 1955 SC 282 ), disclose that there was no evidence tending to show that Kumar Rani had entertained at any time before the commencement of the Constitution an intention permanently to reside in Pakistan. Her husband was in India, her property was in India and she had gone to Pakistan for about eight months in the year 1948 and thereafter in April 1949. The Court in that case apparently did not accept the view that to attract Art. 7, migration from the territory of India must be with an intention permanently to reside in the territory now included in PakistanIn my view "migrated form the territory of India" within the meaning of Art. 7 means moving from one place to another but nor necessarily with the intention of permanently residing in the country in which the person has moved. I agree, however, that the movement should be voluntary and not purely temporary, such a movement for purposes of a business transaction or a professional or a social visit. | 0 | 4,275 | 2,080 | ### Instruction:
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one and it was only in June 1947 that the final decision to divide India as it was before August 15, 1947 was taken. Even so, the exact boundary between the two countries which were to come into existence was not settled till the Radcliffe award just about August 15, 1947. In such a situation it would in our opinion be odd to introduce the concept of domicile either in Art. 6 or Art 7. All these considerations therefore lead us to the conclusion that when the Constitution makers used the work "migrated" in Art. 6 and Art. 7 they used it in the wider sense to which we have referred earlier and not in the narrower sense and this meaning is in our opinion in accord with the circumstances which prevailed at the time which resulted in large movement of population from one side to the other. 11. Even so we are of opinion that there is one qualification which must be attached to the word "migrated" as used in these two Articles, even though that word has the wider meaning of going from one place to another in the context of these Articles. That qualification is that the movement should have been voluntary and should not have been for a specific purpose and for a short and limited period. A case where a person went on what may be called a visit from the territory of India to the territory of Pakistan for a short and limited period with a specific purpose would not be covered by the word "migrated" as used in Art. 7. Similarly a case where a person was forced to go from the territory of India to the territory of Pakistan as, for example, where he might have been kidnapped or abducted would not be covered by the word "migrated" as used in Art. 7. Barring such cases the word "migrated" as used in Arts. 6 and 7 has to wider meaning, namely, movement from one territory to another territory whether or not with the intention of permanent residence in the latter place. We may in this connection refer to State of Bihar v. Kumar Amar Singh, (S) AIR 1955 SC 282 . In that case a lady went to Karachi in July 1948 leaving her husband in India. Her case was that she had gone there for medical treatment, but this was found to be false. It was held that she had migrated from India to Pakistan after March 1, 1947 and even if Art. 5 could be said to be applicable on the assumption that her domicile was that of her husband, the case was covered by Art. 7 which applied notwithstanding anything in Art. 5. Thus this case shows that if migration was voluntary and not with a specific purpose and for a short and limited period. Art. 7 would apply irrespective of the fact whether the migration was with the intention of residing permanently in the place to which the person migrated. 12. This brings us to Smt. Shanno Devis case, AIR 1961 SC 58 . We are of opinion that the narrower meaning given in that case to the word "migrated" as used in Art. 6 is with respect not correct, and that the word "migrated" used in Arts. 6 and 7 has the wider meaning namely, coming or going from one place to another, whether or not with the intention of residence in the latter place, subject to the qualification which we have already indicated. 13. We may incidentally refer to Art. 9 also thought it does not directly arise in so far as the question before us is concerned. That Article provides that no person shall be a citizen of India by virtue of Art. 5, or be deemed to be a citizen of India by virtue of Art. 6 or Art. 8 if he has voluntarily acquired the citizenship of any foreign State. That Article came up for consideration in State of Madhya Pradesh v. Peer Mohd. 1963 Supp (1) SCR 429: (AIR 1963 SC 645 ) and it was held that it did not apply to a case of acquisition of foreign citizenship after the Constitution came into force but only applied to such cases where foreign citizenship was acquired before the Constitution commenced. By oversight however in Abdul Sattar Haji Ibrahim Patel v. State of Gujarat, AIR 1965 SC 810 , it has been stated that cases in which migration had taken place after January 26, 1950 fall to be considered under Art. 9 of the Constitution. Article 9 does not use the word "migration" and deals only with voluntary acquisition of citizenship of a foreign State before the Constitution came into force as already decided in Peer Mohds case, 1963 Supp (1) SCR 429: (AIR 1963 SC 645 ).We have thought it fit to refer to Art. 9 to correct the slip which has occurred in Abdul Sattars case, Air 1965 SC 810 .Cases of voluntary acquisition of foreign citizenship after the commencement of the Constitution have to be dealt with by the Government of India under the Citizenship Act, 1955. 14. Coming now to the facts of the present case it is obvious that Aboobacker went voluntarily to the territory of Pakistan sometime after March 1, 1947. It is equally obvious that he did not go for any specific purpose and for a short and limited period. His case therefore clearly falls within the meaning which we have given to the word "migrated" in Art. 7 and therefore by virtue of that Article he will be deemed not to be a citizen of India on the date of the commencement of the Constitution. Thereafter he has not acquired the citizenship of India and he should therefore be held to be a foreigner; and if that is so, it is not disputed that the order passed by the State Government is legal and the view taken by the High Court thereof is correct.
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clause has the effect of segregating Art. 6 from Art. 526. Aboobackar left India in circumstances to which Art. 7 must clearly apply. That he was a minor makes no difference. The Constitution does not make a distinction between an adult and a minor. The intention of changing his abode from India to the territory now in Pakistan (whether he had it at the time or not) must be attributed to him because he returned to India several times and went back again under a Pakistan passport which clearly showed that he was intending to change his abode form India to Pakistan. His subsequent action shows the intention and an election to change the abode which the word migrate in Art. 7 of the Constitution obviously indicates. This was the view taken by Das Gupta, J. in Shanno Devis case, AIR 1961 SC 58 , and I think that the decision was correctAnother matter which must also be kept in mind is that Arts. 6 and 7 deal with the status at the commencement of the Constitution. Therefore, migration into the territory of India which conferred the status of citizenship under Art. 6 and migration form India which disabled a person from claiming citizenship under Art. 7 must be complete before the date of the commencement of the Constitution. If, therefore, intention to settle permanently in the country in which a person has moved is a necessary component of migration, such intention must have been formed before the commencement of the Constitution, and many persons who were compelled to move from their hearths and homes on account of a sense of insecurity resulting from riots and civil commotion still hoping that they would be going back to the abodes of their ancestors when the situation returned to normal, may not be deemed to have migrated at all. This, in my judgment, would introduce an element of uncertainty in the determination of citizenship and involve great hardship to the migrantsTwo cases in which this Court was called upon to consider the meaning of "migrate" may be referred to. In1 SCR 576 : (AIR 1961 SC 58 ), it was held by this Court that the expression "migrated to the territory of India" in Art. 6 of the Constitution means "come to the territory of India with the intention of residing there permanently". The dispute in that case arose in an election case, Mangal Sain who was born in 1927 of Indian parents in the territory which since August 15, 1947 had become part of Pakistan, moved in 1944 to Jullunder, and thereafter lived in the territory which is part of India, except for a short period when he went to Burma. It was contended in an election dispute that Mangal Sain was not a citizen of India and, therefore, could not stand for election. That contention was rejected by this Court on the finding that the respondent Mangal Sain who had earlier moved from a place in Pakistan to Jullunder and definitely made up his mind to make India his permanent home and, therefore, he satisfied the first requirement of Art. 6 after migration to the territory of India from the territory now included in Pakistan and it being established that Mangal Sain was born in India as defined in the Government of India Act, 1935, he satisfied the requirement of Cl. (a) of Art. 6. The Court in that case regarded movement from one territory to another, with intention to reside permanently in the new territory as a necessary ingredient.But in an earlier judgment of this Court in1 SCR 1259 : (S) AIR 1955 SC 282 ), the question (was ?) whether one Kumar Rani Sayeeda Khatoon was, because of migration from the territory of India after March 1, 1947, not to be deemed a citizen of India. Kumar Rani who was born in territory of India and had married Captain Maharaj Kumar Gopal Saran Narayan Singh of Gaya in 1920 left for Karachi in July 1948 and returned to India in December 1948 on a temporary permit. She again left for Pakistan in April 1949 on the expiry of the permit. Her claim that she went to Pakistan temporarily for medical treatment was not accepted. After her property in India was taken over by the Custodian of Evacuee Property, she obtained a permit for permanent return and came to India in 1950. This permit was later cancelled, and she was directed to leave India. In a petition filed before the High Court of Patna it was declared that Kumar Rani was a citizen of India and the order directing her to leave India was set aside. This Court reversed the order of the High Court holding that since Kumar Rani had migrated form the territory of India to the territory of Pakistan, she had disqualified herself from claiming citizenship of India. The facts proved in Kumar Amar Singhs case,1 SCR 1259 : (S) AIR 1955 SC 282 ), disclose that there was no evidence tending to show that Kumar Rani had entertained at any time before the commencement of the Constitution an intention permanently to reside in Pakistan. Her husband was in India, her property was in India and she had gone to Pakistan for about eight months in the year 1948 and thereafter in April 1949. The Court in that case apparently did not accept the view that to attract Art. 7, migration from the territory of India must be with an intention permanently to reside in the territory now included in PakistanIn my view "migrated form the territory of India" within the meaning of Art. 7 means moving from one place to another but nor necessarily with the intention of permanently residing in the country in which the person has moved. I agree, however, that the movement should be voluntary and not purely temporary, such a movement for purposes of a business transaction or a professional or a social visit.
|
Harendra Nath Bhattacharya & Ors Vs. Kaliram Das--Dead By L. Rs | 513 = (AIR 1952 SC 143 )).It is quite clear that none of the reliefs claimed by the plaintiffs fell within the section.The declarations which were sought could not possibly attract the applicability of sec. 92 of the Civil Procedure Code. The High Court was, therefore, right in holding that non-compliance with that section did not affect the maintainability of the suit.12. On the second point our attention has been invited to the translation of the Copper Plate on which the grant was made by the Ahom King. This translation, it has been pointed out, was accepted by both sides. According to this translation the land and the estate described "together with three Bhakats and 10 Paiks have been given for piety as Brahmottar to the godly Brahmin Gadapani, with his own brothers making him a Medhi of Satsangi Satra. He will remain in devotion of God and will enjoy and occupy and continue to enjoy and occupy together with his own brothers from father to son, sons son etc. and will scatter sravana-kirtana-dharma". It is contended on behalf of the plaintiffs that the grant was clearly described as Brahmottar and it was made to the Brahmin Gadapani with his own brothers and he was made Medhi of the the Sat Sangi Satra. Medhi means a high priest. He and his descendants were to enjoy and occupy the property from generation to generation. Of course, it was laid down as a part of their duties that they should propagate Sravana Kirtana-dharma but that did not convert the grant into Dharmottar.13. As regards the correct translation, we are unable to accept the contention that the translation set out in the judgment of the High Court along with the original text does not represent the correct translation. The learned Addl. Dist. Judge and Deka J. who delivered the judgment of the Division Bench in the High Court, were fully familiar with the language and we find no reasons to doubt the correctness of the translation appearing in the judgment of the High Court. Both the Addl. Dist. Judge and the High Court were more familiar with the establishment of Satras and the historical background in which such institutions came to be established and were in a better position to interpret the terms of the grant than ourselves. Moreover, their judgments were based on other evidence which was produced and it would not be right for us even if we took a different view to depart from the practice of this court not to interfere with the conclusions into which familiarity with the local language, customs and enactments plays a vital part. Even otherwise we have not been persuaded to take the view that the grant was only a personal grant in favour of Gadapani Brahmin. The word Brahmottar was certainly used but mere use of that word would not change the essential character of the grant. In this connection our attention has been invited to a decision of this Court in Jibon Chandra Sarma Doloi v. Anandi Ram Kalita, (1961) 3 SCR 947 = (AIR 1961 SC 1309 ). In this case a question arose about certain grant made by Assam Rajas to the Bardeuries (temple officials) to enable them to render services to the Deities installed in the temple. On certain alienations having been made, a suit was instituted on behalf of the temple that the alienations were invalid and unauthorised. The principal point which was urged was that the High Court had come to a wrong conclusion that the lands in suit which were admittedly described as Brahmottar lands in the revenue records were transferable without any restriction. After going into the history of lands described as Nisf-Kheraj in the revenue records it was observed by this Court that a Nisf-Kherajdar was ordinarily a person whose lands were claimed by his ancestors revenue free on the ground that they were grantees of the Assam Rajas for some religious or charitable purpose. Reference was also made to the provisions of Regulation 1 of 1886 called "The Assam Land and Revenue Regulations". After referring to the relevant provisions it was stated that it could not be held that the lands in question were burdened with the special condition that they could be transferred only to Bardeuries and not to any strangers outside the group. It was finally observed:"As the High Court has found, and that is no longer in dispute, these lands are described as Brahmottar lands in revenue records and to the said lands and their holders the statutory provisions of the Regulation to which we have just referred applied; therefore it is impossible to escape the conclusion that by virtue of the relevant statutory provisions of the Regulation the lands must be deemed to be heritable and transferable without any restriction". It is quite obvious that the question involved in this case was quite different from the one under examination by us. It was not argued at any stage in the present case including the appeal before the High Court that by virtue of the provisions and the other facts relied upon in the aforesaid judgment, the mere fact that the lands were described as Brahmottar would be the personal property of those in whose names they were shown in the revenue records. Nor has our attention been drawn to any entries from the revenue records produced in the present case which would show the exact and precise terms in which those entries had been made."14. Lastly it was contended that even in the plaint the lands were admitted to have been held under a Nisaf Khiraj or Nispi-Kheraj patta and that according to the entire history and other facts stated in Jibon Chandra Sarma Dolois case, (1961) 3 SCR 947 = (AIR 1961 SC 1309 ) (supra), such a patta could be held only in a personal capacity. The difficulty again is that no such contention was raised before the High Court or before any of the Court below. | 1[ds]13. As regards the correct translation, we are unable to accept the contention that the translation set out in the judgment of the High Court along with the original text does not represent the correct translation. The learned Addl. Dist. Judge and Deka J. who delivered the judgment of the Division Bench in the High Court, were fully familiar with the language and we find no reasons to doubt the correctness of the translation appearing in the judgment of the High Court. Both the Addl. Dist. Judge and the High Court were more familiar with the establishment of Satras and the historical background in which such institutions came to be established and were in a better position to interpret the terms of the grant than ourselves. Moreover, their judgments were based on other evidence which was produced and it would not be right for us even if we took a different view to depart from the practice of this court not to interfere with the conclusions into which familiarity with the local language, customs and enactments plays a vital part. Even otherwise we have not been persuaded to take the view that the grant was only a personal grant in favour of Gadapani Brahmin. The word Brahmottar was certainly used but mere use of that word would not change the essential character of the grant. In this connection our attention has been invited to a decision of this Court in Jibon Chandra Sarma Doloi v. Anandi Ram Kalita, (1961) 3 SCR 947 = (AIR 1961 SC 1309 ). In this case a question arose about certain grant made by Assam Rajas to the Bardeuries (temple officials) to enable them to render services to the Deities installed in the temple. On certain alienations having been made, a suit was instituted on behalf of the temple that the alienations were invalid and unauthorised. The principal point which was urged was that the High Court had come to a wrong conclusion that the lands in suit which were admittedly described as Brahmottar lands in the revenue records were transferable without any restriction. After going into the history of lands described as Nisf-Kheraj in the revenue records it was observed by this Court that a Nisf-Kherajdar was ordinarily a person whose lands were claimed by his ancestors revenue free on the ground that they were grantees of the Assam Rajas for some religious or charitable purpose. Reference was also made to the provisions of Regulation 1 of 1886 called "The Assam Land and Revenue Regulations". After referring to the relevant provisions it was stated that it could not be held that the lands in question were burdened with the special condition that they could be transferred only to Bardeuries and not to any strangers outside the group. It was finallythe High Court has found, and that is no longer in dispute, these lands are described as Brahmottar lands in revenue records and to the said lands and their holders the statutory provisions of the Regulation to which we have just referred applied; therefore it is impossible to escape the conclusion that by virtue of the relevant statutory provisions of the Regulation the lands must be deemed to be heritable and transferable without any restriction". It is quite obvious that the question involved in this case was quite different from the one under examination by us. It was not argued at any stage in the present case including the appeal before the High Court that by virtue of the provisions and the other facts relied upon in the aforesaid judgment, the mere fact that the lands were described as Brahmottar would be the personal property of those in whose names they were shown in the revenue records. Nor has our attention been drawn to any entries from the revenue records produced in the present case which would show the exact and precise terms in which those entries had been made. | 1 | 3,838 | 699 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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513 = (AIR 1952 SC 143 )).It is quite clear that none of the reliefs claimed by the plaintiffs fell within the section.The declarations which were sought could not possibly attract the applicability of sec. 92 of the Civil Procedure Code. The High Court was, therefore, right in holding that non-compliance with that section did not affect the maintainability of the suit.12. On the second point our attention has been invited to the translation of the Copper Plate on which the grant was made by the Ahom King. This translation, it has been pointed out, was accepted by both sides. According to this translation the land and the estate described "together with three Bhakats and 10 Paiks have been given for piety as Brahmottar to the godly Brahmin Gadapani, with his own brothers making him a Medhi of Satsangi Satra. He will remain in devotion of God and will enjoy and occupy and continue to enjoy and occupy together with his own brothers from father to son, sons son etc. and will scatter sravana-kirtana-dharma". It is contended on behalf of the plaintiffs that the grant was clearly described as Brahmottar and it was made to the Brahmin Gadapani with his own brothers and he was made Medhi of the the Sat Sangi Satra. Medhi means a high priest. He and his descendants were to enjoy and occupy the property from generation to generation. Of course, it was laid down as a part of their duties that they should propagate Sravana Kirtana-dharma but that did not convert the grant into Dharmottar.13. As regards the correct translation, we are unable to accept the contention that the translation set out in the judgment of the High Court along with the original text does not represent the correct translation. The learned Addl. Dist. Judge and Deka J. who delivered the judgment of the Division Bench in the High Court, were fully familiar with the language and we find no reasons to doubt the correctness of the translation appearing in the judgment of the High Court. Both the Addl. Dist. Judge and the High Court were more familiar with the establishment of Satras and the historical background in which such institutions came to be established and were in a better position to interpret the terms of the grant than ourselves. Moreover, their judgments were based on other evidence which was produced and it would not be right for us even if we took a different view to depart from the practice of this court not to interfere with the conclusions into which familiarity with the local language, customs and enactments plays a vital part. Even otherwise we have not been persuaded to take the view that the grant was only a personal grant in favour of Gadapani Brahmin. The word Brahmottar was certainly used but mere use of that word would not change the essential character of the grant. In this connection our attention has been invited to a decision of this Court in Jibon Chandra Sarma Doloi v. Anandi Ram Kalita, (1961) 3 SCR 947 = (AIR 1961 SC 1309 ). In this case a question arose about certain grant made by Assam Rajas to the Bardeuries (temple officials) to enable them to render services to the Deities installed in the temple. On certain alienations having been made, a suit was instituted on behalf of the temple that the alienations were invalid and unauthorised. The principal point which was urged was that the High Court had come to a wrong conclusion that the lands in suit which were admittedly described as Brahmottar lands in the revenue records were transferable without any restriction. After going into the history of lands described as Nisf-Kheraj in the revenue records it was observed by this Court that a Nisf-Kherajdar was ordinarily a person whose lands were claimed by his ancestors revenue free on the ground that they were grantees of the Assam Rajas for some religious or charitable purpose. Reference was also made to the provisions of Regulation 1 of 1886 called "The Assam Land and Revenue Regulations". After referring to the relevant provisions it was stated that it could not be held that the lands in question were burdened with the special condition that they could be transferred only to Bardeuries and not to any strangers outside the group. It was finally observed:"As the High Court has found, and that is no longer in dispute, these lands are described as Brahmottar lands in revenue records and to the said lands and their holders the statutory provisions of the Regulation to which we have just referred applied; therefore it is impossible to escape the conclusion that by virtue of the relevant statutory provisions of the Regulation the lands must be deemed to be heritable and transferable without any restriction". It is quite obvious that the question involved in this case was quite different from the one under examination by us. It was not argued at any stage in the present case including the appeal before the High Court that by virtue of the provisions and the other facts relied upon in the aforesaid judgment, the mere fact that the lands were described as Brahmottar would be the personal property of those in whose names they were shown in the revenue records. Nor has our attention been drawn to any entries from the revenue records produced in the present case which would show the exact and precise terms in which those entries had been made."14. Lastly it was contended that even in the plaint the lands were admitted to have been held under a Nisaf Khiraj or Nispi-Kheraj patta and that according to the entire history and other facts stated in Jibon Chandra Sarma Dolois case, (1961) 3 SCR 947 = (AIR 1961 SC 1309 ) (supra), such a patta could be held only in a personal capacity. The difficulty again is that no such contention was raised before the High Court or before any of the Court below.
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13. As regards the correct translation, we are unable to accept the contention that the translation set out in the judgment of the High Court along with the original text does not represent the correct translation. The learned Addl. Dist. Judge and Deka J. who delivered the judgment of the Division Bench in the High Court, were fully familiar with the language and we find no reasons to doubt the correctness of the translation appearing in the judgment of the High Court. Both the Addl. Dist. Judge and the High Court were more familiar with the establishment of Satras and the historical background in which such institutions came to be established and were in a better position to interpret the terms of the grant than ourselves. Moreover, their judgments were based on other evidence which was produced and it would not be right for us even if we took a different view to depart from the practice of this court not to interfere with the conclusions into which familiarity with the local language, customs and enactments plays a vital part. Even otherwise we have not been persuaded to take the view that the grant was only a personal grant in favour of Gadapani Brahmin. The word Brahmottar was certainly used but mere use of that word would not change the essential character of the grant. In this connection our attention has been invited to a decision of this Court in Jibon Chandra Sarma Doloi v. Anandi Ram Kalita, (1961) 3 SCR 947 = (AIR 1961 SC 1309 ). In this case a question arose about certain grant made by Assam Rajas to the Bardeuries (temple officials) to enable them to render services to the Deities installed in the temple. On certain alienations having been made, a suit was instituted on behalf of the temple that the alienations were invalid and unauthorised. The principal point which was urged was that the High Court had come to a wrong conclusion that the lands in suit which were admittedly described as Brahmottar lands in the revenue records were transferable without any restriction. After going into the history of lands described as Nisf-Kheraj in the revenue records it was observed by this Court that a Nisf-Kherajdar was ordinarily a person whose lands were claimed by his ancestors revenue free on the ground that they were grantees of the Assam Rajas for some religious or charitable purpose. Reference was also made to the provisions of Regulation 1 of 1886 called "The Assam Land and Revenue Regulations". After referring to the relevant provisions it was stated that it could not be held that the lands in question were burdened with the special condition that they could be transferred only to Bardeuries and not to any strangers outside the group. It was finallythe High Court has found, and that is no longer in dispute, these lands are described as Brahmottar lands in revenue records and to the said lands and their holders the statutory provisions of the Regulation to which we have just referred applied; therefore it is impossible to escape the conclusion that by virtue of the relevant statutory provisions of the Regulation the lands must be deemed to be heritable and transferable without any restriction". It is quite obvious that the question involved in this case was quite different from the one under examination by us. It was not argued at any stage in the present case including the appeal before the High Court that by virtue of the provisions and the other facts relied upon in the aforesaid judgment, the mere fact that the lands were described as Brahmottar would be the personal property of those in whose names they were shown in the revenue records. Nor has our attention been drawn to any entries from the revenue records produced in the present case which would show the exact and precise terms in which those entries had been made.
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Anand Nivas (Private) Ltd Vs. Anandji Kalyanji Pedhi & Ors | had sublet a part of the house, vacated the premises in her occupation by removing herself therefrom. The landlord then filed a suit against the sub-tenant who had remained in possession of a part sublet to her. The sub-tenant submitted that after the surrender of the statutory tenancy, she was entitled to the same rights against the landlord as the statutory tenant had and therefore her tenancy could not be terminated by merely giving a notice to quit. This contention was rejected by the Court holding that a statutory tenant had no interest capable of existing in law as an estate, but merely a statutory right of occupation which could not be the subject of surrender at common law, and, therefore, when the tenant vacated the premises the sub-tenants right of occupation automatically came to an end." We therefore hold that before the data of the institution of the suit, Maneklal as a statutory tenant had no right to sublet the premises and the company acquired no right of a tenant on the determination of the tenants right by virtue of S. 14 of the Act.37. One more argument remains to be considered. It was urged - on the assumption that a statutory tenant has an interest in the property occupied by him, and that by purporting to sublet he transferred that interest - that the doctrine of ut lite pendente nihil innovetur enunciated in S. 52 of the Transfer of Property Act did not operate against the Company and the. Company was not bound by the decree obtained against the tenant,Reliance in support of that plea was placed upon the Transfer of Property and the Indian registration (Bombay Amendment) Act, XIV of 1939. By this Act the rule of Lis Pendents applies only when a notice of the pendency of the suit in which any right to immovable property is directly and specifically in question, is registered under S. 18 of the Registration Act.The Act is somewhat clumsily worded: it applies not to proceedings in court but to notices in respect of suits or proceedings. But the reason for the method of drafting adopted is not far to seek. Condition of registration of notice relating to the suit is only to apply where the suit is in respect of property situate in the area to which the Act is extended.A suit relating to immovable property may, in certain circumstances, lie in a Court other than the Court within the territorial jurisdiction whereof it is situate (e. g. under Cl. 12 of the Letters Patent and S. 17 Code of Civil Procedure) and it appears that the Legislature intended to make the Act applicable only to transfers of title to immovables only in areas where the litigants were sufficiently sophisticated to understand the importance of registration. As Bombay Act XIV of 1939 is intended to apply to the situs of immovable property and not the Court proceeding, application of the rule of Lis Pendens is, in respect of proceedings relatings to immovable properties situate in certain areas, notice conditional upon the registration of the notice of the pendency of the suit.38. But this Act did not apply to the suit filed by the trustees. The Act by S. 2 applies only to notices in respect of suits or proceedings which relate to immovable property situate wholly or partly in Greater Bombay. By the proviso to S. 2 it may be extended by the Provincial Government by notification to notices relating to immovable properties situate wholly or partly in such other areas as may be specified. The suit was filed by the trustees in the Court of Small Causes at Ahmedabad and our attention has not been invited to any notification, issued by the appropriate Provincial Government extending the Act to notices relating to immovable properties in areas outside Greater Bombay. Whereas the rule of Lis Pendens under the Transfer of Property Act applies to all suits and proceedings which are not collusive in which the right to immovable property is directly and specifically in question, by virtue of the amended Act the rule applies in proceedings relating to immovable property in the areas notified, only if a notice of suit is registered, and from the date of registration. The section in terms applies only to notices in respect of suits or proceedings which relate to immovable property in the Greater Bombay Area - it does not apply to any suits in which property in Greater Bombay is not the subject-matter in dispute.39. The Transfer of Property (Bombay Provision for Uniformity and Amendment) Act, 57 of 1959, does not also assist the Company. By that Act, amongst other things, uniformity in the provisions of the Transfer of Property Act as amended in its application to the State of Bombay as it existed after the enactment of the States Reorganisation Act, 1956, was sought to be achieved. Section 3 of the Act enacted that the provisions of Bombay Act XIV of 1939 which amended the Transfer of Property Act in its application to the pre-reorganized State of Bombay, were extended to and shall apply to that part of the State to which they did not apply immediately before the commencement of that Act. Enactment of this Act was necessitated because of S. 119 of the States Reorganization Act, 1956, which continued, notwithstanding the formation of the new States, the territorial extent of the laws previously in operation. It was found expedient to secure uniformity of the laws in the State, and therefore it was enacted by the State Legislature that one of the conditions of the applicability of the rule of Lis Pendens was that notice of a suit or proceeding in which any right to immovable property within the area notified under S. 2 of Act XIV of 1939, is directly and specifically in question, is registered under S. 18 of the Registration Act. The decree in the suit filed by the trustees against Maneklal was therefore enforceable against the company. | 0[ds]Whereas a tenant who retains possession, and is protected by virtue of the provisions of the English Rent Act is entitled, so long as he retains possession, to the benefit of all the terms and conditions of the original contract of tenancy so far as they are consistent with the provisions of the Act, the Bombay Act merely grants conditional protection to a statutory tenant and does not invest him with the right to enforce the benefit of any of the terms and conditions of the original tenancy. This difference in the phraseology of the two enactments is vital to the matter under discussion, andwe are unable to hold - assuming that the tenant was entitled to sublet the premises under the terms of the lease that he could, relying upon S. 12 (1), exercise the right to sublet granted under the lease after he became a statutory tenant. The first ground on which the claim was founded by the Company must therefore fail.30. The second ground on which the company claimed to be a lawful tenant of the trustees cannot also be sustained. In the High Court it was common ground between the parties that the tenant continued to remain" in possession after March 5, 1955 of the premises leased to him not because of any renewal or grant of a fresh tenancy, but in virtue of the protection afforded to him by the Act as a statutory tenant. As a statutory tenant he had no estate or interest capable of being assigned or transferred, and his statutory right to occupy could not in law be sublet, because a lawful subletting postulates a right to enjoy the property and a right to transfer the same to another. There can be no subletting when there is no right in the premises especially when the statutory tenancy ceases when the tenant parts with possession. The decision of the Calcutta High Court in Krishna Prosad Bose v. Sm. Sarajubala Dassi, AIR 1961 Cal 505 on which reliance was placed by the Company in support of its plea that a statutory tenant is entitled tosublet the premises inhis occupation does not assist the argument. The West Bengal Premises Rent Control (Temporary Provisions) Act, 1950, recognises the right of a statutory tenant to sublet. Section 12(1) of the West Bengal Act provides that notwithstanding anything to the contrary in any other Act or law, no order or decree for the recovery of possession of any premises shall be made by any court in favour of the landlord against a tenant, including a tenant whose lease has expired. By the proviso it is enacted that nothing in the sub-section shall apply to any suit for a decree for such recovery of possession against a tenant who has sublet the whole or a major portion of the premises for more than seven consecutive months provided that if a tenant who has sublet the major portion of the premises agrees to possess as a tenant the portion of the premises not sublet on payment of rent fixed by the Court, the Court shall pass a decree for ejectment from only a portion of the premises sublet and fix proportionately fair rent for the portion kept in possession of such tenant. By sub-s. (2) of S. 13 it is provided, in so far as it is material, that where any premises or any part thereof have been or has been sublet by a tenant of the first degree, if the tenancy of such tenant is lawfully determined otherwise than by virtue of a decree in a suit obtained by the landlord by reason of any of the ground specified in clause (h) of the proviso to subsection (1) of Section 12, the sub-lessee shall be deemed to be a tenant in respect of such premises or part, as the case may be holding directly under the landlord for the tenant whose tenancy has beenWe are not concerned in this case to decide whether the provisions of the Act were correctly interpreted by the Court: it may be sufficient to observe in this case that the Court in Krishna Prosads case, AIR 1961 Cal 505 held that the right of a statutory tenant to sublet was recognised by the statute which afforded hisis common ground that the tenant purported to sublet a part of the premises in his occupation after the trustees instituted a suit in ejectment against him, and before Ordinance III of 1959 was promulgated. The Company has claimed the right of a sub-tenant on the second ground relying upon the ordinance, and it would be necessary to consider the material statutory provisions as amended by theregard to the plurality of its meaning, the sense in which the expression is used in different sections, and even clauses, must be ascertained from the context of the scheme of the Act the language of the provision and the object intended to be served thereby.The argument that by restricting the operation of S. 13 (1) (e) to contractual tenants subletting by statutory tenants would be protected, is without force. Sections 12 and 13 (1) have to be read together. Clause (e) of S. 13 (1) entitles a landlord to obtain possession, where a contractual tenant has during the subsistence of the tenancy sublet the premises or assigned or transferred his interest therein. Where a statutory tenant has purported to sublet the premises, or has purported to assign or transfer his interest therein, and in pursuance of such a transaction parted with possession, he would forthwith forfeit the protection which the statute accords to him by S. 12 (1).35. In the light of that legal position the claim of the Company founded on S. 14 may beis abundant indication in the section that it applies to contractual tenancies alone. In the first instance it speaks of the interest of the tenant and determination of that interest. It then invests a sub-tenant to whom the premises have been lawfully sub-let before the date of the Ordinance, with the rights of a tenant of the landlord on the same terms and conditions as he would have held from the tenant if the tenancy had continued. The sub-letting to be lawful must be (i) permitted by contract, or (ii) validated by sub-s. (2) of S. 15. The object of S. 14 is to protect sub-tenants. By that section forfeiture of the rights of the tenant in any of the contingencies set out in S. 13 does not in all cases destroy the protection to the sub-tenants. The protection which a sub-tenant is entitled to claim against his own landlord (that is the head tenant) becomes on determination of the head tenancy available to him against the head landlord, but the condition on which such claim may be sustained is that there is a lawful sub-letting. A statutory tenant is, as we have already observed, a person who on determination of his contractual right, is permitted to remain in occupation so long as he observes and performs the conditions of the tenancy and pays the standard rent and permitted increases. His personal right of occupation is incapable of being transferred or assigned, and he having no interest in the property there is no estate on which subletting may operate. If it be assumed that a statutory tenant has the right of sub-letting, some very surprising consequences may ensue. A statutory tenant by parting with possession of the premises would forfeit all rights in the premises occupied by him, but he would still if S. 14 is construed as suggested by the Company be able to create an interest in the person inducted in the premises not derivatively but independently, for the statutory tenant had no interest in the premises not derivatively but independently, for the statutory tenant had no interest in the premises and the protection granted by the statute is by the very act of transfer of possession extinguished. Again even though the sub-tenant of a statutory tenant may not be protected, because the bar against such subletting is not effectively removed by S. 15(2), he would still be entitled to claim the rights of a tenant under S.14 on determination of the tenancy of the head tenant. Having regard to these considerations there can be little doubt that a sub-lessee from a statutory tenant under the Act acquires no right of a tenant in the premises occupied by him.36. Even under the Increase of Rent and Mortgage Interest (Restriction) Act, 1920 protection was accorded to the sub-tenant of a part of the premises occupied by a statutory tenant: when the statutory tenant parted with possession of the entirety of the premises occupied by him either by one sub-letting or more or by sub-letting of part and surrender of the rest of the premises, the persons claiming a right of occupation derivatively from the statutory tenant had notherefore hold that before the data of the institution of the suit, Maneklal as a statutory tenant had no right to sublet the premises and the company acquired no right of a tenant on the determination of the tenants right by virtue of S. 14 of thethis Act the rule of Lis Pendents applies only when a notice of the pendency of the suit in which any right to immovable property is directly and specifically in question, is registered under S. 18 of the Registration Act.The Act is somewhat clumsily worded: it applies not to proceedings in court but to notices in respect of suits or proceedings. But the reason for the method of drafting adopted is not far to seek. Condition of registration of notice relating to the suit is only to apply where the suit is in respect of property situate in the area to which the Act is extended.A suit relating to immovable property may, in certain circumstances, lie in a Court other than the Court within the territorial jurisdiction whereof it is situate (e. g. under Cl. 12 of the Letters Patent and S. 17 Code of Civil Procedure) and it appears that the Legislature intended to make the Act applicable only to transfers of title to immovables only in areas where the litigants were sufficiently sophisticated to understand the importance of registration. As Bombay Act XIV of 1939 is intended to apply to the situs of immovable property and not the Court proceeding, application of the rule of Lis Pendens is, in respect of proceedings relatings to immovable properties situate in certain areas, notice conditional upon the registration of the notice of the pendency of the suit.38. But this Act did not apply to the suit filed by the trustees. The Act by S. 2 applies only to notices in respect of suits or proceedings which relate to immovable property situate wholly or partly in Greater Bombay. By the proviso to S. 2 it may be extended by the Provincial Government by notification to notices relating to immovable properties situate wholly or partly in such other areas as may be specified. The suit was filed by the trustees in the Court of Small Causes at Ahmedabad and our attention has not been invited to any notification, issued by the appropriate Provincial Government extending the Act to notices relating to immovable properties in areas outside Greater Bombay. Whereas the rule of Lis Pendens under the Transfer of Property Act applies to all suits and proceedings which are not collusive in which the right to immovable property is directly and specifically in question, by virtue of the amended Act the rule applies in proceedings relating to immovable property in the areas notified, only if a notice of suit is registered, and from the date of registration. The section in terms applies only to notices in respect of suits or proceedings which relate to immovable property in the Greater Bombay Area - it does not apply to any suits in which property in Greater Bombay is not the subject-matter in dispute.39. The Transfer of Property (Bombay Provision for Uniformity and Amendment) Act, 57 of 1959, does not also assist the Company. By that Act, amongst other things, uniformity in the provisions of the Transfer of Property Act as amended in its application to the State of Bombay as it existed after the enactment of the States Reorganisation Act, 1956, was sought to be achieved. Section 3 of the Act enacted that the provisions of Bombay Act XIV of 1939 which amended the Transfer of Property Act in its application to the pre-reorganized State of Bombay, were extended to and shall apply to that part of the State to which they did not apply immediately before the commencement of that Act. Enactment of this Act was necessitated because of S. 119 of the States Reorganization Act, 1956, which continued, notwithstanding the formation of the new States, the territorial extent of the laws previously in operation. It was found expedient to secure uniformity of the laws in the State, and therefore it was enacted by the State Legislature that one of the conditions of the applicability of the rule of Lis Pendens was that notice of a suit or proceeding in which any right to immovable property within the area notified under S. 2 of Act XIV of 1939, is directly and specifically in question, is registered under S. 18 of the Registration Act. The decree in the suit filed by the trustees against Maneklal was therefore enforceable against the | 0 | 11,318 | 2,414 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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had sublet a part of the house, vacated the premises in her occupation by removing herself therefrom. The landlord then filed a suit against the sub-tenant who had remained in possession of a part sublet to her. The sub-tenant submitted that after the surrender of the statutory tenancy, she was entitled to the same rights against the landlord as the statutory tenant had and therefore her tenancy could not be terminated by merely giving a notice to quit. This contention was rejected by the Court holding that a statutory tenant had no interest capable of existing in law as an estate, but merely a statutory right of occupation which could not be the subject of surrender at common law, and, therefore, when the tenant vacated the premises the sub-tenants right of occupation automatically came to an end." We therefore hold that before the data of the institution of the suit, Maneklal as a statutory tenant had no right to sublet the premises and the company acquired no right of a tenant on the determination of the tenants right by virtue of S. 14 of the Act.37. One more argument remains to be considered. It was urged - on the assumption that a statutory tenant has an interest in the property occupied by him, and that by purporting to sublet he transferred that interest - that the doctrine of ut lite pendente nihil innovetur enunciated in S. 52 of the Transfer of Property Act did not operate against the Company and the. Company was not bound by the decree obtained against the tenant,Reliance in support of that plea was placed upon the Transfer of Property and the Indian registration (Bombay Amendment) Act, XIV of 1939. By this Act the rule of Lis Pendents applies only when a notice of the pendency of the suit in which any right to immovable property is directly and specifically in question, is registered under S. 18 of the Registration Act.The Act is somewhat clumsily worded: it applies not to proceedings in court but to notices in respect of suits or proceedings. But the reason for the method of drafting adopted is not far to seek. Condition of registration of notice relating to the suit is only to apply where the suit is in respect of property situate in the area to which the Act is extended.A suit relating to immovable property may, in certain circumstances, lie in a Court other than the Court within the territorial jurisdiction whereof it is situate (e. g. under Cl. 12 of the Letters Patent and S. 17 Code of Civil Procedure) and it appears that the Legislature intended to make the Act applicable only to transfers of title to immovables only in areas where the litigants were sufficiently sophisticated to understand the importance of registration. As Bombay Act XIV of 1939 is intended to apply to the situs of immovable property and not the Court proceeding, application of the rule of Lis Pendens is, in respect of proceedings relatings to immovable properties situate in certain areas, notice conditional upon the registration of the notice of the pendency of the suit.38. But this Act did not apply to the suit filed by the trustees. The Act by S. 2 applies only to notices in respect of suits or proceedings which relate to immovable property situate wholly or partly in Greater Bombay. By the proviso to S. 2 it may be extended by the Provincial Government by notification to notices relating to immovable properties situate wholly or partly in such other areas as may be specified. The suit was filed by the trustees in the Court of Small Causes at Ahmedabad and our attention has not been invited to any notification, issued by the appropriate Provincial Government extending the Act to notices relating to immovable properties in areas outside Greater Bombay. Whereas the rule of Lis Pendens under the Transfer of Property Act applies to all suits and proceedings which are not collusive in which the right to immovable property is directly and specifically in question, by virtue of the amended Act the rule applies in proceedings relating to immovable property in the areas notified, only if a notice of suit is registered, and from the date of registration. The section in terms applies only to notices in respect of suits or proceedings which relate to immovable property in the Greater Bombay Area - it does not apply to any suits in which property in Greater Bombay is not the subject-matter in dispute.39. The Transfer of Property (Bombay Provision for Uniformity and Amendment) Act, 57 of 1959, does not also assist the Company. By that Act, amongst other things, uniformity in the provisions of the Transfer of Property Act as amended in its application to the State of Bombay as it existed after the enactment of the States Reorganisation Act, 1956, was sought to be achieved. Section 3 of the Act enacted that the provisions of Bombay Act XIV of 1939 which amended the Transfer of Property Act in its application to the pre-reorganized State of Bombay, were extended to and shall apply to that part of the State to which they did not apply immediately before the commencement of that Act. Enactment of this Act was necessitated because of S. 119 of the States Reorganization Act, 1956, which continued, notwithstanding the formation of the new States, the territorial extent of the laws previously in operation. It was found expedient to secure uniformity of the laws in the State, and therefore it was enacted by the State Legislature that one of the conditions of the applicability of the rule of Lis Pendens was that notice of a suit or proceeding in which any right to immovable property within the area notified under S. 2 of Act XIV of 1939, is directly and specifically in question, is registered under S. 18 of the Registration Act. The decree in the suit filed by the trustees against Maneklal was therefore enforceable against the company.
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would forfeit all rights in the premises occupied by him, but he would still if S. 14 is construed as suggested by the Company be able to create an interest in the person inducted in the premises not derivatively but independently, for the statutory tenant had no interest in the premises not derivatively but independently, for the statutory tenant had no interest in the premises and the protection granted by the statute is by the very act of transfer of possession extinguished. Again even though the sub-tenant of a statutory tenant may not be protected, because the bar against such subletting is not effectively removed by S. 15(2), he would still be entitled to claim the rights of a tenant under S.14 on determination of the tenancy of the head tenant. Having regard to these considerations there can be little doubt that a sub-lessee from a statutory tenant under the Act acquires no right of a tenant in the premises occupied by him.36. Even under the Increase of Rent and Mortgage Interest (Restriction) Act, 1920 protection was accorded to the sub-tenant of a part of the premises occupied by a statutory tenant: when the statutory tenant parted with possession of the entirety of the premises occupied by him either by one sub-letting or more or by sub-letting of part and surrender of the rest of the premises, the persons claiming a right of occupation derivatively from the statutory tenant had notherefore hold that before the data of the institution of the suit, Maneklal as a statutory tenant had no right to sublet the premises and the company acquired no right of a tenant on the determination of the tenants right by virtue of S. 14 of thethis Act the rule of Lis Pendents applies only when a notice of the pendency of the suit in which any right to immovable property is directly and specifically in question, is registered under S. 18 of the Registration Act.The Act is somewhat clumsily worded: it applies not to proceedings in court but to notices in respect of suits or proceedings. But the reason for the method of drafting adopted is not far to seek. Condition of registration of notice relating to the suit is only to apply where the suit is in respect of property situate in the area to which the Act is extended.A suit relating to immovable property may, in certain circumstances, lie in a Court other than the Court within the territorial jurisdiction whereof it is situate (e. g. under Cl. 12 of the Letters Patent and S. 17 Code of Civil Procedure) and it appears that the Legislature intended to make the Act applicable only to transfers of title to immovables only in areas where the litigants were sufficiently sophisticated to understand the importance of registration. As Bombay Act XIV of 1939 is intended to apply to the situs of immovable property and not the Court proceeding, application of the rule of Lis Pendens is, in respect of proceedings relatings to immovable properties situate in certain areas, notice conditional upon the registration of the notice of the pendency of the suit.38. But this Act did not apply to the suit filed by the trustees. The Act by S. 2 applies only to notices in respect of suits or proceedings which relate to immovable property situate wholly or partly in Greater Bombay. By the proviso to S. 2 it may be extended by the Provincial Government by notification to notices relating to immovable properties situate wholly or partly in such other areas as may be specified. The suit was filed by the trustees in the Court of Small Causes at Ahmedabad and our attention has not been invited to any notification, issued by the appropriate Provincial Government extending the Act to notices relating to immovable properties in areas outside Greater Bombay. Whereas the rule of Lis Pendens under the Transfer of Property Act applies to all suits and proceedings which are not collusive in which the right to immovable property is directly and specifically in question, by virtue of the amended Act the rule applies in proceedings relating to immovable property in the areas notified, only if a notice of suit is registered, and from the date of registration. The section in terms applies only to notices in respect of suits or proceedings which relate to immovable property in the Greater Bombay Area - it does not apply to any suits in which property in Greater Bombay is not the subject-matter in dispute.39. The Transfer of Property (Bombay Provision for Uniformity and Amendment) Act, 57 of 1959, does not also assist the Company. By that Act, amongst other things, uniformity in the provisions of the Transfer of Property Act as amended in its application to the State of Bombay as it existed after the enactment of the States Reorganisation Act, 1956, was sought to be achieved. Section 3 of the Act enacted that the provisions of Bombay Act XIV of 1939 which amended the Transfer of Property Act in its application to the pre-reorganized State of Bombay, were extended to and shall apply to that part of the State to which they did not apply immediately before the commencement of that Act. Enactment of this Act was necessitated because of S. 119 of the States Reorganization Act, 1956, which continued, notwithstanding the formation of the new States, the territorial extent of the laws previously in operation. It was found expedient to secure uniformity of the laws in the State, and therefore it was enacted by the State Legislature that one of the conditions of the applicability of the rule of Lis Pendens was that notice of a suit or proceeding in which any right to immovable property within the area notified under S. 2 of Act XIV of 1939, is directly and specifically in question, is registered under S. 18 of the Registration Act. The decree in the suit filed by the trustees against Maneklal was therefore enforceable against the
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Raghubir Singh Vs. Gen.Manager,Haryana Roadways,Hissar | an awesome factor that he may not survive to see the day when relief is granted. More so in our system where the laws proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this case viz. to resist the workmens demand for revision of wages, the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule, it should be followed with full back wages..... In the very nature of things there cannot be a strait-jacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. The reason for exercising discretion must be cogent and convincing and must appear on the face of the record. When it is said that something is to be done within the discretion of the authority, that something is to be done according to the Rules of reason and justice, according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular..... 24. Another three Judge Bench considered the same issue in Surendra Kumar Verma v. Central Government Industrial Tribunal-cum-Labour Court, New Delhi (supra) and observed: Plain common sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order has never been, and so it must ordinarily lead to back wages too......In such and other exceptional cases the court may mould the relief, but, ordinarily the relief to be awarded must be reinstatement with full back wages. That relief must be awarded where no special impediment in the way of awarding the relief is clearly shown. True, occasional hardship may be caused to an employer but we must remember that, more often than not, comparatively far greater hardship is certain to be caused to the workmen if the relief is denied than to the employer if the relief is granted.? (Emphasis supplied by this Court) 40. The above critical analysis of law laid down by this Court in the case referred to supra, is very much relevant to the case on hand, which is neither discussed nor considered and examined by the courts below while answering the reference made by the State Government and passing the award, judgments & orders in a cavalier manner. Thus, the lives of the appellant and his family members have been hampered. Further, on facts, we have to hold that the order of termination passed is highly disproportionate to the gravity of misconduct and therefore shocks the conscience of this Court. Hence, we hold that the appellant is entitled for the reliefs as prayed by him in this appeal. 41. In view of the foregoing reasons, the award of the Labour Court and the judgment & order of the High Court are highly erroneous in law. Therefore, the same are required to be interfered with by this Court in exercise of the appellate jurisdiction as there is miscarriage of justice for the workman in this case. 42. It is an undisputed fact that the dispute was raised by the workman after he was acquitted in the criminal case which was initiated at the instance of the respondent. Raising the industrial dispute belatedly and getting the same referred from the State Government to the Labour Court is for justifiable reason and the same is supported by law laid down by this Court in Calcutta Dock Labour Board (supra). Even assuming for the sake of the argument that there was a certain delay and latches on the part of the workman in raising the industrial dispute and getting the same referenced for adjudication, the Labour Court is statutorily duty bound to answer the points of dispute referred to it by adjudicating the same on merits of the case and it ought to have moulded the relief appropriately in favour of the workman. That has not been done at all by the Labour Court. Both the learned single Judge as well as the Division Bench of the High Court in its Civil Writ Petition and the Letters Patent Appeal have failed to consider this important aspect of the matter. Therefore, we are of the view that the order of termination passed by the respondent, the award passed by the Labour Court and the judgment & order of the High Court are liable to be set aside. When we arrive at the aforesaid conclusion, the next aspect is whether the workman is entitled for reinstatement, back wages and consequential benefits. We are of the view that the workman must be reinstated. However, due to delay in raising the industrial dispute, and getting it referred to the Labour Court from the State Government, the workman will be entitled in law for back wages and other consequential benefits from the date of raising the industrial dispute i.e. from 02.03.2005 till reinstatement with all consequential benefits. | 1[ds]40. The above critical analysis of law laid down by this Court in the case referred to supra, is very much relevant to the case on hand, which is neither discussed nor considered and examined by the courts below while answering the reference made by the State Government and passing the award, judgments & orders in a cavalier manner. Thus, the lives of the appellant and his family members have been hampered. Further, on facts, we have to hold that the order of termination passed is highly disproportionate to the gravity of misconduct and therefore shocks the conscience of this Court. Hence, we hold that the appellant is entitled for the reliefs as prayed by him in this appeal41. In view of the foregoing reasons, the award of the Labour Court and the judgment & order of the High Court are highly erroneous in law. Therefore, the same are required to be interfered with by this Court in exercise of the appellate jurisdiction as there is miscarriage of justice for the workman in this case42. It is an undisputed fact that the dispute was raised by the workman after he was acquitted in the criminal case which was initiated at the instance of the respondent. Raising the industrial dispute belatedly and getting the same referred from the State Government to the Labour Court is for justifiable reason and the same is supported by law laid down by this Court in Calcutta Dock Labour Board (supra). Even assuming for the sake of the argument that there was a certain delay and latches on the part of the workman in raising the industrial dispute and getting the same referenced for adjudication, the Labour Court is statutorily duty bound to answer the points of dispute referred to it by adjudicating the same on merits of the case and it ought to have moulded the relief appropriately in favour of the workman. That has not been done at all by the Labour Court. Both the learned single Judge as well as the Division Bench of the High Court in its Civil Writ Petition and the Letters Patent Appeal have failed to consider this important aspect of the matter. Therefore, we are of the view that the order of termination passed by the respondent, the award passed by the Labour Court and the judgment & order of the High Court are liable to be set aside. When we arrive at the aforesaid conclusion, the next aspect is whether the workman is entitled for reinstatement, back wages and consequential benefits. We are of the view that the workman must be reinstated. However, due to delay in raising the industrial dispute, and getting it referred to the Labour Court from the State Government, the workman will be entitled in law for back wages and other consequential benefits from the date of raising the industrial dispute i.e. from 02.03.2005 till reinstatement with all consequential benefits | 1 | 10,389 | 526 | ### 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:
an awesome factor that he may not survive to see the day when relief is granted. More so in our system where the laws proverbial delay has become stupefying. If after such a protracted time and energy consuming litigation during which period the workman just sustains himself, ultimately he is to be told that though he will be reinstated, he will be denied the back wages which would be due to him, the workman would be subjected to a sort of penalty for no fault of his and it is wholly undeserved. Ordinarily, therefore, a workman whose service has been illegally terminated would be entitled to full back wages except to the extent he was gainfully employed during the enforced idleness. That is the normal rule. Any other view would be a premium on the unwarranted litigative activity of the employer. If the employer terminates the service illegally and the termination is motivated as in this case viz. to resist the workmens demand for revision of wages, the termination may well amount to unfair labour practice. In such circumstances reinstatement being the normal rule, it should be followed with full back wages..... In the very nature of things there cannot be a strait-jacket formula for awarding relief of back wages. All relevant considerations will enter the verdict. More or less, it would be a motion addressed to the discretion of the Tribunal. Full back wages would be the normal rule and the party objecting to it must establish the circumstances necessitating departure. At that stage the Tribunal will exercise its discretion keeping in view all the relevant circumstances. But the discretion must be exercised in a judicial and judicious manner. The reason for exercising discretion must be cogent and convincing and must appear on the face of the record. When it is said that something is to be done within the discretion of the authority, that something is to be done according to the Rules of reason and justice, according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular..... 24. Another three Judge Bench considered the same issue in Surendra Kumar Verma v. Central Government Industrial Tribunal-cum-Labour Court, New Delhi (supra) and observed: Plain common sense dictates that the removal of an order terminating the services of workmen must ordinarily lead to the reinstatement of the services of the workmen. It is as if the order has never been, and so it must ordinarily lead to back wages too......In such and other exceptional cases the court may mould the relief, but, ordinarily the relief to be awarded must be reinstatement with full back wages. That relief must be awarded where no special impediment in the way of awarding the relief is clearly shown. True, occasional hardship may be caused to an employer but we must remember that, more often than not, comparatively far greater hardship is certain to be caused to the workmen if the relief is denied than to the employer if the relief is granted.? (Emphasis supplied by this Court) 40. The above critical analysis of law laid down by this Court in the case referred to supra, is very much relevant to the case on hand, which is neither discussed nor considered and examined by the courts below while answering the reference made by the State Government and passing the award, judgments & orders in a cavalier manner. Thus, the lives of the appellant and his family members have been hampered. Further, on facts, we have to hold that the order of termination passed is highly disproportionate to the gravity of misconduct and therefore shocks the conscience of this Court. Hence, we hold that the appellant is entitled for the reliefs as prayed by him in this appeal. 41. In view of the foregoing reasons, the award of the Labour Court and the judgment & order of the High Court are highly erroneous in law. Therefore, the same are required to be interfered with by this Court in exercise of the appellate jurisdiction as there is miscarriage of justice for the workman in this case. 42. It is an undisputed fact that the dispute was raised by the workman after he was acquitted in the criminal case which was initiated at the instance of the respondent. Raising the industrial dispute belatedly and getting the same referred from the State Government to the Labour Court is for justifiable reason and the same is supported by law laid down by this Court in Calcutta Dock Labour Board (supra). Even assuming for the sake of the argument that there was a certain delay and latches on the part of the workman in raising the industrial dispute and getting the same referenced for adjudication, the Labour Court is statutorily duty bound to answer the points of dispute referred to it by adjudicating the same on merits of the case and it ought to have moulded the relief appropriately in favour of the workman. That has not been done at all by the Labour Court. Both the learned single Judge as well as the Division Bench of the High Court in its Civil Writ Petition and the Letters Patent Appeal have failed to consider this important aspect of the matter. Therefore, we are of the view that the order of termination passed by the respondent, the award passed by the Labour Court and the judgment & order of the High Court are liable to be set aside. When we arrive at the aforesaid conclusion, the next aspect is whether the workman is entitled for reinstatement, back wages and consequential benefits. We are of the view that the workman must be reinstated. However, due to delay in raising the industrial dispute, and getting it referred to the Labour Court from the State Government, the workman will be entitled in law for back wages and other consequential benefits from the date of raising the industrial dispute i.e. from 02.03.2005 till reinstatement with all consequential benefits.
### Response:
1
### Explanation:
40. The above critical analysis of law laid down by this Court in the case referred to supra, is very much relevant to the case on hand, which is neither discussed nor considered and examined by the courts below while answering the reference made by the State Government and passing the award, judgments & orders in a cavalier manner. Thus, the lives of the appellant and his family members have been hampered. Further, on facts, we have to hold that the order of termination passed is highly disproportionate to the gravity of misconduct and therefore shocks the conscience of this Court. Hence, we hold that the appellant is entitled for the reliefs as prayed by him in this appeal41. In view of the foregoing reasons, the award of the Labour Court and the judgment & order of the High Court are highly erroneous in law. Therefore, the same are required to be interfered with by this Court in exercise of the appellate jurisdiction as there is miscarriage of justice for the workman in this case42. It is an undisputed fact that the dispute was raised by the workman after he was acquitted in the criminal case which was initiated at the instance of the respondent. Raising the industrial dispute belatedly and getting the same referred from the State Government to the Labour Court is for justifiable reason and the same is supported by law laid down by this Court in Calcutta Dock Labour Board (supra). Even assuming for the sake of the argument that there was a certain delay and latches on the part of the workman in raising the industrial dispute and getting the same referenced for adjudication, the Labour Court is statutorily duty bound to answer the points of dispute referred to it by adjudicating the same on merits of the case and it ought to have moulded the relief appropriately in favour of the workman. That has not been done at all by the Labour Court. Both the learned single Judge as well as the Division Bench of the High Court in its Civil Writ Petition and the Letters Patent Appeal have failed to consider this important aspect of the matter. Therefore, we are of the view that the order of termination passed by the respondent, the award passed by the Labour Court and the judgment & order of the High Court are liable to be set aside. When we arrive at the aforesaid conclusion, the next aspect is whether the workman is entitled for reinstatement, back wages and consequential benefits. We are of the view that the workman must be reinstated. However, due to delay in raising the industrial dispute, and getting it referred to the Labour Court from the State Government, the workman will be entitled in law for back wages and other consequential benefits from the date of raising the industrial dispute i.e. from 02.03.2005 till reinstatement with all consequential benefits
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Management of M/s. Indian Express & Chronical Press Vs. M.C. Kapur | Grover, J.1. This is an appeal by special leave from the order of the Additional Industrial Tribunal, Delhi in the matter of an application under Section 33 (2)(b) of the Industrial Disputes Act, 1947 filed by the Management of the Indian Express and Chronicle Press, New Delhi, against the respondent.2. The respondent was a lino-operator in the service of the Indian Express and Chronicle Press, New Delhi, A Co-operative Society styled as the Indian Express Employees Thrift and Credit Co-operative Society (to be hereinafter called the Employees Co-operative Society) was set up in 1957. The membership of this Society was confined to the employees of the Indian Express and Chronicle Press. The President of the Employees Co-operative Society wrote to the General Manager of the Press that the Managing Committee of the Society had after a preliminary enquiry found that M. C. Kapur who was the Treasurer, was prima facie guilty of certain serious financial irregularities, including defalcation of the Societys funds.3. On receipt of that letter the General Manager of the Company served a charge-sheet on September 5, 1966 on M. C. Kapur. He was charged with the following:"(i) Misappropriating the funds of the Society.(ii) Getting false cash memo prepared.(iii) Falsification of accounts of the Society.(iv) Refusal of account for the amount of Rs. 3500/- of the Society.(v) Coercing the Society to make payment to Raj Sweets, New Delhi.(vi) Refusal to hand over charge as Treasurer even after your resignation had been accepted and thus keeping the Societys money and books with you unauthorisedly.4. An enquiry was held into the charges by Shri Ved Prakash, Public Relations Officer. M. C. Kapur denied all the charges. However, the Enquiry Officer found that with the exception of charge (v), all the other charges had been found proved against M. C. Kapur.5. The question which the Industrial Tribunal had to decide was whether the termination of service which had been ordered by the General Manager as a result of the report of the Enquiry Officer was in accordance with the Standing Orders. According to the Standing Order 15 (2) the following acts and omissions shall be treated as misconduct. It is unnecessary to mention all of them but only those may be mentioned on which reliance has been placed by counsel for the appellant, namely (b) and (i) which read as follows:(b) Theft, fraud or dishonesty in connection with the companys business or property.(i) riotous or disorderly behaviour during working hours at the establishment or any act subversive of discipline.6. The Tribunal came to the conclusion that the Employees Co-operative Society was an altogether independent concern or organisation and the appellants company had no financial or other interest in it nor did it have any control over its management, functioning or finances. According to the Tribunal, provision of certain amenities to the Employees Co-operative Society by the Company did not alter the character of the said Society. Hence the conduct of M. C. Kapur in regard to the affairs of the Society could not be regarded as affecting in any manner the smooth and efficient working of the press where he was employed. He repelled the arguments based on the ground that M. C. Kapur was guilty of an act "subversive of discipline by saying that would not be said to have been proved in the present case. He also did not agree that the definition of misconduct in the Standing Orders was exhaustive. In paragraph 19 the Tribunal stated that the finding of the Enquiry Officer was challenged by Kapur on three grounds, (i) that no proper enquiry had been conducted, (2) that no proper opportunity was given to him to defend himself and (3) that the report of the Enquiry Officer was mala fide, arbitrary and bad. The Tribunal expressed the view that it had not been shown that the report of the Enquiry Officer based as it was on the evidence produced before him, was, in any manner, mala fide, arbitrary or biased or the enquiry had not been properly conducted. At any rate, in view of the finding that the misconduct alleged against M. C. Kapur was outside the purview of the Standing Orders governing him, the Tribunal declined to accord approval to the dismissal of M. C. Kapur.7. Mr. Pai who appears for the appellant, relies primarily on clause (i) of the Standing Order 15 (2). He has not been able to show us how he can bring the findings which were given by the Enquiry Officer or the charges which were preferred against M. C. Kapur within the purview of that clause. No one charged M. C. Kapur with riotous or disorderly behaviour during the working hours. The only other head under which he could be charged was that he had committed an act subversive of discipline. The charges which were preferred against him did not seen to relate, in any manner, to the question of discipline. We are wholly unable to accede to the contention of Mr. Pai that the charges which were preferred and which were found proved by the Enquiry Officer and on the basis of which the dismissal was ordered by the General Manager, constituted acts subversive of discipline.8. It is true that according to the Enquiry Officers findings charges with regard to defalcation of certain amount and falsification of accounts etc. had been found proved but that is not the matter on which any final decision was given or could be given by the Tribunal and those findings were only of the Enquiry Officer although it was observed that the enquiry had been conducted in a fair manner. In view of the findings of the Tribunal the charges which were found proved by the Enquiry Officer would not be covered even by clause (b) of the Standing Order 15 (2). At any rate, on the finding of the Tribunal the order which was made was fully justified and we find no reason to interfere with it. | 0[ds]7. Mr. Pai who appears for the appellant, relies primarily on clause (i) of the Standing Order 15 (2). He has not been able to show us how he can bring the findings which were given by the Enquiry Officer or the charges which were preferred against M. C. Kapur within the purview of that clause. No one charged M. C. Kapur with riotous or disorderly behaviour during the working hours. The only other head under which he could be charged was that he had committed an act subversive of discipline. The charges which were preferred against him did not seen to relate, in any manner, to the question of discipline. We are wholly unable to accede to the contention of Mr. Pai that the charges which were preferred and which were found proved by the Enquiry Officer and on the basis of which the dismissal was ordered by the General Manager, constituted acts subversive of discipline.8. It is true that according to the Enquiry Officers findings charges with regard to defalcation of certain amount and falsification of accounts etc. had been found proved but that is not the matter on which any final decision was given or could be given by the Tribunal and those findings were only of the Enquiry Officer although it was observed that the enquiry had been conducted in a fair manner. In view of the findings of the Tribunal the charges which were found proved by the Enquiry Officer would not be covered even by clause (b) of the Standing Order 15 (2). At any rate, on the finding of the Tribunal the order which was made was fully justified and we find no reason to interfere with it. | 0 | 1,122 | 313 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
Grover, J.1. This is an appeal by special leave from the order of the Additional Industrial Tribunal, Delhi in the matter of an application under Section 33 (2)(b) of the Industrial Disputes Act, 1947 filed by the Management of the Indian Express and Chronicle Press, New Delhi, against the respondent.2. The respondent was a lino-operator in the service of the Indian Express and Chronicle Press, New Delhi, A Co-operative Society styled as the Indian Express Employees Thrift and Credit Co-operative Society (to be hereinafter called the Employees Co-operative Society) was set up in 1957. The membership of this Society was confined to the employees of the Indian Express and Chronicle Press. The President of the Employees Co-operative Society wrote to the General Manager of the Press that the Managing Committee of the Society had after a preliminary enquiry found that M. C. Kapur who was the Treasurer, was prima facie guilty of certain serious financial irregularities, including defalcation of the Societys funds.3. On receipt of that letter the General Manager of the Company served a charge-sheet on September 5, 1966 on M. C. Kapur. He was charged with the following:"(i) Misappropriating the funds of the Society.(ii) Getting false cash memo prepared.(iii) Falsification of accounts of the Society.(iv) Refusal of account for the amount of Rs. 3500/- of the Society.(v) Coercing the Society to make payment to Raj Sweets, New Delhi.(vi) Refusal to hand over charge as Treasurer even after your resignation had been accepted and thus keeping the Societys money and books with you unauthorisedly.4. An enquiry was held into the charges by Shri Ved Prakash, Public Relations Officer. M. C. Kapur denied all the charges. However, the Enquiry Officer found that with the exception of charge (v), all the other charges had been found proved against M. C. Kapur.5. The question which the Industrial Tribunal had to decide was whether the termination of service which had been ordered by the General Manager as a result of the report of the Enquiry Officer was in accordance with the Standing Orders. According to the Standing Order 15 (2) the following acts and omissions shall be treated as misconduct. It is unnecessary to mention all of them but only those may be mentioned on which reliance has been placed by counsel for the appellant, namely (b) and (i) which read as follows:(b) Theft, fraud or dishonesty in connection with the companys business or property.(i) riotous or disorderly behaviour during working hours at the establishment or any act subversive of discipline.6. The Tribunal came to the conclusion that the Employees Co-operative Society was an altogether independent concern or organisation and the appellants company had no financial or other interest in it nor did it have any control over its management, functioning or finances. According to the Tribunal, provision of certain amenities to the Employees Co-operative Society by the Company did not alter the character of the said Society. Hence the conduct of M. C. Kapur in regard to the affairs of the Society could not be regarded as affecting in any manner the smooth and efficient working of the press where he was employed. He repelled the arguments based on the ground that M. C. Kapur was guilty of an act "subversive of discipline by saying that would not be said to have been proved in the present case. He also did not agree that the definition of misconduct in the Standing Orders was exhaustive. In paragraph 19 the Tribunal stated that the finding of the Enquiry Officer was challenged by Kapur on three grounds, (i) that no proper enquiry had been conducted, (2) that no proper opportunity was given to him to defend himself and (3) that the report of the Enquiry Officer was mala fide, arbitrary and bad. The Tribunal expressed the view that it had not been shown that the report of the Enquiry Officer based as it was on the evidence produced before him, was, in any manner, mala fide, arbitrary or biased or the enquiry had not been properly conducted. At any rate, in view of the finding that the misconduct alleged against M. C. Kapur was outside the purview of the Standing Orders governing him, the Tribunal declined to accord approval to the dismissal of M. C. Kapur.7. Mr. Pai who appears for the appellant, relies primarily on clause (i) of the Standing Order 15 (2). He has not been able to show us how he can bring the findings which were given by the Enquiry Officer or the charges which were preferred against M. C. Kapur within the purview of that clause. No one charged M. C. Kapur with riotous or disorderly behaviour during the working hours. The only other head under which he could be charged was that he had committed an act subversive of discipline. The charges which were preferred against him did not seen to relate, in any manner, to the question of discipline. We are wholly unable to accede to the contention of Mr. Pai that the charges which were preferred and which were found proved by the Enquiry Officer and on the basis of which the dismissal was ordered by the General Manager, constituted acts subversive of discipline.8. It is true that according to the Enquiry Officers findings charges with regard to defalcation of certain amount and falsification of accounts etc. had been found proved but that is not the matter on which any final decision was given or could be given by the Tribunal and those findings were only of the Enquiry Officer although it was observed that the enquiry had been conducted in a fair manner. In view of the findings of the Tribunal the charges which were found proved by the Enquiry Officer would not be covered even by clause (b) of the Standing Order 15 (2). At any rate, on the finding of the Tribunal the order which was made was fully justified and we find no reason to interfere with it.
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0
### Explanation:
7. Mr. Pai who appears for the appellant, relies primarily on clause (i) of the Standing Order 15 (2). He has not been able to show us how he can bring the findings which were given by the Enquiry Officer or the charges which were preferred against M. C. Kapur within the purview of that clause. No one charged M. C. Kapur with riotous or disorderly behaviour during the working hours. The only other head under which he could be charged was that he had committed an act subversive of discipline. The charges which were preferred against him did not seen to relate, in any manner, to the question of discipline. We are wholly unable to accede to the contention of Mr. Pai that the charges which were preferred and which were found proved by the Enquiry Officer and on the basis of which the dismissal was ordered by the General Manager, constituted acts subversive of discipline.8. It is true that according to the Enquiry Officers findings charges with regard to defalcation of certain amount and falsification of accounts etc. had been found proved but that is not the matter on which any final decision was given or could be given by the Tribunal and those findings were only of the Enquiry Officer although it was observed that the enquiry had been conducted in a fair manner. In view of the findings of the Tribunal the charges which were found proved by the Enquiry Officer would not be covered even by clause (b) of the Standing Order 15 (2). At any rate, on the finding of the Tribunal the order which was made was fully justified and we find no reason to interfere with it.
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Sanjay Dutt (A-117) and Ors. Vs. State of Maharashtra, through CBI (STF), Bombay | with two children aged 1 and 1/2 years and they need their fathers presence in their life. He further submitted that he has been actively involved in an AIDS charity and raises funds for the free treatment of aids patients who cannot afford the same, besides visiting the hospitals/centres. It is further submitted that he is on the Board of Directors of Save the Children Foundation and helping in raising funds for children who are needy, orphaned and destitute as their Brand Ambassador for a long time, even prior to his being charged in this case. 77. In view of the above, learned senior counsel for A-117 draws attention of this Court towards the following decisions, viz., Ved Prakash v. State of Haryana 1981 (1) SCC 447 , this Court observed that the social background and the personal factors of the crime-doer are very relevant although in practice Criminal Courts have hardly paid attention to the social milieu or the personal circumstances of the offender. 78. In Jugal Kishore v. State of Bihar (1972) 2 SCC 633 this Court observed that the modern criminal jurisprudence recognizes that no one is a born criminal and that a good many crimes are the product of socio-economic milieu. 79. This Court in Ratanlal v. State of Punjab, (1964) SCR 676 has observed to the effect that the Probation of Offenders Act, was enacted with a view to provide for the release of offenders of certain categories on Probation or alter due admonition and for matters connected therewith. The object of the Act is to prevent the conversion of offenders into obdurate criminals as a result of their association with hardened criminals. The above object is in consonance with the present trend in the field of penology, according to which, efforts should be made to bring about correction and reformation of the individual offenders and not to resort to retributive justice. Although, not much can be done for hardened criminals, considerable stress has been laid on bringing about reform of offenders not guilty of serious offences and of preventing their association with hardened criminals. The Act gives statutory recognition to the above objective. It is, therefore, provided that offenders should not be sent to jail, except in certain circumstances. 80. The scope of Section 4 of the Probation of Offenders Act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. The same has also been held by this Court in Chhani v. State of U.P. (2006) 5 SCC 396 . 81. Section 360 of the Code of Criminal Procedure does not provide for any role for probation officers in assisting the courts in relation to supervision and other matters while the Probation of Offenders Act does make such a provision. While Section 12 of the Probation of Offenders Act states that a person found guilty of an offence and dealt with under Section 3 or 4 of the Probation of Offenders Act, shall not suffer disqualification, if any, attached to the conviction of an offence under any law. The Code of Criminal Procedure does not contain parallel provision. Two statutes with such significant differences could not be intended to co-exist at the same time in the same area. Such co-existence would lead to anamolous results. The intention to retain the provisions of Section 360 of the Code and the Probation of Offenders Act as applicable at the same time in a given area cannot be gathered from the provisions of Section 360 or any other provisions of the Code. 82. Keeping those information in the form of an additional affidavit, let us consider his claim and eligibility of applying Section 4 of the Probation of Offenders Act. 83. Sub-Section 4 of the Probation of Offenders Act contains the words Notwithstanding anything contained in any other law for the time being in force. The above non obstante clause points to the conclusion that the provisions of Section 4 of the Probation of Offenders Act would have an overriding effect and shall prevail if the other conditions prescribed therein are fulfilled. Those conditions are: (i) The accused is found guilty of having committed an offence not punishable with death or imprisonment for life; (ii) The Court finding him guilty is of the opinion that having regard to the circumstances of the case, including the nature of the offence and the character of the offender, it is expedient to release him on probation; (iii) The accused in such an event enters into a bond with or without sureties to appear and receive sentence when called upon during such period not exceeding three years as the court may direct and, in the meantime, to keep the peace and be of good behaviour. 84. The underlying object of the above provisions obviously is that an accused person should be given a chance of reformation, which he would lose in case he is incarcerated in prison and associates with hardened criminals. It is submitted that the provisions of the said Act are beneficial provisions and, therefore, they should receive wide interpretation and should not be read in a restricted sence vide Ishar Das v. State of Punjab, 1973 (2) SCC 65 . 85. Section 4 of the Probation of Offenders Act applies to all kinds of offenders, whether under or above the age of 21 years. This section is intended to attempt possible reformation of an offender instead of inflicting upon him the normal punishment of his crime. It is submitted that it is settled law that while extending benefit of the said provision, this Court has to exercise its discretion having regard to the circumstances in which the crime was committed, viz., the age, character and antecedents of the offender. It is also settled law that such exercise of discretion needs a sense of responsibility. The section itself is clear that before applying the same, this Court should carefully take into consideration the attendant circumstances. | 0[ds]19. The abovesaid confession highlighted the crime for which the Appellant-Sanjay Dutt has been charged. The following facts emerge from the abovesaid confession:i) He was already having three licensed firearms.ii) He developed acquaintance with Anees Ibrahim -brother of Dawood Ibrahim during a film-shooting in Dubai.iii) He expressed his desire to Samir Hingora (A-53) and Hanif Kandawala (A-40) to have an automatic fire-arm.iv) They came with one Salem with whom Sanjay Dutt was already acquainted with and they assured him of the delivery of weapons the next day in the morning.v) They came in the morning of 16.01.1993 with one other person and delivered 3 AK-56 Rifles and 250 rounds.vi) After 2 days, he returned 2 AK-56 and ammunitions but retained 1 AK-56 and some ammunition.vii) In April, while he was shooting at Mauritius, he heard the news of the arrest of Samir and Hanif, on which, he got frightened and requested his friend Yusuf Nulwalla to destroy the weapons.20. The Appellant (A-117) not only implicates himself in the above said statement but also amongst others the Appellant-Yusuf Nulwalla (A-118). The abovesaid confession has been duly recorded by PW-193 who has proved the compliance with the provisions of law while recording the confession. The abovesaid confession is a substantive piece of evidence and it has been held in a series of judgments that the confession can be the sole basis of conviction, if recorded in accordance with the provisions of TADA. Further, the confessional statement establishes the unauthorized possession of weapons in the notified area of Bombay.21. The confession of the Appellant (A-117) is substantiated and corroborated with the confession of other co-accused, namely, Samir Hingora (A-53), Baba @ Ibrahim Musa Chauhan (A-41), Mansoor Ahmed (A-89), Hanif Kandawala (A-40), Yusuf Nulwalla (A-118) and Kersi Bapuji Adajania (A-124) which are as under.22. The abovesaid confessional statements of the co-accused clearly establish the case against the Appellant-Sanjay Dutt and also corroborate with each other in material particulars. The following facts emerge from the abovesaid confessional statements:(i) The Appellant had acquired 3 AK-56 rifles and its ammunitions unauthorisedly.(ii) Samir Hingora (A-53), Hanif Kandawala (A-40) and Salem (A-139) provided the above said arms and ammunitions to the Appellant at his residence.(iii) On being frightened after seeing the weapons, the Appellant contacted Hanif Kandawala (A-41) and requested him to take away the weapons.(iv) Abu Salem came after few days and the Appellant returned 2 AK-56 rifles and also ammunitions, but retained one AK-56 rifle and some of its ammunitions.Confessional Statement of the Appellant - Yusuf Mohsin Nulwalla (A-118)23. Confessional statement of A-118 under 15 of TADA was recorded on 27.04.1993 at (14:20 hrs.) and 29.04.1993 at (16:00 hrs.) by Shri K.L. Bishnoi, the then DCP, Zone-III, Bombay.24. From the abovesaid confession, the following facts emerge:i) Yusuf Mohsin Nulwalla is an old and well known friend of Sanjay Dutt.ii) In the month of April, when Sanjay Dutt was in Mauritius, A-118 was asked to destroy certain objects kept at his residence.iii) On reaching there, he discovered AK-56 and a pistol and ammunition.iv) He tried to destroy them.v) He took all these objects to a friend of his, namely, Kersi Bapuji Adajania (A-124)vi) A-124 helped him to destroy the same but he retained the pistol with him.vii) Upon being reminded about destroying the pistol, A-124 assured A-118 that he would take care of it.25. In view of the above, it is seen that the Appellant (A-118), upon instructions, caused destruction of evidence related to an offence, which were unauthorisedly possessed automatic firearms/weapons in a notified area, attracting the provisions of the Arms Act. The confession of A-118 not only involves and implicates him, but also implicates Kersi Adajania (A-124). The confession of A-118 corroborates with the confession of A-117 as well as A-124.Confessional Statement of the Appellant - Kersi Bapuji Adajania (A-124)26. The confessional statement of A-124 under Section 15 of TADA was recorded on 27.04.1993 (15:10 hrs.) and on 30.04.1993 at (16:00 hr.) by Shri K.L. Bishnoi, the then DCP, Zone-III, Bombay.27. From the above confession, the following facts emerge:(i) A-118 was a sub-contractor of A-124. A-124 was also acquainted with A-117. All three of them were fond of hunting and, in fact, went together for hunting once.(ii) A-124 had his workshop in his house where he was keeping all his tools including the gas cutter.(iii) In or around April, A-118 contacted A-124 in order to destroy an AK-56 and a pistol belonging to Sanjay Dutt (A-117).(iv) A-124 permitted him to do so.(v) A-124 personally destroyed AK-56. (vi) A-124 kept with himself the pistol.28. The abovesaid confession establishes the charge framed against A-124 that he knowingly destroyed evidence related to an offence. A-124 was thereafter in unauthorized possession of the fire-arm. The abovesaid confession also corroborates in material particulars, the confession of A-118.29. The abovesaid confessions of the Appellants, viz., A-117, A-118 and A-124 have been recorded by PW-193, who has proved that the said confessions were recorded after following the requirements of the provisions of Section 15 of TADA. It is relevant to point out that notwithstanding vigorous cross-examination of the witness (PW-193), he stood firmly without being shaken. A long line of arguments was placed before the Designated Court attacking the voluntariness of the confession on various occasions, which had been considered in detail by the trial Court and we fully agree with the same.37. It is clear that a confessional statement duly recorded by a Police Officer is a substantive piece of evidence and the same can be relied upon in the trial of such person or of the co-accused, abettor or conspirator if the requirements of Section 15 of TADA, and the rules framed thereunder are complied with. The police officer, before recording the confession, has to observe the requirement of Section 15(2) of TADA. A voluntary and truthful confessional statement recorded under Section 15 of TADA requires no corroboration. However, as a matter of prudence, the court may look for some corroboration if confession is to be used against co-accused. It is made clear that whether such confession requires corroboration or not is a matter for the court to consider such confession on the facts and circumstances of each case. If the confession made by an accused is voluntary and true, it is admissible against co-accused as a substantive piece of evidence and minor and curable irregularities in recording of confession, such as omission in obtaining the certificate of the competent officer with respect to the confession do not affect the admissibility of the said evidence.It is settled law that a voluntary and free confession, even if later retracted, can be relied upon.39. In the case of the Appellant - Sanjay Dutt (A-117), the retraction statement was not made at the first available opportunity. After the recording of his confession, within 10 days, the accused was released on bail by the High Court, and the accused remained free for a considerable period of time. In fact, the judgment delivered by the Constitution Bench on 09.09.1994 also noted down that the said confession of the accused remained un-retracted. The retractions were made many months after the recording of the confession.42. In Manjit Singh v. CBI (2011) 11 SCC 578 , this Court, while considering the question whether retracted confessions of the co-accused could be relied upon to convict the accused, held that the retracted statements can be used against the accused as well as the co-accused provided such statements were truthful and voluntary when made. In the said case, two accused persons made confessional statements and, subsequently, they retracted from their statements. This Court observed:87. A confessional statement given under Section 15 of TADA shall not be discarded merely for the reason that the same has been retracted...It is pointed out that the confession in the present case was truthful and voluntary and has been recorded after strictly following the law and the prescribed procedure, the subsequent retraction and denial of such confessional statements in the statement of the accused under Section 313 was only as a result of an afterthought.49. In Ravinder Singh v. State of Maharashtra (2002) 9 SCC 55 , this Court held that a confession does not require any corroboration if it relates to the accused himself. It was further held that there was enough evidence to provide general corroboration to the confessional statement. It was also held that minor contradictions in the statements of the accused were of no consequence once the confessions were held to be reliable.55. In Manjit Singh v. CBI (2011) 11 SCC 578 , the following observations of this Court regarding the admissibility of confessional statements are pertinent:91. In Ravinder Singh case, the Court relying on State v. Nalini, S.N. Dube v. N.B. Bhoir and Devender Pal Singh v. State (NCT of Delhi), held that: (Ravinder Singh case, SCC p. 59, para 17)17. It is thus well established that a voluntary and truthful confessional statement recorded under Section 15 of the TADA Act requires no corroboration.This apposite observation by the Bench of two learned Judges in Ravinder Singh case (supra) should be considered with measured caution and we believe, taking into account the ground realities that it would be prudent to examine the authenticity of a confession on a case-by-case basis.56. The corroboration as required in the abovesaid judgment can also be found in the case at hand, both in the nature of substantive evidence in the form of the confessions of the co-accused, as well as in the oral testimony of witnesses, including the eye witnesses to the incident who have identified the Appellant-Sanjay Dutt (A-117), as well as the co-accused persons, viz., A-41 and A-53.57. Apart from the evidence contemporaneous to the arrest of the abovesaid three accused and the recovery made from A-124 and subsequent recovery at the instance of A-124 from A-120, are also relevant in respect of all the three abovenamed Appellants.58. It is clear that the sequence of events after the arrest of Sanjay Dutt till the recovery of pistol from A-120, forms part of an unbroken chain inseparably connected to each other. No foul play can be assumed in view of the fact that the events happened in quick succession one after the other, lending credibility and truthfulness to the whole episode. The role and the part played by A-118 and A-124 is also clear from the evidence relied upon by the prosecution in respect of A-117, which corroborates with each other in material particulars and is thus a substantive piece of evidence.Deposition of Prosecution Witnesses:59. Apart from the aforesaid evidence, the involvement and the role of the Appellant in the conspiracy as stated above is disclosed by the deposition of various prosecution witnesses which are as follows:Deposition of Shri K.L. Bishnoi (PW-193)PW-193, the then DCP, deposed as under with regard to the confession made by A-117:(i) On 26.04.1993, at about 3:15 p.m., A-117 was produced by A.P.I. Shri Sanjay Kadam before him in the room given by Senior P.I. Shri Kumbhar, in the office of DCB, CID, Crime Branch, for recording of his confession and he took the proceedings by asking A-117 certain questions in English and during the same, amongst other replies given by him, he told him that he wanted to make a statement.(ii) During the said proceedings, amongst other, he had explained to A-117, that he was not bound to make a confession and the same can be used against him in evidence and when A-117 still intended to give the confession, PW-193 gave him 48 hours time to reconsider his decision.(iii) Exhibit 868 being the true and correct record of the said proceedings made by him with the help of a typist in his presence which was read over to A-117 and confirmed by him as of being correctly recorded, and bearing the signatures of A-117 as well as of PW-193.(iv) On 28.04.1993, at about 16:00 hours, A-117 was again produced before P.W. 193 in the chamber of Senior P.I. DCB, CID, in the office of Crime Branch, C.P. office by A.P.I. Shri S.A. Khere for further proceedings, and he followed all the procedures mentioned above and recorded the same which is Exh. 868-A.(v) PW-193 deposed that A-117 confessed that he already had three licensed firearms.(vi) He developed acquaintance with Anees Ibrahim-brother of Dawood Ibrahim during a film-shooting(vii) He expressed his desire to have an automatic fire-arm to Samir Hingora (A-53) and Hanif Kandawala (A-40).(viii) Sanjay Dutt was already acquainted with Salem and he had assured him of delivery of the weapons.(ix) With the help of above named persons, 3 AK-56 Rifles and 250 rounds were delivered to A-117.(x) After 2 days, he returned 2 AK-56 rifles and ammunitions, and retained 1 AK-56 and some ammunition.(xi) A-117 kept the same in a handbag and placed it in the private hall on the 2nd floor of his bungalow.(xii) On hearing the news of the arrest of co-accused persons, viz., Samir Hingora (A-53) and Hanif Kandawala (A-40), A-117 contacted Yusuf Nulwalla over telephone and asked him that something is lying in a black coloured bag kept in the hall on the second floor of his house, and it should be taken away immediately and to destroy the objects completely.(v) He was picked up by the police as soon as he landed at Bombay.Deposition of PW-193 with regard to the confession made by A-118:(i) A-118 is an old and well known friend of Sanjay Dutt (A-117).In the month of April, when Sanjay Dutt was in Mauritius, A-118 was asked to destroy certain objects kept at his residence.(iii) On reaching there, he discovered one AK-56 rifle, two empty magazines, approximately 250 rounds of AK-56, one pistol and one loaded magazine.(iv) A-118 cutted the rifle into pieces with the help of a hexa-cutting machine.(v) A-118 took all those things to Kersi Adajania (A-124), who was having a gas-cutter, in order to melt the same.(vi) A-118 caused disappearance of evidence of an offence which were also unauthorisedly possessed automatic firearms/weapons.(vii) Next day, he informed A-117 about the completion of the work assigned to him.Deposition of PW-193 with regard to the confession made by A-124:(i) A-124 was very well acquainted with A-117 and A-118. (ii) A-124 had his workshop in his house where he kept all his tools including the gas cutter.(iii) A-118 contacted A-124 and said that he wanted to destroy AK-56 and a pistol belonging to Sanjay Dutt (A-117).(iv) A-124 permitted him to do so.(v) A-124 personally destroyed AK-56.(vi) A-124 kept with himself the pistol.Deposition of Pandharinath H. Shinde (PW-218)The deposition reveals as under:(i) On 11.01.1993, he was posted on guard duty at the bungalow of Sunil Dutt at Pali Hill, Khar, Bombay.(ii) He had worked as a Protection Guard at the said bungalow from 11.01.1993 to 19.01.1993. He was on duty during that period for 24 hours.(iii) On the said day, at about 7:30 a.m., one white Maruti van came to gate No. 2 of the said bungalow and three persons were sitting in the said van.(iv) He identified Ibrahim Musa Chauhan (A-41) and Samir Hingora (A-53) as the persons who were sitting at the back of the said van.Deposition of Manohar Vasudev Shirodkar (PW-219)At the relevant time, PW-219 was Senior Inspector of Police at Khar Police Station, Bombay. His deposition establishes that PW-218 was posted on Protection Duty at the bungalow of Sunil Dutt.Deposition of Suresh S. Walishetty (PW-680)PW-680, the Investigating officer revealed as under:(i) He deposed that Sanjay Dutt (A-117) expressed his desire to make a voluntary statement. Thereafter, he instructed his staff to make arrangement of two persons to act as panch witnesses. The said persons were Shri Tavade and Shri Sawant (PW 211).(ii) PW-680 instructed Shri Rajaram Ramchandra Joshi (PW-475), Assistant Inspector of Police to record the panchnama.(iii) Sanjay Dutt made a voluntary statement in Hindi Language, which was recorded in the memorandum Panchnama Exhibit 1068 by PW-475.(iv) As per the said disclosure, Sanjay Dutt led the Police party to the House of Yusuf Nulwala (A-118).(v) Yusuf Nulwala was produced by the officers of Dongri police station after about half an hour after their return to the office of DCB-CID.(vi) Yusuf Nulwala made a disclosure statement and led the police party to the house of Kersi Adajania (A-124).(vii) Kersi Adajania made a disclosure statement and produced a spring and a rod which was seized by the police and also led the Police party to A-125.(viii) A-125 made a disclosure statement and led the police party to the House of A-120 wherefrom a pistol and its rounds were recovered. | 0 | 26,636 | 3,279 | ### Instruction:
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with two children aged 1 and 1/2 years and they need their fathers presence in their life. He further submitted that he has been actively involved in an AIDS charity and raises funds for the free treatment of aids patients who cannot afford the same, besides visiting the hospitals/centres. It is further submitted that he is on the Board of Directors of Save the Children Foundation and helping in raising funds for children who are needy, orphaned and destitute as their Brand Ambassador for a long time, even prior to his being charged in this case. 77. In view of the above, learned senior counsel for A-117 draws attention of this Court towards the following decisions, viz., Ved Prakash v. State of Haryana 1981 (1) SCC 447 , this Court observed that the social background and the personal factors of the crime-doer are very relevant although in practice Criminal Courts have hardly paid attention to the social milieu or the personal circumstances of the offender. 78. In Jugal Kishore v. State of Bihar (1972) 2 SCC 633 this Court observed that the modern criminal jurisprudence recognizes that no one is a born criminal and that a good many crimes are the product of socio-economic milieu. 79. This Court in Ratanlal v. State of Punjab, (1964) SCR 676 has observed to the effect that the Probation of Offenders Act, was enacted with a view to provide for the release of offenders of certain categories on Probation or alter due admonition and for matters connected therewith. The object of the Act is to prevent the conversion of offenders into obdurate criminals as a result of their association with hardened criminals. The above object is in consonance with the present trend in the field of penology, according to which, efforts should be made to bring about correction and reformation of the individual offenders and not to resort to retributive justice. Although, not much can be done for hardened criminals, considerable stress has been laid on bringing about reform of offenders not guilty of serious offences and of preventing their association with hardened criminals. The Act gives statutory recognition to the above objective. It is, therefore, provided that offenders should not be sent to jail, except in certain circumstances. 80. The scope of Section 4 of the Probation of Offenders Act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. The same has also been held by this Court in Chhani v. State of U.P. (2006) 5 SCC 396 . 81. Section 360 of the Code of Criminal Procedure does not provide for any role for probation officers in assisting the courts in relation to supervision and other matters while the Probation of Offenders Act does make such a provision. While Section 12 of the Probation of Offenders Act states that a person found guilty of an offence and dealt with under Section 3 or 4 of the Probation of Offenders Act, shall not suffer disqualification, if any, attached to the conviction of an offence under any law. The Code of Criminal Procedure does not contain parallel provision. Two statutes with such significant differences could not be intended to co-exist at the same time in the same area. Such co-existence would lead to anamolous results. The intention to retain the provisions of Section 360 of the Code and the Probation of Offenders Act as applicable at the same time in a given area cannot be gathered from the provisions of Section 360 or any other provisions of the Code. 82. Keeping those information in the form of an additional affidavit, let us consider his claim and eligibility of applying Section 4 of the Probation of Offenders Act. 83. Sub-Section 4 of the Probation of Offenders Act contains the words Notwithstanding anything contained in any other law for the time being in force. The above non obstante clause points to the conclusion that the provisions of Section 4 of the Probation of Offenders Act would have an overriding effect and shall prevail if the other conditions prescribed therein are fulfilled. Those conditions are: (i) The accused is found guilty of having committed an offence not punishable with death or imprisonment for life; (ii) The Court finding him guilty is of the opinion that having regard to the circumstances of the case, including the nature of the offence and the character of the offender, it is expedient to release him on probation; (iii) The accused in such an event enters into a bond with or without sureties to appear and receive sentence when called upon during such period not exceeding three years as the court may direct and, in the meantime, to keep the peace and be of good behaviour. 84. The underlying object of the above provisions obviously is that an accused person should be given a chance of reformation, which he would lose in case he is incarcerated in prison and associates with hardened criminals. It is submitted that the provisions of the said Act are beneficial provisions and, therefore, they should receive wide interpretation and should not be read in a restricted sence vide Ishar Das v. State of Punjab, 1973 (2) SCC 65 . 85. Section 4 of the Probation of Offenders Act applies to all kinds of offenders, whether under or above the age of 21 years. This section is intended to attempt possible reformation of an offender instead of inflicting upon him the normal punishment of his crime. It is submitted that it is settled law that while extending benefit of the said provision, this Court has to exercise its discretion having regard to the circumstances in which the crime was committed, viz., the age, character and antecedents of the offender. It is also settled law that such exercise of discretion needs a sense of responsibility. The section itself is clear that before applying the same, this Court should carefully take into consideration the attendant circumstances.
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of Prosecution Witnesses:59. Apart from the aforesaid evidence, the involvement and the role of the Appellant in the conspiracy as stated above is disclosed by the deposition of various prosecution witnesses which are as follows:Deposition of Shri K.L. Bishnoi (PW-193)PW-193, the then DCP, deposed as under with regard to the confession made by A-117:(i) On 26.04.1993, at about 3:15 p.m., A-117 was produced by A.P.I. Shri Sanjay Kadam before him in the room given by Senior P.I. Shri Kumbhar, in the office of DCB, CID, Crime Branch, for recording of his confession and he took the proceedings by asking A-117 certain questions in English and during the same, amongst other replies given by him, he told him that he wanted to make a statement.(ii) During the said proceedings, amongst other, he had explained to A-117, that he was not bound to make a confession and the same can be used against him in evidence and when A-117 still intended to give the confession, PW-193 gave him 48 hours time to reconsider his decision.(iii) Exhibit 868 being the true and correct record of the said proceedings made by him with the help of a typist in his presence which was read over to A-117 and confirmed by him as of being correctly recorded, and bearing the signatures of A-117 as well as of PW-193.(iv) On 28.04.1993, at about 16:00 hours, A-117 was again produced before P.W. 193 in the chamber of Senior P.I. DCB, CID, in the office of Crime Branch, C.P. office by A.P.I. Shri S.A. Khere for further proceedings, and he followed all the procedures mentioned above and recorded the same which is Exh. 868-A.(v) PW-193 deposed that A-117 confessed that he already had three licensed firearms.(vi) He developed acquaintance with Anees Ibrahim-brother of Dawood Ibrahim during a film-shooting(vii) He expressed his desire to have an automatic fire-arm to Samir Hingora (A-53) and Hanif Kandawala (A-40).(viii) Sanjay Dutt was already acquainted with Salem and he had assured him of delivery of the weapons.(ix) With the help of above named persons, 3 AK-56 Rifles and 250 rounds were delivered to A-117.(x) After 2 days, he returned 2 AK-56 rifles and ammunitions, and retained 1 AK-56 and some ammunition.(xi) A-117 kept the same in a handbag and placed it in the private hall on the 2nd floor of his bungalow.(xii) On hearing the news of the arrest of co-accused persons, viz., Samir Hingora (A-53) and Hanif Kandawala (A-40), A-117 contacted Yusuf Nulwalla over telephone and asked him that something is lying in a black coloured bag kept in the hall on the second floor of his house, and it should be taken away immediately and to destroy the objects completely.(v) He was picked up by the police as soon as he landed at Bombay.Deposition of PW-193 with regard to the confession made by A-118:(i) A-118 is an old and well known friend of Sanjay Dutt (A-117).In the month of April, when Sanjay Dutt was in Mauritius, A-118 was asked to destroy certain objects kept at his residence.(iii) On reaching there, he discovered one AK-56 rifle, two empty magazines, approximately 250 rounds of AK-56, one pistol and one loaded magazine.(iv) A-118 cutted the rifle into pieces with the help of a hexa-cutting machine.(v) A-118 took all those things to Kersi Adajania (A-124), who was having a gas-cutter, in order to melt the same.(vi) A-118 caused disappearance of evidence of an offence which were also unauthorisedly possessed automatic firearms/weapons.(vii) Next day, he informed A-117 about the completion of the work assigned to him.Deposition of PW-193 with regard to the confession made by A-124:(i) A-124 was very well acquainted with A-117 and A-118. (ii) A-124 had his workshop in his house where he kept all his tools including the gas cutter.(iii) A-118 contacted A-124 and said that he wanted to destroy AK-56 and a pistol belonging to Sanjay Dutt (A-117).(iv) A-124 permitted him to do so.(v) A-124 personally destroyed AK-56.(vi) A-124 kept with himself the pistol.Deposition of Pandharinath H. Shinde (PW-218)The deposition reveals as under:(i) On 11.01.1993, he was posted on guard duty at the bungalow of Sunil Dutt at Pali Hill, Khar, Bombay.(ii) He had worked as a Protection Guard at the said bungalow from 11.01.1993 to 19.01.1993. He was on duty during that period for 24 hours.(iii) On the said day, at about 7:30 a.m., one white Maruti van came to gate No. 2 of the said bungalow and three persons were sitting in the said van.(iv) He identified Ibrahim Musa Chauhan (A-41) and Samir Hingora (A-53) as the persons who were sitting at the back of the said van.Deposition of Manohar Vasudev Shirodkar (PW-219)At the relevant time, PW-219 was Senior Inspector of Police at Khar Police Station, Bombay. His deposition establishes that PW-218 was posted on Protection Duty at the bungalow of Sunil Dutt.Deposition of Suresh S. Walishetty (PW-680)PW-680, the Investigating officer revealed as under:(i) He deposed that Sanjay Dutt (A-117) expressed his desire to make a voluntary statement. Thereafter, he instructed his staff to make arrangement of two persons to act as panch witnesses. The said persons were Shri Tavade and Shri Sawant (PW 211).(ii) PW-680 instructed Shri Rajaram Ramchandra Joshi (PW-475), Assistant Inspector of Police to record the panchnama.(iii) Sanjay Dutt made a voluntary statement in Hindi Language, which was recorded in the memorandum Panchnama Exhibit 1068 by PW-475.(iv) As per the said disclosure, Sanjay Dutt led the Police party to the House of Yusuf Nulwala (A-118).(v) Yusuf Nulwala was produced by the officers of Dongri police station after about half an hour after their return to the office of DCB-CID.(vi) Yusuf Nulwala made a disclosure statement and led the police party to the house of Kersi Adajania (A-124).(vii) Kersi Adajania made a disclosure statement and produced a spring and a rod which was seized by the police and also led the Police party to A-125.(viii) A-125 made a disclosure statement and led the police party to the House of A-120 wherefrom a pistol and its rounds were recovered.
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Hussainbhai Allarakhbhai Dariaya Vs. State Of Gujarat | the time being in force, then it will be a "representative suit" for the purpose of Order 23 Rule 3B of the Code, having regard to clause (d) of the Explanation. It is submitted that as the decree in a suit to which a Jamat is a party, would bind all members of the Jamat who are not parties to such suit, the suit by or against the Jamat is to be considered as a representative suit for the purpose of clause (1) of Rule 3B of Order 23 and consequently a compromise could be entered in a suit to which the Jamat is a party, only with the leave of the court granted after giving notice to all the members of the Jamat. It is submitted that as the leave of the court was not obtained for entering into such a compromise and as the court did not give notice to persons interested in the suit, the compromise was not a valid compromise and any person affected by the said compromise could challenge the same by filing a second appeal having regard to the provisions of Order 43 Rule 1A(2). The appellants submit that category (d) under the Explanation to Rule 3B was ignored by the High Court. 12. On the other hand, the respondents contended that the suit by the Jamat was not a representative suit. They submitted that the appellants admitted that the suit of the Jamat did not fall under categories (a) to (c) enumerated in the Explanation to Rule 3B. They contended that for a suit to fall under clause (d) of the Explanation to Rule 3B, it is necessary that the decree made in such suit should bind a person who is not a party to the suit by virtue of the special provisions in the Code or any other law. It is submitted that there is no provision in the Code or any other law which make the decree in a suit by or against the Jamat, binding on a person who is not a party to the suit. It is submitted that the argument of the appellants if accepted, would mean that even where a compromise is entered in suits to which a company (incorporated under the Companies Act) or a co-operative society (registered under the Cooperative Societies Act) or a society (registered under the Societies Registration Act) is a party, it would be necessary to treat them as representative suits and issue notice to all members thereof on the ground that the decree passed in such suits, would bind members of such company, co-operative society or society, who are not parties to the suit. The respondents submitted such a position would be untenable. 13. It is unnecessary to examine the question as to the constitution of the Jamat or the question whether a suit by or against the Jamat will bind all members of the Jamat or the question whether the members of the Jamat will be so bound by virtue of any specific provision in the Code or any other law, as these questions do not arise in this case. 14. The compromise alleged was not between the parties to the suit/appeal. As noticed above, the defendants/respondents were the State of Gujarat, the Mamlatdar of Lathi, Amreli District Panchayat, the Taluka Development Officer of Lathi and the Damnagar Gram Panchayat. None of them were parties to the compromise. Even the Jamat represented by the Secretary, was not a party to the compromise. The alleged compromise was between two groups, namely, 14 persons representing the Muslim community of Damnagar and 18 persons representing the Hindu community of Damnagar. Therefore, it cannot be said to be a compromise between the parties to the suit or the appeal. Further under Order 23 Rule 3, a decree can be made in terms of the compromise only insofar as it relates to the parties to the suit. Where either plaintiff-appellants or the defendant-respondents were not parties, it cannot be said that there was a compromise between the parties to the suit or appeal.15. The pursis (Memo - Ex.17) filed by the appellants in the first appeal stated that the trustees of the Jamat were withdrawing the appeal unconditionally, in view of the compromise reached between two groups of people who were not parties to the appeal. The parties to the appeal, that is the appellants and respondents did not sign or file any compromise petition before the court. The first appellate court could not therefore direct that a decree be drawn up in terms of the `compromise between two sets of non-parties, while dismissing the first appeal as withdrawn. Though the order dated 3.8.2004 disposing of the first appeal stated that a decree shall be drawn according to the "agreement" submitted along with the consent pursis, no such decree has been drawn. We are informed that recently the first appellate court has made an order refusing to draw a decree in terms of the compromise between non-parties, as the appeal was disposed of in pursuance of the memo of withdrawal. Be that as it may.16. When an appeal has been withdrawn by the persons who filed the appeal, it is not open to some other parties to file an appeal challenging the withdrawal of the first appeal on the ground that a `compromise was illegally entered. As noticed above, the parties to the suit had not entered into any compromise and the court had not passed a decree in terms of the compromise. In fact the court could not pass any decree in terms of the said compromise as it was not between the parties to the appeal. The request of the Jamat was for withdrawal of the first appeal and that request was granted and the appeal was dismissed as withdrawn. Neither Order 23 Rule 3, nor Order 23 Rule 3B was attracted. Therefore a second appeal would not lie at the instance of any non-party, as there is no appealable order or decree. | 1[ds]14. The compromise alleged was not between the parties to the suit/appeal. As noticed above, the defendants/respondents were the State of Gujarat, the Mamlatdar of Lathi, Amreli District Panchayat, the Taluka Development Officer of Lathi and the Damnagar Gram Panchayat. None of them were parties to the compromise. Even the Jamat represented by the Secretary, was not a party to the compromise. The alleged compromise was between two groups, namely, 14 persons representing the Muslim community of Damnagar and 18 persons representing the Hindu community of Damnagar. Therefore, it cannot be said to be a compromise between the parties to the suit or the appeal. Further under Order 23 Rule 3, a decree can be made in terms of the compromise only insofar as it relates to the parties to the suit. Where eithernts were not parties, it cannot be said that there was a compromise between the parties to the suit or appeal.15. The pursis (MemoEx.17) filed by the appellants in the first appeal stated that the trustees of the Jamat were withdrawing the appeal unconditionally, in view of the compromise reached between two groups of people who were not parties to the appeal. The parties to the appeal, that is the appellants and respondents did not sign or file any compromise petition before the court. The first appellate court could not therefore direct that a decree be drawn up in terms of the `compromise between two sets ofwhile dismissing the first appeal as withdrawn. Though the order dated 3.8.2004 disposing of the first appeal stated that a decree shall be drawn according to the "agreement" submitted along with the consent pursis, no such decree has been drawn. We are informed that recently the first appellate court has made an order refusing to draw a decree in terms of the compromise betweenas the appeal was disposed of in pursuance of the memo of withdrawal. Be that as it may.16. When an appeal has been withdrawn by the persons who filed the appeal, it is not open to some other parties to file an appeal challenging the withdrawal of the first appeal on the ground that a `compromise was illegally entered. As noticed above, the parties to the suit had not entered into any compromise and the court had not passed a decree in terms of the compromise. In fact the court could not pass any decree in terms of the said compromise as it was not between the parties to the appeal. The request of the Jamat was for withdrawal of the first appeal and that request was granted and the appeal was dismissed as withdrawn. Neither Order 23 Rule 3, nor Order 23 Rule 3B was attracted. Therefore a second appeal would not lie at the instance of anyas there is no appealable order or decree. | 1 | 3,726 | 517 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
the time being in force, then it will be a "representative suit" for the purpose of Order 23 Rule 3B of the Code, having regard to clause (d) of the Explanation. It is submitted that as the decree in a suit to which a Jamat is a party, would bind all members of the Jamat who are not parties to such suit, the suit by or against the Jamat is to be considered as a representative suit for the purpose of clause (1) of Rule 3B of Order 23 and consequently a compromise could be entered in a suit to which the Jamat is a party, only with the leave of the court granted after giving notice to all the members of the Jamat. It is submitted that as the leave of the court was not obtained for entering into such a compromise and as the court did not give notice to persons interested in the suit, the compromise was not a valid compromise and any person affected by the said compromise could challenge the same by filing a second appeal having regard to the provisions of Order 43 Rule 1A(2). The appellants submit that category (d) under the Explanation to Rule 3B was ignored by the High Court. 12. On the other hand, the respondents contended that the suit by the Jamat was not a representative suit. They submitted that the appellants admitted that the suit of the Jamat did not fall under categories (a) to (c) enumerated in the Explanation to Rule 3B. They contended that for a suit to fall under clause (d) of the Explanation to Rule 3B, it is necessary that the decree made in such suit should bind a person who is not a party to the suit by virtue of the special provisions in the Code or any other law. It is submitted that there is no provision in the Code or any other law which make the decree in a suit by or against the Jamat, binding on a person who is not a party to the suit. It is submitted that the argument of the appellants if accepted, would mean that even where a compromise is entered in suits to which a company (incorporated under the Companies Act) or a co-operative society (registered under the Cooperative Societies Act) or a society (registered under the Societies Registration Act) is a party, it would be necessary to treat them as representative suits and issue notice to all members thereof on the ground that the decree passed in such suits, would bind members of such company, co-operative society or society, who are not parties to the suit. The respondents submitted such a position would be untenable. 13. It is unnecessary to examine the question as to the constitution of the Jamat or the question whether a suit by or against the Jamat will bind all members of the Jamat or the question whether the members of the Jamat will be so bound by virtue of any specific provision in the Code or any other law, as these questions do not arise in this case. 14. The compromise alleged was not between the parties to the suit/appeal. As noticed above, the defendants/respondents were the State of Gujarat, the Mamlatdar of Lathi, Amreli District Panchayat, the Taluka Development Officer of Lathi and the Damnagar Gram Panchayat. None of them were parties to the compromise. Even the Jamat represented by the Secretary, was not a party to the compromise. The alleged compromise was between two groups, namely, 14 persons representing the Muslim community of Damnagar and 18 persons representing the Hindu community of Damnagar. Therefore, it cannot be said to be a compromise between the parties to the suit or the appeal. Further under Order 23 Rule 3, a decree can be made in terms of the compromise only insofar as it relates to the parties to the suit. Where either plaintiff-appellants or the defendant-respondents were not parties, it cannot be said that there was a compromise between the parties to the suit or appeal.15. The pursis (Memo - Ex.17) filed by the appellants in the first appeal stated that the trustees of the Jamat were withdrawing the appeal unconditionally, in view of the compromise reached between two groups of people who were not parties to the appeal. The parties to the appeal, that is the appellants and respondents did not sign or file any compromise petition before the court. The first appellate court could not therefore direct that a decree be drawn up in terms of the `compromise between two sets of non-parties, while dismissing the first appeal as withdrawn. Though the order dated 3.8.2004 disposing of the first appeal stated that a decree shall be drawn according to the "agreement" submitted along with the consent pursis, no such decree has been drawn. We are informed that recently the first appellate court has made an order refusing to draw a decree in terms of the compromise between non-parties, as the appeal was disposed of in pursuance of the memo of withdrawal. Be that as it may.16. When an appeal has been withdrawn by the persons who filed the appeal, it is not open to some other parties to file an appeal challenging the withdrawal of the first appeal on the ground that a `compromise was illegally entered. As noticed above, the parties to the suit had not entered into any compromise and the court had not passed a decree in terms of the compromise. In fact the court could not pass any decree in terms of the said compromise as it was not between the parties to the appeal. The request of the Jamat was for withdrawal of the first appeal and that request was granted and the appeal was dismissed as withdrawn. Neither Order 23 Rule 3, nor Order 23 Rule 3B was attracted. Therefore a second appeal would not lie at the instance of any non-party, as there is no appealable order or decree.
### Response:
1
### Explanation:
14. The compromise alleged was not between the parties to the suit/appeal. As noticed above, the defendants/respondents were the State of Gujarat, the Mamlatdar of Lathi, Amreli District Panchayat, the Taluka Development Officer of Lathi and the Damnagar Gram Panchayat. None of them were parties to the compromise. Even the Jamat represented by the Secretary, was not a party to the compromise. The alleged compromise was between two groups, namely, 14 persons representing the Muslim community of Damnagar and 18 persons representing the Hindu community of Damnagar. Therefore, it cannot be said to be a compromise between the parties to the suit or the appeal. Further under Order 23 Rule 3, a decree can be made in terms of the compromise only insofar as it relates to the parties to the suit. Where eithernts were not parties, it cannot be said that there was a compromise between the parties to the suit or appeal.15. The pursis (MemoEx.17) filed by the appellants in the first appeal stated that the trustees of the Jamat were withdrawing the appeal unconditionally, in view of the compromise reached between two groups of people who were not parties to the appeal. The parties to the appeal, that is the appellants and respondents did not sign or file any compromise petition before the court. The first appellate court could not therefore direct that a decree be drawn up in terms of the `compromise between two sets ofwhile dismissing the first appeal as withdrawn. Though the order dated 3.8.2004 disposing of the first appeal stated that a decree shall be drawn according to the "agreement" submitted along with the consent pursis, no such decree has been drawn. We are informed that recently the first appellate court has made an order refusing to draw a decree in terms of the compromise betweenas the appeal was disposed of in pursuance of the memo of withdrawal. Be that as it may.16. When an appeal has been withdrawn by the persons who filed the appeal, it is not open to some other parties to file an appeal challenging the withdrawal of the first appeal on the ground that a `compromise was illegally entered. As noticed above, the parties to the suit had not entered into any compromise and the court had not passed a decree in terms of the compromise. In fact the court could not pass any decree in terms of the said compromise as it was not between the parties to the appeal. The request of the Jamat was for withdrawal of the first appeal and that request was granted and the appeal was dismissed as withdrawn. Neither Order 23 Rule 3, nor Order 23 Rule 3B was attracted. Therefore a second appeal would not lie at the instance of anyas there is no appealable order or decree.
|
Arun Kumar Agrawal Vs. National Insurance Co. Ltd. | (2009) ACJ 1373 , the learned Single Judge referred to the Second Schedule of the Act and observed that quantifying the pecuniary loss at the same rate or amount even after 13 years after the amendment, ignoring the escalation in the cost of living and the inflation, may not be justified. 30. In Chandra Singh and others v. Gurmeet Singh and others (2003) VII AD (Delhi) 222, Krishna Gupta and others v. Madan Lal and others 96 (2002) DLT 829 , Captan Singh v. Oriental Insurance Co. Ltd. and others 112 (2004) DLT 417 and Amar Singh Thukral v. Sandeep Chhatwal 112 (2004) DLT 478 , the Single and Division Benches of Delhi High Court declined to apply the judgment of this Court in Lata Wadhwas case for the purpose of award of compensation under the Act. In Krishna Gupta v. Madan Lal (supra) the Division Bench of the High Court observed as under:- The decision of the Apex Court in Lata Wadhwa (supra), in our considered opinion, cannot be said to have any application in the instant case. Motor Vehicles Act, 1939 was the complete Code by itself. It not only provides for the right of a victim and/or his legal heirs to obtain compensation in case of bodily injury or death arising out of use of motor vehicle, but the forum therefore has been provided, as also the mode and manner in which the compensation to be awarded therefor. In such a situation, it would be inappropriate to rely upon a decision of the Apex Court, which had been rendered in an absolutely different fact situation and in relation whereto there did not exist any statutory compensation. Lata Wadhwa (supra) was decided in a matter where a fire occurred during a celebration. The liability of the Tata Iron & Steel Co. Ltd. was not disputed. Compensation was awarded having regard to the peculiar feature obtaining in that case which has got nothing to do with the statutory compensation payable under the provisions of the Motor Vehicles Act. 31. In Amar Singh Thukral v. Sandeep Chhatwal (supra), the learned Single Judge of Delhi High Court adopted the yardstick of minimum rates of wages for the purpose of award of compensation in the case of death of a housewife and then proceeded to observe `since there is no scientific method of assessing the contribution of a housewife to her household, in cases such as the present, resort should be had to the wages of a skilled worker as per the minimum rates of wages in Delhi. Although, this may sound uncharitable, if not demeaning to a housewife, there is hardly any option available in the absence of statutory guidelines. 32. In our view, it is highly unfair, unjust and inappropriate to compute the compensation payable to the dependents of a deceased wife/mother, who does not have regular income, by comparing her services with that of a housekeeper or a servant or an employee, who works for a fixed period. The gratuitous services rendered by wife/mother to the husband and children cannot be equated with the services of an employee and no evidence or data can possibly be produced for estimating the value of such services. It is virtually impossible to measure in terms of money the loss of personal care and attention suffered by the husband and children on the demise of the housewife. In its wisdom, the legislature had, as early as in 1994, fixed the notional income of a non-earning person at Rs.15,000/- per annum and in case of a spouse, 1/3rd income of the earning/surviving spouse for the purpose of computing the compensation. Though, Section 163A does not, in terms apply to the cases in which claim for compensation is filed under Section 166 of the Act, in the absence of any other definite criteria for determination of compensation payable to the dependents of a non-earning housewife/mother, it would be reasonable to rely upon the criteria specified in clause (6) of the Second Schedule and then apply appropriate multiplier keeping in view the judgments of this Court in General Manager Kerala State Road Transport Corporation v. Susamma Thomas (Mrs.) and others (supra), U.P. S.R.T.C. v. Trilok Chandra (supra), Sarla Verma (Smt.) and others v. Delhi Transport Corporation and another (supra) and also take guidance from the judgment in Lata Wadhwas case. The approach adopted by different Benches of Delhi High Court to compute the compensation by relying upon the minimum wages payable to a skilled worker does not commend our approval because it is most unrealistic to compare the gratuitous services of the housewife/mother with work of a skilled worker. 33. Reverting to the facts of this case, we find that while in his deposition, appellant No.1 had categorically stated that the deceased was earning Rs.50,000/- per annum by paintings and handicrafts, the respondents did not lead any evidence to controvert the same. Notwithstanding this, the Tribunal and the High Court altogether ignored the income of the deceased. The Tribunal did advert to the Second Schedule of the Act and observed that the income of the deceased could be assessed at Rs.5,000/- per month (Rs.60,000/- per annum) because the income of her spouse was Rs.15,416/- per month and then held that after making deduction, the total loss of dependency could be Rs.6 lacs. However without any tangible reason, the Tribunal decided to reduce the amount of compensation by observing that the deceased was actually non-earning member and the amount of compensation would be too much. The High Court went a step further and dismissed the appeal by erroneously presuming that neither of the claimants was dependent upon the deceased and the services rendered by her could be estimated as Rs.1250/- per month. 34. In our view, the reasons assigned by the Tribunal for reducing the amount of compensation are wholly untenable and the approach adopted by the High Court in dealing with the issue of payment of compensation to the appellants was ex facie erroneous and unjustified. | 1[ds]14. Section 163A contains a special provision for payment of compensation on the basis of a structured formula as indicated in the Second Schedule, which contains a table prescribing the compensation to be awarded with reference to the age and income of the deceased. The note appended to column (1) of the Second Schedule makes it clear that from the total amount of compensation, 1/3rd is to be deducted in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive. Clause (6) of the Second Schedule lays down that in cases of fatal and disability in non fatal accidents, income ofg person should be taken as Rs.15,000/per annum and that of spouse shall be taken as 1/3rd of the income of the earning/surviving spouse19. We may now deal with the question formulated in the opening paragraph of this judgment. In Kemp and Kemp on Quantum of Damages, (Special Edition1986), the authors have identified various heads under which the husband can claim compensation on the death of his wife. These include loss of the wifes contribution to the household from her earnings, the additional expenses incurred or likely to be incurred by having the household run by aservant, instead of the wife, the expenses incurred in buying clothes for the children instead of having them made by the wife, and similarly having his own clothes mended or stitched elsewhere than by his wife, and the loss of that element of security provided to the husband where his employment was insecure or his health was bad and where the wife could go out and work for a living23. In India the Courts have recognised that the contribution made by the wife to the house is invaluable and cannot be computed in terms of money. The gratuitous services rendered by wife with true love and affection to the children and her husband and managing the household affairs cannot be equated with the services rendered by others. A wife/mother does not work by the clock. She is in the constant attendance of the family throughout the day and night unless she is employed and is required to attend the employers work for particular hours. She takes care of all the requirements of husband and children including cooking of food, washing of clothes, etc. She teaches small children and provides invaluable guidance to them for their future life. A housekeeper or maidservant can do the household work, such as cooking food, washing clothes and utensils, keeping the house clean etc., but she can never be a substitute for a wife/mother who renders selfless service to her husband and children24. It is not possible to quantify any amount in lieu of the services rendered by the wife/mother to the family i.e. husband and children. However, for the purpose of award of compensation to the dependents, some pecuniary estimate has to be made of the services of housewife/mother. In that context, the term `services is required to be given a broad meaning and must be construed by taking into account the loss of personal care and attention given by the deceased to her children as a mother and to her husband as a wife. They are entitled to adequate compensation in lieu of the loss of gratuitous services rendered by the deceased. The amount payable to the dependants cannot be diminished on the ground that some close relation like a grandmother may volunteer to render some of the services to the family which the deceased was giving earlier25. In Lata Wadhwa v. State of Bihar (supra), this Court considered the various issues raised in the writ petitions filed by the petitioners including the one relating to payment of compensation to the victims of fire accident which occurred on 3.3.1989 resulting in the death of 60 persons and injuries to 113. By an interim order dated 15.12.1993, this Court requested former Chief Justice of India, Shri Justice Y.V. Chandrachud to look into various issues including the amount of compensation payable to the victims. Although, the petitioners filed objection to the report submitted by Shri Justice Y.V. Chandrachud, the Court overruled the same and accepted the report32. In our view, it is highly unfair, unjust and inappropriate to compute the compensation payable to the dependents of a deceased wife/mother, who does not have regular income, by comparing her services with that of a housekeeper or a servant or an employee, who works for a fixed period. The gratuitous services rendered by wife/mother to the husband and children cannot be equated with the services of an employee and no evidence or data can possibly be produced for estimating the value of such services. It is virtually impossible to measure in terms of money the loss of personal care and attention suffered by the husband and children on the demise of the housewife. In its wisdom, the legislature had, as early as in 1994, fixed the notional income of aper annum and in case of a spouse, 1/3rd income of the earning/surviving spouse for the purpose of computing the compensation. Though, Section 163A does not, in terms apply to the cases in which claim for compensation is filed under Section 166 of the Act, in the absence of any other definite criteria for determination of compensation payable to the dependents of ag housewife/mother, it would be reasonable to rely upon the criteria specified in clause (6) of the Second Schedule and then apply appropriate multiplier keeping in view the judgments of this Court in General Manager Kerala State Road Transport Corporation v. Susamma Thomas (Mrs.) and others (supra), U.P. S.R.T.C. v. Trilok Chandra (supra), Sarla Verma (Smt.) and others v. Delhi Transport Corporation and another (supra) and also take guidance from the judgment in Lata Wadhwas case. The approach adopted by different Benches of Delhi High Court to compute the compensation by relying upon the minimum wages payable to a skilled worker does not commend our approval because it is most unrealistic to compare the gratuitous services of the housewife/mother with work of a skilled worker33. Reverting to the facts of this case, we find that while in his deposition, appellant No.1 had categorically stated that the deceased was earning Rs.50,000/per annum by paintings and handicrafts, the respondents did not lead any evidence to controvert the same. Notwithstanding this, the Tribunal and the High Court altogether ignored the income of the deceased. The Tribunal did advert to the Second Schedule of the Act and observed that the income of the deceased could be assessed at Rs.5,000/per annum) because the income of her spouse was Rs.15,416/per month and then held that after making deduction, the total loss of dependency could be Rs.6 lacs. However without any tangible reason, the Tribunal decided to reduce the amount of compensation by observing that the deceased was actuallyg member and the amount of compensation would be too much. The High Court went a step further and dismissed the appeal by erroneously presuming that neither of the claimants was dependent upon the deceased and the services rendered by her could be estimated as Rs.1250/34. In our view, the reasons assigned by the Tribunal for reducing the amount of compensation are wholly untenable and the approach adopted by the High Court in dealing with the issue of payment of compensation to the appellants was ex facie erroneous and unjustified. | 1 | 9,563 | 1,344 | ### 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:
(2009) ACJ 1373 , the learned Single Judge referred to the Second Schedule of the Act and observed that quantifying the pecuniary loss at the same rate or amount even after 13 years after the amendment, ignoring the escalation in the cost of living and the inflation, may not be justified. 30. In Chandra Singh and others v. Gurmeet Singh and others (2003) VII AD (Delhi) 222, Krishna Gupta and others v. Madan Lal and others 96 (2002) DLT 829 , Captan Singh v. Oriental Insurance Co. Ltd. and others 112 (2004) DLT 417 and Amar Singh Thukral v. Sandeep Chhatwal 112 (2004) DLT 478 , the Single and Division Benches of Delhi High Court declined to apply the judgment of this Court in Lata Wadhwas case for the purpose of award of compensation under the Act. In Krishna Gupta v. Madan Lal (supra) the Division Bench of the High Court observed as under:- The decision of the Apex Court in Lata Wadhwa (supra), in our considered opinion, cannot be said to have any application in the instant case. Motor Vehicles Act, 1939 was the complete Code by itself. It not only provides for the right of a victim and/or his legal heirs to obtain compensation in case of bodily injury or death arising out of use of motor vehicle, but the forum therefore has been provided, as also the mode and manner in which the compensation to be awarded therefor. In such a situation, it would be inappropriate to rely upon a decision of the Apex Court, which had been rendered in an absolutely different fact situation and in relation whereto there did not exist any statutory compensation. Lata Wadhwa (supra) was decided in a matter where a fire occurred during a celebration. The liability of the Tata Iron & Steel Co. Ltd. was not disputed. Compensation was awarded having regard to the peculiar feature obtaining in that case which has got nothing to do with the statutory compensation payable under the provisions of the Motor Vehicles Act. 31. In Amar Singh Thukral v. Sandeep Chhatwal (supra), the learned Single Judge of Delhi High Court adopted the yardstick of minimum rates of wages for the purpose of award of compensation in the case of death of a housewife and then proceeded to observe `since there is no scientific method of assessing the contribution of a housewife to her household, in cases such as the present, resort should be had to the wages of a skilled worker as per the minimum rates of wages in Delhi. Although, this may sound uncharitable, if not demeaning to a housewife, there is hardly any option available in the absence of statutory guidelines. 32. In our view, it is highly unfair, unjust and inappropriate to compute the compensation payable to the dependents of a deceased wife/mother, who does not have regular income, by comparing her services with that of a housekeeper or a servant or an employee, who works for a fixed period. The gratuitous services rendered by wife/mother to the husband and children cannot be equated with the services of an employee and no evidence or data can possibly be produced for estimating the value of such services. It is virtually impossible to measure in terms of money the loss of personal care and attention suffered by the husband and children on the demise of the housewife. In its wisdom, the legislature had, as early as in 1994, fixed the notional income of a non-earning person at Rs.15,000/- per annum and in case of a spouse, 1/3rd income of the earning/surviving spouse for the purpose of computing the compensation. Though, Section 163A does not, in terms apply to the cases in which claim for compensation is filed under Section 166 of the Act, in the absence of any other definite criteria for determination of compensation payable to the dependents of a non-earning housewife/mother, it would be reasonable to rely upon the criteria specified in clause (6) of the Second Schedule and then apply appropriate multiplier keeping in view the judgments of this Court in General Manager Kerala State Road Transport Corporation v. Susamma Thomas (Mrs.) and others (supra), U.P. S.R.T.C. v. Trilok Chandra (supra), Sarla Verma (Smt.) and others v. Delhi Transport Corporation and another (supra) and also take guidance from the judgment in Lata Wadhwas case. The approach adopted by different Benches of Delhi High Court to compute the compensation by relying upon the minimum wages payable to a skilled worker does not commend our approval because it is most unrealistic to compare the gratuitous services of the housewife/mother with work of a skilled worker. 33. Reverting to the facts of this case, we find that while in his deposition, appellant No.1 had categorically stated that the deceased was earning Rs.50,000/- per annum by paintings and handicrafts, the respondents did not lead any evidence to controvert the same. Notwithstanding this, the Tribunal and the High Court altogether ignored the income of the deceased. The Tribunal did advert to the Second Schedule of the Act and observed that the income of the deceased could be assessed at Rs.5,000/- per month (Rs.60,000/- per annum) because the income of her spouse was Rs.15,416/- per month and then held that after making deduction, the total loss of dependency could be Rs.6 lacs. However without any tangible reason, the Tribunal decided to reduce the amount of compensation by observing that the deceased was actually non-earning member and the amount of compensation would be too much. The High Court went a step further and dismissed the appeal by erroneously presuming that neither of the claimants was dependent upon the deceased and the services rendered by her could be estimated as Rs.1250/- per month. 34. In our view, the reasons assigned by the Tribunal for reducing the amount of compensation are wholly untenable and the approach adopted by the High Court in dealing with the issue of payment of compensation to the appellants was ex facie erroneous and unjustified.
### Response:
1
### Explanation:
his own clothes mended or stitched elsewhere than by his wife, and the loss of that element of security provided to the husband where his employment was insecure or his health was bad and where the wife could go out and work for a living23. In India the Courts have recognised that the contribution made by the wife to the house is invaluable and cannot be computed in terms of money. The gratuitous services rendered by wife with true love and affection to the children and her husband and managing the household affairs cannot be equated with the services rendered by others. A wife/mother does not work by the clock. She is in the constant attendance of the family throughout the day and night unless she is employed and is required to attend the employers work for particular hours. She takes care of all the requirements of husband and children including cooking of food, washing of clothes, etc. She teaches small children and provides invaluable guidance to them for their future life. A housekeeper or maidservant can do the household work, such as cooking food, washing clothes and utensils, keeping the house clean etc., but she can never be a substitute for a wife/mother who renders selfless service to her husband and children24. It is not possible to quantify any amount in lieu of the services rendered by the wife/mother to the family i.e. husband and children. However, for the purpose of award of compensation to the dependents, some pecuniary estimate has to be made of the services of housewife/mother. In that context, the term `services is required to be given a broad meaning and must be construed by taking into account the loss of personal care and attention given by the deceased to her children as a mother and to her husband as a wife. They are entitled to adequate compensation in lieu of the loss of gratuitous services rendered by the deceased. The amount payable to the dependants cannot be diminished on the ground that some close relation like a grandmother may volunteer to render some of the services to the family which the deceased was giving earlier25. In Lata Wadhwa v. State of Bihar (supra), this Court considered the various issues raised in the writ petitions filed by the petitioners including the one relating to payment of compensation to the victims of fire accident which occurred on 3.3.1989 resulting in the death of 60 persons and injuries to 113. By an interim order dated 15.12.1993, this Court requested former Chief Justice of India, Shri Justice Y.V. Chandrachud to look into various issues including the amount of compensation payable to the victims. Although, the petitioners filed objection to the report submitted by Shri Justice Y.V. Chandrachud, the Court overruled the same and accepted the report32. In our view, it is highly unfair, unjust and inappropriate to compute the compensation payable to the dependents of a deceased wife/mother, who does not have regular income, by comparing her services with that of a housekeeper or a servant or an employee, who works for a fixed period. The gratuitous services rendered by wife/mother to the husband and children cannot be equated with the services of an employee and no evidence or data can possibly be produced for estimating the value of such services. It is virtually impossible to measure in terms of money the loss of personal care and attention suffered by the husband and children on the demise of the housewife. In its wisdom, the legislature had, as early as in 1994, fixed the notional income of aper annum and in case of a spouse, 1/3rd income of the earning/surviving spouse for the purpose of computing the compensation. Though, Section 163A does not, in terms apply to the cases in which claim for compensation is filed under Section 166 of the Act, in the absence of any other definite criteria for determination of compensation payable to the dependents of ag housewife/mother, it would be reasonable to rely upon the criteria specified in clause (6) of the Second Schedule and then apply appropriate multiplier keeping in view the judgments of this Court in General Manager Kerala State Road Transport Corporation v. Susamma Thomas (Mrs.) and others (supra), U.P. S.R.T.C. v. Trilok Chandra (supra), Sarla Verma (Smt.) and others v. Delhi Transport Corporation and another (supra) and also take guidance from the judgment in Lata Wadhwas case. The approach adopted by different Benches of Delhi High Court to compute the compensation by relying upon the minimum wages payable to a skilled worker does not commend our approval because it is most unrealistic to compare the gratuitous services of the housewife/mother with work of a skilled worker33. Reverting to the facts of this case, we find that while in his deposition, appellant No.1 had categorically stated that the deceased was earning Rs.50,000/per annum by paintings and handicrafts, the respondents did not lead any evidence to controvert the same. Notwithstanding this, the Tribunal and the High Court altogether ignored the income of the deceased. The Tribunal did advert to the Second Schedule of the Act and observed that the income of the deceased could be assessed at Rs.5,000/per annum) because the income of her spouse was Rs.15,416/per month and then held that after making deduction, the total loss of dependency could be Rs.6 lacs. However without any tangible reason, the Tribunal decided to reduce the amount of compensation by observing that the deceased was actuallyg member and the amount of compensation would be too much. The High Court went a step further and dismissed the appeal by erroneously presuming that neither of the claimants was dependent upon the deceased and the services rendered by her could be estimated as Rs.1250/34. In our view, the reasons assigned by the Tribunal for reducing the amount of compensation are wholly untenable and the approach adopted by the High Court in dealing with the issue of payment of compensation to the appellants was ex facie erroneous and unjustified.
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SULOCHANABAI SWAROPCHAND CHAWRE Vs. THE ADDITIONAL COMMISSIONER, AMRAVATI DIVISION, AMRAVATI & ORS | 1. Leave granted. 2. This appeal challenges the order dated 27.08.2018 passed by the High Court of Bombay, Nagpur Bench at Nagpur in W.P. No.5115 of 2018. 3. The aforesaid writ petition had challenged the order dated 27.06.2018 passed by the Additional Commissioner, Amravati Division, Amravati in Appeal No.155/MRC-81/Wakodi/2015-16. 4. On the basis of spot inspection conducted by the Sub-Divisional Officer, Malkapur, a road with 6 meters width marked as ABCD in the map was directed to be created by reducing the area of western plot no.449 from the layout prepared by the appellant to enable the present respondent no.4 to go to his agricultural field. 5. The appeal preferred by the appellant challenging said order passed by the Additional Collector, Buldhana was rejected by the Additional Commissioner, Amravati Division, Amravati. 6. Being aggrieved, the matter was carried further by the appellant before the High Court by filing Writ petition No.5115 of 2018. Said writ petition having been dismissed, the appellant has preferred this appeal. 7. On 11.01.2019, while issuing notice, this Court directed the parties to maintain status quo until further orders. 8. Mr. Rana Mukherjee, learned Senior Advocate for the appellant invited our attention to the order dated 10.10.2018 passed by the Sub- Divisional Officer, Malkapur. While dealing with permission sought by the present respondent no.4 for converting his agricultural land to non- agricultural, the permission was refused on the ground that there was no approach road to the layout proposed by the respondent no.4. It was submitted that there was no easement of necessity nor any right existing in favour of respondent no.4 in relation to which any direction could be issued and access could be granted to respondent no.4. It was further submitted that while the matter raised important questions, the order passed by the High Court was very cryptic and did not deal with those questions. 9. At this stage, we may extract the relevant portion from the order passed by the High Court, which was to the following effect: 2. I have gone through the impugned order. It has been concurrently found on facts of the case by the authorities below that the layout has been prepared by the petitioner by violating the conditions of the sanctioned order and considering the facts of this case. I do not see any serious mistake having been committed by the authorities below in recording the concurrent findings. Now, the position is that six meters wide road has also been created. As such, I find no merit in this petition. The petition stands dismissed. Rule is discharged with no order as to costs. 10. Without going into the questions whether there was any easement or right in favour of respondent no.4 on the basis of which he could have demanded and could be granted access through the property of the appellant, in our view, the essential issues arising in the matter ought to have been considered by the High Court in more detail. | 1[ds]10. Without going into the questions whether there was any easement or right in favour of respondent no.4 on the basis of which he could have demanded and could be granted access through the property of the appellant, in our view, the essential issues arising in the matter ought to have been considered by the High Court in more detail. | 1 | 550 | 68 | ### 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. This appeal challenges the order dated 27.08.2018 passed by the High Court of Bombay, Nagpur Bench at Nagpur in W.P. No.5115 of 2018. 3. The aforesaid writ petition had challenged the order dated 27.06.2018 passed by the Additional Commissioner, Amravati Division, Amravati in Appeal No.155/MRC-81/Wakodi/2015-16. 4. On the basis of spot inspection conducted by the Sub-Divisional Officer, Malkapur, a road with 6 meters width marked as ABCD in the map was directed to be created by reducing the area of western plot no.449 from the layout prepared by the appellant to enable the present respondent no.4 to go to his agricultural field. 5. The appeal preferred by the appellant challenging said order passed by the Additional Collector, Buldhana was rejected by the Additional Commissioner, Amravati Division, Amravati. 6. Being aggrieved, the matter was carried further by the appellant before the High Court by filing Writ petition No.5115 of 2018. Said writ petition having been dismissed, the appellant has preferred this appeal. 7. On 11.01.2019, while issuing notice, this Court directed the parties to maintain status quo until further orders. 8. Mr. Rana Mukherjee, learned Senior Advocate for the appellant invited our attention to the order dated 10.10.2018 passed by the Sub- Divisional Officer, Malkapur. While dealing with permission sought by the present respondent no.4 for converting his agricultural land to non- agricultural, the permission was refused on the ground that there was no approach road to the layout proposed by the respondent no.4. It was submitted that there was no easement of necessity nor any right existing in favour of respondent no.4 in relation to which any direction could be issued and access could be granted to respondent no.4. It was further submitted that while the matter raised important questions, the order passed by the High Court was very cryptic and did not deal with those questions. 9. At this stage, we may extract the relevant portion from the order passed by the High Court, which was to the following effect: 2. I have gone through the impugned order. It has been concurrently found on facts of the case by the authorities below that the layout has been prepared by the petitioner by violating the conditions of the sanctioned order and considering the facts of this case. I do not see any serious mistake having been committed by the authorities below in recording the concurrent findings. Now, the position is that six meters wide road has also been created. As such, I find no merit in this petition. The petition stands dismissed. Rule is discharged with no order as to costs. 10. Without going into the questions whether there was any easement or right in favour of respondent no.4 on the basis of which he could have demanded and could be granted access through the property of the appellant, in our view, the essential issues arising in the matter ought to have been considered by the High Court in more detail.
### Response:
1
### Explanation:
10. Without going into the questions whether there was any easement or right in favour of respondent no.4 on the basis of which he could have demanded and could be granted access through the property of the appellant, in our view, the essential issues arising in the matter ought to have been considered by the High Court in more detail.
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Capt. Virendra Kumar Vs. Union of India | officer any matters adverse to him, if in his opinion, it is not in the interest of the security of the State to do so. (2) In the event of the explanation being considered by the Chief of the Army Staff unsatisfactory, the matter shall be submitted to the Central Govt. for orders, together with the officer?s explanation and the recommen?dation of the Chief of the Army Staff as to whether the officer should be: (a) called upon to retire; or (b) called upon to resign. (3) The Central Government after considering the reports the expla?nations, if any, of the officer and the recommendation of the Chief of the Army Staff, may call upon the officer to retire or resign, and on his refusing to do so, the officer may be compulsorily retired or removed from the service on pension or gratuity, if any, admissible to him. 15A. Release on medical grounds: (1) An Officer who is found by a Medical Board to be permanently unfit for any form or military service may be released from the service in accordance with the procedure laid down in this rule. (2) The President of the Medical Board shall, immediately after the Medical Board has come to the conclusion that the officer is permanently unfit for any form of military service, issue a notice specifying the nature of the disease or disability he is suffering from and the finding of the Medical Board and also intimating him that in view of the finding he may be released from the service; every such notice shall also specify that the officer may, within fifteen days of the date of receipt of the notice, prefer a petition against the finding of the Medical Board of the Chief of the Army Staff through the President of the Medical Boards: Provided that where in the opinion of the Medical Board the officer is suffering from a mental disease and it is either unsafe to communicate the nature of the disease or disability to the officer or the officer is unfit to look after his interests, the nature of the disease or disability shall be communicated to the officer?s next of him who shall have the like right to petition. (3) If no petition is preferred within the time specified in Sub-rule (2), the officer may be released from the service by an order to that effect by the Chief of the Army Staff. (4) If a petition is referred within the time specified in Sub-rule (2), it shall be forwarded to the Central Govt. together with the records thereof and the recommendation of the Chief of the Army Staff?The Central Govt. may, after considering the petition and the recommendation of the Chief of the Army Staff, pass such order as it deems fit.? 8. These two rules, so far as we are able to see, lay down the procedural basis for termination of services of Regular Commissioned Officers on account of physical disability or medical unfitness. If Rule 15 applies toEmergency Commissioned Officers, as it does, prescribes a certain procedure which must be followed. The Chief of the Army Staff must be. It satisfied that the officer is unfit to be retained in the service due to physical disability. By the way there are sedentary posts in the Army. This satisfaction is not purely subjective and only on its formation the Chief of the Army Staff shall proceed further. He may, thereafter, inform the officer concerned about the ground for release from service. Natural justice comes in at this stage. Once the Chief of the Army Staff holds that the officer?s physical disability justifies termination of service, there is another opportunity given by the Rule (Rule 15(2)) for the affected officer to make an explanatory representation to the Central Government. The orders of the Central Government, after considering the reports and the explanations, and the recommendation of the Chief of the Army Staff, will be made under Rule 15(3). This finished the exercise under Rule 15. If Rule 15Ais to be invoked in the case of the commissioned officer, the Army Chief has to make up his mind the procedure, to be followed is set out therein. A Medical Board has to examine the officer. Other procedures in keeping with natural justice are also set out. But nothing has been brought to our notice indicating that the fair procedure under Rule 15 or 15-A has been farely or at all followed. Mere injury in action does not automatically end the officer?s service. The consequence is that the order of termination of service is invalid for failure to adhere to basic procedure. Even the top boss must act according to law as lawlessness in the Defence Force is a grave risk, four-star general or foot infantory Jawan. 9. The inevitable result of the invalidation of the termination of service is that the officer comes back into service and, therefore, the salary due to him from the time of his formal release or termination down to date will have to be paid. We direct that this be done within three months from today. 10. The fact that the order of release or termination is invalid for non-compliance with the procedural requirements does not make the officer a Permanent or Regular Commissioned Officer. His services are still liable to be terminated, but the correct procedure has to be followed. It looks as if the appellant has suffered a physical disability in action and the Chief of the Army has full power to act and may either resort to Rule 15 or 15Aand deal with him on that footing. Or may allot to him some sedentary position consistent with his physical condition and his otherwise proven talent. 11. We are sure that the defence personnel are dear to the country and to the Defence Department and so a considerate disposition will be brought to bear on the dealing with the appellant Virsndra Kumar. Human resources are the real wealth of a nation. | 1[ds]6. In accordance with the Army Instruction 13/S/65, the screening of the Emergency Commissioned Officers for grant of permanent commission commenced. The Emergency Commissioned Officers, where not found fit for the grant of permanent commission were to be released in accordance with the phased programme issued by the Army Headquarters inm No. A/11579/II/Org. 2 (M.P.) (a) Copy of the memorandum admitted to be correct is reproduced as in records of the case, only extracts have been given8. These two rules, so far as we are able to see, lay down the procedural basis for termination of services of Regular Commissioned Officers on account of physical disability or medical unfitness. If Rule 15 applies toEmergency Commissioned Officers, as it does, prescribes a certain procedure which must be followed. The Chief of the Army Staff must be. It satisfied that the officer is unfit to be retained in the service due to physical disability. By the way there are sedentary posts in the Army. This satisfaction is not purely subjective and only on its formation the Chief of the Army Staff shall proceed further. He may, thereafter, inform the officer concerned about the ground for release from service. Natural justice comes in at this stage. Once the Chief of the Army Staff holds that the officer?s physical disability justifies termination of service, there is another opportunity given by the Rule (Rule 15(2)) for the affected officer to make an explanatory representation to the Central Government. The orders of the Central Government, after considering the reports and the explanations, and the recommendation of the Chief of the Army Staff, will be made under Rule 15(3). This finished the exercise under Rule 15. If Rule 15Ais to be invoked in the case of the commissioned officer, the Army Chief has to make up his mind the procedure, to be followed is set out therein. A Medical Board has to examine the officer. Other procedures in keeping with natural justice are also set out. But nothing has been brought to our notice indicating that the fair procedure under Rule 15 or15Ahas been farely or at all followed. Mere injury in action does not automatically end the officer?s service. The consequence is that the order of termination of service is invalid for failure to adhere to basic procedure. Even the top boss must act according to law as lawlessness in the Defence Force is a grave risk,r general or foot infantory Jawan9. The inevitable result of the invalidation of the termination of service is that the officer comes back into service and, therefore, the salary due to him from the time of his formal release or termination down to date will have to be paid. We direct that this be done within three months from today10. The fact that the order of release or termination is invalid fore with the procedural requirements does not make the officer a Permanent or Regular Commissioned Officer. His services are still liable to be terminated, but the correct procedure has to be followed. It looks as if the appellant has suffered a physical disability in action and the Chief of the Army has full power to act and may either resort to Rule 15 ord deal with him on that footing. Or may allot to him some sedentary position consistent with his physical condition and his otherwise proven talent11. We are sure that the defence personnel are dear to the country and to the Defence Department and so a considerate disposition will be brought to bear on the dealing with the appellant Virsndra Kumar. Human resources are the real wealth of a nation. | 1 | 2,346 | 675 | ### 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:
officer any matters adverse to him, if in his opinion, it is not in the interest of the security of the State to do so. (2) In the event of the explanation being considered by the Chief of the Army Staff unsatisfactory, the matter shall be submitted to the Central Govt. for orders, together with the officer?s explanation and the recommen?dation of the Chief of the Army Staff as to whether the officer should be: (a) called upon to retire; or (b) called upon to resign. (3) The Central Government after considering the reports the expla?nations, if any, of the officer and the recommendation of the Chief of the Army Staff, may call upon the officer to retire or resign, and on his refusing to do so, the officer may be compulsorily retired or removed from the service on pension or gratuity, if any, admissible to him. 15A. Release on medical grounds: (1) An Officer who is found by a Medical Board to be permanently unfit for any form or military service may be released from the service in accordance with the procedure laid down in this rule. (2) The President of the Medical Board shall, immediately after the Medical Board has come to the conclusion that the officer is permanently unfit for any form of military service, issue a notice specifying the nature of the disease or disability he is suffering from and the finding of the Medical Board and also intimating him that in view of the finding he may be released from the service; every such notice shall also specify that the officer may, within fifteen days of the date of receipt of the notice, prefer a petition against the finding of the Medical Board of the Chief of the Army Staff through the President of the Medical Boards: Provided that where in the opinion of the Medical Board the officer is suffering from a mental disease and it is either unsafe to communicate the nature of the disease or disability to the officer or the officer is unfit to look after his interests, the nature of the disease or disability shall be communicated to the officer?s next of him who shall have the like right to petition. (3) If no petition is preferred within the time specified in Sub-rule (2), the officer may be released from the service by an order to that effect by the Chief of the Army Staff. (4) If a petition is referred within the time specified in Sub-rule (2), it shall be forwarded to the Central Govt. together with the records thereof and the recommendation of the Chief of the Army Staff?The Central Govt. may, after considering the petition and the recommendation of the Chief of the Army Staff, pass such order as it deems fit.? 8. These two rules, so far as we are able to see, lay down the procedural basis for termination of services of Regular Commissioned Officers on account of physical disability or medical unfitness. If Rule 15 applies toEmergency Commissioned Officers, as it does, prescribes a certain procedure which must be followed. The Chief of the Army Staff must be. It satisfied that the officer is unfit to be retained in the service due to physical disability. By the way there are sedentary posts in the Army. This satisfaction is not purely subjective and only on its formation the Chief of the Army Staff shall proceed further. He may, thereafter, inform the officer concerned about the ground for release from service. Natural justice comes in at this stage. Once the Chief of the Army Staff holds that the officer?s physical disability justifies termination of service, there is another opportunity given by the Rule (Rule 15(2)) for the affected officer to make an explanatory representation to the Central Government. The orders of the Central Government, after considering the reports and the explanations, and the recommendation of the Chief of the Army Staff, will be made under Rule 15(3). This finished the exercise under Rule 15. If Rule 15Ais to be invoked in the case of the commissioned officer, the Army Chief has to make up his mind the procedure, to be followed is set out therein. A Medical Board has to examine the officer. Other procedures in keeping with natural justice are also set out. But nothing has been brought to our notice indicating that the fair procedure under Rule 15 or 15-A has been farely or at all followed. Mere injury in action does not automatically end the officer?s service. The consequence is that the order of termination of service is invalid for failure to adhere to basic procedure. Even the top boss must act according to law as lawlessness in the Defence Force is a grave risk, four-star general or foot infantory Jawan. 9. The inevitable result of the invalidation of the termination of service is that the officer comes back into service and, therefore, the salary due to him from the time of his formal release or termination down to date will have to be paid. We direct that this be done within three months from today. 10. The fact that the order of release or termination is invalid for non-compliance with the procedural requirements does not make the officer a Permanent or Regular Commissioned Officer. His services are still liable to be terminated, but the correct procedure has to be followed. It looks as if the appellant has suffered a physical disability in action and the Chief of the Army has full power to act and may either resort to Rule 15 or 15Aand deal with him on that footing. Or may allot to him some sedentary position consistent with his physical condition and his otherwise proven talent. 11. We are sure that the defence personnel are dear to the country and to the Defence Department and so a considerate disposition will be brought to bear on the dealing with the appellant Virsndra Kumar. Human resources are the real wealth of a nation.
### Response:
1
### Explanation:
6. In accordance with the Army Instruction 13/S/65, the screening of the Emergency Commissioned Officers for grant of permanent commission commenced. The Emergency Commissioned Officers, where not found fit for the grant of permanent commission were to be released in accordance with the phased programme issued by the Army Headquarters inm No. A/11579/II/Org. 2 (M.P.) (a) Copy of the memorandum admitted to be correct is reproduced as in records of the case, only extracts have been given8. These two rules, so far as we are able to see, lay down the procedural basis for termination of services of Regular Commissioned Officers on account of physical disability or medical unfitness. If Rule 15 applies toEmergency Commissioned Officers, as it does, prescribes a certain procedure which must be followed. The Chief of the Army Staff must be. It satisfied that the officer is unfit to be retained in the service due to physical disability. By the way there are sedentary posts in the Army. This satisfaction is not purely subjective and only on its formation the Chief of the Army Staff shall proceed further. He may, thereafter, inform the officer concerned about the ground for release from service. Natural justice comes in at this stage. Once the Chief of the Army Staff holds that the officer?s physical disability justifies termination of service, there is another opportunity given by the Rule (Rule 15(2)) for the affected officer to make an explanatory representation to the Central Government. The orders of the Central Government, after considering the reports and the explanations, and the recommendation of the Chief of the Army Staff, will be made under Rule 15(3). This finished the exercise under Rule 15. If Rule 15Ais to be invoked in the case of the commissioned officer, the Army Chief has to make up his mind the procedure, to be followed is set out therein. A Medical Board has to examine the officer. Other procedures in keeping with natural justice are also set out. But nothing has been brought to our notice indicating that the fair procedure under Rule 15 or15Ahas been farely or at all followed. Mere injury in action does not automatically end the officer?s service. The consequence is that the order of termination of service is invalid for failure to adhere to basic procedure. Even the top boss must act according to law as lawlessness in the Defence Force is a grave risk,r general or foot infantory Jawan9. The inevitable result of the invalidation of the termination of service is that the officer comes back into service and, therefore, the salary due to him from the time of his formal release or termination down to date will have to be paid. We direct that this be done within three months from today10. The fact that the order of release or termination is invalid fore with the procedural requirements does not make the officer a Permanent or Regular Commissioned Officer. His services are still liable to be terminated, but the correct procedure has to be followed. It looks as if the appellant has suffered a physical disability in action and the Chief of the Army has full power to act and may either resort to Rule 15 ord deal with him on that footing. Or may allot to him some sedentary position consistent with his physical condition and his otherwise proven talent11. We are sure that the defence personnel are dear to the country and to the Defence Department and so a considerate disposition will be brought to bear on the dealing with the appellant Virsndra Kumar. Human resources are the real wealth of a nation.
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The Guru Estate Throughdwarkadas Guru And Others Vs. The Commissioner Of Income-Taxbihar And Orissa | income of a religious or charitable institution derived from voluntary contributions and applicable solely to religious or charitable purposes."5. It is manifest on a bare perusal of the two clauses that income of the assessees would be admissible to exemption under cl. (i) of sub-s. (3) if it be derived from property held under a trust or other legal obligation, solely for religious or charitable purposes, and under cl. (ii) if it be income of a religious or charitable institution derived from voluntary contributions applicable exclusively to purposes religious or charitable. Income sought to be taxed does not answer either of these descriptions; it is not income derived from property held under a trust or other obligation for the purposes specified and the assessees are not an institution religious or charitable. They are members of joint Hindu family who carry on the vocation of Pandas : and the income on the findings of the Tribunal is not applicable exclusively to purposes religious or charitable. On this limited ground the claim of the assessees for exclusion of the receipts under the Annadan Patras from their total income is liable to be rejected.This interpretation of the relevant provisions is sufficient to dispose of the appeals, but we deem it necessary, having regard to the manner in which the case was approached by the High Court, to indicate the restrictions inherent in the exercise of its jurisdiction by the High Court. The Tribunal held that the receipts called Annadan were earned by the assessees in the conduct of their business as Pandas and the facts did not indicate that any trust was intended or created by the pilgrims. Under the scheme of the Income-tax Act the function of determining facts rests with the Tribunal, and on the facts found the High Court has to advise the Tribunal as to the law applicable. The Tribunal having found that the receipts were in the nature of income of a business, and no trust was ever intended by the pilgrims who gave Annadan the High Court had to record its opinion on the basis of those facts. A finding of fact recorded by the Tribunal may not be regarded as final if it is not supported by any evidence, or is founded upon a view of facts which cannot reasonably be entertained, or upon a misconception, vide Edward v. Bristow [(1955) 36 Tax Cas. 207.]. The High Court made an order under s. 66(2) because in their opinion the consideration whether the pilgrims understood the true character or the implication of the Annadan Patras signed by them was irrelevant, and that merely because there was a breach of trust committed by the assessees, the trust was not destroyed. But it was not open to the High Court to ignore the finding of the Tribunal that there was no trust, and the receipts under Annadan Patras were income from "the business of pilgrim traffic". Under the Income-tax Act, on conclusions on questions of fact recorded by the Tribunal, if a question of law arises, the High Court will deliver its opinion provided it is properly referred. The conclusion of the Tribunal was based on a review of the evidence. The Tribunal on the evidence relating to the manner in which the pilgrims were attracted, brought to Puri, treated there and taken to the temple, fed and ultimately induced to make a payment inferred that the receipts were in the course of business.At the hearing of the reference the High Court addressed itself to a question which was not referred by the Tribunal. The High Court on the assumption that a trust was intended to be created by the pilgrims by giving Annadan, proceeded to hold that the trust was a private trust. In so holding the High Court attempted to exercise not the advisory jurisdiction in respect of the decision of the Tribunal which alone is conferred by s. 66(2) of the Indian Income-tax Act, but jurisdiction which in substance was appellate.6. The Tribunal had recorded a finding that there was in fact no trust intended or created by the pilgrims. On that finding no question as to the applicability of s. 4(3)(i) in any event could arise. It was open to the assessees to demand that a question that the finding was based on no evidence or that it could not reasonably be arrived by any person acting judicially and properly instructed as to the relevant law. Some vague statement was made in the application to the High Court for an order for calling for a statement of the case that the finding was based on no evidence, but the High Court, was not asked to call upon the Tribunal by an order under s. 66(2) to submit a statement on the question that the finding, that there was no trust, was based on no evidence. On the question referred the High Court was bound to accept the findings of the Tribunal and to decide the question of law, if any, arising therefrom. The High Court however ignored the finding that the income received as Annadan was part of the income or properties of a business carried on by the assessees, and on the assumption that a trust was created they regarded the trust as a private religious trust. In so doing the High Court did not in substance answer the question submitted to it.Normally in circumstances such as this case discloses, we would have called for a finding from the High Court on the question which was referred by the Tribunal, but on the view we have already expressed no useful purpose will be served by adopting that course. On the true meaning of s. 4(3)(i) in in the absence of any finding that the Annadan income was derived from property held under a religious or charitable trust, the claim of the assessees for exemption must fail. Their claim to exemption under s. 4(3)(ii) must fail because they are not a religious or charitable institution.7. | 0[ds]It is manifest on a bare perusal of the two clauses that income of the assessees would be admissible to exemption under cl. (i) of sub-s. (3) if it be derived from property held under a trust or other legal obligation, solely for religious or charitable purposes, and under cl. (ii) if it be income of a religious or charitable institution derived from voluntary contributions applicable exclusively to purposes religious or charitable. Income sought to be taxed does not answer either of these descriptions; it is not income derived from property held under a trust or other obligation for the purposes specified and the assessees are not an institution religious or charitable. They are members of joint Hindu family who carry on the vocation of Pandas : and the income on the findings of the Tribunal is not applicable exclusively to purposes religious or charitable. On this limited ground the claim of the assessees for exclusion of the receipts under the Annadan Patras from their total income is liable to be rejected.This interpretation of the relevant provisions is sufficient to dispose of the appeals, but we deem it necessary, having regard to the manner in which the case was approached by the High Court, to indicate the restrictions inherent in the exercise of its jurisdiction by the Highthat finding no question as to the applicability of s. 4(3)(i) in any event could arise. It was open to the assessees to demand that a question that the finding was based on no evidence or that it could not reasonably be arrived by any person acting judicially and properly instructed as to the relevant law. Some vague statement was made in the application to the High Court for an order for calling for a statement of the case that the finding was based on no evidence, but the High Court, was not asked to call upon the Tribunal by an order under s. 66(2) to submit a statement on the question that the finding, that there was no trust, was based on no evidence. On the question referred the High Court was bound to accept the findings of the Tribunal and to decide the question of law, if any, arising therefrom. The High Court however ignored the finding that the income received as Annadan was part of the income or properties of a business carried on by the assessees, and on the assumption that a trust was created they regarded the trust as a private religious trust. In so doing the High Court did not in substance answer the question submitted to it.Normally in circumstances such as this case discloses, we would have called for a finding from the High Court on the question which was referred by the Tribunal, but on the view we have already expressed no useful purpose will be served by adopting that course. On the true meaning of s. 4(3)(i) in in the absence of any finding that the Annadan income was derived from property held under a religious or charitable trust, the claim of the assessees for exemption must fail. Their claim to exemption under s. 4(3)(ii) must fail because they are not a religious or charitable institution. | 0 | 2,520 | 592 | ### 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:
income of a religious or charitable institution derived from voluntary contributions and applicable solely to religious or charitable purposes."5. It is manifest on a bare perusal of the two clauses that income of the assessees would be admissible to exemption under cl. (i) of sub-s. (3) if it be derived from property held under a trust or other legal obligation, solely for religious or charitable purposes, and under cl. (ii) if it be income of a religious or charitable institution derived from voluntary contributions applicable exclusively to purposes religious or charitable. Income sought to be taxed does not answer either of these descriptions; it is not income derived from property held under a trust or other obligation for the purposes specified and the assessees are not an institution religious or charitable. They are members of joint Hindu family who carry on the vocation of Pandas : and the income on the findings of the Tribunal is not applicable exclusively to purposes religious or charitable. On this limited ground the claim of the assessees for exclusion of the receipts under the Annadan Patras from their total income is liable to be rejected.This interpretation of the relevant provisions is sufficient to dispose of the appeals, but we deem it necessary, having regard to the manner in which the case was approached by the High Court, to indicate the restrictions inherent in the exercise of its jurisdiction by the High Court. The Tribunal held that the receipts called Annadan were earned by the assessees in the conduct of their business as Pandas and the facts did not indicate that any trust was intended or created by the pilgrims. Under the scheme of the Income-tax Act the function of determining facts rests with the Tribunal, and on the facts found the High Court has to advise the Tribunal as to the law applicable. The Tribunal having found that the receipts were in the nature of income of a business, and no trust was ever intended by the pilgrims who gave Annadan the High Court had to record its opinion on the basis of those facts. A finding of fact recorded by the Tribunal may not be regarded as final if it is not supported by any evidence, or is founded upon a view of facts which cannot reasonably be entertained, or upon a misconception, vide Edward v. Bristow [(1955) 36 Tax Cas. 207.]. The High Court made an order under s. 66(2) because in their opinion the consideration whether the pilgrims understood the true character or the implication of the Annadan Patras signed by them was irrelevant, and that merely because there was a breach of trust committed by the assessees, the trust was not destroyed. But it was not open to the High Court to ignore the finding of the Tribunal that there was no trust, and the receipts under Annadan Patras were income from "the business of pilgrim traffic". Under the Income-tax Act, on conclusions on questions of fact recorded by the Tribunal, if a question of law arises, the High Court will deliver its opinion provided it is properly referred. The conclusion of the Tribunal was based on a review of the evidence. The Tribunal on the evidence relating to the manner in which the pilgrims were attracted, brought to Puri, treated there and taken to the temple, fed and ultimately induced to make a payment inferred that the receipts were in the course of business.At the hearing of the reference the High Court addressed itself to a question which was not referred by the Tribunal. The High Court on the assumption that a trust was intended to be created by the pilgrims by giving Annadan, proceeded to hold that the trust was a private trust. In so holding the High Court attempted to exercise not the advisory jurisdiction in respect of the decision of the Tribunal which alone is conferred by s. 66(2) of the Indian Income-tax Act, but jurisdiction which in substance was appellate.6. The Tribunal had recorded a finding that there was in fact no trust intended or created by the pilgrims. On that finding no question as to the applicability of s. 4(3)(i) in any event could arise. It was open to the assessees to demand that a question that the finding was based on no evidence or that it could not reasonably be arrived by any person acting judicially and properly instructed as to the relevant law. Some vague statement was made in the application to the High Court for an order for calling for a statement of the case that the finding was based on no evidence, but the High Court, was not asked to call upon the Tribunal by an order under s. 66(2) to submit a statement on the question that the finding, that there was no trust, was based on no evidence. On the question referred the High Court was bound to accept the findings of the Tribunal and to decide the question of law, if any, arising therefrom. The High Court however ignored the finding that the income received as Annadan was part of the income or properties of a business carried on by the assessees, and on the assumption that a trust was created they regarded the trust as a private religious trust. In so doing the High Court did not in substance answer the question submitted to it.Normally in circumstances such as this case discloses, we would have called for a finding from the High Court on the question which was referred by the Tribunal, but on the view we have already expressed no useful purpose will be served by adopting that course. On the true meaning of s. 4(3)(i) in in the absence of any finding that the Annadan income was derived from property held under a religious or charitable trust, the claim of the assessees for exemption must fail. Their claim to exemption under s. 4(3)(ii) must fail because they are not a religious or charitable institution.7.
### Response:
0
### Explanation:
It is manifest on a bare perusal of the two clauses that income of the assessees would be admissible to exemption under cl. (i) of sub-s. (3) if it be derived from property held under a trust or other legal obligation, solely for religious or charitable purposes, and under cl. (ii) if it be income of a religious or charitable institution derived from voluntary contributions applicable exclusively to purposes religious or charitable. Income sought to be taxed does not answer either of these descriptions; it is not income derived from property held under a trust or other obligation for the purposes specified and the assessees are not an institution religious or charitable. They are members of joint Hindu family who carry on the vocation of Pandas : and the income on the findings of the Tribunal is not applicable exclusively to purposes religious or charitable. On this limited ground the claim of the assessees for exclusion of the receipts under the Annadan Patras from their total income is liable to be rejected.This interpretation of the relevant provisions is sufficient to dispose of the appeals, but we deem it necessary, having regard to the manner in which the case was approached by the High Court, to indicate the restrictions inherent in the exercise of its jurisdiction by the Highthat finding no question as to the applicability of s. 4(3)(i) in any event could arise. It was open to the assessees to demand that a question that the finding was based on no evidence or that it could not reasonably be arrived by any person acting judicially and properly instructed as to the relevant law. Some vague statement was made in the application to the High Court for an order for calling for a statement of the case that the finding was based on no evidence, but the High Court, was not asked to call upon the Tribunal by an order under s. 66(2) to submit a statement on the question that the finding, that there was no trust, was based on no evidence. On the question referred the High Court was bound to accept the findings of the Tribunal and to decide the question of law, if any, arising therefrom. The High Court however ignored the finding that the income received as Annadan was part of the income or properties of a business carried on by the assessees, and on the assumption that a trust was created they regarded the trust as a private religious trust. In so doing the High Court did not in substance answer the question submitted to it.Normally in circumstances such as this case discloses, we would have called for a finding from the High Court on the question which was referred by the Tribunal, but on the view we have already expressed no useful purpose will be served by adopting that course. On the true meaning of s. 4(3)(i) in in the absence of any finding that the Annadan income was derived from property held under a religious or charitable trust, the claim of the assessees for exemption must fail. Their claim to exemption under s. 4(3)(ii) must fail because they are not a religious or charitable institution.
|
M/S S.F.Engineer Vs. Metal Box India Ltd | the appellant a sum of Rs. 3,24,000/- (Three Lakhs and Twenty Four Thousand only) in full and final settlement of the amount payable by the respondent for overstaying in the premises in question.(ii) A sum of Rs.4,17,000 (Rupees Four Lakhs and Seventeen Thousand only) has been deposited by the appellant in the High Court of Bombay in Writ Petition No. 2134/1993. The said amount of Rs.4,17,000/- together with interest that may have accrued thereon, after deducting the amount of Rs. 3,24,000/- shall be paid to the respondent. The sum of Rs.3,23,000/- shall be paid to the appellant.(iii) The respondent shall handover vacant possession of the premises in question to the appellant on a date and time to be fixed by the senior Prothonotary of the High Court of Bombay in the presence of a representative of the Senior Prothonotary who shall record a memorandum signed by the respondent and a representative of the appellant. The possession shall be handed over by the respondent to the appellant within a period of three weeks from today. The amount payable to the respondent shall be handed over to him forthwith, or soon after the possession of the premises in question is handed over to the appellant.(iv) The parties agree that Summary Suit No. 947/2004 pending before the High Court of Bombay; Complaint Case No.1195/S/2003 pending before the Metropolitan Magistrate, Dadar, Bombay which is challenged before the High Court of Bombay in Criminal Writ Petition No. 2514/2006 and Writ Petition No. 2134/1993 shall be withdrawn by moving appropriate applications by the party concerned. Two suits, namely, RAE Suit No. 45/1984 pending before the Small Causes Court, Bombay giving rise to Appeal No. 372/2005 and TE&R Suit No. 153/165 of 2001 pending before the Small Causes Court, Bombay which have been filed by the landlord of the premises in question shall continue and the appellant herein may contest the same, if so advised. So far as the respondent herein is concerned, he shall stand absolved of any liability in the said wo suits before the Small Causes Court.” 27. We have referred to the written statement in extenso and the terms that have been recorded by this Court solely for the purpose of appreciating the plea whether creation of sub-tenancy by the landlord has really been established. The thrust of the matter is whether the trial court and the appellate court have correctly arrived at the conclusion of sub-letting on the foundation of legitimate inference from the facts proven. As is evincible, the defendant No. 2 was put in possession by the defendant No. 1 while he was in service. There was an agreement between the defendant No. 2 and the defendant No. 1 which has been brought on record. The agreement of tenancy between the plaintiff and the defendant No. 1 is not disputed and one of the stipulations in the agreement is that the tenant has been given the premises on lease for the purpose of occupation of its executive staff. Thus, handing over of the possession of the premises to the defendant No. 2 is in accord with the terms and conditions of the agreement entered between the landlord and the tenant and, therefore, the entry of the defendant No. 2 into the premises is legal. The trial court as well as the appellate court has drawn inference that after the defendant No.2, the employee, resigned from service and remained in occupation while he was not entitled to, the defendant No. 1 did not take any steps to get back the possession and the proceedings initiated under the Companies Act were dismissed for non- prosecution and at a belated stage only a suit for recovery of occupational charges was instituted. The emphasis is on the inaction on the part of the defendant No. 1 to institute a suit for eviction. Such inaction would not by itself persuade a court to come to the conclusion that the sub-letting was proved. Nothing has been brought on record by way of documentary or oral evidence to suggest that there was any kind of arrangement between the defendant No. 1 and the defendant No. 2. The written statement which has been filed by the defendant No.2, in fact, is a series of self serving assertions for his own benefit. His stand would show that non-payment of provident fund and gratuity and other retiral dues amounted to consideration or a kind of arrangement. That apart, he has claimed himself to become a tenant under the landlord and also had put an aspirational asseveration that he had negotiated with the landlord to purchase the property to become the owner. The High Court has noted that the tenant, defendant No.1, was a sick company under the SICA and could not have received any money in a clandestine manner. Be that as it may, withholding of retiral dues cannot be considered as a consideration or any kind of arrangement. The settlement before this Court shows that the defendant No. 2 had paid the amount for overstaying in the premises in question and the deposited amount with the High Court was required to be paid towards the dues of the defendant No. 2 after deducting overstayal charges. Mr. Sundaram, learned senior counsel for the appellant, has contended that the settlement before this Court was between the defendant No.1 and the defendant No. 2 to which the landlord was not a party and hence, it cannot have any effect on the issue of sub-letting. True it is, it is a settlement between the defendant No. 1 and defendant No.2, but it is a settlement between an employer and an erstwhile employee and, therefore, the landlord had no role. We have noted the settlement only to show that barring withholding of the retiral dues the employer had not received any thing either in cash or in kind or otherwise from the defendant No. 2 and hence, under these circumstances, it is extremely difficult to hold that the factum of sub-letting has been established. | 0[ds]23. We have referred to the aforesaid decisions only to reaffirm the proposition that the Court under certain circumstances can draw its own inference on the basis of materials brought at the trial to arrive at the conclusion that there has been parting with the legal possession and acceptance of monetary consideration either in cash or in kind or having some kind of arrangement. The aforesaid authorities make it further spectacularly clear that the transaction of subletting can be proved by legitimate inference though the burden is on the person seeking eviction. The materials brought out in evidence can be gathered together for arriving at the conclusion that a plea of subletting is established. The constructive possession of the tenant by retention of control like in Cooks and Kelvey Properties (P) Limited (supra) would not make it parting with possession as it has to be parting with legal possession. Sometimes emphasis has been laid on the fact that the sub-tenancy is created in a clandestine manner and there may not be direct proof on the part of a landlord to prove it but definitely it can bring materials on record from which such inference can be drawn.Coming to the case at hand, on a studied scrutiny of the evidence it is quite vivid that an agreement was entered into by the landlord and the tenant in respect of the premises with the stipulation that it would be used only for providing the residential accommodation of the executive staff and not for any other purpose.26. On a close perusal of the assertions made by the defendant No. 2 it is luminous that he was allowed to occupy the premises as an executive by the company and thereafter as his dues could not be paid to him, he remained in occupation and also tried to become the owner of the premises. True it is, the defendant No. 1 did not initiate action at an early stage but in 1993 when the Provident Fund Commissioner made a demand, it moved the writ court and ultimately the matter was settled before thisThus, handing over of the possession of the premises to the defendant No. 2 is in accord with the terms and conditions of the agreement entered between the landlord and the tenant and, therefore, the entry of the defendant No. 2 into the premises is legal. The trial court as well as the appellate court has drawn inference that after the defendant No.2, the employee, resigned from service and remained in occupation while he was not entitled to, the defendant No. 1 did not take any steps to get back the possession and the proceedings initiated under the Companies Act were dismissed for non- prosecution and at a belated stage only a suit for recovery of occupational charges was instituted. The emphasis is on the inaction on the part of the defendant No. 1 to institute a suit for eviction. Such inaction would not by itself persuade a court to come to the conclusion that the sub-letting was proved. Nothing has been brought on record by way of documentary or oral evidence to suggest that there was any kind of arrangement between the defendant No. 1 and the defendant No. 2. The written statement which has been filed by the defendant No.2, in fact, is a series of self serving assertions for his own benefit. His stand would show that non-payment of provident fund and gratuity and other retiral dues amounted to consideration or a kind of arrangement. That apart, he has claimed himself to become a tenant under the landlord and also had put an aspirational asseveration that he had negotiated with the landlord to purchase the property to become the owner. The High Court has noted that the tenant, defendant No.1, was a sick company under the SICA and could not have received any money in a clandestine manner. Be that as it may, withholding of retiral dues cannot be considered as a consideration or any kind of arrangement. The settlement before this Court shows that the defendant No. 2 had paid the amount for overstaying in the premises in question and the deposited amount with the High Court was required to be paid towards the dues of the defendant No. 2 after deducting overstayal charges. Mr. Sundaram, learned senior counsel for the appellant, has contended that the settlement before this Court was between the defendant No.1 and the defendant No. 2 to which the landlord was not a party and hence, it cannot have any effect on the issue of sub-letting. True it is, it is a settlement between the defendant No. 1 and defendant No.2, but it is a settlement between an employer and an erstwhile employee and, therefore, the landlord had no role. We have noted the settlement only to show that barring withholding of the retiral dues the employer had not received any thing either in cash or in kind or otherwise from the defendant No. 2 and hence, under these circumstances, it is extremely difficult to hold that the factum of sub-letting has been established. | 0 | 7,797 | 918 | ### 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 appellant a sum of Rs. 3,24,000/- (Three Lakhs and Twenty Four Thousand only) in full and final settlement of the amount payable by the respondent for overstaying in the premises in question.(ii) A sum of Rs.4,17,000 (Rupees Four Lakhs and Seventeen Thousand only) has been deposited by the appellant in the High Court of Bombay in Writ Petition No. 2134/1993. The said amount of Rs.4,17,000/- together with interest that may have accrued thereon, after deducting the amount of Rs. 3,24,000/- shall be paid to the respondent. The sum of Rs.3,23,000/- shall be paid to the appellant.(iii) The respondent shall handover vacant possession of the premises in question to the appellant on a date and time to be fixed by the senior Prothonotary of the High Court of Bombay in the presence of a representative of the Senior Prothonotary who shall record a memorandum signed by the respondent and a representative of the appellant. The possession shall be handed over by the respondent to the appellant within a period of three weeks from today. The amount payable to the respondent shall be handed over to him forthwith, or soon after the possession of the premises in question is handed over to the appellant.(iv) The parties agree that Summary Suit No. 947/2004 pending before the High Court of Bombay; Complaint Case No.1195/S/2003 pending before the Metropolitan Magistrate, Dadar, Bombay which is challenged before the High Court of Bombay in Criminal Writ Petition No. 2514/2006 and Writ Petition No. 2134/1993 shall be withdrawn by moving appropriate applications by the party concerned. Two suits, namely, RAE Suit No. 45/1984 pending before the Small Causes Court, Bombay giving rise to Appeal No. 372/2005 and TE&R Suit No. 153/165 of 2001 pending before the Small Causes Court, Bombay which have been filed by the landlord of the premises in question shall continue and the appellant herein may contest the same, if so advised. So far as the respondent herein is concerned, he shall stand absolved of any liability in the said wo suits before the Small Causes Court.” 27. We have referred to the written statement in extenso and the terms that have been recorded by this Court solely for the purpose of appreciating the plea whether creation of sub-tenancy by the landlord has really been established. The thrust of the matter is whether the trial court and the appellate court have correctly arrived at the conclusion of sub-letting on the foundation of legitimate inference from the facts proven. As is evincible, the defendant No. 2 was put in possession by the defendant No. 1 while he was in service. There was an agreement between the defendant No. 2 and the defendant No. 1 which has been brought on record. The agreement of tenancy between the plaintiff and the defendant No. 1 is not disputed and one of the stipulations in the agreement is that the tenant has been given the premises on lease for the purpose of occupation of its executive staff. Thus, handing over of the possession of the premises to the defendant No. 2 is in accord with the terms and conditions of the agreement entered between the landlord and the tenant and, therefore, the entry of the defendant No. 2 into the premises is legal. The trial court as well as the appellate court has drawn inference that after the defendant No.2, the employee, resigned from service and remained in occupation while he was not entitled to, the defendant No. 1 did not take any steps to get back the possession and the proceedings initiated under the Companies Act were dismissed for non- prosecution and at a belated stage only a suit for recovery of occupational charges was instituted. The emphasis is on the inaction on the part of the defendant No. 1 to institute a suit for eviction. Such inaction would not by itself persuade a court to come to the conclusion that the sub-letting was proved. Nothing has been brought on record by way of documentary or oral evidence to suggest that there was any kind of arrangement between the defendant No. 1 and the defendant No. 2. The written statement which has been filed by the defendant No.2, in fact, is a series of self serving assertions for his own benefit. His stand would show that non-payment of provident fund and gratuity and other retiral dues amounted to consideration or a kind of arrangement. That apart, he has claimed himself to become a tenant under the landlord and also had put an aspirational asseveration that he had negotiated with the landlord to purchase the property to become the owner. The High Court has noted that the tenant, defendant No.1, was a sick company under the SICA and could not have received any money in a clandestine manner. Be that as it may, withholding of retiral dues cannot be considered as a consideration or any kind of arrangement. The settlement before this Court shows that the defendant No. 2 had paid the amount for overstaying in the premises in question and the deposited amount with the High Court was required to be paid towards the dues of the defendant No. 2 after deducting overstayal charges. Mr. Sundaram, learned senior counsel for the appellant, has contended that the settlement before this Court was between the defendant No.1 and the defendant No. 2 to which the landlord was not a party and hence, it cannot have any effect on the issue of sub-letting. True it is, it is a settlement between the defendant No. 1 and defendant No.2, but it is a settlement between an employer and an erstwhile employee and, therefore, the landlord had no role. We have noted the settlement only to show that barring withholding of the retiral dues the employer had not received any thing either in cash or in kind or otherwise from the defendant No. 2 and hence, under these circumstances, it is extremely difficult to hold that the factum of sub-letting has been established.
### Response:
0
### Explanation:
23. We have referred to the aforesaid decisions only to reaffirm the proposition that the Court under certain circumstances can draw its own inference on the basis of materials brought at the trial to arrive at the conclusion that there has been parting with the legal possession and acceptance of monetary consideration either in cash or in kind or having some kind of arrangement. The aforesaid authorities make it further spectacularly clear that the transaction of subletting can be proved by legitimate inference though the burden is on the person seeking eviction. The materials brought out in evidence can be gathered together for arriving at the conclusion that a plea of subletting is established. The constructive possession of the tenant by retention of control like in Cooks and Kelvey Properties (P) Limited (supra) would not make it parting with possession as it has to be parting with legal possession. Sometimes emphasis has been laid on the fact that the sub-tenancy is created in a clandestine manner and there may not be direct proof on the part of a landlord to prove it but definitely it can bring materials on record from which such inference can be drawn.Coming to the case at hand, on a studied scrutiny of the evidence it is quite vivid that an agreement was entered into by the landlord and the tenant in respect of the premises with the stipulation that it would be used only for providing the residential accommodation of the executive staff and not for any other purpose.26. On a close perusal of the assertions made by the defendant No. 2 it is luminous that he was allowed to occupy the premises as an executive by the company and thereafter as his dues could not be paid to him, he remained in occupation and also tried to become the owner of the premises. True it is, the defendant No. 1 did not initiate action at an early stage but in 1993 when the Provident Fund Commissioner made a demand, it moved the writ court and ultimately the matter was settled before thisThus, handing over of the possession of the premises to the defendant No. 2 is in accord with the terms and conditions of the agreement entered between the landlord and the tenant and, therefore, the entry of the defendant No. 2 into the premises is legal. The trial court as well as the appellate court has drawn inference that after the defendant No.2, the employee, resigned from service and remained in occupation while he was not entitled to, the defendant No. 1 did not take any steps to get back the possession and the proceedings initiated under the Companies Act were dismissed for non- prosecution and at a belated stage only a suit for recovery of occupational charges was instituted. The emphasis is on the inaction on the part of the defendant No. 1 to institute a suit for eviction. Such inaction would not by itself persuade a court to come to the conclusion that the sub-letting was proved. Nothing has been brought on record by way of documentary or oral evidence to suggest that there was any kind of arrangement between the defendant No. 1 and the defendant No. 2. The written statement which has been filed by the defendant No.2, in fact, is a series of self serving assertions for his own benefit. His stand would show that non-payment of provident fund and gratuity and other retiral dues amounted to consideration or a kind of arrangement. That apart, he has claimed himself to become a tenant under the landlord and also had put an aspirational asseveration that he had negotiated with the landlord to purchase the property to become the owner. The High Court has noted that the tenant, defendant No.1, was a sick company under the SICA and could not have received any money in a clandestine manner. Be that as it may, withholding of retiral dues cannot be considered as a consideration or any kind of arrangement. The settlement before this Court shows that the defendant No. 2 had paid the amount for overstaying in the premises in question and the deposited amount with the High Court was required to be paid towards the dues of the defendant No. 2 after deducting overstayal charges. Mr. Sundaram, learned senior counsel for the appellant, has contended that the settlement before this Court was between the defendant No.1 and the defendant No. 2 to which the landlord was not a party and hence, it cannot have any effect on the issue of sub-letting. True it is, it is a settlement between the defendant No. 1 and defendant No.2, but it is a settlement between an employer and an erstwhile employee and, therefore, the landlord had no role. We have noted the settlement only to show that barring withholding of the retiral dues the employer had not received any thing either in cash or in kind or otherwise from the defendant No. 2 and hence, under these circumstances, it is extremely difficult to hold that the factum of sub-letting has been established.
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Garware Plastics & Polyester Limited & Another Vs. Union of India & Others | principle that questions of construction of all legislation, primary or secondary, are questions of law to be determined authoritatively by Courts of law; that errors in construing primary or secondary legislation made by inferior Tribunals that are not courts of law, however specialised and prestigious they may be, are subject to correction by judicial review". A breakthrough made by the (Anisminics case)6, (1969)2 A.C. 147 (approved by our Supreme Court in (M.L. Sethi v. R.P. Kapoor)7, A.I.R. 1972 S.C. 2379 was that as respects the administrative Tribunals and authorities, the old distinction between errors of law that went to jurisdiction and errors of law that did not, was for practical purposes abolished. Any error of law that could be shown to have been made by these Tribunals in the course of reaching their decision on matters of facts would result in their having asked themselves a wrong question with the result that the decision they reached would be a nullity. Consequently, it is possible to argue as has been done in (ACT Construction v. Customs & Excise)8, (1981)1 W.L.R. 49, at 54 "Once you have the primary facts established, then....the question is a question of law for the judges to decide."12. The three exempting notifications adumbrated above are an exercise of delegated legislation and there is no gain saying the fact that the final interpretation of the notifications and the application thereof to the facts of a particular case would belong to the courts by way of judicial review. However, what we find in the present petition is that the petitioner has come too early to this Court; to wit, post-haste after the show cause notices were received by it, without even caring to reply to the same. What the petitioner should have done, in the words of the Supreme Court in (Pooran Mal v. Director of Inspection (Investigation) of Income-tax, New Delhi and others)9, A.I.R. 1974 S.C. 348, is "to tell the true facts to the officer" and it will then be for that officer to ascertain the true nature of the transactions.1 3. The petitioner has not been able to canvass at the Bar that the show cause notices ex facie or read in the context of the other plethora of admitted facts point out to one and only one conclusion, namely, that the petitioner has been granted a right to avail of or not to avail of the exemption granted by the earlier notifications and hence the show cause notices should be quashed. The matter will have to be gone into in depth; the details of the goods manufactured, the correspondence entered into by the petitioner with the Government and the Collectorate, the practice of issuing exemption under section 25(l) of the Customs Act and the propriety of conferring an option by delegated legislation on an assessee to elect between two rates of taxes needs a detailed examination. Writ jurisdiction would hardly be a substitute for the hierarchial statutory remedies provided in the Act-more so when there is not even a first determination about the liability of the petitioner by the officer in the lowest category. If the petitioner is allowed to invoke the writ jurisdiction in such a case, will not another competitor seek a writ of mandamus against the Revenue-as was done in (Inland Revenue Commissioners v. National Federation of Self employed and Small Business Ltd.)10, (1982) A.C. 617-alleging that- Revenue is granting a sort of concession to Garwares by allowing them to choose between a higher and a lower rate of taxation They may argue that this in effect is no election at all as any man of business will choose to pay a lesser tax. As observed by the Supreme Court in Dunlops case (supra), allowing the present writ petition would be short circuiting the procedure established by law, namely, that of statutory appeals. Nor is the petitioner able to show that an extraordinary situation has presented itself in this particular case or what the officers of the Collectorate have done by issuing the show cause notices is in breach of , "a fundamental principle of justice" or "contrary to the general law of the land" as observed in Norths case, (supra).14. A collateral attack was made on the letter dated 19-11-1983 by which the Under Secretary in the Department of Revenue had, after referring to its communication dated 7th July, 1983, informed the petitioner that-it should contact the concerned Collector of Central Excise in the matter to whom the necessary instructions have been issued". This phrase of instruction has been made a peg on which to hang an argument that the Collectorate have been given some secret supervening instructions to decide the matter in a particular way. This insinuation has been stoutly denied by the Revenue. It is true that the nucleus of an administrative structure like the Central Excise will be a planning and controlling body like the Central Board of Direct Taxes for the Income-tax Department and Central Board of Excise and Customs for the indirect taxes, who, on a periodical review of the situation, would issue instructions to thousands of officers spread all over the length and breadth of India in the matter of execution of their duties in the best possible manner. The petitioner has not been able to show that any secret instructions were given to the concerned officials, but we would leave this question open to be reagitated before the concerned officer.15. It was also urged at the Bar that the classification of the goods was made by the Assistant Collector on 2nd August, 1983 and that if the same person hears the case being the subject-matter of the two show cause notices, it would be an infraction of the principle of natural justice as it is likely that he may be biased against the petitioner. We were also informed that the said Assistant Collector has since been transferred and that the proceedings would not be heard by him. Hence this argument does not avail Counsel. | 0[ds]12. The three exempting notifications adumbrated above are an exercise of delegated legislation and there is no gain saying the fact that the final interpretation of the notifications and the application thereof to the facts of a particular case would belong to the courts by way of judicial review. However, what we find in the present petition is that the petitioner has come too early to this Court; to wit,after the show cause notices were received by it, without even caring to reply to the same. What the petitioner should have done, in the words of the Supreme Court in (Pooran Mal v. Director of Inspection (Investigation) ofNew Delhi and others)9, A.I.R. 1974 S.C. 348, is "to tell the true facts to the officer" and it will then be for that officer to ascertain the true nature of the transactions.1 3. The petitioner has not been able to canvass at the Bar that the show cause notices ex facie or read in the context of the other plethora of admitted facts point out to one and only one conclusion, namely, that the petitioner has been granted a right to avail of or not to avail of the exemption granted by the earlier notifications and hence the show cause notices should be quashed. The matter will have to be gone into in depth; the details of the goods manufactured, the correspondence entered into by the petitioner with the Government and the Collectorate, the practice of issuing exemption under section 25(l) of the Customs Act and the propriety of conferring an option by delegated legislation on an assessee to elect between two rates of taxes needs a detailed examination. Writ jurisdiction would hardly be a substitute for the hierarchial statutory remedies provided in theso when there is not even a first determination about the liability of the petitioner by the officer in the lowest category. If the petitioner is allowed to invoke the writ jurisdiction in such a case, will not another competitor seek a writ of mandamus against thewas done in (Inland Revenue Commissioners v. National Federation of Self employed and Small Business Ltd.)10, (1982) A.C.ue is granting a sort of concession to Garwares by allowing them to choose between a higher and a lower rate of taxation They may argue that this in effect is no election at all as any man of business will choose to pay a lesser tax. As observed by the Supreme Court in Dunlops case (supra), allowing the present writ petition would be short circuiting the procedure established by law, namely, that of statutory appeals. Nor is the petitioner able to show that an extraordinary situation has presented itself in this particular case or what the officers of the Collectorate have done by issuing the show cause notices is in breach of , "a fundamental principle of justice" or "contrary to the general law of the land" as observed in Norths case, (supra).14. A collateral attack was made on the letter datedby which the Under Secretary in the Department of Revenue had, after referring to its communication dated 7th July, 1983, informed the petitionershould contact the concerned Collector of Central Excise in the matter to whom the necessary instructions have been issued". This phrase of instruction has been made a peg on which to hang an argument that the Collectorate have been given some secret supervening instructions to decide the matter in a particular way. This insinuation has been stoutly denied by the Revenue. It is true that the nucleus of an administrative structure like the Central Excise will be a planning and controlling body like the Central Board of Direct Taxes for theDepartment and Central Board of Excise and Customs for the indirect taxes, who, on a periodical review of the situation, would issue instructions to thousands of officers spread all over the length and breadth of India in the matter of execution of their duties in the best possible manner. The petitioner has not been able to show that any secret instructions were given to the concerned officials, but we would leave this question open to be reagitated before the concerned officer.15. It was also urged at the Bar that the classification of the goods was made by the Assistant Collector on 2nd August, 1983 and that if the same person hears the case being theof the two show cause notices, it would be an infraction of the principle of natural justice as it is likely that he may be biased against the petitioner. We were also informed that the said Assistant Collector has since been transferred and that the proceedings would not be heard by him. Hence this argument does not avail Counsel. | 0 | 3,579 | 857 | ### 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:
principle that questions of construction of all legislation, primary or secondary, are questions of law to be determined authoritatively by Courts of law; that errors in construing primary or secondary legislation made by inferior Tribunals that are not courts of law, however specialised and prestigious they may be, are subject to correction by judicial review". A breakthrough made by the (Anisminics case)6, (1969)2 A.C. 147 (approved by our Supreme Court in (M.L. Sethi v. R.P. Kapoor)7, A.I.R. 1972 S.C. 2379 was that as respects the administrative Tribunals and authorities, the old distinction between errors of law that went to jurisdiction and errors of law that did not, was for practical purposes abolished. Any error of law that could be shown to have been made by these Tribunals in the course of reaching their decision on matters of facts would result in their having asked themselves a wrong question with the result that the decision they reached would be a nullity. Consequently, it is possible to argue as has been done in (ACT Construction v. Customs & Excise)8, (1981)1 W.L.R. 49, at 54 "Once you have the primary facts established, then....the question is a question of law for the judges to decide."12. The three exempting notifications adumbrated above are an exercise of delegated legislation and there is no gain saying the fact that the final interpretation of the notifications and the application thereof to the facts of a particular case would belong to the courts by way of judicial review. However, what we find in the present petition is that the petitioner has come too early to this Court; to wit, post-haste after the show cause notices were received by it, without even caring to reply to the same. What the petitioner should have done, in the words of the Supreme Court in (Pooran Mal v. Director of Inspection (Investigation) of Income-tax, New Delhi and others)9, A.I.R. 1974 S.C. 348, is "to tell the true facts to the officer" and it will then be for that officer to ascertain the true nature of the transactions.1 3. The petitioner has not been able to canvass at the Bar that the show cause notices ex facie or read in the context of the other plethora of admitted facts point out to one and only one conclusion, namely, that the petitioner has been granted a right to avail of or not to avail of the exemption granted by the earlier notifications and hence the show cause notices should be quashed. The matter will have to be gone into in depth; the details of the goods manufactured, the correspondence entered into by the petitioner with the Government and the Collectorate, the practice of issuing exemption under section 25(l) of the Customs Act and the propriety of conferring an option by delegated legislation on an assessee to elect between two rates of taxes needs a detailed examination. Writ jurisdiction would hardly be a substitute for the hierarchial statutory remedies provided in the Act-more so when there is not even a first determination about the liability of the petitioner by the officer in the lowest category. If the petitioner is allowed to invoke the writ jurisdiction in such a case, will not another competitor seek a writ of mandamus against the Revenue-as was done in (Inland Revenue Commissioners v. National Federation of Self employed and Small Business Ltd.)10, (1982) A.C. 617-alleging that- Revenue is granting a sort of concession to Garwares by allowing them to choose between a higher and a lower rate of taxation They may argue that this in effect is no election at all as any man of business will choose to pay a lesser tax. As observed by the Supreme Court in Dunlops case (supra), allowing the present writ petition would be short circuiting the procedure established by law, namely, that of statutory appeals. Nor is the petitioner able to show that an extraordinary situation has presented itself in this particular case or what the officers of the Collectorate have done by issuing the show cause notices is in breach of , "a fundamental principle of justice" or "contrary to the general law of the land" as observed in Norths case, (supra).14. A collateral attack was made on the letter dated 19-11-1983 by which the Under Secretary in the Department of Revenue had, after referring to its communication dated 7th July, 1983, informed the petitioner that-it should contact the concerned Collector of Central Excise in the matter to whom the necessary instructions have been issued". This phrase of instruction has been made a peg on which to hang an argument that the Collectorate have been given some secret supervening instructions to decide the matter in a particular way. This insinuation has been stoutly denied by the Revenue. It is true that the nucleus of an administrative structure like the Central Excise will be a planning and controlling body like the Central Board of Direct Taxes for the Income-tax Department and Central Board of Excise and Customs for the indirect taxes, who, on a periodical review of the situation, would issue instructions to thousands of officers spread all over the length and breadth of India in the matter of execution of their duties in the best possible manner. The petitioner has not been able to show that any secret instructions were given to the concerned officials, but we would leave this question open to be reagitated before the concerned officer.15. It was also urged at the Bar that the classification of the goods was made by the Assistant Collector on 2nd August, 1983 and that if the same person hears the case being the subject-matter of the two show cause notices, it would be an infraction of the principle of natural justice as it is likely that he may be biased against the petitioner. We were also informed that the said Assistant Collector has since been transferred and that the proceedings would not be heard by him. Hence this argument does not avail Counsel.
### Response:
0
### Explanation:
12. The three exempting notifications adumbrated above are an exercise of delegated legislation and there is no gain saying the fact that the final interpretation of the notifications and the application thereof to the facts of a particular case would belong to the courts by way of judicial review. However, what we find in the present petition is that the petitioner has come too early to this Court; to wit,after the show cause notices were received by it, without even caring to reply to the same. What the petitioner should have done, in the words of the Supreme Court in (Pooran Mal v. Director of Inspection (Investigation) ofNew Delhi and others)9, A.I.R. 1974 S.C. 348, is "to tell the true facts to the officer" and it will then be for that officer to ascertain the true nature of the transactions.1 3. The petitioner has not been able to canvass at the Bar that the show cause notices ex facie or read in the context of the other plethora of admitted facts point out to one and only one conclusion, namely, that the petitioner has been granted a right to avail of or not to avail of the exemption granted by the earlier notifications and hence the show cause notices should be quashed. The matter will have to be gone into in depth; the details of the goods manufactured, the correspondence entered into by the petitioner with the Government and the Collectorate, the practice of issuing exemption under section 25(l) of the Customs Act and the propriety of conferring an option by delegated legislation on an assessee to elect between two rates of taxes needs a detailed examination. Writ jurisdiction would hardly be a substitute for the hierarchial statutory remedies provided in theso when there is not even a first determination about the liability of the petitioner by the officer in the lowest category. If the petitioner is allowed to invoke the writ jurisdiction in such a case, will not another competitor seek a writ of mandamus against thewas done in (Inland Revenue Commissioners v. National Federation of Self employed and Small Business Ltd.)10, (1982) A.C.ue is granting a sort of concession to Garwares by allowing them to choose between a higher and a lower rate of taxation They may argue that this in effect is no election at all as any man of business will choose to pay a lesser tax. As observed by the Supreme Court in Dunlops case (supra), allowing the present writ petition would be short circuiting the procedure established by law, namely, that of statutory appeals. Nor is the petitioner able to show that an extraordinary situation has presented itself in this particular case or what the officers of the Collectorate have done by issuing the show cause notices is in breach of , "a fundamental principle of justice" or "contrary to the general law of the land" as observed in Norths case, (supra).14. A collateral attack was made on the letter datedby which the Under Secretary in the Department of Revenue had, after referring to its communication dated 7th July, 1983, informed the petitionershould contact the concerned Collector of Central Excise in the matter to whom the necessary instructions have been issued". This phrase of instruction has been made a peg on which to hang an argument that the Collectorate have been given some secret supervening instructions to decide the matter in a particular way. This insinuation has been stoutly denied by the Revenue. It is true that the nucleus of an administrative structure like the Central Excise will be a planning and controlling body like the Central Board of Direct Taxes for theDepartment and Central Board of Excise and Customs for the indirect taxes, who, on a periodical review of the situation, would issue instructions to thousands of officers spread all over the length and breadth of India in the matter of execution of their duties in the best possible manner. The petitioner has not been able to show that any secret instructions were given to the concerned officials, but we would leave this question open to be reagitated before the concerned officer.15. It was also urged at the Bar that the classification of the goods was made by the Assistant Collector on 2nd August, 1983 and that if the same person hears the case being theof the two show cause notices, it would be an infraction of the principle of natural justice as it is likely that he may be biased against the petitioner. We were also informed that the said Assistant Collector has since been transferred and that the proceedings would not be heard by him. Hence this argument does not avail Counsel.
|
MEENAL BHARGAVA Vs. NAVEEN SHARMA | Court Bench kept on insisting the appellant to join the company of the respondent along with Pranav and on her refusal to do so, the High Court has taken the view that appellant has shown strong defiance to the orders of the Court. In the process, the High Court has not even cared to examine who was at fault insofar as adherence to the consent order is concerned. She also submitted that the High Court took into consideration another extraneous factor. It has noted in the impugned judgment that statement was given in the Court by the father of the appellant that the application for recall of order dated May 9, 2017 passed in petition filed by the respondent under Section 482 Cr.P.C., was moved by the counsel for the appellant without her instructions. That, however, was found to be false assertion inasmuch as the High Court called for the record of that case and found that each page of the application was signed by the appellant and on realising this, it was conceded that lawyer was instructed to make such an application. It was contended by the learned senior counsel that even if this was correct, it has no bearing insofar as the contempt case is concerned.17.Mr. Jauhar, learned counsel appearing for the respondent, on the other hand, put entire blame upon the appellant who, according to him, took summersault with intention to commit breach of settlement terms as there was change of heart and she decided not to join the company of the husband. He took pains to demonstrate that respondent had took all the necessary steps in terms of the settlement. He still wanted the appellant to resume matrimonial alliance for the sake of saving the family ties and also to enable Pranav be in the company of both the parents.18.We have duly considered the submissions of counsel for both the parties. As noted in detail above, both the parties are blaming each other for the failure of settlement terms. In this backdrop, we have gone through the impugned order passed by the High Court. In the entire judgment, the High Court has not adverted to the important aspect that needed attention in such a case, namely, whether it was the appellant who was responsible for not adhering to the terms of the consent order and thereby violated the directions issued by the High Court in in its orders dated May 09, 2017. After all, the respondent had filed the contempt petition attributing breach of the directions on the part of the appellant. In reply, the appellant had taken up the stand that she was not responsible for the happenings and squarely blamed the respondent therefor. The High Court has not discussed these aspects. On the contrary, the approach of the High Court was to insist the appellant to adhere to the settlement terms even at that stage and on her refusing to do so it arrived at a finding that she had committed the contempt of the court?s order as the aforesaid conduct was found to be abhorrent. It is, thus, the stubborn attitude shown by the appellant during the hearing of the contempt petition which has weighed by the High Court. That, according to us, was not the correct approach for punishing the appellant for contempt of court. The contempt petition was filed by the respondent alleging that the appellant had not fulfilled her obligations under the consent terms and the directions given by the High court in this behalf. It was, thus, necessary for the High Court to discuss and consider, in the first instance, as to whether these allegations of the respondent were correct.19.There is another way of looking into the matter. The consent terms on which the parties settled the matter contained an important part of agreement, namely, both the parties decided to live together again. This happened in the proceedings which essentially related to the custody of child. No doubt, when the parties agreed to resume the matrimonial relations and decided to live again as husband and wife, the problem of custody of Pranav got automatically solved thereby as it brought about an ideal situation where Pranav could have the company of his both the parents. Unfortunately, this did not materialise. In a case like this whether the High Court could force the appellant to join the company of the respondent and live with him, if he had decided for certain reasons not to do so? Even when a decree of conjugal rights is filed by a competent court of law in favour of one of the spouses, such a decree cannot be executed and the other spouse who is directed to resume the conjugal relations, cannot be forced to do so. It is a different matter that for not obeying such a decree, other consequence follow including right to the decree holder to seek divorce. When that is the position even in respect of a decree passed by competent court of law forcing the appellant to join the company of the respondent and on her failing to do so punishing her in committing contempt of the court?s order, that too by awarding maximum civil imprisonment in law cannot be countenanced. In a matter like this, the focus of the High Court should have been on the custody of the child, which was a subject matter of the Habeas Corpus petition. However, as far as that aspect is concerned, the High Court simply stated that it would be open to the respondent to execute the order of the Canadian Court dated April 16, 2015. Here again the High Court has fallen into error. In fact, in a matter like this, the High Court should have restored the Habeas Corpus Petition and decided the same on merits. However, when application for this purpose was filed by the respondent, instead of doing so the High Court passed the orders dated October 05, 2017 giving liberty to the respondent to file the contempt petition. | 1[ds]18.We have duly considered the submissions of counsel for both the parties. As noted in detail above, both the parties are blaming each other for the failure of settlement terms. In this backdrop, we have gone through the impugned order passed by the High Court. In the entire judgment, the High Court has not adverted to the important aspect that needed attention in such a case, namely, whether it was the appellant who was responsible for not adhering to the terms of the consent order and thereby violated the directions issued by the High Court in in its orders dated May 09, 2017. After all, the respondent had filed the contempt petition attributing breach of the directions on the part of the appellant. In reply, the appellant had taken up the stand that she was not responsible for the happenings and squarely blamed the respondent therefor. The High Court has not discussed these aspects. On the contrary, the approach of the High Court was to insist the appellant to adhere to the settlement terms even at that stage and on her refusing to do so it arrived at a finding that she had committed the contempt of the court?s order as the aforesaid conduct was found to be abhorrent. It is, thus, the stubborn attitude shown by the appellant during the hearing of the contempt petition which has weighed by the High Court. That, according to us, was not the correct approach for punishing the appellant for contempt of court. The contempt petition was filed by the respondent alleging that the appellant had not fulfilled her obligations under the consent terms and the directions given by the High court in this behalf. It was, thus, necessary for the High Court to discuss and consider, in the first instance, as to whether these allegations of the respondent were correct.when a decree of conjugal rights is filed by a competent court of law in favour of one of the spouses, such a decree cannot be executed and the other spouse who is directed to resume the conjugal relations, cannot be forced to do so. It is a different matter that for not obeying such a decree, other consequence follow including right to the decree holder to seek divorce. When that is the position even in respect of a decree passed by competent court of law forcing the appellant to join the company of the respondent and on her failing to do so punishing her in committing contempt of the court?s order, that too by awarding maximum civil imprisonment in law cannot be countenanced. In a matter like this, the focus of the High Court should have been on the custody of the child, which was a subject matter of the Habeas Corpus petition. However, as far as that aspect is concerned, the High Court simply stated that it would be open to the respondent to execute the order of the Canadian Court dated April 16, 2015. Here again the High Court has fallen into error. In fact, in a matter like this, the High Court should have restored the Habeas Corpus Petition and decided the same on merits. However, when application for this purpose was filed by the respondent, instead of doing so the High Court passed the orders dated October 05, 2017 giving liberty to the respondent to file the contempt petition. | 1 | 3,993 | 622 | ### 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:
Court Bench kept on insisting the appellant to join the company of the respondent along with Pranav and on her refusal to do so, the High Court has taken the view that appellant has shown strong defiance to the orders of the Court. In the process, the High Court has not even cared to examine who was at fault insofar as adherence to the consent order is concerned. She also submitted that the High Court took into consideration another extraneous factor. It has noted in the impugned judgment that statement was given in the Court by the father of the appellant that the application for recall of order dated May 9, 2017 passed in petition filed by the respondent under Section 482 Cr.P.C., was moved by the counsel for the appellant without her instructions. That, however, was found to be false assertion inasmuch as the High Court called for the record of that case and found that each page of the application was signed by the appellant and on realising this, it was conceded that lawyer was instructed to make such an application. It was contended by the learned senior counsel that even if this was correct, it has no bearing insofar as the contempt case is concerned.17.Mr. Jauhar, learned counsel appearing for the respondent, on the other hand, put entire blame upon the appellant who, according to him, took summersault with intention to commit breach of settlement terms as there was change of heart and she decided not to join the company of the husband. He took pains to demonstrate that respondent had took all the necessary steps in terms of the settlement. He still wanted the appellant to resume matrimonial alliance for the sake of saving the family ties and also to enable Pranav be in the company of both the parents.18.We have duly considered the submissions of counsel for both the parties. As noted in detail above, both the parties are blaming each other for the failure of settlement terms. In this backdrop, we have gone through the impugned order passed by the High Court. In the entire judgment, the High Court has not adverted to the important aspect that needed attention in such a case, namely, whether it was the appellant who was responsible for not adhering to the terms of the consent order and thereby violated the directions issued by the High Court in in its orders dated May 09, 2017. After all, the respondent had filed the contempt petition attributing breach of the directions on the part of the appellant. In reply, the appellant had taken up the stand that she was not responsible for the happenings and squarely blamed the respondent therefor. The High Court has not discussed these aspects. On the contrary, the approach of the High Court was to insist the appellant to adhere to the settlement terms even at that stage and on her refusing to do so it arrived at a finding that she had committed the contempt of the court?s order as the aforesaid conduct was found to be abhorrent. It is, thus, the stubborn attitude shown by the appellant during the hearing of the contempt petition which has weighed by the High Court. That, according to us, was not the correct approach for punishing the appellant for contempt of court. The contempt petition was filed by the respondent alleging that the appellant had not fulfilled her obligations under the consent terms and the directions given by the High court in this behalf. It was, thus, necessary for the High Court to discuss and consider, in the first instance, as to whether these allegations of the respondent were correct.19.There is another way of looking into the matter. The consent terms on which the parties settled the matter contained an important part of agreement, namely, both the parties decided to live together again. This happened in the proceedings which essentially related to the custody of child. No doubt, when the parties agreed to resume the matrimonial relations and decided to live again as husband and wife, the problem of custody of Pranav got automatically solved thereby as it brought about an ideal situation where Pranav could have the company of his both the parents. Unfortunately, this did not materialise. In a case like this whether the High Court could force the appellant to join the company of the respondent and live with him, if he had decided for certain reasons not to do so? Even when a decree of conjugal rights is filed by a competent court of law in favour of one of the spouses, such a decree cannot be executed and the other spouse who is directed to resume the conjugal relations, cannot be forced to do so. It is a different matter that for not obeying such a decree, other consequence follow including right to the decree holder to seek divorce. When that is the position even in respect of a decree passed by competent court of law forcing the appellant to join the company of the respondent and on her failing to do so punishing her in committing contempt of the court?s order, that too by awarding maximum civil imprisonment in law cannot be countenanced. In a matter like this, the focus of the High Court should have been on the custody of the child, which was a subject matter of the Habeas Corpus petition. However, as far as that aspect is concerned, the High Court simply stated that it would be open to the respondent to execute the order of the Canadian Court dated April 16, 2015. Here again the High Court has fallen into error. In fact, in a matter like this, the High Court should have restored the Habeas Corpus Petition and decided the same on merits. However, when application for this purpose was filed by the respondent, instead of doing so the High Court passed the orders dated October 05, 2017 giving liberty to the respondent to file the contempt petition.
### Response:
1
### Explanation:
18.We have duly considered the submissions of counsel for both the parties. As noted in detail above, both the parties are blaming each other for the failure of settlement terms. In this backdrop, we have gone through the impugned order passed by the High Court. In the entire judgment, the High Court has not adverted to the important aspect that needed attention in such a case, namely, whether it was the appellant who was responsible for not adhering to the terms of the consent order and thereby violated the directions issued by the High Court in in its orders dated May 09, 2017. After all, the respondent had filed the contempt petition attributing breach of the directions on the part of the appellant. In reply, the appellant had taken up the stand that she was not responsible for the happenings and squarely blamed the respondent therefor. The High Court has not discussed these aspects. On the contrary, the approach of the High Court was to insist the appellant to adhere to the settlement terms even at that stage and on her refusing to do so it arrived at a finding that she had committed the contempt of the court?s order as the aforesaid conduct was found to be abhorrent. It is, thus, the stubborn attitude shown by the appellant during the hearing of the contempt petition which has weighed by the High Court. That, according to us, was not the correct approach for punishing the appellant for contempt of court. The contempt petition was filed by the respondent alleging that the appellant had not fulfilled her obligations under the consent terms and the directions given by the High court in this behalf. It was, thus, necessary for the High Court to discuss and consider, in the first instance, as to whether these allegations of the respondent were correct.when a decree of conjugal rights is filed by a competent court of law in favour of one of the spouses, such a decree cannot be executed and the other spouse who is directed to resume the conjugal relations, cannot be forced to do so. It is a different matter that for not obeying such a decree, other consequence follow including right to the decree holder to seek divorce. When that is the position even in respect of a decree passed by competent court of law forcing the appellant to join the company of the respondent and on her failing to do so punishing her in committing contempt of the court?s order, that too by awarding maximum civil imprisonment in law cannot be countenanced. In a matter like this, the focus of the High Court should have been on the custody of the child, which was a subject matter of the Habeas Corpus petition. However, as far as that aspect is concerned, the High Court simply stated that it would be open to the respondent to execute the order of the Canadian Court dated April 16, 2015. Here again the High Court has fallen into error. In fact, in a matter like this, the High Court should have restored the Habeas Corpus Petition and decided the same on merits. However, when application for this purpose was filed by the respondent, instead of doing so the High Court passed the orders dated October 05, 2017 giving liberty to the respondent to file the contempt petition.
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Konappa Rudrappa Nadgouda Vs. Vishwanath Reddy & Anr | to Hudsons Building and Engineering Contracts. In one passage, Hudson regarded such a clause as in the nature of a repair clause. But Hudson was not dealing with the law of election when he was discussing a clause such as we have in this case. We have to interpret this clause in the context of election law. Now the contract must be said to subsist if a portion of it is required to be performed at any time, because so long as the contract has not been discharged, by full performance, it must be taken to subsist. Mr. Narasaraju contends that the phrase "contract for the execution of the work" shows that it is the execution of the original work which is contemplated and not any condition of guarantee for repair. In our opinion, this argument, however ingenious, is not acceptable because a similar point arose in the case to which we referred earlier. In Chaturbhuj Vithaldas Jasanis case 1954 SCR 817 = (AIR 1954 SC 236 ) (cit. sup.), Bose, J., dealt with a similar point in the following words:"It was argued that assuming that to be the case, then there were no longer any contracts for the "supply of goods" in existence but only an obligation arising under "the guarantee clause". We are unable to accept such a narrow construction. This term of the contract, whatever the parties may have chosen to call it, was a term in a contract for the supply of goods. When a contract consists of a number of terms and conditions each condition does not form a separate contract but is an item in the one contract of which it is a part. The consideration for each condition in a case like this is the consideration for the contract taken as a whole. It is not split up into several considerations apportioned between each term separately. But quite apart from that, the obligation, even under this term, was to supply fresh stocks for these three depots in exchange for the stocks which were returned and so even when regarded from that narrow angle it would be a contract for the supply of goods. It is true they are replacements but a contract to replace goods is still one for the supply of the goods which are sent as replacements."Applying these observations in the context of construction of buildings and roads, it is obvious that if some part is found defective and has to be done again, the contract of execution as such is still to be fully performed. It is possible to describe the action taken as one to repair the defect, but in essence it is a part of the contract of execution, because no execution can be said to be proper or complete till it is properly executed. Taking the fact that some portion of the original contracts remained to be performed with the fact that under the contracts the contractor was required not only to complete the original work but to repair defects or re-do something which he had not properly done, we think this matter must fall within Section 9A of the Representation of the People Act.This is not a case like the supply of a refrigerator which after giving service for some time goes out of order and something has to be done to replace a part which is defective. The analogy is not quite apposite. Here the building was completed very recently and the flooring had to be re-done and various other things were left unfinished and these had to be completed by the contractor. Similarly in relation to the road, although the surface was prepared and the road was in actual use, under the contract, mile and hectometer stones had to be fixed and certain other stones fixed at curves and boundaries. This was not done. The two contracts therefore were not fully performed and under clause 20 of the agreement, it was incumbent upon the contractor to complete this part of his obligation. In our opinion, the High Court was in error in holding that the contracts had been fully performed and therefore Section 9A did not apply.13. Mr. Narasaraju raises three legal points. The first is that under Article 299, the contract had to be signed by the Secretary to the Government whereas the contract was signed by the Executive Engineer. This point was also considered in Jasanis case, 1954 SCR 817 = (AIR 1954 SC 236 ) (cit sup.) and it was held that it did not go to save the bar of the election law to the candidature. Next it is argued that the section is applicable to a person whereas the contract was with a firm and therefore the first respondent was not barred from standing for the election. In our opinion, the High Court has taken the right view of the matter.The law requires that a candidate should not have any interest in any contract with Government and even a partner has an interest sufficient to attract the provisions of Section 9A. Lastly it is argued that the partnership itself had been dissolved. That would have no effect upon the relations between the first respondent and the Government. The first respondent could not by a private dissolution of the partnership escape his liability under the contract to the Government, and there was here no novation, because notice of the dissolution was not given to Government and the Government had not accepted Hampanna to whom the business was transferred in place of the firm. We view the transfer of the entire contracts to Hampanna with some suspicion.It appears that on the eve of the election, the first respondent who wished to contest the seat from Yadagiri, hurried through his contracts, manage to get a completion certificate which was not quite accurate, dissolved the partnership with a view to clear himself from all connections with the contracts so that he could stand for the election. In this effort, he has distinctly failed. | 1[ds]8. Now it is agreed on both sides that Items 1-7 were duly completed. The dispute is with regard to Items 8 to 12. Nomination to the Assembly had to be filed on 20th January, 1967 at the latest. 21st January was fixed for scrutiny of the nomination papers and the election was to follow in the month of February. On 18th January, 1967, the first respondent obtained a certificate (Ex. P-1) that his contracts had been fully performed. He approached the Executive Engineer on the 19th. The Executive Engineer was busy throughout the day. The respondent therefore asked his Personal Assistant (who incidentally is a gazetted officer of the rank of an Assistant Engineer) to give him the necessary certificate. The Personal Assistant telephoned to the Assistant Engineers in charge and on their statement that the work had been physically completed, he granted the certificates to that effect. It appears that the election petitioner was also busy in his turn. He obtained cancellation of these certificates from the Executive Engineer on the following day. The Executive Engineer asked the Assistant Engineers to state whether the work had been completed and the Assistant Engineers thereupon gave the certificate that Items 8-12 of the first contract were not complete. We have so far described the contract dealing with thePersonal Assistant explained that he had issued the certificates because they were urgently required for election purposes and because the Assistant Engineer under whose supervision the construction of the road was taking place had reported completion of the work. The Executive Engineer, however, verified this again from the Assistant Engineer and found that Item 8-12 remained to be completed. Mr. Narasaraju complains of the conduct of the Executive Engineer by saying that he did not visit the spot to see for himself whether the completion had been made or not. He states that in Ex. P-11 in which the completion was reported on 18th January, 1967, there in no mention of Items 8-12 and it is different in language from Ex. C-1 in which Items 8-12 are shown not to have been completed. We do not think that anything turns on that. The Officers of the Public Works Department have come to the witness box and have maintained that these items were in fact not completed before the election took place. We are satisfied that although the construction of the road was complete, the additional items which are described as "miscellaneous" in the contract still remained to be completed. What bearing this will have upon the election of the first respondent is something which we shall consider after we have analysed the evidence with regard to the hospital.In both the contracts, there was a condition that for a period of three months in one and for a period of one year in the other, the contractor would make due repairs to all the defective parts in the execution of the contract. The question is whether the contract can be said to be subsisting in view of this clause. Both sides referred us to Hudsons Building and Engineering Contracts. In one passage, Hudson regarded such a clause as in the nature of a repair clause. But Hudson was not dealing with the law of election when he was discussing a clause such as we have in this case. We have to interpret this clause in the context of election law. Now the contract must be said to subsist if a portion of it is required to be performed at any time, because so long as the contract has not been discharged, by full performance, it must be taken to subsist. Mr. Narasaraju contends that the phrase "contract for the execution of the work" shows that it is the execution of the original work which is contemplated and not any condition of guarantee for repair. In our opinion, this argument, however ingenious, is not acceptable because a similar point arose in the case to which we referredthese observations in the context of construction of buildings and roads, it is obvious that if some part is found defective and has to be done again, the contract of execution as such is still to be fully performed. It is possible to describe the action taken as one to repair the defect, but in essence it is a part of the contract of execution, because no execution can be said to be proper or complete till it is properly executed. Taking the fact that some portion of the original contracts remained to be performed with the fact that under the contracts the contractor was required not only to complete the original work but to repair defects or re-do something which he had not properly done, we think this matter must fall within Section 9A of the Representation of the People Act.This is not a case like the supply of a refrigerator which after giving service for some time goes out of order and something has to be done to replace a part which is defective. The analogy is not quite apposite. Here the building was completed very recently and the flooring had to be re-done and various other things were left unfinished and these had to be completed by the contractor. Similarly in relation to the road, although the surface was prepared and the road was in actual use, under the contract, mile and hectometer stones had to be fixed and certain other stones fixed at curves and boundaries. This was not done. The two contracts therefore were not fully performed and under clause 20 of the agreement, it was incumbent upon the contractor to complete this part of his obligation. In our opinion, the High Court was in error in holding that the contracts had been fully performed and therefore Section 9A did not apply. | 1 | 4,107 | 1,048 | ### 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:
to Hudsons Building and Engineering Contracts. In one passage, Hudson regarded such a clause as in the nature of a repair clause. But Hudson was not dealing with the law of election when he was discussing a clause such as we have in this case. We have to interpret this clause in the context of election law. Now the contract must be said to subsist if a portion of it is required to be performed at any time, because so long as the contract has not been discharged, by full performance, it must be taken to subsist. Mr. Narasaraju contends that the phrase "contract for the execution of the work" shows that it is the execution of the original work which is contemplated and not any condition of guarantee for repair. In our opinion, this argument, however ingenious, is not acceptable because a similar point arose in the case to which we referred earlier. In Chaturbhuj Vithaldas Jasanis case 1954 SCR 817 = (AIR 1954 SC 236 ) (cit. sup.), Bose, J., dealt with a similar point in the following words:"It was argued that assuming that to be the case, then there were no longer any contracts for the "supply of goods" in existence but only an obligation arising under "the guarantee clause". We are unable to accept such a narrow construction. This term of the contract, whatever the parties may have chosen to call it, was a term in a contract for the supply of goods. When a contract consists of a number of terms and conditions each condition does not form a separate contract but is an item in the one contract of which it is a part. The consideration for each condition in a case like this is the consideration for the contract taken as a whole. It is not split up into several considerations apportioned between each term separately. But quite apart from that, the obligation, even under this term, was to supply fresh stocks for these three depots in exchange for the stocks which were returned and so even when regarded from that narrow angle it would be a contract for the supply of goods. It is true they are replacements but a contract to replace goods is still one for the supply of the goods which are sent as replacements."Applying these observations in the context of construction of buildings and roads, it is obvious that if some part is found defective and has to be done again, the contract of execution as such is still to be fully performed. It is possible to describe the action taken as one to repair the defect, but in essence it is a part of the contract of execution, because no execution can be said to be proper or complete till it is properly executed. Taking the fact that some portion of the original contracts remained to be performed with the fact that under the contracts the contractor was required not only to complete the original work but to repair defects or re-do something which he had not properly done, we think this matter must fall within Section 9A of the Representation of the People Act.This is not a case like the supply of a refrigerator which after giving service for some time goes out of order and something has to be done to replace a part which is defective. The analogy is not quite apposite. Here the building was completed very recently and the flooring had to be re-done and various other things were left unfinished and these had to be completed by the contractor. Similarly in relation to the road, although the surface was prepared and the road was in actual use, under the contract, mile and hectometer stones had to be fixed and certain other stones fixed at curves and boundaries. This was not done. The two contracts therefore were not fully performed and under clause 20 of the agreement, it was incumbent upon the contractor to complete this part of his obligation. In our opinion, the High Court was in error in holding that the contracts had been fully performed and therefore Section 9A did not apply.13. Mr. Narasaraju raises three legal points. The first is that under Article 299, the contract had to be signed by the Secretary to the Government whereas the contract was signed by the Executive Engineer. This point was also considered in Jasanis case, 1954 SCR 817 = (AIR 1954 SC 236 ) (cit sup.) and it was held that it did not go to save the bar of the election law to the candidature. Next it is argued that the section is applicable to a person whereas the contract was with a firm and therefore the first respondent was not barred from standing for the election. In our opinion, the High Court has taken the right view of the matter.The law requires that a candidate should not have any interest in any contract with Government and even a partner has an interest sufficient to attract the provisions of Section 9A. Lastly it is argued that the partnership itself had been dissolved. That would have no effect upon the relations between the first respondent and the Government. The first respondent could not by a private dissolution of the partnership escape his liability under the contract to the Government, and there was here no novation, because notice of the dissolution was not given to Government and the Government had not accepted Hampanna to whom the business was transferred in place of the firm. We view the transfer of the entire contracts to Hampanna with some suspicion.It appears that on the eve of the election, the first respondent who wished to contest the seat from Yadagiri, hurried through his contracts, manage to get a completion certificate which was not quite accurate, dissolved the partnership with a view to clear himself from all connections with the contracts so that he could stand for the election. In this effort, he has distinctly failed.
### Response:
1
### Explanation:
8. Now it is agreed on both sides that Items 1-7 were duly completed. The dispute is with regard to Items 8 to 12. Nomination to the Assembly had to be filed on 20th January, 1967 at the latest. 21st January was fixed for scrutiny of the nomination papers and the election was to follow in the month of February. On 18th January, 1967, the first respondent obtained a certificate (Ex. P-1) that his contracts had been fully performed. He approached the Executive Engineer on the 19th. The Executive Engineer was busy throughout the day. The respondent therefore asked his Personal Assistant (who incidentally is a gazetted officer of the rank of an Assistant Engineer) to give him the necessary certificate. The Personal Assistant telephoned to the Assistant Engineers in charge and on their statement that the work had been physically completed, he granted the certificates to that effect. It appears that the election petitioner was also busy in his turn. He obtained cancellation of these certificates from the Executive Engineer on the following day. The Executive Engineer asked the Assistant Engineers to state whether the work had been completed and the Assistant Engineers thereupon gave the certificate that Items 8-12 of the first contract were not complete. We have so far described the contract dealing with thePersonal Assistant explained that he had issued the certificates because they were urgently required for election purposes and because the Assistant Engineer under whose supervision the construction of the road was taking place had reported completion of the work. The Executive Engineer, however, verified this again from the Assistant Engineer and found that Item 8-12 remained to be completed. Mr. Narasaraju complains of the conduct of the Executive Engineer by saying that he did not visit the spot to see for himself whether the completion had been made or not. He states that in Ex. P-11 in which the completion was reported on 18th January, 1967, there in no mention of Items 8-12 and it is different in language from Ex. C-1 in which Items 8-12 are shown not to have been completed. We do not think that anything turns on that. The Officers of the Public Works Department have come to the witness box and have maintained that these items were in fact not completed before the election took place. We are satisfied that although the construction of the road was complete, the additional items which are described as "miscellaneous" in the contract still remained to be completed. What bearing this will have upon the election of the first respondent is something which we shall consider after we have analysed the evidence with regard to the hospital.In both the contracts, there was a condition that for a period of three months in one and for a period of one year in the other, the contractor would make due repairs to all the defective parts in the execution of the contract. The question is whether the contract can be said to be subsisting in view of this clause. Both sides referred us to Hudsons Building and Engineering Contracts. In one passage, Hudson regarded such a clause as in the nature of a repair clause. But Hudson was not dealing with the law of election when he was discussing a clause such as we have in this case. We have to interpret this clause in the context of election law. Now the contract must be said to subsist if a portion of it is required to be performed at any time, because so long as the contract has not been discharged, by full performance, it must be taken to subsist. Mr. Narasaraju contends that the phrase "contract for the execution of the work" shows that it is the execution of the original work which is contemplated and not any condition of guarantee for repair. In our opinion, this argument, however ingenious, is not acceptable because a similar point arose in the case to which we referredthese observations in the context of construction of buildings and roads, it is obvious that if some part is found defective and has to be done again, the contract of execution as such is still to be fully performed. It is possible to describe the action taken as one to repair the defect, but in essence it is a part of the contract of execution, because no execution can be said to be proper or complete till it is properly executed. Taking the fact that some portion of the original contracts remained to be performed with the fact that under the contracts the contractor was required not only to complete the original work but to repair defects or re-do something which he had not properly done, we think this matter must fall within Section 9A of the Representation of the People Act.This is not a case like the supply of a refrigerator which after giving service for some time goes out of order and something has to be done to replace a part which is defective. The analogy is not quite apposite. Here the building was completed very recently and the flooring had to be re-done and various other things were left unfinished and these had to be completed by the contractor. Similarly in relation to the road, although the surface was prepared and the road was in actual use, under the contract, mile and hectometer stones had to be fixed and certain other stones fixed at curves and boundaries. This was not done. The two contracts therefore were not fully performed and under clause 20 of the agreement, it was incumbent upon the contractor to complete this part of his obligation. In our opinion, the High Court was in error in holding that the contracts had been fully performed and therefore Section 9A did not apply.
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Chintpurni Medical College and Hospital & Anr Vs. Union of India & Anr | students against requirement of 565. Ancillary facilities are inadequate as detailed in the report. XXI. Interns Hostel: Available accommodation is for 42 Interns against requirement of 150. XXII. Residents Hostel: Total 40 rooms are available against requirement of 85. They are partially furnished. Deficiency remains as it is. XXIII. Residential Quarters: Only 5 quarters are available for faculty against requirement of 26. NIL quarters are available for Non-teaching staff. 9. The Medical Council of India recommended to the Central Government that the first Appellant-College should be debarred for two years i.e. 2017-2018 and 2018-2019 from admitting students and to encash the bank guarantee furnished. A decision was also taken not to consider the first Appellant for processing applications for Postgraduate courses for the academic year 2017-2018. There was also a recommendation to initiate proceedings for withdrawal of the recognition of the courses pursuant to which a show cause notice was given to the college on 24.03.2017. The first Respondent accepted the recommendations of the Medical Council of India and debarred the first Appellant-College from making admissions to MBBS course for the academic years 2017-2018 and 2018-2019. The first Respondent also permitted the Medical Council of India to encash the bank guarantee. 10. Pursuant to a direction given by this Court by its order dated 01.08.2017 the status of ratification of deficiencies in the first Appellant-College was reconsidered and a decision was taken by the Executive Committee of the Medical Council of India not to recognise/approve the first Appellant-College for the award of MBBS degree granted by Baba Farid University of Health Sciences. 11. In the meanwhile, students who were admitted in the first Appellant-College during the years 2011-2012, 2014- 2015 and 2016-2017 were shifted to other colleges. 12. Thereafter, the first Appellant requested the Medical Council of India to permit admission of 150 students in the MBBS course for the academic year 2019-2020. The Medical Council of India rejected the request of the first AppellantCollege. According to the Medical Council of India, the conditional recognition granted to the first Appellant-College has become invalid in view of the failure of the first Appellant-College to comply with the conditions stipulated therein. It was mentioned in the letter dated 21.05.2019 that proceedings pursuant to the show cause notice dated 24.03.2017 are underway. The first Appellant-College was advised to make an application/scheme under Section 10 (A) of the Indian Medical Council Act, 1956 for grant of permission to admit students for the academic year 2020- 2021. Aggrieved by the order dated 21.05.2019, the Appellant filed a Writ Petition in the High Court of Delhi which was dismissed. 13. The High Court held that there is no merit in the contention of the Appellants that admissions for the academic year 2019-2020 should be considered without any further inspection as the debarment by the notification dated 26.09.2016 was only for a period of two years. As the relief claimed by the Appellants for the year 2019-2020 cannot be granted, the High Court rightly considered whether any relief can be granted to the Appellants for the academic year 2020-2021. The High Court took note of the fact that there are admittedly no students in the first Appellant-College as those admitted for the academic years 2011-2012, 2014- 2015 and 2016-2017 have been shifted to the other colleges. The request made by the Appellants that there should be a direction for inspection was refused by the High Court as the last date for granting permission for the academic year 2020- 2021 was 31.08.2020. As the recognition of the college has not been cancelled, the Appellants were given liberty to make an application for renewal of recognition. 14. We have heard Mr. Dhruv Mehta, learned Senior Counsel for the Appellant, Ms. Aishwarya Bhati, learned Additional Solicitor General for the first Respondent and Mr. T. Singhdev learned counsel for the second Respondent. The contention of the Appellants that the ban for admitting students imposed by the first Respondent on 26.09.2016 is only for a period of two years i.e. 2017-2018 and 2018-2019 was rightly rejected by the High Court on the ground that they were not entitled to make admissions for the academic years 2019-2020 and 2020-2021 without any inspection. Reliance placed by the Appellants on the order dated 10.05.2018 passed by this Court in Writ Petition (C) No.423 of 2017 is misplaced. In the said Writ Petition, request of the Appellants that they should be permitted to make admission for the years 2017-2018 and 2018-2019 was rejected. While dismissing the Writ Petition, an observation was made that the Appellants would be entitled to pursue their request for permission for the academic years 2019-2020 and 2020- 2021. It does not mean that the Appellants are entitled to admit students for the academic year 2019-2020 without an inspection. A bare look of the inspections conducted from the years 2011-2012 makes it clear that the Appellants have not utilized the opportunities given to them to rectify the deficiencies in the past. The Medical Council of India has even recommended cancellation of the recognition granted to the Appellants in view of lack of infrastructure, clinical, teaching faculty and other facilities. 15. We find no merit in the contention of the Appellants that the Medical Council of India committed an error in not permitting admission of students for the academic year 2019-2020. Having found that the request made by the Appellants for permitting MBBS course for the academic year 2019-2020 had become infructuous, the High Court rightly considered the entitlement of the Appellant-College for the academic year 2020-2021. In accordance with the time schedule fixed in respect of permissions to be granted to the medical colleges for admission to students, the last date for granting permission for the academic year 2020-2021 was 31.08.2020. As per the schedule an application for renewal of permission should have been made by the Appellants on 07.07.2020. We find no fault committed by the High Court in refusing permission to the Appellant-College for making admissions for the academic year 2020-2021. | 1[ds]The contention of the Appellants that the ban for admitting students imposed by the first Respondent on 26.09.2016 is only for a period of two years i.e. 2017-2018 and 2018-2019 was rightly rejected by the High Court on the ground that they were not entitled to make admissions for the academic years 2019-2020 and 2020-2021 without any inspection. Reliance placed by the Appellants on the order dated 10.05.2018 passed by this Court in Writ Petition (C) No.423 of 2017 is misplaced. In the said Writ Petition, request of the Appellants that they should be permitted to make admission for the years 2017-2018 and 2018-2019 was rejected. While dismissing the Writ Petition, an observation was made that the Appellants would be entitled to pursue their request for permission for the academic years 2019-2020 and 2020- 2021. It does not mean that the Appellants are entitled to admit students for the academic year 2019-2020 without an inspection. A bare look of the inspections conducted from the years 2011-2012 makes it clear that the Appellants have not utilized the opportunities given to them to rectify the deficiencies in the past. The Medical Council of India has even recommended cancellation of the recognition granted to the Appellants in view of lack of infrastructure, clinical, teaching faculty and other facilities.15. We find no merit in the contention of the Appellants that the Medical Council of India committed an error in not permitting admission of students for the academic year 2019-2020. Having found that the request made by the Appellants for permitting MBBS course for the academic year 2019-2020 had become infructuous, the High Court rightly considered the entitlement of the Appellant-College for the academic year 2020-2021. In accordance with the time schedule fixed in respect of permissions to be granted to the medical colleges for admission to students, the last date for granting permission for the academic year 2020-2021 was 31.08.2020. As per the schedule an application for renewal of permission should have been made by the Appellants on 07.07.2020. We find no fault committed by the High Court in refusing permission to the Appellant-College for making admissions for the academic year 2020-2021. | 1 | 2,333 | 383 | ### 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:
students against requirement of 565. Ancillary facilities are inadequate as detailed in the report. XXI. Interns Hostel: Available accommodation is for 42 Interns against requirement of 150. XXII. Residents Hostel: Total 40 rooms are available against requirement of 85. They are partially furnished. Deficiency remains as it is. XXIII. Residential Quarters: Only 5 quarters are available for faculty against requirement of 26. NIL quarters are available for Non-teaching staff. 9. The Medical Council of India recommended to the Central Government that the first Appellant-College should be debarred for two years i.e. 2017-2018 and 2018-2019 from admitting students and to encash the bank guarantee furnished. A decision was also taken not to consider the first Appellant for processing applications for Postgraduate courses for the academic year 2017-2018. There was also a recommendation to initiate proceedings for withdrawal of the recognition of the courses pursuant to which a show cause notice was given to the college on 24.03.2017. The first Respondent accepted the recommendations of the Medical Council of India and debarred the first Appellant-College from making admissions to MBBS course for the academic years 2017-2018 and 2018-2019. The first Respondent also permitted the Medical Council of India to encash the bank guarantee. 10. Pursuant to a direction given by this Court by its order dated 01.08.2017 the status of ratification of deficiencies in the first Appellant-College was reconsidered and a decision was taken by the Executive Committee of the Medical Council of India not to recognise/approve the first Appellant-College for the award of MBBS degree granted by Baba Farid University of Health Sciences. 11. In the meanwhile, students who were admitted in the first Appellant-College during the years 2011-2012, 2014- 2015 and 2016-2017 were shifted to other colleges. 12. Thereafter, the first Appellant requested the Medical Council of India to permit admission of 150 students in the MBBS course for the academic year 2019-2020. The Medical Council of India rejected the request of the first AppellantCollege. According to the Medical Council of India, the conditional recognition granted to the first Appellant-College has become invalid in view of the failure of the first Appellant-College to comply with the conditions stipulated therein. It was mentioned in the letter dated 21.05.2019 that proceedings pursuant to the show cause notice dated 24.03.2017 are underway. The first Appellant-College was advised to make an application/scheme under Section 10 (A) of the Indian Medical Council Act, 1956 for grant of permission to admit students for the academic year 2020- 2021. Aggrieved by the order dated 21.05.2019, the Appellant filed a Writ Petition in the High Court of Delhi which was dismissed. 13. The High Court held that there is no merit in the contention of the Appellants that admissions for the academic year 2019-2020 should be considered without any further inspection as the debarment by the notification dated 26.09.2016 was only for a period of two years. As the relief claimed by the Appellants for the year 2019-2020 cannot be granted, the High Court rightly considered whether any relief can be granted to the Appellants for the academic year 2020-2021. The High Court took note of the fact that there are admittedly no students in the first Appellant-College as those admitted for the academic years 2011-2012, 2014- 2015 and 2016-2017 have been shifted to the other colleges. The request made by the Appellants that there should be a direction for inspection was refused by the High Court as the last date for granting permission for the academic year 2020- 2021 was 31.08.2020. As the recognition of the college has not been cancelled, the Appellants were given liberty to make an application for renewal of recognition. 14. We have heard Mr. Dhruv Mehta, learned Senior Counsel for the Appellant, Ms. Aishwarya Bhati, learned Additional Solicitor General for the first Respondent and Mr. T. Singhdev learned counsel for the second Respondent. The contention of the Appellants that the ban for admitting students imposed by the first Respondent on 26.09.2016 is only for a period of two years i.e. 2017-2018 and 2018-2019 was rightly rejected by the High Court on the ground that they were not entitled to make admissions for the academic years 2019-2020 and 2020-2021 without any inspection. Reliance placed by the Appellants on the order dated 10.05.2018 passed by this Court in Writ Petition (C) No.423 of 2017 is misplaced. In the said Writ Petition, request of the Appellants that they should be permitted to make admission for the years 2017-2018 and 2018-2019 was rejected. While dismissing the Writ Petition, an observation was made that the Appellants would be entitled to pursue their request for permission for the academic years 2019-2020 and 2020- 2021. It does not mean that the Appellants are entitled to admit students for the academic year 2019-2020 without an inspection. A bare look of the inspections conducted from the years 2011-2012 makes it clear that the Appellants have not utilized the opportunities given to them to rectify the deficiencies in the past. The Medical Council of India has even recommended cancellation of the recognition granted to the Appellants in view of lack of infrastructure, clinical, teaching faculty and other facilities. 15. We find no merit in the contention of the Appellants that the Medical Council of India committed an error in not permitting admission of students for the academic year 2019-2020. Having found that the request made by the Appellants for permitting MBBS course for the academic year 2019-2020 had become infructuous, the High Court rightly considered the entitlement of the Appellant-College for the academic year 2020-2021. In accordance with the time schedule fixed in respect of permissions to be granted to the medical colleges for admission to students, the last date for granting permission for the academic year 2020-2021 was 31.08.2020. As per the schedule an application for renewal of permission should have been made by the Appellants on 07.07.2020. We find no fault committed by the High Court in refusing permission to the Appellant-College for making admissions for the academic year 2020-2021.
### Response:
1
### Explanation:
The contention of the Appellants that the ban for admitting students imposed by the first Respondent on 26.09.2016 is only for a period of two years i.e. 2017-2018 and 2018-2019 was rightly rejected by the High Court on the ground that they were not entitled to make admissions for the academic years 2019-2020 and 2020-2021 without any inspection. Reliance placed by the Appellants on the order dated 10.05.2018 passed by this Court in Writ Petition (C) No.423 of 2017 is misplaced. In the said Writ Petition, request of the Appellants that they should be permitted to make admission for the years 2017-2018 and 2018-2019 was rejected. While dismissing the Writ Petition, an observation was made that the Appellants would be entitled to pursue their request for permission for the academic years 2019-2020 and 2020- 2021. It does not mean that the Appellants are entitled to admit students for the academic year 2019-2020 without an inspection. A bare look of the inspections conducted from the years 2011-2012 makes it clear that the Appellants have not utilized the opportunities given to them to rectify the deficiencies in the past. The Medical Council of India has even recommended cancellation of the recognition granted to the Appellants in view of lack of infrastructure, clinical, teaching faculty and other facilities.15. We find no merit in the contention of the Appellants that the Medical Council of India committed an error in not permitting admission of students for the academic year 2019-2020. Having found that the request made by the Appellants for permitting MBBS course for the academic year 2019-2020 had become infructuous, the High Court rightly considered the entitlement of the Appellant-College for the academic year 2020-2021. In accordance with the time schedule fixed in respect of permissions to be granted to the medical colleges for admission to students, the last date for granting permission for the academic year 2020-2021 was 31.08.2020. As per the schedule an application for renewal of permission should have been made by the Appellants on 07.07.2020. We find no fault committed by the High Court in refusing permission to the Appellant-College for making admissions for the academic year 2020-2021.
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RAMESH SINGH Vs. THE STATE OF UTTAR PRADESH & ANR | of Assistant Teachers, was conducted de hors the mandatory procedure prescribed by the Rules. 14. The counsel for the appellant submitted that the continued suspension of the appellant was not justified, and that his client had made the appointments pursuant to an earlier order of the High Court, and also instructions from higher authorities. 14.1. Reliance was placed on a letter dated 10.04.2003 addressed by the Secretary, Basic Education, Government of U.P. to all the Divisional Assistant Directors of Education (Basic) U.P, wherein it was directed that orders passed by the High Court in connection with appointment of teachers be complied by the District Basic Education Officers. 14.2. It was further submitted that vide letter dated 18.4.2003, the appellant had requested the Director Basic Education, U.P. to issue directives for appointment of candidates to the post of Assistant Teachers in schools, who held qualifications of B.Ed./L.T./B.P.Ed./C.P.Ed. 14.3. By a further letter dated 21.04.2003, the appellant informed the Secretary, Basic Education, Govt. of U.P. that there were posts of Teachers lying vacant in District Gorakhpur, and there was no provision for appointment of candidates holding qualifications of B.Ed./L.T./ B.PEd./C.P.Ed. to the post of Assistant Teachers. 14.4. The appellant subsequently issued a notification dated 25.04.2003 stating that a decision was taken to issue appointment orders to candidates with B.Ed./L.T. pursuant to discussions with the Chief Minister, and the Minister for Basic Education, Secretary, Basic Education, Govt. of U.P. held on 23.04.2003. It is also mentioned that he was given directions that if the appointments were not made immediately, departmental proceedings would be initiated against him. 14.5. Accordingly, the appellant made appointments to 521 posts of Assistant Teachers in Basic Schools during the period May to June 2003. 14.6. It was further submitted that the appellant sought the advice of the Chief Standing Counsel for the State of U.P. The Chief Standing Counsel vide letter dated 01.05.2003 stated that the Government Order dated 10.04.2003 was general in nature. The appellant was advised to take a decision with the consent of the Government since such cases may affect the State in similar cases. 14.7. The appellant addressed another letter dated 06.05.2003 to the Secretary, Basic Education Council seeking instructions on whether the appointment of candidates holding higher qualifications of B.Ed./L.T./B.PEd./C.P.Ed. could be made in accordance with the High Court orders/directives. 14.8. The Secretary Basic Education vide Order dated 28.05.2003 directed all Divisional Assistant Director (Basic Education) to make appointments of candidates to the post of Teachers only in those cases in which final/interim orders had been passed by High Court by 02.06.2003. 14.9. The appellant placed reliance on an earlier judgment of the division bench of the Allahabad High Court in Special Appeal No. 21(SB)/1993. The High Court took note of an earlier judgement in Firoz Alam Khan v. State of U.P. & Ors. 1986 UP LBC 674 wherein it was directed that if sufficient number of B.T.C. trained candidates were not available for appointment as Assistant Teachers in the Basic Schools, the candidates who qualified for appointment as stated in the advertisement could be appointed. The High Court in that case had referred to the judgement of this Court in Mohd. Riazul Usman Ghani and Ors. v. District & Sessions Judge, Nagpur (2000) 2 SCC 606 , wherein it was held as under: 21. A criterion which has the effect of denying a candidate his right to be considered for the post on the principle that he is having higher qualification than prescribed cannot be rational. We have not been able to appreciate as to why those candidates who possessed qualifications equivalent to SCC Examination could not also be considered. We are saying this on the facts of the case in hand and should not be understood as laying down a rule of universal application. [emphasis supplied] 15. We have perused the Uttar Pradesh Basic Education (Teachers) Service Rules, 1981, which lays down the procedure for appointment of Assistant Teachers in basic schools in U.P. Sub-rule (1)(b) of Rule 2 defines the competent authority as under: (b) Appointing Authority in relation to teachers referred to in Rule 3 means the District Basic Education Officer Rule 8 prescribes the academic qualifications for the post of Assistant Teachers as: 8. Academic qualifications. - (1) The Essential qualifications of candidates for appointment to a post referred to in clause (a) of Rule 5 shall be shown below against each : Post Academic Qualifications … chart Rule 16 provides for constitution of the Selection Committee for making appointments to any post under these Rules : 16. Constitution of Selection Committee – For selection of candidates for appointment to any post under these Rules, there shall be constituted a Selection Committee comprising – chart Rule 19(3) provides that no appointment shall be made except upon the recommendation of the Selection Committee. 19. Appointment. – … (3) No appointment shall be made except with the recommendation of the Selection Committee, and in the case of direct recruitment except on production of residence certificate issued by the Tahsildar. [emphasis supplied] 16. A perusal of the aforesaid Rules reveals that the appellant as the District Basic Education Officer, being the appointing authority was empowered to make appointments only on the basis of recommendations of the Selection Committee as contemplated by Rules 16 and 19(3) as set out hereinabove. It is the case of the Respondent-State that the appellant made the appointments without complying with the 1981 Rules. Serious allegations of corruption have been raised against the appellant by the state, which would require determination in a full-fledged enquiry by the disciplinary authority. It is pertinent to note that all these appointments were declared to be void ab initio by the State, as mentioned in the appellants reply dated 04.12.2012 to the second show cause notice. The plea of the appellant that the appointments were made in compliance with an earlier order passed by the High Court, and under the directions of senior functionaries, would require to be considered in the enquiry. | 1[ds]16. A perusal of the aforesaid Rules reveals that the appellant as the District Basic Education Officer, being the appointing authority was empowered to make appointments only on the basis of recommendations of the Selection Committee as contemplated by Rules 16 and 19(3) as set out hereinaboveIt is the case of the Respondent-State that the appellant made the appointments without complying with the 1981 Rules. Serious allegations of corruption have been raised against the appellant by the state, which would require determination in a full-fledged enquiry by the disciplinary authority. It is pertinent to note that all these appointments were declared to be void ab initio by the State, as mentioned in the appellants reply dated 04.12.2012 to the second show cause noticeThe plea of the appellant that the appointments were made in compliance with an earlier order passed by the High Court, and under the directions of senior functionaries, would require to be considered in the enquiry. | 1 | 2,364 | 174 | ### Instruction:
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of Assistant Teachers, was conducted de hors the mandatory procedure prescribed by the Rules. 14. The counsel for the appellant submitted that the continued suspension of the appellant was not justified, and that his client had made the appointments pursuant to an earlier order of the High Court, and also instructions from higher authorities. 14.1. Reliance was placed on a letter dated 10.04.2003 addressed by the Secretary, Basic Education, Government of U.P. to all the Divisional Assistant Directors of Education (Basic) U.P, wherein it was directed that orders passed by the High Court in connection with appointment of teachers be complied by the District Basic Education Officers. 14.2. It was further submitted that vide letter dated 18.4.2003, the appellant had requested the Director Basic Education, U.P. to issue directives for appointment of candidates to the post of Assistant Teachers in schools, who held qualifications of B.Ed./L.T./B.P.Ed./C.P.Ed. 14.3. By a further letter dated 21.04.2003, the appellant informed the Secretary, Basic Education, Govt. of U.P. that there were posts of Teachers lying vacant in District Gorakhpur, and there was no provision for appointment of candidates holding qualifications of B.Ed./L.T./ B.PEd./C.P.Ed. to the post of Assistant Teachers. 14.4. The appellant subsequently issued a notification dated 25.04.2003 stating that a decision was taken to issue appointment orders to candidates with B.Ed./L.T. pursuant to discussions with the Chief Minister, and the Minister for Basic Education, Secretary, Basic Education, Govt. of U.P. held on 23.04.2003. It is also mentioned that he was given directions that if the appointments were not made immediately, departmental proceedings would be initiated against him. 14.5. Accordingly, the appellant made appointments to 521 posts of Assistant Teachers in Basic Schools during the period May to June 2003. 14.6. It was further submitted that the appellant sought the advice of the Chief Standing Counsel for the State of U.P. The Chief Standing Counsel vide letter dated 01.05.2003 stated that the Government Order dated 10.04.2003 was general in nature. The appellant was advised to take a decision with the consent of the Government since such cases may affect the State in similar cases. 14.7. The appellant addressed another letter dated 06.05.2003 to the Secretary, Basic Education Council seeking instructions on whether the appointment of candidates holding higher qualifications of B.Ed./L.T./B.PEd./C.P.Ed. could be made in accordance with the High Court orders/directives. 14.8. The Secretary Basic Education vide Order dated 28.05.2003 directed all Divisional Assistant Director (Basic Education) to make appointments of candidates to the post of Teachers only in those cases in which final/interim orders had been passed by High Court by 02.06.2003. 14.9. The appellant placed reliance on an earlier judgment of the division bench of the Allahabad High Court in Special Appeal No. 21(SB)/1993. The High Court took note of an earlier judgement in Firoz Alam Khan v. State of U.P. & Ors. 1986 UP LBC 674 wherein it was directed that if sufficient number of B.T.C. trained candidates were not available for appointment as Assistant Teachers in the Basic Schools, the candidates who qualified for appointment as stated in the advertisement could be appointed. The High Court in that case had referred to the judgement of this Court in Mohd. Riazul Usman Ghani and Ors. v. District & Sessions Judge, Nagpur (2000) 2 SCC 606 , wherein it was held as under: 21. A criterion which has the effect of denying a candidate his right to be considered for the post on the principle that he is having higher qualification than prescribed cannot be rational. We have not been able to appreciate as to why those candidates who possessed qualifications equivalent to SCC Examination could not also be considered. We are saying this on the facts of the case in hand and should not be understood as laying down a rule of universal application. [emphasis supplied] 15. We have perused the Uttar Pradesh Basic Education (Teachers) Service Rules, 1981, which lays down the procedure for appointment of Assistant Teachers in basic schools in U.P. Sub-rule (1)(b) of Rule 2 defines the competent authority as under: (b) Appointing Authority in relation to teachers referred to in Rule 3 means the District Basic Education Officer Rule 8 prescribes the academic qualifications for the post of Assistant Teachers as: 8. Academic qualifications. - (1) The Essential qualifications of candidates for appointment to a post referred to in clause (a) of Rule 5 shall be shown below against each : Post Academic Qualifications … chart Rule 16 provides for constitution of the Selection Committee for making appointments to any post under these Rules : 16. Constitution of Selection Committee – For selection of candidates for appointment to any post under these Rules, there shall be constituted a Selection Committee comprising – chart Rule 19(3) provides that no appointment shall be made except upon the recommendation of the Selection Committee. 19. Appointment. – … (3) No appointment shall be made except with the recommendation of the Selection Committee, and in the case of direct recruitment except on production of residence certificate issued by the Tahsildar. [emphasis supplied] 16. A perusal of the aforesaid Rules reveals that the appellant as the District Basic Education Officer, being the appointing authority was empowered to make appointments only on the basis of recommendations of the Selection Committee as contemplated by Rules 16 and 19(3) as set out hereinabove. It is the case of the Respondent-State that the appellant made the appointments without complying with the 1981 Rules. Serious allegations of corruption have been raised against the appellant by the state, which would require determination in a full-fledged enquiry by the disciplinary authority. It is pertinent to note that all these appointments were declared to be void ab initio by the State, as mentioned in the appellants reply dated 04.12.2012 to the second show cause notice. The plea of the appellant that the appointments were made in compliance with an earlier order passed by the High Court, and under the directions of senior functionaries, would require to be considered in the enquiry.
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16. A perusal of the aforesaid Rules reveals that the appellant as the District Basic Education Officer, being the appointing authority was empowered to make appointments only on the basis of recommendations of the Selection Committee as contemplated by Rules 16 and 19(3) as set out hereinaboveIt is the case of the Respondent-State that the appellant made the appointments without complying with the 1981 Rules. Serious allegations of corruption have been raised against the appellant by the state, which would require determination in a full-fledged enquiry by the disciplinary authority. It is pertinent to note that all these appointments were declared to be void ab initio by the State, as mentioned in the appellants reply dated 04.12.2012 to the second show cause noticeThe plea of the appellant that the appointments were made in compliance with an earlier order passed by the High Court, and under the directions of senior functionaries, would require to be considered in the enquiry.
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Delhi Development Authority Vs. Durga Chand Kaushish | precedence over the Sovereigns profit. This Court said (at page 292) there:"It is, we think, well settled that the ordinary rule applicable to grants made by a subject does not apply to grants made by the Sovereign authority; and grants made by the Sovereign are to be construed most favourably for the Sovereign. This general rule, however, is capable of important relaxations in favour of the subject. It is necessary to refer here to such only of those relaxations as have a bearing on the construction of the document before us : thus, if the intention is obvious, a fair and liberal interpretation must be given to the grant to enable it to take effect; and the operative part, if plainly expressed, may take effect notwithstanding qualifications in the recitals. In case where the grant is for valuable consideration, it is construed in favour of the grantee, for the honour of the Sovereign: and where two constructions are possible, one valid and the other void, that which is valid ought to be preferred, for the honour of the Sovereign ought to be more regarded than the Sovereigns profit (see para 670 at p. 315 of Halsburys Laws of England, Vol VII, Section 12, Simonds Edition)."30. We doubt whether a lease granted by the Secretary of State for India even before 1950 could be interpreted today by relying upon any special rule of construction applicable to leases by or on behalf of the British Sovereign. Indian citizens are now governed by the Indian Constitution on matters relating to Sovereignty. It may be that a rule of construction traceable to the prerogatives of the Sovereign, in the feudal age, is no longer applicable in a Democratic Republican State, set up by our Constitution, when dealing with its citizens. There appears to be no just and equitable ground why the State as the lessor grantor, with all its resources and experienced draftsmen and legal advisers and enjoying a practically invincible bargaining position as against a citizen lessee grantee, should enjoy the benefit of some nebulous and unjust rule of construction so as to enable Courts to rewrite its defectively drafted deeds in its favour. We think that it is not the ordinary rule of construction, applicable to grants capable of two constructions, which could be obsolete in this country today, but. it is the reversal of that rule in the case of the grant by the Sovereign a feudal relic which could more aptly be said to be inapplicable here today. And, as we have already pointed out, even that feudal relic was subject to the exception that it could not stand in the way of even-handed justice where the Sovereign had received valuable consideration. The lease before us was for valuable consideration.31. It may be mentioned here that not only was consideration in the form of premium of Rs. 18,154/- received at the time of grant of the lease, but a further sum of Rs. 10,888/- was paid by the lessee to the Delhi Improvement Trust under an agreement to which both President of India and the Improvement Trust were parties as lessors. As already mentioned earlier, this agreement (Ex. P-4), headed a lease agreement, was, in fact, intended for the payment of development and betterment charges for building according to a plan sanctioned by the Improvement Trust. But, the document gives the history of the lease from l931, and in paragraph 6 of the agreement, goes to provide:"In spite of this agreement, the parties hereto shall have the same rights as heretofore under the aforesaid lease dated the 17th September, 1931."32. The plaintiff-respondent had, in paragraph 4 of the plaint, laid the factual foundation for a plea of estoppel also against the defendants who had accepted consideration and an yearly rent at Rs. 365/- per annum without enhancement until after Ex. P-4 was executed in 1955. No mention of any liability to pay enhanced rent is found in the deed of 1955. It was only in June, 1962, that somebody in the appellants office seems to have suddenly thought of taking advantage of the ambiguous proviso on behalf of defendant-appellant so that an enhancement of annual rent from Rs. 365/- to Rs. 730/- with retrospective effect from 1-4-51 was demanded. This amount was paid by the respondent under protest and after a warrant of arrest had been issued against him. As the plaintiff had not relied upon an estoppel even though facts, which may give rise to it, were stated, that question need not be considered by us here.33. The learned counsel for the defendant-appellant had, however, contended that the agreement (Ex. P-4) of 27-5-55 was wrongly used by the Division Bench of the Delhi High Court in interpreting the lease deed of 1931. We do not think that it had really so used it although it had considered the conduct of the defendants in accepting rent on the basis that it was a 90 years lease on a rent of Rs. 365/- per year until after 1955, without mentioning a right of enhancement of rent in the deed of 1955 to be circumstances indicating that the defendants themselves had put an interpretation upon the original lease which the Division Bench accepted as correct by finding out the meaning of the deed of 1931 first. We have not found it necessary to rely upon anything in the agreement of 27-5-55 either for interpreting the terms of the lease of 17-9-31 or as an admission on any question or as providing a basis for an estoppel or as a circumstance supporting our view. As indicated above, we have reached our conclusion, quite apart from the contents of the subsequent agreement or the conduct of the parties, by intepreting the lease deed of 17-9-31 on its own language and terms. We think that, on the language of the lease itself, the interpretation adopted by us is the only one which could give effect and meaning to all its parts read as a whole. | 0[ds]15. After having considered all the argument advanced on behalf of the defendant appellant, we are quite unconvinced that covenant 9 could apply before the termination of the initial period of 90 years. It is by reading the lease deed as a whole that we find it impossible to concur with a view based upon the decisive effect to be given to a few words in the proviso to covenant 9 torn away from the context of the deed read as a whole. We think that covenant No. 9 operates only at the end of the term of 90 years because it says so.We think that the proviso to covenant No. 9 could be said to suffer from the vice of an uncertainty which can only be removed by ignoring the words creating this uncertainty. We think that, in such a case, the ambiguous words can be disregarded so that the terms of the earlier operative part of the demise, which are clear, must prevail.28. We think that the argument that the rule that a grant, capable of two interpretations, should be construed in favour of the grantee, is obsolete and that we should employ some test of public interest amounts to a plea that we should depart from established canons of construction of deeds containing grants on grounds of public policy which has been described as an "unruly horse." It is more appropriate to address arguments based on public interest and public policy to a legislature where such policies are given legal expression. Our task as we conceive it in the present case, is merely to construe an agreement embodied in a lease, in which the lessor is the grantor, according to ordinary well-recognised rules of construction one of which is found stated in Smt. Bina Das Guptas case, AIR 1968 SC 39 do not think that it had really so used it although it had considered the conduct of the defendants in accepting rent on the basis that it was a 90 years lease on a rent of Rs. 365/- per year until after 1955, without mentioning a right of enhancement of rent in the deed of 1955 to be circumstances indicating that the defendants themselves had put an interpretation upon the original lease which the Division Bench accepted as correct by finding out the meaning of the deed of 1931 first. We have not found it necessary to rely upon anything in the agreement of 27-5-55 either for interpreting the terms of the lease of 17-9-31 or as an admission on any question or as providing a basis for an estoppel or as a circumstance supporting our view. As indicated above, we have reached our conclusion, quite apart from the contents of the subsequent agreement or the conduct of the parties, by intepreting the lease deed of 17-9-31 on its own language and terms. We think that, on the language of the lease itself, the interpretation adopted by us is the only one which could give effect and meaning to all its parts read as a whole. | 0 | 6,322 | 549 | ### Instruction:
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precedence over the Sovereigns profit. This Court said (at page 292) there:"It is, we think, well settled that the ordinary rule applicable to grants made by a subject does not apply to grants made by the Sovereign authority; and grants made by the Sovereign are to be construed most favourably for the Sovereign. This general rule, however, is capable of important relaxations in favour of the subject. It is necessary to refer here to such only of those relaxations as have a bearing on the construction of the document before us : thus, if the intention is obvious, a fair and liberal interpretation must be given to the grant to enable it to take effect; and the operative part, if plainly expressed, may take effect notwithstanding qualifications in the recitals. In case where the grant is for valuable consideration, it is construed in favour of the grantee, for the honour of the Sovereign: and where two constructions are possible, one valid and the other void, that which is valid ought to be preferred, for the honour of the Sovereign ought to be more regarded than the Sovereigns profit (see para 670 at p. 315 of Halsburys Laws of England, Vol VII, Section 12, Simonds Edition)."30. We doubt whether a lease granted by the Secretary of State for India even before 1950 could be interpreted today by relying upon any special rule of construction applicable to leases by or on behalf of the British Sovereign. Indian citizens are now governed by the Indian Constitution on matters relating to Sovereignty. It may be that a rule of construction traceable to the prerogatives of the Sovereign, in the feudal age, is no longer applicable in a Democratic Republican State, set up by our Constitution, when dealing with its citizens. There appears to be no just and equitable ground why the State as the lessor grantor, with all its resources and experienced draftsmen and legal advisers and enjoying a practically invincible bargaining position as against a citizen lessee grantee, should enjoy the benefit of some nebulous and unjust rule of construction so as to enable Courts to rewrite its defectively drafted deeds in its favour. We think that it is not the ordinary rule of construction, applicable to grants capable of two constructions, which could be obsolete in this country today, but. it is the reversal of that rule in the case of the grant by the Sovereign a feudal relic which could more aptly be said to be inapplicable here today. And, as we have already pointed out, even that feudal relic was subject to the exception that it could not stand in the way of even-handed justice where the Sovereign had received valuable consideration. The lease before us was for valuable consideration.31. It may be mentioned here that not only was consideration in the form of premium of Rs. 18,154/- received at the time of grant of the lease, but a further sum of Rs. 10,888/- was paid by the lessee to the Delhi Improvement Trust under an agreement to which both President of India and the Improvement Trust were parties as lessors. As already mentioned earlier, this agreement (Ex. P-4), headed a lease agreement, was, in fact, intended for the payment of development and betterment charges for building according to a plan sanctioned by the Improvement Trust. But, the document gives the history of the lease from l931, and in paragraph 6 of the agreement, goes to provide:"In spite of this agreement, the parties hereto shall have the same rights as heretofore under the aforesaid lease dated the 17th September, 1931."32. The plaintiff-respondent had, in paragraph 4 of the plaint, laid the factual foundation for a plea of estoppel also against the defendants who had accepted consideration and an yearly rent at Rs. 365/- per annum without enhancement until after Ex. P-4 was executed in 1955. No mention of any liability to pay enhanced rent is found in the deed of 1955. It was only in June, 1962, that somebody in the appellants office seems to have suddenly thought of taking advantage of the ambiguous proviso on behalf of defendant-appellant so that an enhancement of annual rent from Rs. 365/- to Rs. 730/- with retrospective effect from 1-4-51 was demanded. This amount was paid by the respondent under protest and after a warrant of arrest had been issued against him. As the plaintiff had not relied upon an estoppel even though facts, which may give rise to it, were stated, that question need not be considered by us here.33. The learned counsel for the defendant-appellant had, however, contended that the agreement (Ex. P-4) of 27-5-55 was wrongly used by the Division Bench of the Delhi High Court in interpreting the lease deed of 1931. We do not think that it had really so used it although it had considered the conduct of the defendants in accepting rent on the basis that it was a 90 years lease on a rent of Rs. 365/- per year until after 1955, without mentioning a right of enhancement of rent in the deed of 1955 to be circumstances indicating that the defendants themselves had put an interpretation upon the original lease which the Division Bench accepted as correct by finding out the meaning of the deed of 1931 first. We have not found it necessary to rely upon anything in the agreement of 27-5-55 either for interpreting the terms of the lease of 17-9-31 or as an admission on any question or as providing a basis for an estoppel or as a circumstance supporting our view. As indicated above, we have reached our conclusion, quite apart from the contents of the subsequent agreement or the conduct of the parties, by intepreting the lease deed of 17-9-31 on its own language and terms. We think that, on the language of the lease itself, the interpretation adopted by us is the only one which could give effect and meaning to all its parts read as a whole.
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15. After having considered all the argument advanced on behalf of the defendant appellant, we are quite unconvinced that covenant 9 could apply before the termination of the initial period of 90 years. It is by reading the lease deed as a whole that we find it impossible to concur with a view based upon the decisive effect to be given to a few words in the proviso to covenant 9 torn away from the context of the deed read as a whole. We think that covenant No. 9 operates only at the end of the term of 90 years because it says so.We think that the proviso to covenant No. 9 could be said to suffer from the vice of an uncertainty which can only be removed by ignoring the words creating this uncertainty. We think that, in such a case, the ambiguous words can be disregarded so that the terms of the earlier operative part of the demise, which are clear, must prevail.28. We think that the argument that the rule that a grant, capable of two interpretations, should be construed in favour of the grantee, is obsolete and that we should employ some test of public interest amounts to a plea that we should depart from established canons of construction of deeds containing grants on grounds of public policy which has been described as an "unruly horse." It is more appropriate to address arguments based on public interest and public policy to a legislature where such policies are given legal expression. Our task as we conceive it in the present case, is merely to construe an agreement embodied in a lease, in which the lessor is the grantor, according to ordinary well-recognised rules of construction one of which is found stated in Smt. Bina Das Guptas case, AIR 1968 SC 39 do not think that it had really so used it although it had considered the conduct of the defendants in accepting rent on the basis that it was a 90 years lease on a rent of Rs. 365/- per year until after 1955, without mentioning a right of enhancement of rent in the deed of 1955 to be circumstances indicating that the defendants themselves had put an interpretation upon the original lease which the Division Bench accepted as correct by finding out the meaning of the deed of 1931 first. We have not found it necessary to rely upon anything in the agreement of 27-5-55 either for interpreting the terms of the lease of 17-9-31 or as an admission on any question or as providing a basis for an estoppel or as a circumstance supporting our view. As indicated above, we have reached our conclusion, quite apart from the contents of the subsequent agreement or the conduct of the parties, by intepreting the lease deed of 17-9-31 on its own language and terms. We think that, on the language of the lease itself, the interpretation adopted by us is the only one which could give effect and meaning to all its parts read as a whole.
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MAHAVIR ROAD AND INFRASTRUCTURE PVT LTD Vs. IFFCO TOKIO GENERAL INSURANCE CO LTD | & tear which also crerated few pot holes. Policy excludes normal wear & tear, gradual deterioration due to atmospheric conditions (Exclusion C under Section1) & also damage due to movement of traffic, which is by no means fortuitous.” 9. The NCDRC rejected the consumer complaint on several grounds. It held that: (i) The appellant had initially stated in its claim form that the loss had occurred between 25 June 2007 and 5 July 2007. In its letter dated 14 September 2007, the appellant claimed that due to heavy rains on 29 June 2007, the roads were inundated and the top layers were washed out. The report of the Surveyor indicated that the stand taken before it was that the damage had occurred on 2/3 July 2007. Thus, the appellant had not been consistent in the date of the allaged damage;(ii) In breach of the obligation contained in the insurance policy which required that the damage should be immediately notified, intimation was furnished only on 9 July 2007 and there was no explanation for the delay in reporting the damage to the insurer;(iii) According to the Surveyor, there was no evidence of any damage on account of flood water and only surface damage was found. The data of the Meteorological Department indicated minimal rains on the alleged dates of damage;(iv) No expert had been examined by the appellant in support of its claim that rainfall, to the extent that had occurred, would have resulted in severe damage to the road. 10. Mr. Anirudha Joshi, learned counsel appearing on behalf of the appellant, submits that the insurance policy covered damage due to ‘any cause whatsoever’. Hence, it was urged that whether or not the damage had been caused by excessive rainfall was really not material at all since the appellant was entitled to be indemnified for the damage which was sustained to the roads. In this regard, Section 1 of the insurance policy was relied upon, which has been extracted earlier.11. On the alleged failure of the appellant to intimate the insurer of the cause of the loss or damage, learned counsel submitted that Clause 5 of the General Conditions stipulated that the insurer shall not be liable, in any case, when no notice has been received within fourteen days of the occurrence. In the present case, it was submitted that the notice on 9 July 2007 was within a period of fourteen days. On these grounds, it has been submitted that the reasons which have weighed with the NCDRC in dismissing the complaint are unsustainable. 12. On the other hand, it was urged on behalf of the insurer by Mr. Abhishek Mishra, learned counsel that the specific ground on which the claim was filed under the terms of the insurance policy was that there was abnormal rainfall and water logging. This was evidently in pursuance of the provisions of the insurance policy under which flood/inundation constituted the major perils which were within the purview of the insurance cover. Learned counsel has adverted to the claim form, the letter dated 14 September 2007 and the Surveyor’s report dated 21 March 2008. The basis of the claim was found to be false. 13. While analyzing the rival submissions, it must, at the outset, be noted that the basis of the claim which was submitted by the appellant was that there was abnormal rainfall and water logging between 25 June 2007 and 5 July 2007. Subsequently, in its letter dated 14 September 2007, the appellant claimed that it was due to heavy rains on 29 June 2007 that the roads were inundated and the top layer had been washed out. 14. While dealing with this submission, the NCDRC has made the following findings: “As per the data quoted from the Meteorological Department, the rainfall was 15.2 mm on 25.6.2007, 9.2 mm on 26.6.2007, 0 mm on 27.6.2007, 5mm on 28.06.2007, 0 mm on 29.6.2007, 0 mm on 30.6.2007, 10.6 mm on 01.7.2007, 49.2 mm on 02.7.2007 and 116.6 mm on 30.7.2007.” 15. Upon analysing the data which was placed before it, the NCDRC observed: “In fact, there was no rain at all on 29.6.2007 or even on 30.6.2007. In fact, the rainfall from 25.6.2007 to 01.7.2007 was nil or nominal. The rainfall on 02.7.2007 was 49.2 mm, whereas the rainfall on 03.7.2007 was 111.6 mm.” But, it has been urged on behalf of the appellant that, whether or not, there was abnormal rain and water logging is irrelevant because the appellant was entitled to claim in terms of Section 1 of the insurance policy where damage had been caused by any cause other than what was specifically excluded. In this background, it is necessary to note that among the exclusions provided in the insurance policy was normal wear and tear and gradual deterioration due to atmospheric conditions. The case of the appellant was that it was due to excess rainfall that the roads were damaged. By necessary implication, the submission was that this would not constitute normal wear and tear in terms of the exclusions contained in the policy.16. We have adverted to the report of the Surveyor, which found that there was only surface damage and no evidence of the road having been washed out as a result of excessive monsoon rain or inundation.17. That apart, as we have noted from the findings of the NCDRC, the dates on which the alleged damage is stated to have occurred had not witnessed excessive rainfall and the rain was within normal parameters. The failure of the appellant to examine any expert in regard to the cause of the damage is a significant omission which has been correctly relied upon by the NCDRC. The insurance policy specifically excluded normal wear and tear. In order to establish that this was not a case involving normal wear and tear, the appellant sought to rely upon what it described as abnormal rainfall and water logging. The evidence on the record did not sustain the basis of such a claim. | 0[ds]13. While analyzing the rival submissions, it must, at the outset, be noted that the basis of the claim which was submitted by the appellant was that there was abnormalrainfall and waterlogging between 25 June 2007 and 5 July 2007. Subsequently, in its letter dated 14 September 2007, the appellant claimed that it was due to heavy rains on 29 June 2007 that the roads were inundated and the top layer had been washed out.Upon analysing the data which was placed before it, the NCDRCfact, there was no rain at all on 29.6.2007 or even on 30.6.2007. In fact, the rainfall from 25.6.2007 to 01.7.2007 was nil or nominal. The rainfall on 02.7.2007 was 49.2 mm, whereas the rainfall on 03.7.2007 was 111.6it has been urged on behalf of the appellant that, whether or not, there was abnormal rain and water logging is irrelevant because the appellant was entitled to claim in terms of Section 1 of the insurance policy where damage had been caused by any cause other than what was specifically excluded.In this background, it is necessary to note that among the exclusions provided in the insurance policy was normal wear and tear and gradual deterioration due to atmospheric conditions. The case of the appellant was that it was due to excess rainfall that the roads were damaged. By necessary implication, the submission was that this would not constitute normal wear and tear in terms of the exclusions contained in the policy.16. We have adverted to the report of the Surveyor, which found that there was only surface damage and no evidence of the road having been washed out as a result of excessive monsoon rain or inundation.17. That apart, as we have noted from the findings of the NCDRC, the dates on which the alleged damage is stated to have occurred had not witnessed excessive rainfall and the rain was within normal parameters. The failure of the appellant to examine any expert in regard to the cause of the damage is a significant omission which has been correctly relied upon by the NCDRC. The insurance policy specifically excluded normal wear and tear. In order to establish that this was not a case involving normal wear and tear, the appellant sought to rely upon what it described as abnormalrainfall and waterlogging. The evidence on the record did not sustain the basis of such a claim. | 0 | 1,829 | 431 | ### Instruction:
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& tear which also crerated few pot holes. Policy excludes normal wear & tear, gradual deterioration due to atmospheric conditions (Exclusion C under Section1) & also damage due to movement of traffic, which is by no means fortuitous.” 9. The NCDRC rejected the consumer complaint on several grounds. It held that: (i) The appellant had initially stated in its claim form that the loss had occurred between 25 June 2007 and 5 July 2007. In its letter dated 14 September 2007, the appellant claimed that due to heavy rains on 29 June 2007, the roads were inundated and the top layers were washed out. The report of the Surveyor indicated that the stand taken before it was that the damage had occurred on 2/3 July 2007. Thus, the appellant had not been consistent in the date of the allaged damage;(ii) In breach of the obligation contained in the insurance policy which required that the damage should be immediately notified, intimation was furnished only on 9 July 2007 and there was no explanation for the delay in reporting the damage to the insurer;(iii) According to the Surveyor, there was no evidence of any damage on account of flood water and only surface damage was found. The data of the Meteorological Department indicated minimal rains on the alleged dates of damage;(iv) No expert had been examined by the appellant in support of its claim that rainfall, to the extent that had occurred, would have resulted in severe damage to the road. 10. Mr. Anirudha Joshi, learned counsel appearing on behalf of the appellant, submits that the insurance policy covered damage due to ‘any cause whatsoever’. Hence, it was urged that whether or not the damage had been caused by excessive rainfall was really not material at all since the appellant was entitled to be indemnified for the damage which was sustained to the roads. In this regard, Section 1 of the insurance policy was relied upon, which has been extracted earlier.11. On the alleged failure of the appellant to intimate the insurer of the cause of the loss or damage, learned counsel submitted that Clause 5 of the General Conditions stipulated that the insurer shall not be liable, in any case, when no notice has been received within fourteen days of the occurrence. In the present case, it was submitted that the notice on 9 July 2007 was within a period of fourteen days. On these grounds, it has been submitted that the reasons which have weighed with the NCDRC in dismissing the complaint are unsustainable. 12. On the other hand, it was urged on behalf of the insurer by Mr. Abhishek Mishra, learned counsel that the specific ground on which the claim was filed under the terms of the insurance policy was that there was abnormal rainfall and water logging. This was evidently in pursuance of the provisions of the insurance policy under which flood/inundation constituted the major perils which were within the purview of the insurance cover. Learned counsel has adverted to the claim form, the letter dated 14 September 2007 and the Surveyor’s report dated 21 March 2008. The basis of the claim was found to be false. 13. While analyzing the rival submissions, it must, at the outset, be noted that the basis of the claim which was submitted by the appellant was that there was abnormal rainfall and water logging between 25 June 2007 and 5 July 2007. Subsequently, in its letter dated 14 September 2007, the appellant claimed that it was due to heavy rains on 29 June 2007 that the roads were inundated and the top layer had been washed out. 14. While dealing with this submission, the NCDRC has made the following findings: “As per the data quoted from the Meteorological Department, the rainfall was 15.2 mm on 25.6.2007, 9.2 mm on 26.6.2007, 0 mm on 27.6.2007, 5mm on 28.06.2007, 0 mm on 29.6.2007, 0 mm on 30.6.2007, 10.6 mm on 01.7.2007, 49.2 mm on 02.7.2007 and 116.6 mm on 30.7.2007.” 15. Upon analysing the data which was placed before it, the NCDRC observed: “In fact, there was no rain at all on 29.6.2007 or even on 30.6.2007. In fact, the rainfall from 25.6.2007 to 01.7.2007 was nil or nominal. The rainfall on 02.7.2007 was 49.2 mm, whereas the rainfall on 03.7.2007 was 111.6 mm.” But, it has been urged on behalf of the appellant that, whether or not, there was abnormal rain and water logging is irrelevant because the appellant was entitled to claim in terms of Section 1 of the insurance policy where damage had been caused by any cause other than what was specifically excluded. In this background, it is necessary to note that among the exclusions provided in the insurance policy was normal wear and tear and gradual deterioration due to atmospheric conditions. The case of the appellant was that it was due to excess rainfall that the roads were damaged. By necessary implication, the submission was that this would not constitute normal wear and tear in terms of the exclusions contained in the policy.16. We have adverted to the report of the Surveyor, which found that there was only surface damage and no evidence of the road having been washed out as a result of excessive monsoon rain or inundation.17. That apart, as we have noted from the findings of the NCDRC, the dates on which the alleged damage is stated to have occurred had not witnessed excessive rainfall and the rain was within normal parameters. The failure of the appellant to examine any expert in regard to the cause of the damage is a significant omission which has been correctly relied upon by the NCDRC. The insurance policy specifically excluded normal wear and tear. In order to establish that this was not a case involving normal wear and tear, the appellant sought to rely upon what it described as abnormal rainfall and water logging. The evidence on the record did not sustain the basis of such a claim.
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13. While analyzing the rival submissions, it must, at the outset, be noted that the basis of the claim which was submitted by the appellant was that there was abnormalrainfall and waterlogging between 25 June 2007 and 5 July 2007. Subsequently, in its letter dated 14 September 2007, the appellant claimed that it was due to heavy rains on 29 June 2007 that the roads were inundated and the top layer had been washed out.Upon analysing the data which was placed before it, the NCDRCfact, there was no rain at all on 29.6.2007 or even on 30.6.2007. In fact, the rainfall from 25.6.2007 to 01.7.2007 was nil or nominal. The rainfall on 02.7.2007 was 49.2 mm, whereas the rainfall on 03.7.2007 was 111.6it has been urged on behalf of the appellant that, whether or not, there was abnormal rain and water logging is irrelevant because the appellant was entitled to claim in terms of Section 1 of the insurance policy where damage had been caused by any cause other than what was specifically excluded.In this background, it is necessary to note that among the exclusions provided in the insurance policy was normal wear and tear and gradual deterioration due to atmospheric conditions. The case of the appellant was that it was due to excess rainfall that the roads were damaged. By necessary implication, the submission was that this would not constitute normal wear and tear in terms of the exclusions contained in the policy.16. We have adverted to the report of the Surveyor, which found that there was only surface damage and no evidence of the road having been washed out as a result of excessive monsoon rain or inundation.17. That apart, as we have noted from the findings of the NCDRC, the dates on which the alleged damage is stated to have occurred had not witnessed excessive rainfall and the rain was within normal parameters. The failure of the appellant to examine any expert in regard to the cause of the damage is a significant omission which has been correctly relied upon by the NCDRC. The insurance policy specifically excluded normal wear and tear. In order to establish that this was not a case involving normal wear and tear, the appellant sought to rely upon what it described as abnormalrainfall and waterlogging. The evidence on the record did not sustain the basis of such a claim.
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Khanjan Lal Sewak Ram Vs. Commissioner Of Income Tax, U.P | renew the registration.19. In resisting the above conclusion, Mr. Ramachandran Counsel for the assessee relied on certain decisions of the High Courts. The first decision relied on by him is that of the Bombay High Court in Commissioner of Income-tax, M. P., Nagpur and Bhandra v. DCosta Brothers, (1963) 49 ITR 1 (Bom) . Therein the Court held that the Income-tax Officer was not entitled to reject the application for registration of the deed of partnership of the assessee firm on the ground that the house-hold expenses of the partners were debited to the profit and loss account of the firm. Therein there was no contention that all the profits earned were not distributed. The only question was whether the household expenses could have been deducted before dividing the profits. In other words the question was whether the household expenses was a proper deduction to be made in the circumstances of that case before dividing the profits. Hence that decision has no bearing on the question under consideration.20. He next placed reliance on the decision of the Punjab High Court in Commissioner of Income-tax, Simla v. Sat Ram Gian Chand, (1961) 42 ITR 543 (Punj). Therein the partners first estimated the divisible profit and divided the same. The Court held that the division of profit was a matter relating to the internal affairs of the partnership and had no bearing on the genuineness of the firm and that no question of law arose from the order of the Appellate Tribunal. The ratio of that decision has no relevance for our present purpose.21. Counsel for the assessee next relied on the decision of the Madras High Court in N. S. S. Sokkalingam Chettiar and Co. v. Commr. I T., Madras, (1966) 60 ITR 671 (Mad) . In that case though there was no provision in the deed of partnership for payment of salary to any of the partners, some of the partners were paid a salary in addition to the shares to which they were entitled under the terms of the partnership and the Income-tax Officer refused to register the firm on the ground that the profits were not divided in accordance with the partnership deed as some of the partners took an additional amount out of the profits in the shape of salary. The Court held that, as the partnership was found to be a genuine one and the application for registration was also in due form, the mere fact that some partners took some portion of the profits as salary was not a ground for refusing registration. The question whether a partner should be paid salary for the services rendered by him is a matter to be decided by the partners of the firm: so long as their payment is bona fide one, the same has to be deducted before the divisible profits are computed. Hence the ratio of that decision also does not bear on the facts of the present case.22. Reliance was next placed on the decision of the Madhya Pradesh High Court in C. I. T., M. P. v. Madan Lal Chhagan Lal, (1963) 50 ITR 477 (Madh Pra). In that case the partnership deed provided that each partner will be entitled to interest at 6 per cent. per annum on his capital investment and that the profit and loss will be divided equally among the partners after deducting the interest payable on the capital advances made by the partners. When the partners made an application for registration under Section 26-A of the act, the Income-tax Officer refused to register it but the Court held that the application was a valid one and the provision for payment of interest did not in any manner conflict with the relevant provision. Here again there is no question of not dividing any portion of profits earned. That being so, that decision is irrelevant for our present purpose.23. Lastly reliance was placed on the decision of the Kerala High Court in Josephs Provisions Store v. C. I. T., Kerala, (1962) 45 ITR 380 (Ker) . Therein the partners of the assessee firm resolved that the profits of the firm as disclosed in the profit and loss account need not be divided and credited in the profit and loss accounts of the partners, but should be credited to a reserve account but each of the partners to have an equal share in that amount. An application for registration of the firm was rejected on the ground that the firm had not complied with the requirements of Rule 6 of the Rules. The Court held that the absence of entries in the separate accounts of each partners was not fatal; the requirement of Rule 6 was met when the profit was taken into a reserve fund showing the partners shares therein and indicating what was the contribution of each partner to the reserve fund. Therefore the application for registration was not liable to be rejected on the ground that Rule 6 had not been complied with. Hence again the profits earned had been divided and they were credited to the accounts of the partners though the same were credited to a reserve fund. Hence the rule laid down in that case is inapplicable to the facts of the present case. As the above referred decisions do not bear on the point in issue we have not gone into the question whether all or any of them were correctly decided or not.24. The apprehension of Mr. Ramachandra that our decision might be taken advantage of by the Department for refusing registration of firms whose return of income or claim for some allowance has not been accepted by the Income-tax Officer for one reason or the other, appears to us to have no basis. Herein we are merely considering the scope of paragraph 3, of R. 6. So long as the divisible profits had been divided or had been credited to the accounts of the partners, the requirement of that provision was complied with. | 0[ds]If it did not comply with the requirements of Rule 6, the Income-tax Officer was within his powers in rejecting it.As seen earlier, the finding of the Tribunal is that though the profits of the firm entered in its account books had been distributed, the profits earned but not entered into the amount books have not been divided or credited in the account books. From that it follows that the certificate given in the application for renewal of registration is not a true certificate and further that a sub-stantial portion of the profits earned had not been divided.18. The reason behind R. 6 was that at the relevant time, the registered firm as such was not taxable. Only the partners of a firm could be taxed. That being so, if a portion of the profits earned by the firm was not divided amongst the partners or credited to their accounts to the extent, the profits earned by the firm escaped assessment. Therefore the certificate contemplated by Rule 6 is not a mere formality. It has a definite purpose. If a portion of the profits earned by the firm was not actually divided amongst the partners or credited to their accounts, then the only course open to the Income-tax Officer was not to register that firm and to tax the partners of the firm as an association of persons. By giving a false certificate that the profits earned by the firm had been divided or credited in the manner shown in the application, the assessee firm was trying to evade tax. Hence we must hold that the application for renewal of registration made by the assessee did not comply with conditions prescribed in paragraph 3 of Rule 6. Hence the Income-tax Officer was justified to refuse to renew thethe application for registration was not liable to be rejected on the ground that Rule 6 had not been complied with. Hence again the profits earned had been divided and they were credited to the accounts of the partners though the same were credited to a reserve fund. Hence the rule laid down in that case is inapplicable to the facts of the present case. As the above referred decisions do not bear on the point in issue we have not gone into the question whether all or any of them were correctly decided or not.24. The apprehension of Mr. Ramachandra that our decision might be taken advantage of by the Department for refusing registration of firms whose return of income or claim for some allowance has not been accepted by the Income-tax Officer for one reason or the other, appears to us to have no basis. Herein we are merely considering the scope of paragraph 3, of R. 6. So long as the divisible profits had been divided or had been credited to the accounts of the partners, the requirement of that provision was complied with.Before examining the scope of the question submitted to the High Court under Section 66 (1) of the Act, we may mention that the question whether the application for renewal of registration stood withdrawn or not is not before us. On that question, the Judicial member of the Tribunal took the view that the said application stood withdrawn but the Accountant member did not agree with that view. The President of the Tribunal did not express any opinion on that point.12. Now turning to the question referred to the High Court, that question is based on two findings of fact which are no more open to question. Those findings are: (1) that the firm had distributed its book profits amongst the partners according to the Instrument of partnership (2), but it has not distributed the profits earned by it in the black market amongst the six partners in accordance with the Instrument ofit did not comply with the requirements of Rule 6, theOfficer was within his powers in rejecting it.As seen earlier, the finding of the Tribunal is that though the profits of the firm entered in its account books had been distributed, the profits earned but not entered into the amount books have not been divided or credited in the account books. From that it follows that the certificate given in the application for renewal of registration is not a true certificate and further that asubstantial portion of the profits earnedhad not been divided. | 0 | 3,325 | 779 | ### Instruction:
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renew the registration.19. In resisting the above conclusion, Mr. Ramachandran Counsel for the assessee relied on certain decisions of the High Courts. The first decision relied on by him is that of the Bombay High Court in Commissioner of Income-tax, M. P., Nagpur and Bhandra v. DCosta Brothers, (1963) 49 ITR 1 (Bom) . Therein the Court held that the Income-tax Officer was not entitled to reject the application for registration of the deed of partnership of the assessee firm on the ground that the house-hold expenses of the partners were debited to the profit and loss account of the firm. Therein there was no contention that all the profits earned were not distributed. The only question was whether the household expenses could have been deducted before dividing the profits. In other words the question was whether the household expenses was a proper deduction to be made in the circumstances of that case before dividing the profits. Hence that decision has no bearing on the question under consideration.20. He next placed reliance on the decision of the Punjab High Court in Commissioner of Income-tax, Simla v. Sat Ram Gian Chand, (1961) 42 ITR 543 (Punj). Therein the partners first estimated the divisible profit and divided the same. The Court held that the division of profit was a matter relating to the internal affairs of the partnership and had no bearing on the genuineness of the firm and that no question of law arose from the order of the Appellate Tribunal. The ratio of that decision has no relevance for our present purpose.21. Counsel for the assessee next relied on the decision of the Madras High Court in N. S. S. Sokkalingam Chettiar and Co. v. Commr. I T., Madras, (1966) 60 ITR 671 (Mad) . In that case though there was no provision in the deed of partnership for payment of salary to any of the partners, some of the partners were paid a salary in addition to the shares to which they were entitled under the terms of the partnership and the Income-tax Officer refused to register the firm on the ground that the profits were not divided in accordance with the partnership deed as some of the partners took an additional amount out of the profits in the shape of salary. The Court held that, as the partnership was found to be a genuine one and the application for registration was also in due form, the mere fact that some partners took some portion of the profits as salary was not a ground for refusing registration. The question whether a partner should be paid salary for the services rendered by him is a matter to be decided by the partners of the firm: so long as their payment is bona fide one, the same has to be deducted before the divisible profits are computed. Hence the ratio of that decision also does not bear on the facts of the present case.22. Reliance was next placed on the decision of the Madhya Pradesh High Court in C. I. T., M. P. v. Madan Lal Chhagan Lal, (1963) 50 ITR 477 (Madh Pra). In that case the partnership deed provided that each partner will be entitled to interest at 6 per cent. per annum on his capital investment and that the profit and loss will be divided equally among the partners after deducting the interest payable on the capital advances made by the partners. When the partners made an application for registration under Section 26-A of the act, the Income-tax Officer refused to register it but the Court held that the application was a valid one and the provision for payment of interest did not in any manner conflict with the relevant provision. Here again there is no question of not dividing any portion of profits earned. That being so, that decision is irrelevant for our present purpose.23. Lastly reliance was placed on the decision of the Kerala High Court in Josephs Provisions Store v. C. I. T., Kerala, (1962) 45 ITR 380 (Ker) . Therein the partners of the assessee firm resolved that the profits of the firm as disclosed in the profit and loss account need not be divided and credited in the profit and loss accounts of the partners, but should be credited to a reserve account but each of the partners to have an equal share in that amount. An application for registration of the firm was rejected on the ground that the firm had not complied with the requirements of Rule 6 of the Rules. The Court held that the absence of entries in the separate accounts of each partners was not fatal; the requirement of Rule 6 was met when the profit was taken into a reserve fund showing the partners shares therein and indicating what was the contribution of each partner to the reserve fund. Therefore the application for registration was not liable to be rejected on the ground that Rule 6 had not been complied with. Hence again the profits earned had been divided and they were credited to the accounts of the partners though the same were credited to a reserve fund. Hence the rule laid down in that case is inapplicable to the facts of the present case. As the above referred decisions do not bear on the point in issue we have not gone into the question whether all or any of them were correctly decided or not.24. The apprehension of Mr. Ramachandra that our decision might be taken advantage of by the Department for refusing registration of firms whose return of income or claim for some allowance has not been accepted by the Income-tax Officer for one reason or the other, appears to us to have no basis. Herein we are merely considering the scope of paragraph 3, of R. 6. So long as the divisible profits had been divided or had been credited to the accounts of the partners, the requirement of that provision was complied with.
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If it did not comply with the requirements of Rule 6, the Income-tax Officer was within his powers in rejecting it.As seen earlier, the finding of the Tribunal is that though the profits of the firm entered in its account books had been distributed, the profits earned but not entered into the amount books have not been divided or credited in the account books. From that it follows that the certificate given in the application for renewal of registration is not a true certificate and further that a sub-stantial portion of the profits earned had not been divided.18. The reason behind R. 6 was that at the relevant time, the registered firm as such was not taxable. Only the partners of a firm could be taxed. That being so, if a portion of the profits earned by the firm was not divided amongst the partners or credited to their accounts to the extent, the profits earned by the firm escaped assessment. Therefore the certificate contemplated by Rule 6 is not a mere formality. It has a definite purpose. If a portion of the profits earned by the firm was not actually divided amongst the partners or credited to their accounts, then the only course open to the Income-tax Officer was not to register that firm and to tax the partners of the firm as an association of persons. By giving a false certificate that the profits earned by the firm had been divided or credited in the manner shown in the application, the assessee firm was trying to evade tax. Hence we must hold that the application for renewal of registration made by the assessee did not comply with conditions prescribed in paragraph 3 of Rule 6. Hence the Income-tax Officer was justified to refuse to renew thethe application for registration was not liable to be rejected on the ground that Rule 6 had not been complied with. Hence again the profits earned had been divided and they were credited to the accounts of the partners though the same were credited to a reserve fund. Hence the rule laid down in that case is inapplicable to the facts of the present case. As the above referred decisions do not bear on the point in issue we have not gone into the question whether all or any of them were correctly decided or not.24. The apprehension of Mr. Ramachandra that our decision might be taken advantage of by the Department for refusing registration of firms whose return of income or claim for some allowance has not been accepted by the Income-tax Officer for one reason or the other, appears to us to have no basis. Herein we are merely considering the scope of paragraph 3, of R. 6. So long as the divisible profits had been divided or had been credited to the accounts of the partners, the requirement of that provision was complied with.Before examining the scope of the question submitted to the High Court under Section 66 (1) of the Act, we may mention that the question whether the application for renewal of registration stood withdrawn or not is not before us. On that question, the Judicial member of the Tribunal took the view that the said application stood withdrawn but the Accountant member did not agree with that view. The President of the Tribunal did not express any opinion on that point.12. Now turning to the question referred to the High Court, that question is based on two findings of fact which are no more open to question. Those findings are: (1) that the firm had distributed its book profits amongst the partners according to the Instrument of partnership (2), but it has not distributed the profits earned by it in the black market amongst the six partners in accordance with the Instrument ofit did not comply with the requirements of Rule 6, theOfficer was within his powers in rejecting it.As seen earlier, the finding of the Tribunal is that though the profits of the firm entered in its account books had been distributed, the profits earned but not entered into the amount books have not been divided or credited in the account books. From that it follows that the certificate given in the application for renewal of registration is not a true certificate and further that asubstantial portion of the profits earnedhad not been divided.
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Sant Saranlal And Another Vs. Parsuram Sahu And Others | as a money-lender. It is significant to note that the rule-making power given to the State Government is not expressed in the usual form, i.e., is not to the effect that the State Government may make rules for the purposes of the Act. The rule-making power is limited to what is stated in Cls. (a) to (e) of S. 27 and these clauses do not empower the State Government to prescribe the limit upto which the loans advanced by a money-lender are to remain outstanding at any particular moment of time. 20. It is contended for the respondents that S. 5 (1) (e) provides that every application for being registered as a money-lender is to state such other particulars as may be prescribed and that, therefore, an application had to mention the amount of the loan for which the certificate is wanted. The power to prescribe certain particulars for the purpose of an application cannot be deemed to include the power to fix the maximum amount of loans which a money-lender can have outstanding on any day. Rule 3 (iii) requires the application to mention the amount of loan for which the certificate is wanted. Strictly speaking, there is nothing in this expression to suggest to the applicant money-lender that he has to mention the maximum amount of loans which is to remain outstanding on any particular day. The rule do not even say that the registration of a money-lender for advancing loans upto a maximum amount mentioned in the certificate would make him a registered money-lender for loans upto the amount only. The facts that the rules require the amount of loans for which the certificate is wanted and that the form of the registration certificate provides for mentioning the limit of the money-lending business upto which the money-lender can transact business, do not necessarily amount to a provision that the money-lender would be deemed to be a non-registered money-lender for the purposes of the amount of loan outstanding in excess of that limit. The money-lender when he advanced money in excess of the maximum limit may contravene the rule framed under the Act and if the Act provides any penalty for such contravention, may be liable for that penalty. In fact, Ss. 19 to 21 do not provide for penalty for contravening any rule. 21. It is urged for the respondents that the State Government was competent to fix the maximum amount of loans to be advanced by a registered money-lender in view of sub-s. (3) of S. 5 which provides that the State Government may, by rules, prescribe for different clauses of money-lenders and for different areas a registration fee not exceeding Rs. 25 to be paid by an applicant for registration. It is said that the State Government could create different classes of money-lenders according to the amount of money they want to advance in loans. 22. This provision does not empower the State Government to limit the maximum amount of loans to be given by money-lenders of any class. It could, however, as it actually did, prescribe different registration fees for different classes of money-lender according to the amount of money upto which they wanted to lend. The classification of money-lenders for the purposes of registration fee can be no justification for placing any limit on the maximum amount of loans they could have outstanding on a certain day, on penalty of being deprived of a right to sue for an amount lent in excess of such a maximum. 23. We, therefore, hold that the State Government is not competent to make a rule fixing a maximum amount of outstanding loans on any day and that the rules framed do not provide that a money-lender properly registered as such under the Act will cease to be a money-lender so registered if he advances a loan in excess of the limit mentioned in the registration certificate. 24. It has been urged for the respondent that the expression in S. 4 of the 1939 Act to the effect unless such money-lender was registered under the Bihar Money-Lenders Act, 1938 means unless such money-lender was properly registered under the Bihar Money-Lenders Act, 1938. There is nothing wrong in this view, but there is no impropriety in the registration of Bhanuprakash Lal a money-lender. His application must have been in accordance with the requirements of the Act and the rules. The registration certificate was issued to him in the ordinary course. Nothing has been shown why his registration as a money-lender be considered to be not proper registration or why it be held that he was not properly registered under the Act. The mere fact that he contravened any of the requirements of the licence or of any rule or even any provision of the Act does not mean that his registration as a money-lender under S. 5 of the Act was an improper registration. 25. Lastly, it may be said that the view taken by the High Court necessitates the adding of the words and the loans advanced do not wholly or partly exceed the maximum amount upto which he was permitted by the registration certificate to transact money-lending business in S. 4 of the 1939 Act. There is no reason why such an addition be made to S. 4 and make the provision much more restricted in character. 26. We, therefore, do not agree with the view expressed by the High Court and hold that a money-lender who has been registered under the Act can sue for the recovery of a loan advanced by him during the period his registration certificate is in force, even if at the time of advancing the loan he had exceeded the limit of the amount mentioned in the registration certificate as the amount upto which he could transact money-lending business. Under the provisions of the Act it is the de facto registration of the money-lender which entitles him to sue for the loan and not the contents of the registration certificate. | 1[ds]12. The correctness of this view of the High Court is questioned for the appellant on the ground that there is no provision in the 1938 Act or even in the 1939 Act which provides that a money-lender who has been registered under S. 5 of the Act can lend money up to the limit mentioned in the registration certificate. In fact it is urged that the Act nowhere provides that an overall limit to the loan advanced by a registered money-lender can be fixed by the Government. When the Act does not provide so, the Government cannot, by rule, fix such a limit. Rule 3 requiring the money-lender to mention in his application the maximum amount of loan, i.e., the total amount of loans which may remain outstanding on any day during the period of the validity of the registration certificate and R. 3 (3) providing for an application for the registration certificate to mention the amount of loans for which the certificate is wanted, cannot, therefore, be said to be rules made for carrying out the purposes of the Act but were rules made for fiscal purposes. The registration fee payable under R. 4 is graded according to the maximum amount of loans for which the certificate was wanted. We consider the contention for the appellant sound18. We are, therefore, of opinion that the High Court was in error in thinking that the object of the Act would be defeated if the registered money-lender could be held competent to lend money in excess of the maximum amount mentioned in the registration certificate19. We have referred to the fact that the Act does not anywhere provide for the fixing of the upper limit for the loans remaining outstanding at any particular time. The rule-making power of the Government does not extend to the fixing of such a limit. Section 27 empowers the State Government to prescribe inter alia the form of the registration certificate and the particulars to be contained in an application made for the purpose of being registered as a money-lender. It is significant to note that the rule-making power given to the State Government is not expressed in the usual form, i.e., is not to the effect that the State Government may make rules for the purposes of the Act. The rule-making power is limited to what is stated in Cls. (a) to (e) of S. 27 and these clauses do not empower the State Government to prescribe the limit upto which the loans advanced by a money-lender are to remain outstanding at any particular moment of time20. It is contended for the respondents that S. 5 (1) (e) provides that every application for being registered as a money-lender is to state such other particulars as may be prescribed and that, therefore, an application had to mention the amount of the loan for which the certificate iswanted.The power to prescribe certain particulars for the purpose of an application cannot be deemed to include the power to fix the maximum amount of loans which a money-lender can have outstanding on any day. Rule 3 (iii) requires the application to mention the amount of loan for which the certificate iswanted.Strictly speaking, there is nothing in this expression to suggest to the applicant money-lender that he has to mention the maximum amount of loans which is to remain outstanding on any particular day. The rule do not even say that the registration of a money-lender for advancing loans upto a maximum amount mentioned in the certificate would make him a registered money-lender for loans upto the amount only. The facts that the rules require the amount of loans for which the certificate is wanted and that the form of the registration certificate provides for mentioning the limit of the money-lending business upto which the money-lender can transact business, do not necessarily amount to a provision that the money-lender would be deemed to be a non-registered money-lender for the purposes of the amount of loan outstanding in excess of that limit. The money-lender when he advanced money in excess of the maximum limit may contravene the rule framed under the Act and if the Act provides any penalty for such contravention, may be liable for that penalty. In fact, Ss. 19 to 21 do not provide for penalty for contravening any rule21. It is urged for the respondents that the State Government was competent to fix the maximum amount of loans to be advanced by a registered money-lender in view of sub-s. (3) of S. 5 which provides that the State Government may, by rules, prescribe for different clauses of money-lenders and for different areas a registration fee not exceeding Rs. 25 to be paid by an applicant for registration. It is said that the State Government could create different classes of money-lenders according to the amount of money they want to advance in loans22. This provision does not empower the State Government to limit the maximum amount of loans to be given by money-lenders of any class. It could, however, as it actually did, prescribe different registration fees for different classes of money-lender according to the amount of money upto which they wanted to lend. The classification of money-lenders for the purposes of registration fee can be no justification for placing any limit on the maximum amount of loans they could have outstanding on a certain day, on penalty of being deprived of a right to sue for an amount lent in excess of such a maximum23. We, therefore, hold that the State Government is not competent to make a rule fixing a maximum amount of outstanding loans on any day and that the rules framed do not provide that a money-lender properly registered as such under the Act will cease to be a money-lender so registered if he advances a loan in excess of the limit mentioned in the registration certificate24. It has been urged for the respondent that the expression in S. 4 of the 1939 Act to the effect unless such money-lender was registered under the Bihar Money-Lenders Act, 1938 means unless such money-lender was properly registered under the Bihar Money-Lenders Act, 1938. There is nothing wrong in this view, but there is no impropriety in the registration of Bhanuprakash Lal a money-lender. His application must have been in accordance with the requirements of the Act and the rules. The registration certificate was issued to him in the ordinary course. Nothing has been shown why his registration as a money-lender be considered to be not proper registration or why it be held that he was not properly registered under the Act. The mere fact that he contravened any of the requirements of the licence or of any rule or even any provision of the Act does not mean that his registration as a money-lender under S. 5 of the Act was an improper registration25. Lastly, it may be said that the view taken by the High Court necessitates the adding of the words and the loans advanced do not wholly or partly exceed the maximum amount upto which he was permitted by the registration certificate to transact money-lending business in S. 4 of the 1939 Act. There is no reason why such an addition be made to S. 4 and make the provision much more restricted in character26. We, therefore, do not agree with the view expressed by the High Court and hold that a money-lender who has been registered under the Act can sue for the recovery of a loan advanced by him during the period his registration certificate is in force, even if at the time of advancing the loan he had exceeded the limit of the amount mentioned in the registration certificate as the amount upto which he could transact money-lending business. Under the provisions of the Act it is the de facto registration of the money-lender which entitles him to sue for the loan and not the contents of the registration certificate. | 1 | 4,070 | 1,422 | ### 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:
as a money-lender. It is significant to note that the rule-making power given to the State Government is not expressed in the usual form, i.e., is not to the effect that the State Government may make rules for the purposes of the Act. The rule-making power is limited to what is stated in Cls. (a) to (e) of S. 27 and these clauses do not empower the State Government to prescribe the limit upto which the loans advanced by a money-lender are to remain outstanding at any particular moment of time. 20. It is contended for the respondents that S. 5 (1) (e) provides that every application for being registered as a money-lender is to state such other particulars as may be prescribed and that, therefore, an application had to mention the amount of the loan for which the certificate is wanted. The power to prescribe certain particulars for the purpose of an application cannot be deemed to include the power to fix the maximum amount of loans which a money-lender can have outstanding on any day. Rule 3 (iii) requires the application to mention the amount of loan for which the certificate is wanted. Strictly speaking, there is nothing in this expression to suggest to the applicant money-lender that he has to mention the maximum amount of loans which is to remain outstanding on any particular day. The rule do not even say that the registration of a money-lender for advancing loans upto a maximum amount mentioned in the certificate would make him a registered money-lender for loans upto the amount only. The facts that the rules require the amount of loans for which the certificate is wanted and that the form of the registration certificate provides for mentioning the limit of the money-lending business upto which the money-lender can transact business, do not necessarily amount to a provision that the money-lender would be deemed to be a non-registered money-lender for the purposes of the amount of loan outstanding in excess of that limit. The money-lender when he advanced money in excess of the maximum limit may contravene the rule framed under the Act and if the Act provides any penalty for such contravention, may be liable for that penalty. In fact, Ss. 19 to 21 do not provide for penalty for contravening any rule. 21. It is urged for the respondents that the State Government was competent to fix the maximum amount of loans to be advanced by a registered money-lender in view of sub-s. (3) of S. 5 which provides that the State Government may, by rules, prescribe for different clauses of money-lenders and for different areas a registration fee not exceeding Rs. 25 to be paid by an applicant for registration. It is said that the State Government could create different classes of money-lenders according to the amount of money they want to advance in loans. 22. This provision does not empower the State Government to limit the maximum amount of loans to be given by money-lenders of any class. It could, however, as it actually did, prescribe different registration fees for different classes of money-lender according to the amount of money upto which they wanted to lend. The classification of money-lenders for the purposes of registration fee can be no justification for placing any limit on the maximum amount of loans they could have outstanding on a certain day, on penalty of being deprived of a right to sue for an amount lent in excess of such a maximum. 23. We, therefore, hold that the State Government is not competent to make a rule fixing a maximum amount of outstanding loans on any day and that the rules framed do not provide that a money-lender properly registered as such under the Act will cease to be a money-lender so registered if he advances a loan in excess of the limit mentioned in the registration certificate. 24. It has been urged for the respondent that the expression in S. 4 of the 1939 Act to the effect unless such money-lender was registered under the Bihar Money-Lenders Act, 1938 means unless such money-lender was properly registered under the Bihar Money-Lenders Act, 1938. There is nothing wrong in this view, but there is no impropriety in the registration of Bhanuprakash Lal a money-lender. His application must have been in accordance with the requirements of the Act and the rules. The registration certificate was issued to him in the ordinary course. Nothing has been shown why his registration as a money-lender be considered to be not proper registration or why it be held that he was not properly registered under the Act. The mere fact that he contravened any of the requirements of the licence or of any rule or even any provision of the Act does not mean that his registration as a money-lender under S. 5 of the Act was an improper registration. 25. Lastly, it may be said that the view taken by the High Court necessitates the adding of the words and the loans advanced do not wholly or partly exceed the maximum amount upto which he was permitted by the registration certificate to transact money-lending business in S. 4 of the 1939 Act. There is no reason why such an addition be made to S. 4 and make the provision much more restricted in character. 26. We, therefore, do not agree with the view expressed by the High Court and hold that a money-lender who has been registered under the Act can sue for the recovery of a loan advanced by him during the period his registration certificate is in force, even if at the time of advancing the loan he had exceeded the limit of the amount mentioned in the registration certificate as the amount upto which he could transact money-lending business. Under the provisions of the Act it is the de facto registration of the money-lender which entitles him to sue for the loan and not the contents of the registration certificate.
### Response:
1
### Explanation:
contained in an application made for the purpose of being registered as a money-lender. It is significant to note that the rule-making power given to the State Government is not expressed in the usual form, i.e., is not to the effect that the State Government may make rules for the purposes of the Act. The rule-making power is limited to what is stated in Cls. (a) to (e) of S. 27 and these clauses do not empower the State Government to prescribe the limit upto which the loans advanced by a money-lender are to remain outstanding at any particular moment of time20. It is contended for the respondents that S. 5 (1) (e) provides that every application for being registered as a money-lender is to state such other particulars as may be prescribed and that, therefore, an application had to mention the amount of the loan for which the certificate iswanted.The power to prescribe certain particulars for the purpose of an application cannot be deemed to include the power to fix the maximum amount of loans which a money-lender can have outstanding on any day. Rule 3 (iii) requires the application to mention the amount of loan for which the certificate iswanted.Strictly speaking, there is nothing in this expression to suggest to the applicant money-lender that he has to mention the maximum amount of loans which is to remain outstanding on any particular day. The rule do not even say that the registration of a money-lender for advancing loans upto a maximum amount mentioned in the certificate would make him a registered money-lender for loans upto the amount only. The facts that the rules require the amount of loans for which the certificate is wanted and that the form of the registration certificate provides for mentioning the limit of the money-lending business upto which the money-lender can transact business, do not necessarily amount to a provision that the money-lender would be deemed to be a non-registered money-lender for the purposes of the amount of loan outstanding in excess of that limit. The money-lender when he advanced money in excess of the maximum limit may contravene the rule framed under the Act and if the Act provides any penalty for such contravention, may be liable for that penalty. In fact, Ss. 19 to 21 do not provide for penalty for contravening any rule21. It is urged for the respondents that the State Government was competent to fix the maximum amount of loans to be advanced by a registered money-lender in view of sub-s. (3) of S. 5 which provides that the State Government may, by rules, prescribe for different clauses of money-lenders and for different areas a registration fee not exceeding Rs. 25 to be paid by an applicant for registration. It is said that the State Government could create different classes of money-lenders according to the amount of money they want to advance in loans22. This provision does not empower the State Government to limit the maximum amount of loans to be given by money-lenders of any class. It could, however, as it actually did, prescribe different registration fees for different classes of money-lender according to the amount of money upto which they wanted to lend. The classification of money-lenders for the purposes of registration fee can be no justification for placing any limit on the maximum amount of loans they could have outstanding on a certain day, on penalty of being deprived of a right to sue for an amount lent in excess of such a maximum23. We, therefore, hold that the State Government is not competent to make a rule fixing a maximum amount of outstanding loans on any day and that the rules framed do not provide that a money-lender properly registered as such under the Act will cease to be a money-lender so registered if he advances a loan in excess of the limit mentioned in the registration certificate24. It has been urged for the respondent that the expression in S. 4 of the 1939 Act to the effect unless such money-lender was registered under the Bihar Money-Lenders Act, 1938 means unless such money-lender was properly registered under the Bihar Money-Lenders Act, 1938. There is nothing wrong in this view, but there is no impropriety in the registration of Bhanuprakash Lal a money-lender. His application must have been in accordance with the requirements of the Act and the rules. The registration certificate was issued to him in the ordinary course. Nothing has been shown why his registration as a money-lender be considered to be not proper registration or why it be held that he was not properly registered under the Act. The mere fact that he contravened any of the requirements of the licence or of any rule or even any provision of the Act does not mean that his registration as a money-lender under S. 5 of the Act was an improper registration25. Lastly, it may be said that the view taken by the High Court necessitates the adding of the words and the loans advanced do not wholly or partly exceed the maximum amount upto which he was permitted by the registration certificate to transact money-lending business in S. 4 of the 1939 Act. There is no reason why such an addition be made to S. 4 and make the provision much more restricted in character26. We, therefore, do not agree with the view expressed by the High Court and hold that a money-lender who has been registered under the Act can sue for the recovery of a loan advanced by him during the period his registration certificate is in force, even if at the time of advancing the loan he had exceeded the limit of the amount mentioned in the registration certificate as the amount upto which he could transact money-lending business. Under the provisions of the Act it is the de facto registration of the money-lender which entitles him to sue for the loan and not the contents of the registration certificate.
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Gaziabad Development Authority Vs. Jan Kalyan Samiti | 1. Leave granted. 2. Though notice has been served on the contesting respondents, they have not appeared either in person or through counsel. 3. We have heard Shri O.P. Rana, learned senior counsel for the petitioner. The acquisition of the land by the Ghaziabad Development Authority was initiated by notification of February 25, 1986, under Section 4 (1) of the Land Acquisition Act, 1894 (for short, the Act); enquiry under Sect ion 5A was dispensed with under Section 17(4) of the Act and the Declaration under Section 6 was made on February 26, 1986. Both the notifications and declaration were simultaneously published on April 10, 1986.4. The respondents 1 and 2 have filed writ petition No.7155/86 in the High Court of Allahabad challenging the validity of the notification under Section 4(1) on the ground that local publication as required under Section 4(1) was not made. The exercise of the power under Section 17(4) was also wrongly invoked, as simultaneously notification under Section 4(1) and declaration under Section 6 could not be published. The High Court accepted the contentions and by impugned order dated November 3, 1987, allowed the writ petition and quashed the notification of Section 4(1) and the declaration under Section 6. Thus this appeal by special leave. 5. Section 4(1) of the Act envisages whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any Public purpose or for a company a notification to that effect shall be published in the official Gazette and in two daily newspapers circulating in that locality of which at least one shall be in the regional language. This was added by Amendment Act 68 of 1984. Earlier thereto under the local amendment of U.P., publication in one newspaper was sufficient. The Collector is required to cause public notice of the substance of such notification to be given at convenient places in the said locality. The State of UP made amendment to Section 4 by UP Land Acquisition VIII of 1974/XXII of 1954, whereunder between the words "and" and the word "Collector" the following shall be inserted and be deemed always to have been inserted. The proviso thereto was added as under: "Except in the case of any land to which by virtue of a direction of the State Government under sub section 4 of Section 17 the provision of Section 5 A shall not apply". 6. In other words, the mandatory requirement of the publication of the notification in the locality was dispensed with in a case where the Government had opined that the land was urgently needed, under Section 17(4). When the authorities have dispensed with the enquiry under Section 5A, the requirement of local publication shall not apply. Consequently, the finding of the High Court is unsustainable. It is rather un fortunate that this amendment was not brought to the notice of the High Court when the writ petition was allowed. But operation of the statutory local amendment to the Act has dispensed with local publication in two newspapers. The notification under Section 4 [1] is not vitiated for non-publication of the notification in the local newspapers. 7. The next question is whether Section 17(4) applies and the action taken was inconsistent with the provisions of the Act. It is seen that but for local amendment, on publication of the notification under Section 4(1) and exercising of the power under Section 17(4), the publication of the declaration under Section 6 is mandatory pre-condition for taking possession of the l and. Even on publication of declaration under Section 6, notice under Section 9 is necessary to the owner or person interested in the land and on expiry of 15 days from the date of the notice under Section 9 the Government is entitled to take possession of the land. By operation of Sub-section (2) of Section 17 though award has not been made under Section 11 the land stands vested in the Government, free from all encumbrances. In the State of UP an amendment has been made by UP Amendment Act repeal 32 of 1990 and the Land Acquisition [Validation] Act 1991, (UP Act 5 of 1991), which had come into force w.e.f. September 24, 1984, envisaging insertion of a proviso to sub-section (4) of Section 17 which reads thus: "In Section 17 of the Land Acquisition Act, 1894, as amended in its application to Uttar Pradesh, hereinafter referred to as the principal Act, in sub-section (4) the following proviso shall be inserted at the en d and shall be deemed to have been inserted on September 24, 1984, namely, Provided that where in the case of any land, notification under Section 4, sub-section (1) has been published in the Official Gazette on or after September 24, 1984 but before January 11, 1989 and the appropriate Government has under this sub-section directed that the provisions of Section 5-A shall not apply, a declaration under Section 6 in respect of the land may be made either simultaneously with or at any time after the publication in the Official Gazette of the notification under Section 4, sub-section (1)." 8. In other words by operation of the proviso to Section 17(4) in relation to its application to the State of UP, Notification under Section 4(1) and the declaration under Section 6 would simultaneously be published. The appropriate Authority is empowered to issue notice under Section 9 and take possess ion on expiry of 15 days. The High Court, therefore, was not correct in its conclusion that the Government would not have published simultaneously the notification under Section 4(1) and the declaration under Section 6 and immediately taken possession of the land in question.9. In that view of the matter, the decision of the High Court in the impugned judgment is clearly illegal. 10. The | 1[ds]6. In other words, the mandatory requirement of the publication of the notification in the locality was dispensed with in a case where the Government had opined that the land was urgently needed, under Section 17(4). When the authorities have dispensed with the enquiry under Section 5A, the requirement of local publication shall not apply. Consequently, the finding of the High Court is unsustainable. It is rather un fortunate that this amendment was not brought to the notice of the High Court when the writ petition was allowed. But operation of the statutory local amendment to the Act has dispensed with local publication in two newspapers. The notification under Section 4 [1] is not vitiated for non-publication of the notification in the local newspapers.In other words by operation of the proviso to Section 17(4) in relation to its application to the State of UP, Notification under Section 4(1) and the declaration under Section 6 would simultaneously be published. The appropriate Authority is empowered to issue notice under Section 9 and take possess ion on expiry of 15 days. The High Court, therefore, was not correct in its conclusion that the Government would not have published simultaneously the notification under Section 4(1) and the declaration under Section 6 and immediately taken possession of the land in question.9. In that view of the matter, the decision of the High Court in the impugned judgment is clearly illegal. | 1 | 1,126 | 271 | ### 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:
1. Leave granted. 2. Though notice has been served on the contesting respondents, they have not appeared either in person or through counsel. 3. We have heard Shri O.P. Rana, learned senior counsel for the petitioner. The acquisition of the land by the Ghaziabad Development Authority was initiated by notification of February 25, 1986, under Section 4 (1) of the Land Acquisition Act, 1894 (for short, the Act); enquiry under Sect ion 5A was dispensed with under Section 17(4) of the Act and the Declaration under Section 6 was made on February 26, 1986. Both the notifications and declaration were simultaneously published on April 10, 1986.4. The respondents 1 and 2 have filed writ petition No.7155/86 in the High Court of Allahabad challenging the validity of the notification under Section 4(1) on the ground that local publication as required under Section 4(1) was not made. The exercise of the power under Section 17(4) was also wrongly invoked, as simultaneously notification under Section 4(1) and declaration under Section 6 could not be published. The High Court accepted the contentions and by impugned order dated November 3, 1987, allowed the writ petition and quashed the notification of Section 4(1) and the declaration under Section 6. Thus this appeal by special leave. 5. Section 4(1) of the Act envisages whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any Public purpose or for a company a notification to that effect shall be published in the official Gazette and in two daily newspapers circulating in that locality of which at least one shall be in the regional language. This was added by Amendment Act 68 of 1984. Earlier thereto under the local amendment of U.P., publication in one newspaper was sufficient. The Collector is required to cause public notice of the substance of such notification to be given at convenient places in the said locality. The State of UP made amendment to Section 4 by UP Land Acquisition VIII of 1974/XXII of 1954, whereunder between the words "and" and the word "Collector" the following shall be inserted and be deemed always to have been inserted. The proviso thereto was added as under: "Except in the case of any land to which by virtue of a direction of the State Government under sub section 4 of Section 17 the provision of Section 5 A shall not apply". 6. In other words, the mandatory requirement of the publication of the notification in the locality was dispensed with in a case where the Government had opined that the land was urgently needed, under Section 17(4). When the authorities have dispensed with the enquiry under Section 5A, the requirement of local publication shall not apply. Consequently, the finding of the High Court is unsustainable. It is rather un fortunate that this amendment was not brought to the notice of the High Court when the writ petition was allowed. But operation of the statutory local amendment to the Act has dispensed with local publication in two newspapers. The notification under Section 4 [1] is not vitiated for non-publication of the notification in the local newspapers. 7. The next question is whether Section 17(4) applies and the action taken was inconsistent with the provisions of the Act. It is seen that but for local amendment, on publication of the notification under Section 4(1) and exercising of the power under Section 17(4), the publication of the declaration under Section 6 is mandatory pre-condition for taking possession of the l and. Even on publication of declaration under Section 6, notice under Section 9 is necessary to the owner or person interested in the land and on expiry of 15 days from the date of the notice under Section 9 the Government is entitled to take possession of the land. By operation of Sub-section (2) of Section 17 though award has not been made under Section 11 the land stands vested in the Government, free from all encumbrances. In the State of UP an amendment has been made by UP Amendment Act repeal 32 of 1990 and the Land Acquisition [Validation] Act 1991, (UP Act 5 of 1991), which had come into force w.e.f. September 24, 1984, envisaging insertion of a proviso to sub-section (4) of Section 17 which reads thus: "In Section 17 of the Land Acquisition Act, 1894, as amended in its application to Uttar Pradesh, hereinafter referred to as the principal Act, in sub-section (4) the following proviso shall be inserted at the en d and shall be deemed to have been inserted on September 24, 1984, namely, Provided that where in the case of any land, notification under Section 4, sub-section (1) has been published in the Official Gazette on or after September 24, 1984 but before January 11, 1989 and the appropriate Government has under this sub-section directed that the provisions of Section 5-A shall not apply, a declaration under Section 6 in respect of the land may be made either simultaneously with or at any time after the publication in the Official Gazette of the notification under Section 4, sub-section (1)." 8. In other words by operation of the proviso to Section 17(4) in relation to its application to the State of UP, Notification under Section 4(1) and the declaration under Section 6 would simultaneously be published. The appropriate Authority is empowered to issue notice under Section 9 and take possess ion on expiry of 15 days. The High Court, therefore, was not correct in its conclusion that the Government would not have published simultaneously the notification under Section 4(1) and the declaration under Section 6 and immediately taken possession of the land in question.9. In that view of the matter, the decision of the High Court in the impugned judgment is clearly illegal. 10. The
### Response:
1
### Explanation:
6. In other words, the mandatory requirement of the publication of the notification in the locality was dispensed with in a case where the Government had opined that the land was urgently needed, under Section 17(4). When the authorities have dispensed with the enquiry under Section 5A, the requirement of local publication shall not apply. Consequently, the finding of the High Court is unsustainable. It is rather un fortunate that this amendment was not brought to the notice of the High Court when the writ petition was allowed. But operation of the statutory local amendment to the Act has dispensed with local publication in two newspapers. The notification under Section 4 [1] is not vitiated for non-publication of the notification in the local newspapers.In other words by operation of the proviso to Section 17(4) in relation to its application to the State of UP, Notification under Section 4(1) and the declaration under Section 6 would simultaneously be published. The appropriate Authority is empowered to issue notice under Section 9 and take possess ion on expiry of 15 days. The High Court, therefore, was not correct in its conclusion that the Government would not have published simultaneously the notification under Section 4(1) and the declaration under Section 6 and immediately taken possession of the land in question.9. In that view of the matter, the decision of the High Court in the impugned judgment is clearly illegal.
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A.R. MADANA GOPAL ETC.ETC Vs. M/S RAMNATH PUBLICATIONS PVT. LTD. AND ANR | of MOUs. A plain reading of clause 3 in the MOUs would show that the Appellants were required to pay the balance sale consideration at the time of the registration of the sale deeds immediately when the Writ Petition is disposed of upholding the sale agreement. The High Court further found fault with the Appellants in waiting for 2 years and 3 months after the disposal of the Writ Petition for filing the suits. The High Court refused to grant relief of specific performance to the Appellants on the ground that there was total inaction on the part of the Appellants for more than two years after the parties entered into the MOU. Though, it was pleaded by the Appellants in the suits that they were always ready and willing to perform their part of the agreement, the High Court was of the opinion that they did not prove the same as they did not pay the balance sale consideration immediately after the disposal of the Writ petition. We find force in the submission made on behalf of the Appellants that payment of balance consideration has to be done only at the time of the registration of the sale deeds. Admittedly, no steps were taken for the registration of the sale deeds. The finding of the Division Bench of the High Court that the Appellants were not ready and willing to perform their part of the contract by not paying the balance consideration immediately after disposal of the Writ Petition is erroneous. 12. The Division Bench of the High Court agreed with the contention of the Appellants that mere fixation of time within which the contract was to be performed does not make the stipulation as to time being of the essence of the contract. However, the Appellants were found guilty of total inaction on their part. The sole ground for denial of relief to the Appellants is non payment of balance consideration immediately after disposal of the Writ Petition. The said conclusion is the result of a faulty interpretation of clause 3 of the MOUs as stated earlier. 13. The High Court highlighted the conduct of the Appellants to deny relief. The failure of the Appellants in not pleading and proving how they were put in possession of a part of the property, the frivolous complaint about vacant possession not being given by the Respondents and the attempt made by the Appellants to take forcible possession of a part of the property were commented upon to hold that the Appellants were disentitled to equitable relief. There is not dispute that the Appellants were in possession of the first floor of the property. Details about the manner in which possession was given to the Appellants not being pleaded cannot be a ground to deny relief. The contention of the Appellants before the High Court was that the Respondents should demolish the super structure and hand over vacant possession of the land. The High Court observed that the Appellants who were in possession of a part of the property cannot make such an inane plea. According to the terms of the agreement, the Respondents had to hand over vacant possession of the land. The Appellants submitted that no steps were taken to demolish the structure to highlight the inaction on the part of the Respondents. By no stretch of imagination, can it be said that the Appellants can be denied relief on this account. Yet another reason given by the Division Bench of the High Court is that the Appellants made an attempt to trespass into the ground floor where the Indian Bank was a tenant. The contention of the Appellants is that the Indian Bank was not a tenant in the ground floor but only a creditor of the Respondents. Admittedly, the Indian Bank sued the Respondents for recovery of the loan by the sale of the hypothecated goods stored in the ground floor. It was also contended on behalf of the Appellants that a police complaint was preferred by them against the Respondents for causing disturbance to their possession. The Appellants cannot be said to be disentitled for a relief of specific performance on the ground that their conduct on this count is blameworthy. 14. A suit for specific performance cannot be dismissed on the sole ground of delay or laches. However, an exception to this rule is where an immovable property is to be sold within a certain period, time being of the essence, and it is not found that owing to some default on the part of the plaintiff, the sale could not take place within the stipulated time. Once a suit for specific performance has been filed, any delay as a result of the Court process cannot be put against the plaintiff as a matter of law in decreeing specific performance. However, it is within the discretion of the Court, regard being had to the facts of each case, as to whether some additional amount ought or ought not to be paid by the plaintiff once a decree of specific performance is passed in its favour even at the appellate stage (Ferrodous Estates (Pvt) Ltd. v. P. Gopirathnam (Dead) and Others, 2020 SCC OnLine SC 825) . We are in agreement with the Appellants that they did not file the civil suits immediately after the disposal of the Writ Petition in 1998 due to the pendency of Writ Appeals. Escalation of prices cannot be the sole ground to deny specific performance (Nirmala Anand v. Advent Corpn. (P) Ltd ., (2002) 8 SCC 146 ) . We are of the considered view that the Respondents are not entitled for any additional amount as 90 per cent of the sale consideration was paid by the Appellants before 1994. It is not necessary for us to deal with the submission of the Appellants regarding the applicability of the amendment to the Specific Relief Act, 1963, in view of the conclusion that we have reached in favour of the Appellants. | 1[ds]11. There is no dispute about the agreements dated 20.03.1991 and the MOUs between the parties. It is also a fact that Income Tax Department wanted to compulsorily acquire the property, due to which Writ Petitions were filed which were disposed of on 11.09.1998. Writ Appeals filed by the Department were pending on the date of filing of the suit. The relevant clause in the MOU is that the Appellants shall pay the balance sale consideration at the time of registration of sale deeds immediately after the disposal of the Writ Petition. The Division Bench of the High Court in the impugned judgment held that the Appellants were not ready and willing to perform their part of the agreement by not depositing the balance sale consideration immediately after the disposal of the Writ Petition. The High Court lost sight of the words at the time of registration of sale in clause 3 of MOUs. A plain reading of clause 3 in the MOUs would show that the Appellants were required to pay the balance sale consideration at the time of the registration of the sale deeds immediately when the Writ Petition is disposed of upholding the sale agreement. The High Court further found fault with the Appellants in waiting for 2 years and 3 months after the disposal of the Writ Petition for filing the suits. The High Court refused to grant relief of specific performance to the Appellants on the ground that there was total inaction on the part of the Appellants for more than two years after the parties entered into the MOU. Though, it was pleaded by the Appellants in the suits that they were always ready and willing to perform their part of the agreement, the High Court was of the opinion that they did not prove the same as they did not pay the balance sale consideration immediately after the disposal of the Writ petition. We find force in the submission made on behalf of the Appellants that payment of balance consideration has to be done only at the time of the registration of the sale deeds. Admittedly, no steps were taken for the registration of the sale deeds. The finding of the Division Bench of the High Court that the Appellants were not ready and willing to perform their part of the contract by not paying the balance consideration immediately after disposal of the Writ Petition is erroneous.12. The Division Bench of the High Court agreed with the contention of the Appellants that mere fixation of time within which the contract was to be performed does not make the stipulation as to time being of the essence of the contract. However, the Appellants were found guilty of total inaction on their part. The sole ground for denial of relief to the Appellants is non payment of balance consideration immediately after disposal of the Writ Petition. The said conclusion is the result of a faulty interpretation of clause 3 of the MOUs as stated earlier.13. The High Court highlighted the conduct of the Appellants to deny relief. The failure of the Appellants in not pleading and proving how they were put in possession of a part of the property, the frivolous complaint about vacant possession not being given by the Respondents and the attempt made by the Appellants to take forcible possession of a part of the property were commented upon to hold that the Appellants were disentitled to equitable relief. There is not dispute that the Appellants were in possession of the first floor of the property. Details about the manner in which possession was given to the Appellants not being pleaded cannot be a ground to deny relief. The contention of the Appellants before the High Court was that the Respondents should demolish the super structure and hand over vacant possession of the land. The High Court observed that the Appellants who were in possession of a part of the property cannot make such an inane plea. According to the terms of the agreement, the Respondents had to hand over vacant possession of the land. The Appellants submitted that no steps were taken to demolish the structure to highlight the inaction on the part of the Respondents. By no stretch of imagination, can it be said that the Appellants can be denied relief on this account. Yet another reason given by the Division Bench of the High Court is that the Appellants made an attempt to trespass into the ground floor where the Indian Bank was a tenant. The contention of the Appellants is that the Indian Bank was not a tenant in the ground floor but only a creditor of the Respondents. Admittedly, the Indian Bank sued the Respondents for recovery of the loan by the sale of the hypothecated goods stored in the ground floor. It was also contended on behalf of the Appellants that a police complaint was preferred by them against the Respondents for causing disturbance to their possession. The Appellants cannot be said to be disentitled for a relief of specific performance on the ground that their conduct on this count is blameworthy.14. A suit for specific performance cannot be dismissed on the sole ground of delay or laches. However, an exception to this rule is where an immovable property is to be sold within a certain period, time being of the essence, and it is not found that owing to some default on the part of the plaintiff, the sale could not take place within the stipulated time. Once a suit for specific performance has been filed, any delay as a result of the Court process cannot be put against the plaintiff as a matter of law in decreeing specific performance. However, it is within the discretion of the Court, regard being had to the facts of each case, as to whether some additional amount ought or ought not to be paid by the plaintiff once a decree of specific performance is passed in its favour even at the appellate stage (Ferrodous Estates (Pvt) Ltd. v. P. Gopirathnam (Dead) and Others, 2020 SCC OnLine SC 825) . We are in agreement with the Appellants that they did not file the civil suits immediately after the disposal of the Writ Petition in 1998 due to the pendency of Writ Appeals. Escalation of prices cannot be the sole ground to deny specific performance (Nirmala Anand v. Advent Corpn. (P) Ltd ., (2002) 8 SCC 146 ) . We are of the considered view that the Respondents are not entitled for any additional amount as 90 per cent of the sale consideration was paid by the Appellants before 1994. It is not necessary for us to deal with the submission of the Appellants regarding the applicability of the amendment to the Specific Relief Act, 1963, in view of the conclusion that we have reached in favour of the Appellants. | 1 | 3,420 | 1,230 | ### 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:
of MOUs. A plain reading of clause 3 in the MOUs would show that the Appellants were required to pay the balance sale consideration at the time of the registration of the sale deeds immediately when the Writ Petition is disposed of upholding the sale agreement. The High Court further found fault with the Appellants in waiting for 2 years and 3 months after the disposal of the Writ Petition for filing the suits. The High Court refused to grant relief of specific performance to the Appellants on the ground that there was total inaction on the part of the Appellants for more than two years after the parties entered into the MOU. Though, it was pleaded by the Appellants in the suits that they were always ready and willing to perform their part of the agreement, the High Court was of the opinion that they did not prove the same as they did not pay the balance sale consideration immediately after the disposal of the Writ petition. We find force in the submission made on behalf of the Appellants that payment of balance consideration has to be done only at the time of the registration of the sale deeds. Admittedly, no steps were taken for the registration of the sale deeds. The finding of the Division Bench of the High Court that the Appellants were not ready and willing to perform their part of the contract by not paying the balance consideration immediately after disposal of the Writ Petition is erroneous. 12. The Division Bench of the High Court agreed with the contention of the Appellants that mere fixation of time within which the contract was to be performed does not make the stipulation as to time being of the essence of the contract. However, the Appellants were found guilty of total inaction on their part. The sole ground for denial of relief to the Appellants is non payment of balance consideration immediately after disposal of the Writ Petition. The said conclusion is the result of a faulty interpretation of clause 3 of the MOUs as stated earlier. 13. The High Court highlighted the conduct of the Appellants to deny relief. The failure of the Appellants in not pleading and proving how they were put in possession of a part of the property, the frivolous complaint about vacant possession not being given by the Respondents and the attempt made by the Appellants to take forcible possession of a part of the property were commented upon to hold that the Appellants were disentitled to equitable relief. There is not dispute that the Appellants were in possession of the first floor of the property. Details about the manner in which possession was given to the Appellants not being pleaded cannot be a ground to deny relief. The contention of the Appellants before the High Court was that the Respondents should demolish the super structure and hand over vacant possession of the land. The High Court observed that the Appellants who were in possession of a part of the property cannot make such an inane plea. According to the terms of the agreement, the Respondents had to hand over vacant possession of the land. The Appellants submitted that no steps were taken to demolish the structure to highlight the inaction on the part of the Respondents. By no stretch of imagination, can it be said that the Appellants can be denied relief on this account. Yet another reason given by the Division Bench of the High Court is that the Appellants made an attempt to trespass into the ground floor where the Indian Bank was a tenant. The contention of the Appellants is that the Indian Bank was not a tenant in the ground floor but only a creditor of the Respondents. Admittedly, the Indian Bank sued the Respondents for recovery of the loan by the sale of the hypothecated goods stored in the ground floor. It was also contended on behalf of the Appellants that a police complaint was preferred by them against the Respondents for causing disturbance to their possession. The Appellants cannot be said to be disentitled for a relief of specific performance on the ground that their conduct on this count is blameworthy. 14. A suit for specific performance cannot be dismissed on the sole ground of delay or laches. However, an exception to this rule is where an immovable property is to be sold within a certain period, time being of the essence, and it is not found that owing to some default on the part of the plaintiff, the sale could not take place within the stipulated time. Once a suit for specific performance has been filed, any delay as a result of the Court process cannot be put against the plaintiff as a matter of law in decreeing specific performance. However, it is within the discretion of the Court, regard being had to the facts of each case, as to whether some additional amount ought or ought not to be paid by the plaintiff once a decree of specific performance is passed in its favour even at the appellate stage (Ferrodous Estates (Pvt) Ltd. v. P. Gopirathnam (Dead) and Others, 2020 SCC OnLine SC 825) . We are in agreement with the Appellants that they did not file the civil suits immediately after the disposal of the Writ Petition in 1998 due to the pendency of Writ Appeals. Escalation of prices cannot be the sole ground to deny specific performance (Nirmala Anand v. Advent Corpn. (P) Ltd ., (2002) 8 SCC 146 ) . We are of the considered view that the Respondents are not entitled for any additional amount as 90 per cent of the sale consideration was paid by the Appellants before 1994. It is not necessary for us to deal with the submission of the Appellants regarding the applicability of the amendment to the Specific Relief Act, 1963, in view of the conclusion that we have reached in favour of the Appellants.
### Response:
1
### Explanation:
in clause 3 of MOUs. A plain reading of clause 3 in the MOUs would show that the Appellants were required to pay the balance sale consideration at the time of the registration of the sale deeds immediately when the Writ Petition is disposed of upholding the sale agreement. The High Court further found fault with the Appellants in waiting for 2 years and 3 months after the disposal of the Writ Petition for filing the suits. The High Court refused to grant relief of specific performance to the Appellants on the ground that there was total inaction on the part of the Appellants for more than two years after the parties entered into the MOU. Though, it was pleaded by the Appellants in the suits that they were always ready and willing to perform their part of the agreement, the High Court was of the opinion that they did not prove the same as they did not pay the balance sale consideration immediately after the disposal of the Writ petition. We find force in the submission made on behalf of the Appellants that payment of balance consideration has to be done only at the time of the registration of the sale deeds. Admittedly, no steps were taken for the registration of the sale deeds. The finding of the Division Bench of the High Court that the Appellants were not ready and willing to perform their part of the contract by not paying the balance consideration immediately after disposal of the Writ Petition is erroneous.12. The Division Bench of the High Court agreed with the contention of the Appellants that mere fixation of time within which the contract was to be performed does not make the stipulation as to time being of the essence of the contract. However, the Appellants were found guilty of total inaction on their part. The sole ground for denial of relief to the Appellants is non payment of balance consideration immediately after disposal of the Writ Petition. The said conclusion is the result of a faulty interpretation of clause 3 of the MOUs as stated earlier.13. The High Court highlighted the conduct of the Appellants to deny relief. The failure of the Appellants in not pleading and proving how they were put in possession of a part of the property, the frivolous complaint about vacant possession not being given by the Respondents and the attempt made by the Appellants to take forcible possession of a part of the property were commented upon to hold that the Appellants were disentitled to equitable relief. There is not dispute that the Appellants were in possession of the first floor of the property. Details about the manner in which possession was given to the Appellants not being pleaded cannot be a ground to deny relief. The contention of the Appellants before the High Court was that the Respondents should demolish the super structure and hand over vacant possession of the land. The High Court observed that the Appellants who were in possession of a part of the property cannot make such an inane plea. According to the terms of the agreement, the Respondents had to hand over vacant possession of the land. The Appellants submitted that no steps were taken to demolish the structure to highlight the inaction on the part of the Respondents. By no stretch of imagination, can it be said that the Appellants can be denied relief on this account. Yet another reason given by the Division Bench of the High Court is that the Appellants made an attempt to trespass into the ground floor where the Indian Bank was a tenant. The contention of the Appellants is that the Indian Bank was not a tenant in the ground floor but only a creditor of the Respondents. Admittedly, the Indian Bank sued the Respondents for recovery of the loan by the sale of the hypothecated goods stored in the ground floor. It was also contended on behalf of the Appellants that a police complaint was preferred by them against the Respondents for causing disturbance to their possession. The Appellants cannot be said to be disentitled for a relief of specific performance on the ground that their conduct on this count is blameworthy.14. A suit for specific performance cannot be dismissed on the sole ground of delay or laches. However, an exception to this rule is where an immovable property is to be sold within a certain period, time being of the essence, and it is not found that owing to some default on the part of the plaintiff, the sale could not take place within the stipulated time. Once a suit for specific performance has been filed, any delay as a result of the Court process cannot be put against the plaintiff as a matter of law in decreeing specific performance. However, it is within the discretion of the Court, regard being had to the facts of each case, as to whether some additional amount ought or ought not to be paid by the plaintiff once a decree of specific performance is passed in its favour even at the appellate stage (Ferrodous Estates (Pvt) Ltd. v. P. Gopirathnam (Dead) and Others, 2020 SCC OnLine SC 825) . We are in agreement with the Appellants that they did not file the civil suits immediately after the disposal of the Writ Petition in 1998 due to the pendency of Writ Appeals. Escalation of prices cannot be the sole ground to deny specific performance (Nirmala Anand v. Advent Corpn. (P) Ltd ., (2002) 8 SCC 146 ) . We are of the considered view that the Respondents are not entitled for any additional amount as 90 per cent of the sale consideration was paid by the Appellants before 1994. It is not necessary for us to deal with the submission of the Appellants regarding the applicability of the amendment to the Specific Relief Act, 1963, in view of the conclusion that we have reached in favour of the Appellants.
|
M/s. Arcot Textile Mills Ltd Vs. The Regional Provident Fund Commissioner & Others | But in reality when an independent order is passed under Section 7Q which can also be done as has been done in the present case the affected person, we are inclined to think, should have the right to file an objection if he intends to do. We are disposed to think so, when a demand of this nature is made, it can not be said that no prejudice is caused. It is highlighted by the respondents that once the amount due is determined the levy of interest is automatic. The rate of interest is stipulated at 12 per cent or at a higher rate if so is provided in the scheme. Despite this, there can be errors with regard to the period and the calculation. It is a statutory power which is exercised by the competent authority under the Act. Once the said authority takes recourse to the measure for computation and sends a bald order definitely the affected person can ask for clarification and when computation sheet is provided to him he can file an objection. Though, the area of delineation would be extremely limited yet the said opportunity cannot be denied to the affected person. 25. We may state with profit that principles of natural justice should neither be treated with absolute rigidity nor should they be imprisoned in a straight-jacket. It has been held in Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corpn. Ltd., Haldia and Others [(2005) 7 SCC 764] that the maxim audi alteram partem cannot be invoked if the import of such maxim would have the effect of paralyzing the administrative process or where the need for promptitude or the urgency so demands. It has been stated therein that the approach of the Court in dealing with such cases should be pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than precedential. The concept of natural justice sometimes requires flexibility in the application of the rule. What is required to be seen the ultimate weighing on the balance of fairness. The requirements of natural justice depend upon the circumstances of the case. 26. In Natwar Singh v. Director of Enforcement and Another [(2010) 13 SCC 255] , this Court while discussing about the applicability of the rule had reproduced the following passage:- “It is not possible to lay down rigid rules as to when the principles of natural justice are to apply: nor as to their scope and extent. Everything depends on the subject-matter:” [see R. v. Gaming Board for Great Britain, ex p Benaim and Khaida [(1970) 2 QB 417] at QB p. 430 C], observed Lord Denning, M.R.... Their application, resting as it does upon statutory implication, must always be in conformity with the scheme of the Act and with the subject-matter of the case.” 27. In this context, we may fruitfully refer to the verdict in Kesar Enterprises Limited v. State of Uttar Praesh and Others [(2011) 13 SCC 733] wherein the Court was considering the applicability of principles of natural justice to Rule 633(7) of the Uttar Pradesh Excise Manual. The said Rule provided that if certificate was not received within the time mentioned in the bond or pass, or if the condition of bond was infringed, the Collector of the exporting district or the Excise Inspector who granted the pass shall take necessary steps to recover from executant or his surety the penalty due under the bond. A two-Judge Bench referred to the decisions in Swadeshi Cotton Mills v. Union of India [(1981) 1 SCC 664] , Canara Bank v. V.K. Awasthy [(2005) 6 SCC 321] and Sahara India (Firm) v. CIT [(2008) 14 SCC 151] and came to hold as follows:- “30. ... we are of the opinion that keeping in view the nature, scope and consequences of direction under sub-rule (7) of Rule 633 of the Excise Manual, the principles of natural justice demand that a show-cause notice should be issued and an opportunity of hearing should be afforded to the person concerned before an order under the said Rule is made, notwithstanding the fact that the said Rule does not contain any express provision for the affected party being given an opportunity of being heard.” 28. Regard being had to the discussions made and the law stated in the field, we are of the considered opinion that natural justice has many facets. Sometimes, the said doctrine applied in a broad way, sometimes in a limited or narrow manner. Therefore, there has to be a limited enquiry only to the realm of computation which is statutorily provided regard being had to the range of delay. Beyond that nothing is permissible. We are disposed to think so, for when an independent order is passed making a demand, the employer cannot be totally remediless and would have no right even to file an objection pertaining to computation. Hence, we hold that an objection can be filed challenging the computation in a limited spectrum which shall be dealt with in a summary manner by the Competent Authority. 29. In the present case, it is manifest from the record that the appellant had already deposited a sum of Rs.34,00,000/- before the Competent Authority and sought for supply of the calculation sheet the basis on which the computation had been made so that it could reconcile the accounts. We think it appropriate to direct that the computation sheets shall be provided to the appellant within three weeks and it shall file its objection within two weeks therefrom and thereafter the Competent Authority shall fix a date for reconciliation of the accounts. However, regard being had to the fact that the Act is a piece of social welfare legislation, we direct the appellant to deposit a further sum of Rs.16,00,000/- within a period of four weeks from today. If the amount is not deposited within the time stipulated hereinabove, the entire amount would be leviable and the right to file objection shall stand extinguished. 30. | 1[ds]On a perusal of the aforesaid provision it is evident that an appeal to the tribunal lies in respect of certain action of the Central Government or order passed by the Central Government or any authority on certain provisions of the Act. We have scanned the anatomy of the said provisions before. On a studied scrutiny, it is quite vivid that though an appeal lies against recovery of damages under Section 14B of the Act, no appeal is provided for against imposition of interest as stipulated under Section 7Q. It is seemly to note here that Section 14B has been enacted to penalize the defaulting employers as also to provide reparation for the amount of loss suffered by the employees. It is not only a warning to employers in general not to commit a breach of the statutory requirements but at the same time it is meant to provide compensation or redress to the beneficiaries, i.e., to recompense the employees for the loss sustained by them. The entire amount of damages awarded under Section 14B except for the amount relatable to administrative charges is to be transferred to theit is evident that the appellant had sent a communication dated 3.10.2007 to the Regional Provident Fund Commissioner submitting that that establishment could not pay the provision fund dues from 1998 due to financial crisis, etc. and it was remitting Rs.83,01,037.80 (Rupees eighty three lacs one thousand thirty seven and eighty paise only) from 1998 to April 2006. Under these circumstances, there was no adjudication with regard to liability as the appellant company had accepted the fault on its own. As it appears the respondent does not have any cavil with regard to the dues payable towards the provident fund by the appellant to the company. What is disputed is that the third respondent issued a demand notice on 23.10.2007 requiring the appellant to remit a sum of Rs.94,27,334/- towards interest under Section 7Q of the Act for the belated remittances made from December 1998 to April 2006. The letter stated a computation sheet was attached to said demand notice which was rebutted by the petitioner by sending a communication stating that it was not sent and it may be provided so that they may reconcile the accounts. The demand notice manifestly has been issued in exercise of power under Section 7Q of the Act and is an independent action and against such an order or issue of demand no appeal could have been filed. Therefore, the conclusion of the learned Single Judge as well as by the Division Bench on the said score is nothold that an objection can be filed challenging the computation in a limited spectrum which shall be dealt with in a summary manner by the Competentis manifest from the record that the appellant had already deposited a sum of Rs.34,00,000/- before the Competent Authority and sought for supply of the calculation sheet the basis on which the computation had been made so that it could reconcile the accounts. We think it appropriate to direct that the computation sheets shall be provided to the appellant within three weeks and it shall file its objection within two weeks therefrom and thereafter the Competent Authority shall fix a date for reconciliation of the accounts. However, regard being had to the fact that the Act is a piece of social welfare legislation, we direct the appellant to deposit a further sum of Rs.16,00,000/- within a period of four weeks from today. If the amount is not deposited within the time stipulated hereinabove, the entire amount would be leviable and the right to file objection shall stand extinguished. | 1 | 5,725 | 638 | ### Instruction:
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### Input:
But in reality when an independent order is passed under Section 7Q which can also be done as has been done in the present case the affected person, we are inclined to think, should have the right to file an objection if he intends to do. We are disposed to think so, when a demand of this nature is made, it can not be said that no prejudice is caused. It is highlighted by the respondents that once the amount due is determined the levy of interest is automatic. The rate of interest is stipulated at 12 per cent or at a higher rate if so is provided in the scheme. Despite this, there can be errors with regard to the period and the calculation. It is a statutory power which is exercised by the competent authority under the Act. Once the said authority takes recourse to the measure for computation and sends a bald order definitely the affected person can ask for clarification and when computation sheet is provided to him he can file an objection. Though, the area of delineation would be extremely limited yet the said opportunity cannot be denied to the affected person. 25. We may state with profit that principles of natural justice should neither be treated with absolute rigidity nor should they be imprisoned in a straight-jacket. It has been held in Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corpn. Ltd., Haldia and Others [(2005) 7 SCC 764] that the maxim audi alteram partem cannot be invoked if the import of such maxim would have the effect of paralyzing the administrative process or where the need for promptitude or the urgency so demands. It has been stated therein that the approach of the Court in dealing with such cases should be pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than precedential. The concept of natural justice sometimes requires flexibility in the application of the rule. What is required to be seen the ultimate weighing on the balance of fairness. The requirements of natural justice depend upon the circumstances of the case. 26. In Natwar Singh v. Director of Enforcement and Another [(2010) 13 SCC 255] , this Court while discussing about the applicability of the rule had reproduced the following passage:- “It is not possible to lay down rigid rules as to when the principles of natural justice are to apply: nor as to their scope and extent. Everything depends on the subject-matter:” [see R. v. Gaming Board for Great Britain, ex p Benaim and Khaida [(1970) 2 QB 417] at QB p. 430 C], observed Lord Denning, M.R.... Their application, resting as it does upon statutory implication, must always be in conformity with the scheme of the Act and with the subject-matter of the case.” 27. In this context, we may fruitfully refer to the verdict in Kesar Enterprises Limited v. State of Uttar Praesh and Others [(2011) 13 SCC 733] wherein the Court was considering the applicability of principles of natural justice to Rule 633(7) of the Uttar Pradesh Excise Manual. The said Rule provided that if certificate was not received within the time mentioned in the bond or pass, or if the condition of bond was infringed, the Collector of the exporting district or the Excise Inspector who granted the pass shall take necessary steps to recover from executant or his surety the penalty due under the bond. A two-Judge Bench referred to the decisions in Swadeshi Cotton Mills v. Union of India [(1981) 1 SCC 664] , Canara Bank v. V.K. Awasthy [(2005) 6 SCC 321] and Sahara India (Firm) v. CIT [(2008) 14 SCC 151] and came to hold as follows:- “30. ... we are of the opinion that keeping in view the nature, scope and consequences of direction under sub-rule (7) of Rule 633 of the Excise Manual, the principles of natural justice demand that a show-cause notice should be issued and an opportunity of hearing should be afforded to the person concerned before an order under the said Rule is made, notwithstanding the fact that the said Rule does not contain any express provision for the affected party being given an opportunity of being heard.” 28. Regard being had to the discussions made and the law stated in the field, we are of the considered opinion that natural justice has many facets. Sometimes, the said doctrine applied in a broad way, sometimes in a limited or narrow manner. Therefore, there has to be a limited enquiry only to the realm of computation which is statutorily provided regard being had to the range of delay. Beyond that nothing is permissible. We are disposed to think so, for when an independent order is passed making a demand, the employer cannot be totally remediless and would have no right even to file an objection pertaining to computation. Hence, we hold that an objection can be filed challenging the computation in a limited spectrum which shall be dealt with in a summary manner by the Competent Authority. 29. In the present case, it is manifest from the record that the appellant had already deposited a sum of Rs.34,00,000/- before the Competent Authority and sought for supply of the calculation sheet the basis on which the computation had been made so that it could reconcile the accounts. We think it appropriate to direct that the computation sheets shall be provided to the appellant within three weeks and it shall file its objection within two weeks therefrom and thereafter the Competent Authority shall fix a date for reconciliation of the accounts. However, regard being had to the fact that the Act is a piece of social welfare legislation, we direct the appellant to deposit a further sum of Rs.16,00,000/- within a period of four weeks from today. If the amount is not deposited within the time stipulated hereinabove, the entire amount would be leviable and the right to file objection shall stand extinguished. 30.
### Response:
1
### Explanation:
On a perusal of the aforesaid provision it is evident that an appeal to the tribunal lies in respect of certain action of the Central Government or order passed by the Central Government or any authority on certain provisions of the Act. We have scanned the anatomy of the said provisions before. On a studied scrutiny, it is quite vivid that though an appeal lies against recovery of damages under Section 14B of the Act, no appeal is provided for against imposition of interest as stipulated under Section 7Q. It is seemly to note here that Section 14B has been enacted to penalize the defaulting employers as also to provide reparation for the amount of loss suffered by the employees. It is not only a warning to employers in general not to commit a breach of the statutory requirements but at the same time it is meant to provide compensation or redress to the beneficiaries, i.e., to recompense the employees for the loss sustained by them. The entire amount of damages awarded under Section 14B except for the amount relatable to administrative charges is to be transferred to theit is evident that the appellant had sent a communication dated 3.10.2007 to the Regional Provident Fund Commissioner submitting that that establishment could not pay the provision fund dues from 1998 due to financial crisis, etc. and it was remitting Rs.83,01,037.80 (Rupees eighty three lacs one thousand thirty seven and eighty paise only) from 1998 to April 2006. Under these circumstances, there was no adjudication with regard to liability as the appellant company had accepted the fault on its own. As it appears the respondent does not have any cavil with regard to the dues payable towards the provident fund by the appellant to the company. What is disputed is that the third respondent issued a demand notice on 23.10.2007 requiring the appellant to remit a sum of Rs.94,27,334/- towards interest under Section 7Q of the Act for the belated remittances made from December 1998 to April 2006. The letter stated a computation sheet was attached to said demand notice which was rebutted by the petitioner by sending a communication stating that it was not sent and it may be provided so that they may reconcile the accounts. The demand notice manifestly has been issued in exercise of power under Section 7Q of the Act and is an independent action and against such an order or issue of demand no appeal could have been filed. Therefore, the conclusion of the learned Single Judge as well as by the Division Bench on the said score is nothold that an objection can be filed challenging the computation in a limited spectrum which shall be dealt with in a summary manner by the Competentis manifest from the record that the appellant had already deposited a sum of Rs.34,00,000/- before the Competent Authority and sought for supply of the calculation sheet the basis on which the computation had been made so that it could reconcile the accounts. We think it appropriate to direct that the computation sheets shall be provided to the appellant within three weeks and it shall file its objection within two weeks therefrom and thereafter the Competent Authority shall fix a date for reconciliation of the accounts. However, regard being had to the fact that the Act is a piece of social welfare legislation, we direct the appellant to deposit a further sum of Rs.16,00,000/- within a period of four weeks from today. If the amount is not deposited within the time stipulated hereinabove, the entire amount would be leviable and the right to file objection shall stand extinguished.
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The Padrauna Rajkrishna Sugar Works Limited & Others Vs. The Land Reforms Commissioner, U.P. & Others | which they are to be recovered, that is to say, without indicating whether it would be recovered from the usufruct of the property or by its sale or by mortgage or lease."The provisions of the Act which authorise recovery of sums of money as arrears of land revenue do not require the Collector to follow any sequence of the processes for recovery : it is competent to the Collector to resort to any process prescribed by Section 279 in aid of recovery of the dues which are recoverable as arrears or land revenue. It is unnecessary in the circumstances to consider whether the provisions of Section 286 (1) are mandatory or directory.12. It was urged in the alternative that after selling the immovable property which realized more than Rs. 23,50,000 the Collector should not have sold the movable property, for the claim for which the properties of the Company were put up for sale was only Rs. 8,38,176-13-0. At first blush there is force in this argument. Why the Collector thought it necessary to sell the movables after the immovable property was knocked down to the Cawnpore Sugar Works Ltd., for Rs. 23,50,000 was never explained. After the immovable property belonging to the Company was knocked down to the purchasers for an amount of Rs. 23,50,000 it was apparently not necessary to hold the auction for sale of moveables valued at Rs. 7,64,817 and to accept a bid of only Rs. 2,75,000. The argument that the movables were of no use to any person other than the purchaser of immovable property is without substance. The moveables sold were the tools and workshop plant, mill stores, spare parts and furniture, and it is difficult to accept the contention that these movables were of no value except to the purchaser.But the Company raised no contention in this behalf before the Commissioner, nor in the petition before the High Court. The question was also not argued before the High Court in that form. We cannot at this stage investigate the reasons why movables valued at Rs. 7,64,817 were put up for sale and sold when it was not necessary to sell them to realise the dues.13. It was then urged that the Income-tax Officer had, by intimation dated December 11, 1954, asked the Collector to stay the sale proceeding for recovery of income-tax dues amounting to Rupees 81,821-2-0. For some reason, which is not clear from the record, the Collector ignored the intimation given by the Income-tax Officer and proceeded to put the property to sale. He included the amount in the sale proclamation, overruling the protests of the Company, and sold the properties for recovery of a consolidated amount which included Rupees 81,821-2-0 due as income-tax. But on that account the sale is not illegal or irregular. An amount exceeding Rs. 7 lakhs was recoverable for the sugar-cane cess and the cane price and the immovable property of the Company could have been put up for sale for recovery of those dues. The sale is not proved to be vitiated on the ground of any material irregularity or mistake in publishing or conducting it, and it is therefore not liable to be set aside. "14. It was finally contended that the Company was prevented from exercising its right under Rule 285-H of the rules framed under U. P. Act 1 of 1951, because the purchaser at the sale was appointed, by order of the Central Government, Authorised Controller of the factory of the Company, and all the properties of the Company were put in the possession of the purchaser, and that the Company was unable to raise the requisite amount to be deposited under R. 285-H. Under Rule 285-H any person whose holding or other immovable property has been sold under the Act may, at any time within thirty days from the date of sale, apply to have the sale set aside on his depositing in the Collectors office:(a) for payment to the purchaser, a sum equal to 5 per cent of the purchase money; and(b) for payment on account of the arrear, the amount specified in the proclamation in Z. A. Form 74 as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been paid on that account; and(c) the cost of the sale.If the deposit is made, the collector shall pass an order setting aside the sale. It was open to the company under R. 285-H even after the bids were accepted to deposit 5 per cent of the sum realised by sale of the immovable property and to pay the amount due for the recovery of which the sale was ordered and the cost of the sale. But no attempt was made to deposit the amounts mentioned in Clauses (a), (b) and (c) of Rule 285-H. The contention that the Company was unable to make the deposit under Rule 285-H because the purchaser was appointed Authorised Controller was also not raised before the commissioner and the High Court. The argument that if the movable property had not been sold, the company may have raised the amount liable to be deposited under clauses (a), (b) and (c), but by sale of those properties and purchase of the same by a person who was shortly after the purchase appointed the Authorised controller prevented the Company from exercising the right under Rule 285 is hypothetical. Again even that argument was not raised before the commissioner, nor in the petition, nor in the arguments before the High Court. Evidently, the Company was required to comply with the provisions of Rule 285-H for having the sale set aside to deposit an amount of Rupees 9,50,000 besides the cost of the sale. Even if the movables had not been sold, and assuming that they were of the value of Rs. 7,64,817 the movables were not sufficient to enable the Company to raise the amount required for deposit under Rule 285-H. | 0[ds]For some reason, which is not clear from the record, the Collector ignored the intimation given by the Income-tax Officer and proceeded to put the property to sale. He included the amount in the sale proclamation, overruling the protests of the Company, and sold the properties for recovery of a consolidated amount which included Rupees 81,821-2-0 due as income-tax. But on that account the sale is not illegal or irregular. An amount exceeding Rs. 7 lakhs was recoverable for the sugar-cane cess and the cane price and the immovable property of the Company could have been put up for sale for recovery of those dues. The sale is not proved to be vitiated on the ground of any material irregularity or mistake in publishing or conducting it, and it is therefore not liable to be set aside. "14.It was finally contended that the Company was prevented from exercising its right under Rule 285-H of the rules framed under U. P. Act 1 of 1951, because the purchaser at the sale was appointed, by order of the Central Government, Authorised Controller of the factory of the Company, and all the properties of the Company were put in the possession of the purchaser, and that the Company was unable to raise the requisite amount to be deposited under R. 285-H.We are, therefore, unable to agree with the opinion expressed by Jagdish Sahai, J., that the use of the words "under this section" points to the applicability of the whole section i.e.(1) in the recovery dues recoverable under(2) of section 286, and "that the twohave got to be read together and the effect of(2) is that even in connection with the recovery of miscellaneous dues as arrears of land revenue it is permissible to sell immovable property of the defaulter but subject to what is provided for ine provisions of the Act which authorise recovery of sums of money as arrears of land revenue do not require the Collector to follow any sequence of the processes for recovery : it is competent to the Collector to resort to any process prescribed by Section 279 in aid of recovery of the dues which are recoverable as arrears or land revenue. It is unnecessary in the circumstances to consider whether the provisions of Section 286 (1) are mandatory orargument that the movables were of no use to any person other than the purchaser of immovable property is without substance. The moveables sold were the tools and workshop plant, mill stores, spare parts and furniture, and it is difficult to accept the contention that these movables were of no value except to the purchaser.But the Company raised no contention in this behalf before the Commissioner, nor in the petition before the High Court. The question was also not argued before the High Court in that form. We cannot at this stage investigate the reasons why movables valued at Rs. 7,64,817 were put up for sale and sold when it was not necessary to sell them to realise theon that account the sale is not illegal or irregular. An amount exceeding Rs. 7 lakhs was recoverable for thecess and the cane price and the immovable property of the Company could have been put up for sale for recovery of those dues. The sale is not proved to be vitiated on the ground of any material irregularity or mistake in publishing or conducting it, and it is therefore not liable to be set aside.any person whose holding or other immovable property has been sold under the Act may, at any time within thirty days from the date of sale, apply to have the sale set aside on his depositing in the Collectors office | 0 | 4,217 | 672 | ### Instruction:
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which they are to be recovered, that is to say, without indicating whether it would be recovered from the usufruct of the property or by its sale or by mortgage or lease."The provisions of the Act which authorise recovery of sums of money as arrears of land revenue do not require the Collector to follow any sequence of the processes for recovery : it is competent to the Collector to resort to any process prescribed by Section 279 in aid of recovery of the dues which are recoverable as arrears or land revenue. It is unnecessary in the circumstances to consider whether the provisions of Section 286 (1) are mandatory or directory.12. It was urged in the alternative that after selling the immovable property which realized more than Rs. 23,50,000 the Collector should not have sold the movable property, for the claim for which the properties of the Company were put up for sale was only Rs. 8,38,176-13-0. At first blush there is force in this argument. Why the Collector thought it necessary to sell the movables after the immovable property was knocked down to the Cawnpore Sugar Works Ltd., for Rs. 23,50,000 was never explained. After the immovable property belonging to the Company was knocked down to the purchasers for an amount of Rs. 23,50,000 it was apparently not necessary to hold the auction for sale of moveables valued at Rs. 7,64,817 and to accept a bid of only Rs. 2,75,000. The argument that the movables were of no use to any person other than the purchaser of immovable property is without substance. The moveables sold were the tools and workshop plant, mill stores, spare parts and furniture, and it is difficult to accept the contention that these movables were of no value except to the purchaser.But the Company raised no contention in this behalf before the Commissioner, nor in the petition before the High Court. The question was also not argued before the High Court in that form. We cannot at this stage investigate the reasons why movables valued at Rs. 7,64,817 were put up for sale and sold when it was not necessary to sell them to realise the dues.13. It was then urged that the Income-tax Officer had, by intimation dated December 11, 1954, asked the Collector to stay the sale proceeding for recovery of income-tax dues amounting to Rupees 81,821-2-0. For some reason, which is not clear from the record, the Collector ignored the intimation given by the Income-tax Officer and proceeded to put the property to sale. He included the amount in the sale proclamation, overruling the protests of the Company, and sold the properties for recovery of a consolidated amount which included Rupees 81,821-2-0 due as income-tax. But on that account the sale is not illegal or irregular. An amount exceeding Rs. 7 lakhs was recoverable for the sugar-cane cess and the cane price and the immovable property of the Company could have been put up for sale for recovery of those dues. The sale is not proved to be vitiated on the ground of any material irregularity or mistake in publishing or conducting it, and it is therefore not liable to be set aside. "14. It was finally contended that the Company was prevented from exercising its right under Rule 285-H of the rules framed under U. P. Act 1 of 1951, because the purchaser at the sale was appointed, by order of the Central Government, Authorised Controller of the factory of the Company, and all the properties of the Company were put in the possession of the purchaser, and that the Company was unable to raise the requisite amount to be deposited under R. 285-H. Under Rule 285-H any person whose holding or other immovable property has been sold under the Act may, at any time within thirty days from the date of sale, apply to have the sale set aside on his depositing in the Collectors office:(a) for payment to the purchaser, a sum equal to 5 per cent of the purchase money; and(b) for payment on account of the arrear, the amount specified in the proclamation in Z. A. Form 74 as that for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been paid on that account; and(c) the cost of the sale.If the deposit is made, the collector shall pass an order setting aside the sale. It was open to the company under R. 285-H even after the bids were accepted to deposit 5 per cent of the sum realised by sale of the immovable property and to pay the amount due for the recovery of which the sale was ordered and the cost of the sale. But no attempt was made to deposit the amounts mentioned in Clauses (a), (b) and (c) of Rule 285-H. The contention that the Company was unable to make the deposit under Rule 285-H because the purchaser was appointed Authorised Controller was also not raised before the commissioner and the High Court. The argument that if the movable property had not been sold, the company may have raised the amount liable to be deposited under clauses (a), (b) and (c), but by sale of those properties and purchase of the same by a person who was shortly after the purchase appointed the Authorised controller prevented the Company from exercising the right under Rule 285 is hypothetical. Again even that argument was not raised before the commissioner, nor in the petition, nor in the arguments before the High Court. Evidently, the Company was required to comply with the provisions of Rule 285-H for having the sale set aside to deposit an amount of Rupees 9,50,000 besides the cost of the sale. Even if the movables had not been sold, and assuming that they were of the value of Rs. 7,64,817 the movables were not sufficient to enable the Company to raise the amount required for deposit under Rule 285-H.
### Response:
0
### Explanation:
For some reason, which is not clear from the record, the Collector ignored the intimation given by the Income-tax Officer and proceeded to put the property to sale. He included the amount in the sale proclamation, overruling the protests of the Company, and sold the properties for recovery of a consolidated amount which included Rupees 81,821-2-0 due as income-tax. But on that account the sale is not illegal or irregular. An amount exceeding Rs. 7 lakhs was recoverable for the sugar-cane cess and the cane price and the immovable property of the Company could have been put up for sale for recovery of those dues. The sale is not proved to be vitiated on the ground of any material irregularity or mistake in publishing or conducting it, and it is therefore not liable to be set aside. "14.It was finally contended that the Company was prevented from exercising its right under Rule 285-H of the rules framed under U. P. Act 1 of 1951, because the purchaser at the sale was appointed, by order of the Central Government, Authorised Controller of the factory of the Company, and all the properties of the Company were put in the possession of the purchaser, and that the Company was unable to raise the requisite amount to be deposited under R. 285-H.We are, therefore, unable to agree with the opinion expressed by Jagdish Sahai, J., that the use of the words "under this section" points to the applicability of the whole section i.e.(1) in the recovery dues recoverable under(2) of section 286, and "that the twohave got to be read together and the effect of(2) is that even in connection with the recovery of miscellaneous dues as arrears of land revenue it is permissible to sell immovable property of the defaulter but subject to what is provided for ine provisions of the Act which authorise recovery of sums of money as arrears of land revenue do not require the Collector to follow any sequence of the processes for recovery : it is competent to the Collector to resort to any process prescribed by Section 279 in aid of recovery of the dues which are recoverable as arrears or land revenue. It is unnecessary in the circumstances to consider whether the provisions of Section 286 (1) are mandatory orargument that the movables were of no use to any person other than the purchaser of immovable property is without substance. The moveables sold were the tools and workshop plant, mill stores, spare parts and furniture, and it is difficult to accept the contention that these movables were of no value except to the purchaser.But the Company raised no contention in this behalf before the Commissioner, nor in the petition before the High Court. The question was also not argued before the High Court in that form. We cannot at this stage investigate the reasons why movables valued at Rs. 7,64,817 were put up for sale and sold when it was not necessary to sell them to realise theon that account the sale is not illegal or irregular. An amount exceeding Rs. 7 lakhs was recoverable for thecess and the cane price and the immovable property of the Company could have been put up for sale for recovery of those dues. The sale is not proved to be vitiated on the ground of any material irregularity or mistake in publishing or conducting it, and it is therefore not liable to be set aside.any person whose holding or other immovable property has been sold under the Act may, at any time within thirty days from the date of sale, apply to have the sale set aside on his depositing in the Collectors office
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Securities Exchange Board Of India Vs. M/S Opee Stock-Link Ltd | Rs.1170/- per share to the respondents. These transactions are, therefore, definitely of fishy nature. 18. The submission to the effect that no Retail Individual Investor had made any complaint to the SEBI is not at all relevant because the SEBI need not act only on the basis of a complaint received. If from its independent sources, the SEBI, after due enquiry comes to know about some illegality or irregularity, the SEBI has to act in the manner as it acted in the instant case. The fact, however, remains that because of the undue advantage which the respondents got, some small investors or RII must have not got the shares, which they ought to have been allotted.19. The learned counsel for the respondents also made a submission that a common address given by several demat account holders would not show any irregularity. We do not agree with the said submission, because normally a person would give his own address when he is opening his demat account. Rarely, a person would give someone else’s address if he is not having any permanent address or is likely to shift his residence. In the instant case, not one or a few, but several demat holders had given one particular address and it is also pertinent to note that upon initiation of an inquiry at the instance of the SEBI, most of the demat accounts had been closed by the demat account holders. 20. The submission was also to the effect that the shares could have been sold before they were listed with a stock exchange and such a sale cannot be said to be an illegality. Looking at the fact that number of persons, having common address of their demat accounts, selling their shares at the same price to a particular person before listing of shares of a company with a stock exchange is not a normal thing. In the facts and circumstances of the case, we do not accept the said submission made by the learned counsel appearing for the respondents. 21. We also note that the Securities Contracts (Regulation) Act, 1956 (SCRA) has been enacted to prevent undesirable transactions in securities by regulating the business of dealing therein, by providing for certain other matters connected therewith like regulating functioning of recognised stock exchanges and working of the members of such stock exchanges. The SCRA is a special law to regulate the sale and purchase of shares and securities and hence it prevails over the provisions of the Indian Contract Act, 1872 and Sale of Goods Act, 1930, insofar as the matters which are specifically dealt with by the SCRA. The contracts for sale and purchase of securities, as envisaged under the SCRA, can be entered into only in a prescribed manner in a notified area and that can only be effected through registered members of a recognised stock exchange (i.e. stock brokers) and the only exception to this is a Spot Delivery Contract. 22. ‘Spot Delivery Contract’ is defined in Section 2(i) of the SCRA as a contract, which – “(a) provides for actual delivery of securities and the payment of a price thereof either on the date of the contract or on the next day, excluding the time involved in dispatch of shares and remittance of money where parties do not reside in the same town/locality;(b) transfer of securities by depository from the account of one beneficial owner (demat account) to the account of other beneficial owner (demat account) were securities involved are in demat form.” Section 2(i)(b) of the SCRA was introduced in the statute book with effect from September 20, 1995. It is clear from the aforestated definition of ‘Spot Delivery Contract’ that to enter into such a contract, the seller has to effect actual delivery of securities and the buyer has to pay the price therefore either on the same day or on the next day and further, the said transfer should be coupled with transfer of the Securities from one Beneficial Owner (BO) to another. Considering the scope of Spot Delivery Contract as defined in Section 2(i) of the SCRA in Bhagwati Developers Pvt. Ltd. v. Peerless General Finance and Investment Company Ltd. & Anr. (2013) 9 SCC 584 , this Court has held as under :- “...... a contract providing for actual delivery of securities and the payment of price thereof either on the same day as the date of contract or on the next day means a spot delivery contract.” Considering the facts and circumstances of the present case, the transfer of shares did not comply with the requirements of the provision of either Section 13 or Section 2(i) of the SCRA. Therefore, the off market trading indulged into by the Respondents was rightly held to be per se illegal by the Whole Time Member.23. The submission made to the effect that the Tribunal is a final fact finding authority cannot be disputed. According to the learned counsel, the facts found by the SAT should not be disbelieved by this Court. However, for coming to a definite conclusion contrary to the findings arrived at by the lower authority, the appellate authority, in the instant case, the SAT, ought to have recorded specific reasons for arriving at a different conclusion, but we do not find any sound reason for coming to a different conclusion in the impugned order. On the other hand, we find detailed discussion for coming to a particular conclusion in the order, which was passed by the Whole Time Member of the SEBI and therefore, we do not see any reason for the SAT to disturb the said finding without mentioning any strong and justifiable reason for coming to a different conclusion. 24. For the aforestated reasons and in view of the submissions made by the learned counsel appearing for the appellant for sustaining the orders passed by the Whole Time Member as well as the Adjudicating Officer of the SEBI, we quash and set aside the impugned order passed by the SAT. | 1[ds]are of the view that the Whole Time Member as well as the Adjudicating Officer of the SEBI were justified in imposing penalty upon the respondents for the reasons recorded bythe facts and circumstances of the present case, the transfer of shares did not comply with the requirements of the provision of either Section 13 or Section 2(i) of the SCRA. Therefore, the off market trading indulged into by the Respondents was rightly held to be per se illegal by the Whole Time Member.23. The submission made to the effect that the Tribunal is a final fact finding authority cannot be disputed. According to the learned counsel, the facts found by the SAT should not be disbelieved by this Court. However, for coming to a definite conclusion contrary to the findings arrived at by the lower authority, the appellate authority, in the instant case, the SAT, ought to have recorded specific reasons for arriving at a different conclusion, but we do not find any sound reason for coming to a different conclusion in the impugned order. On the other hand, we find detailed discussion for coming to a particular conclusion in the order, which was passed by the Whole Time Member of the SEBI and therefore, we do not see any reason for the SAT to disturb the said finding without mentioning any strong and justifiable reason for coming to a different conclusion. | 1 | 3,437 | 259 | ### Instruction:
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Rs.1170/- per share to the respondents. These transactions are, therefore, definitely of fishy nature. 18. The submission to the effect that no Retail Individual Investor had made any complaint to the SEBI is not at all relevant because the SEBI need not act only on the basis of a complaint received. If from its independent sources, the SEBI, after due enquiry comes to know about some illegality or irregularity, the SEBI has to act in the manner as it acted in the instant case. The fact, however, remains that because of the undue advantage which the respondents got, some small investors or RII must have not got the shares, which they ought to have been allotted.19. The learned counsel for the respondents also made a submission that a common address given by several demat account holders would not show any irregularity. We do not agree with the said submission, because normally a person would give his own address when he is opening his demat account. Rarely, a person would give someone else’s address if he is not having any permanent address or is likely to shift his residence. In the instant case, not one or a few, but several demat holders had given one particular address and it is also pertinent to note that upon initiation of an inquiry at the instance of the SEBI, most of the demat accounts had been closed by the demat account holders. 20. The submission was also to the effect that the shares could have been sold before they were listed with a stock exchange and such a sale cannot be said to be an illegality. Looking at the fact that number of persons, having common address of their demat accounts, selling their shares at the same price to a particular person before listing of shares of a company with a stock exchange is not a normal thing. In the facts and circumstances of the case, we do not accept the said submission made by the learned counsel appearing for the respondents. 21. We also note that the Securities Contracts (Regulation) Act, 1956 (SCRA) has been enacted to prevent undesirable transactions in securities by regulating the business of dealing therein, by providing for certain other matters connected therewith like regulating functioning of recognised stock exchanges and working of the members of such stock exchanges. The SCRA is a special law to regulate the sale and purchase of shares and securities and hence it prevails over the provisions of the Indian Contract Act, 1872 and Sale of Goods Act, 1930, insofar as the matters which are specifically dealt with by the SCRA. The contracts for sale and purchase of securities, as envisaged under the SCRA, can be entered into only in a prescribed manner in a notified area and that can only be effected through registered members of a recognised stock exchange (i.e. stock brokers) and the only exception to this is a Spot Delivery Contract. 22. ‘Spot Delivery Contract’ is defined in Section 2(i) of the SCRA as a contract, which – “(a) provides for actual delivery of securities and the payment of a price thereof either on the date of the contract or on the next day, excluding the time involved in dispatch of shares and remittance of money where parties do not reside in the same town/locality;(b) transfer of securities by depository from the account of one beneficial owner (demat account) to the account of other beneficial owner (demat account) were securities involved are in demat form.” Section 2(i)(b) of the SCRA was introduced in the statute book with effect from September 20, 1995. It is clear from the aforestated definition of ‘Spot Delivery Contract’ that to enter into such a contract, the seller has to effect actual delivery of securities and the buyer has to pay the price therefore either on the same day or on the next day and further, the said transfer should be coupled with transfer of the Securities from one Beneficial Owner (BO) to another. Considering the scope of Spot Delivery Contract as defined in Section 2(i) of the SCRA in Bhagwati Developers Pvt. Ltd. v. Peerless General Finance and Investment Company Ltd. & Anr. (2013) 9 SCC 584 , this Court has held as under :- “...... a contract providing for actual delivery of securities and the payment of price thereof either on the same day as the date of contract or on the next day means a spot delivery contract.” Considering the facts and circumstances of the present case, the transfer of shares did not comply with the requirements of the provision of either Section 13 or Section 2(i) of the SCRA. Therefore, the off market trading indulged into by the Respondents was rightly held to be per se illegal by the Whole Time Member.23. The submission made to the effect that the Tribunal is a final fact finding authority cannot be disputed. According to the learned counsel, the facts found by the SAT should not be disbelieved by this Court. However, for coming to a definite conclusion contrary to the findings arrived at by the lower authority, the appellate authority, in the instant case, the SAT, ought to have recorded specific reasons for arriving at a different conclusion, but we do not find any sound reason for coming to a different conclusion in the impugned order. On the other hand, we find detailed discussion for coming to a particular conclusion in the order, which was passed by the Whole Time Member of the SEBI and therefore, we do not see any reason for the SAT to disturb the said finding without mentioning any strong and justifiable reason for coming to a different conclusion. 24. For the aforestated reasons and in view of the submissions made by the learned counsel appearing for the appellant for sustaining the orders passed by the Whole Time Member as well as the Adjudicating Officer of the SEBI, we quash and set aside the impugned order passed by the SAT.
### Response:
1
### Explanation:
are of the view that the Whole Time Member as well as the Adjudicating Officer of the SEBI were justified in imposing penalty upon the respondents for the reasons recorded bythe facts and circumstances of the present case, the transfer of shares did not comply with the requirements of the provision of either Section 13 or Section 2(i) of the SCRA. Therefore, the off market trading indulged into by the Respondents was rightly held to be per se illegal by the Whole Time Member.23. The submission made to the effect that the Tribunal is a final fact finding authority cannot be disputed. According to the learned counsel, the facts found by the SAT should not be disbelieved by this Court. However, for coming to a definite conclusion contrary to the findings arrived at by the lower authority, the appellate authority, in the instant case, the SAT, ought to have recorded specific reasons for arriving at a different conclusion, but we do not find any sound reason for coming to a different conclusion in the impugned order. On the other hand, we find detailed discussion for coming to a particular conclusion in the order, which was passed by the Whole Time Member of the SEBI and therefore, we do not see any reason for the SAT to disturb the said finding without mentioning any strong and justifiable reason for coming to a different conclusion.
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MADRAS BAR ASSOCIATION Vs. UNION OF INDIA & ANR | of the Members of the Tribunals is maintained. For the first time, this Court in its judgment in L. Chandra Kumar (supra) persuaded the Government of India to have the Ministry of Law as the nodal Ministry which would appoint an independent supervisory body to oversee the working of the Tribunals. The observations in L. Chandra Kumar are to the following effect: 96. ...The situation at present is that different Tribunals constituted under different enactments are administered by different administrative departments of the Central and the State Governments. The problem is compounded by the fact that some Tribunals have been created pursuant to Central Legislations and some others have been created by State Legislations. However, even in the case of Tribunals created by Parliamentary legislations, there is no uniformity in administration. We are of the view that, until a wholly independent agency for the administration of all such Tribunals can be set-up, it is desirable that all such Tribunals should be, as far as possible, under a single nodal Ministry which will be in a position to oversee the working of these Tribunals. For a number of reasons that Ministry should appropriately be the Ministry of Law. It would be open for the Ministry, in its turn, to appoint an independent supervisory body to oversee the working of the Tribunals. This will ensure that if the President or Chairperson of the Tribunal is for some reason unable to take sufficient interest in the working of the Tribunal, the entire system will not languish and the ultimate consumer of justice will not suffer. The creation of a single umbrella organisation will, in our view, remove many of the ills of the present system. If the need arises, there can be separate umbrella organisations at the Central and the State levels. Such a supervisory authority must try to ensure that the independence of the members of all such Tribunals is maintained. To that extent, the procedure for the selection of the members of the Tribunals, the manner in which funds are allocated for the functioning of the Tribunals and all other consequential details will have to be clearly spelt out. 17. In para 70 of Union of India v. Madras Bar Association (2010) (supra), this Court deprecated the practice of administrative support from the Departments other than the Ministry of Law and Justice. Dependence on the parent Ministry or departments by the Members of the Tribunal for their facilities and administrative needs was found to be contrary to the principle of independence of the judiciary. Later, the learned Amicus Curiae submitted a concept note on the National Tribunals Commission which was approved by this Court in Rojer Mathew vs. South Indian Bank Limited, (2018) 16 SCC 341. This Court was of the opinion that an autonomous oversight body should be established for recruitment of members and functioning of the Tribunals. In fact, the Court in Rojer Mathew (supra) even held that control of the tribunals by the executive is fraught and undermines their independence: 168. We are in complete agreement with the analogy elucidated by the Constitution Bench in the Fourth Judges Case (supra) for compulsory need for exclusion of control of the Executive over quasi-judicial bodies of Tribunals discharging responsibilities akin to Courts. The Search-cum-Selection Committees as envisaged in the Rules are against the constitutional scheme inasmuch as they dilute the involvement of judiciary in the process of appointment of members of tribunals which is in effect an encroachment by the executive on the judiciary. 18. The suggestions made by the learned Amicus Curiae regarding the setting up of All India Tribunal Service on the pattern prevalent in the United Kingdom was accepted. This Court was convinced that the performance and functioning of the Members of the Tribunals must be reviewed by the said independent body in the same way as superintendence by the High Courts under Article 235 of the Constitution. By an order dated 07.05.2018, this Court in fact, recommended constitution of a wholly independent agency to oversee the working of the Tribunals. 19. While considering the vires of validity of the 2017 Rules, this Court in Rojer Mathew (supra) referred to the current problems faced by the Tribunals. Administration of the Tribunals by the sponsoring or parent Ministry or Department concerned and dependence for financial, administrative or other facilities by the Tribunals on the said Department which is a litigant before them are some of the serious problems highlighted by this Court. There is a likelihood of the independence of adjudication process being compromised in a situation where the Tribunal is made dependent for its needs on a litigant. The need for financial independence of the Tribunals has been dealt with by this Court in Rojer Mathew (supra). A direction was given to the Ministry of Finance to earmark separate and dedicated funds for the Tribunals from the Consolidated Fund of India so that the Tribunals will not be under the financial control of the parent Departments. We reiterate the importance of the constitution of an autonomous oversight body for recruitment and supervision of the performance of the Tribunals. It is high time that the observations and suggestions made in this regard by this Court shall be implemented by the Union of India. An independent body headed by a retired Judge of the Supreme Court supervising the appointments and the functioning of the Tribunals apart from being in control of any disciplinary proceedings against the Members would not only improve the functioning of the Tribunals but would also be in accordance with the principles of judicial independence. We also notice that in the final directions and conclusions recorded in Roger Mathew (supra)(See para 238 of Rojer Mathew (supra), which refers only the issue relating to Money Bills to a larger bench.), the wisdom or legality of setting up such an independent oversight body was not doubted and it was not referred to a larger Bench, since the view in L. Chandra Kumar on this point was not doubted. | 1[ds]15. Docket explosion and mounting arrears are serious problems faced by the justice system in this country. Initially, creation of Tribunals was understood to provide a solution to the problems and to ease the burden on the Constitutional Courts. Specialized Tribunals were set up to meet the exigencies of adjudication of disputes in some branches of law. A constant complaint has been that the Tribunals are not free from the Executive control and that they are not perceived to be independent judicial bodies. There is an imperative need to ensure that the Tribunals discharge the judicial functions without any interference of the Executive whether directly or indirectly.16. This Court has been repeatedly urging the Union of India to set up a single umbrella organization which would be an independent body to supervise the functioning of the Tribunals and ensure that the independence of the Members of the Tribunals is maintained. For the first time, this Court in its judgment in L. Chandra Kumar (supra) persuaded the Government of India to have the Ministry of Law as the nodal Ministry which would appoint an independent supervisory body to oversee the working of the Tribunals. The observations in L. Chandra Kumar are to the following effect:96. ...The situation at present is that different Tribunals constituted under different enactments are administered by different administrative departments of the Central and the State Governments. The problem is compounded by the fact that some Tribunals have been created pursuant to Central Legislations and some others have been created by State Legislations. However, even in the case of Tribunals created by Parliamentary legislations, there is no uniformity in administration. We are of the view that, until a wholly independent agency for the administration of all such Tribunals can be set-up, it is desirable that all such Tribunals should be, as far as possible, under a single nodal Ministry which will be in a position to oversee the working of these Tribunals. For a number of reasons that Ministry should appropriately be the Ministry of Law. It would be open for the Ministry, in its turn, to appoint an independent supervisory body to oversee the working of the Tribunals. This will ensure that if the President or Chairperson of the Tribunal is for some reason unable to take sufficient interest in the working of the Tribunal, the entire system will not languish and the ultimate consumer of justice will not suffer. The creation of a single umbrella organisation will, in our view, remove many of the ills of the present system. If the need arises, there can be separate umbrella organisations at the Central and the State levels. Such a supervisory authority must try to ensure that the independence of the members of all such Tribunals is maintained. To that extent, the procedure for the selection of the members of the Tribunals, the manner in which funds are allocated for the functioning of the Tribunals and all other consequential details will have to be clearly spelt out.17. In para 70 of Union of India v. Madras Bar Association (2010) (supra), this Court deprecated the practice of administrative support from the Departments other than the Ministry of Law and Justice. Dependence on the parent Ministry or departments by the Members of the Tribunal for their facilities and administrative needs was found to be contrary to the principle of independence of the judiciary. Later, the learned Amicus Curiae submitted a concept note on the National Tribunals Commission which was approved by this Court in Rojer Mathew vs. South Indian Bank Limited, (2018) 16 SCC 341. This Court was of the opinion that an autonomous oversight body should be established for recruitment of members and functioning of the Tribunals. In fact, the Court in Rojer Mathew (supra) even held that control of the tribunals by the executive is fraught and undermines their independence:168. We are in complete agreement with the analogy elucidated by the Constitution Bench in the Fourth Judges Case (supra) for compulsory need for exclusion of control of the Executive over quasi-judicial bodies of Tribunals discharging responsibilities akin to Courts. The Search-cum-Selection Committees as envisaged in the Rules are against the constitutional scheme inasmuch as they dilute the involvement of judiciary in the process of appointment of members of tribunals which is in effect an encroachment by the executive on the judiciary.18. The suggestions made by the learned Amicus Curiae regarding the setting up of All India Tribunal Service on the pattern prevalent in the United Kingdom was accepted. This Court was convinced that the performance and functioning of the Members of the Tribunals must be reviewed by the said independent body in the same way as superintendence by the High Courts under Article 235 of the Constitution. By an order dated 07.05.2018, this Court in fact, recommended constitution of a wholly independent agency to oversee the working of the Tribunals.19. While considering the vires of validity of the 2017 Rules, this Court in Rojer Mathew (supra) referred to the current problems faced by the Tribunals. Administration of the Tribunals by the sponsoring or parent Ministry or Department concerned and dependence for financial, administrative or other facilities by the Tribunals on the said Department which is a litigant before them are some of the serious problems highlighted by this Court. There is a likelihood of the independence of adjudication process being compromised in a situation where the Tribunal is made dependent for its needs on a litigant. The need for financial independence of the Tribunals has been dealt with by this Court in Rojer Mathew (supra). A direction was given to the Ministry of Finance to earmark separate and dedicated funds for the Tribunals from the Consolidated Fund of India so that the Tribunals will not be under the financial control of the parent Departments. We reiterate the importance of the constitution of an autonomous oversight body for recruitment and supervision of the performance of the Tribunals. It is high time that the observations and suggestions made in this regard by this Court shall be implemented by the Union of India. An independent body headed by a retired Judge of the Supreme Court supervising the appointments and the functioning of the Tribunals apart from being in control of any disciplinary proceedings against the Members would not only improve the functioning of the Tribunals but would also be in accordance with the principles of judicial independence. We also notice that in the final directions and conclusions recorded in Roger Mathew (supra)(See para 238 of Rojer Mathew (supra), which refers only the issue relating to Money Bills to a larger bench.), the wisdom or legality of setting up such an independent oversight body was not doubted and it was not referred to a larger Bench, since the view in L. Chandra Kumar on this point was not doubted.24. The issue of constitution of the Search-cum-Selection Committees for appointment to the posts of Chairperson and Members of the Tribunal has been dealt with by this Court earlier. Section 10 FX of the Companies Act, 1956 provided for constitution of a Search-cum-Selection Committee consisting of the Chief Justice of India or his nominee as the Chairperson and four Secretaries to the Government of India from the Ministry of Finance and Company Affairs, Ministry of Labour, and Ministry of Law and Justice respectively as Members. The validity of Section 10 FX was challenged by the Madras Bar Association as being violative of the principles of separation of powers and judicial independence. This Court in Union of India v. Madras Bar Association (2010) (supra) while dealing with a judgment of the Madras High Court held that Parts IB and IC of the Companies Act can be made operational only after making suitable amendments suggested therein. In respect of the Search-cum-Selection Committee, the amendment suggested by this Court was that it should consist of the Chief Justice of India or his nominee as Chairperson and another Judge of the Supreme Court and two Secretaries of the Government of India from the Ministry of Finance and Company Affairs and the Ministry of Law and Justice. It is relevant to mention that in the said judgment, this Court took note of the fact that the Secretary of the sponsoring department is serving as a member of the Search-cum-Selection Committee. This Court was of the opinion that the Tribunals will not be considered independent unless reforms that were implemented in the United Kingdom pursuant to the Report of the Leggatt Committee are implemented in the Tribunals in India. Nonetheless, this Court observed that the Secretary, Ministry of Finance and Company Affairs can be a member of the Search-cum-Selection Committee for appointment of members to NCLT and NCLAT.26. Provisions made for the NCLT and NCLAT in the Companies Act, 2013 were again the subject matter of challenge before this Court in Madras Bar Association v. Union of India (2015) (supra). Section 412 of the Companies Act, 2013 deals with the selection of the Members of the NCLT and NCLAT. The President of the Tribunal, the Chairperson and Judicial Members of the Appellate Tribunal shall be appointed after consultation with the Chief Justice of India. The Search-cum-Selection Committee for appointment of the Members of the Tribunal and the Technical Members of the Appellate Tribunal shall consist of the Chief Justice of India or his nominee, a Senior Judge of the Supreme Court or the Chief Justice of a High Court and the Secretaries of the Ministry of Corporate Affairs, Ministry of Law and Justice and the Ministry of Finance. In Madras Bar Association vs. Union of India (2015) (supra), this Court expressed its displeasure in the constitution of the Search-cum-Selection Committee which is contrary to the principles laid down in its earlier judgment in Union of India v. Madras Bar Association (2010) (supra). Section 412 (2) of the Companies Act, 2013 was held to be not valid as it was found to be against the binding precedents of this Court in Union of India v. Madras Bar Association (2010) (supra). A direction was issued to remove the deficiency in the constitution of the Search-cum-Selection Committee by bringing the same into accord with sub-para (viii) of para 120 of the judgment in Union of India v. Madras Bar Association (supra).27. The 2017 Rules were made in exercise of the powers conferred under Section 184 of the Finance Act, 2017. Rule 4 provides for method of recruitment to the post of Chairman or Chairperson or President and the Members of the Tribunals. Under the 2017 Rules, the Search-cum-Selection Committee consisted of the Chief Justice of India or his nominee as the Chairperson and the Chairman of the Tribunal along with the Secretaries to Government. While striking down the 2017 Rules, this Court in Rojer Mathew (supra) commented that the lack of judicial dominance in the Search-cum-Selection Committee is in direct contravention of the doctrine of separation of powers and is an encroachment on the judicial domain. This Court further observed that excessive interference by the executive in appointment of the members would be detrimental to the independence of judiciary and an affront to the doctrine of separation of powers. The principles laid down in the aforementioned judgments are binding precedents which have to be implemented by the Respondent. However, the 2020 Rules which are in challenge in the Writ Petitions replicate the 2017 Rules in respect of the constitution of the Search-cum-Selection Committees, insofar as they do not ensure judicial dominance. We appreciate the stand taken by the learned Attorney General that a casting vote will be given to the Chief Justice of India or his nominee as the Chairperson of the Search-cum-Selection Committee. We also accept the submission of the learned Attorney General that normally the Chairperson of the Tribunal would be a retired Judge of the Supreme Court or the Chief Justice of a High Court. As such, two members of the judiciary with a casting vote to the Chairperson of the Search-cum-Selection Committee should ensure judicial dominance over the selection process and take care of the grievances of the Writ Petitioner. Mr. Datar submitted that there are certain Tribunals in which the Chairperson may not be a judicial member. In such Tribunals, we are of the opinion that the Search-cum-Selection Committee should have a retired Judge of the Supreme Court or a retired Chief Justice of a High Court nominated by the Chief Justice of India in place of the Chairperson of the Tribunal.We approve this submission of the Attorney General.29. It has been repeatedly held by this Court that the Secretaries of the sponsoring departments should not be members of the Search-cum-Selection Committee. We are not in agreement with the submission of the learned Attorney General that the Secretary of the sponsoring department being a member of the Search-cum-Selection Committee was approved by this Court in Union of India v. Madras Bar Association (2010) (supra) and it would prevail over the later judgment in Madras Bar Association v. Union of India (2014) (supra). We have already referred to the findings recorded in paragraph 70 of the judgment in Union of India v. Madras Bar Association (2010) (supra) that the sponsoring department should not have any role to play in the matter of appointment to the posts of Chairperson and members of the Tribunals. Though the ultimate direction of the Court was to constitute a Search-cum-Selection Committee for appointment of members to NCLT and NCLAT of which Secretary, Ministry of Finance and Company Affairs is a member, the ratio of the judgment is categorical, which is to the effect that Secretaries of the sponsoring departments cannot be members of the Search-cum-Selection Committee. We, therefore, see no conflict of opinion in the two judgments as argued by the learned Attorney General. However, we find merit in the submission of the learned Attorney General that the presence of the Secretary of the sponsoring or parent department in the Search-cum-Selection Committee will be beneficial to the selection process. But, for reasons stated above, it is settled that the Secretary of the parent or sponsoring Department cannot have a say in the process of selection and service conditions of the members of Tribunals. Ergo, the Secretary to the sponsoring or parent Department shall serve as the Member-Secretary/Convener to the Search-cum-Selection Committee and shall function in the Search-cum-Selection Committee without a vote.30. The Government of India is duty bound to implement the directions issued in the earlier judgments and constitute the Search-cum-Selection Committees in which the Chief Justice of India or his nominee shall be the Chairperson along with the Chairperson of the Tribunal if he is a retired Judge of the Supreme Court or a retired Chief Justice of a High Court and two Secretaries to the Government of India. In case the Tribunal is headed by a Chairperson who is not a judicial member, the Search-cum-Selection Committee shall consist of the Chief Justice of India or his nominee as Chairperson and a retired Judge of the Supreme Court or a retired Chief Justice of a High Court to be nominated by the Chief Justice of India and Secretary to the Government of India from the Ministry of Law and Justice and a Secretary of a department other than the parent or sponsoring department to be nominated by the Cabinet Secretary. As stated above, the Secretary of the parent or sponsoring department shall serve as the Member-Secretary or Convener, without a vote.34. This Court directed the extension of the tenure of the members of the Tribunal from three years to seven or five years subject to their eligibility in the case of Union of India v. Madras Bar Association (2010) (supra). This Court was of the opinion that the term of three years is very short and by the time the members achieve the required knowledge, expertise and efficiency, the term would be over. In the said judgment it was further observed that the Tribunals would function effectively and efficiently only when they are able to attract younger members who have a reasonable period of service. In spite of the above precedent, a tenure of three years was fixed for the members of Tribunals in the 2017 Rules. While setting aside the 2017 Rules, this Court in Rojer Mathew (supra) held that a short period of service of three years is anti-merit as it would have the effect of discouraging meritorious candidates to accept the posts of judicial members in the Tribunals. In addition, this Court was also convinced that the short tenure of members increases interference by the executive jeopardizing the independence of judiciary.35. The 2020 Rules are not in compliance with the principles of law laid down in Union of India v. Madras Bar Association (2010) (supra) and Rojer Mathew (supra) in respect of the tenure of the members of the Tribunals in spite of this Court repeatedly holding that short tenure of members is detrimental to the efficiency and independence of the Tribunals. Rule 9(1) of the 2020 Rules provide for a term of four years or till a Chairman or Chairperson or President attains the age of 70 years whichever is earlier. No rationale except that four years is more than three years prescribed in the 2017 Rules (described as too short, in Roger Mathew (supra)) was put forwardon behalf of the Union of India. In so far as the posts of Vice Chairman or Vice-Chairperson or Vice-President and members are concerned, Rule 9(2) fixes the tenure as four years or till they attain the age of 65 years whichever is earlier. In view of the law laid down in the earlier judgments, we direct the modification of the tenure in Rules 9(1) and 9(2) of the 2020 Rules as five years in respect of Chairman or Chairperson, Vice Chairman or Vice-Chairperson and the members. Rule 9(1) permits a Chairman, Chairperson or President of the Tribunal to continue till 70 years which is in conformity with Parliamentary mandate in Section 184 of the Finance Act. However, Rule 9(2) provides that Vice Chairman and other members shall hold office till they attain 65 years. We are in agreement with the submission made by the learned Amicus Curiae that under the 2020 Rules, the Vice Chairman, Vice-Chairperson or Vice-President or members in almost all the Tribunals will have only a short tenure of less than three years if the maximum age is 65 years.36. Section 184 of the Finance Act, 2017 provides for reappointment of Chairpersons, Vice-Chairpersons and members of the Tribunals on completion of their tenure. There is no mention of reappointment in the 2020 Rules.37. According to Rule 15 of the 2020 Rules, the Chairperson and the other members of the Tribunals shall be entitled to house rent allowance at the same rate admissible to officers of the Government of India holding grade A posts carrying the same pay.As the qualification for an advocate of a High Court for appointment as a Judge of a High Court is only 10 years, we are of the opinion that the experience at the bar should be on the same lines for being considered for appointment as a judicial member of a Tribunal. Exclusion of Advocates in 10 out of 19 tribunals, for consideration as judicial members, is therefore, contrary to Union of India v. Madras Bar Association (2010) (Para 120 (i) @ page 65, 2010 (11) SCC 1 @ page 65) and Madras Bar Association v. Union of India (2015) (Para 27, page 608 (2015 (8) SCC 583 )). However, it is left open to the Search-cum-Selection Committee to take into account in the experience of the Advocates at the bar and the specialization of the Advocates in the relevant branch of law while considering them for appointment as judicial members.43. As we have already held that Advocates are entitled to be considered as judicial members of the Tribunals, we see no harm in members of the Indian Legal Service being considered as judicial members, provided they satisfy the criteria relating to the standing at the bar and specialization required. The judgment of Union of India v. Madras Bar Association (2010) (supra) did not take note of the above points relating to the experience of members of Indian Legal Service at the bar. The Indian Legal Service was considered along with the other civil services for the purpose of holding that the members of Indian Legal Service are entitled to be appointed only as technical members.45. Rule 8 of the 2020 Rules provides the procedure for inquiry of misbehavior or incapacity of a member. According to the said Rule, the preliminary scrutiny of the complaint is done by the Central Government. If the Central Government finds that there are reasonable grounds for conducting an inquiry into the allegations made against a member in the complaint, it shall make a reference to the Search-cum-Selection Committee which shall conduct an inquiry and submit the report to the Central Government.We are in agreement with the submissions of the learned Attorney General.The very reason for constituting Tribunals is to supplement the functions of the High Courts and the other Courts and to ensure that the consumer of justice gets speedy redressal to his grievances. This would be defeated if the Tribunals do not function effectively. It has been brought to our notice that there are a large number of unfilled vacancies hampering the progress of the functioning of the Tribunals. The pendency of cases in the Tribunals is increasing mainly due to the lack of personnel in the Tribunals which is due to the delay in filling up the vacancies as and when they arise due to the retirement of the members. There is imminent need for expediting the process of selections and appointments to ensure speedy justice.50. Before expressing our view on this point, it would be necessary to refer to certain interim orders that were passed by this Court in Rojer Mathew (supra). By an order dated 09.02.2018, this Court gave certain interim directions regarding constitution of the Search-cum-Selection Committee and other issues in relation to appointments to the post of members of the Central Administrative Tribunal. The direction with which we are concerned at present pertains to appointments that were directed to be made pursuant to the recommendations of the interim Search-cum-Selection Committee which shall abide by the conditions of service stipulated in the old Acts and Rules. By an order dated 20.03.2018, the order passed on 09.02.2018 was clarified by this Court and the tenure of the Chairperson and the members was directed to be for a period of five years. There is another order passed on 21.08.2018 by this Court in Writ Petition (C) No. 279 of 2017 by which it was clarified that appointments made to the post of members of the Customs Excise Sales Tax Appellate Tribunal shall be for a period of five years or till the member attains the age of 62 years. This Court clarified that the President shall continue till he attains the age of 65 years. In respect of the Central Administrative Tribunal, the old Rules were directed to be applied.51. The 2017 Rules have been declared as being contrary to the parent enactment and the principles envisaged in the Constitution and hence struck down by this Court in Rojer Mathew (supra). The Central Government was directed to reformulate the Rules in conformity and in accordance with the principles delineated by this Court in its earlier judgment and the observations made in Rojer Mathew (supra). The 2020 Rules are made in exercise of the power conferred under Section 184 of the Finance Act which came into force on their publication in the official Gazette as per Rule 1 (2). The date of publication of the 2020 Rules is 12.02.2020. We are unable to accept the submission of learned Attorney General that the 2020Rules which replaced the 2017 Rules shall come into force with effect from 26.05.2017 which was the appointed day in accordance with the 2017 Rules. It is true that the 2017 Rules were brought into force from 26.05.2017 and Section 183 of the Finance Act provides for any appointment made after the appointed day shall be in accordance with the Rules made under Section 184 of the Finance Act, 2017. 2017 Rules which have come into force with effect from 26.05.2017 in accordance with Section 183 have been struck down by this Court. The 2020 Rules which came into force from the date of their publication in the Official Gazette, i.e. 12.02.2020, cannot be given retrospective effect. The intention of Government of India to make the 2020 Rules prospective is very clear from the notification dated 12.02.2020. In any event, subordinate legislation cannot be given retrospective effect unless the parent statute specifically provides for the same.( ITO vs. M.C. Ponnoose, (1969) 2 SCC 351 ; Sri Vijayalakshmi Rice Mills vs. State of A.P., (1976) 3 SCC 37 ).52. As we have held that the 2020 Rules are not retrospective, the point that remains to be determined is the applicable Rules for appointments that were made prior to the 2020 Rules. The appointments made during the pendency of Rojer Mathew (supra) on the date of interim orders passed therein and appointments made after the judgment of Rojer Mathew (supra), like the appointments made prior to the 2017 Rules are, no doubt, to be governed by the then existing parent Acts and Rules. In view of the interim orders passed by this Court in Rojer Mathew (supra), appointments made during the pendency of the case in this Court are also to be governed by the parent Acts and Rules and the clarifications issued by this Court in Rojer Mathew (supra). According to paragraph 224 of the judgment in Rojer Mathew (supra), the appointments to the Tribunals were directed to be in terms of the respective Acts and Rules which governed appointments to Tribunals prior to the enactment of the Finance Act, 2017. For the purpose of clarity, we hold that all appointments made prior to the 2020 Rules which came into force on 12.02.2020 shall be governed by the parent Acts and Rules. Any appointment made after the 2020 Rules have come into force shall be in accordance with the 2020 Rules subject to the modifications directed in the preceding paragraphs of this judgment. | 1 | 4,779 | 4,771 | ### Instruction:
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of the Members of the Tribunals is maintained. For the first time, this Court in its judgment in L. Chandra Kumar (supra) persuaded the Government of India to have the Ministry of Law as the nodal Ministry which would appoint an independent supervisory body to oversee the working of the Tribunals. The observations in L. Chandra Kumar are to the following effect: 96. ...The situation at present is that different Tribunals constituted under different enactments are administered by different administrative departments of the Central and the State Governments. The problem is compounded by the fact that some Tribunals have been created pursuant to Central Legislations and some others have been created by State Legislations. However, even in the case of Tribunals created by Parliamentary legislations, there is no uniformity in administration. We are of the view that, until a wholly independent agency for the administration of all such Tribunals can be set-up, it is desirable that all such Tribunals should be, as far as possible, under a single nodal Ministry which will be in a position to oversee the working of these Tribunals. For a number of reasons that Ministry should appropriately be the Ministry of Law. It would be open for the Ministry, in its turn, to appoint an independent supervisory body to oversee the working of the Tribunals. This will ensure that if the President or Chairperson of the Tribunal is for some reason unable to take sufficient interest in the working of the Tribunal, the entire system will not languish and the ultimate consumer of justice will not suffer. The creation of a single umbrella organisation will, in our view, remove many of the ills of the present system. If the need arises, there can be separate umbrella organisations at the Central and the State levels. Such a supervisory authority must try to ensure that the independence of the members of all such Tribunals is maintained. To that extent, the procedure for the selection of the members of the Tribunals, the manner in which funds are allocated for the functioning of the Tribunals and all other consequential details will have to be clearly spelt out. 17. In para 70 of Union of India v. Madras Bar Association (2010) (supra), this Court deprecated the practice of administrative support from the Departments other than the Ministry of Law and Justice. Dependence on the parent Ministry or departments by the Members of the Tribunal for their facilities and administrative needs was found to be contrary to the principle of independence of the judiciary. Later, the learned Amicus Curiae submitted a concept note on the National Tribunals Commission which was approved by this Court in Rojer Mathew vs. South Indian Bank Limited, (2018) 16 SCC 341. This Court was of the opinion that an autonomous oversight body should be established for recruitment of members and functioning of the Tribunals. In fact, the Court in Rojer Mathew (supra) even held that control of the tribunals by the executive is fraught and undermines their independence: 168. We are in complete agreement with the analogy elucidated by the Constitution Bench in the Fourth Judges Case (supra) for compulsory need for exclusion of control of the Executive over quasi-judicial bodies of Tribunals discharging responsibilities akin to Courts. The Search-cum-Selection Committees as envisaged in the Rules are against the constitutional scheme inasmuch as they dilute the involvement of judiciary in the process of appointment of members of tribunals which is in effect an encroachment by the executive on the judiciary. 18. The suggestions made by the learned Amicus Curiae regarding the setting up of All India Tribunal Service on the pattern prevalent in the United Kingdom was accepted. This Court was convinced that the performance and functioning of the Members of the Tribunals must be reviewed by the said independent body in the same way as superintendence by the High Courts under Article 235 of the Constitution. By an order dated 07.05.2018, this Court in fact, recommended constitution of a wholly independent agency to oversee the working of the Tribunals. 19. While considering the vires of validity of the 2017 Rules, this Court in Rojer Mathew (supra) referred to the current problems faced by the Tribunals. Administration of the Tribunals by the sponsoring or parent Ministry or Department concerned and dependence for financial, administrative or other facilities by the Tribunals on the said Department which is a litigant before them are some of the serious problems highlighted by this Court. There is a likelihood of the independence of adjudication process being compromised in a situation where the Tribunal is made dependent for its needs on a litigant. The need for financial independence of the Tribunals has been dealt with by this Court in Rojer Mathew (supra). A direction was given to the Ministry of Finance to earmark separate and dedicated funds for the Tribunals from the Consolidated Fund of India so that the Tribunals will not be under the financial control of the parent Departments. We reiterate the importance of the constitution of an autonomous oversight body for recruitment and supervision of the performance of the Tribunals. It is high time that the observations and suggestions made in this regard by this Court shall be implemented by the Union of India. An independent body headed by a retired Judge of the Supreme Court supervising the appointments and the functioning of the Tribunals apart from being in control of any disciplinary proceedings against the Members would not only improve the functioning of the Tribunals but would also be in accordance with the principles of judicial independence. We also notice that in the final directions and conclusions recorded in Roger Mathew (supra)(See para 238 of Rojer Mathew (supra), which refers only the issue relating to Money Bills to a larger bench.), the wisdom or legality of setting up such an independent oversight body was not doubted and it was not referred to a larger Bench, since the view in L. Chandra Kumar on this point was not doubted.
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other civil services for the purpose of holding that the members of Indian Legal Service are entitled to be appointed only as technical members.45. Rule 8 of the 2020 Rules provides the procedure for inquiry of misbehavior or incapacity of a member. According to the said Rule, the preliminary scrutiny of the complaint is done by the Central Government. If the Central Government finds that there are reasonable grounds for conducting an inquiry into the allegations made against a member in the complaint, it shall make a reference to the Search-cum-Selection Committee which shall conduct an inquiry and submit the report to the Central Government.We are in agreement with the submissions of the learned Attorney General.The very reason for constituting Tribunals is to supplement the functions of the High Courts and the other Courts and to ensure that the consumer of justice gets speedy redressal to his grievances. This would be defeated if the Tribunals do not function effectively. It has been brought to our notice that there are a large number of unfilled vacancies hampering the progress of the functioning of the Tribunals. The pendency of cases in the Tribunals is increasing mainly due to the lack of personnel in the Tribunals which is due to the delay in filling up the vacancies as and when they arise due to the retirement of the members. There is imminent need for expediting the process of selections and appointments to ensure speedy justice.50. Before expressing our view on this point, it would be necessary to refer to certain interim orders that were passed by this Court in Rojer Mathew (supra). By an order dated 09.02.2018, this Court gave certain interim directions regarding constitution of the Search-cum-Selection Committee and other issues in relation to appointments to the post of members of the Central Administrative Tribunal. The direction with which we are concerned at present pertains to appointments that were directed to be made pursuant to the recommendations of the interim Search-cum-Selection Committee which shall abide by the conditions of service stipulated in the old Acts and Rules. By an order dated 20.03.2018, the order passed on 09.02.2018 was clarified by this Court and the tenure of the Chairperson and the members was directed to be for a period of five years. There is another order passed on 21.08.2018 by this Court in Writ Petition (C) No. 279 of 2017 by which it was clarified that appointments made to the post of members of the Customs Excise Sales Tax Appellate Tribunal shall be for a period of five years or till the member attains the age of 62 years. This Court clarified that the President shall continue till he attains the age of 65 years. In respect of the Central Administrative Tribunal, the old Rules were directed to be applied.51. The 2017 Rules have been declared as being contrary to the parent enactment and the principles envisaged in the Constitution and hence struck down by this Court in Rojer Mathew (supra). The Central Government was directed to reformulate the Rules in conformity and in accordance with the principles delineated by this Court in its earlier judgment and the observations made in Rojer Mathew (supra). The 2020 Rules are made in exercise of the power conferred under Section 184 of the Finance Act which came into force on their publication in the official Gazette as per Rule 1 (2). The date of publication of the 2020 Rules is 12.02.2020. We are unable to accept the submission of learned Attorney General that the 2020Rules which replaced the 2017 Rules shall come into force with effect from 26.05.2017 which was the appointed day in accordance with the 2017 Rules. It is true that the 2017 Rules were brought into force from 26.05.2017 and Section 183 of the Finance Act provides for any appointment made after the appointed day shall be in accordance with the Rules made under Section 184 of the Finance Act, 2017. 2017 Rules which have come into force with effect from 26.05.2017 in accordance with Section 183 have been struck down by this Court. The 2020 Rules which came into force from the date of their publication in the Official Gazette, i.e. 12.02.2020, cannot be given retrospective effect. The intention of Government of India to make the 2020 Rules prospective is very clear from the notification dated 12.02.2020. In any event, subordinate legislation cannot be given retrospective effect unless the parent statute specifically provides for the same.( ITO vs. M.C. Ponnoose, (1969) 2 SCC 351 ; Sri Vijayalakshmi Rice Mills vs. State of A.P., (1976) 3 SCC 37 ).52. As we have held that the 2020 Rules are not retrospective, the point that remains to be determined is the applicable Rules for appointments that were made prior to the 2020 Rules. The appointments made during the pendency of Rojer Mathew (supra) on the date of interim orders passed therein and appointments made after the judgment of Rojer Mathew (supra), like the appointments made prior to the 2017 Rules are, no doubt, to be governed by the then existing parent Acts and Rules. In view of the interim orders passed by this Court in Rojer Mathew (supra), appointments made during the pendency of the case in this Court are also to be governed by the parent Acts and Rules and the clarifications issued by this Court in Rojer Mathew (supra). According to paragraph 224 of the judgment in Rojer Mathew (supra), the appointments to the Tribunals were directed to be in terms of the respective Acts and Rules which governed appointments to Tribunals prior to the enactment of the Finance Act, 2017. For the purpose of clarity, we hold that all appointments made prior to the 2020 Rules which came into force on 12.02.2020 shall be governed by the parent Acts and Rules. Any appointment made after the 2020 Rules have come into force shall be in accordance with the 2020 Rules subject to the modifications directed in the preceding paragraphs of this judgment.
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M/S Bhandari Udyog Ltd Vs. Industrial Facilitation Council | jurisdiction of a Court to entertain application under Section 34 of the Arbitration and Conciliation Act, 1996? 3. The facts of the case lie in a narrow compass. 4. The Appellant Company is running a small scale industry at Raichur in the State of Karnataka and is engaged in the business of cotton ginning, pressing while extraction and in marketing the finished products. Whereas Respondent No.2 is running a cotton spinning mill at Latur in the State of Maharashtra. Respondent no.2 purchased 750 bales of cotton from the appellant-company and made part payment to the appellant. The balance amount was not paid which led to a dispute between the parties.5. It further appears that the appellant filed an application under Sections 3 and 4 of the Interest on Delayed Payments to Small Scale and Ancillary Industrial Undertakings Act,1993 (for short IDP Act) before respondent no.1, the Industrial Facilitation Council (for short IFC) to arbitrate the dispute between the appellant and respondent no.2. The appellant thereafter filed a petition before the Karnataka High Court under Section 11 of the Arbitration and Conciliation Act, 1996 (for short Act of 1996) for appointment of Arbitrator. The said petition was allowed by the Chief Justice Designate and directed respondent No.1 (IFC) to decide the dispute between the parties. The respondent no.1 passed an Award on 16.8.2010 directing respondent no.2 to pay a sum of Rs.20,25,213.54 with interest.6. The respondent no.2 challenged the Award by filing an application under Section 34 of 1996 Act before the District Court at Latur, Maharashtra for setting aside the Award. The appellant opposed the said application by challenging the jurisdiction of the District Court in Latur.The appellant contended that the District Court at Raichur has jurisdiction to hear the application under Section 34 of the Act. The District Judge proceeded to decide the jurisdiction by referring various provisions including Sections 15 to 20 of the Code of Civil Procedure and held that since respondent no.2 resides at Latur, delivery of cotton bales was taken at Latur and the place of business of respondent no.2 was at Latur, it is the District Judge, Latur, who has jurisdiction to entertain the application under Section 34 of the Act.7. As against the aforesaid order passed by the District Judge, Latur, appellant preferred a revision before the Bombay High Court. The Bombay High Court dismissed the revision holding that since the Chief Justice of the High Court dealing with an application under Section 11 of the Act is not a court, and that no application was filed in any court prior to the filing of application under Section 34 of the Act and further the bales were supplied at Latur, it is the Latur Court which has jurisdiction to entertain the application under Section 34 of the Act. 8. We have heard Mr. Jayant Bhushan, learned senior counsel appearing for the appellant and Mr. Shrish K. Deshpande, learned counsel appearing for respondent no.2. It is not in dispute that pursuant to the order passed by respondent no.2, the cotton bales were dispatched by the appellant from Raichur supported by all bills/invoices specifically mentioning that "subject to Raichur jurisdiction". The dispute arose and the matter was referred to respondent no.1, IFC Bangalore. Respondent No.2 participated in the arbitration proceedings in Bangalore without raising objection with regard to the jurisdiction of the Karnataka High Court referring the matter to arbitration or the jurisdiction of IFC to decide the dispute. Admittedly, the arbitration proceeding was concluded within the jurisdiction of Raichur Court. The only forum available to respondent no.2 was to make an application under Section 34 of the Act before the Civil Court of original jurisdiction at Raichur, since the Karnataka High Court has no original jurisdiction. 9. Recently, when a similar question for consideration arose before three Judges Bench of this Court in the case of State of West Bengal & Ors. vs. Associated contractors, (2015) 1 SCC 32 , this Court held:- "22. One more question that may arise under Section 42 is whether Section 42 would apply in cases where an application made in a court is [pic]found to be without jurisdiction. Under Section 31(4) of the old Act, it has been held in F.C.I. v. A.M. Ahmed & Co.,(2001) 10 SCC 532 at p. 532, para 6 and Neycer India Ltd. v. GMB Ceramics Ltd.(2002) 9 SCC 489 at pp. 490-91, para 3 that Section 31(4) of the 1940 Act would not be applicable if it were found that an application was to be made before a court which had no jurisdiction. In Jatinder Nath v. Chopra Land Developers (P) Ltd.,(2007) 11 SCC 453 at p. 460, para 9 and Rajasthan SEB v. Universal Petro Chemicals Ltd. (2009) 2 SCC 107 at p. 116, paras 33 to 36 and Swastik Gases (P) Ltd. v. Indian Oil Corpn. Ltd. (2013) 9 SCC 32 at pp. 47-48, para 32, it was held that where the agreement between the parties restricted jurisdiction to only one particular court, that court alone would have jurisdiction as neither Section 31(4) nor Section 42 contains a non obstante clause wiping out a contrary agreement between the parties. It has thus been held that applications preferred to courts outside the exclusive court agreed to by parties would also be without jurisdiction." 10. Indisputably, the Arbitration proceeding has been conducted within the jurisdiction of Raichur court, which has jurisdiction as per Section 20 of the Code of Civil Procedure and is subordinate to the High Court of Karnataka which entertained Section 11 Application. Hence, the Award cannot be challenged before a Court subordinate to the High Court of Bombay. Exercise of jurisdiction by such court shall be against the provision of Section 42 of the Act.11. We, after giving our anxious consideration to the matter, are of the view that the District Court at Latur and High Court of Bombay have committed error of law in entertaining the application under Section 34 of the Act and dismissing the revision petition. | 1[ds]8. We have heard Mr. Jayant Bhushan, learned senior counsel appearing for the appellant and Mr. Shrish K. Deshpande, learned counsel appearing for respondent no.2. It is not in dispute that pursuant to the order passed by respondent no.2, the cotton bales were dispatched by the appellant from Raichur supported by all bills/invoices specifically mentioning that "subject to Raichur jurisdiction". The dispute arose and the matter was referred to respondent no.1, IFC Bangalore. Respondent No.2 participated in the arbitration proceedings in Bangalore without raising objection with regard to the jurisdiction of the Karnataka High Court referring the matter to arbitration or the jurisdiction of IFC to decide the dispute. Admittedly, the arbitration proceeding was concluded within the jurisdiction of Raichur Court. The only forum available to respondent no.2 was to make an application under Section 34 of the Act before the Civil Court of original jurisdiction at Raichur, since the Karnataka High Court has no original jurisdiction.Indisputably, the Arbitration proceeding has been conducted within the jurisdiction of Raichur court, which has jurisdiction as per Section 20 of the Code of Civil Procedure and is subordinate to the High Court of Karnataka which entertained Section 11 Application. Hence, the Award cannot be challenged before a Court subordinate to the High Court of Bombay. Exercise of jurisdiction by such court shall be against the provision of Section 42 of the Act.11. We, after giving our anxious consideration to the matter, are of the view that the District Court at Latur and High Court of Bombay have committed error of law in entertaining the application under Section 34 of the Act and dismissing the revision petition. | 1 | 1,157 | 301 | ### 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:
jurisdiction of a Court to entertain application under Section 34 of the Arbitration and Conciliation Act, 1996? 3. The facts of the case lie in a narrow compass. 4. The Appellant Company is running a small scale industry at Raichur in the State of Karnataka and is engaged in the business of cotton ginning, pressing while extraction and in marketing the finished products. Whereas Respondent No.2 is running a cotton spinning mill at Latur in the State of Maharashtra. Respondent no.2 purchased 750 bales of cotton from the appellant-company and made part payment to the appellant. The balance amount was not paid which led to a dispute between the parties.5. It further appears that the appellant filed an application under Sections 3 and 4 of the Interest on Delayed Payments to Small Scale and Ancillary Industrial Undertakings Act,1993 (for short IDP Act) before respondent no.1, the Industrial Facilitation Council (for short IFC) to arbitrate the dispute between the appellant and respondent no.2. The appellant thereafter filed a petition before the Karnataka High Court under Section 11 of the Arbitration and Conciliation Act, 1996 (for short Act of 1996) for appointment of Arbitrator. The said petition was allowed by the Chief Justice Designate and directed respondent No.1 (IFC) to decide the dispute between the parties. The respondent no.1 passed an Award on 16.8.2010 directing respondent no.2 to pay a sum of Rs.20,25,213.54 with interest.6. The respondent no.2 challenged the Award by filing an application under Section 34 of 1996 Act before the District Court at Latur, Maharashtra for setting aside the Award. The appellant opposed the said application by challenging the jurisdiction of the District Court in Latur.The appellant contended that the District Court at Raichur has jurisdiction to hear the application under Section 34 of the Act. The District Judge proceeded to decide the jurisdiction by referring various provisions including Sections 15 to 20 of the Code of Civil Procedure and held that since respondent no.2 resides at Latur, delivery of cotton bales was taken at Latur and the place of business of respondent no.2 was at Latur, it is the District Judge, Latur, who has jurisdiction to entertain the application under Section 34 of the Act.7. As against the aforesaid order passed by the District Judge, Latur, appellant preferred a revision before the Bombay High Court. The Bombay High Court dismissed the revision holding that since the Chief Justice of the High Court dealing with an application under Section 11 of the Act is not a court, and that no application was filed in any court prior to the filing of application under Section 34 of the Act and further the bales were supplied at Latur, it is the Latur Court which has jurisdiction to entertain the application under Section 34 of the Act. 8. We have heard Mr. Jayant Bhushan, learned senior counsel appearing for the appellant and Mr. Shrish K. Deshpande, learned counsel appearing for respondent no.2. It is not in dispute that pursuant to the order passed by respondent no.2, the cotton bales were dispatched by the appellant from Raichur supported by all bills/invoices specifically mentioning that "subject to Raichur jurisdiction". The dispute arose and the matter was referred to respondent no.1, IFC Bangalore. Respondent No.2 participated in the arbitration proceedings in Bangalore without raising objection with regard to the jurisdiction of the Karnataka High Court referring the matter to arbitration or the jurisdiction of IFC to decide the dispute. Admittedly, the arbitration proceeding was concluded within the jurisdiction of Raichur Court. The only forum available to respondent no.2 was to make an application under Section 34 of the Act before the Civil Court of original jurisdiction at Raichur, since the Karnataka High Court has no original jurisdiction. 9. Recently, when a similar question for consideration arose before three Judges Bench of this Court in the case of State of West Bengal & Ors. vs. Associated contractors, (2015) 1 SCC 32 , this Court held:- "22. One more question that may arise under Section 42 is whether Section 42 would apply in cases where an application made in a court is [pic]found to be without jurisdiction. Under Section 31(4) of the old Act, it has been held in F.C.I. v. A.M. Ahmed & Co.,(2001) 10 SCC 532 at p. 532, para 6 and Neycer India Ltd. v. GMB Ceramics Ltd.(2002) 9 SCC 489 at pp. 490-91, para 3 that Section 31(4) of the 1940 Act would not be applicable if it were found that an application was to be made before a court which had no jurisdiction. In Jatinder Nath v. Chopra Land Developers (P) Ltd.,(2007) 11 SCC 453 at p. 460, para 9 and Rajasthan SEB v. Universal Petro Chemicals Ltd. (2009) 2 SCC 107 at p. 116, paras 33 to 36 and Swastik Gases (P) Ltd. v. Indian Oil Corpn. Ltd. (2013) 9 SCC 32 at pp. 47-48, para 32, it was held that where the agreement between the parties restricted jurisdiction to only one particular court, that court alone would have jurisdiction as neither Section 31(4) nor Section 42 contains a non obstante clause wiping out a contrary agreement between the parties. It has thus been held that applications preferred to courts outside the exclusive court agreed to by parties would also be without jurisdiction." 10. Indisputably, the Arbitration proceeding has been conducted within the jurisdiction of Raichur court, which has jurisdiction as per Section 20 of the Code of Civil Procedure and is subordinate to the High Court of Karnataka which entertained Section 11 Application. Hence, the Award cannot be challenged before a Court subordinate to the High Court of Bombay. Exercise of jurisdiction by such court shall be against the provision of Section 42 of the Act.11. We, after giving our anxious consideration to the matter, are of the view that the District Court at Latur and High Court of Bombay have committed error of law in entertaining the application under Section 34 of the Act and dismissing the revision petition.
### Response:
1
### Explanation:
8. We have heard Mr. Jayant Bhushan, learned senior counsel appearing for the appellant and Mr. Shrish K. Deshpande, learned counsel appearing for respondent no.2. It is not in dispute that pursuant to the order passed by respondent no.2, the cotton bales were dispatched by the appellant from Raichur supported by all bills/invoices specifically mentioning that "subject to Raichur jurisdiction". The dispute arose and the matter was referred to respondent no.1, IFC Bangalore. Respondent No.2 participated in the arbitration proceedings in Bangalore without raising objection with regard to the jurisdiction of the Karnataka High Court referring the matter to arbitration or the jurisdiction of IFC to decide the dispute. Admittedly, the arbitration proceeding was concluded within the jurisdiction of Raichur Court. The only forum available to respondent no.2 was to make an application under Section 34 of the Act before the Civil Court of original jurisdiction at Raichur, since the Karnataka High Court has no original jurisdiction.Indisputably, the Arbitration proceeding has been conducted within the jurisdiction of Raichur court, which has jurisdiction as per Section 20 of the Code of Civil Procedure and is subordinate to the High Court of Karnataka which entertained Section 11 Application. Hence, the Award cannot be challenged before a Court subordinate to the High Court of Bombay. Exercise of jurisdiction by such court shall be against the provision of Section 42 of the Act.11. We, after giving our anxious consideration to the matter, are of the view that the District Court at Latur and High Court of Bombay have committed error of law in entertaining the application under Section 34 of the Act and dismissing the revision petition.
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Star Enterprises and Ors Vs. City and Industrial Development Corporation of Maharashtra Ltd. and Ors | price for its plots. 5. It is not disputed that the scheme which is operating provides that "respondent 1 reserves the right to amend, revoke or modify the scheme at its discretion as well as to reject any or all offers for allotment without assigning any reason." Obviously it is in exercise of this power that the highest tenders have not been accepted. 6. It is the contention of Mr. Dwivedi appearing in support of these appeals that the respondent is State under Article 12 of the Constitution and conferment of naked and unguided power as referred to above is arbitrary and contrary to the provisions of Article 14 of the Constitution; and since there is no prescribed norm or guideline and the power is unregulated and unfettered and unfettered and the highest offer after complying with the prescribed requirements is liable to be rejected without assigning any reasons, citizens are likely to be affected by exercise of such uncanalised power. Shortly put, Mr. Dwivedi submits that the procedure is contrary to the requirements of Rule of Law and, therefore, cannot be sustained. An affidavit in opposition has been filed on behalf of respondent 1 wherein the circumstances under which the highest offers have been accepted has been indicated and the position has been explained. 7. We do not find it difficult to agree with Mr. Dwivedis submissions that respondent 1 is State within the meaning of Article 12 and in its dealings with the citizens of India it would be required to act within the ambit of Rule of Law and would not be permitted to conduct its activities arbitrarily. It is too late in the day for as institution like respondent 1 to adopt the posture that the activity in question is commercial and as respondent 1 is engaged in trading activity it would be open to it to act as it considers appropriate for the purpose of protecting its business interest. An instrumentality of the State as has been laid down by this Court in a series of authoritative decisions beginning with R. D. Shetty v. International Airport Authority of India ( 1979 (3) SCC 489 and a number of decisions thereafter has to act within the ambit of Rule of Law and would not be allowed to conduct itself arbitrarily and in its dealings with public would be liable to judicial review. 8. The State is certainly entitled to look for the best deal in regard to its properties. This has been accepted by several decisions of this Court. With reference to State action under the excise laws. There is allegation of mala fides in the conduct of respondent 1 in refusing to accept the highest offer. We must, therefore, proceed on the footing that respondent 1 acted bona fide and in refusing to accept the highest offers of the appellants in regard to specific plots has been actuated by the consideration of looking for better offers for the specific plot in the economic interests of respondent 1. 9. The question which still remains to be answered is as to whether when the highest offer in response to an invitation is rejected would not the public authority be required to provide reasons for such action ? Mr. Dwivedi has not asked us to look for a reasoned decision but has submitted that it is the interest of the public authority itself, the State and everyone in the society at large that reasons for State action are placed on record and are even communicated to the persons from whom the offers came so that the dealings remain above board; the interest of the public authority is adequately protected and a citizen knows where he stands with reference to this offer. What this Court said in state of U. P. v. Raj Narain ( 1975 (4) SCC 428 may be usefully recalled here : (SCC p. 453, Para 74) "In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security. To cover with veil of secrecy the common routine business, is the interest of the public." * 10. In recent times, judicial review of administrative action has become expansive and is becoming wider day by day. The traditional limitations have been vanishing and the sphere of judicial scrutiny is being expanded. State activity too is becoming fast pervasive. As the State has descended into the commercial field and giant public sector undertakings have grown up, the stake of the public exchequer is also large justifying larger social audit, judicial control and review by opening of the public gaze; these necessitate recording of reasons for executive actions including cases of rejection of highest offers. That very often involves large stakes and availability of reasons for actions on the record assures credibility to the action; disciplines public conduct and improves the culture of accountability. Looking for reasons in support of such action provides an opportunity for an objective review in appropriate cases both by the administrative superior and by the judicial process. The submission of Mr. Dwivedi, therefore, commends itself to our acceptance, namely, that when highest offers of the type in question are rejected reasons sufficient to indicate the stand of the appropriate authority should be made available and ordinarily the same should be communicated to the concerned parties unless there by any specific justification not to do so. | 0[ds]10. In recent times, judicial review of administrative action has become expansive and is becoming wider day by day. The traditional limitations have been vanishing and the sphere of judicial scrutiny is being expanded. State activity too is becoming fast pervasive. As the State has descended into the commercial field and giant public sector undertakings have grown up, the stake of the public exchequer is also large justifying larger social audit, judicial control and review by opening of the public gaze; these necessitate recording of reasons for executive actions including cases of rejection of highest offers. That very often involves large stakes and availability of reasons for actions on the record assures credibility to the action; disciplines public conduct and improves the culture of accountability. Looking for reasons in support of such action provides an opportunity for an objective review in appropriate cases both by the administrative superior and by the judicial process. The submission of Mr. Dwivedi, therefore, commends itself to our acceptance, namely, that when highest offers of the type in question are rejected reasons sufficient to indicate the stand of the appropriate authority should be made available and ordinarily the same should be communicated to the concerned parties unless there by any specific justification not to do | 0 | 1,390 | 230 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
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price for its plots. 5. It is not disputed that the scheme which is operating provides that "respondent 1 reserves the right to amend, revoke or modify the scheme at its discretion as well as to reject any or all offers for allotment without assigning any reason." Obviously it is in exercise of this power that the highest tenders have not been accepted. 6. It is the contention of Mr. Dwivedi appearing in support of these appeals that the respondent is State under Article 12 of the Constitution and conferment of naked and unguided power as referred to above is arbitrary and contrary to the provisions of Article 14 of the Constitution; and since there is no prescribed norm or guideline and the power is unregulated and unfettered and unfettered and the highest offer after complying with the prescribed requirements is liable to be rejected without assigning any reasons, citizens are likely to be affected by exercise of such uncanalised power. Shortly put, Mr. Dwivedi submits that the procedure is contrary to the requirements of Rule of Law and, therefore, cannot be sustained. An affidavit in opposition has been filed on behalf of respondent 1 wherein the circumstances under which the highest offers have been accepted has been indicated and the position has been explained. 7. We do not find it difficult to agree with Mr. Dwivedis submissions that respondent 1 is State within the meaning of Article 12 and in its dealings with the citizens of India it would be required to act within the ambit of Rule of Law and would not be permitted to conduct its activities arbitrarily. It is too late in the day for as institution like respondent 1 to adopt the posture that the activity in question is commercial and as respondent 1 is engaged in trading activity it would be open to it to act as it considers appropriate for the purpose of protecting its business interest. An instrumentality of the State as has been laid down by this Court in a series of authoritative decisions beginning with R. D. Shetty v. International Airport Authority of India ( 1979 (3) SCC 489 and a number of decisions thereafter has to act within the ambit of Rule of Law and would not be allowed to conduct itself arbitrarily and in its dealings with public would be liable to judicial review. 8. The State is certainly entitled to look for the best deal in regard to its properties. This has been accepted by several decisions of this Court. With reference to State action under the excise laws. There is allegation of mala fides in the conduct of respondent 1 in refusing to accept the highest offer. We must, therefore, proceed on the footing that respondent 1 acted bona fide and in refusing to accept the highest offers of the appellants in regard to specific plots has been actuated by the consideration of looking for better offers for the specific plot in the economic interests of respondent 1. 9. The question which still remains to be answered is as to whether when the highest offer in response to an invitation is rejected would not the public authority be required to provide reasons for such action ? Mr. Dwivedi has not asked us to look for a reasoned decision but has submitted that it is the interest of the public authority itself, the State and everyone in the society at large that reasons for State action are placed on record and are even communicated to the persons from whom the offers came so that the dealings remain above board; the interest of the public authority is adequately protected and a citizen knows where he stands with reference to this offer. What this Court said in state of U. P. v. Raj Narain ( 1975 (4) SCC 428 may be usefully recalled here : (SCC p. 453, Para 74) "In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security. To cover with veil of secrecy the common routine business, is the interest of the public." * 10. In recent times, judicial review of administrative action has become expansive and is becoming wider day by day. The traditional limitations have been vanishing and the sphere of judicial scrutiny is being expanded. State activity too is becoming fast pervasive. As the State has descended into the commercial field and giant public sector undertakings have grown up, the stake of the public exchequer is also large justifying larger social audit, judicial control and review by opening of the public gaze; these necessitate recording of reasons for executive actions including cases of rejection of highest offers. That very often involves large stakes and availability of reasons for actions on the record assures credibility to the action; disciplines public conduct and improves the culture of accountability. Looking for reasons in support of such action provides an opportunity for an objective review in appropriate cases both by the administrative superior and by the judicial process. The submission of Mr. Dwivedi, therefore, commends itself to our acceptance, namely, that when highest offers of the type in question are rejected reasons sufficient to indicate the stand of the appropriate authority should be made available and ordinarily the same should be communicated to the concerned parties unless there by any specific justification not to do so.
### Response:
0
### Explanation:
10. In recent times, judicial review of administrative action has become expansive and is becoming wider day by day. The traditional limitations have been vanishing and the sphere of judicial scrutiny is being expanded. State activity too is becoming fast pervasive. As the State has descended into the commercial field and giant public sector undertakings have grown up, the stake of the public exchequer is also large justifying larger social audit, judicial control and review by opening of the public gaze; these necessitate recording of reasons for executive actions including cases of rejection of highest offers. That very often involves large stakes and availability of reasons for actions on the record assures credibility to the action; disciplines public conduct and improves the culture of accountability. Looking for reasons in support of such action provides an opportunity for an objective review in appropriate cases both by the administrative superior and by the judicial process. The submission of Mr. Dwivedi, therefore, commends itself to our acceptance, namely, that when highest offers of the type in question are rejected reasons sufficient to indicate the stand of the appropriate authority should be made available and ordinarily the same should be communicated to the concerned parties unless there by any specific justification not to do
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Workmen of Cochin Port Trust Vs. Board of Trustees of The Cochin Port Trust and Another | it was discharged as it did not appear that there had been a demand and a refusal. He applied again saying that there had been a demand and a refusal since then. Lord Denman C.J., observed that as Stephens was making an application which had already been refused, on fresh materials, he could not have "the same application repeated from time to time" as they had "often refused rules" on that ground. The same view has been taken in England in respect of renewed petition for certiorari, quo warranto and prohibition, and, as we shall show, that is also the position in this country." 8. The above passage amply supports the view expressed by us above. We, have thought it proper to give some additional reasons to cuff out the identical principle.We may now advert very briefly to some of the decisions of the High Court cited at the Bar. In The Management of Western India Match Co. Ltd., Madras v. The Industrial Tribunal, Madras and another(A.I.R. 1958, Madras, 398.) it was pointed out, at page 403 but in our opinion, in some what too broad a term that:-"The right to apply for leave to appeal to the Supreme Court under Art. 136 of the Constitution if it could be called a "right" at all cannot be equated to a right to appeal. Obviously a High Court cannot refuse to entertain an application under Art. 226 of the Constitution on the ground that the aggrieved party could move the Supreme Court under Art. 136 of the Constitution. That the Supreme Court declined to exercise it s discretion in favour of the petitioner by granting the leave asked for cannot, in our opinion, affect the jurisdiction vested in the High Court under Art. 226 of the Constitution." 9. The law s o broadly stated is not quite accurate although substantially it is correct to the extent we have pointed out above. A learned single Judge of the Kerala High Court followed the aforesaid Bench decision of the Madras High Court in S. I. Emmatty , Proprietor Jai Hind Motor Service, Ernakulam v. Venkitaswami Naidu and others(A.I.R. 1959, Kerala 291.) In Bansi and another v. Additional Director, Consolidation of Holdings, Rohtak and others(A.I.R. 1967, Punjab, 28.) it was held that when a petition under Art. 226 of the Constitution has been dismissed in limine, it cannot again be revived by the same petitioner by another petition on substantially the same allegations. It has further been rightly pointed out that such a dismissal in limine not on merits but for laches or on the ground of availability of alternative remedy does not bar a second petition under Art. 32, and we may add, any other proceeding available in law. For the reasons stated in our judgment, we approve of his decision. The appellants placed reliance upon the decision of the Calcutta High Court in Haridas Malakar and others v. Jay Engineering Works ([1975] 2 Labour Law Journal, 26 .) wherein following the decision of the Madras High Court in the case of Western India Match Co. the learned Judge has said at page 29 t hat he respectfully agreed with the view of the, learned Judges of the Madras High Court. We have already pointed out the inaccuracy in the broad statement of the law in the Madras decision. In any event it does not help the appellants at all. Coming to the merits of the award made by the Tribunal it would suffice to point out that the Tribunal did not find that Roster off system was not necessary for the successful working of the Port work as deposed to by the Deputy Traffic Manager of the Port Trust. No discrimination could be found in the Roster off system as such. It was found in the matter o f non-payment of extra half a days wages. The error of law apparent on the face of the award was that if Roster off system was necessary for the Supervisory staff and the porterage labour, then the Roster category of the workmen was a class by itself and equating such workmen with other categories of the workmen who were very seldom required to work on Sundays was obviously a wrong application of the principles of discrimination. In substance and in effect the award went beyond the scope of reference although in form in which the final order was made it did not do so. The Tribunal exceeded its jurisdiction in saying that categories xvi and xvii of the workmen could be always made to work on Sundays but they should be given additional half days wages besides a day off for working on Sundays. This is an entirely different kind of relief which the Tribunal purported to grant. It was not within the terms of the reference. On the findings of the Tribunal the point of reference ought to have been answered by saying merely that the demand for changing the Roster off system in respect of the two categories of the workmen was justified or not justified. We would, however, like to observe that it may b e open to the workmen to raise an industrial dispute demanding half days extra wages on account of their being asked to work on Sundays on the basis of the Roster off system. Even though the system may not be unjustified, yet it may be possible for the workmen to press and justify their demand of extra half days wages. Giving them one days full wages when, per chance, they are asked to work on their off day may not be a compensation fit to be equated with the said demand. This is not a matter on which we are called upon to express any opinion as to whether such a demand would be justified or not or whether it should be acceeded to. But what we want to emphasize here is that the relief granted by the Tribunal was beyond the scope of the reference. | 0[ds]It is well known that the doctrine of res judicata is codified in section 11 of theCode of Civil Procedure but it is not exhaustive. Section 11 generally comes into play in relation to civil suits. But apart from the codified law the doctrine of res judicata or the principle of res judicata has been applied since long in various other kinds of proceedings and situations by Courts in England, India and other countries. The rule of constructive res judicata is engrafted in Explanation IV of section 11 of theCode of Civil Procedure and in many other situations also principles not only of direct re s judicata but of constructive res judicata are also applied. If by any judgment or order any matter in issue has been directly and explicity decided the decision operates as res judicata and bars the trial of an identical issue in a subsequent proceeding between the same parties. The principle of res judicata also comes into play when by the judgment and order a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implication; then also the principle of res judicata on that issue is directly applicable. When any matter which might and ought to have been made a ground of defence or attack in a former proceeding but was not so made, then such a matter in the eye of law,d multiplicity of litigation and to bring about finality in it is deemed to have been constructively in issue and, therefore, is taken as decidedIn the instant case the award of the Tribunal, no doubt, was challenged in the special leave petition filed in this, Court, on almost all grounds which were in the subsequent writ proceeding agitated in the High Court. There is no question, therefore, of applying the principles of constructive res judicata in this case. What is, however, to be seen is whether from the order dismissing the special leave petition in limine it can be inferred that all the matters agitated in the said petition were either explicitly or implicitly decided against the respondent. In disputably nothing was expressly decided. The effect of ag order of dismissal without anything more indicating the grounds or reasons of its dismissal must, by necessary implication, be taken to have decided that it was not a fit case where special leave should be granted. It may be due to several reasons. It may be one or more. It may also be that the merits of the award were taken into consideration and this Court felt that it did not require any interference. But since the order is not a speaking order, one finds it difficult to accept the argument put forward on behalf of the appellants that it must be deemed to have necessarily decided implicitly all the questions in relation to the merits of the award. A writ proceeding is a different proceeding. Whatever can be held to have been decided expressly, implicitly or even constructively while dismissing the special leave petition cannot be reopened. But the technical rule of res judicata, although a wholesome rule based upon public policy, cannot be stretched too far to bar the trial of identical issues in a separate have been decided. It is not safe to, extend the principle of res judicata to such an extent so as to found it on m ere, guess work. To illustrate our view point, we) may take an example. Suppose a writ petition is filed in a High Court for grant of a writ of Certiorari to challenge some order or decision on several grounds. If the Writ Petition is dismissed after contest by a speaking order obviously if will operate as res judicata in any other proceeding, such as, of suit, Article 32 or Article 136 directed from the same order or decision. If the Writ Petition is dismissed by a speaking order either at the threshold or after contest, say, only on the ground of laches or the availability of an alternative remedy, then another remedy open in law either by way of suit or any other proceeding obviously will not be barred on the principle of res judicata. Of course, a second writ petition on the same cause of action either filed in the same High Court or in another will not be maintainable because the dismissal of one petition will operate as a bar in the entertainment of another writ petition. Similarly even if one writ petition is dismissed in limine by ag one word order dismissed, another writ petition would not be maintainable because even the one word order, as we have indicated above, must necessarily be taken to have decided impliedly that the case is not a fit one for exercise of the writ jurisdiction of the High Court. Another writ petition from the same order or decision will not lie. But the position is substantially different when a writ petition is dismissed either at the threshold or after contest without expressing any opinion on the merits of the matter, then no merit can be deemed to have been necessarily and impliedly decided and any other remedy of suit or other proceeding will not be barred on the principle of res judicata.There are several decisions of this Court dealing with the doctrine and principles of res judicata. We may refer to only a few. In Daryao and others v. The State of U.P. and others([1962] 1 S.C.R. 574.) Gajendragadkar J., delivering the judgment of this Court elaborately discussed the rule of res judicata and ultimately held that where the High Court dismisses a writ petition after hearing the matte r on the merits on the ground that no fundamental right was proved or contravened a subsequent petition to the Supreme Court under Article 32 on the same facts and for the same reliefs filed by the same party would be barred by the general principles of res judicataThis passage lends support to the principles of res judicata enunciated by us above. In Daryaos case (supra) the conclusions are stated at page 592. Two situations, namely, (1) disposal of the writ application on merits and (2) its dismissal not on merits but on the ground of Laches of the party or the availability of an alternative remedy, enabled us to state what we have said above. The, dismissal of a writ petition in limine with a reasoned order may or may not constitute a It will depend upon the nature of the order. "If the petition is dismissed in limine", says the learned Judge, "without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata. It is true that prima facie, dismissal in limine even without passing a speaking order in that behalf may strongly suggest that the Court took the view that there was no substance in the petition at all; but in the absence of a speaking order it would not be easy to decide what factors weighed in the mind of the Court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of re s judicata against a similar petition filed under Art. 32." We have thought it proper to elucidate this aspect of the matter a bit further to indicate that dismissal of a writ petition in limine by a non speaking order could certainly create a bar in the entertainment of another writ petition filed by the same party on the same cause of action.This decision was followed in P. D. Sharma v. State Bank of India([1968] 3 S.C.R. 91.), wherein it was held that the summary dismissal of a writ petition under Article 226 challenging the order of the Labour Court was no bar to the entertainment of an appeal under Article 136 from the same order of the Labour CourtBut he was not right in saying that dismissal of a special leave petition under Art. 136 must necessarilybar the entertainment of a writ petition under Art. 226. In a recent decision of this Court in State of Uttar Pradesh v. Nawab Hussain([1977] 3 S.C.R. 428.) Shinghal J., delivering the judgment on behalf of the Court applied the principles of constructive res judicata and held that a suit to challenge the order of dismissal from service after dismissal of the writ petition on merits was not maintainable although a new ground o f attack was made out in the suit which had not been taken in the writ petition. This was so on the application of the principle of constructive res judicataThe above passage amply supports the view expressed by us above. We, have thought it proper to give some additional reasons to cuff out the identical principle.The law s o broadly stated is not quite accurate although substantially it is correct to the extent we have pointed out above. A learned single Judge of the Kerala High Court followed the aforesaid Bench decision of the Madras High Court in S. I. Emmatty , Proprietor Jai Hind Motor Service, Ernakulam v. Venkitaswami Naidu and others(A.I.R. 1959, Kerala 291.) In Bansi and another v. Additional Director, Consolidation of Holdings, Rohtak and others(A.I.R. 1967, Punjab, 28.) it was held that when a petition under Art. 226 of the Constitution has been dismissed in limine, it cannot again be revived by the same petitioner by another petition on substantially the same allegations. It has further been rightly pointed out that such a dismissal in limine not on merits but for laches or on the ground of availability of alternative remedy does not bar a second petition under Art. 32, and we may add, any other proceeding available in law. For the reasons stated in our judgment, we approve of his decision. The appellants placed reliance upon the decision of the Calcutta High Court in Haridas Malakar and others v. Jay Engineering Works ([1975] 2 Labour Law Journal, 26 .) wherein following the decision of the Madras High Court in the case of Western India Match Co. the learned Judge has said at page 29 t hat he respectfully agreed with the view of the, learned Judges of the Madras High Court. We have already pointed out the inaccuracy in the broad statement of the law in the Madras decision. In any event it does not help the appellants at all. Coming to the merits of the award made by the Tribunal it would suffice to point out that the Tribunal did not find that Roster off system was not necessary for the successful working of the Port work as deposed to by the Deputy Traffic Manager of the Port Trust. No discrimination could be found in the Roster off system as such. It was found in the matter o ft of extra half a days wages. The error of law apparent on the face of the award was that if Roster off system was necessary for the Supervisory staff and the porterage labour, then the Roster category of the workmen was a class by itself and equating such workmen with other categories of the workmen who were very seldom required to work on Sundays was obviously a wrong application of the principles of discrimination. In substance and in effect the award went beyond the scope of reference although in form in which the final order was made it did not do so. The Tribunal exceeded its jurisdiction in saying that categories xvi and xvii of the workmen could be always made to work on Sundays but they should be given additional half days wages besides a day off for working on Sundays. This is an entirely different kind of relief which the Tribunal purported to grant. It was not within the terms of the reference. On the findings of the Tribunal the point of reference ought to have been answered by saying merely that the demand for changing the Roster off system in respect of the two categories of the workmen was justified or not justified. We would, however, like to observe that it may b e open to the workmen to raise an industrial dispute demanding half days extra wages on account of their being asked to work on Sundays on the basis of the Roster off system. Even though the system may not be unjustified, yet it may be possible for the workmen to press and justify their demand of extra half days wages. Giving them one days full wages when, per chance, they are asked to work on their off day may not be a compensation fit to be equated with the said demand. This is not a matter on which we are called upon to express any opinion as to whether such a demand would be justified or not or whether it should be acceeded to. But what we want to emphasize here is that the relief granted by the Tribunal was beyond the scope of the reference. | 0 | 4,682 | 2,361 | ### Instruction:
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it was discharged as it did not appear that there had been a demand and a refusal. He applied again saying that there had been a demand and a refusal since then. Lord Denman C.J., observed that as Stephens was making an application which had already been refused, on fresh materials, he could not have "the same application repeated from time to time" as they had "often refused rules" on that ground. The same view has been taken in England in respect of renewed petition for certiorari, quo warranto and prohibition, and, as we shall show, that is also the position in this country." 8. The above passage amply supports the view expressed by us above. We, have thought it proper to give some additional reasons to cuff out the identical principle.We may now advert very briefly to some of the decisions of the High Court cited at the Bar. In The Management of Western India Match Co. Ltd., Madras v. The Industrial Tribunal, Madras and another(A.I.R. 1958, Madras, 398.) it was pointed out, at page 403 but in our opinion, in some what too broad a term that:-"The right to apply for leave to appeal to the Supreme Court under Art. 136 of the Constitution if it could be called a "right" at all cannot be equated to a right to appeal. Obviously a High Court cannot refuse to entertain an application under Art. 226 of the Constitution on the ground that the aggrieved party could move the Supreme Court under Art. 136 of the Constitution. That the Supreme Court declined to exercise it s discretion in favour of the petitioner by granting the leave asked for cannot, in our opinion, affect the jurisdiction vested in the High Court under Art. 226 of the Constitution." 9. The law s o broadly stated is not quite accurate although substantially it is correct to the extent we have pointed out above. A learned single Judge of the Kerala High Court followed the aforesaid Bench decision of the Madras High Court in S. I. Emmatty , Proprietor Jai Hind Motor Service, Ernakulam v. Venkitaswami Naidu and others(A.I.R. 1959, Kerala 291.) In Bansi and another v. Additional Director, Consolidation of Holdings, Rohtak and others(A.I.R. 1967, Punjab, 28.) it was held that when a petition under Art. 226 of the Constitution has been dismissed in limine, it cannot again be revived by the same petitioner by another petition on substantially the same allegations. It has further been rightly pointed out that such a dismissal in limine not on merits but for laches or on the ground of availability of alternative remedy does not bar a second petition under Art. 32, and we may add, any other proceeding available in law. For the reasons stated in our judgment, we approve of his decision. The appellants placed reliance upon the decision of the Calcutta High Court in Haridas Malakar and others v. Jay Engineering Works ([1975] 2 Labour Law Journal, 26 .) wherein following the decision of the Madras High Court in the case of Western India Match Co. the learned Judge has said at page 29 t hat he respectfully agreed with the view of the, learned Judges of the Madras High Court. We have already pointed out the inaccuracy in the broad statement of the law in the Madras decision. In any event it does not help the appellants at all. Coming to the merits of the award made by the Tribunal it would suffice to point out that the Tribunal did not find that Roster off system was not necessary for the successful working of the Port work as deposed to by the Deputy Traffic Manager of the Port Trust. No discrimination could be found in the Roster off system as such. It was found in the matter o f non-payment of extra half a days wages. The error of law apparent on the face of the award was that if Roster off system was necessary for the Supervisory staff and the porterage labour, then the Roster category of the workmen was a class by itself and equating such workmen with other categories of the workmen who were very seldom required to work on Sundays was obviously a wrong application of the principles of discrimination. In substance and in effect the award went beyond the scope of reference although in form in which the final order was made it did not do so. The Tribunal exceeded its jurisdiction in saying that categories xvi and xvii of the workmen could be always made to work on Sundays but they should be given additional half days wages besides a day off for working on Sundays. This is an entirely different kind of relief which the Tribunal purported to grant. It was not within the terms of the reference. On the findings of the Tribunal the point of reference ought to have been answered by saying merely that the demand for changing the Roster off system in respect of the two categories of the workmen was justified or not justified. We would, however, like to observe that it may b e open to the workmen to raise an industrial dispute demanding half days extra wages on account of their being asked to work on Sundays on the basis of the Roster off system. Even though the system may not be unjustified, yet it may be possible for the workmen to press and justify their demand of extra half days wages. Giving them one days full wages when, per chance, they are asked to work on their off day may not be a compensation fit to be equated with the said demand. This is not a matter on which we are called upon to express any opinion as to whether such a demand would be justified or not or whether it should be acceeded to. But what we want to emphasize here is that the relief granted by the Tribunal was beyond the scope of the reference.
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the mind of the Court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of re s judicata against a similar petition filed under Art. 32." We have thought it proper to elucidate this aspect of the matter a bit further to indicate that dismissal of a writ petition in limine by a non speaking order could certainly create a bar in the entertainment of another writ petition filed by the same party on the same cause of action.This decision was followed in P. D. Sharma v. State Bank of India([1968] 3 S.C.R. 91.), wherein it was held that the summary dismissal of a writ petition under Article 226 challenging the order of the Labour Court was no bar to the entertainment of an appeal under Article 136 from the same order of the Labour CourtBut he was not right in saying that dismissal of a special leave petition under Art. 136 must necessarilybar the entertainment of a writ petition under Art. 226. In a recent decision of this Court in State of Uttar Pradesh v. Nawab Hussain([1977] 3 S.C.R. 428.) Shinghal J., delivering the judgment on behalf of the Court applied the principles of constructive res judicata and held that a suit to challenge the order of dismissal from service after dismissal of the writ petition on merits was not maintainable although a new ground o f attack was made out in the suit which had not been taken in the writ petition. This was so on the application of the principle of constructive res judicataThe above passage amply supports the view expressed by us above. We, have thought it proper to give some additional reasons to cuff out the identical principle.The law s o broadly stated is not quite accurate although substantially it is correct to the extent we have pointed out above. A learned single Judge of the Kerala High Court followed the aforesaid Bench decision of the Madras High Court in S. I. Emmatty , Proprietor Jai Hind Motor Service, Ernakulam v. Venkitaswami Naidu and others(A.I.R. 1959, Kerala 291.) In Bansi and another v. Additional Director, Consolidation of Holdings, Rohtak and others(A.I.R. 1967, Punjab, 28.) it was held that when a petition under Art. 226 of the Constitution has been dismissed in limine, it cannot again be revived by the same petitioner by another petition on substantially the same allegations. It has further been rightly pointed out that such a dismissal in limine not on merits but for laches or on the ground of availability of alternative remedy does not bar a second petition under Art. 32, and we may add, any other proceeding available in law. For the reasons stated in our judgment, we approve of his decision. The appellants placed reliance upon the decision of the Calcutta High Court in Haridas Malakar and others v. Jay Engineering Works ([1975] 2 Labour Law Journal, 26 .) wherein following the decision of the Madras High Court in the case of Western India Match Co. the learned Judge has said at page 29 t hat he respectfully agreed with the view of the, learned Judges of the Madras High Court. We have already pointed out the inaccuracy in the broad statement of the law in the Madras decision. In any event it does not help the appellants at all. Coming to the merits of the award made by the Tribunal it would suffice to point out that the Tribunal did not find that Roster off system was not necessary for the successful working of the Port work as deposed to by the Deputy Traffic Manager of the Port Trust. No discrimination could be found in the Roster off system as such. It was found in the matter o ft of extra half a days wages. The error of law apparent on the face of the award was that if Roster off system was necessary for the Supervisory staff and the porterage labour, then the Roster category of the workmen was a class by itself and equating such workmen with other categories of the workmen who were very seldom required to work on Sundays was obviously a wrong application of the principles of discrimination. In substance and in effect the award went beyond the scope of reference although in form in which the final order was made it did not do so. The Tribunal exceeded its jurisdiction in saying that categories xvi and xvii of the workmen could be always made to work on Sundays but they should be given additional half days wages besides a day off for working on Sundays. This is an entirely different kind of relief which the Tribunal purported to grant. It was not within the terms of the reference. On the findings of the Tribunal the point of reference ought to have been answered by saying merely that the demand for changing the Roster off system in respect of the two categories of the workmen was justified or not justified. We would, however, like to observe that it may b e open to the workmen to raise an industrial dispute demanding half days extra wages on account of their being asked to work on Sundays on the basis of the Roster off system. Even though the system may not be unjustified, yet it may be possible for the workmen to press and justify their demand of extra half days wages. Giving them one days full wages when, per chance, they are asked to work on their off day may not be a compensation fit to be equated with the said demand. This is not a matter on which we are called upon to express any opinion as to whether such a demand would be justified or not or whether it should be acceeded to. But what we want to emphasize here is that the relief granted by the Tribunal was beyond the scope of the reference.
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PAWAN KUMAR ARYA AND OTHERS Vs. RAVI KUMAR ARYA AND OTHERS | entered into between the parties. Therefore, as such, considering the fact that the parties entered into the consent terms/settlement for a complete parting of ways between the parties and so aimed at bringing about an eventual complete quietus to the disputes between the parties and even parties entered into the consent terms/settlement to resolve and settle the disputes in relation to the subject matter of AISCO, IMTC, Kash Foods, Orbit Arya Commercial Premises and the disputes in relation to the larger Arya Group of Companies and its constituents, which were beyond the dispute in the civil suit, the entire consent terms/consent decree is required to be acted upon and/or implemented by both the parties. There cannot be any execution of partial consent terms/consent decree. If the submission on behalf of the plaintiffs is accepted and the 8 flats as per list at Annexure A are transferred absolutely and without any condition in favour of PA Group without there being any further supplemental consent terms/family arrangement, in that case, the entire object and purpose of entering into the consent terms/settlement to resolve all the disputes between the parties will be frustrated. Both the parties to the consent terms/consent decree are required to fully comply with the terms of settlement/the consent terms and the consent decree. One party cannot be permitted to say that that portion of the settlement which is in their favour be executed and/or complied with and not the other terms of the settlement/consent terms/consent decree. Under the circumstances, as such, both, the learned Single Judge as well as the Division Bench are justified in holding that the execution of the further supplemental consent terms/family arrangement is must and there cannot be any partial execution of the consent terms/consent decree. 7. Even in the case of Hari Shankar Singhania (supra), the decision which has been relied upon by the learned senior counsel appearing on behalf of the appellants, this Court has observed that a family settlement is treated differently from any other formal commercial settlement as such settlement in the eye of the law ensures peace and goodwill among the family members. It is further observed that technicalities should not be put at risk of the implementation of a settlement drawn by a family, which is essential for maintaining peace and harmony in a family. It is further observed that it is the duty of the court that such an arrangement and the terms thereof should be given effect to in letter and spirit. 7.1 In the case of Manish Mohan Sharma (supra), this Court has observed and held that effort of the executing court must be to see that the parties are given the fruits of the decree. It is further observed that mandate is reinforced when it is a consent decree and doubly reinforced when the consent decree is a family settlement. 8. Now so far as the relied placed upon the decision of this Court in the case of Saradamani Kandappan (supra), relied upon by the learned Senior Advocate appearing on behalf of the appellants – plaintiffs, more particularly reliance placed upon paragraph 54 of the said judgment in support of his submission that in the consent terms/consent decree, it is expressly stated or provided the order of performance, namely, that the further supplementary settlement is to be executed and only after such execution the 8 flats as per list at Annexure A to the consent terms shall be allotted in favour of PA Group is concerned, on considering conjoint reading of the terms of the settlement, the said decision shall not be applicable to the facts of the case on hand. 8.1 Even on conjoint reading of all the terms of the settlement, more particularly the clauses referred to hereinabove, it can be said that there is an implied term that both the parties have intended that on one hand as agreed between the parties further supplemental consent terms/family arrangement is to be entered into and on the other hand there shall be transfer/allotment of 8 flats as per list at Annexure A in favour of PA Group. Any other interpretation would lead to unworking of the consent terms/consent decree. As observed hereinabove, if the consent decree is partially executed and the other parts of the consent terms are not implemented and/or acted upon, the object and purpose to resolve all the disputes amicably between the parties and to put an end to all the disputes between the parties will be frustrated. 9. However, at the same time, one cannot lose sight of the fact that the 8 flats as per list at Annexure A are allotted in favour of PA Group and rest of the 7 flats as per list at Annexure B are allotted in favour of RA Group. At present, the RA Group is in possession of all the 15 flats. The RA Group is also the beneficiary of Rs.45 crores. Therefore, to strike the balance between the parties, the RA Group can be directed to counter-sign Annexure E letter issued by Omkar Builders with respect to 8 flats as per list at Annexure A which are allotted in favour of PA Group. However, with a caveat that till the further supplemental consent terms/family arrangement as agreed between the parties under the consent terms/consent decree is not executed, PA Group may not be permitted to sell, transfer and/or deal with the said flats till the consent terms/consent decree is fully acted upon and implemented between the parties. At the same time, both the parties are required to be directed to fully implement the consent terms/consent decree and to enter into further supplemental consent terms/family arrangement, the modalities of which are mentioned in the consent terms itself, at the earliest and within a reasonable time. Until then, both the parties to abide as per the Restraint order as per clause 22 of the consent terms, except the 7 flats as per list at Annexure B, which are allotted in favour of RA Group. | 1[ds]From the aforesaid terms of settlement, it can be seen that it was an overall settlement of all the disputes between the parties in relation to the subject matter of AISCO, IMTC, Kash Foods, Orbit Arya Commercial Premises and the disputes in relation to the larger Arya Group of Companies and its constituents. As observed hereinabove and so stated in clause 2 of the terms of settlement, the consent terms is an identified and mutually agreed framework for a complete parting of ways between the Parties and is aimed at bringing about an eventual complete quietus to the Disputes Considering the aforesaid terms of the settlement which subsequently became part of the consent decree, further entering into the family arrangement/supplemental consent terms was required to be entered into between the parties and the modalities to be worked out with respect to the valuation, bidding etc. are also mentioned in the consent terms. At the same time, under the consent terms/consent decree and as agreed between the parties, 8 flats as mentioned in the list at Annexure A to the consent terms are agreed to be allotted under the re-developed building to the PA Group and the flats mentioned in the list at Annexure B to the consent terms are agreed to be allotted to RA Group. For the 8 flats allotted to PA Group, Omkar Builders – original defendant no.10 was required to issue a separate letter in relation to the PA Groups entitlement to the PA Kash Foods Property in Omkar 1973 project as per draft at Annexure E to the consent terms. Allotment of the 8 flats as per list at Annexure A to the consent terms in favour of PA Group is not disputed and cannot be disputed. Even in paragraph 3 of the consent decree, the submissions of the learned counsel appearing on behalf of the respective parties have been recorded and as per the submissions made by the learned counsel appearing on behalf of both the parties – PA Group & RA Group, the division in Annexure A and Annexure B is final, viz-a-viz defendant no.10 – Omkar BuildersIt appears that as such original defendant no.10 – Omkar Builders had already issued the letter in the proforma as per Annexure E to the consent terms in favour of PA Group with respect to 8 flats allotted to PA Group. Therefore, it appears that so far as original defendant no. 10 is concerned, original defendant no.10 has already complied with its obligation under the consent decree. However, RA Group is not counter-signing the said Annexure E and therefore there is not complete transfer of 8 flats in favour of PA Group which as such are allotted to them. Therefore, making a grievance by not counter-signing the letter of allotment as per Annexure E, the original defendant nos. 1 to 6 – RA Group have refused to abide by the consent terms/consent decree. It is the case on behalf of original defendant nos. 1 to 6 – RA Group that unless and until there is a total compliance of the consent terms/consent decree including entering into or execution of the supplemental consent terms/family arrangement as agreed between the parties as per the consent terms/consent decree the defendant nos. 1 to 6 – RA Group are justified in not counter-signing the letter of allotment as per Annexure E. On the other hand, it is the case on behalf of the appellants – plaintiffs that further execution of supplemental consent terms/family arrangement has nothing to do with the allotment of 8 flats in favour of PA Group6. Having heard the learned Senior Advocates for the respective parties and considering the relevant terms of the settlement, reproduced hereinabove, we are of the opinion that further execution of supplemental consent terms/family arrangement is required to be executed between the parties. For whatever reasons, the further supplemental consent terms have not been entered into between the parties. Therefore, as such, considering the fact that the parties entered into the consent terms/settlement for a complete parting of ways between the parties and so aimed at bringing about an eventual complete quietus to the disputes between the parties and even parties entered into the consent terms/settlement to resolve and settle the disputes in relation to the subject matter of AISCO, IMTC, Kash Foods, Orbit Arya Commercial Premises and the disputes in relation to the larger Arya Group of Companies and its constituents, which were beyond the dispute in the civil suit, the entire consent terms/consent decree is required to be acted upon and/or implemented by both the parties. There cannot be any execution of partial consent terms/consent decree. If the submission on behalf of the plaintiffs is accepted and the 8 flats as per list at Annexure A are transferred absolutely and without any condition in favour of PA Group without there being any further supplemental consent terms/family arrangement, in that case, the entire object and purpose of entering into the consent terms/settlement to resolve all the disputes between the parties will be frustrated. Both the parties to the consent terms/consent decree are required to fully comply with the terms of settlement/the consent terms and the consent decree. One party cannot be permitted to say that that portion of the settlement which is in their favour be executed and/or complied with and not the other terms of the settlement/consent terms/consent decree. Under the circumstances, as such, both, the learned Single Judge as well as the Division Bench are justified in holding that the execution of the further supplemental consent terms/family arrangement is must and there cannot be any partial execution of the consent terms/consent decree8.1 Even on conjoint reading of all the terms of the settlement, more particularly the clauses referred to hereinabove, it can be said that there is an implied term that both the parties have intended that on one hand as agreed between the parties further supplemental consent terms/family arrangement is to be entered into and on the other hand there shall be transfer/allotment of 8 flats as per list at Annexure A in favour of PA Group. Any other interpretation would lead to unworking of the consent terms/consent decree. As observed hereinabove, if the consent decree is partially executed and the other parts of the consent terms are not implemented and/or acted upon, the object and purpose to resolve all the disputes amicably between the parties and to put an end to all the disputes between the parties will be frustrated9. However, at the same time, one cannot lose sight of the fact that the 8 flats as per list at Annexure A are allotted in favour of PA Group and rest of the 7 flats as per list at Annexure B are allotted in favour of RA Group. At present, the RA Group is in possession of all the 15 flats. The RA Group is also the beneficiary of Rs.45 crores. Therefore, to strike the balance between the parties, the RA Group can be directed to counter-sign Annexure E letter issued by Omkar Builders with respect to 8 flats as per list at Annexure A which are allotted in favour of PA Group. However, with a caveat that till the further supplemental consent terms/family arrangement as agreed between the parties under the consent terms/consent decree is not executed, PA Group may not be permitted to sell, transfer and/or deal with the said flats till the consent terms/consent decree is fully acted upon and implemented between the parties. At the same time, both the parties are required to be directed to fully implement the consent terms/consent decree and to enter into further supplemental consent terms/family arrangement, the modalities of which are mentioned in the consent terms itself, at the earliest and within a reasonable time. Until then, both the parties to abide as per the Restraint order as per clause 22 of the consent terms, except the 7 flats as per list at Annexure B, which are allotted in favour of RA Group. | 1 | 7,657 | 1,426 | ### 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:
entered into between the parties. Therefore, as such, considering the fact that the parties entered into the consent terms/settlement for a complete parting of ways between the parties and so aimed at bringing about an eventual complete quietus to the disputes between the parties and even parties entered into the consent terms/settlement to resolve and settle the disputes in relation to the subject matter of AISCO, IMTC, Kash Foods, Orbit Arya Commercial Premises and the disputes in relation to the larger Arya Group of Companies and its constituents, which were beyond the dispute in the civil suit, the entire consent terms/consent decree is required to be acted upon and/or implemented by both the parties. There cannot be any execution of partial consent terms/consent decree. If the submission on behalf of the plaintiffs is accepted and the 8 flats as per list at Annexure A are transferred absolutely and without any condition in favour of PA Group without there being any further supplemental consent terms/family arrangement, in that case, the entire object and purpose of entering into the consent terms/settlement to resolve all the disputes between the parties will be frustrated. Both the parties to the consent terms/consent decree are required to fully comply with the terms of settlement/the consent terms and the consent decree. One party cannot be permitted to say that that portion of the settlement which is in their favour be executed and/or complied with and not the other terms of the settlement/consent terms/consent decree. Under the circumstances, as such, both, the learned Single Judge as well as the Division Bench are justified in holding that the execution of the further supplemental consent terms/family arrangement is must and there cannot be any partial execution of the consent terms/consent decree. 7. Even in the case of Hari Shankar Singhania (supra), the decision which has been relied upon by the learned senior counsel appearing on behalf of the appellants, this Court has observed that a family settlement is treated differently from any other formal commercial settlement as such settlement in the eye of the law ensures peace and goodwill among the family members. It is further observed that technicalities should not be put at risk of the implementation of a settlement drawn by a family, which is essential for maintaining peace and harmony in a family. It is further observed that it is the duty of the court that such an arrangement and the terms thereof should be given effect to in letter and spirit. 7.1 In the case of Manish Mohan Sharma (supra), this Court has observed and held that effort of the executing court must be to see that the parties are given the fruits of the decree. It is further observed that mandate is reinforced when it is a consent decree and doubly reinforced when the consent decree is a family settlement. 8. Now so far as the relied placed upon the decision of this Court in the case of Saradamani Kandappan (supra), relied upon by the learned Senior Advocate appearing on behalf of the appellants – plaintiffs, more particularly reliance placed upon paragraph 54 of the said judgment in support of his submission that in the consent terms/consent decree, it is expressly stated or provided the order of performance, namely, that the further supplementary settlement is to be executed and only after such execution the 8 flats as per list at Annexure A to the consent terms shall be allotted in favour of PA Group is concerned, on considering conjoint reading of the terms of the settlement, the said decision shall not be applicable to the facts of the case on hand. 8.1 Even on conjoint reading of all the terms of the settlement, more particularly the clauses referred to hereinabove, it can be said that there is an implied term that both the parties have intended that on one hand as agreed between the parties further supplemental consent terms/family arrangement is to be entered into and on the other hand there shall be transfer/allotment of 8 flats as per list at Annexure A in favour of PA Group. Any other interpretation would lead to unworking of the consent terms/consent decree. As observed hereinabove, if the consent decree is partially executed and the other parts of the consent terms are not implemented and/or acted upon, the object and purpose to resolve all the disputes amicably between the parties and to put an end to all the disputes between the parties will be frustrated. 9. However, at the same time, one cannot lose sight of the fact that the 8 flats as per list at Annexure A are allotted in favour of PA Group and rest of the 7 flats as per list at Annexure B are allotted in favour of RA Group. At present, the RA Group is in possession of all the 15 flats. The RA Group is also the beneficiary of Rs.45 crores. Therefore, to strike the balance between the parties, the RA Group can be directed to counter-sign Annexure E letter issued by Omkar Builders with respect to 8 flats as per list at Annexure A which are allotted in favour of PA Group. However, with a caveat that till the further supplemental consent terms/family arrangement as agreed between the parties under the consent terms/consent decree is not executed, PA Group may not be permitted to sell, transfer and/or deal with the said flats till the consent terms/consent decree is fully acted upon and implemented between the parties. At the same time, both the parties are required to be directed to fully implement the consent terms/consent decree and to enter into further supplemental consent terms/family arrangement, the modalities of which are mentioned in the consent terms itself, at the earliest and within a reasonable time. Until then, both the parties to abide as per the Restraint order as per clause 22 of the consent terms, except the 7 flats as per list at Annexure B, which are allotted in favour of RA Group.
### Response:
1
### Explanation:
PA Group & RA Group, the division in Annexure A and Annexure B is final, viz-a-viz defendant no.10 – Omkar BuildersIt appears that as such original defendant no.10 – Omkar Builders had already issued the letter in the proforma as per Annexure E to the consent terms in favour of PA Group with respect to 8 flats allotted to PA Group. Therefore, it appears that so far as original defendant no. 10 is concerned, original defendant no.10 has already complied with its obligation under the consent decree. However, RA Group is not counter-signing the said Annexure E and therefore there is not complete transfer of 8 flats in favour of PA Group which as such are allotted to them. Therefore, making a grievance by not counter-signing the letter of allotment as per Annexure E, the original defendant nos. 1 to 6 – RA Group have refused to abide by the consent terms/consent decree. It is the case on behalf of original defendant nos. 1 to 6 – RA Group that unless and until there is a total compliance of the consent terms/consent decree including entering into or execution of the supplemental consent terms/family arrangement as agreed between the parties as per the consent terms/consent decree the defendant nos. 1 to 6 – RA Group are justified in not counter-signing the letter of allotment as per Annexure E. On the other hand, it is the case on behalf of the appellants – plaintiffs that further execution of supplemental consent terms/family arrangement has nothing to do with the allotment of 8 flats in favour of PA Group6. Having heard the learned Senior Advocates for the respective parties and considering the relevant terms of the settlement, reproduced hereinabove, we are of the opinion that further execution of supplemental consent terms/family arrangement is required to be executed between the parties. For whatever reasons, the further supplemental consent terms have not been entered into between the parties. Therefore, as such, considering the fact that the parties entered into the consent terms/settlement for a complete parting of ways between the parties and so aimed at bringing about an eventual complete quietus to the disputes between the parties and even parties entered into the consent terms/settlement to resolve and settle the disputes in relation to the subject matter of AISCO, IMTC, Kash Foods, Orbit Arya Commercial Premises and the disputes in relation to the larger Arya Group of Companies and its constituents, which were beyond the dispute in the civil suit, the entire consent terms/consent decree is required to be acted upon and/or implemented by both the parties. There cannot be any execution of partial consent terms/consent decree. If the submission on behalf of the plaintiffs is accepted and the 8 flats as per list at Annexure A are transferred absolutely and without any condition in favour of PA Group without there being any further supplemental consent terms/family arrangement, in that case, the entire object and purpose of entering into the consent terms/settlement to resolve all the disputes between the parties will be frustrated. Both the parties to the consent terms/consent decree are required to fully comply with the terms of settlement/the consent terms and the consent decree. One party cannot be permitted to say that that portion of the settlement which is in their favour be executed and/or complied with and not the other terms of the settlement/consent terms/consent decree. Under the circumstances, as such, both, the learned Single Judge as well as the Division Bench are justified in holding that the execution of the further supplemental consent terms/family arrangement is must and there cannot be any partial execution of the consent terms/consent decree8.1 Even on conjoint reading of all the terms of the settlement, more particularly the clauses referred to hereinabove, it can be said that there is an implied term that both the parties have intended that on one hand as agreed between the parties further supplemental consent terms/family arrangement is to be entered into and on the other hand there shall be transfer/allotment of 8 flats as per list at Annexure A in favour of PA Group. Any other interpretation would lead to unworking of the consent terms/consent decree. As observed hereinabove, if the consent decree is partially executed and the other parts of the consent terms are not implemented and/or acted upon, the object and purpose to resolve all the disputes amicably between the parties and to put an end to all the disputes between the parties will be frustrated9. However, at the same time, one cannot lose sight of the fact that the 8 flats as per list at Annexure A are allotted in favour of PA Group and rest of the 7 flats as per list at Annexure B are allotted in favour of RA Group. At present, the RA Group is in possession of all the 15 flats. The RA Group is also the beneficiary of Rs.45 crores. Therefore, to strike the balance between the parties, the RA Group can be directed to counter-sign Annexure E letter issued by Omkar Builders with respect to 8 flats as per list at Annexure A which are allotted in favour of PA Group. However, with a caveat that till the further supplemental consent terms/family arrangement as agreed between the parties under the consent terms/consent decree is not executed, PA Group may not be permitted to sell, transfer and/or deal with the said flats till the consent terms/consent decree is fully acted upon and implemented between the parties. At the same time, both the parties are required to be directed to fully implement the consent terms/consent decree and to enter into further supplemental consent terms/family arrangement, the modalities of which are mentioned in the consent terms itself, at the earliest and within a reasonable time. Until then, both the parties to abide as per the Restraint order as per clause 22 of the consent terms, except the 7 flats as per list at Annexure B, which are allotted in favour of RA Group.
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