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Bhaichand Ratanshi Vs. Laxmishanker Tribhoyan
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a further fetter on the power of the courts to pass a decree for eviction once it held in favour of the plaintiff on the issue of reasonable and bona fide requirement under s. 13(1) (g) of the Act. The words "No decree for eviction shall be passed" make it incumbent on the court not to pass a decree on the ground specified under s. 13(1) (g) of the Act unless it is satisfied as to the comparative ha rdship caused to the landlord and the tenant by passing a decree than by refusing it. In dealing with the question, the court is only concerned with the hardship of the landlord and the tenant and not to a complete stranger. Under s. 13(2) of the Ac t, if there is greater hardship to the tenant, the court should refrain from making an order for eviction under s. 13(1) (g) of the Act. On the other hand, if the making of an order of eviction under s. 13(1) (g) of the Act would cause no such h ardship, the court has no jurisdiction but to pass such an order.4. The Legislature by enacting s. 13(2) of the Act seeks to strike a just balance between the landlord and the tenant so that the order of eviction under s. 13(1) (g) of the Act does no t cause any hardship to either side. The considerations that weigh in striking a just balance between the landlord and the tenant were indicated in a series of decisions of the Court of Appeal, interpreting an analogous provision of the Rent and Mortgage Interest Restrictions (Amendment) Act, 1933 (c. 32), s. 3(1), Sched. I, para (h): Sims v. Wilson, Fowle v. Bell, Smith v. Penny, Chandler v. Strevett and Kelly v. Goodwin. One of the most important factors in considering the question of greater hardship is whether other reasonable accommodation is available to the landlord or the tenant. The court would have to put in the scale other circumstances which would tilt the balance of hardship on either side, including f inancial means available to them for securing alternative accommodation either by purchase or by hiring one, the nature and extent of the business or other requirement of residential accommodation, as the case may be. It must, however, be observed that the existence of alternative accommodation on both sides is an important but not a decisive factors. On the issue of greater hardship the English courts have uniformly laid down that the burden of proof is on the tenant. We are inc lined to the view that on the terms of s. 13(2) of the Act, the decision cannot turn on mere burden of proof, but both the parties must lead evidence. The question whether or not there would be greater hardship caused to the tenant by passing the decree must necessarily depend on facts and circumstances of each case.5. Under s. 29(2) of the Act as substituted by Gujarat Act 18 of 1965, although the High Court has a wider jurisdiction than the one exercisable under s. 115 of the Code of Civil Procedure, 1908, its revisional jurisdiction could only be exercised for a limited purpose with a view to satisfying itself that the decision was according to law. It cannot be said that the courts below failed to apply their mind to the requirement s of s. 13(2) of the Act as to comparative hardship or their finding was manifestly perverse or erroneous. That being so, the High Court could not substitute its own finding for the one reached by the courts below on a reappraisal of the evidence.6. It is indeed difficult to appreciate the line of reasoning adopted by the High-Court in non-suiting the plaintiff. On the admitted facts, the plaintiff is a displaced person from Africa and was carrying on busin ess in Kampala in Uganda. Due to political upheaval in that country, in 1964 he, along with his family, migrated to India and began living in a rented house in Rajkot. He proved that he reasonably and bona fide required the suit premises under s . 13(1) (g) of the Act. Admittedly, he has the requisite experience and wherewithal to carry on business, as it is on record that he has been carrying on business in Kampala for over 30 years. The mere fact that the plaintiff had gone back to Uganda f or winding up his business there, is not a circumstance against him. On the contrary, it was indicative of his intention to start his business from the suit premises. As against this, the defendant was not in actual possession of the suit premises but had placed one Labhshanker in occupation thereof who had a separate shop of his own and using the suit premises as a godown. Merely because the defendant who was aged and infirm and Labhshanker as his licensee and under an arrangement was paying a fixed amount to the defendant by way of maintenance did not imply that the passing of a decree under s. 13(1) (g) of the Act would cause greater hardship to the defendant than to the plaintiff. Further, the High Cour t failed to appreciate that perhaps old age and infirmity night have been relevant considerations in judging the issue of greater hardship under s. 13(2) of the Act if the defendant were himself to carry on business from the suit premises an d not where, as here, he had admittedly parted with possession in favour of a stranger. It was clearly in error in spelling out a new case for the defendant of the so-called arrangement between himself and a stranger, Labhshanker, for which there is no foundation in the pleadings and which could not in law be pleaded in answer to the plaintiffs claim under s. 13(1)(g) of the Act. That apart, during the pendency of the appeal, the defendant Laxmishanker Tribhoyan having died, the question of greater hardship under s. 13(2) of the Act does not arise.7.
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1[ds]It is plain upon the language of s. 13(2) of the Act that it creates a further fetter on the power of the courts to pass a decree for eviction once it held in favour of the plaintiff on the issue of reasonable and bona fide requirement under s. 13(1) (g) of the Act. The words "No decree for eviction shall be passed" make it incumbent on the court not to pass a decree on the ground specified under s. 13(1) (g) of the Act unless it is satisfied as to the comparative ha rdship caused to the landlord and the tenant by passing a decree than by refusing it. In dealing with the question, the court is only concerned with the hardship of the landlord and the tenant and not to a complete stranger. Under s. 13(2) of the Ac t, if there is greater hardship to the tenant, the court should refrain from making an order for eviction under s. 13(1) (g) of the Act. On the other hand, if the making of an order of eviction under s. 13(1) (g) of the Act would cause no such h ardship, the court has no jurisdiction but to pass such anthe issue of greater hardship the English courts have uniformly laid down that the burden of proof is on the tenant. We are inc lined to the view that on the terms of s. 13(2) of the Act, the decision cannot turn on mere burden of proof, but both the parties must lead evidence. The question whether or not there would be greater hardship caused to the tenant by passing the decree must necessarily depend on facts and circumstances of each case.Under s. 29(2) of the Act as substituted by Gujarat Act 18 of 1965, although the High Court has a wider jurisdiction than the one exercisable under s. 115 of theCode of Civil Procedure, 1908, its revisional jurisdiction could only be exercised for a limited purpose with a view to satisfying itself that the decision was according to law. It cannot be said that the courts below failed to apply their mind to the requirement s of s. 13(2) of the Act as to comparative hardship or their finding was manifestly perverse or erroneous. That being so, the High Court could not substitute its own finding for the one reached by the courts below on a reappraisal of theis indeed difficult to appreciate the line of reasoning adopted by the High-Court in non-suiting the plaintiff. On the admitted facts, the plaintiff is a displaced person from Africa and was carrying on busin ess in Kampala in Uganda. Due to political upheaval in that country, in 1964 he, along with his family, migrated to India and began living in a rented house in Rajkot. He proved that he reasonably and bona fide required the suit premises under s . 13(1) (g) of the Act. Admittedly, he has the requisite experience and wherewithal to carry on business, as it is on record that he has been carrying on business in Kampala for over 30 years. The mere fact that the plaintiff had gone back to Uganda f or winding up his business there, is not a circumstance against him. On the contrary, it was indicative of his intention to start his business from the suit premises. As against this, the defendant was not in actual possession of the suit premises but had placed one Labhshanker in occupation thereof who had a separate shop of his own and using the suit premises as a godown. Merely because the defendant who was aged and infirm and Labhshanker as his licensee and under an arrangement was paying a fixed amount to the defendant by way of maintenance did not imply that the passing of a decree under s. 13(1) (g) of the Act would cause greater hardship to the defendant than to the plaintiff. Further, the High Cour t failed to appreciate that perhaps old age and infirmity night have been relevant considerations in judging the issue of greater hardship under s. 13(2) of the Act if the defendant were himself to carry on business from the suit premises an d not where, as here, he had admittedly parted with possession in favour of a stranger. It was clearly in error in spelling out a new case for the defendant of the so-called arrangement between himself and a stranger, Labhshanker, for which there is no foundation in the pleadings and which could not in law be pleaded in answer to the plaintiffs claim under s. 13(1)(g) of the Act. That apart, during the pendency of the appeal, the defendant Laxmishanker Tribhoyan having died, the question of greater hardship under s. 13(2) of the Act does not arise.e the Court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the Court shall pass the decree in respect of such p art only.
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### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
a further fetter on the power of the courts to pass a decree for eviction once it held in favour of the plaintiff on the issue of reasonable and bona fide requirement under s. 13(1) (g) of the Act. The words "No decree for eviction shall be passed" make it incumbent on the court not to pass a decree on the ground specified under s. 13(1) (g) of the Act unless it is satisfied as to the comparative ha rdship caused to the landlord and the tenant by passing a decree than by refusing it. In dealing with the question, the court is only concerned with the hardship of the landlord and the tenant and not to a complete stranger. Under s. 13(2) of the Ac t, if there is greater hardship to the tenant, the court should refrain from making an order for eviction under s. 13(1) (g) of the Act. On the other hand, if the making of an order of eviction under s. 13(1) (g) of the Act would cause no such h ardship, the court has no jurisdiction but to pass such an order.4. The Legislature by enacting s. 13(2) of the Act seeks to strike a just balance between the landlord and the tenant so that the order of eviction under s. 13(1) (g) of the Act does no t cause any hardship to either side. The considerations that weigh in striking a just balance between the landlord and the tenant were indicated in a series of decisions of the Court of Appeal, interpreting an analogous provision of the Rent and Mortgage Interest Restrictions (Amendment) Act, 1933 (c. 32), s. 3(1), Sched. I, para (h): Sims v. Wilson, Fowle v. Bell, Smith v. Penny, Chandler v. Strevett and Kelly v. Goodwin. One of the most important factors in considering the question of greater hardship is whether other reasonable accommodation is available to the landlord or the tenant. The court would have to put in the scale other circumstances which would tilt the balance of hardship on either side, including f inancial means available to them for securing alternative accommodation either by purchase or by hiring one, the nature and extent of the business or other requirement of residential accommodation, as the case may be. It must, however, be observed that the existence of alternative accommodation on both sides is an important but not a decisive factors. On the issue of greater hardship the English courts have uniformly laid down that the burden of proof is on the tenant. We are inc lined to the view that on the terms of s. 13(2) of the Act, the decision cannot turn on mere burden of proof, but both the parties must lead evidence. The question whether or not there would be greater hardship caused to the tenant by passing the decree must necessarily depend on facts and circumstances of each case.5. Under s. 29(2) of the Act as substituted by Gujarat Act 18 of 1965, although the High Court has a wider jurisdiction than the one exercisable under s. 115 of the Code of Civil Procedure, 1908, its revisional jurisdiction could only be exercised for a limited purpose with a view to satisfying itself that the decision was according to law. It cannot be said that the courts below failed to apply their mind to the requirement s of s. 13(2) of the Act as to comparative hardship or their finding was manifestly perverse or erroneous. That being so, the High Court could not substitute its own finding for the one reached by the courts below on a reappraisal of the evidence.6. It is indeed difficult to appreciate the line of reasoning adopted by the High-Court in non-suiting the plaintiff. On the admitted facts, the plaintiff is a displaced person from Africa and was carrying on busin ess in Kampala in Uganda. Due to political upheaval in that country, in 1964 he, along with his family, migrated to India and began living in a rented house in Rajkot. He proved that he reasonably and bona fide required the suit premises under s . 13(1) (g) of the Act. Admittedly, he has the requisite experience and wherewithal to carry on business, as it is on record that he has been carrying on business in Kampala for over 30 years. The mere fact that the plaintiff had gone back to Uganda f or winding up his business there, is not a circumstance against him. On the contrary, it was indicative of his intention to start his business from the suit premises. As against this, the defendant was not in actual possession of the suit premises but had placed one Labhshanker in occupation thereof who had a separate shop of his own and using the suit premises as a godown. Merely because the defendant who was aged and infirm and Labhshanker as his licensee and under an arrangement was paying a fixed amount to the defendant by way of maintenance did not imply that the passing of a decree under s. 13(1) (g) of the Act would cause greater hardship to the defendant than to the plaintiff. Further, the High Cour t failed to appreciate that perhaps old age and infirmity night have been relevant considerations in judging the issue of greater hardship under s. 13(2) of the Act if the defendant were himself to carry on business from the suit premises an d not where, as here, he had admittedly parted with possession in favour of a stranger. It was clearly in error in spelling out a new case for the defendant of the so-called arrangement between himself and a stranger, Labhshanker, for which there is no foundation in the pleadings and which could not in law be pleaded in answer to the plaintiffs claim under s. 13(1)(g) of the Act. That apart, during the pendency of the appeal, the defendant Laxmishanker Tribhoyan having died, the question of greater hardship under s. 13(2) of the Act does not arise.7.
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### Explanation:
It is plain upon the language of s. 13(2) of the Act that it creates a further fetter on the power of the courts to pass a decree for eviction once it held in favour of the plaintiff on the issue of reasonable and bona fide requirement under s. 13(1) (g) of the Act. The words "No decree for eviction shall be passed" make it incumbent on the court not to pass a decree on the ground specified under s. 13(1) (g) of the Act unless it is satisfied as to the comparative ha rdship caused to the landlord and the tenant by passing a decree than by refusing it. In dealing with the question, the court is only concerned with the hardship of the landlord and the tenant and not to a complete stranger. Under s. 13(2) of the Ac t, if there is greater hardship to the tenant, the court should refrain from making an order for eviction under s. 13(1) (g) of the Act. On the other hand, if the making of an order of eviction under s. 13(1) (g) of the Act would cause no such h ardship, the court has no jurisdiction but to pass such anthe issue of greater hardship the English courts have uniformly laid down that the burden of proof is on the tenant. We are inc lined to the view that on the terms of s. 13(2) of the Act, the decision cannot turn on mere burden of proof, but both the parties must lead evidence. The question whether or not there would be greater hardship caused to the tenant by passing the decree must necessarily depend on facts and circumstances of each case.Under s. 29(2) of the Act as substituted by Gujarat Act 18 of 1965, although the High Court has a wider jurisdiction than the one exercisable under s. 115 of theCode of Civil Procedure, 1908, its revisional jurisdiction could only be exercised for a limited purpose with a view to satisfying itself that the decision was according to law. It cannot be said that the courts below failed to apply their mind to the requirement s of s. 13(2) of the Act as to comparative hardship or their finding was manifestly perverse or erroneous. That being so, the High Court could not substitute its own finding for the one reached by the courts below on a reappraisal of theis indeed difficult to appreciate the line of reasoning adopted by the High-Court in non-suiting the plaintiff. On the admitted facts, the plaintiff is a displaced person from Africa and was carrying on busin ess in Kampala in Uganda. Due to political upheaval in that country, in 1964 he, along with his family, migrated to India and began living in a rented house in Rajkot. He proved that he reasonably and bona fide required the suit premises under s . 13(1) (g) of the Act. Admittedly, he has the requisite experience and wherewithal to carry on business, as it is on record that he has been carrying on business in Kampala for over 30 years. The mere fact that the plaintiff had gone back to Uganda f or winding up his business there, is not a circumstance against him. On the contrary, it was indicative of his intention to start his business from the suit premises. As against this, the defendant was not in actual possession of the suit premises but had placed one Labhshanker in occupation thereof who had a separate shop of his own and using the suit premises as a godown. Merely because the defendant who was aged and infirm and Labhshanker as his licensee and under an arrangement was paying a fixed amount to the defendant by way of maintenance did not imply that the passing of a decree under s. 13(1) (g) of the Act would cause greater hardship to the defendant than to the plaintiff. Further, the High Cour t failed to appreciate that perhaps old age and infirmity night have been relevant considerations in judging the issue of greater hardship under s. 13(2) of the Act if the defendant were himself to carry on business from the suit premises an d not where, as here, he had admittedly parted with possession in favour of a stranger. It was clearly in error in spelling out a new case for the defendant of the so-called arrangement between himself and a stranger, Labhshanker, for which there is no foundation in the pleadings and which could not in law be pleaded in answer to the plaintiffs claim under s. 13(1)(g) of the Act. That apart, during the pendency of the appeal, the defendant Laxmishanker Tribhoyan having died, the question of greater hardship under s. 13(2) of the Act does not arise.e the Court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the Court shall pass the decree in respect of such p art only.
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Vanguard Rolling Shuttersand Steel Works Ltd Vs. Commissioner Of Sales Tax, U.P
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fixing the shutters at the site was not an integral part of the contract but was only incidental to the supply of materials and, therefore, the contract was not a work contract. We are, however, unable to agree with this contention, because as discussed above, the materials were sent with various component parts which had to be taken at the site, fitted into one another and then finally fixed into a frame so that the fixture became permanent and a part of the premises. The operation to be done at the site as required by the instructions in the Standard Book could not be said to be merely incidental to the contract but was a fundamental part of the contract itself. In our opinion, therefore, the decision in Man Industrial Corporation Ltd. s case (AIR 1969 SC 1245 ) (supra) fully covers the facts of the present case. ( 5 ) IT was further argued by Mr. Dikshit learned counsel appearing for the State that it will appear from the terms of the contract that the price of the goods had to be paid in advance before delivery of the same to the customer which shows that the title to the shutters passed to the customer as soon as the shutters were packed and dispatched to the site and the price paid and therefore the contract in the instant case could not be a work contract. It is not possible to accept his contention, because the advance payment of the entire price was a term meant for the convenience of the parties as the contractor did not want to take any risk for delayed payment of goods, but the contract would be completed only after the shutters were finally assembled at the site and fixed according to the specifications which was essentially the responsibility of the contractor. In Richardson and Cruddas Ltd. v. State of Madras, (1965) 16 STC 827 (Mad) there was a similar recital in the contract for full price to be paid in advance and still the Madras High Court held that the contract was a work contract. The decision of the Madras High Court was approved by this Court in Man Industrial Corporation Ltd. s case (AIR 1969 SC 1245 ) and affirmed by this Court in State of Madras v. Richardson and Cruddas Ltd. , (1968) 21 STC 245 (SC ). For these reasons the contention put forward by Mr. Dikshit on this score is overruled. ( 6 ) IN a later case of this Court in State of Rajasthan v. Nanu Ram, (1970) 26 STC 268 (SC) tenders were invited by the Chief Engineer from the contractors for supplying and fixing of wooden door as windows, sashes together with frames and painting them in the police lines building and for supplying and fixing the wooden chowkhats and this was held to be a work contract. The decision in Man Industrial Corporation Ltd. s case (AIR 1969 SC 1245 ) (supra) was followed by this court in that case. Again in Commr. of Sales Tax, H. P, v. Purshottam Premji, (1970) 26 STC 38 (SC) this Court indicated the essential difference between a contract of work and services and a contract for sale of goods and observed as follows :"the primary difference between a contract for work or service and a contract for sale of goods, is that in the former there is in the person performing work of rendering service no property in the thing produced as a whole. . . . . . . . . In the case of a contract for sale, the thing produced as a whole has individual existence as the sale property of the party who produced it, at some time before delivery, and the property therein passes only under the contract relating thereto to the other party for price. " ( 7 ) THE High Court placed great reliance on the decision in M/s. T. V. Sundram Iyengar and Sons v. State of Madras, 35 STC 24 : (1975) 2 SCR 372 : (AIR 1974 SC 2309 ). In that case what had happened was that the contractor built bus bodies and fitted the same to the chassis provided by the customers and charged the price for building the body and fitting the same to the chassis. It was held by this Court that the contract was completed only when the complete bus with the body fitted to the chassis was delivered to the customer and, therefore, the supply of body being one single unit constituted a sale of goods. That case is clearly distinguishable from the facts and circumstances of the present case. In the first place, the supply of materials and completion of the contract was indisputably in respect of moveable property no immovable property was at all involved at any stage in the process of completion of the contract. The bus-body built by the contractor was moveable property manufactured by the contractor and had merely to be fitted to the chassis which also was moveable property. Secondly, the bodies constructed and fitted to the chassis were easily detachable. In the instant case, the shutters were fabricated and fixed to an immovable property so as to become a permanent fixture and they were also not detachable. The High Court failed to have noticed these important features which distinguish the aforesaid decision from the facts of the present case. ( 8 ) WE are of the considered opinion that the present case is clearly convered by the tow decisions of this Court referred to in Man Industrial Corporation Ltd. s case (AIR 1969 SC 1245 ) and Nanu Rams case (1970) 26 STC 268 (SC), (supra) and applying the same we hold that the contract in the present case was a work contract and the transaction was, therefore, not exigible to tax. The High Court was in error in holding that the assessee was liable to pay tax on the sale proceeds of the contract. (
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1[ds]It is, therefore, clear that in the facts and circumstances of the present case, the transaction is a composite consolidated contract which is one and indivisible comprising labour and services executed for a lump sum. It is also clear that the materials are not merely supplied to the owner so as to pass as chattel simpliciter, but are actually fixed to an immovable property and after the same are fixed and erected they become a permanent fixture so as to become an accretion to the immovable property. In these circumstances, the conclusion is inescapable that the present contract cannot be said to be a pure and simple sale of goods or materials as chattels but is a work contact. It is well settled that a work contract is a contract for construction of bridges, buildings etc. , and includes contracts which combine labour, skill and materials executed for a lump sum. The question as to under what circumstances a contract can be said to be a work contact is not free from difficulty and has to depend on the facts of each case. It is difficult to lay down any rule of universal application, but there are some well recongized tests which are laid down by decided cases of this Court which afford guidelines for determining as to whether a contract in question is a work contract or a contract for supply of goods. One of the important tests is to find out whether the contract is primarily a contract for supply of materials at a price agreed to between the parties for the materials so supplied and the work or service rendered is incidental to the execution of the contract. If so, the contract is one for sale of materials and the sale proceeds would be exigible to sales tax. On the other hand where the contract is primarily a contact for work and labour and materials are supplied in execution of such contract, there is no contract for sale of materials but it is a work contract. The circumstance that the materials have no separate identity as a commercial article and it is only by bestowing work and labour upon them, as for example, by affixing them to the building in case of window-leaves or wooden doors and windows that they acquire commercial identity, would be prima facie indicative of a work contract. So also where certain materials are not merely supplied but fixed to an immovable property so as to become a permanent fixture and an accretion to the said property, the contract prima facie would be a work contract. This is exactly what has happened in the present caseWe are, however, unable to agree with this contention, because as discussed above, the materials were sent with various component parts which had to be taken at the site, fitted into one another and then finally fixed into a frame so that the fixture became permanent and a part of the premises. The operation to be done at the site as required by the instructions in the Standard Book could not be said to be merely incidental to the contract but was a fundamental part of the contract itself. In our opinion, therefore, the decision in Man Industrial Corporation Ltd. s case (AIR 1969 SC 1245 ) (supra) fully covers the facts of the present caseIt is not possible to accept his contention, because the advance payment of the entire price was a term meant for the convenience of the parties as the contractor did not want to take any risk for delayed payment of goods, but the contract would be completed only after the shutters were finally assembled at the site and fixed according to the specifications which was essentially the responsibility of the contractorThat case is clearly distinguishable from the facts and circumstances of the present case. In the first place, the supply of materials and completion of the contract was indisputably in respect of moveable property no immovable property was at all involved at any stage in the process of completion of the contract. The bus-body built by the contractor was moveable property manufactured by the contractor and had merely to be fitted to the chassis which also was moveable property. Secondly, the bodies constructed and fitted to the chassis were easily detachable. In the instant case, the shutters were fabricated and fixed to an immovable property so as to become a permanent fixture and they were also not detachable. The High Court failed to have noticed these important features which distinguish the aforesaid decision from the facts of the present case( 8 ) WE are of the considered opinion that the present case is clearly convered by the tow decisions of this Court referred to in Man Industrial Corporation Ltd. s case (AIR 1969 SC 1245 ) and Nanu Rams case (1970) 26 STC 268 (SC), (supra) and applying the same we hold that the contract in the present case was a work contract and the transaction was, therefore, not exigible to tax. The High Court was in error in holding that the assessee was liable to pay tax on the sale proceeds of the
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### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
fixing the shutters at the site was not an integral part of the contract but was only incidental to the supply of materials and, therefore, the contract was not a work contract. We are, however, unable to agree with this contention, because as discussed above, the materials were sent with various component parts which had to be taken at the site, fitted into one another and then finally fixed into a frame so that the fixture became permanent and a part of the premises. The operation to be done at the site as required by the instructions in the Standard Book could not be said to be merely incidental to the contract but was a fundamental part of the contract itself. In our opinion, therefore, the decision in Man Industrial Corporation Ltd. s case (AIR 1969 SC 1245 ) (supra) fully covers the facts of the present case. ( 5 ) IT was further argued by Mr. Dikshit learned counsel appearing for the State that it will appear from the terms of the contract that the price of the goods had to be paid in advance before delivery of the same to the customer which shows that the title to the shutters passed to the customer as soon as the shutters were packed and dispatched to the site and the price paid and therefore the contract in the instant case could not be a work contract. It is not possible to accept his contention, because the advance payment of the entire price was a term meant for the convenience of the parties as the contractor did not want to take any risk for delayed payment of goods, but the contract would be completed only after the shutters were finally assembled at the site and fixed according to the specifications which was essentially the responsibility of the contractor. In Richardson and Cruddas Ltd. v. State of Madras, (1965) 16 STC 827 (Mad) there was a similar recital in the contract for full price to be paid in advance and still the Madras High Court held that the contract was a work contract. The decision of the Madras High Court was approved by this Court in Man Industrial Corporation Ltd. s case (AIR 1969 SC 1245 ) and affirmed by this Court in State of Madras v. Richardson and Cruddas Ltd. , (1968) 21 STC 245 (SC ). For these reasons the contention put forward by Mr. Dikshit on this score is overruled. ( 6 ) IN a later case of this Court in State of Rajasthan v. Nanu Ram, (1970) 26 STC 268 (SC) tenders were invited by the Chief Engineer from the contractors for supplying and fixing of wooden door as windows, sashes together with frames and painting them in the police lines building and for supplying and fixing the wooden chowkhats and this was held to be a work contract. The decision in Man Industrial Corporation Ltd. s case (AIR 1969 SC 1245 ) (supra) was followed by this court in that case. Again in Commr. of Sales Tax, H. P, v. Purshottam Premji, (1970) 26 STC 38 (SC) this Court indicated the essential difference between a contract of work and services and a contract for sale of goods and observed as follows :"the primary difference between a contract for work or service and a contract for sale of goods, is that in the former there is in the person performing work of rendering service no property in the thing produced as a whole. . . . . . . . . In the case of a contract for sale, the thing produced as a whole has individual existence as the sale property of the party who produced it, at some time before delivery, and the property therein passes only under the contract relating thereto to the other party for price. " ( 7 ) THE High Court placed great reliance on the decision in M/s. T. V. Sundram Iyengar and Sons v. State of Madras, 35 STC 24 : (1975) 2 SCR 372 : (AIR 1974 SC 2309 ). In that case what had happened was that the contractor built bus bodies and fitted the same to the chassis provided by the customers and charged the price for building the body and fitting the same to the chassis. It was held by this Court that the contract was completed only when the complete bus with the body fitted to the chassis was delivered to the customer and, therefore, the supply of body being one single unit constituted a sale of goods. That case is clearly distinguishable from the facts and circumstances of the present case. In the first place, the supply of materials and completion of the contract was indisputably in respect of moveable property no immovable property was at all involved at any stage in the process of completion of the contract. The bus-body built by the contractor was moveable property manufactured by the contractor and had merely to be fitted to the chassis which also was moveable property. Secondly, the bodies constructed and fitted to the chassis were easily detachable. In the instant case, the shutters were fabricated and fixed to an immovable property so as to become a permanent fixture and they were also not detachable. The High Court failed to have noticed these important features which distinguish the aforesaid decision from the facts of the present case. ( 8 ) WE are of the considered opinion that the present case is clearly convered by the tow decisions of this Court referred to in Man Industrial Corporation Ltd. s case (AIR 1969 SC 1245 ) and Nanu Rams case (1970) 26 STC 268 (SC), (supra) and applying the same we hold that the contract in the present case was a work contract and the transaction was, therefore, not exigible to tax. The High Court was in error in holding that the assessee was liable to pay tax on the sale proceeds of the contract. (
### Response:
1
### Explanation:
It is, therefore, clear that in the facts and circumstances of the present case, the transaction is a composite consolidated contract which is one and indivisible comprising labour and services executed for a lump sum. It is also clear that the materials are not merely supplied to the owner so as to pass as chattel simpliciter, but are actually fixed to an immovable property and after the same are fixed and erected they become a permanent fixture so as to become an accretion to the immovable property. In these circumstances, the conclusion is inescapable that the present contract cannot be said to be a pure and simple sale of goods or materials as chattels but is a work contact. It is well settled that a work contract is a contract for construction of bridges, buildings etc. , and includes contracts which combine labour, skill and materials executed for a lump sum. The question as to under what circumstances a contract can be said to be a work contact is not free from difficulty and has to depend on the facts of each case. It is difficult to lay down any rule of universal application, but there are some well recongized tests which are laid down by decided cases of this Court which afford guidelines for determining as to whether a contract in question is a work contract or a contract for supply of goods. One of the important tests is to find out whether the contract is primarily a contract for supply of materials at a price agreed to between the parties for the materials so supplied and the work or service rendered is incidental to the execution of the contract. If so, the contract is one for sale of materials and the sale proceeds would be exigible to sales tax. On the other hand where the contract is primarily a contact for work and labour and materials are supplied in execution of such contract, there is no contract for sale of materials but it is a work contract. The circumstance that the materials have no separate identity as a commercial article and it is only by bestowing work and labour upon them, as for example, by affixing them to the building in case of window-leaves or wooden doors and windows that they acquire commercial identity, would be prima facie indicative of a work contract. So also where certain materials are not merely supplied but fixed to an immovable property so as to become a permanent fixture and an accretion to the said property, the contract prima facie would be a work contract. This is exactly what has happened in the present caseWe are, however, unable to agree with this contention, because as discussed above, the materials were sent with various component parts which had to be taken at the site, fitted into one another and then finally fixed into a frame so that the fixture became permanent and a part of the premises. The operation to be done at the site as required by the instructions in the Standard Book could not be said to be merely incidental to the contract but was a fundamental part of the contract itself. In our opinion, therefore, the decision in Man Industrial Corporation Ltd. s case (AIR 1969 SC 1245 ) (supra) fully covers the facts of the present caseIt is not possible to accept his contention, because the advance payment of the entire price was a term meant for the convenience of the parties as the contractor did not want to take any risk for delayed payment of goods, but the contract would be completed only after the shutters were finally assembled at the site and fixed according to the specifications which was essentially the responsibility of the contractorThat case is clearly distinguishable from the facts and circumstances of the present case. In the first place, the supply of materials and completion of the contract was indisputably in respect of moveable property no immovable property was at all involved at any stage in the process of completion of the contract. The bus-body built by the contractor was moveable property manufactured by the contractor and had merely to be fitted to the chassis which also was moveable property. Secondly, the bodies constructed and fitted to the chassis were easily detachable. In the instant case, the shutters were fabricated and fixed to an immovable property so as to become a permanent fixture and they were also not detachable. The High Court failed to have noticed these important features which distinguish the aforesaid decision from the facts of the present case( 8 ) WE are of the considered opinion that the present case is clearly convered by the tow decisions of this Court referred to in Man Industrial Corporation Ltd. s case (AIR 1969 SC 1245 ) and Nanu Rams case (1970) 26 STC 268 (SC), (supra) and applying the same we hold that the contract in the present case was a work contract and the transaction was, therefore, not exigible to tax. The High Court was in error in holding that the assessee was liable to pay tax on the sale proceeds of the
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Girdhar Gopal Gupta Vs. Aar Gee Board Mills Pvt.Ltd.
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the respondents intimating about the issuance of shares. Since there was no satisfactory reply, petition under sections 397 and 398 of the Act was filed. 11. So far as the receipt of share application money is concerned the Balance Sheet only shows that it was under the head of `share application money and there was no allotment. 12. In response, learned counsel for the respondents submitted that the case of the appellants before the Board was that the respondents have raised the share capital of Rs.3,94,320/- by allotting 3943 shares at Rs.100/- each on 25.6.1994, 20.10.1994 and 9.1.1995 without issuing notice of such meetings to the appellants. It is pointed out that admittedly the meetings were held at the registered office of the company i.e. the residence of the appellants and as such allotments made by the respondents lead to an act of oppression under Section 398 of the Act. It is pointed out that the totally a new case is presented before this Court that no meeting for allotment of alleged equity shares were ever held and the share application money reflected in the Balance Sheet ending on 31.3.1994 cannot be converted into share capital and therefore the allotment is bad under Section 286 of the Act admittedly, when the quorum of Directors was duly empowered to do so. Moreover, both the Directors were signatories of the Memorandum and Articles of Association of the Company. It is pointed out that undisputed facts are as under: 13. The registered office of respondents 1 and 2 was at 73, Gujarawala Town, Part-II, G.T. Karnal Road, Delhi which is the residence of the appellants. All the Boards meetings were held and resolutions therein were passed at the same registered office. Moreover, all the statutory records were kept at the registered office as mandated by Sections 193, 196(1), 303 (1), 307(5) and 209 of the Act. The company was passing through financial crises and there was need to meet the government dues and installation of an effluent treatment plant in view of the directions of this Court. The quorum under the Articles of Association was two Directors as per Clause 33 of the Article of Association. Two persons were present in the meeting. The Board of Directors allotted 3943 equity shares when the requisite quorum of two Directors of the respondent group was there. In the meetings held on 25.6.1994, 20.10.1994 and 9.1.1995 at the registered office as per Clause 33 of the Articles of Association as well as under Section 287 of the Act. Auditor was appointed under Section 224 and power of attorney was signed by appellant No.1 on 4.9.1995 for which meeting was held and Balance Sheet as on 31.3.1995 was audited by the auditor on 4.9.1995 under Section 215 of the Act. Significantly, no mala fides have been imputed on the part of the auditor and no allegations of fraud or mala fide intention were imputed upon the respondents before the Board, learned Single Judge and not even before this Court. 14. There is no dispute that the Balance Sheet as on 31.3.1994 was duly signed by appellant No.1 and share application money amounting to Rs.3,94,320/- was reflected as share application money in the Balance Sheet with mutual understanding that the same was to be treated as share capital in next financial year ending on 31.3.1995.15. To give effect to the understanding, the same was converted on 25.6.1994, 20.10.1994 and 9.1.1995. Resolution dated 21.4.1997 was passed and signed by appellant No.1 authorising respondent No.2 for getting sales tax and income tax assessment completed. In the sales tax assessment proceedings appellant No.1 was representing the company. The Balance Sheet was filed at that time before the Assessing authority. An order dated 16.6.1998 for the assessment year 1994-95 clearly disclosed that appellant No.1 had appeared before the Sales Tax Authority on 3.6.1998 and produced records of the company. Thus, the Balance Sheet of the company as on 31.3.1995 was available with appellant No.1 and produced before the Sales Tax Authority. Therefore, the claim of the ignorance of the records by the appellants is wrong.16. It is pointed out that because of rising prices of estates of the company the petition under Sections 397 and 398 of the Act was filed on 20.10.2001. However, the returns for allotment of 9507 shares including 3943 shares were filed before the Registrar of Companies on 20.8.1998.17. It is submitted that the plea relating to Section 286 is not available in the present case as meeting admittedly held and the proof of service of notice was in the possession of the appellants as part of statutory record. Even after the meeting on 4.9.1995 wherein auditors were appointed the earlier meetings of the board are ratified and the appellants cannot question that. If the appellants claim is accepted it is inconceivable as to how share application money shown has been utilized in the subsequent years and as to how they were reflected in the Balance Sheet.18. So far as the other submissions relating to records manipulations it is submitted that this is not a case where jurisdiction under Article 136 of the Constitution should be exercised.19. We find that there are some factual controversies, for example, the effect of the appellants ratifying the Balance Sheet, appearing before the Sales Tax Authorities and the undisputed position with respect to share application money as reflected in the financial statements. It is difficult to believe that even though the conversion of the share application money was done in June 1994, October, 1994 and January 1995, it was not in the knowledge of the appellants. The fact that the appellants were representing the company before various authorities including the Sales Tax Authorities and Income Tax Authority clearly rules out the possibility of appellants being unaware of the situation. It is true that the allotment of shares is different from receipt of share application money but the conduct of the parties and their understanding of the situation largely determines the basic issue.
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0[ds]14. There is no dispute that the Balance Sheet as on 31.3.1994 was duly signed by appellant No.1 and share application money amounting to Rs.3,94,320/- was reflected as share application money in the Balance Sheet with mutual understanding that the same was to be treated as share capital in next financial year ending on 31.3.1995.15. To give effect to the understanding, the same was converted on 25.6.1994, 20.10.1994 and 9.1.1995. Resolution dated 21.4.1997 was passed and signed by appellant No.1 authorising respondent No.2 for getting sales tax and income tax assessment completed. In the sales tax assessment proceedings appellant No.1 was representing the company. The Balance Sheet was filed at that time before the Assessing authority. An order dated 16.6.1998 for the assessment year 1994-95 clearly disclosed that appellant No.1 had appeared before the Sales Tax Authority on 3.6.1998 and produced records of the company. Thus, the Balance Sheet of the company as on 31.3.1995 was available with appellant No.1 and produced before the Sales Tax Authority. Therefore, the claim of the ignorance of the records by the appellants is wrong.16. It is pointed out that because of rising prices of estates of the company the petition under Sections 397 and 398 of the Act was filed on 20.10.2001. However, the returns for allotment of 9507 shares including 3943 shares were filed before the Registrar of Companies on 20.8.1998.17. It is submitted that the plea relating to Section 286 is not available in the present case as meeting admittedly held and the proof of service of notice was in the possession of the appellants as part of statutory record. Even after the meeting on 4.9.1995 wherein auditors were appointed the earlier meetings of the board are ratified and the appellants cannot question that. If the appellants claim is accepted it is inconceivable as to how share application money shown has been utilized in the subsequent years and as to how they were reflected in the Balance Sheet.18. So far as the other submissions relating to records manipulations it is submitted that this is not a case where jurisdiction under Article 136 of the Constitution should be exercised.19. We find that there are some factual controversies, for example, the effect of the appellants ratifying the Balance Sheet, appearing before the Sales Tax Authorities and the undisputed position with respect to share application money as reflected in the financial statements. It is difficult to believe that even though the conversion of the share application money was done in June 1994, October, 1994 and January 1995, it was not in the knowledge of the appellants. The fact that the appellants were representing the company before various authorities including the Sales Tax Authorities and Income Tax Authority clearly rules out the possibility of appellants being unaware of the situation. It is true that the allotment of shares is different from receipt of share application money but the conduct of the parties and their understanding of the situation largely determines the basic issue.
| 0 | 3,206 | 533 |
### 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:
the respondents intimating about the issuance of shares. Since there was no satisfactory reply, petition under sections 397 and 398 of the Act was filed. 11. So far as the receipt of share application money is concerned the Balance Sheet only shows that it was under the head of `share application money and there was no allotment. 12. In response, learned counsel for the respondents submitted that the case of the appellants before the Board was that the respondents have raised the share capital of Rs.3,94,320/- by allotting 3943 shares at Rs.100/- each on 25.6.1994, 20.10.1994 and 9.1.1995 without issuing notice of such meetings to the appellants. It is pointed out that admittedly the meetings were held at the registered office of the company i.e. the residence of the appellants and as such allotments made by the respondents lead to an act of oppression under Section 398 of the Act. It is pointed out that the totally a new case is presented before this Court that no meeting for allotment of alleged equity shares were ever held and the share application money reflected in the Balance Sheet ending on 31.3.1994 cannot be converted into share capital and therefore the allotment is bad under Section 286 of the Act admittedly, when the quorum of Directors was duly empowered to do so. Moreover, both the Directors were signatories of the Memorandum and Articles of Association of the Company. It is pointed out that undisputed facts are as under: 13. The registered office of respondents 1 and 2 was at 73, Gujarawala Town, Part-II, G.T. Karnal Road, Delhi which is the residence of the appellants. All the Boards meetings were held and resolutions therein were passed at the same registered office. Moreover, all the statutory records were kept at the registered office as mandated by Sections 193, 196(1), 303 (1), 307(5) and 209 of the Act. The company was passing through financial crises and there was need to meet the government dues and installation of an effluent treatment plant in view of the directions of this Court. The quorum under the Articles of Association was two Directors as per Clause 33 of the Article of Association. Two persons were present in the meeting. The Board of Directors allotted 3943 equity shares when the requisite quorum of two Directors of the respondent group was there. In the meetings held on 25.6.1994, 20.10.1994 and 9.1.1995 at the registered office as per Clause 33 of the Articles of Association as well as under Section 287 of the Act. Auditor was appointed under Section 224 and power of attorney was signed by appellant No.1 on 4.9.1995 for which meeting was held and Balance Sheet as on 31.3.1995 was audited by the auditor on 4.9.1995 under Section 215 of the Act. Significantly, no mala fides have been imputed on the part of the auditor and no allegations of fraud or mala fide intention were imputed upon the respondents before the Board, learned Single Judge and not even before this Court. 14. There is no dispute that the Balance Sheet as on 31.3.1994 was duly signed by appellant No.1 and share application money amounting to Rs.3,94,320/- was reflected as share application money in the Balance Sheet with mutual understanding that the same was to be treated as share capital in next financial year ending on 31.3.1995.15. To give effect to the understanding, the same was converted on 25.6.1994, 20.10.1994 and 9.1.1995. Resolution dated 21.4.1997 was passed and signed by appellant No.1 authorising respondent No.2 for getting sales tax and income tax assessment completed. In the sales tax assessment proceedings appellant No.1 was representing the company. The Balance Sheet was filed at that time before the Assessing authority. An order dated 16.6.1998 for the assessment year 1994-95 clearly disclosed that appellant No.1 had appeared before the Sales Tax Authority on 3.6.1998 and produced records of the company. Thus, the Balance Sheet of the company as on 31.3.1995 was available with appellant No.1 and produced before the Sales Tax Authority. Therefore, the claim of the ignorance of the records by the appellants is wrong.16. It is pointed out that because of rising prices of estates of the company the petition under Sections 397 and 398 of the Act was filed on 20.10.2001. However, the returns for allotment of 9507 shares including 3943 shares were filed before the Registrar of Companies on 20.8.1998.17. It is submitted that the plea relating to Section 286 is not available in the present case as meeting admittedly held and the proof of service of notice was in the possession of the appellants as part of statutory record. Even after the meeting on 4.9.1995 wherein auditors were appointed the earlier meetings of the board are ratified and the appellants cannot question that. If the appellants claim is accepted it is inconceivable as to how share application money shown has been utilized in the subsequent years and as to how they were reflected in the Balance Sheet.18. So far as the other submissions relating to records manipulations it is submitted that this is not a case where jurisdiction under Article 136 of the Constitution should be exercised.19. We find that there are some factual controversies, for example, the effect of the appellants ratifying the Balance Sheet, appearing before the Sales Tax Authorities and the undisputed position with respect to share application money as reflected in the financial statements. It is difficult to believe that even though the conversion of the share application money was done in June 1994, October, 1994 and January 1995, it was not in the knowledge of the appellants. The fact that the appellants were representing the company before various authorities including the Sales Tax Authorities and Income Tax Authority clearly rules out the possibility of appellants being unaware of the situation. It is true that the allotment of shares is different from receipt of share application money but the conduct of the parties and their understanding of the situation largely determines the basic issue.
### Response:
0
### Explanation:
14. There is no dispute that the Balance Sheet as on 31.3.1994 was duly signed by appellant No.1 and share application money amounting to Rs.3,94,320/- was reflected as share application money in the Balance Sheet with mutual understanding that the same was to be treated as share capital in next financial year ending on 31.3.1995.15. To give effect to the understanding, the same was converted on 25.6.1994, 20.10.1994 and 9.1.1995. Resolution dated 21.4.1997 was passed and signed by appellant No.1 authorising respondent No.2 for getting sales tax and income tax assessment completed. In the sales tax assessment proceedings appellant No.1 was representing the company. The Balance Sheet was filed at that time before the Assessing authority. An order dated 16.6.1998 for the assessment year 1994-95 clearly disclosed that appellant No.1 had appeared before the Sales Tax Authority on 3.6.1998 and produced records of the company. Thus, the Balance Sheet of the company as on 31.3.1995 was available with appellant No.1 and produced before the Sales Tax Authority. Therefore, the claim of the ignorance of the records by the appellants is wrong.16. It is pointed out that because of rising prices of estates of the company the petition under Sections 397 and 398 of the Act was filed on 20.10.2001. However, the returns for allotment of 9507 shares including 3943 shares were filed before the Registrar of Companies on 20.8.1998.17. It is submitted that the plea relating to Section 286 is not available in the present case as meeting admittedly held and the proof of service of notice was in the possession of the appellants as part of statutory record. Even after the meeting on 4.9.1995 wherein auditors were appointed the earlier meetings of the board are ratified and the appellants cannot question that. If the appellants claim is accepted it is inconceivable as to how share application money shown has been utilized in the subsequent years and as to how they were reflected in the Balance Sheet.18. So far as the other submissions relating to records manipulations it is submitted that this is not a case where jurisdiction under Article 136 of the Constitution should be exercised.19. We find that there are some factual controversies, for example, the effect of the appellants ratifying the Balance Sheet, appearing before the Sales Tax Authorities and the undisputed position with respect to share application money as reflected in the financial statements. It is difficult to believe that even though the conversion of the share application money was done in June 1994, October, 1994 and January 1995, it was not in the knowledge of the appellants. The fact that the appellants were representing the company before various authorities including the Sales Tax Authorities and Income Tax Authority clearly rules out the possibility of appellants being unaware of the situation. It is true that the allotment of shares is different from receipt of share application money but the conduct of the parties and their understanding of the situation largely determines the basic issue.
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Agarwal Tracom Pvt. Ltd Vs. Punjab National Bank & Others
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that Rule 9(5) confers express power on the secured creditor to forfeit the deposit made by the auction purchaser in case the auction purchaser commits any default in paying installment of sale money to the secured creditor. Such action taken by the secured creditor is, in our opinion, a part of the measures specified in Section 13(4) and, therefore, it is regarded as a measure taken under Section 13(4) read with Rule 9(5). In our view, the measures taken under Section 13(4) commence with any of the action taken in clauses (a) to (d) and end with measures specified in Rule 9.30. In our view, therefore, the expression "any of the measures referred to in Section 13(4) taken by secured creditor or his authorized officer" in Section 17(1) would include all actions taken by the secured creditor under the Rules which relate to the measures specified in Section13(4).31. The auction purchaser (appellant herein) is one such person, who is aggrieved by the action of the secured creditor in forfeiting their money. The appellant, therefore, falls within the expression "any person" as specified under Section 17(1) and hence is entitled to challenge the action of the secured creditor (PNB) before the DRT by filing an application under Section 17(1) of the SARFAESI Act.32. Learned counsel for the appellant placed reliance on the decision of the Division Bench of High Court of Bombay in Umang Sugars Pvt. Ltd. v. State of Maharashtra & Anr., 2014(4) Mh.L.J. 113 which, according to him, supports his submission. We have gone through the decision and unable to agree with the view taken therein. Their Lordships, while holding that Section 17(1) does not apply to auction purchaser and, therefore, writ petition filed by him can be entertained in such cases, did not notice the Rules, which deal with the measures taken under Section 13(4) and nor considered its effect on the measures. 33. In United Bank of India v. Satyawati Tondon & Ors., 2010(3) R.C.R.(Civil) 963 : 2010(4) Recent Apex Judgments (R.A.J.) 660 : (2010) 8 SCC 110 , this Court had the occasion to examine in detail the provisions of the SARFAESI Act and the question regarding invocation of the extraordinary power under Article 226/227 in challenging the actions taken under the SARFAESI Act. Their Lordships gave a note of caution while dealing with the writ filed to challenge the actions taken under the SARFAESI Act and made following pertinent observations which, in our view, squarely apply to the case on hand: "42. There is another reason why the impugned order should be set aside. If Respondent 1 had any tangible grievance against the notice issued under Section 13(4) or action taken under Section 14, then she could have availed remedy by filing an application under Section 17(1). The expression "any person" used in Section 17(1) is of wide import. It takes within its fold, not only the borrower but also the guarantor or any other person who may be affected by the action taken under Section 13(4) or Section 14. Both, the Tribunal and the Appellate Tribunal are empowered to pass interim orders under Sections 17 and 18 and are required to decide the matters within a fixed time schedule. It is thus evident that the remedies available to an aggrieved person under the SARFAESI Act are both expeditious and effective.43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc. the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute.44. While expressing the aforesaid view, we are conscious that the powers conferred upon the High Court under Article 226 of the Constitution to issue to any person or authority, including in appropriate cases, any Government, directions, orders or writs including the five prerogative writs for the enforcement of any of the rights conferred by Part III or for any other purpose are very wide and there is no express limitation on exercise of that power but, at the same time, we cannot be oblivious of the rules of self-imposed restraint evolved by this Court, which every High Court is bound to keep in view while exercising power under Article 226 of the Constitution.45. It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision, etc. and the particular legislation contains a detailed mechanism for redressal of his grievance." 34. In the light of foregoing discussion, we are of the considered opinion that the Writ Court as also the Appellate Court were justified in dismissing the appellants writ petition on the ground of availability of alternative statutory remedy of filing an application under Section 17(1) of SARFAESI Act before the concerned Tribunal to challenge the action of the PNB in forfeiting the appellants deposit under Rule 9(5). We find no ground to interfere with the impugned judgment of the High Court.
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1[ds]17. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in the appeal. In other words, the view taken by the High Court appears to be just and reasonable and hence does not call for any interference.So far as this case is concerned,(5) of Rule 9 is relevant. It provides that, if the auction purchaser commits any default in payment of sale consideration within the time specified, the deposit made by auction purchaser shall be "forfeited" to the secured creditor and the auctioned property shall be resold and the defaulting purchaser shall "forfeit" all claims to the property or its part of the sum for which it may be sold subsequently.Reading of the aforementioned Sections and the Rules and, in particular, Section 17(2) and Rule 9(5) would clearly go to show that an action of secured creditor in forfeiting the deposit made by the auction purchaser is a part of the measures taken by the secured creditor under Section 13(4).28. The reason is that Section 17(2) empowers the Tribunal to examine all the issues arising out of the measures taken under Section 13(4) including the measures taken by the secured creditor under Rules 8 and 9 for disposal of the secured assets of the borrower. The expression "provisions of this Act and the Rules made thereunder" occurring in(2), (3), (4) and (7) of Section 17 clearly suggests that it includes the action taken under Section 13(4) as also includes therein the action taken under Rules 8 and 9 which deal with the completion of sale of the secured assets. In other words, the measures taken under Section 13 (4) would not be completed unless the entire procedure laid down in Rules 8 and 9 for sale of secured assets is fully complied with by the secured creditor. It is for this reason, the Tribunal has been empowered by Section 17(2),(3) and (4) to examine all the steps taken by the secured creditor with a view to find out as to whetherthe sale of secured assets was made in conformity with the requirements contained in Section 13(4) read with the Rules orWe also notice that Rule 9(5) confers express power on the secured creditor to forfeit the deposit made by the auction purchaser in case the auction purchaser commits any default in paying installment of sale money to the secured creditor. Such action taken by the secured creditor is, in our opinion, a part of the measures specified in Section 13(4) and, therefore, it is regarded as a measure taken under Section 13(4) read with Rule 9(5). In our view, the measures taken under Section 13(4) commence with any of the action taken in clauses (a) to (d) and end with measures specified in Rule 9.30. In our view, therefore, the expression "any of the measures referred to in Section 13(4) taken by secured creditor or his authorized officer" in Section 17(1) would include all actions taken by the secured creditor under the Rules which relate to the measures specified in Section13(4).31. The auction purchaser (appellant herein) is one such person, who is aggrieved by the action of the secured creditor in forfeiting their money. The appellant, therefore, falls within the expression "any person" as specified under Section 17(1) and hence is entitled to challenge the action of the secured creditor (PNB) before the DRT by filing an application under Section 17(1) of the SARFAESIhave gone through the decision and unable to agree with the view taken therein. Their Lordships, while holding that Section 17(1) does not apply to auction purchaser and, therefore, writ petition filed by him can be entertained in such cases, did not notice the Rules, which deal with the measures taken under Section 13(4) and nor considered its effect on the measures.In the light of foregoing discussion, we are of the considered opinion that the Writ Court as also the Appellate Court were justified in dismissing the appellants writ petition on the ground of availability of alternative statutory remedy of filing an application under Section 17(1) of SARFAESI Act before the concerned Tribunal to challenge the action of the PNB in forfeiting the appellants deposit under Rule 9(5). We find no ground to interfere with the impugned judgment of the High Court.
| 1 | 4,691 | 869 |
### 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:
that Rule 9(5) confers express power on the secured creditor to forfeit the deposit made by the auction purchaser in case the auction purchaser commits any default in paying installment of sale money to the secured creditor. Such action taken by the secured creditor is, in our opinion, a part of the measures specified in Section 13(4) and, therefore, it is regarded as a measure taken under Section 13(4) read with Rule 9(5). In our view, the measures taken under Section 13(4) commence with any of the action taken in clauses (a) to (d) and end with measures specified in Rule 9.30. In our view, therefore, the expression "any of the measures referred to in Section 13(4) taken by secured creditor or his authorized officer" in Section 17(1) would include all actions taken by the secured creditor under the Rules which relate to the measures specified in Section13(4).31. The auction purchaser (appellant herein) is one such person, who is aggrieved by the action of the secured creditor in forfeiting their money. The appellant, therefore, falls within the expression "any person" as specified under Section 17(1) and hence is entitled to challenge the action of the secured creditor (PNB) before the DRT by filing an application under Section 17(1) of the SARFAESI Act.32. Learned counsel for the appellant placed reliance on the decision of the Division Bench of High Court of Bombay in Umang Sugars Pvt. Ltd. v. State of Maharashtra & Anr., 2014(4) Mh.L.J. 113 which, according to him, supports his submission. We have gone through the decision and unable to agree with the view taken therein. Their Lordships, while holding that Section 17(1) does not apply to auction purchaser and, therefore, writ petition filed by him can be entertained in such cases, did not notice the Rules, which deal with the measures taken under Section 13(4) and nor considered its effect on the measures. 33. In United Bank of India v. Satyawati Tondon & Ors., 2010(3) R.C.R.(Civil) 963 : 2010(4) Recent Apex Judgments (R.A.J.) 660 : (2010) 8 SCC 110 , this Court had the occasion to examine in detail the provisions of the SARFAESI Act and the question regarding invocation of the extraordinary power under Article 226/227 in challenging the actions taken under the SARFAESI Act. Their Lordships gave a note of caution while dealing with the writ filed to challenge the actions taken under the SARFAESI Act and made following pertinent observations which, in our view, squarely apply to the case on hand: "42. There is another reason why the impugned order should be set aside. If Respondent 1 had any tangible grievance against the notice issued under Section 13(4) or action taken under Section 14, then she could have availed remedy by filing an application under Section 17(1). The expression "any person" used in Section 17(1) is of wide import. It takes within its fold, not only the borrower but also the guarantor or any other person who may be affected by the action taken under Section 13(4) or Section 14. Both, the Tribunal and the Appellate Tribunal are empowered to pass interim orders under Sections 17 and 18 and are required to decide the matters within a fixed time schedule. It is thus evident that the remedies available to an aggrieved person under the SARFAESI Act are both expeditious and effective.43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc. the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute.44. While expressing the aforesaid view, we are conscious that the powers conferred upon the High Court under Article 226 of the Constitution to issue to any person or authority, including in appropriate cases, any Government, directions, orders or writs including the five prerogative writs for the enforcement of any of the rights conferred by Part III or for any other purpose are very wide and there is no express limitation on exercise of that power but, at the same time, we cannot be oblivious of the rules of self-imposed restraint evolved by this Court, which every High Court is bound to keep in view while exercising power under Article 226 of the Constitution.45. It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision, etc. and the particular legislation contains a detailed mechanism for redressal of his grievance." 34. In the light of foregoing discussion, we are of the considered opinion that the Writ Court as also the Appellate Court were justified in dismissing the appellants writ petition on the ground of availability of alternative statutory remedy of filing an application under Section 17(1) of SARFAESI Act before the concerned Tribunal to challenge the action of the PNB in forfeiting the appellants deposit under Rule 9(5). We find no ground to interfere with the impugned judgment of the High Court.
### Response:
1
### Explanation:
17. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in the appeal. In other words, the view taken by the High Court appears to be just and reasonable and hence does not call for any interference.So far as this case is concerned,(5) of Rule 9 is relevant. It provides that, if the auction purchaser commits any default in payment of sale consideration within the time specified, the deposit made by auction purchaser shall be "forfeited" to the secured creditor and the auctioned property shall be resold and the defaulting purchaser shall "forfeit" all claims to the property or its part of the sum for which it may be sold subsequently.Reading of the aforementioned Sections and the Rules and, in particular, Section 17(2) and Rule 9(5) would clearly go to show that an action of secured creditor in forfeiting the deposit made by the auction purchaser is a part of the measures taken by the secured creditor under Section 13(4).28. The reason is that Section 17(2) empowers the Tribunal to examine all the issues arising out of the measures taken under Section 13(4) including the measures taken by the secured creditor under Rules 8 and 9 for disposal of the secured assets of the borrower. The expression "provisions of this Act and the Rules made thereunder" occurring in(2), (3), (4) and (7) of Section 17 clearly suggests that it includes the action taken under Section 13(4) as also includes therein the action taken under Rules 8 and 9 which deal with the completion of sale of the secured assets. In other words, the measures taken under Section 13 (4) would not be completed unless the entire procedure laid down in Rules 8 and 9 for sale of secured assets is fully complied with by the secured creditor. It is for this reason, the Tribunal has been empowered by Section 17(2),(3) and (4) to examine all the steps taken by the secured creditor with a view to find out as to whetherthe sale of secured assets was made in conformity with the requirements contained in Section 13(4) read with the Rules orWe also notice that Rule 9(5) confers express power on the secured creditor to forfeit the deposit made by the auction purchaser in case the auction purchaser commits any default in paying installment of sale money to the secured creditor. Such action taken by the secured creditor is, in our opinion, a part of the measures specified in Section 13(4) and, therefore, it is regarded as a measure taken under Section 13(4) read with Rule 9(5). In our view, the measures taken under Section 13(4) commence with any of the action taken in clauses (a) to (d) and end with measures specified in Rule 9.30. In our view, therefore, the expression "any of the measures referred to in Section 13(4) taken by secured creditor or his authorized officer" in Section 17(1) would include all actions taken by the secured creditor under the Rules which relate to the measures specified in Section13(4).31. The auction purchaser (appellant herein) is one such person, who is aggrieved by the action of the secured creditor in forfeiting their money. The appellant, therefore, falls within the expression "any person" as specified under Section 17(1) and hence is entitled to challenge the action of the secured creditor (PNB) before the DRT by filing an application under Section 17(1) of the SARFAESIhave gone through the decision and unable to agree with the view taken therein. Their Lordships, while holding that Section 17(1) does not apply to auction purchaser and, therefore, writ petition filed by him can be entertained in such cases, did not notice the Rules, which deal with the measures taken under Section 13(4) and nor considered its effect on the measures.In the light of foregoing discussion, we are of the considered opinion that the Writ Court as also the Appellate Court were justified in dismissing the appellants writ petition on the ground of availability of alternative statutory remedy of filing an application under Section 17(1) of SARFAESI Act before the concerned Tribunal to challenge the action of the PNB in forfeiting the appellants deposit under Rule 9(5). We find no ground to interfere with the impugned judgment of the High Court.
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Pradip Kumar s/o Noni Gopal Roy Vs. Western Coalfields Ltd
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major penalty has been served till its finalisation. If on conclusion of the Disciplinary Proceeding, service is terminated through deemed dismissal/ deemed removal/deemed compulsory retirement, encashment of leave can be forfeited in terms of note. However, if service is not terminated on conclusion of disciplinary proceeding the same may be released. Thus it appears from the memorandum dated 08/09/2015 that specific policy is accepted by the respondent in respect of final settlement of dues on superannuation. This policy clarifies that if there is a charge-sheet for major penalty then leave encashment and T.A. bills can be withheld. 12. The petitioner has relied upon the Coal India Executives Leave Rules, 2010. Rule No.12.3 speaks about the extent of encashment of earned leave. Rule No.12.4 states about encashment of earned leave on termination of service/retirement. Rule 12.4.1 says that leave at credit shall not be granted for encashment if an executive resigns from the service. However an executive who has resigned from the service can avail the benefit for the encashable portion of earned leave prior to the date of his actual quitting/release from service. Rule 12.4.2 speaks about the termination which states that an executive governed under the Coal India Service Rules, whose services are terminated, otherwise than on disciplinary grounds, or who retires on superannuation, may be allowed to encash the earned leave at his credit, subject to a maximum of 300 days. This rule specifically states that a person who is terminated otherwise than on disciplinary ground may be allowed to encash the earned leave at his credit and Rule No.12.4.3 speaks about the contingency in case of death. Admittedly in the present case, the petitioner served with the charge-sheet it means disciplinary action has been taken and the enquiry is pending. 13. It is submitted by the petitioner that in view of Section 52 of the Mines Act, 1952, he is entitled for the said leave encashment. Admittedly the Mines Act, 1952 was passed with a view to amend and consolidating the law relating to the regulation of labour and safety in mines. The statement and objects as per the Mines (Amendment) Act No.42 of 1983 speaks about regulating the working condition in mines by providing for measures to be taken for safety of the workers employed therein and certain amenities for them. Section 52 of the Mines Act, 1952 states about annual leave wages. Wages are a sum of money paid under the contract by an employers to a worker for services rendered. Wages are payments for labour services rendered in hourly rates while a salary is a similar payment expressed in weekly, monthly or annual rates. Section 52(10) specifically states about the wages to a persons employed in mines. The petitioner was working with the Company as a Junior Executive Trainee. At no point of time he worked as a worker. As he was working as an Executive he had to perform his duty not in the mines and, therefore, the provisions of Mines Act, 1952 are not applicable to him. 14. The aspects whether the provisions of the Mines Act, 1952 are applicable to the Executives is dealt by this Court in W.P. No.4104/2017 (Shri Gurjit Singh s/o Late Gopal Singh Vs. Coal India Ltd. and anr.) and W.P. No.4318/2017 (Mrs. Anjana Mehta wd/o Deceased Dr. Surendraprasad Mehta Vs. Coal India Ltd. and ors.) wherein it is held by this Court that in view of the provisions contained in Section 2(h) and Section 17 of the Act read with Section 52(10) thereof as well as the provisions contained in the Coal Mines Regulations 1957 (hereinafter referred to as the Regulations for short) the legal position was clear that the Act provides the benefits for those who are actually employed in mines and similar such benefits cannot be extended to Officers/Executives of the WCL. It is observed by this Court that in view of the marginal note given under Section 52 says Annual Leave with Wages, it was primarily relatable to entitlement to and release of wages to any person employed in a mine. The word wages has not been defined in the Act, but is defined in the Industrial Disputes Act, 1947. Wages are ordinarily paid to workmen/labourers. Officers/executives are not paid wages in the sense the term is used with reference to workmen/labourers. It is further clarified by this Court in the said writ petitions that the term Manager in Section 2(h) read with Section 17 read with Regulation 31 of the Regulations would mean only those Managers, who have the requisite qualifications to work in mine and are comprehended within the meaning of the words a person is said to be employed in a mine. It is observed by this Court that the said petitioners had no right in law to claim leave encashment benefits, which otherwise were due to them but for the orders of removal on disciplinary ground and dismissal consequent to conviction recorded by the Special Court, in view of clear provision in Rule 7.2 of the Service Rules. 15. In the present case, admittedly the petitioner was served with the charge-sheet. The charges levelled against him are serious in nature. Learned Counsel for the petitioner relied upon the decision in Jaswant Singh (supra) but the said judgment is overruled by Chairman-Cum-Managing Director, Mahanadi Coalfields Ltd. Vs. Rabindranath Choubey (2020) 18 SCC 71. The Honble Apex Court in the case of Chairman-Cum-Managing Director, Mahanadi Coalfields Ltd. (supra) specifically observed that when the Rule 34 of the CDA Rules permits continuance of the departmental enquiry even after the retirement of an employee and such a retired employee is deemed to be in service and on conclusion of the departmental enquiry initiated while the employee was in service, penalty of dismissal was permissible. The employer would get the right to forfeit the payment of gratuity of such an employee as provided under Section 4(1) and 4(6) of the Payment of Gratuity Act, 1972 and even under Rule 34.3 of the CDA Rules.
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0[ds]Rule No.12.3 speaks about the extent of encashment of earned leave. Rule No.12.4 states about encashment of earned leave on termination of service/retirement. Rule 12.4.1 says that leave at credit shall not be granted for encashment if an executive resigns from the service. However an executive who has resigned from the service can avail the benefit for the encashable portion of earned leave prior to the date of his actual quitting/release from service. Rule 12.4.2 speaks about the termination which states that an executive governed under the Coal India Service Rules, whose services are terminated, otherwise than on disciplinary grounds, or who retires on superannuation, may be allowed to encash the earned leave at his credit, subject to a maximum of 300 days. This rule specifically states that a person who is terminated otherwise than on disciplinary ground may be allowed to encash the earned leave at his credit and Rule No.12.4.3 speaks about the contingency in case of death. Admittedly in the present case, the petitioner served with the charge-sheet it means disciplinary action has been taken and the enquiry is pending.Admittedly the Mines Act, 1952 was passed with a view to amend and consolidating the law relating to the regulation of labour and safety in mines. The statement and objects as per the Mines (Amendment) Act No.42 of 1983 speaks about regulating the working condition in mines by providing for measures to be taken for safety of the workers employed therein and certain amenities for them. Section 52 of the Mines Act, 1952 states about annual leave wages. Wages are a sum of money paid under the contract by an employers to a worker for services rendered. Wages are payments for labour services rendered in hourly rates while a salary is a similar payment expressed in weekly, monthly or annual rates. Section 52(10) specifically states about the wages to a persons employed in mines. The petitioner was working with the Company as a Junior Executive Trainee. At no point of time he worked as a worker. As he was working as an Executive he had to perform his duty not in the mines and, therefore, the provisions of Mines Act, 1952 are not applicable to him.14. The aspects whether the provisions of the Mines Act, 1952 are applicable to the Executives is dealt by this Court in W.P. No.4104/2017 (Shri Gurjit Singh s/o Late Gopal Singh Vs. Coal India Ltd. and anr.) and W.P. No.4318/2017 (Mrs. Anjana Mehta wd/o Deceased Dr. Surendraprasad Mehta Vs. Coal India Ltd. and ors.) wherein it is held by this Court that in view of the provisions contained in Section 2(h) and Section 17 of the Act read with Section 52(10) thereof as well as the provisions contained in the Coal Mines Regulations 1957 (hereinafter referred to as the Regulations for short) the legal position was clear that the Act provides the benefits for those who are actually employed in mines and similar such benefits cannot be extended to Officers/Executives of the WCL. It is observed by this Court that in view of the marginal note given under Section 52 says Annual Leave with Wages, it was primarily relatable to entitlement to and release of wages to any person employed in a mine. The word wages has not been defined in the Act, but is defined in the Industrial Disputes Act, 1947. Wages are ordinarily paid to workmen/labourers. Officers/executives are not paid wages in the sense the term is used with reference to workmen/labourers. It is further clarified by this Court in the said writ petitions that the term Manager in Section 2(h) read with Section 17 read with Regulation 31 of the Regulations would mean only those Managers, who have the requisite qualifications to work in mine and are comprehended within the meaning of the words a person is said to be employed in a mine. It is observed by this Court that the said petitioners had no right in law to claim leave encashment benefits, which otherwise were due to them but for the orders of removal on disciplinary ground and dismissal consequent to conviction recorded by the Special Court, in view of clear provision in Rule 7.2 of the Service Rules.15. In the present case, admittedly the petitioner was served with the charge-sheet. The charges levelled against him are serious in nature. Learned Counsel for the petitioner relied upon the decision in Jaswant Singh (supra) but the said judgment is overruled by Chairman-Cum-Managing Director, Mahanadi Coalfields Ltd. Vs. Rabindranath Choubey (2020) 18 SCC 71. The Honble Apex Court in the case of Chairman-Cum-Managing Director, Mahanadi Coalfields Ltd. (supra) specifically observed that when the Rule 34 of the CDA Rules permits continuance of the departmental enquiry even after the retirement of an employee and such a retired employee is deemed to be in service and on conclusion of the departmental enquiry initiated while the employee was in service, penalty of dismissal was permissible. The employer would get the right to forfeit the payment of gratuity of such an employee as provided under Section 4(1) and 4(6) of the Payment of Gratuity Act, 1972 and even under Rule 34.3 of the CDA Rules.
| 0 | 3,560 | 954 |
### 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:
major penalty has been served till its finalisation. If on conclusion of the Disciplinary Proceeding, service is terminated through deemed dismissal/ deemed removal/deemed compulsory retirement, encashment of leave can be forfeited in terms of note. However, if service is not terminated on conclusion of disciplinary proceeding the same may be released. Thus it appears from the memorandum dated 08/09/2015 that specific policy is accepted by the respondent in respect of final settlement of dues on superannuation. This policy clarifies that if there is a charge-sheet for major penalty then leave encashment and T.A. bills can be withheld. 12. The petitioner has relied upon the Coal India Executives Leave Rules, 2010. Rule No.12.3 speaks about the extent of encashment of earned leave. Rule No.12.4 states about encashment of earned leave on termination of service/retirement. Rule 12.4.1 says that leave at credit shall not be granted for encashment if an executive resigns from the service. However an executive who has resigned from the service can avail the benefit for the encashable portion of earned leave prior to the date of his actual quitting/release from service. Rule 12.4.2 speaks about the termination which states that an executive governed under the Coal India Service Rules, whose services are terminated, otherwise than on disciplinary grounds, or who retires on superannuation, may be allowed to encash the earned leave at his credit, subject to a maximum of 300 days. This rule specifically states that a person who is terminated otherwise than on disciplinary ground may be allowed to encash the earned leave at his credit and Rule No.12.4.3 speaks about the contingency in case of death. Admittedly in the present case, the petitioner served with the charge-sheet it means disciplinary action has been taken and the enquiry is pending. 13. It is submitted by the petitioner that in view of Section 52 of the Mines Act, 1952, he is entitled for the said leave encashment. Admittedly the Mines Act, 1952 was passed with a view to amend and consolidating the law relating to the regulation of labour and safety in mines. The statement and objects as per the Mines (Amendment) Act No.42 of 1983 speaks about regulating the working condition in mines by providing for measures to be taken for safety of the workers employed therein and certain amenities for them. Section 52 of the Mines Act, 1952 states about annual leave wages. Wages are a sum of money paid under the contract by an employers to a worker for services rendered. Wages are payments for labour services rendered in hourly rates while a salary is a similar payment expressed in weekly, monthly or annual rates. Section 52(10) specifically states about the wages to a persons employed in mines. The petitioner was working with the Company as a Junior Executive Trainee. At no point of time he worked as a worker. As he was working as an Executive he had to perform his duty not in the mines and, therefore, the provisions of Mines Act, 1952 are not applicable to him. 14. The aspects whether the provisions of the Mines Act, 1952 are applicable to the Executives is dealt by this Court in W.P. No.4104/2017 (Shri Gurjit Singh s/o Late Gopal Singh Vs. Coal India Ltd. and anr.) and W.P. No.4318/2017 (Mrs. Anjana Mehta wd/o Deceased Dr. Surendraprasad Mehta Vs. Coal India Ltd. and ors.) wherein it is held by this Court that in view of the provisions contained in Section 2(h) and Section 17 of the Act read with Section 52(10) thereof as well as the provisions contained in the Coal Mines Regulations 1957 (hereinafter referred to as the Regulations for short) the legal position was clear that the Act provides the benefits for those who are actually employed in mines and similar such benefits cannot be extended to Officers/Executives of the WCL. It is observed by this Court that in view of the marginal note given under Section 52 says Annual Leave with Wages, it was primarily relatable to entitlement to and release of wages to any person employed in a mine. The word wages has not been defined in the Act, but is defined in the Industrial Disputes Act, 1947. Wages are ordinarily paid to workmen/labourers. Officers/executives are not paid wages in the sense the term is used with reference to workmen/labourers. It is further clarified by this Court in the said writ petitions that the term Manager in Section 2(h) read with Section 17 read with Regulation 31 of the Regulations would mean only those Managers, who have the requisite qualifications to work in mine and are comprehended within the meaning of the words a person is said to be employed in a mine. It is observed by this Court that the said petitioners had no right in law to claim leave encashment benefits, which otherwise were due to them but for the orders of removal on disciplinary ground and dismissal consequent to conviction recorded by the Special Court, in view of clear provision in Rule 7.2 of the Service Rules. 15. In the present case, admittedly the petitioner was served with the charge-sheet. The charges levelled against him are serious in nature. Learned Counsel for the petitioner relied upon the decision in Jaswant Singh (supra) but the said judgment is overruled by Chairman-Cum-Managing Director, Mahanadi Coalfields Ltd. Vs. Rabindranath Choubey (2020) 18 SCC 71. The Honble Apex Court in the case of Chairman-Cum-Managing Director, Mahanadi Coalfields Ltd. (supra) specifically observed that when the Rule 34 of the CDA Rules permits continuance of the departmental enquiry even after the retirement of an employee and such a retired employee is deemed to be in service and on conclusion of the departmental enquiry initiated while the employee was in service, penalty of dismissal was permissible. The employer would get the right to forfeit the payment of gratuity of such an employee as provided under Section 4(1) and 4(6) of the Payment of Gratuity Act, 1972 and even under Rule 34.3 of the CDA Rules.
### Response:
0
### Explanation:
Rule No.12.3 speaks about the extent of encashment of earned leave. Rule No.12.4 states about encashment of earned leave on termination of service/retirement. Rule 12.4.1 says that leave at credit shall not be granted for encashment if an executive resigns from the service. However an executive who has resigned from the service can avail the benefit for the encashable portion of earned leave prior to the date of his actual quitting/release from service. Rule 12.4.2 speaks about the termination which states that an executive governed under the Coal India Service Rules, whose services are terminated, otherwise than on disciplinary grounds, or who retires on superannuation, may be allowed to encash the earned leave at his credit, subject to a maximum of 300 days. This rule specifically states that a person who is terminated otherwise than on disciplinary ground may be allowed to encash the earned leave at his credit and Rule No.12.4.3 speaks about the contingency in case of death. Admittedly in the present case, the petitioner served with the charge-sheet it means disciplinary action has been taken and the enquiry is pending.Admittedly the Mines Act, 1952 was passed with a view to amend and consolidating the law relating to the regulation of labour and safety in mines. The statement and objects as per the Mines (Amendment) Act No.42 of 1983 speaks about regulating the working condition in mines by providing for measures to be taken for safety of the workers employed therein and certain amenities for them. Section 52 of the Mines Act, 1952 states about annual leave wages. Wages are a sum of money paid under the contract by an employers to a worker for services rendered. Wages are payments for labour services rendered in hourly rates while a salary is a similar payment expressed in weekly, monthly or annual rates. Section 52(10) specifically states about the wages to a persons employed in mines. The petitioner was working with the Company as a Junior Executive Trainee. At no point of time he worked as a worker. As he was working as an Executive he had to perform his duty not in the mines and, therefore, the provisions of Mines Act, 1952 are not applicable to him.14. The aspects whether the provisions of the Mines Act, 1952 are applicable to the Executives is dealt by this Court in W.P. No.4104/2017 (Shri Gurjit Singh s/o Late Gopal Singh Vs. Coal India Ltd. and anr.) and W.P. No.4318/2017 (Mrs. Anjana Mehta wd/o Deceased Dr. Surendraprasad Mehta Vs. Coal India Ltd. and ors.) wherein it is held by this Court that in view of the provisions contained in Section 2(h) and Section 17 of the Act read with Section 52(10) thereof as well as the provisions contained in the Coal Mines Regulations 1957 (hereinafter referred to as the Regulations for short) the legal position was clear that the Act provides the benefits for those who are actually employed in mines and similar such benefits cannot be extended to Officers/Executives of the WCL. It is observed by this Court that in view of the marginal note given under Section 52 says Annual Leave with Wages, it was primarily relatable to entitlement to and release of wages to any person employed in a mine. The word wages has not been defined in the Act, but is defined in the Industrial Disputes Act, 1947. Wages are ordinarily paid to workmen/labourers. Officers/executives are not paid wages in the sense the term is used with reference to workmen/labourers. It is further clarified by this Court in the said writ petitions that the term Manager in Section 2(h) read with Section 17 read with Regulation 31 of the Regulations would mean only those Managers, who have the requisite qualifications to work in mine and are comprehended within the meaning of the words a person is said to be employed in a mine. It is observed by this Court that the said petitioners had no right in law to claim leave encashment benefits, which otherwise were due to them but for the orders of removal on disciplinary ground and dismissal consequent to conviction recorded by the Special Court, in view of clear provision in Rule 7.2 of the Service Rules.15. In the present case, admittedly the petitioner was served with the charge-sheet. The charges levelled against him are serious in nature. Learned Counsel for the petitioner relied upon the decision in Jaswant Singh (supra) but the said judgment is overruled by Chairman-Cum-Managing Director, Mahanadi Coalfields Ltd. Vs. Rabindranath Choubey (2020) 18 SCC 71. The Honble Apex Court in the case of Chairman-Cum-Managing Director, Mahanadi Coalfields Ltd. (supra) specifically observed that when the Rule 34 of the CDA Rules permits continuance of the departmental enquiry even after the retirement of an employee and such a retired employee is deemed to be in service and on conclusion of the departmental enquiry initiated while the employee was in service, penalty of dismissal was permissible. The employer would get the right to forfeit the payment of gratuity of such an employee as provided under Section 4(1) and 4(6) of the Payment of Gratuity Act, 1972 and even under Rule 34.3 of the CDA Rules.
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Mahabir Jute Mills Ltd. Gorakhpur A Vs. Shibban Lal Saxena And Ors
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(5) of the notification referred to above, nor S.3 of the U.P. Industrial Disputes Act contained any provisions which required that the members of the Conciliation Board were to show their reports to another. All that was required was that they should send their reports to the Government through the Labour Commissioner. This was undoubtedly done. We are, therefore, unable to see any infraction of the rules of natural justice in the present case.9. Reliance was also placed on the decision of this Court in State of Orissa v. Dr. (Miss) Binapani Dei and others [1967-II L.L.J. 266]. This case also does not appear to be of any assistance to the respondents, because in that case the entire procedure of inquiry held was in violation of the rules of natural justice. That, however, is not the position here.10. It was then contended by Mr. Gupte that after quashing the order of the Government refusing to make a reference and asking it to reconsider the same it was not open to the High Court to have given peremptory directions so as to circumscribe the statutory jurisdiction of the Government under S.4K of the U.P. Industrial Dispute Act. In our opinion this contention is well-founded and must prevail. Even if the High Court thought that the impugned order of the Government suffered from any legal infirmity all that it could have done was to have asked the Government to reconsider it but it had no jurisdiction to direct the Government how to act and how to exercise its statutory discretion which was conferred on it by S.4K of the U.P. Industrial Disputes Act. There was absolutely no warrant for the High Court in prohibiting the Government from considering the secret report of the Additional Regional Conciliation Officer or that of the Labour Commissioner. The Government was fully entitled to consider the matter in its comprehensive aspects and the secret report of the Chairman of the Conciliation Board or that of the Labour Commissioner were undoubtedly relevant materials which the Government could have considered. The High Court could not debar the Government from considering those matters nor could it compel the Government to exercise its discretion in a particular manner. In these circumstances we are satisfied that the order of the High Court is not legally sustainable and must be quashed.11. The other point which arises for consideration is as to the relief which could be granted to the appellant. Mr. Gupte, counsel for the appellant, submitted that after the judgment of the High Court the Government had passed another order dated February 6, 1973, by which it has in consonance with the directions given by the High Court made a reference to the Industrial Tribunal. It was submitted that it was not at all proper for the Government to have revived a dead issue after more than twenty years and further as the order of the Government was based on the order of the High Court, if the order of the High Court was quashed the order of the Government making a reference to the Industrial Tribunal would fall automatically. We find ourselves in agreement with the learned counsel for the appellant. There can be no doubt that the order of the Government dated February 6, 1973 is undoubtedly based on the order passed by the Division Bench of the High Court. This is proved by a letter written by Mr. Vishnu Prakash Up. Sachiv (Deputy Secretary), U.P. Government, to the Manager of the appellant Mills. The relevant portion of the latter after being translated in English runs thus :"I am directed to say that their Lordships of the High Court in their Judgment in Special Appeal No. 1963/915 State v. Shri Shiban Lal Sexena (M/s. Mahabir Jute Mills Sabjanwa) have ordered that the Government after taking the dissenting reports from both the parties should consider on the question whether the aforesaid dispute should be referred for adjudication.Therefore you are requested that within 10 days from the date of the receipt of this letter to send your dissenting report and whatever further you want to say on your behalf to the Government."A perusal of this letter clearly shows that the Government did not exercise its independent decision under S.4K of the U.P. Industrial Disputes Act but was guided mainly by the judgment of the High Court and the directions given in Special Appeal filed in the High Court. If the order of the High Court is quashed then it will undoubtedly materially affect the decisions of the Government in making a reference to the Industrial Tribunal. Had the Government made the reference uninfluenced by the High Courts directions the legal situation would have been different.The learned counsel for the respondent submitted that no prayer was made by the appellant for quashing the order of the Government for making a reference to the Industrial Tribunal. It was, however, not necessary for the appellant to make such a prayer because of the High Courts order is quashed, then any subsequent proceeding which comes into existence as a result of the High Courts order would fall to the ground as a logical corollary of our finding. The learned counsel for the respondents after due consideration submitted that he would have no objection if the Government order for making a reference is quashed provided the Governments discretion to make a fresh reference to the Industrial Tribunal on the dispute is not fettered. We would, however, like to make it clear that the Government has sample discretion to make a reference to the Industrial Tribunal under S.4K of the U.P. Industrial Disputes Act if it so thinks fit. This Court in Western India Match Company Ltd. v. Western India Match Co., Workers Union and others, [1973-II L.L.J. 403]; clearly held that even if a reference was refused by the Government that will not debar the Government from making a reference at a later time if it is satisfied that in the changed circumstances a reference is necessary.
|
1[ds]High Court observed thus :"The function of the Government is administrative. In law administrative decisions are not generally required to be accompanied by a statement of reasons.There is nothing in the Industrial Disputes Act or the notification aforesaid requiring the State Government to state its reasons in support of its conclusions. There was nothing particular in the present case impelling the issuance of such a direction to the State Government."We find ourselves in complete agreement with the view taken by the High Court on this point. In a diverse society such as ours the Government has to work through several administrative agencies which have got a very wide sphere and if every administrative order is required to give reasons it will bring the Governmental machinery to aled that while the rules of natural justice would apply to administrative proceedings, it is not necessary that the administrative orders should be speaking orders unless the statute specifically enjoins such a requirement. But we think it desirable that such orders should contain reasons when they decide matters affecting rights of parties.Coming to the first ground which weighed with the High Court in setting aside the order of the Government refusing to make a reference to the Industrial Tribunal it seems to us that the High Court has proceeded on a completeof the real position and on a premise which is wrong of a point of fact. Having perused the materials placed before us, we find that there is no reliable material on the record at all to show that the Government order referred to above was based mainly on the secret report of the Additional Regional Conciliation Officer or of the Labouraverment which has not been proved to be false manifestly shows that the Government before making the impugned order had considered all the aspects including the report of the Chairman and the members of the Conciliation Board, the Labour Commissioner and other surrounding circumstances. In these circumstances the finding of the Division Bench of the High Court that the order of the Government was based merely on the secret report of the Chairman or that of the Labour Commissioner is not sustainable. We fail to understand on what basis High Court has presumed that the Government acted solely on the secret report of the Regional Conciliationcan be no doubt that while the secret report of the Additional Regional Conciliation Officer and the report of the Labour Commissioner, like other circumstances, had to be considered by the Government in making its overall assessment of the situation, there was no reason for excluding the secret report submitted by the Additional Regional Conciliation Officer at all. In these circumstances the first ground on which the Division Bench has set aside the Government order in refusing to refer the matter to the Industrial Tribunal is not legally sound and cannot beis no provision in the notification or in the U.P. Industrial Disputes Act which enjoins that the report submitted by the Chairman or any other members should be shown to one another. This also does not appear to be necessary. The High Court seems to think that because the Chairman did not show his secret report to the other members of the Board, this has resulted in the violation of the principles of natural justice. We are, however, unable to agree with this line of reasoning. The principles of natural justice are got doubt very essential but they have got their own limits and cannot be stretched toofacts in Kraipaks case are quite different from the facts in the present case. In Kraipaks case the main grievance of the petitioner was that in the Selection Board which was constituted for recommending the promotion of the State Officers to the Indian Forest Service Cadre the Chief Conservator of Forests was also a member of the Board, although he himself was also a candidate for promotion to the Indian Forest Service Cadre. Thus what happened was that the Chief Conservator of Forests acted as a Judge in his own cause. This was undoubtedly a gross violation of the principles of natural justice because the very person who stood as a candidate also sat in the Selection Board which had to decide his own future as that of his rivals. Such is, however, not the case here. The Conciliation Board had completed its proceedings and the stage at which, according to the High Court, the rules of natural justice had to be applied was the stage of submitting the report. Full hearing was given to the parties concerned. Thus all the indicia of the principles of natural justice were present on the facts of the present case. In these circumstances we are satisfied that Kraipaks case (supra) could not be called into aid in support of the reasons given by the High Court. The procedure adopted in Kraipaks case was obviously so abhorrent to the notions of justice andthat rules of natural justice were at oncethe present case we have already pointed out that neither cl. (5) of the notification referred to above, nor S.3 of the U.P. Industrial Disputes Act contained any provisions which required that the members of the Conciliation Board were to show their reports to another. All that was required was that they should send their reports to the Government through the Labour Commissioner. This was undoubtedly done. We are, therefore, unable to see any infraction of the rules of natural justice in the presentour opinion this contention isand must prevail. Even if the High Court thought that the impugned order of the Government suffered from any legal infirmity all that it could have done was to have asked the Government to reconsider it but it had no jurisdiction to direct the Government how to act and how to exercise its statutory discretion which was conferred on it by S.4K of the U.P. Industrial Disputes Act. There was absolutely no warrant for the High Court in prohibiting the Government from considering the secret report of the Additional Regional Conciliation Officer or that of the Labour Commissioner. The Government was fully entitled to consider the matter in its comprehensive aspects and the secret report of the Chairman of the Conciliation Board or that of the Labour Commissioner were undoubtedly relevant materials which the Government could have considered. The High Court could not debar the Government from considering those matters nor could it compel the Government to exercise its discretion in a particular manner. In these circumstances we are satisfied that the order of the High Court is not legally sustainable and must befind ourselves in agreement with the learned counsel for the appellant. There can be no doubt that the order of the Government dated February 6, 1973 is undoubtedly based on the order passed by the Division Bench of the High Court. This is proved by a letter written by Mr. Vishnu Prakash Up. Sachiv (Deputy Secretary), U.P. Government, to the Manager of the appellant Mills. The relevant portion of the latter after being translated in English runs thus :"I am directed to say that their Lordships of the High Court in their Judgment in Special Appeal No. 1963/915 State v. Shri Shiban Lal Sexena (M/s. Mahabir Jute Mills Sabjanwa) have ordered that the Government after taking the dissenting reports from both the parties should consider on the question whether the aforesaid dispute should be referred for adjudication.Therefore you are requested that within 10 days from the date of the receipt of this letter to send your dissenting report and whatever further you want to say on your behalf to the Government."A perusal of this letter clearly shows that the Government did not exercise its independent decision under S.4K of the U.P. Industrial Disputes Act but was guided mainly by the judgment of the High Court and the directions given in Special Appeal filed in the High Court. If the order of the High Court is quashed then it will undoubtedly materially affect the decisions of the Government in making a reference to the Industrial Tribunal. Had the Government made the reference uninfluenced by the High Courts directions the legal situation would have been different.We would, however, like to make it clear that the Government has sample discretion to make a reference to the Industrial Tribunal under S.4K of the U.P. Industrial Disputes Act if it so thinks fit. This Court in Western India Match Company Ltd. v. Western India Match Co., Workers Union and others,L.L.J. 403]; clearly held that even if a reference was refused by the Government that will not debar the Government from making a reference at a later time if it is satisfied that in the changed circumstances a reference is necessary.
| 1 | 5,087 | 1,549 |
### 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:
(5) of the notification referred to above, nor S.3 of the U.P. Industrial Disputes Act contained any provisions which required that the members of the Conciliation Board were to show their reports to another. All that was required was that they should send their reports to the Government through the Labour Commissioner. This was undoubtedly done. We are, therefore, unable to see any infraction of the rules of natural justice in the present case.9. Reliance was also placed on the decision of this Court in State of Orissa v. Dr. (Miss) Binapani Dei and others [1967-II L.L.J. 266]. This case also does not appear to be of any assistance to the respondents, because in that case the entire procedure of inquiry held was in violation of the rules of natural justice. That, however, is not the position here.10. It was then contended by Mr. Gupte that after quashing the order of the Government refusing to make a reference and asking it to reconsider the same it was not open to the High Court to have given peremptory directions so as to circumscribe the statutory jurisdiction of the Government under S.4K of the U.P. Industrial Dispute Act. In our opinion this contention is well-founded and must prevail. Even if the High Court thought that the impugned order of the Government suffered from any legal infirmity all that it could have done was to have asked the Government to reconsider it but it had no jurisdiction to direct the Government how to act and how to exercise its statutory discretion which was conferred on it by S.4K of the U.P. Industrial Disputes Act. There was absolutely no warrant for the High Court in prohibiting the Government from considering the secret report of the Additional Regional Conciliation Officer or that of the Labour Commissioner. The Government was fully entitled to consider the matter in its comprehensive aspects and the secret report of the Chairman of the Conciliation Board or that of the Labour Commissioner were undoubtedly relevant materials which the Government could have considered. The High Court could not debar the Government from considering those matters nor could it compel the Government to exercise its discretion in a particular manner. In these circumstances we are satisfied that the order of the High Court is not legally sustainable and must be quashed.11. The other point which arises for consideration is as to the relief which could be granted to the appellant. Mr. Gupte, counsel for the appellant, submitted that after the judgment of the High Court the Government had passed another order dated February 6, 1973, by which it has in consonance with the directions given by the High Court made a reference to the Industrial Tribunal. It was submitted that it was not at all proper for the Government to have revived a dead issue after more than twenty years and further as the order of the Government was based on the order of the High Court, if the order of the High Court was quashed the order of the Government making a reference to the Industrial Tribunal would fall automatically. We find ourselves in agreement with the learned counsel for the appellant. There can be no doubt that the order of the Government dated February 6, 1973 is undoubtedly based on the order passed by the Division Bench of the High Court. This is proved by a letter written by Mr. Vishnu Prakash Up. Sachiv (Deputy Secretary), U.P. Government, to the Manager of the appellant Mills. The relevant portion of the latter after being translated in English runs thus :"I am directed to say that their Lordships of the High Court in their Judgment in Special Appeal No. 1963/915 State v. Shri Shiban Lal Sexena (M/s. Mahabir Jute Mills Sabjanwa) have ordered that the Government after taking the dissenting reports from both the parties should consider on the question whether the aforesaid dispute should be referred for adjudication.Therefore you are requested that within 10 days from the date of the receipt of this letter to send your dissenting report and whatever further you want to say on your behalf to the Government."A perusal of this letter clearly shows that the Government did not exercise its independent decision under S.4K of the U.P. Industrial Disputes Act but was guided mainly by the judgment of the High Court and the directions given in Special Appeal filed in the High Court. If the order of the High Court is quashed then it will undoubtedly materially affect the decisions of the Government in making a reference to the Industrial Tribunal. Had the Government made the reference uninfluenced by the High Courts directions the legal situation would have been different.The learned counsel for the respondent submitted that no prayer was made by the appellant for quashing the order of the Government for making a reference to the Industrial Tribunal. It was, however, not necessary for the appellant to make such a prayer because of the High Courts order is quashed, then any subsequent proceeding which comes into existence as a result of the High Courts order would fall to the ground as a logical corollary of our finding. The learned counsel for the respondents after due consideration submitted that he would have no objection if the Government order for making a reference is quashed provided the Governments discretion to make a fresh reference to the Industrial Tribunal on the dispute is not fettered. We would, however, like to make it clear that the Government has sample discretion to make a reference to the Industrial Tribunal under S.4K of the U.P. Industrial Disputes Act if it so thinks fit. This Court in Western India Match Company Ltd. v. Western India Match Co., Workers Union and others, [1973-II L.L.J. 403]; clearly held that even if a reference was refused by the Government that will not debar the Government from making a reference at a later time if it is satisfied that in the changed circumstances a reference is necessary.
### Response:
1
### Explanation:
Bench has set aside the Government order in refusing to refer the matter to the Industrial Tribunal is not legally sound and cannot beis no provision in the notification or in the U.P. Industrial Disputes Act which enjoins that the report submitted by the Chairman or any other members should be shown to one another. This also does not appear to be necessary. The High Court seems to think that because the Chairman did not show his secret report to the other members of the Board, this has resulted in the violation of the principles of natural justice. We are, however, unable to agree with this line of reasoning. The principles of natural justice are got doubt very essential but they have got their own limits and cannot be stretched toofacts in Kraipaks case are quite different from the facts in the present case. In Kraipaks case the main grievance of the petitioner was that in the Selection Board which was constituted for recommending the promotion of the State Officers to the Indian Forest Service Cadre the Chief Conservator of Forests was also a member of the Board, although he himself was also a candidate for promotion to the Indian Forest Service Cadre. Thus what happened was that the Chief Conservator of Forests acted as a Judge in his own cause. This was undoubtedly a gross violation of the principles of natural justice because the very person who stood as a candidate also sat in the Selection Board which had to decide his own future as that of his rivals. Such is, however, not the case here. The Conciliation Board had completed its proceedings and the stage at which, according to the High Court, the rules of natural justice had to be applied was the stage of submitting the report. Full hearing was given to the parties concerned. Thus all the indicia of the principles of natural justice were present on the facts of the present case. In these circumstances we are satisfied that Kraipaks case (supra) could not be called into aid in support of the reasons given by the High Court. The procedure adopted in Kraipaks case was obviously so abhorrent to the notions of justice andthat rules of natural justice were at oncethe present case we have already pointed out that neither cl. (5) of the notification referred to above, nor S.3 of the U.P. Industrial Disputes Act contained any provisions which required that the members of the Conciliation Board were to show their reports to another. All that was required was that they should send their reports to the Government through the Labour Commissioner. This was undoubtedly done. We are, therefore, unable to see any infraction of the rules of natural justice in the presentour opinion this contention isand must prevail. Even if the High Court thought that the impugned order of the Government suffered from any legal infirmity all that it could have done was to have asked the Government to reconsider it but it had no jurisdiction to direct the Government how to act and how to exercise its statutory discretion which was conferred on it by S.4K of the U.P. Industrial Disputes Act. There was absolutely no warrant for the High Court in prohibiting the Government from considering the secret report of the Additional Regional Conciliation Officer or that of the Labour Commissioner. The Government was fully entitled to consider the matter in its comprehensive aspects and the secret report of the Chairman of the Conciliation Board or that of the Labour Commissioner were undoubtedly relevant materials which the Government could have considered. The High Court could not debar the Government from considering those matters nor could it compel the Government to exercise its discretion in a particular manner. In these circumstances we are satisfied that the order of the High Court is not legally sustainable and must befind ourselves in agreement with the learned counsel for the appellant. There can be no doubt that the order of the Government dated February 6, 1973 is undoubtedly based on the order passed by the Division Bench of the High Court. This is proved by a letter written by Mr. Vishnu Prakash Up. Sachiv (Deputy Secretary), U.P. Government, to the Manager of the appellant Mills. The relevant portion of the latter after being translated in English runs thus :"I am directed to say that their Lordships of the High Court in their Judgment in Special Appeal No. 1963/915 State v. Shri Shiban Lal Sexena (M/s. Mahabir Jute Mills Sabjanwa) have ordered that the Government after taking the dissenting reports from both the parties should consider on the question whether the aforesaid dispute should be referred for adjudication.Therefore you are requested that within 10 days from the date of the receipt of this letter to send your dissenting report and whatever further you want to say on your behalf to the Government."A perusal of this letter clearly shows that the Government did not exercise its independent decision under S.4K of the U.P. Industrial Disputes Act but was guided mainly by the judgment of the High Court and the directions given in Special Appeal filed in the High Court. If the order of the High Court is quashed then it will undoubtedly materially affect the decisions of the Government in making a reference to the Industrial Tribunal. Had the Government made the reference uninfluenced by the High Courts directions the legal situation would have been different.We would, however, like to make it clear that the Government has sample discretion to make a reference to the Industrial Tribunal under S.4K of the U.P. Industrial Disputes Act if it so thinks fit. This Court in Western India Match Company Ltd. v. Western India Match Co., Workers Union and others,L.L.J. 403]; clearly held that even if a reference was refused by the Government that will not debar the Government from making a reference at a later time if it is satisfied that in the changed circumstances a reference is necessary.
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Collector Of Customs. Calcutta Vs. M. Shashikant And Co
|
exporters who were granted additional Licences under the Import Policy 1978-79 and had opened and established irrevocable letters of Credit before October 18, 1985 should be permitted, notwithstanding the construction we have placed on the order dated April 18, 1985 of this Court, t o clear the goods imported, or to be imported, by them pursuant to such irrevocable Letters of Credit. In other words, all imports effected perusant to such Letters of Credit should be deemed to have been legally and properly made, and should entail no adverse consequences whatsoever .........At the same time we make it clear that diamond exporters who pursuant to the issue of Additional Licences under the Import Policy 1978- 79 have opened and established irrevocable Letters of Credit on or after October 18, 1985 will not be entitled to the benefit of this order." 10. The respondent in this case entered into contract with the foreign exporter on May 5, 1986 much after October 18, 1985 and as such is not entitled to relief under the above judgment. 11. The order dated April 18, 1985 (Rajnikant case) and also the judgment dated March 3, 1986 in Raj Prak ashs case were considered by this Court in Indo-Afghan Chambers of Commerce &Anr. v. Union of India &Ors. etc. 1986 (3) SCR 88. Pathak, J. (as he then was) speaking for the Court summed up the legal position as under: "only such items could be imported by diamond exporters under the Additional granted to them as could have been imported under the Import Policy 1978-79, the period during which the diamond exporters had applied for Export House Certificates and had been wrongfully refused, and were also importable under the Import Policy prevailing at the time of import, which in the present case is the Import Policy 1985-88. These were the items which had not been "specifically banned" under the prevalent Import Policy. The items had to pass through two tests. They should have been importable under the Import Policy 1978-79. They should also have been importable under the Import Policy 1985-88 in terms of the order dated April 18, 1985..........In our opinion the r espondents diamond exporters are not entitled to import dry fruits under the Import Policy 1985-88 under the Additional Licences possessed by them. They are also not entitled to the benefit extended by the judgment of this Court dated March 5, 1986 to those diamond exporters who had imported items under irrevocable Letters of Credit opened and established before October 18, 1985. It appears from the record before us that the respondents diamond exporters opened and established the irrevocable Letters of Credit after that date." * 12. In Union of India v. M/S Godrej Soaps Pvt. Ltd. 1986 (3) SCR 771 decided on September 12, 1986 this Court finally considered the judgments in Raj Prakash and Afghan Chambers cases and approved the ratio therein in the following words: "In respect of Palm Kernel Fatty Acid which is a canalised item listed as item 9 (v) in Appendix V Part B of the Import Policy 1985-88, there is no provision in that policy which permits the import of such item by an Export House holding an Additional licence. Therefore, the claim o f the diamond exporters, or, as in this case a purchaser from the diamond exporter, must fail because it is not open to import by the diamond exporter, under any provision of the Import Policy 1985- 88......In this case no injustice would be done by this order. The goods were purchased by the present petitioners only on 27th June, 1986 after they were aware of the judgment of this Court in Raj Prakashs case (supra) as well as Indo-Afghan Chambers of Commerces case (supra). No question of any restitution of rights arises." * 13. There was no ambiguity in the order dated April 18, 1985 (Rajnikants case). Assuming it needed clarification, the same was done by this Court on March 5, 1986 in Raj Prakashs case. The respondent entered into contract for the import of the item on May 5, 1986 much after the judgment in Raj P rakash case. We are of the view that the Tribunal fell into grave error in accepting the plea of bona fide raised by the respondent and setting aside the order of Collector. The opinions expressed by the officers in interdepartmental communications is of no consequence. In the face of clear and unambiguous judgments of this Court it was not open for the department authorities to entertain a contrary opinion. 14 It is no doubt correct that the facts in B Vijay Kumars case relied upon by the Tribunal are somewhat similar to the facts in this case. This Court decided Vijay Kumars case on the special facts and circumstances of the said case. This Court while deciding Vijay Kumars case observed as under: "We do not consider it necessary to deal with these submissions in detail as we are of the opinion that in view of the special facts and circumstances of the case specially having regard to the findings of the Tribunal that the appellants imported the canalised items of goods bonafide under the additional import licence granted to them in pursuance of the express conditions contained in t e orders of this Court, which finding has not been challenged before us rather the Additional Solicitor General has fairly conceded the correctness of the findings of the Tribunal relating to the bonafide of the appellants in importing the disputed goods, we are of the view that the Collector and the Tribunal both were not justified in confiscating the goods or in imposing redemption fine..........We would like to emphasise that since we have decided the matter in view of the special facts and circumstances available in these cases this order will not be treated as a precedent." * 15. Even otherwise, in view of the judgments of this Court discussed above, we hold that B Vijay Kumars case does not lay-down correct law. 16.
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1[ds]There is no ambiguity in the order which makes it clear that the additional licence holders would not be entitled to import the items which are specifically banned under the import policy 1985-88. No other interpretation is possible. Some of the Departmental officers were not justified in taking the view that the order permitted the import of canalised itemsThere was no ambiguity in the order dated April 18, 1985 (Rajnikants case). Assuming it needed clarification, the same was done by this Court on March 5, 1986 in Raj Prakashs case. The respondent entered into contract for the import of the item on May 5, 1986 much after the judgment in Raj P rakash case. We are of the view that the Tribunal fell into grave error in accepting the plea of bona fide raised by the respondent and setting aside the order of Collector. The opinions expressed by the officers in interdepartmental communications is of no consequence. In the face of clear and unambiguous judgments of this Court it was not open for the department authorities to entertain a contrary opinionIt is no doubt correct that the facts in B Vijay Kumars case relied upon by the Tribunal are somewhat similar to the facts in this case. This Court decided Vijay Kumars case on the special facts and circumstances of the said case. This Court while deciding Vijay Kumars case observed as under:"We do not consider it necessary to deal with these submissions in detail as we are of the opinion that in view of the special facts and circumstances of the case specially having regard to the findings of the Tribunal that the appellants imported the canalised items of goods bonafide under the additional import licence granted to them in pursuance of the express conditions contained in t e orders of this Court, which finding has not been challenged before us rather the Additional Solicitor General has fairly conceded the correctness of the findings of the Tribunal relating to the bonafide of the appellants in importing the disputed goods, we are of the view that the Collector and the Tribunal both were not justified in confiscating the goods or in imposing redemption fine..........We would like to emphasise that since we have decided the matter in view of the special facts and circumstances available in these cases this order will not be treated as a precedent." *Even otherwise, in view of the judgments of this Court discussed above, we hold that B Vijay Kumars case does not lay-down correct law.
| 1 | 2,556 | 452 |
### 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:
exporters who were granted additional Licences under the Import Policy 1978-79 and had opened and established irrevocable letters of Credit before October 18, 1985 should be permitted, notwithstanding the construction we have placed on the order dated April 18, 1985 of this Court, t o clear the goods imported, or to be imported, by them pursuant to such irrevocable Letters of Credit. In other words, all imports effected perusant to such Letters of Credit should be deemed to have been legally and properly made, and should entail no adverse consequences whatsoever .........At the same time we make it clear that diamond exporters who pursuant to the issue of Additional Licences under the Import Policy 1978- 79 have opened and established irrevocable Letters of Credit on or after October 18, 1985 will not be entitled to the benefit of this order." 10. The respondent in this case entered into contract with the foreign exporter on May 5, 1986 much after October 18, 1985 and as such is not entitled to relief under the above judgment. 11. The order dated April 18, 1985 (Rajnikant case) and also the judgment dated March 3, 1986 in Raj Prak ashs case were considered by this Court in Indo-Afghan Chambers of Commerce &Anr. v. Union of India &Ors. etc. 1986 (3) SCR 88. Pathak, J. (as he then was) speaking for the Court summed up the legal position as under: "only such items could be imported by diamond exporters under the Additional granted to them as could have been imported under the Import Policy 1978-79, the period during which the diamond exporters had applied for Export House Certificates and had been wrongfully refused, and were also importable under the Import Policy prevailing at the time of import, which in the present case is the Import Policy 1985-88. These were the items which had not been "specifically banned" under the prevalent Import Policy. The items had to pass through two tests. They should have been importable under the Import Policy 1978-79. They should also have been importable under the Import Policy 1985-88 in terms of the order dated April 18, 1985..........In our opinion the r espondents diamond exporters are not entitled to import dry fruits under the Import Policy 1985-88 under the Additional Licences possessed by them. They are also not entitled to the benefit extended by the judgment of this Court dated March 5, 1986 to those diamond exporters who had imported items under irrevocable Letters of Credit opened and established before October 18, 1985. It appears from the record before us that the respondents diamond exporters opened and established the irrevocable Letters of Credit after that date." * 12. In Union of India v. M/S Godrej Soaps Pvt. Ltd. 1986 (3) SCR 771 decided on September 12, 1986 this Court finally considered the judgments in Raj Prakash and Afghan Chambers cases and approved the ratio therein in the following words: "In respect of Palm Kernel Fatty Acid which is a canalised item listed as item 9 (v) in Appendix V Part B of the Import Policy 1985-88, there is no provision in that policy which permits the import of such item by an Export House holding an Additional licence. Therefore, the claim o f the diamond exporters, or, as in this case a purchaser from the diamond exporter, must fail because it is not open to import by the diamond exporter, under any provision of the Import Policy 1985- 88......In this case no injustice would be done by this order. The goods were purchased by the present petitioners only on 27th June, 1986 after they were aware of the judgment of this Court in Raj Prakashs case (supra) as well as Indo-Afghan Chambers of Commerces case (supra). No question of any restitution of rights arises." * 13. There was no ambiguity in the order dated April 18, 1985 (Rajnikants case). Assuming it needed clarification, the same was done by this Court on March 5, 1986 in Raj Prakashs case. The respondent entered into contract for the import of the item on May 5, 1986 much after the judgment in Raj P rakash case. We are of the view that the Tribunal fell into grave error in accepting the plea of bona fide raised by the respondent and setting aside the order of Collector. The opinions expressed by the officers in interdepartmental communications is of no consequence. In the face of clear and unambiguous judgments of this Court it was not open for the department authorities to entertain a contrary opinion. 14 It is no doubt correct that the facts in B Vijay Kumars case relied upon by the Tribunal are somewhat similar to the facts in this case. This Court decided Vijay Kumars case on the special facts and circumstances of the said case. This Court while deciding Vijay Kumars case observed as under: "We do not consider it necessary to deal with these submissions in detail as we are of the opinion that in view of the special facts and circumstances of the case specially having regard to the findings of the Tribunal that the appellants imported the canalised items of goods bonafide under the additional import licence granted to them in pursuance of the express conditions contained in t e orders of this Court, which finding has not been challenged before us rather the Additional Solicitor General has fairly conceded the correctness of the findings of the Tribunal relating to the bonafide of the appellants in importing the disputed goods, we are of the view that the Collector and the Tribunal both were not justified in confiscating the goods or in imposing redemption fine..........We would like to emphasise that since we have decided the matter in view of the special facts and circumstances available in these cases this order will not be treated as a precedent." * 15. Even otherwise, in view of the judgments of this Court discussed above, we hold that B Vijay Kumars case does not lay-down correct law. 16.
### Response:
1
### Explanation:
There is no ambiguity in the order which makes it clear that the additional licence holders would not be entitled to import the items which are specifically banned under the import policy 1985-88. No other interpretation is possible. Some of the Departmental officers were not justified in taking the view that the order permitted the import of canalised itemsThere was no ambiguity in the order dated April 18, 1985 (Rajnikants case). Assuming it needed clarification, the same was done by this Court on March 5, 1986 in Raj Prakashs case. The respondent entered into contract for the import of the item on May 5, 1986 much after the judgment in Raj P rakash case. We are of the view that the Tribunal fell into grave error in accepting the plea of bona fide raised by the respondent and setting aside the order of Collector. The opinions expressed by the officers in interdepartmental communications is of no consequence. In the face of clear and unambiguous judgments of this Court it was not open for the department authorities to entertain a contrary opinionIt is no doubt correct that the facts in B Vijay Kumars case relied upon by the Tribunal are somewhat similar to the facts in this case. This Court decided Vijay Kumars case on the special facts and circumstances of the said case. This Court while deciding Vijay Kumars case observed as under:"We do not consider it necessary to deal with these submissions in detail as we are of the opinion that in view of the special facts and circumstances of the case specially having regard to the findings of the Tribunal that the appellants imported the canalised items of goods bonafide under the additional import licence granted to them in pursuance of the express conditions contained in t e orders of this Court, which finding has not been challenged before us rather the Additional Solicitor General has fairly conceded the correctness of the findings of the Tribunal relating to the bonafide of the appellants in importing the disputed goods, we are of the view that the Collector and the Tribunal both were not justified in confiscating the goods or in imposing redemption fine..........We would like to emphasise that since we have decided the matter in view of the special facts and circumstances available in these cases this order will not be treated as a precedent." *Even otherwise, in view of the judgments of this Court discussed above, we hold that B Vijay Kumars case does not lay-down correct law.
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Income Tax Appellate Tribunal, Hyderabad Special Bench, Hyderabad Vs. Dy. Commissioner of Income Tax III, Hyderabad, A.P. and Ors
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constitute a Special Bench of course on appropriate and germane grounds. It is, however, true that the President in exercise of its administrative powers under Section 255(3) cannot just constitute a Special Bench without any rhyme or reason. Such an administrative exercise can be demonstrated to be unreasonable, capricious or mala fide on a given set of facts. But in our view present case was not of that type. There was a conflict of opinion between two Benches of the Tribunal, namely, Madras and Hyderabad Bench. It is, however, true that Madras Bench decision was by a single member while the Hyderabad Bench decision was by a Division Bench. Still it could not be said that there was no conflict of decisions between two benches of the Tribunal. That itself constituted a rational and valid ground for the President to act in exercise of his administrative powers to constitute a Special Bench if he though it fit to do so. Such an exercise on the facts of the present case cannot be styled as an arbitrary or whimsical or fanciful one as wrongly and uncharitably assumed by the Division Bench of the High Court. 17. It is now time for us to deal with one apparent inconsistency underlying the order of the President of the Tribunal, constituting the Special Bench, which was highlighted by ld. Counsel for respondent-Revenue. As noted earlier the President of the Tribunal does not seem to have acted suo motu simply relying upon the recommendations of the Income Tax Bar Association, Hyderabad for constituting a Special Bench for deciding the controversy in issue. He seems to have obtained opinion of senior members of the Tribunal and in the light of their recommendations contained in the communication dated 25.9.1992 the Special Bench was constituted for hearing the appeals of the present three respondents. It is also true that the members had recommended placing before the Special Bench four listed matters which did not include the appeals of these present three respondents. Thus the order constituting Special Bench appeared to be inconsistent with the recommendations of the members of the Tribunal. In this connection further details as noted earlier were sought for from the Appellate Tribunal by our order dated 1st December, 1995. It is in the light of what the Tribunal has stated in response to our order dated 1st December, 1995 that we now proceed to deal with this aspect of the matter. 18. Pursuant to our order dated 1.12.1995, an affidavit has been filed by Shri Kishan Rao, Asstt. Registrar, who worked as Asstt. Registrar, Income Tax Appellate Tribunal Bench at Hyderabad at the relevant time. In the said affidavit, he has clarified that on receipt of letter dated 28.7.1992 addressed by the President of Income Tax Tribunal to Shri T. V. Rajagopala Rao, Member, Tribunal, Bench at Hyderabad, the ld. Member Shri Rajagopala Rao, by his letter dated 25.9.1992 addressed to then President of the Tribunal Shri G. Krishnamurthy, stated that after verifying the files, he felt the justness of the demand made by the Bar and that he discussed the matter with the ld. Brother Member Shri G. Krishnamurthy and formulated the questions referable to the Full Bench, that it was true that in the said letter of reference four matters were mentioned but it is further pointed out that on receipt of the said letter a circular was issued by the Tribunal to all other 18 Benches of the Tribunal intimating that the Special Bench of Income Tax Appellate Tribunal, Hyderabad Bench-A was being constituted to consider the questions which were mentioned in the circular. A copy of the circular is annexed to the affidavit as Annexure-V. This circular shows that all the four matters which were sought to be referred to the Special Bench by reference letter of 25.9.1992 by two Members of the Tribunal were sought to be placed before the Special Bench. In addition thereto is found at serial No. 6 Income Tax Appeal No. 1845/Hyd/90 which is one of the matters in the present proceedings which was disposed of by the Special Bench. It is thereafter that nine cases in which common question of construction of Section 115-J read with Section 143(1)(a) of the Income tax Act was involved were placed before the Special Bench. The cause list of cases posted for hearing before the Special Bench at Hyderabad is annexed as Annexure-VI to the affidavit. It shows that the matters pertaining to the present proceedings were placed for hearing before the Special Bench along with four matters which have been mentioned in the reference letter dated 25.9.1992 of the two Members of the Tribunal, namely, Shri T. V. Rajagopala Rao and Shri Chander Singh. It is further clarified in the affidavit that arguments were concluded in all these appeals on 5.1.1993 and judgment was reserved in four cases to which reference was made. However, at the conclusion of the arguments, the ld. Counsel in those four cases submitted that there were some additional issues which were not specifically covered by the questions which came up for decision before the Special Bench and hence they requested that those appeals be released from Special Bench, and as the Full Bench felt that it was not necessary for them to go into other points and once the main questions referred to in the matters were decided, the said judgment will abide the other cases also, the said four cases were released by the Special Bench to be heard by the Division Bench after the judgment Surana Steels case and others. 19. In view of the aforesaid affidavit based on the relevant events which transpired prior to the constitution of the Special Bench, and in the light of the relevant documentary evidence produced in support of the affidavit, we have no doubt that the ld. President in bona fide exercise of his administrative power constituted the Special Bench for deciding the Income Tax Appeals with which the present proceedings are concerned.
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1[ds]12. So far as this point is concerned the High Court in the impugned judgment at page 31 has noted that it was true that the matter was adjourned at the instance of the Departmental Representative from time to time on 11 occasions from 28.10.1992 upto 4.1.1993. However, on 4.1.1993 when the matter was posted for hearing before the Special Bench Shri H. Srinivasulu who was appointed as designated officer to argue the matter before the Special Bench fell sickOn these facts the High Court took the view that the Tribunal was not justified in not adjourning the matter and in insisting to hear the matter. Now we may state at this stage that even though on merits the Revenue lost before the Special Bench of the Income Tax Appellate Tribunal the High Court in Writ Petitions heard the Department fully on the merits of the question, namely, the construction of SectionJ of the Income Tax Act and held in favour of the Revenue and against the assessees. Thus the Revenue had not only full opportunity to put forward its case before the High Court in the Writ Petitions but had succeeded therein. Under the circumstances the question of violation of principles of natural justice by the Tribunal pales into insignificance and, therefore, we do not deem it fit to pronounce upon that question finally. We have already noted that the decision of the Division Bench of the High Court on the merits of the controversy centering round the construction of SectionJ of the Income Tax Act is already pending scrutiny of this Court in the delinked special leave petitions moved by the assessees and this Court is going to decide that question on meritsIt is no doubt true that the matter was adjourned on 11 occasions earlier, it is also true that when a senior counsel is not available to argue an adjourned matter for which a Special Bench is constituted at Hyderabad where the President had to come from Delhi and the other member had to come from Bombay, the Revenue should have taken all care to see that some alternative arrangement was made so that the matter may not get unduly prolonged and indefinitely adjourned and that in such situations the Special Bench of the Tribunal could have legitimately required the Revenue to make alternative arrangement for getting the matter argued. But for that purpose a short adjournment of a day or two could have been granted when the Departmental Representative who was incharge of the matter was admitted to a nursing home. In any case written submissions could have been taken on record and considered by the Tribunal instead of totally brushing them aside. However, as noted earlier as ultimately the Revenue has not suffered till date and its viewpoint has been accepted by the High Court on the construction of SectionJ of the Income Tax Act we do not dilate on this question any further. That disposes of the first point.Point No. 213. So far as this point is concerned it is necessary to have a look at the relevant facts as emerging on the record of the case which resulted in the constitution of the Special Bench by the President of the Appellate TribunalThe High Court has taken the view that the President has to exercise his discretion judiciously and judicially and it may not be exercised at whims and fancies of the President15. In our view the aforesaid decision of the High Court to the effect that the President of the Income Tax Appellate Tribunal cannot constitute a Special Bench save and except under a judicial order cannot be sustained on the scheme of the Act and the relevant regulations. The reasons are obviousIt is obvious that the President in this connection may even act suo motu if it is brought to his notice that any important point is pending for decision in a matter which requires to be decided by a larger bench. If the President acting on such information and in bona fide exercise of his powers constitutes a larger bench or a Special Bench for deciding a matter it cannot be said that he acts ultra vires his powers or functions entrusted to him by the legislature under Section 255(1) read with Section 255(3) of the Income Tax Act. Consequently, the Division Bench of the High Court with respect was in error when it took the view that a Special Bench can be constituted by the President only pursuant to a judicial order and not in exercise of his administrative powersIt is, however, true that the President in exercise of its administrative powers under Section 255(3) cannot just constitute a Special Bench without any rhyme or reason. Such an administrative exercise can be demonstrated to be unreasonable, capricious or mala fide on a given set of facts. But in our view present case was not of that type. There was a conflict of opinion between two Benches of the Tribunal, namely, Madras and Hyderabad Bench. It is, however, true that Madras Bench decision was by a single member while the Hyderabad Bench decision was by a Division Bench. Still it could not be said that there was no conflict of decisions between two benches of the Tribunal. That itself constituted a rational and valid ground for the President to act in exercise of his administrative powers to constitute a Special Bench if he though it fit to do so. Such an exercise on the facts of the present case cannot be styled as an arbitrary or whimsical or fanciful one as wrongly and uncharitably assumed by the Division Bench of the High CourtIt is also true that the members had recommended placing before the Special Bench four listed matters which did not include the appeals of these present three respondents. Thus the order constituting Special Bench appeared to be inconsistent with the recommendations of the members of the Tribunal. In this connection further details as noted earlier were sought for from the Appellate Tribunal by our order dated 1st December, 1995. It is in the light of what the Tribunal has stated in response to our order dated 1st December, 1995 that we now proceed to deal with this aspect of the matterIt shows that the matters pertaining to the present proceedings were placed for hearing before the Special Bench along with four matters which have been mentioned in the reference letter dated 25.9.1992 of the two Members of the Tribunal, namely, Shri T. V. Rajagopala Rao and Shri Chander Singh. It is further clarified in the affidavit that arguments were concluded in all these appeals on 5.1.1993 and judgment was reserved in four cases to which reference was made. However, at the conclusion of the arguments, the ld. Counsel in those four cases submitted that there were some additional issues which were not specifically covered by the questions which came up for decision before the Special Bench and hence they requested that those appeals be released from Special Bench, and as the Full Bench felt that it was not necessary for them to go into other points and once the main questions referred to in the matters were decided, the said judgment will abide the other cases also, the said four cases were released by the Special Bench to be heard by the Division Bench after the judgment Surana Steels case and others19. In view of the aforesaid affidavit based on the relevant events which transpired prior to the constitution of the Special Bench, and in the light of the relevant documentary evidence produced in support of the affidavit, we have no doubt that the ld. President in bona fide exercise of his administrative power constituted the Special Bench for deciding the Income Tax Appeals with which the present proceedings are concerned.
| 1 | 7,032 | 1,380 |
### 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:
constitute a Special Bench of course on appropriate and germane grounds. It is, however, true that the President in exercise of its administrative powers under Section 255(3) cannot just constitute a Special Bench without any rhyme or reason. Such an administrative exercise can be demonstrated to be unreasonable, capricious or mala fide on a given set of facts. But in our view present case was not of that type. There was a conflict of opinion between two Benches of the Tribunal, namely, Madras and Hyderabad Bench. It is, however, true that Madras Bench decision was by a single member while the Hyderabad Bench decision was by a Division Bench. Still it could not be said that there was no conflict of decisions between two benches of the Tribunal. That itself constituted a rational and valid ground for the President to act in exercise of his administrative powers to constitute a Special Bench if he though it fit to do so. Such an exercise on the facts of the present case cannot be styled as an arbitrary or whimsical or fanciful one as wrongly and uncharitably assumed by the Division Bench of the High Court. 17. It is now time for us to deal with one apparent inconsistency underlying the order of the President of the Tribunal, constituting the Special Bench, which was highlighted by ld. Counsel for respondent-Revenue. As noted earlier the President of the Tribunal does not seem to have acted suo motu simply relying upon the recommendations of the Income Tax Bar Association, Hyderabad for constituting a Special Bench for deciding the controversy in issue. He seems to have obtained opinion of senior members of the Tribunal and in the light of their recommendations contained in the communication dated 25.9.1992 the Special Bench was constituted for hearing the appeals of the present three respondents. It is also true that the members had recommended placing before the Special Bench four listed matters which did not include the appeals of these present three respondents. Thus the order constituting Special Bench appeared to be inconsistent with the recommendations of the members of the Tribunal. In this connection further details as noted earlier were sought for from the Appellate Tribunal by our order dated 1st December, 1995. It is in the light of what the Tribunal has stated in response to our order dated 1st December, 1995 that we now proceed to deal with this aspect of the matter. 18. Pursuant to our order dated 1.12.1995, an affidavit has been filed by Shri Kishan Rao, Asstt. Registrar, who worked as Asstt. Registrar, Income Tax Appellate Tribunal Bench at Hyderabad at the relevant time. In the said affidavit, he has clarified that on receipt of letter dated 28.7.1992 addressed by the President of Income Tax Tribunal to Shri T. V. Rajagopala Rao, Member, Tribunal, Bench at Hyderabad, the ld. Member Shri Rajagopala Rao, by his letter dated 25.9.1992 addressed to then President of the Tribunal Shri G. Krishnamurthy, stated that after verifying the files, he felt the justness of the demand made by the Bar and that he discussed the matter with the ld. Brother Member Shri G. Krishnamurthy and formulated the questions referable to the Full Bench, that it was true that in the said letter of reference four matters were mentioned but it is further pointed out that on receipt of the said letter a circular was issued by the Tribunal to all other 18 Benches of the Tribunal intimating that the Special Bench of Income Tax Appellate Tribunal, Hyderabad Bench-A was being constituted to consider the questions which were mentioned in the circular. A copy of the circular is annexed to the affidavit as Annexure-V. This circular shows that all the four matters which were sought to be referred to the Special Bench by reference letter of 25.9.1992 by two Members of the Tribunal were sought to be placed before the Special Bench. In addition thereto is found at serial No. 6 Income Tax Appeal No. 1845/Hyd/90 which is one of the matters in the present proceedings which was disposed of by the Special Bench. It is thereafter that nine cases in which common question of construction of Section 115-J read with Section 143(1)(a) of the Income tax Act was involved were placed before the Special Bench. The cause list of cases posted for hearing before the Special Bench at Hyderabad is annexed as Annexure-VI to the affidavit. It shows that the matters pertaining to the present proceedings were placed for hearing before the Special Bench along with four matters which have been mentioned in the reference letter dated 25.9.1992 of the two Members of the Tribunal, namely, Shri T. V. Rajagopala Rao and Shri Chander Singh. It is further clarified in the affidavit that arguments were concluded in all these appeals on 5.1.1993 and judgment was reserved in four cases to which reference was made. However, at the conclusion of the arguments, the ld. Counsel in those four cases submitted that there were some additional issues which were not specifically covered by the questions which came up for decision before the Special Bench and hence they requested that those appeals be released from Special Bench, and as the Full Bench felt that it was not necessary for them to go into other points and once the main questions referred to in the matters were decided, the said judgment will abide the other cases also, the said four cases were released by the Special Bench to be heard by the Division Bench after the judgment Surana Steels case and others. 19. In view of the aforesaid affidavit based on the relevant events which transpired prior to the constitution of the Special Bench, and in the light of the relevant documentary evidence produced in support of the affidavit, we have no doubt that the ld. President in bona fide exercise of his administrative power constituted the Special Bench for deciding the Income Tax Appeals with which the present proceedings are concerned.
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### Explanation:
when a senior counsel is not available to argue an adjourned matter for which a Special Bench is constituted at Hyderabad where the President had to come from Delhi and the other member had to come from Bombay, the Revenue should have taken all care to see that some alternative arrangement was made so that the matter may not get unduly prolonged and indefinitely adjourned and that in such situations the Special Bench of the Tribunal could have legitimately required the Revenue to make alternative arrangement for getting the matter argued. But for that purpose a short adjournment of a day or two could have been granted when the Departmental Representative who was incharge of the matter was admitted to a nursing home. In any case written submissions could have been taken on record and considered by the Tribunal instead of totally brushing them aside. However, as noted earlier as ultimately the Revenue has not suffered till date and its viewpoint has been accepted by the High Court on the construction of SectionJ of the Income Tax Act we do not dilate on this question any further. That disposes of the first point.Point No. 213. So far as this point is concerned it is necessary to have a look at the relevant facts as emerging on the record of the case which resulted in the constitution of the Special Bench by the President of the Appellate TribunalThe High Court has taken the view that the President has to exercise his discretion judiciously and judicially and it may not be exercised at whims and fancies of the President15. In our view the aforesaid decision of the High Court to the effect that the President of the Income Tax Appellate Tribunal cannot constitute a Special Bench save and except under a judicial order cannot be sustained on the scheme of the Act and the relevant regulations. The reasons are obviousIt is obvious that the President in this connection may even act suo motu if it is brought to his notice that any important point is pending for decision in a matter which requires to be decided by a larger bench. If the President acting on such information and in bona fide exercise of his powers constitutes a larger bench or a Special Bench for deciding a matter it cannot be said that he acts ultra vires his powers or functions entrusted to him by the legislature under Section 255(1) read with Section 255(3) of the Income Tax Act. Consequently, the Division Bench of the High Court with respect was in error when it took the view that a Special Bench can be constituted by the President only pursuant to a judicial order and not in exercise of his administrative powersIt is, however, true that the President in exercise of its administrative powers under Section 255(3) cannot just constitute a Special Bench without any rhyme or reason. Such an administrative exercise can be demonstrated to be unreasonable, capricious or mala fide on a given set of facts. But in our view present case was not of that type. There was a conflict of opinion between two Benches of the Tribunal, namely, Madras and Hyderabad Bench. It is, however, true that Madras Bench decision was by a single member while the Hyderabad Bench decision was by a Division Bench. Still it could not be said that there was no conflict of decisions between two benches of the Tribunal. That itself constituted a rational and valid ground for the President to act in exercise of his administrative powers to constitute a Special Bench if he though it fit to do so. Such an exercise on the facts of the present case cannot be styled as an arbitrary or whimsical or fanciful one as wrongly and uncharitably assumed by the Division Bench of the High CourtIt is also true that the members had recommended placing before the Special Bench four listed matters which did not include the appeals of these present three respondents. Thus the order constituting Special Bench appeared to be inconsistent with the recommendations of the members of the Tribunal. In this connection further details as noted earlier were sought for from the Appellate Tribunal by our order dated 1st December, 1995. It is in the light of what the Tribunal has stated in response to our order dated 1st December, 1995 that we now proceed to deal with this aspect of the matterIt shows that the matters pertaining to the present proceedings were placed for hearing before the Special Bench along with four matters which have been mentioned in the reference letter dated 25.9.1992 of the two Members of the Tribunal, namely, Shri T. V. Rajagopala Rao and Shri Chander Singh. It is further clarified in the affidavit that arguments were concluded in all these appeals on 5.1.1993 and judgment was reserved in four cases to which reference was made. However, at the conclusion of the arguments, the ld. Counsel in those four cases submitted that there were some additional issues which were not specifically covered by the questions which came up for decision before the Special Bench and hence they requested that those appeals be released from Special Bench, and as the Full Bench felt that it was not necessary for them to go into other points and once the main questions referred to in the matters were decided, the said judgment will abide the other cases also, the said four cases were released by the Special Bench to be heard by the Division Bench after the judgment Surana Steels case and others19. In view of the aforesaid affidavit based on the relevant events which transpired prior to the constitution of the Special Bench, and in the light of the relevant documentary evidence produced in support of the affidavit, we have no doubt that the ld. President in bona fide exercise of his administrative power constituted the Special Bench for deciding the Income Tax Appeals with which the present proceedings are concerned.
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State Of U.P Vs. M/S Combined Chemicals Company Pvt.Ltd
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reasonable opportunity of hearing. 22.However, we find merit in the submission of learned Senior Counsel appearing for the appellants that the award of the Arbitrator was vitiated by an error apparent and reasons assigned by the trial Court and the High Court for refusing to annul the same are legally unsustainable. A reading of the award shows that after adverting to the claim made by the respondent and the proceedings held by him on various dates, the Arbitrator referred to the affidavit of Shri A.K. Saigal, Managing Director of the respondent and passed the award without assigning any reason whatsoever and without even recording a finding that the respondent had suffered loss/damages on account of the failure of appellant No.3 to place supply order in furtherance of the acceptance letter dated 16.11.1985. The casual manner in which the Arbitrator decided the dispute is evident from paragraph 10 of the Award, which is extracted below: “10. I have heard the learned Counsel for the claimant and the representatives of the opposite party No. 3 at length and carefully perused the records and I am of the certain opinion that the claimant is entitled to receive Rs. 23,56,500/- from the opposite party Nos. 1 and 2 which said amount also comprises of Rs. 12,300/- as cost of these proceedings details whereof are given hereunder:AWARDThe claim of the claimant is allowed to the extent of Rs. 23,44,200/- with interest thereon at the rate of 6% per annum with effect from the date of this award till the date of payment or the decree which is earlier.The claimant is also awarded Rs. 12,300/- being the cost of this arbitration as per details given below:(a)Cost of non-judicial stamp for awardRs. 6,500/-(b)Arbitration fee paid by the claimantRs. 2,800/-(c)Typing and office expenses for arbitration paid by the claimantRs. 500/-(d)Cost awarded to the claimant on account of Counsel feeRs. 2,500/-TotalRs. 12,300/-” 23.In our view, the Arbitrator was duty bound to examine the tenability of the claim made by the respondent under different heads and decide the same by assigning some reasons, howsoever briefly. His failure to do so constituted a valid ground for setting aside the award and the trial Court committed a serious error by making the award Rule of the Court. Unfortunately, the High Court also overlooked this lacuna in the award and approved the judgment of the trial Court. In RaipurDevelopment Authority & Ors. v. M/s. Chokhamal Contractors & Ors., (1989) 2 SCC 721 ( this was a case under the Arbitration Act, 1940), a Constitution Bench of this Court considered the question whether the Arbitrator is required to give reasons and held as under: “.... We do appreciate the contention, urged on behalf of the parties who contend that it should be made obligatory on the part of the Arbitrator to give reasons for the award, that there is no justification to leave the small area covered by the law of arbitration out of the general rule that the decision of every judicial and quasi-judicial body should be supported by reasons. But at the same time it has to be borne in mind that what applies generally to settlement of disputes by authorities governed by public law need not be extended to all cases arising under private law such as those arising under the law of arbitration which is intended for settlement of private disputes.... The trappings of a body which discharges judicial functions and is required to act in accordance with law with their concomitant obligations for reasoned decisions, are not attracted to a private adjudication of the nature of arbitration as the latter, as we have noticed earlier, is not supposed to exert the State’s sovereign judicial power. But arbitral awards in disputes to which the State and its instrumentalities are parties affect public interest and the matter of the manner in which Government and its instrumentalities allow their interest to be affected by such arbitral adjudications involve larger questions of policy and public interest. Government and its instrumentalities cannot simply allow large financial interests of the State to be prejudicially affected by non-reviewable — except in the limited way allowed by the statute —non-speaking arbitral awards. Indeed, this branch of the system of dispute resolution has, of late, acquired a certain degree of notoriety by the manner in which in many cases the financial interests of Government have come to suffer by awards which have raised eyebrows by doubts as to their rectitude and propriety. It will not be justifiable for Governments or their instrumentalities to enter into arbitration agreements which do not expressly stipulate the rendering of reasoned and speaking awards. Governments and their instrumentalities should, as a matter of policy and public interest — if not as a compulsion of law — ensure that wherever they enter into agreements for resolution of disputes by resort to private arbitrations, the requirement of speaking awards is expressly stipulated and ensured.” The same view was reiterated in Tamil Nadu Electricity Board v. Bridge Tunnel Constructions, II (1997) CLT 149 (SC)=(1997) 4 SCC 121 , and Punjab SEB v. Punjab Pre-Stressed Concrete Works (supra). In the second judgment, the Court referred to some of the earlier judgments and observed: “After hearing Counsel on both sides, we are of the view that the award is liable to be set aside because when it is a non-speaking one, it is not known whether any part of the award made by the Arbitrator related to Claim I. In our view, the price of the poles was firm and not liable to be increased. The fact that the delivery schedule was changed cannot be a ground to get over the clause prohibiting increase in the price of the poles. Once Claim I is not tenable, the award has to be set aside inasmuch as it is not possible to say that the award did not relate to Claim I. This is a sufficient reason for setting aside the award and remitting the matter back to the Arbitrator.”
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1[ds]we find that the bid given by the respondent was unequivocally accepted by the competent authority and the letter of acceptance was issued for and on behalf of the Governor by treating it to be a contract. Thus, there was substantial compliance of Article 299 of the Constitution. The execution of formal agreement was optional and was not sine qua non for supply of the goods by the respondent. In our view, if the acceptance letter is read along with other documents in the light of the conduct of the parties, it becomes clear that an agreement was executed between the competent authority and thefind merit in the submission of learned Senior Counsel appearing for the appellants that the award of the Arbitrator was vitiated by an error apparent and reasons assigned by the trial Court and the High Court for refusing to annul the same are legally unsustainable. A reading of the award shows that after adverting to the claim made by the respondent and the proceedings held by him on various dates, the Arbitrator referred to the affidavit of Shri A.K. Saigal, Managing Director of the respondent and passed the award without assigning any reason whatsoever and without even recording a finding that the respondent had suffered loss/damages on account of the failure of appellant No.3 to place supply order in furtherance of the acceptance letter dated 16.11.1985. The casual manner in which the Arbitrator decided the dispute is evident from paragraph 10 of the Award, which is extractedI have heard the learned Counsel for the claimant and the representatives of the opposite party No. 3 at length and carefully perused the records and I am of the certain opinion that the claimant is entitled to receive Rs. 23,56,500/- from the opposite party Nos. 1 and 2 which said amount also comprises of Rs. 12,300/- as cost of these proceedings details whereof are given hereunder:AWARDThe claim of the claimant is allowed to the extent of Rs. 23,44,200/- with interest thereon at the rate of 6% per annum with effect from the date of this award till the date of payment or the decree which is earlier.The claimant is also awarded Rs. 12,300/- being the cost of this arbitration as per details given below:(a)Cost of non-judicial stamp for awardRs. 6,500/-(b)Arbitration fee paid by the claimantRs. 2,800/-(c)Typing and office expenses for arbitration paid by the claimantRs. 500/-(d)Cost awarded to the claimant on account of Counsel feeRs. 2,500/-TotalRs.our view, the Arbitrator was duty bound to examine the tenability of the claim made by the respondent under different heads and decide the same by assigning some reasons, howsoever briefly. His failure to do so constituted a valid ground for setting aside the award and the trial Court committed a serious error by making the award Rule of the Court. Unfortunately, the High Court also overlooked this lacuna in the award and approved the judgment of the trial Court. In RaipurDevelopment Authority & Ors. v. M/s. Chokhamal Contractors & Ors., (1989) 2 SCC 721 ( this was a case under the Arbitration Act, 1940), a Constitution Bench of this Court considered the question whether the Arbitrator is required to give reasons and held asWe do appreciate the contention, urged on behalf of the parties who contend that it should be made obligatory on the part of the Arbitrator to give reasons for the award, that there is no justification to leave the small area covered by the law of arbitration out of the general rule that the decision of every judicial and quasi-judicial body should be supported by reasons. But at the same time it has to be borne in mind that what applies generally to settlement of disputes by authorities governed by public law need not be extended to all cases arising under private law such as those arising under the law of arbitration which is intended for settlement of private disputes.... The trappings of a body which discharges judicial functions and is required to act in accordance with law with their concomitant obligations for reasoned decisions, are not attracted to a private adjudication of the nature of arbitration as the latter, as we have noticed earlier, is not supposed to exert thesovereign judicial power. But arbitral awards in disputes to which the State and its instrumentalities are parties affect public interest and the matter of the manner in which Government and its instrumentalities allow their interest to be affected by such arbitral adjudications involve larger questions of policy and public interest. Government and its instrumentalities cannot simply allow large financial interests of the State to be prejudicially affected by non-reviewable — except in the limited way allowed by the statute —non-speaking arbitral awards. Indeed, this branch of the system of dispute resolution has, of late, acquired a certain degree of notoriety by the manner in which in many cases the financial interests of Government have come to suffer by awards which have raised eyebrows by doubts as to their rectitude and propriety. It will not be justifiable for Governments or their instrumentalities to enter into arbitration agreements which do not expressly stipulate the rendering of reasoned and speaking awards. Governments and their instrumentalities should, as a matter of policy and public interest — if not as a compulsion of law — ensure that wherever they enter into agreements for resolution of disputes by resort to private arbitrations, the requirement of speaking awards is expressly stipulated and
| 1 | 7,569 | 983 |
### 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:
reasonable opportunity of hearing. 22.However, we find merit in the submission of learned Senior Counsel appearing for the appellants that the award of the Arbitrator was vitiated by an error apparent and reasons assigned by the trial Court and the High Court for refusing to annul the same are legally unsustainable. A reading of the award shows that after adverting to the claim made by the respondent and the proceedings held by him on various dates, the Arbitrator referred to the affidavit of Shri A.K. Saigal, Managing Director of the respondent and passed the award without assigning any reason whatsoever and without even recording a finding that the respondent had suffered loss/damages on account of the failure of appellant No.3 to place supply order in furtherance of the acceptance letter dated 16.11.1985. The casual manner in which the Arbitrator decided the dispute is evident from paragraph 10 of the Award, which is extracted below: “10. I have heard the learned Counsel for the claimant and the representatives of the opposite party No. 3 at length and carefully perused the records and I am of the certain opinion that the claimant is entitled to receive Rs. 23,56,500/- from the opposite party Nos. 1 and 2 which said amount also comprises of Rs. 12,300/- as cost of these proceedings details whereof are given hereunder:AWARDThe claim of the claimant is allowed to the extent of Rs. 23,44,200/- with interest thereon at the rate of 6% per annum with effect from the date of this award till the date of payment or the decree which is earlier.The claimant is also awarded Rs. 12,300/- being the cost of this arbitration as per details given below:(a)Cost of non-judicial stamp for awardRs. 6,500/-(b)Arbitration fee paid by the claimantRs. 2,800/-(c)Typing and office expenses for arbitration paid by the claimantRs. 500/-(d)Cost awarded to the claimant on account of Counsel feeRs. 2,500/-TotalRs. 12,300/-” 23.In our view, the Arbitrator was duty bound to examine the tenability of the claim made by the respondent under different heads and decide the same by assigning some reasons, howsoever briefly. His failure to do so constituted a valid ground for setting aside the award and the trial Court committed a serious error by making the award Rule of the Court. Unfortunately, the High Court also overlooked this lacuna in the award and approved the judgment of the trial Court. In RaipurDevelopment Authority & Ors. v. M/s. Chokhamal Contractors & Ors., (1989) 2 SCC 721 ( this was a case under the Arbitration Act, 1940), a Constitution Bench of this Court considered the question whether the Arbitrator is required to give reasons and held as under: “.... We do appreciate the contention, urged on behalf of the parties who contend that it should be made obligatory on the part of the Arbitrator to give reasons for the award, that there is no justification to leave the small area covered by the law of arbitration out of the general rule that the decision of every judicial and quasi-judicial body should be supported by reasons. But at the same time it has to be borne in mind that what applies generally to settlement of disputes by authorities governed by public law need not be extended to all cases arising under private law such as those arising under the law of arbitration which is intended for settlement of private disputes.... The trappings of a body which discharges judicial functions and is required to act in accordance with law with their concomitant obligations for reasoned decisions, are not attracted to a private adjudication of the nature of arbitration as the latter, as we have noticed earlier, is not supposed to exert the State’s sovereign judicial power. But arbitral awards in disputes to which the State and its instrumentalities are parties affect public interest and the matter of the manner in which Government and its instrumentalities allow their interest to be affected by such arbitral adjudications involve larger questions of policy and public interest. Government and its instrumentalities cannot simply allow large financial interests of the State to be prejudicially affected by non-reviewable — except in the limited way allowed by the statute —non-speaking arbitral awards. Indeed, this branch of the system of dispute resolution has, of late, acquired a certain degree of notoriety by the manner in which in many cases the financial interests of Government have come to suffer by awards which have raised eyebrows by doubts as to their rectitude and propriety. It will not be justifiable for Governments or their instrumentalities to enter into arbitration agreements which do not expressly stipulate the rendering of reasoned and speaking awards. Governments and their instrumentalities should, as a matter of policy and public interest — if not as a compulsion of law — ensure that wherever they enter into agreements for resolution of disputes by resort to private arbitrations, the requirement of speaking awards is expressly stipulated and ensured.” The same view was reiterated in Tamil Nadu Electricity Board v. Bridge Tunnel Constructions, II (1997) CLT 149 (SC)=(1997) 4 SCC 121 , and Punjab SEB v. Punjab Pre-Stressed Concrete Works (supra). In the second judgment, the Court referred to some of the earlier judgments and observed: “After hearing Counsel on both sides, we are of the view that the award is liable to be set aside because when it is a non-speaking one, it is not known whether any part of the award made by the Arbitrator related to Claim I. In our view, the price of the poles was firm and not liable to be increased. The fact that the delivery schedule was changed cannot be a ground to get over the clause prohibiting increase in the price of the poles. Once Claim I is not tenable, the award has to be set aside inasmuch as it is not possible to say that the award did not relate to Claim I. This is a sufficient reason for setting aside the award and remitting the matter back to the Arbitrator.”
### Response:
1
### Explanation:
we find that the bid given by the respondent was unequivocally accepted by the competent authority and the letter of acceptance was issued for and on behalf of the Governor by treating it to be a contract. Thus, there was substantial compliance of Article 299 of the Constitution. The execution of formal agreement was optional and was not sine qua non for supply of the goods by the respondent. In our view, if the acceptance letter is read along with other documents in the light of the conduct of the parties, it becomes clear that an agreement was executed between the competent authority and thefind merit in the submission of learned Senior Counsel appearing for the appellants that the award of the Arbitrator was vitiated by an error apparent and reasons assigned by the trial Court and the High Court for refusing to annul the same are legally unsustainable. A reading of the award shows that after adverting to the claim made by the respondent and the proceedings held by him on various dates, the Arbitrator referred to the affidavit of Shri A.K. Saigal, Managing Director of the respondent and passed the award without assigning any reason whatsoever and without even recording a finding that the respondent had suffered loss/damages on account of the failure of appellant No.3 to place supply order in furtherance of the acceptance letter dated 16.11.1985. The casual manner in which the Arbitrator decided the dispute is evident from paragraph 10 of the Award, which is extractedI have heard the learned Counsel for the claimant and the representatives of the opposite party No. 3 at length and carefully perused the records and I am of the certain opinion that the claimant is entitled to receive Rs. 23,56,500/- from the opposite party Nos. 1 and 2 which said amount also comprises of Rs. 12,300/- as cost of these proceedings details whereof are given hereunder:AWARDThe claim of the claimant is allowed to the extent of Rs. 23,44,200/- with interest thereon at the rate of 6% per annum with effect from the date of this award till the date of payment or the decree which is earlier.The claimant is also awarded Rs. 12,300/- being the cost of this arbitration as per details given below:(a)Cost of non-judicial stamp for awardRs. 6,500/-(b)Arbitration fee paid by the claimantRs. 2,800/-(c)Typing and office expenses for arbitration paid by the claimantRs. 500/-(d)Cost awarded to the claimant on account of Counsel feeRs. 2,500/-TotalRs.our view, the Arbitrator was duty bound to examine the tenability of the claim made by the respondent under different heads and decide the same by assigning some reasons, howsoever briefly. His failure to do so constituted a valid ground for setting aside the award and the trial Court committed a serious error by making the award Rule of the Court. Unfortunately, the High Court also overlooked this lacuna in the award and approved the judgment of the trial Court. In RaipurDevelopment Authority & Ors. v. M/s. Chokhamal Contractors & Ors., (1989) 2 SCC 721 ( this was a case under the Arbitration Act, 1940), a Constitution Bench of this Court considered the question whether the Arbitrator is required to give reasons and held asWe do appreciate the contention, urged on behalf of the parties who contend that it should be made obligatory on the part of the Arbitrator to give reasons for the award, that there is no justification to leave the small area covered by the law of arbitration out of the general rule that the decision of every judicial and quasi-judicial body should be supported by reasons. But at the same time it has to be borne in mind that what applies generally to settlement of disputes by authorities governed by public law need not be extended to all cases arising under private law such as those arising under the law of arbitration which is intended for settlement of private disputes.... The trappings of a body which discharges judicial functions and is required to act in accordance with law with their concomitant obligations for reasoned decisions, are not attracted to a private adjudication of the nature of arbitration as the latter, as we have noticed earlier, is not supposed to exert thesovereign judicial power. But arbitral awards in disputes to which the State and its instrumentalities are parties affect public interest and the matter of the manner in which Government and its instrumentalities allow their interest to be affected by such arbitral adjudications involve larger questions of policy and public interest. Government and its instrumentalities cannot simply allow large financial interests of the State to be prejudicially affected by non-reviewable — except in the limited way allowed by the statute —non-speaking arbitral awards. Indeed, this branch of the system of dispute resolution has, of late, acquired a certain degree of notoriety by the manner in which in many cases the financial interests of Government have come to suffer by awards which have raised eyebrows by doubts as to their rectitude and propriety. It will not be justifiable for Governments or their instrumentalities to enter into arbitration agreements which do not expressly stipulate the rendering of reasoned and speaking awards. Governments and their instrumentalities should, as a matter of policy and public interest — if not as a compulsion of law — ensure that wherever they enter into agreements for resolution of disputes by resort to private arbitrations, the requirement of speaking awards is expressly stipulated and
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NEW OKHLA INDUSTRIAL DEVELOPMENT AUTHORITY Vs. COMMISSIONER INCOME TAX APPEALS(41)
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direction of the High Court regarding deduction of tax at source on the payment of lease rent as per Section 194-I of the Income Tax Act, 1961, the authority has relied on Circular dated 30.01.1995. Section 194¬I of the Income Tax Act provides as follows:¬ ?Section 194¬I : Rent 2[Any person, not being an individual or a Hindu undivided family, who is responsible for paying to a resident] any income by way of rent, shall, at the time of credit of such income to the account of the payee or at the time of payment thereof in cash or by the issue of a cheque or draft or by any other mode, whichever is earlier, deduct income¬tax thereon at the rate of 4[(a) two per cent. for the use of any machinery or plant or equipment; and (b) ten per cent. for the use of any land or building (including factory building) or land appurtenant to a building (including factory building) or furniture or fittings:] Provided that no deduction shall be made under this section where the amount of such income or, as the case may be, the aggregate of the amounts of such income credited or paid or likely to be credited or paid during the financial year by the aforesaid person to the account of, or to, the payee, does not exceed 5[one hundred eighty thousand rupees] : 6[Provided further that an individual or a Hindu undivided family, whose total sales, gross receipts or turnover from the business or profession carried on by him exceed the monetary limits specified under clause (a) or clause (b) of section 44AB during the financial year immediately preceding the financial year in which such income by way of rent is credited or paid, shall be liable to deduct income¬tax under this section.] 1[Provided also that no deduction shall be made under this section where the income by way of rent is credited or paid to a business trust, being a real estate investment trust, in respect of any real estate asset, referred to in clause (23FCA) of section 10, owned directly by such business trust.] Explanation : For the purposes of this section,¬ 2[(i) ?rent? means any payment, by whatever name called, under any lease, sublease, tenancy or any other agreement or arrangement for the use of (either separately or together) any,¬ (a) land; or (b) building (including factory building); or (c) land appurtenant to a building (including factory building); or (d) machinery; or (e) plant; or (f) equipment; or (g) furniture; or (h) fittings, whether or not any or all of the above are owned by the payee;] (ii) where any income is credited to any account, whether called ?Suspense account? or by any other name, in the books of account of the person liable to pay such income, such crediting shall be deemed to be credit of such income to the account of the payee and the provisions of this section shall apply accordingly.? 14. The definition of rent as contained in the explanation is a very wide definition. Explanation states that ?rent? means any payment, by whatever name called, under any lease, sublease, tenancy or any other agreement or arrangement for the use of any land. The High Court has read the relevant clauses of the lease deed and has rightly come to the conclusion that payment which is to be made as annual rent is rent within the meaning of Section 194-I, we do not find any infirmity in the aforesaid conclusion of the High Court. The High Court has rightly held that TDS shall be deducted on the payment of the lease rent to the Greater Noida as per Section 194-I. Reliance on circular dated 30.01.1995 has been placed by the Noida/Greater Noida. A perusal of the circular dated 30.01.1995 indicate that the query which has been answered in the above circular is ?Whether requirement of deduction of income-tax at source under Section 194¬I applies in case of payment by way of rent to Government, statutory authorities referred to in Section 10(20A) and local authorities whose income under the head ?Income from house property? or ?Income from other sources? is exempt from income¬tax.? 15. In Paragraph 3 of the circular, it was stated that income of an authority constituted in India by or under any law enacted either for the purpose of dealing with and satisfying the need for housing accommodation or for the purpose of planning, development or improvement of cities, towns and villages, is exempt from income¬tax under Section 10(20A). In view of the aforesaid, in Paragraph 4 of the circular, following was stated:¬ "In view of the aforesaid, there is no requirement to deduct income¬tax at source on income by way of rent if the payee is the Government. In the case of the local authorities and the statutory authorities referred to in para 3 of this circular, there will be no requirement to deduct income¬tax at source from income by way of rent if the person responsible for paying it is satisfied about their tax¬exempt status under clause(20) or (20A) of Section 10 on the basis of a certificate to this effect given by the said authorities.? 16. A perusal of the above circular indicate that circular was issued on the strength of Section 10(20A) and Section 10(20) as it existed at the relevant time. Section 10(20) has been amended by Finance Act, 2002 by adding an explanation and further Section 10(20A) has been omitted w.e.f. 01.04.2003. The very basis of the circular has been knocked out by the amendments made by Finance Act, 2002. Thus, the Circular cannot be relied by Noida/Greater Noida to contend that there is no requirement of deduction of tax at source under Section 194-I. Thus, deduction at source is on payment of rent under Section 194-I, which is clearly the statutory liability of the respondent-company. The High Court has adjusted the equities by recording its conclusion in Paragraph 20 and issuing a direction in Paragraph 21. 17.
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0[ds]11. Insofar as the appeals filed by Noida/Greater Noida are concerned, the principal submission raised by the appellant is applicability of Section 10(20) of the Income Tax Act. Learned counsel for the Noida has submitted that the said issue has already been addressed in detail in Civil Appeal No. 792-793 of 2014. By our judgment of the date in Civil Appeal No. 792-793 of 2014 New Okhla Industrial Development Authority Vs. Commissioner of Income Tax- Appeals & Ors., we have held that Noida is not a ?local authority? within the meaning of Section 10(20) of the Income Tax Act as amended by the Finance Act, 2002 w.e.f. 01.04.2003. For the reasons given by our judgment of the date in the above appeals, this submission has to be rejected.Now coming to the appeals filed by the revenue, infar as the question relating to exemption under Section 194A(3) (iii)(f) by virtue of notification dated 24.10.1970, i.e. the exemption of interest income of the Noida, we have already decided the said controversy in CIVIL APPEAL NO._________ OF 2018 (arising out of SLP (C) No. 3168 of 2017)Commissioner of Income Tax(TDS) Kanpur and Anr. Vs. Canara Bank. Having held that Noida is covered by the notification dated 22.10.1970, the judgment of the Delhi High Court holding that Noida/Greater Noida is entitled for the benefit of Section 194A(3)(iii)(f) has to be approved.The definition of rent as contained in the explanation is a very wide definition. Explanation states that ?rent? means any payment, by whatever name called, under any lease, sublease, tenancy or any other agreement or arrangement for the use of any land. The High Court has read the relevant clauses of the lease deed and has rightly come to the conclusion that payment which is to be made as annual rent is rent within the meaning of Section 194-I, we do not find any infirmity in the aforesaid conclusion of the High Court. The High Court has rightly held that TDS shall be deducted on the payment of the lease rent to the Greater Noida as per Section 194-I. Reliance on circular dated 30.01.1995 has been placed by the Noida/Greater Noida. A perusal of the circular dated 30.01.1995 indicate that the query which has been answered in the above circular is ?Whether requirement of deduction of income-tax at source under SectionIn Paragraph 3 of the circular, it was stated that income of an authority constituted in India by or under any law enacted either for the purpose of dealing with and satisfying the need for housing accommodation or for the purpose of planning, development or improvement of cities, towns and villages, is exempt fromunder Section 10(20A). In view of the aforesaid, in Paragraph 4 of the circular, following wasview of the aforesaid, there is no requirement to deductincome-tax at sourceon income by way of rent if the payee is the Government. In the case of the local authorities and the statutory authorities referred to in para 3 of this circular, there will be no requirement to deductincome-tax at sourcefrom income by way of rent if the person responsible for paying it is satisfied about theirstatus under clause(20) or (20A) of Section 10 on the basis of a certificate to this effect given by the said authorities.A perusal of the above circular indicate that circular was issued on the strength of Section 10(20A) and Section 10(20) as it existed at the relevant time. Section 10(20) has been amended by Finance Act, 2002 by adding an explanation and further Section 10(20A) has been omitted w.e.f. 01.04.2003.The very basis of the circular has been knocked out by the amendments made by Finance Act, 2002. Thus, the Circular cannot be relied by Noida/Greater Noida to contend that there is no requirement of deduction of tax at source under Section 194-I. Thus, deduction at source is on payment of rent under Section 194-I, which is clearly the statutory liability of the respondent-company. The High Court has adjusted the equities by recording its conclusion in Paragraph 20 and issuing a direction in Paragraph 21.
| 0 | 3,222 | 785 |
### 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:
direction of the High Court regarding deduction of tax at source on the payment of lease rent as per Section 194-I of the Income Tax Act, 1961, the authority has relied on Circular dated 30.01.1995. Section 194¬I of the Income Tax Act provides as follows:¬ ?Section 194¬I : Rent 2[Any person, not being an individual or a Hindu undivided family, who is responsible for paying to a resident] any income by way of rent, shall, at the time of credit of such income to the account of the payee or at the time of payment thereof in cash or by the issue of a cheque or draft or by any other mode, whichever is earlier, deduct income¬tax thereon at the rate of 4[(a) two per cent. for the use of any machinery or plant or equipment; and (b) ten per cent. for the use of any land or building (including factory building) or land appurtenant to a building (including factory building) or furniture or fittings:] Provided that no deduction shall be made under this section where the amount of such income or, as the case may be, the aggregate of the amounts of such income credited or paid or likely to be credited or paid during the financial year by the aforesaid person to the account of, or to, the payee, does not exceed 5[one hundred eighty thousand rupees] : 6[Provided further that an individual or a Hindu undivided family, whose total sales, gross receipts or turnover from the business or profession carried on by him exceed the monetary limits specified under clause (a) or clause (b) of section 44AB during the financial year immediately preceding the financial year in which such income by way of rent is credited or paid, shall be liable to deduct income¬tax under this section.] 1[Provided also that no deduction shall be made under this section where the income by way of rent is credited or paid to a business trust, being a real estate investment trust, in respect of any real estate asset, referred to in clause (23FCA) of section 10, owned directly by such business trust.] Explanation : For the purposes of this section,¬ 2[(i) ?rent? means any payment, by whatever name called, under any lease, sublease, tenancy or any other agreement or arrangement for the use of (either separately or together) any,¬ (a) land; or (b) building (including factory building); or (c) land appurtenant to a building (including factory building); or (d) machinery; or (e) plant; or (f) equipment; or (g) furniture; or (h) fittings, whether or not any or all of the above are owned by the payee;] (ii) where any income is credited to any account, whether called ?Suspense account? or by any other name, in the books of account of the person liable to pay such income, such crediting shall be deemed to be credit of such income to the account of the payee and the provisions of this section shall apply accordingly.? 14. The definition of rent as contained in the explanation is a very wide definition. Explanation states that ?rent? means any payment, by whatever name called, under any lease, sublease, tenancy or any other agreement or arrangement for the use of any land. The High Court has read the relevant clauses of the lease deed and has rightly come to the conclusion that payment which is to be made as annual rent is rent within the meaning of Section 194-I, we do not find any infirmity in the aforesaid conclusion of the High Court. The High Court has rightly held that TDS shall be deducted on the payment of the lease rent to the Greater Noida as per Section 194-I. Reliance on circular dated 30.01.1995 has been placed by the Noida/Greater Noida. A perusal of the circular dated 30.01.1995 indicate that the query which has been answered in the above circular is ?Whether requirement of deduction of income-tax at source under Section 194¬I applies in case of payment by way of rent to Government, statutory authorities referred to in Section 10(20A) and local authorities whose income under the head ?Income from house property? or ?Income from other sources? is exempt from income¬tax.? 15. In Paragraph 3 of the circular, it was stated that income of an authority constituted in India by or under any law enacted either for the purpose of dealing with and satisfying the need for housing accommodation or for the purpose of planning, development or improvement of cities, towns and villages, is exempt from income¬tax under Section 10(20A). In view of the aforesaid, in Paragraph 4 of the circular, following was stated:¬ "In view of the aforesaid, there is no requirement to deduct income¬tax at source on income by way of rent if the payee is the Government. In the case of the local authorities and the statutory authorities referred to in para 3 of this circular, there will be no requirement to deduct income¬tax at source from income by way of rent if the person responsible for paying it is satisfied about their tax¬exempt status under clause(20) or (20A) of Section 10 on the basis of a certificate to this effect given by the said authorities.? 16. A perusal of the above circular indicate that circular was issued on the strength of Section 10(20A) and Section 10(20) as it existed at the relevant time. Section 10(20) has been amended by Finance Act, 2002 by adding an explanation and further Section 10(20A) has been omitted w.e.f. 01.04.2003. The very basis of the circular has been knocked out by the amendments made by Finance Act, 2002. Thus, the Circular cannot be relied by Noida/Greater Noida to contend that there is no requirement of deduction of tax at source under Section 194-I. Thus, deduction at source is on payment of rent under Section 194-I, which is clearly the statutory liability of the respondent-company. The High Court has adjusted the equities by recording its conclusion in Paragraph 20 and issuing a direction in Paragraph 21. 17.
### Response:
0
### Explanation:
11. Insofar as the appeals filed by Noida/Greater Noida are concerned, the principal submission raised by the appellant is applicability of Section 10(20) of the Income Tax Act. Learned counsel for the Noida has submitted that the said issue has already been addressed in detail in Civil Appeal No. 792-793 of 2014. By our judgment of the date in Civil Appeal No. 792-793 of 2014 New Okhla Industrial Development Authority Vs. Commissioner of Income Tax- Appeals & Ors., we have held that Noida is not a ?local authority? within the meaning of Section 10(20) of the Income Tax Act as amended by the Finance Act, 2002 w.e.f. 01.04.2003. For the reasons given by our judgment of the date in the above appeals, this submission has to be rejected.Now coming to the appeals filed by the revenue, infar as the question relating to exemption under Section 194A(3) (iii)(f) by virtue of notification dated 24.10.1970, i.e. the exemption of interest income of the Noida, we have already decided the said controversy in CIVIL APPEAL NO._________ OF 2018 (arising out of SLP (C) No. 3168 of 2017)Commissioner of Income Tax(TDS) Kanpur and Anr. Vs. Canara Bank. Having held that Noida is covered by the notification dated 22.10.1970, the judgment of the Delhi High Court holding that Noida/Greater Noida is entitled for the benefit of Section 194A(3)(iii)(f) has to be approved.The definition of rent as contained in the explanation is a very wide definition. Explanation states that ?rent? means any payment, by whatever name called, under any lease, sublease, tenancy or any other agreement or arrangement for the use of any land. The High Court has read the relevant clauses of the lease deed and has rightly come to the conclusion that payment which is to be made as annual rent is rent within the meaning of Section 194-I, we do not find any infirmity in the aforesaid conclusion of the High Court. The High Court has rightly held that TDS shall be deducted on the payment of the lease rent to the Greater Noida as per Section 194-I. Reliance on circular dated 30.01.1995 has been placed by the Noida/Greater Noida. A perusal of the circular dated 30.01.1995 indicate that the query which has been answered in the above circular is ?Whether requirement of deduction of income-tax at source under SectionIn Paragraph 3 of the circular, it was stated that income of an authority constituted in India by or under any law enacted either for the purpose of dealing with and satisfying the need for housing accommodation or for the purpose of planning, development or improvement of cities, towns and villages, is exempt fromunder Section 10(20A). In view of the aforesaid, in Paragraph 4 of the circular, following wasview of the aforesaid, there is no requirement to deductincome-tax at sourceon income by way of rent if the payee is the Government. In the case of the local authorities and the statutory authorities referred to in para 3 of this circular, there will be no requirement to deductincome-tax at sourcefrom income by way of rent if the person responsible for paying it is satisfied about theirstatus under clause(20) or (20A) of Section 10 on the basis of a certificate to this effect given by the said authorities.A perusal of the above circular indicate that circular was issued on the strength of Section 10(20A) and Section 10(20) as it existed at the relevant time. Section 10(20) has been amended by Finance Act, 2002 by adding an explanation and further Section 10(20A) has been omitted w.e.f. 01.04.2003.The very basis of the circular has been knocked out by the amendments made by Finance Act, 2002. Thus, the Circular cannot be relied by Noida/Greater Noida to contend that there is no requirement of deduction of tax at source under Section 194-I. Thus, deduction at source is on payment of rent under Section 194-I, which is clearly the statutory liability of the respondent-company. The High Court has adjusted the equities by recording its conclusion in Paragraph 20 and issuing a direction in Paragraph 21.
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State Of Mysore Vs. H. Papanna Gowda & Anr. Etc
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purpose, sub-section (5) provided."Every person employed in any of the colleges specified in sub-section (1) or in any of the institutions referred to in sub-section (4) immediately before the appointed day or the date specified in the order under sub-section (4), as the case may be, shall, as from the appointed day or the specified date, become an employee of the University on such terms and conditions as may be determined by the State Government in consultation with the Board :"4. The Board has been defined in Section 2 clause (3) as the Board of Regents of the University.5. By notification dated September 29, l965 the control and management of a large number of research and educational institutions were transferred to the University with effect from October 1, 1965. The Agricultural Research Institute, Mandya where the respondent was working was one such institution. Not liking the change which his future prospects were likely to undergo as a result of the notification, the respondent presented a writ petition seeking a declaration that sub-sections (4) and (5) of Section 7 of the Act were invalid and for a further declaration that he continued to he a civil servant under the State Government. To put in brief the argument on this head was that he had been removed from a civil post under the State in contravention of the provisions of Article 311.6. A further argument was put up that the respondent had been subjected to hostile discrimination inasmuch as person who had been appointed in the same manner as himself and later in point of time than himself had been retained in the service of the State thereby infringing Articles 14 and 16 of the Constitution.7. It is not necessary to deal with the second point as the appellant, in our opinion, must fail on the first. There can be no dispute - as indeed the learned Solicitor-General was constrained to admit - that the respondent and others who had filed writ petitions in the High Court challenging the notification ceased to hold the civil posts which they held under the State of Mysore at the time when the notification was issued if it was to have full force and effect. Whether the prospects of the respondent were or were not to be prejudicially, affected if he was to become an employee of the University is not in point. However the learned Solicitor-General drew our attention to paragraph l7 of the counter-affidavit to the writ petition filed in the High Court where it was stated that the terms and conditions of transfer as agreed to by the Government and the University provided inter alia for the following:(1) Every employee of the Government on his transfer to the University shall enjoy the same pay scale.(2) He was to be eligible for pensionary benefits in the same manner as he had while he was serving the Government.(3) His claims for higher pay scales or higher positions under the University shall be deemed to be on a preferential basis in comparison with others, provided the qualifications and experience were equal; and(4) Every employee of the Government on his transfer to the University was to be protected to the extent that the terms and conditions of his service under the University would not be altered to his detriment.8. We are not here concerned with the question as to whether for all practical purposes the respondent was not to be a loser as a result of the transfer. Evidently the respondent held the view that as a civil servant of the State of Mysore the prospects of promotion to higher posts with better scales of pay were greater in the service of the State with its manifold activities in various departments. For better or for worse, the notification resulted in extinction of his status as a civil servant.9. The learned Solicitor-General sought to rely on a judgment of the Punjab High Court in Amulya Kumar Talukdar v. Union of India ILR (1960) Punj 781 = (AIR 1960 Punj 284) a case which was considered by the High Court of Mysore, in aid of his contention that the transfer of the kind effected in this case had been held to be valid by the Punjab High Court. The High Court at Bangalore went into the question rather elaborately and noted that there were many differences between the provisions of the Indian Institute of Technology (Kharagpur) Act, 1956, the Act impugned in the Punjab High Court and the Agricultural University Act of 1963. In the Punjab case the petitioner had initially been appointed by the Director, Indian Institute of Technology, Kharagpur as a Peon. As a result of the Act of 1956 the Institute declared to be one of national importance, was constituted under the Act providing inter alia that the employees who were working in the Institute before were to hold office or service thereafter upon the same terms and conditions and with the same rights and privileges as to pension, leave, gratuity, provident fund and other matters as they would have held the same on the date of commencement of the Act as if the Act had not been passed. In the case before us the Act provides by sub-section (5) of Section 7 that the terms and conditions of the Government employees immediately before the appointed day or the date specified in the notification were to be such as might be determined by the State Government in consultation with the Board. The learned Judge of the Punjab High Court on the facts of that case found it unnecessary to examine the argument whether the assent given by the President to the Indian Institute of Technology Bill had the effect of terminating the status of the petitioners as Government servants by the President as also the argument raised on their behalf that their lien had been terminated under the Fundamental Rules without their consent. The Punjab decision cannot therefore apply to the case as presented before us.
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0[ds]7. It is not necessary to deal with the second point as the appellant, in our opinion, must fail on the first. There can be no dispute - as indeed the learned Solicitor-General was constrained to admit - that the respondent and others who had filed writ petitions in the High Court challenging the notification ceased to hold the civil posts which they held under the State of Mysore at the time when the notification was issued if it was to have full force and effect. Whether the prospects of the respondent were or were not to be prejudicially, affected if he was to become an employee of the University is not in point. However the learned Solicitor-General drew our attention to paragraph l7 of the counter-affidavit to the writ petition filed in the High Court where it was stated that the terms and conditions of transfer as agreed to by the Government and the University provided inter alia for theEvery employee of the Government on his transfer to the University shall enjoy the same pay scale.(2) He was to be eligible for pensionary benefits in the same manner as he had while he was serving the Government.(3) His claims for higher pay scales or higher positions under the University shall be deemed to be on a preferential basis in comparison with others, provided the qualifications and experience were equal; and(4) Every employee of the Government on his transfer to the University was to be protected to the extent that the terms and conditions of his service under the University would not be altered to his detriment.We are not here concerned with the question as to whether for all practical purposes the respondent was not to be a loser as a result of the transfer. Evidently the respondent held the view that as a civil servant of the State of Mysore the prospects of promotion to higher posts with better scales of pay were greater in the service of the State with its manifold activities in various departments. For better or for worse, the notification resulted in extinction of his status as a civilHigh Court at Bangalore went into the question rather elaborately and noted that there were many differences between the provisions of the Indian Institute of Technology (Kharagpur) Act, 1956, the Act impugned in the Punjab High Court and the Agricultural University Act of 1963. In the Punjab case the petitioner had initially been appointed by the Director, Indian Institute of Technology, Kharagpur as a Peon. As a result of the Act of 1956 the Institute declared to be one of national importance, was constituted under the Act providing inter alia that the employees who were working in the Institute before were to hold office or service thereafter upon the same terms and conditions and with the same rights and privileges as to pension, leave, gratuity, provident fund and other matters as they would have held the same on the date of commencement of the Act as if the Act had not been passed. In the case before us the Act provides by sub-section (5) of Section 7 that the terms and conditions of the Government employees immediately before the appointed day or the date specified in the notification were to be such as might be determined by the State Government in consultation with the Board. The learned Judge of the Punjab High Court on the facts of that case found it unnecessary to examine the argument whether the assent given by the President to the Indian Institute of Technology Bill had the effect of terminating the status of the petitioners as Government servants by the President as also the argument raised on their behalf that their lien had been terminated under the Fundamental Rules without their consent. The Punjab decision cannot therefore apply to the case as presented before us.
| 0 | 1,624 | 689 |
### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
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purpose, sub-section (5) provided."Every person employed in any of the colleges specified in sub-section (1) or in any of the institutions referred to in sub-section (4) immediately before the appointed day or the date specified in the order under sub-section (4), as the case may be, shall, as from the appointed day or the specified date, become an employee of the University on such terms and conditions as may be determined by the State Government in consultation with the Board :"4. The Board has been defined in Section 2 clause (3) as the Board of Regents of the University.5. By notification dated September 29, l965 the control and management of a large number of research and educational institutions were transferred to the University with effect from October 1, 1965. The Agricultural Research Institute, Mandya where the respondent was working was one such institution. Not liking the change which his future prospects were likely to undergo as a result of the notification, the respondent presented a writ petition seeking a declaration that sub-sections (4) and (5) of Section 7 of the Act were invalid and for a further declaration that he continued to he a civil servant under the State Government. To put in brief the argument on this head was that he had been removed from a civil post under the State in contravention of the provisions of Article 311.6. A further argument was put up that the respondent had been subjected to hostile discrimination inasmuch as person who had been appointed in the same manner as himself and later in point of time than himself had been retained in the service of the State thereby infringing Articles 14 and 16 of the Constitution.7. It is not necessary to deal with the second point as the appellant, in our opinion, must fail on the first. There can be no dispute - as indeed the learned Solicitor-General was constrained to admit - that the respondent and others who had filed writ petitions in the High Court challenging the notification ceased to hold the civil posts which they held under the State of Mysore at the time when the notification was issued if it was to have full force and effect. Whether the prospects of the respondent were or were not to be prejudicially, affected if he was to become an employee of the University is not in point. However the learned Solicitor-General drew our attention to paragraph l7 of the counter-affidavit to the writ petition filed in the High Court where it was stated that the terms and conditions of transfer as agreed to by the Government and the University provided inter alia for the following:(1) Every employee of the Government on his transfer to the University shall enjoy the same pay scale.(2) He was to be eligible for pensionary benefits in the same manner as he had while he was serving the Government.(3) His claims for higher pay scales or higher positions under the University shall be deemed to be on a preferential basis in comparison with others, provided the qualifications and experience were equal; and(4) Every employee of the Government on his transfer to the University was to be protected to the extent that the terms and conditions of his service under the University would not be altered to his detriment.8. We are not here concerned with the question as to whether for all practical purposes the respondent was not to be a loser as a result of the transfer. Evidently the respondent held the view that as a civil servant of the State of Mysore the prospects of promotion to higher posts with better scales of pay were greater in the service of the State with its manifold activities in various departments. For better or for worse, the notification resulted in extinction of his status as a civil servant.9. The learned Solicitor-General sought to rely on a judgment of the Punjab High Court in Amulya Kumar Talukdar v. Union of India ILR (1960) Punj 781 = (AIR 1960 Punj 284) a case which was considered by the High Court of Mysore, in aid of his contention that the transfer of the kind effected in this case had been held to be valid by the Punjab High Court. The High Court at Bangalore went into the question rather elaborately and noted that there were many differences between the provisions of the Indian Institute of Technology (Kharagpur) Act, 1956, the Act impugned in the Punjab High Court and the Agricultural University Act of 1963. In the Punjab case the petitioner had initially been appointed by the Director, Indian Institute of Technology, Kharagpur as a Peon. As a result of the Act of 1956 the Institute declared to be one of national importance, was constituted under the Act providing inter alia that the employees who were working in the Institute before were to hold office or service thereafter upon the same terms and conditions and with the same rights and privileges as to pension, leave, gratuity, provident fund and other matters as they would have held the same on the date of commencement of the Act as if the Act had not been passed. In the case before us the Act provides by sub-section (5) of Section 7 that the terms and conditions of the Government employees immediately before the appointed day or the date specified in the notification were to be such as might be determined by the State Government in consultation with the Board. The learned Judge of the Punjab High Court on the facts of that case found it unnecessary to examine the argument whether the assent given by the President to the Indian Institute of Technology Bill had the effect of terminating the status of the petitioners as Government servants by the President as also the argument raised on their behalf that their lien had been terminated under the Fundamental Rules without their consent. The Punjab decision cannot therefore apply to the case as presented before us.
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### Explanation:
7. It is not necessary to deal with the second point as the appellant, in our opinion, must fail on the first. There can be no dispute - as indeed the learned Solicitor-General was constrained to admit - that the respondent and others who had filed writ petitions in the High Court challenging the notification ceased to hold the civil posts which they held under the State of Mysore at the time when the notification was issued if it was to have full force and effect. Whether the prospects of the respondent were or were not to be prejudicially, affected if he was to become an employee of the University is not in point. However the learned Solicitor-General drew our attention to paragraph l7 of the counter-affidavit to the writ petition filed in the High Court where it was stated that the terms and conditions of transfer as agreed to by the Government and the University provided inter alia for theEvery employee of the Government on his transfer to the University shall enjoy the same pay scale.(2) He was to be eligible for pensionary benefits in the same manner as he had while he was serving the Government.(3) His claims for higher pay scales or higher positions under the University shall be deemed to be on a preferential basis in comparison with others, provided the qualifications and experience were equal; and(4) Every employee of the Government on his transfer to the University was to be protected to the extent that the terms and conditions of his service under the University would not be altered to his detriment.We are not here concerned with the question as to whether for all practical purposes the respondent was not to be a loser as a result of the transfer. Evidently the respondent held the view that as a civil servant of the State of Mysore the prospects of promotion to higher posts with better scales of pay were greater in the service of the State with its manifold activities in various departments. For better or for worse, the notification resulted in extinction of his status as a civilHigh Court at Bangalore went into the question rather elaborately and noted that there were many differences between the provisions of the Indian Institute of Technology (Kharagpur) Act, 1956, the Act impugned in the Punjab High Court and the Agricultural University Act of 1963. In the Punjab case the petitioner had initially been appointed by the Director, Indian Institute of Technology, Kharagpur as a Peon. As a result of the Act of 1956 the Institute declared to be one of national importance, was constituted under the Act providing inter alia that the employees who were working in the Institute before were to hold office or service thereafter upon the same terms and conditions and with the same rights and privileges as to pension, leave, gratuity, provident fund and other matters as they would have held the same on the date of commencement of the Act as if the Act had not been passed. In the case before us the Act provides by sub-section (5) of Section 7 that the terms and conditions of the Government employees immediately before the appointed day or the date specified in the notification were to be such as might be determined by the State Government in consultation with the Board. The learned Judge of the Punjab High Court on the facts of that case found it unnecessary to examine the argument whether the assent given by the President to the Indian Institute of Technology Bill had the effect of terminating the status of the petitioners as Government servants by the President as also the argument raised on their behalf that their lien had been terminated under the Fundamental Rules without their consent. The Punjab decision cannot therefore apply to the case as presented before us.
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Meera Mydeen Etc.Etc Vs. State Of T.Nadu
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Court had gone wrong in law while arriving at the conclusion on this aspect. 26. Similarly, the Courts below have given convincing reasons, after analyzing the evidence of certain witnesses that the presence of the appellants at the scene of occurrence stood established. Here again, the only attempt was to discredit the testimony of these witnesses by trying to point out certain infirmities without raising any substantial questions of law. We may record that the High Court has inter alia stated that PW-2, PW-3 and PW- 4 have corroborated each other with regard to the presence of the appellants, thereby establishing the following factors on record: 1) The presence of Srinivasa Perumal and PW-4 is spoken to by PWs-2 and 3. They have said that PW-4 was there with Srinivasa Perumal near the flower market. 2) All the three have spoken of the presence of A-1 to A-4 near the sugar cane crusher. PWs-2 and 3 have referred to one of the other three, smoking cigarette. 3) All the three witnesses have spoken of D-2 coming that way in the Avanti two wheelers with D-1 in the pillion. 4) PWs-2 and 3 have spoken of the fact that the man smoking cigarette stopped D-2 by holding the left shoulder. PW5 has deposed that A- 3 had first stabbed D-2 by holding his shoulder. 5) All the three referred to A-1 making a sign to other three. 6) PW-2 was standing near the scene of occurrence with an auto and he has mentioned the presence of another auto near the spot. The driver is Kasillah, who has not been examined. PW-3 had mentioned the presence of the auto and so does PW-4. 7) They also have spoken of the threat by A-2 to the auto driver, who was standing there. 27. In the process, the High Court dealt with the arguments of the defense and has given cogent reasons in not accepting the same with the conclusion that these witnesses were speaking the truth. It is not at all pointed out as to what the legal error was committed by the High Court in arriving at the aforesaid conclusion.28. Even the argument of the belated examination of witnesses is dealt with in great detail and the High Court has given its own reasons while rejecting this submission, some of which is worthy of reproduction, as under:"31. Belated Examination of the Witnesses:- It was urged on behalf of the appellant that many of the witnesses had come forward with their statements to the police belatedly and therefore that must be viewed with suspicion. In this regard, we must remember what case of prosecution is as regard reasons for this double murder. There was a murder of one prominent person belonging to one community in 1994, immediately in retaliation; there was a murder of another prominent person of the other community. D1 was interrogated with regard to the second murder. The judgment with regard to the second murder was about to be pronounced at the time of the occurrence. Therefore, it is the case of the Prosecution that the motive for this double murder was the communal enmity. When that is so, and when on account of communal feeling people were killed, it is difficult to expect witnesses and that too witnesses such as PW3, who had nothing to do with even the place of occurrence to come forward to speak about the occurrence. Moreover, they will not be easily identified by the police until some evidence surfaces to link them or witnesses come forward to report to the police about what they had seen or heard. That there was all round panic in Dindigul is spoken of not just by one witness, but many. The atmosphere was tension-charged and it is extremely natural for a person, who had witnessed something or who had knowledge about the conspiracy to be guarded before disclosing the game the police. PW2 was present at the time of Inquest. It is only, when lie was examined by PW33 that he came out with what he had seen. In this regard, he stated that soon after the occurrence, his uncle died and therefore, he went away to Periyakulam end stayed there 10 to 15 days. During this period the police had come to his house several times. Therefore, his landlord asked him to vacate the house. This is a very natural reaction. In such situation, people do not want to have any connection with possible chance of trouble. This further strengthens the prosecution case that no one was readily willing to give statement to the police. The tension had to die down, and after mustering courage, people slowly started giving whatever information they had. When the Special Investigating Team started investigation, they assured PW2 that he could tell them freely and frankly whatever he knew and it is thereafter, he had come forward with his statement. He was shown an album with full of photograph and on 16.04.2011, he identified A-2 to R-6. It is elicited in his cross-examination that he did not tell all the details because he was scared. "...I did not tell Dindigul police on 10.01.1997 night what I told in the chief-examination. I was afraid and agitated because I had withered the murder. I could not speak anything at that time. So I did tell the police anything properly. After Dindigul police enquiry, I wanted to say all that I said in chief-examination, but because of fear, I did not..."29. In the same manner, deposition of PW-3, PW-6 and other witnesses is considered and convincing reasons are given for arriving at a conclusion that the evidence given by these witnesses for not coming forward with their statements at the early stage was quite understandable and natural and the so called delay did not in any way discredit their credibility. The High Court also relied upon the decision of this Court in Dr. Krishna Pal and another v. State of U.P., (1996) 7 SCC 194.
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0[ds]20. It becomes clear from the reading of the impugned judgment of the High Court that the conviction is primarily based on the testimony of6 andand in the process support from the depositions given by32 andwho were the investigating officers. Conscious of this position, first attempt on the part of Mr. Karpagavinagam, learned senior counsel appearing for the appellants, was to demonstrate that these witnesses were unworthy of reliance because of various infirmities in their depositions and, therefore, the Courts below should not have acted upon their depositions. It was next argued that there was abnormal delay in recording the statement of main witnesses under Section 161 of the Code of Criminal Procedure by the investigating officers which clearly showed that these witnesses are either improved their statements or even introduced at a later date in order to make a false acquisition against the appellants. In this very hue, it was further contended by the learned senior counsel that piecemeal information was supplied by the witnesses from which it could clearly be inferred that there was an improvement on their part about their original version. In nutshell, these arguments were advanced with the purpose to discredit the testimony of the aforesaid witnesses. We are not reproducing the purported discrepancies which were pointed out by the learned senior counsel for the simple reason that this very exercise was undertaken by the counsel for the appellant even before the High Court. The High Court after taking note of such submissions has dealt with them elaborately. Brushing aside the said arguments, it has concluded that the depositions of these witnesses are reliable.21. Scope of power of this Court under Article 136 of the Constitution is well defined and explained by catena of judgments. It is not necessary to refer to all those judgments and the purpose would be served by citing few judgments which bring out the width of the scope of scrutiny by this Court in such matters. In State of U.P. v. Babul Nath, (1994) 6 SCC 29 , it was held that under Article 136 of the Constitution, this Court does not normally reappraise the evidence by itself and go into the question of credibility of witnesses and the assessment of the evidence by the High Court is accepted by the Supreme Court as final unless, of course, the appreciation of evidence and finding is vitiated by any error ofre or found contrary to the principles of natural justice, errors of record and misreading of the evidence, or where the conclusions of the High Court are manifestly perverse and unsupportable from the evidence on record.We have gone through the judgment of the trial court as well as the High Court and have also given the brief description of the manner in which the High Court has structured its judgment and discuss various aspects. As already pointed out, the High Court, in the first instance, discussed the issue of conspiracy and on the basis of testimony of certain witnesses and material produced on record, it has come to the conclusion that the prosecution has produced sufficient evidence to establish existence of conspiracy. In the process, the High Court has discussed in detail the testimonies of7 etc. Two Courts below have, thus, returned a finding, based on the evidence produced on record, that conspiracy between the appellants to kill the deceased stood established. In the instant appeal which arises out of special leave petition filed under Article 136 of the Constriction, it is not for this Court tothe evidence, unless it is found that the findings are totally perverse. No attempt was made to demonstrate as to how the High Court had gone wrong in law while arriving at the conclusion on this aspect.In the process, the High Court dealt with the arguments of the defense and has given cogent reasons in not accepting the same with the conclusion that these witnesses were speaking the truth. It is not at all pointed out as to what the legal error was committed by the High Court in arriving at the aforesaid conclusion.28. Even the argument of the belated examination of witnesses is dealt with in great detail and the High Court has given its own reasons while rejecting this submission, some of which is worthy of reproduction, as under:"31. Belated Examination of the Witnesses:It was urged on behalf of the appellant that many of the witnesses had come forward with their statements to the police belatedly and therefore that must be viewed with suspicion. In this regard, we must remember what case of prosecution is as regard reasons for this double murder. There was a murder of one prominent person belonging to one community in 1994, immediately in retaliation; there was a murder of another prominent person of the other community. D1 was interrogated with regard to the second murder. The judgment with regard to the second murder was about to be pronounced at the time of the occurrence. Therefore, it is the case of the Prosecution that the motive for this double murder was the communal enmity. When that is so, and when on account of communal feeling people were killed, it is difficult to expect witnesses and that too witnesses such as PW3, who had nothing to do with even the place of occurrence to come forward to speak about the occurrence. Moreover, they will not be easily identified by the police until some evidence surfaces to link them or witnesses come forward to report to the police about what they had seen or heard. That there was all round panic in Dindigul is spoken of not just by one witness, but many. The atmosphere wasand it is extremely natural for a person, who had witnessed something or who had knowledge about the conspiracy to be guarded before disclosing the game the police. PW2 was present at the time of Inquest. It is only, when lie was examined by PW33 that he came out with what he had seen. In this regard, he stated that soon after the occurrence, his uncle died and therefore, he went away to Periyakulam end stayed there 10 to 15 days. During this period the police had come to his house several times. Therefore, his landlord asked him to vacate the house. This is a very natural reaction. In such situation, people do not want to have any connection with possible chance of trouble. This further strengthens the prosecution case that no one was readily willing to give statement to the police. The tension had to die down, and after mustering courage, people slowly started giving whatever information they had. When the Special Investigating Team started investigation, they assured PW2 that he could tell them freely and frankly whatever he knew and it is thereafter, he had come forward with his statement. He was shown an album with full of photograph and on 16.04.2011, he identified6. It is elicited in histhat he did not tell all the details because he was scared. "...I did not tell Dindigul police on 10.01.1997 night what I told in theI was afraid and agitated because I had withered the murder. I could not speak anything at that time. So I did tell the police anything properly. After Dindigul police enquiry, I wanted to say all that I said inbut because of fear, I did not..."29. In the same manner, deposition ofand other witnessesis considered and convincing reasons are given for arriving at a conclusion that the evidence given by these witnesses for not coming forward with their statements at the early stage was quite understandable and natural and the so called delay did not in any way discredit their credibility. The High Court also relied upon the decision of this Court in Dr. Krishna Pal and another v. State of U.P., (1996) 7 SCC 194.
| 0 | 8,632 | 1,424 |
### 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:
Court had gone wrong in law while arriving at the conclusion on this aspect. 26. Similarly, the Courts below have given convincing reasons, after analyzing the evidence of certain witnesses that the presence of the appellants at the scene of occurrence stood established. Here again, the only attempt was to discredit the testimony of these witnesses by trying to point out certain infirmities without raising any substantial questions of law. We may record that the High Court has inter alia stated that PW-2, PW-3 and PW- 4 have corroborated each other with regard to the presence of the appellants, thereby establishing the following factors on record: 1) The presence of Srinivasa Perumal and PW-4 is spoken to by PWs-2 and 3. They have said that PW-4 was there with Srinivasa Perumal near the flower market. 2) All the three have spoken of the presence of A-1 to A-4 near the sugar cane crusher. PWs-2 and 3 have referred to one of the other three, smoking cigarette. 3) All the three witnesses have spoken of D-2 coming that way in the Avanti two wheelers with D-1 in the pillion. 4) PWs-2 and 3 have spoken of the fact that the man smoking cigarette stopped D-2 by holding the left shoulder. PW5 has deposed that A- 3 had first stabbed D-2 by holding his shoulder. 5) All the three referred to A-1 making a sign to other three. 6) PW-2 was standing near the scene of occurrence with an auto and he has mentioned the presence of another auto near the spot. The driver is Kasillah, who has not been examined. PW-3 had mentioned the presence of the auto and so does PW-4. 7) They also have spoken of the threat by A-2 to the auto driver, who was standing there. 27. In the process, the High Court dealt with the arguments of the defense and has given cogent reasons in not accepting the same with the conclusion that these witnesses were speaking the truth. It is not at all pointed out as to what the legal error was committed by the High Court in arriving at the aforesaid conclusion.28. Even the argument of the belated examination of witnesses is dealt with in great detail and the High Court has given its own reasons while rejecting this submission, some of which is worthy of reproduction, as under:"31. Belated Examination of the Witnesses:- It was urged on behalf of the appellant that many of the witnesses had come forward with their statements to the police belatedly and therefore that must be viewed with suspicion. In this regard, we must remember what case of prosecution is as regard reasons for this double murder. There was a murder of one prominent person belonging to one community in 1994, immediately in retaliation; there was a murder of another prominent person of the other community. D1 was interrogated with regard to the second murder. The judgment with regard to the second murder was about to be pronounced at the time of the occurrence. Therefore, it is the case of the Prosecution that the motive for this double murder was the communal enmity. When that is so, and when on account of communal feeling people were killed, it is difficult to expect witnesses and that too witnesses such as PW3, who had nothing to do with even the place of occurrence to come forward to speak about the occurrence. Moreover, they will not be easily identified by the police until some evidence surfaces to link them or witnesses come forward to report to the police about what they had seen or heard. That there was all round panic in Dindigul is spoken of not just by one witness, but many. The atmosphere was tension-charged and it is extremely natural for a person, who had witnessed something or who had knowledge about the conspiracy to be guarded before disclosing the game the police. PW2 was present at the time of Inquest. It is only, when lie was examined by PW33 that he came out with what he had seen. In this regard, he stated that soon after the occurrence, his uncle died and therefore, he went away to Periyakulam end stayed there 10 to 15 days. During this period the police had come to his house several times. Therefore, his landlord asked him to vacate the house. This is a very natural reaction. In such situation, people do not want to have any connection with possible chance of trouble. This further strengthens the prosecution case that no one was readily willing to give statement to the police. The tension had to die down, and after mustering courage, people slowly started giving whatever information they had. When the Special Investigating Team started investigation, they assured PW2 that he could tell them freely and frankly whatever he knew and it is thereafter, he had come forward with his statement. He was shown an album with full of photograph and on 16.04.2011, he identified A-2 to R-6. It is elicited in his cross-examination that he did not tell all the details because he was scared. "...I did not tell Dindigul police on 10.01.1997 night what I told in the chief-examination. I was afraid and agitated because I had withered the murder. I could not speak anything at that time. So I did tell the police anything properly. After Dindigul police enquiry, I wanted to say all that I said in chief-examination, but because of fear, I did not..."29. In the same manner, deposition of PW-3, PW-6 and other witnesses is considered and convincing reasons are given for arriving at a conclusion that the evidence given by these witnesses for not coming forward with their statements at the early stage was quite understandable and natural and the so called delay did not in any way discredit their credibility. The High Court also relied upon the decision of this Court in Dr. Krishna Pal and another v. State of U.P., (1996) 7 SCC 194.
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### Explanation:
served by citing few judgments which bring out the width of the scope of scrutiny by this Court in such matters. In State of U.P. v. Babul Nath, (1994) 6 SCC 29 , it was held that under Article 136 of the Constitution, this Court does not normally reappraise the evidence by itself and go into the question of credibility of witnesses and the assessment of the evidence by the High Court is accepted by the Supreme Court as final unless, of course, the appreciation of evidence and finding is vitiated by any error ofre or found contrary to the principles of natural justice, errors of record and misreading of the evidence, or where the conclusions of the High Court are manifestly perverse and unsupportable from the evidence on record.We have gone through the judgment of the trial court as well as the High Court and have also given the brief description of the manner in which the High Court has structured its judgment and discuss various aspects. As already pointed out, the High Court, in the first instance, discussed the issue of conspiracy and on the basis of testimony of certain witnesses and material produced on record, it has come to the conclusion that the prosecution has produced sufficient evidence to establish existence of conspiracy. In the process, the High Court has discussed in detail the testimonies of7 etc. Two Courts below have, thus, returned a finding, based on the evidence produced on record, that conspiracy between the appellants to kill the deceased stood established. In the instant appeal which arises out of special leave petition filed under Article 136 of the Constriction, it is not for this Court tothe evidence, unless it is found that the findings are totally perverse. No attempt was made to demonstrate as to how the High Court had gone wrong in law while arriving at the conclusion on this aspect.In the process, the High Court dealt with the arguments of the defense and has given cogent reasons in not accepting the same with the conclusion that these witnesses were speaking the truth. It is not at all pointed out as to what the legal error was committed by the High Court in arriving at the aforesaid conclusion.28. Even the argument of the belated examination of witnesses is dealt with in great detail and the High Court has given its own reasons while rejecting this submission, some of which is worthy of reproduction, as under:"31. Belated Examination of the Witnesses:It was urged on behalf of the appellant that many of the witnesses had come forward with their statements to the police belatedly and therefore that must be viewed with suspicion. In this regard, we must remember what case of prosecution is as regard reasons for this double murder. There was a murder of one prominent person belonging to one community in 1994, immediately in retaliation; there was a murder of another prominent person of the other community. D1 was interrogated with regard to the second murder. The judgment with regard to the second murder was about to be pronounced at the time of the occurrence. Therefore, it is the case of the Prosecution that the motive for this double murder was the communal enmity. When that is so, and when on account of communal feeling people were killed, it is difficult to expect witnesses and that too witnesses such as PW3, who had nothing to do with even the place of occurrence to come forward to speak about the occurrence. Moreover, they will not be easily identified by the police until some evidence surfaces to link them or witnesses come forward to report to the police about what they had seen or heard. That there was all round panic in Dindigul is spoken of not just by one witness, but many. The atmosphere wasand it is extremely natural for a person, who had witnessed something or who had knowledge about the conspiracy to be guarded before disclosing the game the police. PW2 was present at the time of Inquest. It is only, when lie was examined by PW33 that he came out with what he had seen. In this regard, he stated that soon after the occurrence, his uncle died and therefore, he went away to Periyakulam end stayed there 10 to 15 days. During this period the police had come to his house several times. Therefore, his landlord asked him to vacate the house. This is a very natural reaction. In such situation, people do not want to have any connection with possible chance of trouble. This further strengthens the prosecution case that no one was readily willing to give statement to the police. The tension had to die down, and after mustering courage, people slowly started giving whatever information they had. When the Special Investigating Team started investigation, they assured PW2 that he could tell them freely and frankly whatever he knew and it is thereafter, he had come forward with his statement. He was shown an album with full of photograph and on 16.04.2011, he identified6. It is elicited in histhat he did not tell all the details because he was scared. "...I did not tell Dindigul police on 10.01.1997 night what I told in theI was afraid and agitated because I had withered the murder. I could not speak anything at that time. So I did tell the police anything properly. After Dindigul police enquiry, I wanted to say all that I said inbut because of fear, I did not..."29. In the same manner, deposition ofand other witnessesis considered and convincing reasons are given for arriving at a conclusion that the evidence given by these witnesses for not coming forward with their statements at the early stage was quite understandable and natural and the so called delay did not in any way discredit their credibility. The High Court also relied upon the decision of this Court in Dr. Krishna Pal and another v. State of U.P., (1996) 7 SCC 194.
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State Of Tamil Nadu Vs. V.S. Balakrishnan
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options to be absorbed as permanent employees of the Federation. He has further argued that the options given by the employees in the year 1975 were linked with GO No. 378 and as such, the terminal benefits offered in the said government order have to be given to the respondents. Mr. Kapil Sibal, learned Senior Counsel, on the other hand has contended that 762 posts - including 513 with incumbents - were transferred to the Corporation by the State Government in the year 1972/74. According to him the government department was convened into a Corporation for the purpose of achieving better results in the field concerned. It was fully known to all the employees that they were going to be absorbed permanently in the service of the Corporation. Mr. V. R. Reddy, learned Additional Solicitor General, appearing for the State of Tamil Nadu has vehemently contended that the respondents left the government service as back as 1972/74 and have, in fact, been serving the Corporation and thereafter the Federation. According to him, the Government could not issue formal order absorbing the respondents permanently in the service of the Federation because stay orders by the courts have been operating throughout. The operation of GO No. 1921 remain stayed throughout the proceedings 11. We agree with Mr. Chidambram that a government servant cannot be deprived of his status as a "civil servant" without his consent. This proposition of law is unexceptionable. But at the same time the facts and circumstances of this case leave no manner of doubt that the only course left for the respondent-employees is to accept the service under the Federation as permanent employees. The Corporation was created in the year 1972 and 762 posts were transferred to the Corporation by the State Government. Obviously, all these posts constituted the Dairy Development Department of the Government. There may not be as many posts left in the Dairy Development Department to accommodate those employees who decline to opt for permanent absorption in the service of the Federation. Therefore, the only practical way to solve the problem at this point of time and in the special facts and circumstances of this case, would be to hold that all the employees shall be deemed to have opted to join the service of the Federation. We are, however, inclined to examine the question as to whether the terminal benefits offered in GO No. 1921 are reasonable or are arbitrary in any respect 12. We have given our thoughtful consideration to the contention raised by Mr. Chidambram that the employees are entitled to the terminal benefits as provided in GO No. 378. We are not inclined to agree with him. It is no doubt correct that some sort of options were given to the employees in the year 1975 but the same were not acted upon for the reason that the operation of GO No. 378 was put in abeyance and later on it was substituted by GO No. 284. Apart from that a decision was taken to wind up the Corporation and in its place constitute a Cooperative Federation. In this view of the matter, we find no fault with the stand of the State Government that the action in respect of the options was dropped. We, therefore, see no force in the contention that the respondents are entitled to the terminal benefits as provided in GO No. 378 13. The judgment of the Madras High Court in S. Ananda case (supra) is of no assistance to the respondents. In that case the options given to the employees of the Industries Corporation were directly linked with GO No. 731. They were specifically asked to give their options on the basis of the terminal benefits detailed in GO No. 731. They accepted the terminal benefits and opted to join the service of the Industries Corporation. The Government also accepted the offers given by the employees. The whole circle, based on the terminal benefits contained in GO No. 731 was completed. The High Court, under the circumstances, came to the conclusion that the Government was bound by the principle of equitable estoppel and could not back out from its commitments under GO No. 731 14. We may now examine the terminal benefits offered in GO No. 1921. we have already enumerated in detail the said benefits in earlier part of the judgment. We are of the view that except the provisions regarding family pension and application of Future Liberalised Pension Rules [Item 3(c) and 3(f) of GO No. 1921] all other provisions of the said GO are reasonable and no fault can be found therewith. We are of the view that once an optee for permanent absorption in the Federation is entitled to pro rata pension in respect of the period of service rendered by him under the Government, he is also entitled to the benefit of the family pension. We, therefore, strike down para 3(c) of the GO and direct that the respondents shall be entitled to the benefit of family pension on the basis of pro rata pension given to them. Similarly, we see no justification why the employees, after their permanent absorption in the service of the Federation, be not given the benefit of further liberalisation of pension rules, if any, in respect of the pension which they are already drawing from the Government. This provision is also on the face of it arbitrary. We, therefore, strike down para 3(f) of the said GO and hold that the employees after their permanent absorption with the Federation shall be entitled to the benefit of the liberalised pension rules, if any, in future. All other provisions of GO No. 1921 are reasonable and as such we uphold the same15. We make it clear that all those employees who have retired after 1-2-1983 they shall be deemed to have opted to join the service of the Federation permanently and, as such. they would be entitled to the terminal benefits in terms of GO No. 1921
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1[ds]11. We agree with Mr. Chidambram that a government servant cannot be deprived of his status as a "civil servant" without his consent. This proposition of law is unexceptionable. But at the same time the facts and circumstances of this case leave no manner of doubt that the only course left for theis to accept the service under the Federation as permanent employees. The Corporation was created in the year 1972 and 762 posts were transferred to the Corporation by the State Government. Obviously, all these posts constituted the Dairy Development Department of the Government. There may not be as many posts left in the Dairy Development Department to accommodate those employees who decline to opt for permanent absorption in the service of the Federation. Therefore, the only practical way to solve the problem at this point of time and in the special facts and circumstances of this case, would be to hold that all the employees shall be deemed to have opted to join the service of the Federation. Weare, however, inclined to examine the question as to whether the terminal benefits offered in GO No. 1921 are reasonable or are arbitrary in anyWe have given our thoughtful consideration to the contention raised by Mr. Chidambram that the employees are entitled to the terminal benefits as provided in GO No. 378. We are not inclined to agree with him. It is no doubt correct that some sort of options were given to the employees in the year 1975 but the same were not acted upon for the reason that the operation of GO No. 378 was put in abeyance and later on it was substituted by GO No. 284. Apart from that a decision was taken to wind up the Corporation and in its place constitute a Cooperative Federation. In this view of the matter, we find no fault with the stand of the State Government that the action in respect of the options was dropped. We, therefore, see no force in the contention that the respondents are entitled to the terminal benefits as provided in GO No.are of the view that once an optee for permanent absorption in the Federation is entitled to pro rata pension in respect of the period of service rendered by him under the Government, he is also entitled to the benefit of the family pension. We, therefore, strike down para 3(c) of the GO and direct that the respondents shall be entitled to the benefit of family pension on the basis of pro rata pension given to them. Similarly, we see no justification why the employees, after their permanent absorption in the service of the Federation, be not given the benefit of further liberalisation of pension rules, if any, in respect of the pension which they are already drawing from the Government. This provision is also on the face of it arbitrary. We, therefore, strike down para 3(f) of the said GO and hold that the employees after their permanent absorption with the Federation shall be entitled to the benefit of the liberalised pension rules, if any, in future. All other provisions of GO No. 1921 are reasonable and as such we uphold the same15. We make it clear that all those employees who have retired afterthey shall be deemed to have opted to join the service of the Federation permanently and, as such. they would be entitled to the terminal benefits in terms of GO No. 1921
| 1 | 2,750 | 635 |
### 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:
options to be absorbed as permanent employees of the Federation. He has further argued that the options given by the employees in the year 1975 were linked with GO No. 378 and as such, the terminal benefits offered in the said government order have to be given to the respondents. Mr. Kapil Sibal, learned Senior Counsel, on the other hand has contended that 762 posts - including 513 with incumbents - were transferred to the Corporation by the State Government in the year 1972/74. According to him the government department was convened into a Corporation for the purpose of achieving better results in the field concerned. It was fully known to all the employees that they were going to be absorbed permanently in the service of the Corporation. Mr. V. R. Reddy, learned Additional Solicitor General, appearing for the State of Tamil Nadu has vehemently contended that the respondents left the government service as back as 1972/74 and have, in fact, been serving the Corporation and thereafter the Federation. According to him, the Government could not issue formal order absorbing the respondents permanently in the service of the Federation because stay orders by the courts have been operating throughout. The operation of GO No. 1921 remain stayed throughout the proceedings 11. We agree with Mr. Chidambram that a government servant cannot be deprived of his status as a "civil servant" without his consent. This proposition of law is unexceptionable. But at the same time the facts and circumstances of this case leave no manner of doubt that the only course left for the respondent-employees is to accept the service under the Federation as permanent employees. The Corporation was created in the year 1972 and 762 posts were transferred to the Corporation by the State Government. Obviously, all these posts constituted the Dairy Development Department of the Government. There may not be as many posts left in the Dairy Development Department to accommodate those employees who decline to opt for permanent absorption in the service of the Federation. Therefore, the only practical way to solve the problem at this point of time and in the special facts and circumstances of this case, would be to hold that all the employees shall be deemed to have opted to join the service of the Federation. We are, however, inclined to examine the question as to whether the terminal benefits offered in GO No. 1921 are reasonable or are arbitrary in any respect 12. We have given our thoughtful consideration to the contention raised by Mr. Chidambram that the employees are entitled to the terminal benefits as provided in GO No. 378. We are not inclined to agree with him. It is no doubt correct that some sort of options were given to the employees in the year 1975 but the same were not acted upon for the reason that the operation of GO No. 378 was put in abeyance and later on it was substituted by GO No. 284. Apart from that a decision was taken to wind up the Corporation and in its place constitute a Cooperative Federation. In this view of the matter, we find no fault with the stand of the State Government that the action in respect of the options was dropped. We, therefore, see no force in the contention that the respondents are entitled to the terminal benefits as provided in GO No. 378 13. The judgment of the Madras High Court in S. Ananda case (supra) is of no assistance to the respondents. In that case the options given to the employees of the Industries Corporation were directly linked with GO No. 731. They were specifically asked to give their options on the basis of the terminal benefits detailed in GO No. 731. They accepted the terminal benefits and opted to join the service of the Industries Corporation. The Government also accepted the offers given by the employees. The whole circle, based on the terminal benefits contained in GO No. 731 was completed. The High Court, under the circumstances, came to the conclusion that the Government was bound by the principle of equitable estoppel and could not back out from its commitments under GO No. 731 14. We may now examine the terminal benefits offered in GO No. 1921. we have already enumerated in detail the said benefits in earlier part of the judgment. We are of the view that except the provisions regarding family pension and application of Future Liberalised Pension Rules [Item 3(c) and 3(f) of GO No. 1921] all other provisions of the said GO are reasonable and no fault can be found therewith. We are of the view that once an optee for permanent absorption in the Federation is entitled to pro rata pension in respect of the period of service rendered by him under the Government, he is also entitled to the benefit of the family pension. We, therefore, strike down para 3(c) of the GO and direct that the respondents shall be entitled to the benefit of family pension on the basis of pro rata pension given to them. Similarly, we see no justification why the employees, after their permanent absorption in the service of the Federation, be not given the benefit of further liberalisation of pension rules, if any, in respect of the pension which they are already drawing from the Government. This provision is also on the face of it arbitrary. We, therefore, strike down para 3(f) of the said GO and hold that the employees after their permanent absorption with the Federation shall be entitled to the benefit of the liberalised pension rules, if any, in future. All other provisions of GO No. 1921 are reasonable and as such we uphold the same15. We make it clear that all those employees who have retired after 1-2-1983 they shall be deemed to have opted to join the service of the Federation permanently and, as such. they would be entitled to the terminal benefits in terms of GO No. 1921
### Response:
1
### Explanation:
11. We agree with Mr. Chidambram that a government servant cannot be deprived of his status as a "civil servant" without his consent. This proposition of law is unexceptionable. But at the same time the facts and circumstances of this case leave no manner of doubt that the only course left for theis to accept the service under the Federation as permanent employees. The Corporation was created in the year 1972 and 762 posts were transferred to the Corporation by the State Government. Obviously, all these posts constituted the Dairy Development Department of the Government. There may not be as many posts left in the Dairy Development Department to accommodate those employees who decline to opt for permanent absorption in the service of the Federation. Therefore, the only practical way to solve the problem at this point of time and in the special facts and circumstances of this case, would be to hold that all the employees shall be deemed to have opted to join the service of the Federation. Weare, however, inclined to examine the question as to whether the terminal benefits offered in GO No. 1921 are reasonable or are arbitrary in anyWe have given our thoughtful consideration to the contention raised by Mr. Chidambram that the employees are entitled to the terminal benefits as provided in GO No. 378. We are not inclined to agree with him. It is no doubt correct that some sort of options were given to the employees in the year 1975 but the same were not acted upon for the reason that the operation of GO No. 378 was put in abeyance and later on it was substituted by GO No. 284. Apart from that a decision was taken to wind up the Corporation and in its place constitute a Cooperative Federation. In this view of the matter, we find no fault with the stand of the State Government that the action in respect of the options was dropped. We, therefore, see no force in the contention that the respondents are entitled to the terminal benefits as provided in GO No.are of the view that once an optee for permanent absorption in the Federation is entitled to pro rata pension in respect of the period of service rendered by him under the Government, he is also entitled to the benefit of the family pension. We, therefore, strike down para 3(c) of the GO and direct that the respondents shall be entitled to the benefit of family pension on the basis of pro rata pension given to them. Similarly, we see no justification why the employees, after their permanent absorption in the service of the Federation, be not given the benefit of further liberalisation of pension rules, if any, in respect of the pension which they are already drawing from the Government. This provision is also on the face of it arbitrary. We, therefore, strike down para 3(f) of the said GO and hold that the employees after their permanent absorption with the Federation shall be entitled to the benefit of the liberalised pension rules, if any, in future. All other provisions of GO No. 1921 are reasonable and as such we uphold the same15. We make it clear that all those employees who have retired afterthey shall be deemed to have opted to join the service of the Federation permanently and, as such. they would be entitled to the terminal benefits in terms of GO No. 1921
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Bhagwan and Another Vs. State of Madhya Pradesh
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GUPTA, J. The two appellants before us were convicted by the trial Court of offences under Section 307 read with Section 34, IPC and Section 333 read with Section 34, IPC and each of them was sentenced to six years and four years rigorous imprisonment respectively under the aforesaid two charges. On appeal the High Court affirmed the order of conviction and the sentences passed on the accused-appellants. The prosecution case is that on October 18, 1972 at about 2.30 a.m. PW 1 and PW 9 (Bhagwan Singh and Maharaja Singh), police constables on duty, saw a truck loaded with fuel wood passing through the town Bagh towards Kukshi. PW 5 Latif, cleaner of the truck, and appellant Yaqoob were in the same truck. The truck belonged to the other appellant Bhagwan. Suspecting that the fuel was being illicitly taken away, the two constables stopped the truck and asked for the permit. Latif was then sent to summon appellant Bhagwan who is said to be the owner of the truck. The constables asked the driver of the truck to turn the truck and take it to the police station. As there was no sufficient space for turning the truck, constable Bhagwan Singh (PW 1) asked the driver to take the truck ahead and bring it back and requested constable Maharaja Singh (PW 9) to sit in the truck. After proceeding some distance the truck stopped. Appellants, Bhagwan and Yaqoob, who had been following the truck came up, Yaqoob opened the left side window of the truck and Bhagwan dragged out Maharaja Singh. Yaqoob then hit him with an iron tami and Bhagwan belaboured him with a stick. Maharaja Singh fell down unconscious and the truck was driven away. Bhagwan Singh waited for some time for the truck and when it did not return, he proceeded towards the bus stand where on the road he found Maharaja Singh with bleeding injuries on his person. Bhagwan Singh found appellant Yaqoob standing there and took him to the police station and lodged the FIR (Ex. P-1). Maharaja Singh was then removed to the Public Health Centre, Bagh, where he was examined by PW 4 Dr. Sharma. The defence version is that when constable Bhagwan Singh asked the driver to take the truck to the police station, constable Maharaja Singh was standing on the footboard of the truck and after it proceeded some distance, he was hit by another truck coming from the opposite side, as a result of which he fell down and sustained injuries.2. The prosecution case rests on the evidence of PWs 1, 5 and 9. PW 1 constable Bhagwan Singh lodged the FIR. The story that appellants Bhagwan and Yaqoob followed the truck when it was being taken to the police station does not find a place in the FIR, and PW 1 is not able to explain why. The FIR also does not mention the name of appellant Yaqoob at all. It appears that PW 5, the cleaner of the truck was examined nearly 1 1/2 months after the date of the incident. According to this witness he was kept confined by the police for about two days before they took his statement and it was argued before the trial Court as also before the High Court that he gave his evidence under duress. The High Court has declined to accept the story that PW 5 had been kept under detention. The fact however remains that Latif was examined on November 25, 1972 and there is no explanation why he could not be examined earlier.3. Apart from Latif, PW 9 Maharaja Singh was the only witness of the assault on himself. He was also examined on November 25, 1972 but in his case the explanation is that he could not be examined earlier because of his state of health. In his statement to the police PW 9 did not mention what he stated before the court that appellant Yaqoob assaulted him with a knife and appellant Bhagwan assaulted with a tami. The reason for the omission according to him was that at that time his mind was not working properly. However, he does not say when his mind started functioning properly and when exactly the memory of the incident came flooding back to him to enable him to narrate the story in such detail before the court. The explanation that the mind was not working properly does not also seem to be correct. PW 10 sub-Inspector Suraj Prakash Sharma who recorded Maharaja Singhs statement in states in his evidence :The statement which Maharaja Singh gave was given by him with full understanding. He did not give it in unbalanced condition of mind. His statement Ex. D-3 is written in the same way in which he gave it.4. The defence version finds support from the evidence of PW 4 Dr. Sadashiv Sharma who says referring to the injuries sustained by PW 9 :If two vehicles are passing each other and the injured happens to come in between the two, the person would be pressed and will fall down and roll, in that case all the injuries are possible simultaneously.5. It thus appears that both trial Court and the High Court either ignored the aspects of the case discussed above or sought to explain away some of them, though there was no material to sustain the explanation. We think it unsafe and unreasonable to rest the conviction of the accused on such evidence.
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1[ds]3. Apart from Latif, PW 9 Maharaja Singh was the only witness of the assault on himself. He was also examined on November 25, 1972 but in his case the explanation is that he could not be examined earlier because of his state of health. In his statement to the police PW 9 did not mention what he stated before the court that appellant Yaqoob assaulted him with a knife and appellant Bhagwan assaulted with a tami. The reason for the omission according to him was that at that time his mind was not working properly. However, he does not say when his mind started functioning properly and when exactly the memory of the incident came flooding back to him to enable him to narrate the story in such detail before the court.It thus appears that both trial Court and the High Court either ignored the aspects of the case discussed above or sought to explain away some of them, though there was no material to sustain the explanation. We think it unsafe and unreasonable to rest the conviction of the accused on such evidence.
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### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
GUPTA, J. The two appellants before us were convicted by the trial Court of offences under Section 307 read with Section 34, IPC and Section 333 read with Section 34, IPC and each of them was sentenced to six years and four years rigorous imprisonment respectively under the aforesaid two charges. On appeal the High Court affirmed the order of conviction and the sentences passed on the accused-appellants. The prosecution case is that on October 18, 1972 at about 2.30 a.m. PW 1 and PW 9 (Bhagwan Singh and Maharaja Singh), police constables on duty, saw a truck loaded with fuel wood passing through the town Bagh towards Kukshi. PW 5 Latif, cleaner of the truck, and appellant Yaqoob were in the same truck. The truck belonged to the other appellant Bhagwan. Suspecting that the fuel was being illicitly taken away, the two constables stopped the truck and asked for the permit. Latif was then sent to summon appellant Bhagwan who is said to be the owner of the truck. The constables asked the driver of the truck to turn the truck and take it to the police station. As there was no sufficient space for turning the truck, constable Bhagwan Singh (PW 1) asked the driver to take the truck ahead and bring it back and requested constable Maharaja Singh (PW 9) to sit in the truck. After proceeding some distance the truck stopped. Appellants, Bhagwan and Yaqoob, who had been following the truck came up, Yaqoob opened the left side window of the truck and Bhagwan dragged out Maharaja Singh. Yaqoob then hit him with an iron tami and Bhagwan belaboured him with a stick. Maharaja Singh fell down unconscious and the truck was driven away. Bhagwan Singh waited for some time for the truck and when it did not return, he proceeded towards the bus stand where on the road he found Maharaja Singh with bleeding injuries on his person. Bhagwan Singh found appellant Yaqoob standing there and took him to the police station and lodged the FIR (Ex. P-1). Maharaja Singh was then removed to the Public Health Centre, Bagh, where he was examined by PW 4 Dr. Sharma. The defence version is that when constable Bhagwan Singh asked the driver to take the truck to the police station, constable Maharaja Singh was standing on the footboard of the truck and after it proceeded some distance, he was hit by another truck coming from the opposite side, as a result of which he fell down and sustained injuries.2. The prosecution case rests on the evidence of PWs 1, 5 and 9. PW 1 constable Bhagwan Singh lodged the FIR. The story that appellants Bhagwan and Yaqoob followed the truck when it was being taken to the police station does not find a place in the FIR, and PW 1 is not able to explain why. The FIR also does not mention the name of appellant Yaqoob at all. It appears that PW 5, the cleaner of the truck was examined nearly 1 1/2 months after the date of the incident. According to this witness he was kept confined by the police for about two days before they took his statement and it was argued before the trial Court as also before the High Court that he gave his evidence under duress. The High Court has declined to accept the story that PW 5 had been kept under detention. The fact however remains that Latif was examined on November 25, 1972 and there is no explanation why he could not be examined earlier.3. Apart from Latif, PW 9 Maharaja Singh was the only witness of the assault on himself. He was also examined on November 25, 1972 but in his case the explanation is that he could not be examined earlier because of his state of health. In his statement to the police PW 9 did not mention what he stated before the court that appellant Yaqoob assaulted him with a knife and appellant Bhagwan assaulted with a tami. The reason for the omission according to him was that at that time his mind was not working properly. However, he does not say when his mind started functioning properly and when exactly the memory of the incident came flooding back to him to enable him to narrate the story in such detail before the court. The explanation that the mind was not working properly does not also seem to be correct. PW 10 sub-Inspector Suraj Prakash Sharma who recorded Maharaja Singhs statement in states in his evidence :The statement which Maharaja Singh gave was given by him with full understanding. He did not give it in unbalanced condition of mind. His statement Ex. D-3 is written in the same way in which he gave it.4. The defence version finds support from the evidence of PW 4 Dr. Sadashiv Sharma who says referring to the injuries sustained by PW 9 :If two vehicles are passing each other and the injured happens to come in between the two, the person would be pressed and will fall down and roll, in that case all the injuries are possible simultaneously.5. It thus appears that both trial Court and the High Court either ignored the aspects of the case discussed above or sought to explain away some of them, though there was no material to sustain the explanation. We think it unsafe and unreasonable to rest the conviction of the accused on such evidence.
### Response:
1
### Explanation:
3. Apart from Latif, PW 9 Maharaja Singh was the only witness of the assault on himself. He was also examined on November 25, 1972 but in his case the explanation is that he could not be examined earlier because of his state of health. In his statement to the police PW 9 did not mention what he stated before the court that appellant Yaqoob assaulted him with a knife and appellant Bhagwan assaulted with a tami. The reason for the omission according to him was that at that time his mind was not working properly. However, he does not say when his mind started functioning properly and when exactly the memory of the incident came flooding back to him to enable him to narrate the story in such detail before the court.It thus appears that both trial Court and the High Court either ignored the aspects of the case discussed above or sought to explain away some of them, though there was no material to sustain the explanation. We think it unsafe and unreasonable to rest the conviction of the accused on such evidence.
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Atma Singh & Ors Vs. State Of Punjab & Ors
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stay order passed by the learned single Judge staying the operation of the notification issued under sub-section (3) of S. 5 was to put the said notification in abeyance, with the result that the local areas to which it related were not brought within the municipal limits. It is also an undisputed fact that the stay order passed by the learned single Judge was in force from August 2, 1978 to October 23, 1978. It is, however, urged that with the dismissal of the writ pettition by the learned single Judge on October, 23 1978, the impugned notification was brought into effect and, therefore, the State Government could not proceed with the election without delimitation of wards and preparation of fresh electoral rolls. We are afraid, the contention cannot be accepted. 10. The case presents a rather disturbing feature. There were drastic changes brought about in S. 13 of the Act dealing with the term of councillors leading to the supersession of all municipalities in the State and casting an obligation on the State Government to hold fresh elections of councillors before June 30, 1976. In these circumstances, the Division Bench should have acted with greater circumspection. On the contrary, the Division Bench, on December 19, 1978 passed a stay order staying the dispossession of the Gram Panchayat although the Gram Panchayat had applied for staying the operation of the impugned notification. It is somewhat unfortunate that the stay order passed by the Division Bench was couched in rather ambiguous terms, but it had virtually the same effect as the one passed by the learned single Judge. It is difficult to comprehend the distinction between "stay of dispossession of the Gram Panchayat" and "stay of operation of the impugned notification". Apparently, the Division Bench, without applying its mind, passed an order staying dispossession of the Gram Panchayat, failing to realise that the effect of stay would dislocate the whole electoral process. When a local area sought to be brought within the limits of the municipality by the issue of a notification under sub-s. (3) of S. 5, was kept out of such limits by reason of the stay order passed by the Division Bench, there could obviously be no. delimitation of the municipality into new wards. 11. There was some doubt created about the purport and effect of the stay order passed by the Division Bench. This brought about an inevitable chain of events. After the Division Bench passed the order on December 19, 1978, the State Minister for Transport who represented the Sabha Areas in the State Legislative Assembly wrote to the Minister for Local Self-Government to postpone the elections scheduled to be held for the municipality. When the exact nature of the stay order was brought to the notice of the Minister, he agreed with the view of the Local Self-Government Department that the elections to the municipality could not be held without a delimitation of the municipal area. Eventually, the State Government had no. other alternative but to hold the election of the councillors on the basis of the existing limits of the municipality, i. e. from the existing 15 wards, due to the amendment of Proviso to sub-s. (3) of S. 13 of the Act by Punjab Act 2 of 1979 which made it obligatory for the State Government to hold the election before June 30, 1979. There can be no. doubt that the State Government acted with the best of intentions in deciding to hold the elections, The election so held on June 10, 1979 was a valid election and the councillors elected are entitled to run their full term of five years as provided by sub-s. (2) of S. 13. The contention that with the vacation of the stay by the dismissal of the Letters Patent Appeal on April 1, 1980, the whole election would be invalidated, must, therefore, fail. 12. We are distressed to find that due to the stay order passed by the Division Bench a large number of inhabitants of the local areas brought within the municipal limits under sub-s. (3) of S. 5 of the Act, who were otherwise eligible to be enrolled as voters, have thereby been deprived not only of their valuable right to vote at the election but also of the right to contest as a candidate for election as a councillor from any of the wards of the municipality or to the office of the President or the Vice-President. But there is little that can be done in the matter at this stage. 13. Driven to this situation brought about by the stay orders of the High Court, there is no. other alternative but to direct that the local areas included in the municipality under sub-s. (3) of S. 5 should be formed into a ward or wards and representation given to them under sub-s. (5) of S. 5 of the Act. The term of the councillors so elected from such local areas shall be conterminous with the term of the councillors already elected from the existing 15 wards. We are assured by learned counsel for the State that the State Government shall take immediate steps to comply with this direction. This shall be a purely interim arrangement necessitated by the somewhat unfortunate stay orders passed by the High-Court. The interim arrangement cannot obviously extend beyond the term of the present council. 14. We hope and trust that the State Government shall, in the meanwhile, take steps to constitute a Delimitation Board under R. 3 of the Delimitation of Wards of Municipalities Rules, 1972. After the delimitation of the municipality into new wards, the State Government shall proceed to re-fix the number of councillors of the re-constituted municipality under S. 11, prescribe the number of elected councillors afresh as required under cl. (a) of sub-s. (1) of S. 12 of the Act and issue necessary directions for the preparation of fresh electoral rolls as required under Rr. 8 and 8A of the Election Rules, 1952. 15.
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0[ds]The whole purpose of delimitation of municipalities into wards is to ensure that every citizen should get a fair representation in the municipalities. When a municipality is re-constituted by the inclusion of any local area within the limits of a municipality under sub-section (3) of S. 5 or by the exclusion of any local area from the limits of a municipality under S. 7, i. e. when there is an alteration of the limits of the municipality, there must of necessity be a division of the reconstituted municipality into new wards without which the elections cannot be held. There can be no. disenfranchisement of a part of the electorate of a municipalityIt must follow logically and inevitably from this proposition that the constitution of wards dividing the whole of the municipal district is a since qua non of a valid election. If no. wards at all are constituted in the municipal district, the machinery of election cannot go through and equally the machinery of election cannot go through if wards are constituted in respect of a part of the municipal district and the other part is not divided into any ward or wards. In such a case there would be lists of voters for the wards which are constituted out of a part of the municipal district but there would be no. lists of voters so far as the other part of the municipal district is concerned and no. one from that part would be qualified to vote or to stand as a candidate for the election and no. councillors being elected by that part, there would be no. representation of that part on the municipality. Where such a situation arises, it is difficult to see how the Municipality can be said to be a Municipality for the whole of the municipal district within the meaning of S. 9We approve of the view taken by the Gujarat High Court8. Therecan be no. dispute with the principle that the State Government without re-constituting a municipality into new wards, cannot proceed to hold an election of councillors, when there is an extension of the municipal limits, but the difficulty is about the applicability of that principle to the facts of the present case. There is no. denying the fact that the effect of the stay order passed by the learned single Judge staying the operation of the notification issued under sub-section (3) of S. 5 was to put the said notification in abeyance, with the result that the local areas to which it related were not brought within the municipal limits. It is also an undisputed fact that the stay order passed by the learned single Judge was in force from August 2, 1978 to October 23, 1978. It is, however, urged that with the dismissal of the writ pettition by the learned single Judge on October, 23 1978, the impugned notification was brought into effect and, therefore, the State Government could not proceed with the election without delimitation of wards and preparation of fresh electoralrolls.We are afraid, the contention cannot be acceptedDriven to this situation brought about by the stay orders of the High Court, there is no. other alternative but to direct that the local areas included in the municipality under sub-s. (3) of S. 5 should be formed into a ward or wards and representation given to them under sub-s. (5) of S. 5 of the Act. The term of the councillors so elected from such local areas shall be conterminous with the term of the councillors already elected from the existing 15 wards. We are assured by learned counsel for the State that the State Government shall take immediate steps to comply with this direction. This shall be a purely interim arrangement necessitated by the somewhat unfortunate stay orders passed by the High-Court. The interim arrangement cannot obviously extend beyond the term of the present councilWe hope and trust that the State Government shall, in the meanwhile, take steps to constitute a Delimitation Board under R. 3 of the Delimitation of Wards of Municipalities Rules, 1972. After the delimitation of the municipality into new wards, the State Government shall proceed to re-fix the number of councillors of the re-constituted municipality under S. 11, prescribe the number of elected councillors afresh as required under cl. (a) of sub-s. (1) of S. 12 of the Act and issue necessary directions for the preparation of fresh electoral rolls as required under Rr. 8 and 8A of the Election Rules, 1952The first of these submissions is unexceptionable, but it does not arises, and the second appears to us to be wholly devoid of substance7. Whenever there is a change in the limits of a municipality, the State Government cannot proceed to hold election of councillors without delimitation of the municipality into wards. The delimitation of wards, a delicate and important task, is entrusted to a Delimitation Board constituted under R. 3 of the Delimitation of Wards of Municipalities Rules, 1972 and under R. 4 thereof it is the duty of the Delimitation Board to effect an of a municipality, That rule reads thus :
| 0 | 2,871 | 934 |
### 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:
stay order passed by the learned single Judge staying the operation of the notification issued under sub-section (3) of S. 5 was to put the said notification in abeyance, with the result that the local areas to which it related were not brought within the municipal limits. It is also an undisputed fact that the stay order passed by the learned single Judge was in force from August 2, 1978 to October 23, 1978. It is, however, urged that with the dismissal of the writ pettition by the learned single Judge on October, 23 1978, the impugned notification was brought into effect and, therefore, the State Government could not proceed with the election without delimitation of wards and preparation of fresh electoral rolls. We are afraid, the contention cannot be accepted. 10. The case presents a rather disturbing feature. There were drastic changes brought about in S. 13 of the Act dealing with the term of councillors leading to the supersession of all municipalities in the State and casting an obligation on the State Government to hold fresh elections of councillors before June 30, 1976. In these circumstances, the Division Bench should have acted with greater circumspection. On the contrary, the Division Bench, on December 19, 1978 passed a stay order staying the dispossession of the Gram Panchayat although the Gram Panchayat had applied for staying the operation of the impugned notification. It is somewhat unfortunate that the stay order passed by the Division Bench was couched in rather ambiguous terms, but it had virtually the same effect as the one passed by the learned single Judge. It is difficult to comprehend the distinction between "stay of dispossession of the Gram Panchayat" and "stay of operation of the impugned notification". Apparently, the Division Bench, without applying its mind, passed an order staying dispossession of the Gram Panchayat, failing to realise that the effect of stay would dislocate the whole electoral process. When a local area sought to be brought within the limits of the municipality by the issue of a notification under sub-s. (3) of S. 5, was kept out of such limits by reason of the stay order passed by the Division Bench, there could obviously be no. delimitation of the municipality into new wards. 11. There was some doubt created about the purport and effect of the stay order passed by the Division Bench. This brought about an inevitable chain of events. After the Division Bench passed the order on December 19, 1978, the State Minister for Transport who represented the Sabha Areas in the State Legislative Assembly wrote to the Minister for Local Self-Government to postpone the elections scheduled to be held for the municipality. When the exact nature of the stay order was brought to the notice of the Minister, he agreed with the view of the Local Self-Government Department that the elections to the municipality could not be held without a delimitation of the municipal area. Eventually, the State Government had no. other alternative but to hold the election of the councillors on the basis of the existing limits of the municipality, i. e. from the existing 15 wards, due to the amendment of Proviso to sub-s. (3) of S. 13 of the Act by Punjab Act 2 of 1979 which made it obligatory for the State Government to hold the election before June 30, 1979. There can be no. doubt that the State Government acted with the best of intentions in deciding to hold the elections, The election so held on June 10, 1979 was a valid election and the councillors elected are entitled to run their full term of five years as provided by sub-s. (2) of S. 13. The contention that with the vacation of the stay by the dismissal of the Letters Patent Appeal on April 1, 1980, the whole election would be invalidated, must, therefore, fail. 12. We are distressed to find that due to the stay order passed by the Division Bench a large number of inhabitants of the local areas brought within the municipal limits under sub-s. (3) of S. 5 of the Act, who were otherwise eligible to be enrolled as voters, have thereby been deprived not only of their valuable right to vote at the election but also of the right to contest as a candidate for election as a councillor from any of the wards of the municipality or to the office of the President or the Vice-President. But there is little that can be done in the matter at this stage. 13. Driven to this situation brought about by the stay orders of the High Court, there is no. other alternative but to direct that the local areas included in the municipality under sub-s. (3) of S. 5 should be formed into a ward or wards and representation given to them under sub-s. (5) of S. 5 of the Act. The term of the councillors so elected from such local areas shall be conterminous with the term of the councillors already elected from the existing 15 wards. We are assured by learned counsel for the State that the State Government shall take immediate steps to comply with this direction. This shall be a purely interim arrangement necessitated by the somewhat unfortunate stay orders passed by the High-Court. The interim arrangement cannot obviously extend beyond the term of the present council. 14. We hope and trust that the State Government shall, in the meanwhile, take steps to constitute a Delimitation Board under R. 3 of the Delimitation of Wards of Municipalities Rules, 1972. After the delimitation of the municipality into new wards, the State Government shall proceed to re-fix the number of councillors of the re-constituted municipality under S. 11, prescribe the number of elected councillors afresh as required under cl. (a) of sub-s. (1) of S. 12 of the Act and issue necessary directions for the preparation of fresh electoral rolls as required under Rr. 8 and 8A of the Election Rules, 1952. 15.
### Response:
0
### Explanation:
The whole purpose of delimitation of municipalities into wards is to ensure that every citizen should get a fair representation in the municipalities. When a municipality is re-constituted by the inclusion of any local area within the limits of a municipality under sub-section (3) of S. 5 or by the exclusion of any local area from the limits of a municipality under S. 7, i. e. when there is an alteration of the limits of the municipality, there must of necessity be a division of the reconstituted municipality into new wards without which the elections cannot be held. There can be no. disenfranchisement of a part of the electorate of a municipalityIt must follow logically and inevitably from this proposition that the constitution of wards dividing the whole of the municipal district is a since qua non of a valid election. If no. wards at all are constituted in the municipal district, the machinery of election cannot go through and equally the machinery of election cannot go through if wards are constituted in respect of a part of the municipal district and the other part is not divided into any ward or wards. In such a case there would be lists of voters for the wards which are constituted out of a part of the municipal district but there would be no. lists of voters so far as the other part of the municipal district is concerned and no. one from that part would be qualified to vote or to stand as a candidate for the election and no. councillors being elected by that part, there would be no. representation of that part on the municipality. Where such a situation arises, it is difficult to see how the Municipality can be said to be a Municipality for the whole of the municipal district within the meaning of S. 9We approve of the view taken by the Gujarat High Court8. Therecan be no. dispute with the principle that the State Government without re-constituting a municipality into new wards, cannot proceed to hold an election of councillors, when there is an extension of the municipal limits, but the difficulty is about the applicability of that principle to the facts of the present case. There is no. denying the fact that the effect of the stay order passed by the learned single Judge staying the operation of the notification issued under sub-section (3) of S. 5 was to put the said notification in abeyance, with the result that the local areas to which it related were not brought within the municipal limits. It is also an undisputed fact that the stay order passed by the learned single Judge was in force from August 2, 1978 to October 23, 1978. It is, however, urged that with the dismissal of the writ pettition by the learned single Judge on October, 23 1978, the impugned notification was brought into effect and, therefore, the State Government could not proceed with the election without delimitation of wards and preparation of fresh electoralrolls.We are afraid, the contention cannot be acceptedDriven to this situation brought about by the stay orders of the High Court, there is no. other alternative but to direct that the local areas included in the municipality under sub-s. (3) of S. 5 should be formed into a ward or wards and representation given to them under sub-s. (5) of S. 5 of the Act. The term of the councillors so elected from such local areas shall be conterminous with the term of the councillors already elected from the existing 15 wards. We are assured by learned counsel for the State that the State Government shall take immediate steps to comply with this direction. This shall be a purely interim arrangement necessitated by the somewhat unfortunate stay orders passed by the High-Court. The interim arrangement cannot obviously extend beyond the term of the present councilWe hope and trust that the State Government shall, in the meanwhile, take steps to constitute a Delimitation Board under R. 3 of the Delimitation of Wards of Municipalities Rules, 1972. After the delimitation of the municipality into new wards, the State Government shall proceed to re-fix the number of councillors of the re-constituted municipality under S. 11, prescribe the number of elected councillors afresh as required under cl. (a) of sub-s. (1) of S. 12 of the Act and issue necessary directions for the preparation of fresh electoral rolls as required under Rr. 8 and 8A of the Election Rules, 1952The first of these submissions is unexceptionable, but it does not arises, and the second appears to us to be wholly devoid of substance7. Whenever there is a change in the limits of a municipality, the State Government cannot proceed to hold election of councillors without delimitation of the municipality into wards. The delimitation of wards, a delicate and important task, is entrusted to a Delimitation Board constituted under R. 3 of the Delimitation of Wards of Municipalities Rules, 1972 and under R. 4 thereof it is the duty of the Delimitation Board to effect an of a municipality, That rule reads thus :
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Dr. Rai Shivendra Bahadur Vs. Governing Body of The Nalanda College, Bihar Sharif & Others
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the University were informed of this appointment as required by the University Statutes and he actually took charge of his office on July 11, 1958. At a meeting on July 27 1958 the appointment made on February 23, 1958 was confirmed. On November 9, 1959, there was a change in the constitution of the Governing Body and respondent No. 2 became its Chairman. The Governing Body reconsidered the proceedings of February 23, 1958 and at a meeting on January 31, 1960, the Governing Body resolved to appoint a new Principal. In the meanwhile it decided that the appellant should continue to act till a new appointment was made. At this meeting the appellant, as an ex-officio member, was present. He alleges that he complained about this appointment to the Vice-Chancellor of the Bihar University and he was, by a letter, advised by the Vice-Chancellor to watch and see what happens. On May 14, 1960 the Governing Body resolved to advertise the post. At this meeting also the appellant was present and on September 26, 1960 the Governing Body resolved to readvertise the post. Some candidates including the appellant were interviewed by the Governing Body and on December 18, 1960 it passed a resolution authorising the Chairman to make a selection from amongst the candidates who had been interviewed, and who included the appellant. In accordance with this resolution the President, respondent No. 2, appointed respondent No. 4 as the Principal of the College. He was at that time a Principal of another College in Bihar. On April 18, 1961 the appellant was asked to hand over charge to the new appointee by May 6, 1961. The petitioner thereupon filed a petition under Art. 226 of the Constitution challenging the validity of the appointment of respondent No. 4 as Principal on the ground that the appellants appointment was never terminated and if there was any resolution by which resolution of February 23,1958 was rescinded or cancelled, it was illegal as it was not included in the agenda to be transacted and was void because of certain provisions in the University Statute framed under the University of Bihar Act, 1951 (Act 27 of 1951), which had the force of law; that the appointment of the new Principal was invalid because the appointment had to be made by the Governing Body of the College at its meeting and that power could not be delegated to the President or the Secretary; that the appointment was not approved by the University and the appellant was a better candidate than respondent No. 4 and he was entitled to promotion under Art. 4 (1) (b) of Statute XVI. 3. These allegations were denied by the respondents. They pleaded that the resolution of February 23, 1958 was not valid because it did not consider the case of other teachers for promotion ; that the appointment of the appellant was never approved by the Syndicate as required by Art. 5 of Statute XVI; that the appellant having himself applied for the post of Principal after the resolutions were passed by the new Governing Body and having offered himself for interview before the Governing Body could not challenge the legality of the appointment as he could not approbate and reprobate. 4. The High Court held that the appellants appointment was not valid as the syndicate had not given its approval and the petitioner had been allowed to join the post of Principal without such approval; that the decision of the Governing Body to advertise for the post of Principal was neither a case of punishment nor termination of service nor was it a demotion of the appellant, therefore it did not fall under Arts. 7, 8 and 9 of the Statutes. It also held that there was no protest from the appellant against the passing of the new resolution and as he submitted himself for selection, he could not now complain if some body else was selected.. It was held therefore that the appellant could not challenge the new appointment because (1) his own appointment was not valid and (2) the appointment of respondent No. 4 was valid as it was approved by the University. 5. A great deal of controversy was raised before us as to whether the Statutes framed by the University under S. 20 of the University of Bihar Act have or have not the force of law and whether a writ under Art. 226 of the Constitution can issue against the Governing Body of the College i.e. whether the appellant has a legal right to the performance of a legal duty by the respondents. In order that mandamus may issue to compel the respondents to do something it must be shown that the Statutes impose a legal duty and the appellant has a legal right under the Statutes to enforce its performance. It is, however, wholly unnecessary to go into or decide this question or to decide whether the Statutes impose on the Governing Body of the College a duty which can be enforced by a writ of mandamus because assuming that the contention of the appellant is right that the College is a public body and it has to perform a public duty in the appointment of a Principal, it has not been shown that there is any right in the appellant which can be enforced by mandamus. According to the Statutes all appointments of teachers and staff have to be made by the Governing Body and no person can be appointed, removed or demoted except in accordance with Rules but the appellant has not shown that he has any right entitling him to get an order for appointment or reinstatement. Our attention has not been drawn to any Article in the Statutes by which the appellant has a right to be appointed or reinstated and if he has no that right he cannot come to Court and ask for at writ to issue. It is therefore not necessary to go into any other question.
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0[ds]5. A great deal of controversy was raised before us as to whether the Statutes framed by the University under S. 20 of the University of Bihar Act have or have not the force of law and whether a writ under Art. 226 of the Constitution can issue against the Governing Body of the College i.e. whether the appellant has a legal right to the performance of a legal duty by the respondents. In order that mandamus may issue to compel the respondents to do something it must be shown that the Statutes impose a legal duty and the appellant has a legal right under the Statutes to enforce its performance. It is, however, wholly unnecessary to go into or decide this question or to decide whether the Statutes impose on the Governing Body of the College a duty which can be enforced by a writ of mandamus because assuming that the contention of the appellant is right that the College is a public body and it has to perform a public duty in the appointment of a Principal, it has not been shown that there is any right in the appellant which can be enforced by mandamus. According to the Statutes all appointments of teachers and staff have to be made by the Governing Body and no person can be appointed, removed or demoted except in accordance with Rules but the appellant has not shown that he has any right entitling him to get an order for appointment or reinstatement. Our attention has not been drawn to any Article in the Statutes by which the appellant has a right to be appointed or reinstated and if he has no that right he cannot come to Court and ask for at writ to issue. It is therefore not necessary to go into any other question.
| 0 | 1,257 | 323 |
### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
the University were informed of this appointment as required by the University Statutes and he actually took charge of his office on July 11, 1958. At a meeting on July 27 1958 the appointment made on February 23, 1958 was confirmed. On November 9, 1959, there was a change in the constitution of the Governing Body and respondent No. 2 became its Chairman. The Governing Body reconsidered the proceedings of February 23, 1958 and at a meeting on January 31, 1960, the Governing Body resolved to appoint a new Principal. In the meanwhile it decided that the appellant should continue to act till a new appointment was made. At this meeting the appellant, as an ex-officio member, was present. He alleges that he complained about this appointment to the Vice-Chancellor of the Bihar University and he was, by a letter, advised by the Vice-Chancellor to watch and see what happens. On May 14, 1960 the Governing Body resolved to advertise the post. At this meeting also the appellant was present and on September 26, 1960 the Governing Body resolved to readvertise the post. Some candidates including the appellant were interviewed by the Governing Body and on December 18, 1960 it passed a resolution authorising the Chairman to make a selection from amongst the candidates who had been interviewed, and who included the appellant. In accordance with this resolution the President, respondent No. 2, appointed respondent No. 4 as the Principal of the College. He was at that time a Principal of another College in Bihar. On April 18, 1961 the appellant was asked to hand over charge to the new appointee by May 6, 1961. The petitioner thereupon filed a petition under Art. 226 of the Constitution challenging the validity of the appointment of respondent No. 4 as Principal on the ground that the appellants appointment was never terminated and if there was any resolution by which resolution of February 23,1958 was rescinded or cancelled, it was illegal as it was not included in the agenda to be transacted and was void because of certain provisions in the University Statute framed under the University of Bihar Act, 1951 (Act 27 of 1951), which had the force of law; that the appointment of the new Principal was invalid because the appointment had to be made by the Governing Body of the College at its meeting and that power could not be delegated to the President or the Secretary; that the appointment was not approved by the University and the appellant was a better candidate than respondent No. 4 and he was entitled to promotion under Art. 4 (1) (b) of Statute XVI. 3. These allegations were denied by the respondents. They pleaded that the resolution of February 23, 1958 was not valid because it did not consider the case of other teachers for promotion ; that the appointment of the appellant was never approved by the Syndicate as required by Art. 5 of Statute XVI; that the appellant having himself applied for the post of Principal after the resolutions were passed by the new Governing Body and having offered himself for interview before the Governing Body could not challenge the legality of the appointment as he could not approbate and reprobate. 4. The High Court held that the appellants appointment was not valid as the syndicate had not given its approval and the petitioner had been allowed to join the post of Principal without such approval; that the decision of the Governing Body to advertise for the post of Principal was neither a case of punishment nor termination of service nor was it a demotion of the appellant, therefore it did not fall under Arts. 7, 8 and 9 of the Statutes. It also held that there was no protest from the appellant against the passing of the new resolution and as he submitted himself for selection, he could not now complain if some body else was selected.. It was held therefore that the appellant could not challenge the new appointment because (1) his own appointment was not valid and (2) the appointment of respondent No. 4 was valid as it was approved by the University. 5. A great deal of controversy was raised before us as to whether the Statutes framed by the University under S. 20 of the University of Bihar Act have or have not the force of law and whether a writ under Art. 226 of the Constitution can issue against the Governing Body of the College i.e. whether the appellant has a legal right to the performance of a legal duty by the respondents. In order that mandamus may issue to compel the respondents to do something it must be shown that the Statutes impose a legal duty and the appellant has a legal right under the Statutes to enforce its performance. It is, however, wholly unnecessary to go into or decide this question or to decide whether the Statutes impose on the Governing Body of the College a duty which can be enforced by a writ of mandamus because assuming that the contention of the appellant is right that the College is a public body and it has to perform a public duty in the appointment of a Principal, it has not been shown that there is any right in the appellant which can be enforced by mandamus. According to the Statutes all appointments of teachers and staff have to be made by the Governing Body and no person can be appointed, removed or demoted except in accordance with Rules but the appellant has not shown that he has any right entitling him to get an order for appointment or reinstatement. Our attention has not been drawn to any Article in the Statutes by which the appellant has a right to be appointed or reinstated and if he has no that right he cannot come to Court and ask for at writ to issue. It is therefore not necessary to go into any other question.
### Response:
0
### Explanation:
5. A great deal of controversy was raised before us as to whether the Statutes framed by the University under S. 20 of the University of Bihar Act have or have not the force of law and whether a writ under Art. 226 of the Constitution can issue against the Governing Body of the College i.e. whether the appellant has a legal right to the performance of a legal duty by the respondents. In order that mandamus may issue to compel the respondents to do something it must be shown that the Statutes impose a legal duty and the appellant has a legal right under the Statutes to enforce its performance. It is, however, wholly unnecessary to go into or decide this question or to decide whether the Statutes impose on the Governing Body of the College a duty which can be enforced by a writ of mandamus because assuming that the contention of the appellant is right that the College is a public body and it has to perform a public duty in the appointment of a Principal, it has not been shown that there is any right in the appellant which can be enforced by mandamus. According to the Statutes all appointments of teachers and staff have to be made by the Governing Body and no person can be appointed, removed or demoted except in accordance with Rules but the appellant has not shown that he has any right entitling him to get an order for appointment or reinstatement. Our attention has not been drawn to any Article in the Statutes by which the appellant has a right to be appointed or reinstated and if he has no that right he cannot come to Court and ask for at writ to issue. It is therefore not necessary to go into any other question.
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Messrs Badri Prasad Bhola Nath and Others Vs. Ganesh Prasad and Others
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fact negatived the case of licence in these words : The plaintiff has thus failed to prove that the defendant firm is in occupation of the disputed constructions as a licencee, ... The defendant firm is in occupation of the disputed accommodation but not as a licencee of the plaintiff. This point is decided accordingly in favour of the defendants-appellants. 7. The High Court, strangely enough, did not reverse this finding negativing the case of licence set up by the plaintiff. To by-pass a basic issue is to make a short cut which, oftentimes, proves a wrong cut. The learned Judge, after stating that a suit for ejectment can be decreed on the basis of title even though a case of tenancy as pleaded may not be established, proceeded to clinch the matter by resort to doubtful logic and law. We had better borrow the language of the High Court itself. The defendants were in occupation of the premises either with permission or without the permission of the plaintiff. If with permission, they were licencees. If without permission, they were trespassers. Ad valorem court-fees on the value of the property had been paid in the suit and the plaintiffs claim could be investigated on the basis of his title. Once the learned Judge came to the conclusion that the plaintiff was the owner of the property and the defendants had no. title to the same, it seems to me that the suit should be decreed on the basis of the plaintiffs title even though the case set out may not have been established in the form pleaded. 8. The vital issues on which the fate of the case depended were thus ignored. The substance of the plea in defence was covered by issues 3 and 4 which we may extract : 3. Whether Dwarika Prasad was the tenant of the accommodation in suit and his tenancy continues? If so, its effect ? 4. Whether the premises in suit is subject to the U. P. Control of Rent & Eviction Act? If so, its effect? It was the duty of the learned Judge as well as the High Court to have recorded findings on these crucial issues one way or the other. If Dwarika Prasad was a tenant under the predecessor of the tenant and the defendant firm merely stepped into the shoes of the tenant, the Act inhibited eviction of the accommodation without reference to the grounds permitted by the Act. There are certain telling circumstances which must be remembered in this context. The accommodation was in existence before the plaintiff acquired title. The premises were in the occupation of the first defendant firm and, prima facie, the implications of possession are not necessarily consistent only with a licence. Moreover, the plaintiff himself was one of the partners of the firm which was in possession. Notwithstanding title in the plaintiff, the admitted possession of the first defendant needed explanation. Rival versions were set up, one of licence and the other of lease. Issues were struck highlighting the point and the decision of the suit depended on the verdict thereon. It was inescapable for the court to record its holding on the major issues in the suit. The learned Judge at the High Court level was taken in by the specious submission on the side of the plaintiff that if the occupation was with permission, they were licensees. The sequitur does not follow. The occupation could well be on the strength of a lease. The objective fact remains that the first defendant firm has been in possession. It was capable of two explanations. Induction under a lease, or permissive occupation as licensee. The learned District Judge had negatived the case of licence which was the specific case put forward by the plaintiff. By implication did he uphold the lease? This was left ambiguous and this was wrong since a specific consideration of the issue about the lease and a finding thereon was necessary. The High Court did no. better. Its brief observation as if all alternatives were exhausted thereby cannot hold good : If with permission, they were licensees; if, without permission, they were trespassers. The third probability that possession, especially when the person in possession was a firm of which the landlord was a partner, could well have been under the lease set up from the predecessor of the plaintiff. We cannot say that it must be so, but we must say that the matter deserved to be considered before final disposal of the case. A finding on title in favour of the plaintiff who had no. explanation for the possession of the first defendant especially in a case where such possession was surrounded by circumstances tending to one inference or the other, could not inevitably end in a decree for possession. The investigation by the District Judge himself was incomplete and the High Courts simplistic disposal also cannot hold good. 9. We are therefore constrained to remit the case to the District Court for fresh disposal of the appeal after recording findings on issues 3 and 4. We make it clear that the title of the plaintiff will not be open to assail, that the suit property is accommodation within the meaning of the Act cannot be re-opened and that the building on the plot was there even prior to the plaintiffs acquisition of the title must be taken as establsihed. We also add a note of caution that our broad discussion on the question of the nature of the possession is not intended to conclude the matter but to highlight the necessity for the recording of findings thereon. The observations made in that context should not be taken as fettering the re-assessment of the evidence by the District Court. If the Court thinks that there is need to allow the parties to let in further evidence or to call for a finding from the trial Court, it will not be precluded from doing so by this order. 10.
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1[ds]We cannot say that it must be so, but we must say that the matter deserved to be considered before final disposal of the case. A finding on title in favour of the plaintiff who had no. explanation for the possession of the first defendant especially in a case where such possession was surrounded by circumstances tending to one inference or the other, could not inevitably end in a decree for possession. The investigation by the District Judge himself was incomplete and the High Courts simplistic disposal also cannot hold good9. We are therefore constrained to remit the case to the District Court for fresh disposal of the appeal after recording findings on issues 3 and 4. We make it clear that the title of the plaintiff will not be open to assail, that the suit property is accommodation within the meaning of the Act cannot bed and that the building on the plot was there even prior to the plaintiffs acquisition of the title must be taken as establsihed. We also add a note of caution that our broad discussion on the question of the nature of the possession is not intended to conclude the matter but to highlight the necessity for the recording of findings thereon. The observations made in that context should not be taken as fettering thet of the evidence by the District Court. If the Court thinks that there is need to allow the parties to let in further evidence or to call for a finding from the trial Court, it will not be precluded from doing so by this order.
| 1 | 1,712 | 286 |
### 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:
fact negatived the case of licence in these words : The plaintiff has thus failed to prove that the defendant firm is in occupation of the disputed constructions as a licencee, ... The defendant firm is in occupation of the disputed accommodation but not as a licencee of the plaintiff. This point is decided accordingly in favour of the defendants-appellants. 7. The High Court, strangely enough, did not reverse this finding negativing the case of licence set up by the plaintiff. To by-pass a basic issue is to make a short cut which, oftentimes, proves a wrong cut. The learned Judge, after stating that a suit for ejectment can be decreed on the basis of title even though a case of tenancy as pleaded may not be established, proceeded to clinch the matter by resort to doubtful logic and law. We had better borrow the language of the High Court itself. The defendants were in occupation of the premises either with permission or without the permission of the plaintiff. If with permission, they were licencees. If without permission, they were trespassers. Ad valorem court-fees on the value of the property had been paid in the suit and the plaintiffs claim could be investigated on the basis of his title. Once the learned Judge came to the conclusion that the plaintiff was the owner of the property and the defendants had no. title to the same, it seems to me that the suit should be decreed on the basis of the plaintiffs title even though the case set out may not have been established in the form pleaded. 8. The vital issues on which the fate of the case depended were thus ignored. The substance of the plea in defence was covered by issues 3 and 4 which we may extract : 3. Whether Dwarika Prasad was the tenant of the accommodation in suit and his tenancy continues? If so, its effect ? 4. Whether the premises in suit is subject to the U. P. Control of Rent & Eviction Act? If so, its effect? It was the duty of the learned Judge as well as the High Court to have recorded findings on these crucial issues one way or the other. If Dwarika Prasad was a tenant under the predecessor of the tenant and the defendant firm merely stepped into the shoes of the tenant, the Act inhibited eviction of the accommodation without reference to the grounds permitted by the Act. There are certain telling circumstances which must be remembered in this context. The accommodation was in existence before the plaintiff acquired title. The premises were in the occupation of the first defendant firm and, prima facie, the implications of possession are not necessarily consistent only with a licence. Moreover, the plaintiff himself was one of the partners of the firm which was in possession. Notwithstanding title in the plaintiff, the admitted possession of the first defendant needed explanation. Rival versions were set up, one of licence and the other of lease. Issues were struck highlighting the point and the decision of the suit depended on the verdict thereon. It was inescapable for the court to record its holding on the major issues in the suit. The learned Judge at the High Court level was taken in by the specious submission on the side of the plaintiff that if the occupation was with permission, they were licensees. The sequitur does not follow. The occupation could well be on the strength of a lease. The objective fact remains that the first defendant firm has been in possession. It was capable of two explanations. Induction under a lease, or permissive occupation as licensee. The learned District Judge had negatived the case of licence which was the specific case put forward by the plaintiff. By implication did he uphold the lease? This was left ambiguous and this was wrong since a specific consideration of the issue about the lease and a finding thereon was necessary. The High Court did no. better. Its brief observation as if all alternatives were exhausted thereby cannot hold good : If with permission, they were licensees; if, without permission, they were trespassers. The third probability that possession, especially when the person in possession was a firm of which the landlord was a partner, could well have been under the lease set up from the predecessor of the plaintiff. We cannot say that it must be so, but we must say that the matter deserved to be considered before final disposal of the case. A finding on title in favour of the plaintiff who had no. explanation for the possession of the first defendant especially in a case where such possession was surrounded by circumstances tending to one inference or the other, could not inevitably end in a decree for possession. The investigation by the District Judge himself was incomplete and the High Courts simplistic disposal also cannot hold good. 9. We are therefore constrained to remit the case to the District Court for fresh disposal of the appeal after recording findings on issues 3 and 4. We make it clear that the title of the plaintiff will not be open to assail, that the suit property is accommodation within the meaning of the Act cannot be re-opened and that the building on the plot was there even prior to the plaintiffs acquisition of the title must be taken as establsihed. We also add a note of caution that our broad discussion on the question of the nature of the possession is not intended to conclude the matter but to highlight the necessity for the recording of findings thereon. The observations made in that context should not be taken as fettering the re-assessment of the evidence by the District Court. If the Court thinks that there is need to allow the parties to let in further evidence or to call for a finding from the trial Court, it will not be precluded from doing so by this order. 10.
### Response:
1
### Explanation:
We cannot say that it must be so, but we must say that the matter deserved to be considered before final disposal of the case. A finding on title in favour of the plaintiff who had no. explanation for the possession of the first defendant especially in a case where such possession was surrounded by circumstances tending to one inference or the other, could not inevitably end in a decree for possession. The investigation by the District Judge himself was incomplete and the High Courts simplistic disposal also cannot hold good9. We are therefore constrained to remit the case to the District Court for fresh disposal of the appeal after recording findings on issues 3 and 4. We make it clear that the title of the plaintiff will not be open to assail, that the suit property is accommodation within the meaning of the Act cannot bed and that the building on the plot was there even prior to the plaintiffs acquisition of the title must be taken as establsihed. We also add a note of caution that our broad discussion on the question of the nature of the possession is not intended to conclude the matter but to highlight the necessity for the recording of findings thereon. The observations made in that context should not be taken as fettering thet of the evidence by the District Court. If the Court thinks that there is need to allow the parties to let in further evidence or to call for a finding from the trial Court, it will not be precluded from doing so by this order.
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M.N. Gangappa (Dead) By L. Rs Vs. Atmakur Nagabhushanam Setty & Company & Another
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reproduced :"EXHIBIT P-20 Bellary, Date 1-11-1950. M. N. Gangappa, Merchants, Mundlur Narasemhappa Gangappa, Merchants, Bellary. As per the contracts executed by the above addressee in favour of M. R. Nandyal Atmakur Nagabhushanam Setty and Co., we have given to you business by agreeing to supply 75 (seventy five) tons of groundnut seeds at the rate of Rs. 173-0-0 per candy, (Rs. one hundred and seventy three) at Bellary f.o.r. on the Vaida in the month of January 1931. We shall deliver (the goods) on the above said Vaida. The goods referred to above are of Expeller quality loose in accordance with the conditions of the company. (Sd.) M. Gangappa, 1-11-50." "EXHIBIT P-29 Bellary, Date 21-11-1950. M. N. Gangappa, Merchants, Mundlur Narasemhappa Gangappa, Merchants, Bellary. The contract from executed by the above addressee this day in favour of M. R. Nadyal Atamakur Nagabhushanam Setty and Co., is as follows : We shall deliver to you 50 (fifty) tons of groundnuts seeds of expeller quality, loose of the 1951 January and February, vaida at the rate of Rs. 190/- (one hundred and ninety) per candy in accordance with the practice of the Company (after getting) Rly pass. (Sd.) M. Gangappa, 21-11-50." 7. In Hemraj Keshavji v. Shah Haridas Jethabhai, ([1964] 2 SCR 686 : AIR 1964 SC 1526 ) a question arose whether certain contracts which were described as ready delivery contracts and were subject to the rules and regulations of the Veraval Merchants Association were prohibited by the Saurashtra Groundnut and Groundnut Products (Forward Contracts Prohibition) Order, 1949. It was laid down that a contract for delivery of goods at a future date, even though for a specified price and specific quality could be excluded from the definition of forward contracts only if the contracts were non-transferable. But from the mere absence of an express stipulation as to non-transferability in the contract it could not be deemed to be transferable and outside the exception. The conditions of the contracts and the surrounding circumstances were taken into consideration in that case and it was held that the contracts were not transferable to third parties and could not be regarded as forward contracts within the meaning of the Saurashtra Order. It is thus apparent that the mere omission or non-mention of any words which would expressly show that the contracts were not transferable would not make them transferable. The main criticism of the learned counsel for the appellant before us is that the High Court as also the Trial Court did not attach sufficient importance to the omission on the part of the plaintiff to produce the books of account which would have shown whether the groundnut seeds which were the subject-matter of the two contracts were being purchased for use in the oil expelling business of the plaintiff or whether they were intended to be transferred to third parties. It has also been suggested that the High Court acted on mere conjecture in considering that the statement in the contracts that the goods sold were loose showed that the bags were to be supplied by the plaintiff. It is next pointed out that the payment of price of goods against delivery of the railway receipt could not be regarded as an obligation of a nature contemplated by law which would make it necessary to obtain the consent of the defendants if the contracts were to be assigned to third parties. On behalf of the plaintiff it has been pointed out that the courts below have not only looked at the terms of the contracts but have also taken into consideration the following material circumstances -(1) The contracts and transactions were for actual delivery of groundnut seeds and were not for payment of differences. (2) The plaintiff as well as the defendants carried on the business of expelling oil from groundnut seeds. It was, therefore, mere natural and probable that the contracts which they were entering into were meant for the purpose of the businesses of the plaintiff and not for being transferred to third parties. (3) The use of the word loose in the contract was significant and when read with the evidence produced by the plaintiff leads to the conclusion that the obligation to supply the bags was on the plaintiff. (4) The goods which were the subject-matter of the contracts were of expeller quality which reinforced the view that they were intended for the oil expelling business of the plaintiff. 8. After a careful consideration of the contentions of both sides and the findings of the courts below, we do not consider that any interference is called for with the concurrent conclusion of two courts that the suit contracts were non-transferable. The question whether a particular contract was of one category or the other, namely, transferable or non-transferable, can only be decided on the facts of each case and we are unable to find any such infirmities in the reasoning of the two courts particularly with regard to the surrounding circumstances and other evidence which showed that the contracts were non-transferable. 9. The only other question which has been agitated relates to the quantum of damages. It is common ground that no evidence was produced with regard to the actual rates prevailing on the date of breach but it was fully established by Ex. P-46, the validity and genuineness of which has not been disputed, that on January 13, 1951, the rate was Rs. 210/- per candy. Again on February 3, 1951, the rate was Rs. 224/- per candy vide Exs. P-1 and P-2. It was admitted by the defendant in his evidence that the price was rising from the month of November 1950, to March 1951, the rate finally going up to Rs. 220/- per candy. The High Court, therefore, took the lowest rate, namely, Rs. 210/- per candy which prevailed on January 13, 1951, as the rate for computing the damages. We do not find anything illegal or unreasonable about the process by which the damages were computed.
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0[ds]8. After a careful consideration of the contentions of both sides and the findings of the courts below, we do not consider that any interference is called for with the concurrent conclusion of two courts that the suit contracts were. The question whether a particular contract was of one category or the other, namely, transferable or9. The only other question which has been agitated relates to the quantum of damages.It is common ground that no evidence was produced with regard to the actual rates prevailing on the date of breach but it was fully established by Ex., the validity and genuineness of which has not been disputed, that on January 13, 1951, the rate was Rs. 210/per candy. Again on February 3, 1951, the rate was Rs. 224/per candy vide Exs.1 and. It was admitted by the defendant in his evidence that the price was rising from the month of November 1950, to March 1951, the rate finally going up to Rs. 220/per candy. The High Court, therefore, took the lowest rate, namely, Rs. 210/per candy which prevailed on January 13, 1951, as the rate for computing the damages. We do not find anything illegal or unreasonable about the process by which the damages were computed.
| 0 | 2,517 | 239 |
### 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:
reproduced :"EXHIBIT P-20 Bellary, Date 1-11-1950. M. N. Gangappa, Merchants, Mundlur Narasemhappa Gangappa, Merchants, Bellary. As per the contracts executed by the above addressee in favour of M. R. Nandyal Atmakur Nagabhushanam Setty and Co., we have given to you business by agreeing to supply 75 (seventy five) tons of groundnut seeds at the rate of Rs. 173-0-0 per candy, (Rs. one hundred and seventy three) at Bellary f.o.r. on the Vaida in the month of January 1931. We shall deliver (the goods) on the above said Vaida. The goods referred to above are of Expeller quality loose in accordance with the conditions of the company. (Sd.) M. Gangappa, 1-11-50." "EXHIBIT P-29 Bellary, Date 21-11-1950. M. N. Gangappa, Merchants, Mundlur Narasemhappa Gangappa, Merchants, Bellary. The contract from executed by the above addressee this day in favour of M. R. Nadyal Atamakur Nagabhushanam Setty and Co., is as follows : We shall deliver to you 50 (fifty) tons of groundnuts seeds of expeller quality, loose of the 1951 January and February, vaida at the rate of Rs. 190/- (one hundred and ninety) per candy in accordance with the practice of the Company (after getting) Rly pass. (Sd.) M. Gangappa, 21-11-50." 7. In Hemraj Keshavji v. Shah Haridas Jethabhai, ([1964] 2 SCR 686 : AIR 1964 SC 1526 ) a question arose whether certain contracts which were described as ready delivery contracts and were subject to the rules and regulations of the Veraval Merchants Association were prohibited by the Saurashtra Groundnut and Groundnut Products (Forward Contracts Prohibition) Order, 1949. It was laid down that a contract for delivery of goods at a future date, even though for a specified price and specific quality could be excluded from the definition of forward contracts only if the contracts were non-transferable. But from the mere absence of an express stipulation as to non-transferability in the contract it could not be deemed to be transferable and outside the exception. The conditions of the contracts and the surrounding circumstances were taken into consideration in that case and it was held that the contracts were not transferable to third parties and could not be regarded as forward contracts within the meaning of the Saurashtra Order. It is thus apparent that the mere omission or non-mention of any words which would expressly show that the contracts were not transferable would not make them transferable. The main criticism of the learned counsel for the appellant before us is that the High Court as also the Trial Court did not attach sufficient importance to the omission on the part of the plaintiff to produce the books of account which would have shown whether the groundnut seeds which were the subject-matter of the two contracts were being purchased for use in the oil expelling business of the plaintiff or whether they were intended to be transferred to third parties. It has also been suggested that the High Court acted on mere conjecture in considering that the statement in the contracts that the goods sold were loose showed that the bags were to be supplied by the plaintiff. It is next pointed out that the payment of price of goods against delivery of the railway receipt could not be regarded as an obligation of a nature contemplated by law which would make it necessary to obtain the consent of the defendants if the contracts were to be assigned to third parties. On behalf of the plaintiff it has been pointed out that the courts below have not only looked at the terms of the contracts but have also taken into consideration the following material circumstances -(1) The contracts and transactions were for actual delivery of groundnut seeds and were not for payment of differences. (2) The plaintiff as well as the defendants carried on the business of expelling oil from groundnut seeds. It was, therefore, mere natural and probable that the contracts which they were entering into were meant for the purpose of the businesses of the plaintiff and not for being transferred to third parties. (3) The use of the word loose in the contract was significant and when read with the evidence produced by the plaintiff leads to the conclusion that the obligation to supply the bags was on the plaintiff. (4) The goods which were the subject-matter of the contracts were of expeller quality which reinforced the view that they were intended for the oil expelling business of the plaintiff. 8. After a careful consideration of the contentions of both sides and the findings of the courts below, we do not consider that any interference is called for with the concurrent conclusion of two courts that the suit contracts were non-transferable. The question whether a particular contract was of one category or the other, namely, transferable or non-transferable, can only be decided on the facts of each case and we are unable to find any such infirmities in the reasoning of the two courts particularly with regard to the surrounding circumstances and other evidence which showed that the contracts were non-transferable. 9. The only other question which has been agitated relates to the quantum of damages. It is common ground that no evidence was produced with regard to the actual rates prevailing on the date of breach but it was fully established by Ex. P-46, the validity and genuineness of which has not been disputed, that on January 13, 1951, the rate was Rs. 210/- per candy. Again on February 3, 1951, the rate was Rs. 224/- per candy vide Exs. P-1 and P-2. It was admitted by the defendant in his evidence that the price was rising from the month of November 1950, to March 1951, the rate finally going up to Rs. 220/- per candy. The High Court, therefore, took the lowest rate, namely, Rs. 210/- per candy which prevailed on January 13, 1951, as the rate for computing the damages. We do not find anything illegal or unreasonable about the process by which the damages were computed.
### Response:
0
### Explanation:
8. After a careful consideration of the contentions of both sides and the findings of the courts below, we do not consider that any interference is called for with the concurrent conclusion of two courts that the suit contracts were. The question whether a particular contract was of one category or the other, namely, transferable or9. The only other question which has been agitated relates to the quantum of damages.It is common ground that no evidence was produced with regard to the actual rates prevailing on the date of breach but it was fully established by Ex., the validity and genuineness of which has not been disputed, that on January 13, 1951, the rate was Rs. 210/per candy. Again on February 3, 1951, the rate was Rs. 224/per candy vide Exs.1 and. It was admitted by the defendant in his evidence that the price was rising from the month of November 1950, to March 1951, the rate finally going up to Rs. 220/per candy. The High Court, therefore, took the lowest rate, namely, Rs. 210/per candy which prevailed on January 13, 1951, as the rate for computing the damages. We do not find anything illegal or unreasonable about the process by which the damages were computed.
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Karamshi Jethabhai Somayya Vs. The State Of Bombay
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such contracts and all assurances of property made in the exercise of that authority shall be executed on behalf of the ....... Governor by such persons and in such manner as he may direct or authorise."This section laid down two conditions for the validity of such a contract, namely (i) it should be expressed to be made by the Governor of the Province, and (ii) it should be executed on behalf of the Governor by such persons and in such manner as he might direct or authorise. We have nothing on the record to disclose whether the Superintending Engineer, though he acted under oral instructions of the Minister was authorized by the Governor or under relevant rules to enter into such a contract. That apart, even if Exs. D-67 and D-68 together were treated as forming part of a contract entered into between the Government and Karale, can it be said that the said contract was expressed to be made in the name of the Governor? Ex facie it cannot be said so. But it is contended that on a liberal construction, which we should adopt in a case where the Government is trying to go back on its solemn promise, such a formality can easily be read into the said documents. Before we construe the said two documents in order to ascertain whether such a formality has been complied with or not, it would be convenient to notice some of the decisions of this Court. The question of construction of S. 175 (3) of the Government of India Act, 1935 directly arose for decision in Bhikraj Jaipuria v. Union of India. 1962-2 SCR 880 : (AIR 1962 SC 113 ). There, the Divisional Superintendent, East Indian Railway, placed certain orders with the appellant for the supply of foodgrains for the employees of the said Railway. The orders were not expressed to be made in the name of the Governor General and was not executed on behalf of the Governor-General as required by S. 175(3) of the Government of India Act, 1935. They were signed by the Divisional Superintendent either in his own hand or in the hand of his Personal Assistant. This Court held that the contracts, not having been expressed to be entered into by the Governor-General and not having been executed on his behalf, were void. This Court held that the provisions of S. 175 (3) of the Government of India Act, 1935, were mandatory and, therefore, the contracts were void. This decision was followed by this Court in New Maria Coal Co. v. Union of India, AIR 1964 SC 152 .Reliance is placed by the learned counsel for the appellant on the decision of this Court in Union of India v. Rallia Ram, AIR 1963 SC 1685 in support of his contention that though ex facie Exs. D-67 and D-68 do not show that the contract was expressed to be made in the name of the Governor, the said fact could be inferred from the recitals. There the goods offered to be sold belonged to the Government of India. A tender notice was issued by the Government of India. Department of Food (Division 111), in the name of the Chief Director of Purchases. The Chief Director of Purchases agreed to sell the goods on certain conditions to the respondent and incorporated them in the acceptance note, which was also headed "Government of India, Department of Food (Division 111), New Delhi." The general conditions of contract, which accompanied the letter of acceptance, defined Government as meaning the Governor- General for India in Council. On the said facts this Court held that correspondence between the parties ultimately resulting in the acceptance note amounted to a contract expressed to be made by the Government and, therefore, by the Governor-General, "because it was the Governor-General who invited tenders through the Chief Director of Purchases and it was the Governor-General who, through the Chief Director of Purchases, accepted the tender of the respondent subject to the conditions prescribed therein." Though in the acceptance note it was not expressly stated that the contract was executed on behalf of the Governor-General, on a fair reading of the contents of the letter in the light of the obligations undertaken thereunder, it was held that the contract was executed on behalf of the Governor-General. This decision does not depart from the principle accepted in Bhikhraj Jaipurias case. 1962-2 SCR 880 : (AIR 1962 SC 113 ).On a fair reading of correspondence this Court construed that the contract was entered into on behalf of the Governor-General and expressed to be made in his name. Can it be said that in the present case Exs. D-67 and D-68 disclose that the Superintending Engineer was authorized to enter into a contract of the nature mentioned therein on behalf of the Provincial Government and that the contract was expressed to be made in the name of the Governor? Nothing has been placed before us to establish that the Superintending Engineer was legally authorized to enter into such a contract on behalf of the Government; nor do the documents ex facie show that the agreement was expressed to be made in the name of the Provincial Government. The letters mentioned the name of the Minister of the public Works Department and also the Government, in the context of the rates that might be fixed thereafter, but the said documents did not purport to emanate from the Governor. At best they were issued under the directions of the Minister. We find it difficult to stretch the point further, as such a construction will make the provision of S. 175(3) of the Government of India Act, 1935, nugatory. We cannot, therefore, hold that either the contract was entered into by the person legally authorized by the Government to do so or expressed to be made in the name of the Governor. The agreement is void, as it has not complied with the provisions of S.175(3) of the Government of India Act. 1935.
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0[ds]4. This appeal raises a question ofimportance as regards the scope of the executive authority exercised by the Governor underthe Government of India Act, 1935; but, we are relieved of the duty to express our opinion on that question in this appeal in view of our finding that the agreement in question was arrived at outside the provisions of the Act and, therefore, it squarely falls within the scope of S. 175(3) ofthe Government of India Act,the High Court threw the blame for this lapse on the appellant, we do not think there was any justification for it. Apart from the fact that the appellant asked for the production of all the relevant documents, the Government, being the defendant in this case, should have produced the documents relevant to the question raised. While it is the duty of a private party to a litigation to place all the relevant matters before the Court, a higher responsibility rests upon the Government not to withhold such documents from the court. Be that as it may, the documents were finally produced before the court, and the High Court considered the same in the arriving at its conclusion. Though Mr. Nambiar suggested that the said documents related to some other party, as we will indicate in the course of the judgment, the said file dealt also with the agreement alleged to have been entered into between Karale and thefair reading of these two documents leaves no room for doubt that a firm agreement was entered into between the Government and Karale in respect of the supply of water to his land to the extent of 100 acres on the tail outlet of Distributry No. 17 of the Godavari Right Bank Canal. These two letters show that there was previous correspondence between the Engineering Department and Karale and that the Minister of Public Works Department intervened and settled the terms of the agreement, and that the terms were communicated to Karale, who accepted the same.Revenue Minister accepted the endorsement. This is only an office note and the suggestion that the irrigators should be allowed to continue on the yearly basis was only to prevent further applications after the factory area was declared. This endorsement had nothing to do with the exclusion of any particular area from the sugar factory area. The endorsement "should see" below the endorsement made by the Revenue Minister perhaps meant that the papers should be submitted to the Minister concerned. Exhibitis a letter written by the Deputy Secretary to the Government of Bombay to Changdeo Sugar Mills. This letter also refers to the office endorsement No. 3033/Though we are not directly concerned with this letter, it may be mentioned that the application of Karale is connected with the proposal to declare certain area as factory area and to give water to Changdeo Sugar Factory in respect of the lands in that area, for his application was to exclude his area from the factory area. Both the matters obviously were dealt together. Exhibitis again part of the file relevant to the factory area. But a reference is made again to the office No.and in the same file Karales letter is also noticed. Exhibitis an endorsement at page 133 of the same file, which also deals with the subject "sugar factories". It contains a copy of letter written to the Superintending Engineer requesting him to submit at a very early date a draft agreement for the supply of water to the companys area on the Godavari Right Bank Canal on the terms embodied in the margin thereof. Exhibitis also another endorsement on the same file.endorsement notices the contents of Ex.and therefore it must have been made only after April 28, 1939. The said documents do not carry the matter further. They only show what we have already noticed, namely, the Government wanted to create a factory area and that Karale filed an application to have his area excluded therefrom. The notings of the department are not in any way inconsistent either with Ex.or with Ex.67 andrefer to Office No. 3686 dated June 23, 1939, and that letter must have been in some other file and that file was not produced and, if produced, it might have thrown some more light. In the circumstances we must proceed on the basis that Exs.68 embodied the terms of the agreement entered into between the Government and Karale pursuant to the application, Ex.made by him to the Chief Engineer, P.W.D. We have already held that the said documents record the completed agreement between the Government and Karale in respect of supply of water to hisit was not made under the provisions of the Act, but outside the Act, the foundation for this argument would disappear.We would, therefore, proceed to consider now whether the said agreement was under the provisions of thecombined reading of these provisions establishes that every person desiring to have supply of water from a canal shall apply in the prescribed manner to theand that the person to whom water is supplied cannot transfer his right to another without the permission of theBut if the land in respect whereof the water is supplied is transferred, the agreement for the supply of water also shall be presumed to have been transferred along with it. The expression "agreement" in S. 30 of the Act, it is contended, does not connote a contract as understood in law, but only a convenient mode of expression to indicate the sanction or permission given by theThis meaning of the expression "agreement" is sought to be supported by a reference to the Bombay Canal Rules, 1934, made in exercise of the powers conferred on the State Government under Section 70(e) of the Act. Part II of the Rules deals with supply of water. It provides for the filing of applications, the manner of their disposal and the persons entitled to dispose of the same, and also the mode of supply of water for cultivation of different crops. The forms prescribed columns under different heads for giving the necessary particulars. The forms contain the instructions as well as conditions on which permission will be granted. Rule 7 says that an application for supply of water for the irrigation of land for any period may be sanctioned, indicating thereby that there is no maximum period fixed for which application for supply of water can be made. Assuming without deciding that "agreement" under S. 30 of the Act means only sanction, the Act and the Rules provide for an application to be made to the Executive Engineer, who, subject to the Rules, can give the sanction. Rule 36 provides for an appeal from the order of the Executive Engineer to the Superintending Engineer, and from that of the Executive Engineers order under R. 18 or R. 19 to the Collector. But there is no provision either in the Act or in the Rules made thereunder enabling any party to make an application to the Chief Engineer to exclude his land from factory area, and to give him supply of water for irrigating the said land permanently, or a power to the Government to enter into an agreement or make an order in respect of such an application. Such an order or agreement is entirely outside the scope of the Act or the Rules made thereunder. We are not called upon in this case to decide whether the Government has any such power outside the Act; but we shall assume for the purpose of this case that it has such power and to proceed to consider the legal arguments on that basis.10. The documentary evidence adduced in this case, which we have already considered, discloses that the application was made to the Chief Engineer; that the Government, through the relevant ministry, considered the application and that on the instructions given by the concerned Minister, the Superintending Engineer wrote the letter Ex.to Karale. It was, therefore, in effect and substance, an agreement entered into between the Government and Karale. Such an agreement fell outside the provisions of the Act. The parties to the agreement also understood that it was an agreement made between the Government and Karale.section laid down two conditions for the validity of such a contract, namely (i) it should be expressed to be made by the Governor of the Province, and (ii) it should be executed on behalf of the Governor by such persons and in such manner as he might direct or authorise. We have nothing on the record to disclose whether the Superintending Engineer, though he acted under oral instructions of the Minister was authorized by the Governor or under relevant rules to enter into such a contract. That apart, even if Exs.68 together were treated as forming part of a contract entered into between the Government and Karale, can it be said that the said contract was expressed to be made in the name of the Governor? Ex facie it cannot be said so. But it is contended that on a liberal construction, which we should adopt in a case where the Government is trying to go back on its solemn promise, such a formality can easily be read into the said documents. Before we construe the said two documents in order to ascertain whether such a formality has been complied with or not, it would be convenient to notice some of the decisions of this Court. The question of construction of S. 175 (3) ofthe Government of India Act,1935 directly arose for decision in Bhikraj Jaipuria v. Union of India.SCR 880 : (AIR 1962 SC 113 ). There, the Divisional Superintendent, East Indian Railway, placed certain orders with the appellant for the supply of foodgrains for the employees of the said Railway. The orders were not expressed to be made in the name of the Governor General and was not executed on behalf of theas required by S. 175(3) ofthe Government of India Act,They were signed by the Divisional Superintendent either in his own hand or in the hand of his Personal Assistant. This Court held that the contracts, not having been expressed to be entered into by theand not having been executed on his behalf, were void. This Court held that the provisions of S. 175 (3) ofthe Government of India Act,1935, were mandatory and, therefore, the contracts were void. This decision was followed by this Court in New Maria Coal Co. v. Union of India, AIR 1964 SC 152 .Reliance is placed by the learned counsel for the appellant on the decision of this Court in Union of India v. Rallia Ram, AIR 1963 SC 1685 in support of his contention that though ex facie Exs.68 do not show that the contract was expressed to be made in the name of the Governor, the said fact could be inferred from the recitals. There the goods offered to be sold belonged to the Government of India. A tender notice was issued by the Government of India. Department of Food (Division 111), in the name of the Chief Director of Purchases. The Chief Director of Purchases agreed to sell the goods on certain conditions to the respondent and incorporated them in the acceptance note, which was also headed "Government of India, Department of Food (Division 111), New Delhi." The general conditions of contract, which accompanied the letter of acceptance, defined Government as meaning the GovernorGeneral for India in Council. On the said facts this Court held that correspondence between the parties ultimately resulting in the acceptance note amounted to a contract expressed to be made by the Government and, therefore, by the"because it was thewho invited tenders through the Chief Director of Purchases and it was thewho, through the Chief Director of Purchases, accepted the tender of the respondent subject to the conditions prescribed therein." Though in the acceptance note it was not expressly stated that the contract was executed on behalf of theon a fair reading of the contents of the letter in the light of the obligations undertaken thereunder, it was held that the contract was executed on behalf of theThis decision does not depart from the principle accepted in Bhikhraj Jaipurias case.SCR 880 : (AIR 1962 SC 113 ).On a fair reading of correspondence this Court construed that the contract was entered into on behalf of theand expressed to be made in his name. Can it be said that in the present case Exs.68 disclose that the Superintending Engineer was authorized to enter into a contract of the nature mentioned therein on behalf of the Provincial Government and that the contract was expressed to be made in the name of the Governor? Nothing has been placed before us to establish that the Superintending Engineer was legally authorized to enter into such a contract on behalf of the Government; nor do the documents ex facie show that the agreement was expressed to be made in the name of the Provincial Government. The letters mentioned the name of the Minister of the public Works Department and also the Government, in the context of the rates that might be fixed thereafter, but the said documents did not purport to emanate from the Governor. At best they were issued under the directions of the Minister. We find it difficult to stretch the point further, as such a construction will make the provision of S. 175(3) ofthe Government of India Act,1935, nugatory. We cannot, therefore, hold that either the contract was entered into by the person legally authorized by the Government to do so or expressed to be made in the name of the Governor. The agreement is void, as it has not complied with the provisions of S.175(3) of the Government of India Act. 1935.
| 0 | 6,281 | 2,503 |
### 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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such contracts and all assurances of property made in the exercise of that authority shall be executed on behalf of the ....... Governor by such persons and in such manner as he may direct or authorise."This section laid down two conditions for the validity of such a contract, namely (i) it should be expressed to be made by the Governor of the Province, and (ii) it should be executed on behalf of the Governor by such persons and in such manner as he might direct or authorise. We have nothing on the record to disclose whether the Superintending Engineer, though he acted under oral instructions of the Minister was authorized by the Governor or under relevant rules to enter into such a contract. That apart, even if Exs. D-67 and D-68 together were treated as forming part of a contract entered into between the Government and Karale, can it be said that the said contract was expressed to be made in the name of the Governor? Ex facie it cannot be said so. But it is contended that on a liberal construction, which we should adopt in a case where the Government is trying to go back on its solemn promise, such a formality can easily be read into the said documents. Before we construe the said two documents in order to ascertain whether such a formality has been complied with or not, it would be convenient to notice some of the decisions of this Court. The question of construction of S. 175 (3) of the Government of India Act, 1935 directly arose for decision in Bhikraj Jaipuria v. Union of India. 1962-2 SCR 880 : (AIR 1962 SC 113 ). There, the Divisional Superintendent, East Indian Railway, placed certain orders with the appellant for the supply of foodgrains for the employees of the said Railway. The orders were not expressed to be made in the name of the Governor General and was not executed on behalf of the Governor-General as required by S. 175(3) of the Government of India Act, 1935. They were signed by the Divisional Superintendent either in his own hand or in the hand of his Personal Assistant. This Court held that the contracts, not having been expressed to be entered into by the Governor-General and not having been executed on his behalf, were void. This Court held that the provisions of S. 175 (3) of the Government of India Act, 1935, were mandatory and, therefore, the contracts were void. This decision was followed by this Court in New Maria Coal Co. v. Union of India, AIR 1964 SC 152 .Reliance is placed by the learned counsel for the appellant on the decision of this Court in Union of India v. Rallia Ram, AIR 1963 SC 1685 in support of his contention that though ex facie Exs. D-67 and D-68 do not show that the contract was expressed to be made in the name of the Governor, the said fact could be inferred from the recitals. There the goods offered to be sold belonged to the Government of India. A tender notice was issued by the Government of India. Department of Food (Division 111), in the name of the Chief Director of Purchases. The Chief Director of Purchases agreed to sell the goods on certain conditions to the respondent and incorporated them in the acceptance note, which was also headed "Government of India, Department of Food (Division 111), New Delhi." The general conditions of contract, which accompanied the letter of acceptance, defined Government as meaning the Governor- General for India in Council. On the said facts this Court held that correspondence between the parties ultimately resulting in the acceptance note amounted to a contract expressed to be made by the Government and, therefore, by the Governor-General, "because it was the Governor-General who invited tenders through the Chief Director of Purchases and it was the Governor-General who, through the Chief Director of Purchases, accepted the tender of the respondent subject to the conditions prescribed therein." Though in the acceptance note it was not expressly stated that the contract was executed on behalf of the Governor-General, on a fair reading of the contents of the letter in the light of the obligations undertaken thereunder, it was held that the contract was executed on behalf of the Governor-General. This decision does not depart from the principle accepted in Bhikhraj Jaipurias case. 1962-2 SCR 880 : (AIR 1962 SC 113 ).On a fair reading of correspondence this Court construed that the contract was entered into on behalf of the Governor-General and expressed to be made in his name. Can it be said that in the present case Exs. D-67 and D-68 disclose that the Superintending Engineer was authorized to enter into a contract of the nature mentioned therein on behalf of the Provincial Government and that the contract was expressed to be made in the name of the Governor? Nothing has been placed before us to establish that the Superintending Engineer was legally authorized to enter into such a contract on behalf of the Government; nor do the documents ex facie show that the agreement was expressed to be made in the name of the Provincial Government. The letters mentioned the name of the Minister of the public Works Department and also the Government, in the context of the rates that might be fixed thereafter, but the said documents did not purport to emanate from the Governor. At best they were issued under the directions of the Minister. We find it difficult to stretch the point further, as such a construction will make the provision of S. 175(3) of the Government of India Act, 1935, nugatory. We cannot, therefore, hold that either the contract was entered into by the person legally authorized by the Government to do so or expressed to be made in the name of the Governor. The agreement is void, as it has not complied with the provisions of S.175(3) of the Government of India Act. 1935.
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the Chief Engineer; that the Government, through the relevant ministry, considered the application and that on the instructions given by the concerned Minister, the Superintending Engineer wrote the letter Ex.to Karale. It was, therefore, in effect and substance, an agreement entered into between the Government and Karale. Such an agreement fell outside the provisions of the Act. The parties to the agreement also understood that it was an agreement made between the Government and Karale.section laid down two conditions for the validity of such a contract, namely (i) it should be expressed to be made by the Governor of the Province, and (ii) it should be executed on behalf of the Governor by such persons and in such manner as he might direct or authorise. We have nothing on the record to disclose whether the Superintending Engineer, though he acted under oral instructions of the Minister was authorized by the Governor or under relevant rules to enter into such a contract. That apart, even if Exs.68 together were treated as forming part of a contract entered into between the Government and Karale, can it be said that the said contract was expressed to be made in the name of the Governor? Ex facie it cannot be said so. But it is contended that on a liberal construction, which we should adopt in a case where the Government is trying to go back on its solemn promise, such a formality can easily be read into the said documents. Before we construe the said two documents in order to ascertain whether such a formality has been complied with or not, it would be convenient to notice some of the decisions of this Court. The question of construction of S. 175 (3) ofthe Government of India Act,1935 directly arose for decision in Bhikraj Jaipuria v. Union of India.SCR 880 : (AIR 1962 SC 113 ). There, the Divisional Superintendent, East Indian Railway, placed certain orders with the appellant for the supply of foodgrains for the employees of the said Railway. The orders were not expressed to be made in the name of the Governor General and was not executed on behalf of theas required by S. 175(3) ofthe Government of India Act,They were signed by the Divisional Superintendent either in his own hand or in the hand of his Personal Assistant. This Court held that the contracts, not having been expressed to be entered into by theand not having been executed on his behalf, were void. This Court held that the provisions of S. 175 (3) ofthe Government of India Act,1935, were mandatory and, therefore, the contracts were void. This decision was followed by this Court in New Maria Coal Co. v. Union of India, AIR 1964 SC 152 .Reliance is placed by the learned counsel for the appellant on the decision of this Court in Union of India v. Rallia Ram, AIR 1963 SC 1685 in support of his contention that though ex facie Exs.68 do not show that the contract was expressed to be made in the name of the Governor, the said fact could be inferred from the recitals. There the goods offered to be sold belonged to the Government of India. A tender notice was issued by the Government of India. Department of Food (Division 111), in the name of the Chief Director of Purchases. The Chief Director of Purchases agreed to sell the goods on certain conditions to the respondent and incorporated them in the acceptance note, which was also headed "Government of India, Department of Food (Division 111), New Delhi." The general conditions of contract, which accompanied the letter of acceptance, defined Government as meaning the GovernorGeneral for India in Council. On the said facts this Court held that correspondence between the parties ultimately resulting in the acceptance note amounted to a contract expressed to be made by the Government and, therefore, by the"because it was thewho invited tenders through the Chief Director of Purchases and it was thewho, through the Chief Director of Purchases, accepted the tender of the respondent subject to the conditions prescribed therein." Though in the acceptance note it was not expressly stated that the contract was executed on behalf of theon a fair reading of the contents of the letter in the light of the obligations undertaken thereunder, it was held that the contract was executed on behalf of theThis decision does not depart from the principle accepted in Bhikhraj Jaipurias case.SCR 880 : (AIR 1962 SC 113 ).On a fair reading of correspondence this Court construed that the contract was entered into on behalf of theand expressed to be made in his name. Can it be said that in the present case Exs.68 disclose that the Superintending Engineer was authorized to enter into a contract of the nature mentioned therein on behalf of the Provincial Government and that the contract was expressed to be made in the name of the Governor? Nothing has been placed before us to establish that the Superintending Engineer was legally authorized to enter into such a contract on behalf of the Government; nor do the documents ex facie show that the agreement was expressed to be made in the name of the Provincial Government. The letters mentioned the name of the Minister of the public Works Department and also the Government, in the context of the rates that might be fixed thereafter, but the said documents did not purport to emanate from the Governor. At best they were issued under the directions of the Minister. We find it difficult to stretch the point further, as such a construction will make the provision of S. 175(3) ofthe Government of India Act,1935, nugatory. We cannot, therefore, hold that either the contract was entered into by the person legally authorized by the Government to do so or expressed to be made in the name of the Governor. The agreement is void, as it has not complied with the provisions of S.175(3) of the Government of India Act. 1935.
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Zycus Infotech Private Limited Vs. Commissioner of Income Tax
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with reference to the last day of the previous year, when the claim for relief is made and "the last day of the year in which undertaking was set up". Learned Counsel for the appellant thus submits that, it is the block concept, which holds the key to the reference to "the year of setting up", therefore, the provision will apply only for those whose block of 10 years starts w.e.f. 1st April, 2000 and it cannot apply to those undertakings which had commenced production before 1st April, 2000. It is also submitted that Section 10A has been substituted by a new section of 10A by the Finance Act,2000 whereby sub-section (9) has been inserted for the first time w.e.f. 1st April, 2000 and therefore, the new section cannot impair the right already acquired prior to the introduction of section 10(A)9 unless specifically stipulated.9. In reply, the learned Counsel for the Revenue tried to support the impugned order and reiterated the observations made therein and prayed for dismissal of appeal with costs.CONSIDERATION10. Having heard rival parties, before considering the rival submissions, it is necessary to turn to explanation 1 of Section 10A(9), which provides that the promoters of the appellant company should continue to hold shares of the company carrying not less than 51% of the voting power. The said explanation reads as under:"Explanation 1 : For the purpose of this section, in the case of a company, where on the last day of any previous year, the shares of the company carrying not less than 51% of the voting power are not beneficially held by persons who held the shares of the company carrying not less than 51% of the voting power on the last day of the year in which the undertaking was set up, the company shall be presumed to have transferred its ownership or the beneficial interest in the undertaking."11. At this juncture, it would also be useful to turn to paragraph No.15.9 of the Circular of the CBDT bearing No.794 dated 9th August, 2000, which explains the insertion of sub-section (9) and Explanation 1 thereto by the Finance Act,2000 which reads as under :"15.9 Sub-section (9) provides that in case there is a transfer of ownership or the beneficial interest in the undertaking by any means, the deduction under sub-section (1) shall not be allowed to the assessee for the A.Y. relevant to such previous year in which the transfer takes place and in the subsequent years. Explanation 1 further provides that in the case of a company where on the last date of any previous year the shares of the company carrying not less than 51% of the voting power are not beneficially held by persons who held the shares of the company carrying not less than 51% of the voting power on the last day of the year in which the undertaking was set up, the company shall be deemed to have transferred its ownership or the beneficial interest in the undertaking."12. Having examined the aforesaid provisions of the I.T.Act and the sweep of circular issued by the CBDT, it is necessary to take stock of the provisions of the Companies Act,1956.13. Section 86 of the Companies Act has been substituted by the Companies (Amendment) Act,2000 w.e.f. 13th December, 2000 whereby a company incorporated under the Companies Act, 1956 has been allowed to issue two kinds of shares viz. equity shares and preference shares and the equity shares can be with voting rights or with differential rights as to dividend, voting or otherwise in accordance with such rules as may be prescribed. Accordingly, Company (Issue of Shares Capital with Differential Voting Rights) Rules, 2001 have been framed, which permits the issuance of equity shares with differential voting rights. Accordingly, the appellant company has issued shares without voting rights. In the result, the original promoters i.e. Shri Atish Dedhia and Shri Nanji Dedhia cotninue to hold shares of the appellant company carrying not less than 51% of the voting power. It is thus clear that during the previous year relevant to A.Y.2001-02 the ownership of the appellant company was not transferred by any means and therefore, the appellant company is right in claiming entitlement to deduction under Section 10A(1) of the Act.14. So far as second question is concerned, one has to keep in mind the settled principle of interpretation that retrospectivity cannot be lightly inferred unless it is clearly provided for in the statute. The first proviso to section 10A implies continuity. If the intention was to deprive the existing industries or to impose a condition, which is not capable of being fulfilled in the context of transfer having already occurred prior to the statute, it would have been specifically made clear. Under these circumstances, keeping in mind the general principle that vested right cannot be divested, one cannot assume retrospectivity to a greater extent than what the section intends.15. At this juncture, it is needless to mention that, where the words used are "has made, has ceased, has failed and has become", they were found to be words which can be understood as happening both prior and after coming into force of the statute, as it was understood from the words "if a person has been convicted" to include anterior conviction. In the explanation 1, present tense is used with an injunction that the shares "are not beneficially held by the persons who hold the shares in company.". The present tense cannot be assumed to describe the status of the shareholder as the owner, but the status of the shares which are beneficially held. On this interpretation the language of the section can only be understood to describe "the date on which the undertaking was set up" as applicable only for those who are setting up the undertaking after the new provision, so that in case of others, the date has to be understood at best, as on 1st April, 2000, the date on which the law was brought in the statute.
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1[ds]12. Having examined the aforesaid provisions of the I.T.Act and the sweep of circular issued by the CBDT, it is necessary to take stock of the provisions of the Companies Act,1956.13. Section 86 of the Companies Act has been substituted by the Companies (Amendment) Act,2000 w.e.f. 13th December, 2000 whereby a company incorporated under the Companies Act, 1956 has been allowed to issue two kinds of shares viz. equity shares and preference shares and the equity shares can be with voting rights or with differential rights as to dividend, voting or otherwise in accordance with such rules as may be prescribed. Accordingly, Company (Issue of Shares Capital with Differential Voting Rights) Rules, 2001 have been framed, which permits the issuance of equity shares with differential voting rights. Accordingly, the appellant company has issued shares without voting rights. In the result, the original promoters i.e. Shri Atish Dedhia and Shri Nanji Dedhia cotninue to hold shares of the appellant company carrying not less than 51% of the voting power. It is thus clear that during the previous year relevant tothe ownership of the appellant company was not transferred by any means and therefore, the appellant company is right in claiming entitlement to deduction under Section 10A(1) of the Act.14. So far as second question is concerned, one has to keep in mind the settled principle of interpretation that retrospectivity cannot be lightly inferred unless it is clearly provided for in the statute. The first proviso to section 10A implies continuity. If the intention was to deprive the existing industries or to impose a condition, which is not capable of being fulfilled in the context of transfer having already occurred prior to the statute, it would have been specifically made clear. Under these circumstances, keeping in mind the general principle that vested right cannot be divested, one cannot assume retrospectivity to a greater extent than what the section intends.15. At this juncture, it is needless to mention that, where the words used are "has made, has ceased, has failed and has become", they were found to be words which can be understood as happening both prior and after coming into force of the statute, as it was understood from the words "if a person has been convicted" to include anterior conviction. In the explanation 1, present tense is used with an injunction that the shares "are not beneficially held by the persons who hold the shares in company.". The present tense cannot be assumed to describe the status of the shareholder as the owner, but the status of the shares which are beneficially held. On this interpretation the language of the section can only be understood to describe "the date on which the undertaking was set up" as applicable only for those who are setting up the undertaking after the new provision, so that in case of others, the date has to be understood at best, as on 1st April, 2000, the date on which the law was brought in the statute.
| 1 | 2,202 | 570 |
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Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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with reference to the last day of the previous year, when the claim for relief is made and "the last day of the year in which undertaking was set up". Learned Counsel for the appellant thus submits that, it is the block concept, which holds the key to the reference to "the year of setting up", therefore, the provision will apply only for those whose block of 10 years starts w.e.f. 1st April, 2000 and it cannot apply to those undertakings which had commenced production before 1st April, 2000. It is also submitted that Section 10A has been substituted by a new section of 10A by the Finance Act,2000 whereby sub-section (9) has been inserted for the first time w.e.f. 1st April, 2000 and therefore, the new section cannot impair the right already acquired prior to the introduction of section 10(A)9 unless specifically stipulated.9. In reply, the learned Counsel for the Revenue tried to support the impugned order and reiterated the observations made therein and prayed for dismissal of appeal with costs.CONSIDERATION10. Having heard rival parties, before considering the rival submissions, it is necessary to turn to explanation 1 of Section 10A(9), which provides that the promoters of the appellant company should continue to hold shares of the company carrying not less than 51% of the voting power. The said explanation reads as under:"Explanation 1 : For the purpose of this section, in the case of a company, where on the last day of any previous year, the shares of the company carrying not less than 51% of the voting power are not beneficially held by persons who held the shares of the company carrying not less than 51% of the voting power on the last day of the year in which the undertaking was set up, the company shall be presumed to have transferred its ownership or the beneficial interest in the undertaking."11. At this juncture, it would also be useful to turn to paragraph No.15.9 of the Circular of the CBDT bearing No.794 dated 9th August, 2000, which explains the insertion of sub-section (9) and Explanation 1 thereto by the Finance Act,2000 which reads as under :"15.9 Sub-section (9) provides that in case there is a transfer of ownership or the beneficial interest in the undertaking by any means, the deduction under sub-section (1) shall not be allowed to the assessee for the A.Y. relevant to such previous year in which the transfer takes place and in the subsequent years. Explanation 1 further provides that in the case of a company where on the last date of any previous year the shares of the company carrying not less than 51% of the voting power are not beneficially held by persons who held the shares of the company carrying not less than 51% of the voting power on the last day of the year in which the undertaking was set up, the company shall be deemed to have transferred its ownership or the beneficial interest in the undertaking."12. Having examined the aforesaid provisions of the I.T.Act and the sweep of circular issued by the CBDT, it is necessary to take stock of the provisions of the Companies Act,1956.13. Section 86 of the Companies Act has been substituted by the Companies (Amendment) Act,2000 w.e.f. 13th December, 2000 whereby a company incorporated under the Companies Act, 1956 has been allowed to issue two kinds of shares viz. equity shares and preference shares and the equity shares can be with voting rights or with differential rights as to dividend, voting or otherwise in accordance with such rules as may be prescribed. Accordingly, Company (Issue of Shares Capital with Differential Voting Rights) Rules, 2001 have been framed, which permits the issuance of equity shares with differential voting rights. Accordingly, the appellant company has issued shares without voting rights. In the result, the original promoters i.e. Shri Atish Dedhia and Shri Nanji Dedhia cotninue to hold shares of the appellant company carrying not less than 51% of the voting power. It is thus clear that during the previous year relevant to A.Y.2001-02 the ownership of the appellant company was not transferred by any means and therefore, the appellant company is right in claiming entitlement to deduction under Section 10A(1) of the Act.14. So far as second question is concerned, one has to keep in mind the settled principle of interpretation that retrospectivity cannot be lightly inferred unless it is clearly provided for in the statute. The first proviso to section 10A implies continuity. If the intention was to deprive the existing industries or to impose a condition, which is not capable of being fulfilled in the context of transfer having already occurred prior to the statute, it would have been specifically made clear. Under these circumstances, keeping in mind the general principle that vested right cannot be divested, one cannot assume retrospectivity to a greater extent than what the section intends.15. At this juncture, it is needless to mention that, where the words used are "has made, has ceased, has failed and has become", they were found to be words which can be understood as happening both prior and after coming into force of the statute, as it was understood from the words "if a person has been convicted" to include anterior conviction. In the explanation 1, present tense is used with an injunction that the shares "are not beneficially held by the persons who hold the shares in company.". The present tense cannot be assumed to describe the status of the shareholder as the owner, but the status of the shares which are beneficially held. On this interpretation the language of the section can only be understood to describe "the date on which the undertaking was set up" as applicable only for those who are setting up the undertaking after the new provision, so that in case of others, the date has to be understood at best, as on 1st April, 2000, the date on which the law was brought in the statute.
### Response:
1
### Explanation:
12. Having examined the aforesaid provisions of the I.T.Act and the sweep of circular issued by the CBDT, it is necessary to take stock of the provisions of the Companies Act,1956.13. Section 86 of the Companies Act has been substituted by the Companies (Amendment) Act,2000 w.e.f. 13th December, 2000 whereby a company incorporated under the Companies Act, 1956 has been allowed to issue two kinds of shares viz. equity shares and preference shares and the equity shares can be with voting rights or with differential rights as to dividend, voting or otherwise in accordance with such rules as may be prescribed. Accordingly, Company (Issue of Shares Capital with Differential Voting Rights) Rules, 2001 have been framed, which permits the issuance of equity shares with differential voting rights. Accordingly, the appellant company has issued shares without voting rights. In the result, the original promoters i.e. Shri Atish Dedhia and Shri Nanji Dedhia cotninue to hold shares of the appellant company carrying not less than 51% of the voting power. It is thus clear that during the previous year relevant tothe ownership of the appellant company was not transferred by any means and therefore, the appellant company is right in claiming entitlement to deduction under Section 10A(1) of the Act.14. So far as second question is concerned, one has to keep in mind the settled principle of interpretation that retrospectivity cannot be lightly inferred unless it is clearly provided for in the statute. The first proviso to section 10A implies continuity. If the intention was to deprive the existing industries or to impose a condition, which is not capable of being fulfilled in the context of transfer having already occurred prior to the statute, it would have been specifically made clear. Under these circumstances, keeping in mind the general principle that vested right cannot be divested, one cannot assume retrospectivity to a greater extent than what the section intends.15. At this juncture, it is needless to mention that, where the words used are "has made, has ceased, has failed and has become", they were found to be words which can be understood as happening both prior and after coming into force of the statute, as it was understood from the words "if a person has been convicted" to include anterior conviction. In the explanation 1, present tense is used with an injunction that the shares "are not beneficially held by the persons who hold the shares in company.". The present tense cannot be assumed to describe the status of the shareholder as the owner, but the status of the shares which are beneficially held. On this interpretation the language of the section can only be understood to describe "the date on which the undertaking was set up" as applicable only for those who are setting up the undertaking after the new provision, so that in case of others, the date has to be understood at best, as on 1st April, 2000, the date on which the law was brought in the statute.
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ANIL KUMAR GUPTA Vs. STATE OF BIHAR AND OTHERS
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the appeal filed by the Respondents, this Court declined to interfere with the direction given by the High Court. In the second round of acquisition, the award was passed by the Land Acquisition Officer on 31.01.1997 and the writ petition was filed within one month and 11 days thereafter. Therefore, the Division Bench was clearly wrong in holding that the Appellant was guilty of laches. 17. The issue needs to be examined from another angle. A person who is deprived of his land can challenge the acquisition proceedings at various stages. He can question the notification issued u/s 4(1) on the ground of violation of the mandate contained therein like publication of the notification in the official gazette and/or two newspapers including the one in the regional language, failure of the Collector to cause public notice of the substance of the notification to be given at convenient places in the locality. He can challenge the declaration issued u/s 6(1) on the ground of non-compliance of Section 5A(1) and/or (2) or violation of proviso (ii) to Section 6(1). In a given case, the land owner can also challenge the notice issued u/s 9 and the award passed u/s 11 on the ground that he had not been heard or that the acquisition proceedings are nullity. He can also challenge the award if it is not made within the period prescribed u/s 11 A. The vesting of land in the Government can be challenged on the ground that the possession had not been taken in accordance with the prescribed procedure. The invoking of urgency clause contained in Section 17 can be questioned on the ground that there was no real urgency. There may be many more grounds on which the land owner can challenge the acquisition proceedings. Insofar as the Appellant is concerned, he had challenged the acquisition proceedings immediately after passing of the award and pleaded that the declaration issued u/s 6(1) was liable to be declared nullity because of violation of the time limit prescribed in proviso (ii). This being the position, it is not possible to approve the view taken by the Division Bench of the High Court that the writ petition was belated. 18. The finding recorded by the Division Bench of the High Court that the land had vested in the Government and, therefore, it was not open to the Appellant to challenge the same is also erroneous. Admittedly, possession of the Appellants land was taken u/s 35 which empowers the Government to temporarily occupy waste or arable land for a period of three years. For the sake of reference, that section is reproduced below: 35. Temporary occupation of waste or arable land, procedure when difference as to compensation exists: (1) Subject to the provisions of Part VII of this Act, whenever it appears to the [appropriate Government] that the temporary occupation and use of any waste or arable land are needed for any public purpose, or for a company, the appropriate Government may direct the Collector to procure the occupation and use of the same for such terms as it shall think fit, not exceeding three years from commencement of such occupation. (2) The Collector shall thereupon give notice in writing to the persons interested in such land of the purpose for which the same is needed, and shall, for the occupation and use thereof, for such term as aforesaid, and for the materials (if any) to be taken there from, pay to them such compensation, either in a gross sum of money, or by monthly or other periodical payments, as shall be agreed upon in writing between him and such persons respectively. (3) In case the Collector and the persons interested differ as to the sufficiency of the compensation or apportionment thereof, the Collector shall refer such difference to the decision of the Court. 19. The use of the expression not exceeding three years from commencement of such occupation leaves no manner of doubt that with effect from 31.1.1979 i.e. the date on which three years period counted from 01.02.1976 ended, continued occupation of the Appellants land by the Respondents became illegal per se. 20. We may now advert to the main question as to whether the declaration issued u/s 6(1) was nullity because the same was issued after expiry of the period of one year specified in proviso (ii) to that Section. This issue is no longer res integral and must be treated as settled by the judgments of this Court in Padmasundara Rao and Others Vs. State of Tamil Nadu and Others, Ashok Kumar and Others Vs. State of Haryana and Another, and a recent judgment in Devender Kumar Tyagi and Ors. v. State of UP. and Ors. (2011) 9 SCC 164. In Padma Sundara Raos case (supra), the Constitution Bench unequivocally held that the second proviso to Section 6(1) is mandatory and a declaration issued beyond the period of one year from the last publication of the notification issued u/s 4(1) is nullity. In view of the proposition laid down in these judgments, it must be held that the learned Single Judge had rightly held that the declaration issued u/s 6(1) was non-est. 21. Learned Counsel for the Respondents relied upon corrigendum dated 01.07.1994 and argued that if the period of one year is counted from the date of corrigendum then the declaration issued u/s 6(1) cannot be treated as beyond the period of one year. We are unable to accept the submission of Learned Counsel for two reasons. Firstly, it has not been shown whether the corrigendum had been published in the manner prescribed u/s 4(1). Secondly, the corrigendum was issued only for correcting the typographical mistakes in the gazette publication of the notification issued u/s 4(1). Such corrigendum will relate back to the date on which notification u/s 4(1) was issued and the same cannot be relied upon for recording a finding that the declaration u/s 6(1) was issued within the period prescribed under proviso (ii) to that Section 22.
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1[ds]14. Since the parties have not placed on record copies of notification dated 01.01.1993 issued u/s 4(1) and order dated 06.04.1993 to which reference has been made in the order passed by the Division Bench of the High Court in CWJC No. 10621 of 1992, we do not consider it necessary to examine in detail whether there was any real public purpose for the acquisition of the Appellants land after the State Government is said to have been taken a decision to shift the office of the Sone Embankment Division to the Government premises at Maner.In this context, it is apposite to observe that the farmers of the Constitution have not prescribed any period within which a petition can be filed under Article 226 of the Constitution of India. However, in the last six decades, the superior Courts have evolved several rules of self imposed restraint which are required to be kept in view by the High Courts while exercising power under Article 226. One of these rules is that the High Court will not come to the aid of a person who approaches the Court with delay and no explanation is offered for the same - State of Madhya Pradesh Vs. Bhailal Bhai and Others, and Tilokchand and Motichand and Others Vs. H.B. Munshi and Another, . In the first of two cases, the Constitution Bench observed that even though no period of limitation has been prescribed for filing writ petition under Article 226 of the Constitution, the Court will come to the rescue of only those who are vigilant and a petition filed after expiry of the period of limitation prescribed for filing a suit will not be entertained unless cogent explanation is offered for the same. In the second case, Hidayatullah, Chief Justice who concurred with R.S. Bachawat and G.K. Mitter, JJ. expressed the view that there is no upper or lower limit for filing a writ petition and each case has to be decided on its own facts. The learned Chief Justice further observed that even if the petition is filed beyond the period of limitation prescribed for filing a suit, the Court may entertain the petition provided that the Petitioner gives satisfactory explanation or may decline relief in a case where the petition is filed within limitation but the explanation for the delay is not satisfactory.16. The factual matrix of this case shows that from 1992, the Appellant has been prosecuting his cause for securing possession of the land. He succeeded in that venture when the writ petition filed by him was allowed by the Division Bench of the High Court and in the appeal filed by the Respondents, this Court declined to interfere with the direction given by the High Court. In the second round of acquisition, the award was passed by the Land Acquisition Officer on 31.01.1997 and the writ petition was filed within one month and 11 days thereafter. Therefore, the Division Bench was clearly wrong in holding that the Appellant was guilty of laches.17. The issue needs to be examined from another angle. A person who is deprived of his land can challenge the acquisition proceedings at various stages. He can question the notification issued u/s 4(1) on the ground of violation of the mandate contained therein like publication of the notification in the official gazette and/or two newspapers including the one in the regional language, failure of the Collector to cause public notice of the substance of the notification to be given at convenient places in the locality. He can challenge the declaration issued u/s 6(1) on the ground of non-compliance of Section 5A(1) and/or (2) or violation of proviso (ii) to Section 6(1). In a given case, the land owner can also challenge the notice issued u/s 9 and the award passed u/s 11 on the ground that he had not been heard or that the acquisition proceedings are nullity. He can also challenge the award if it is not made within the period prescribed u/s 11 A. The vesting of land in the Government can be challenged on the ground that the possession had not been taken in accordance with the prescribed procedure. The invoking of urgency clause contained in Section 17 can be questioned on the ground that there was no real urgency. There may be many more grounds on which the land owner can challenge the acquisition proceedings. Insofar as the Appellant is concerned, he had challenged the acquisition proceedings immediately after passing of the award and pleaded that the declaration issued u/s 6(1) was liable to be declared nullity because of violation of the time limit prescribed in proviso (ii). This being the position, it is not possible to approve the view taken by the Division Bench of the High Court that the writ petition was belated.18. The finding recorded by the Division Bench of the High Court that the land had vested in the Government and, therefore, it was not open to the Appellant to challenge the same is also erroneous. Admittedly, possession of the Appellants land was taken u/s 35 which empowers the Government to temporarily occupy waste or arable land for a period of three years.19. The use of the expression not exceeding three years from commencement of such occupation leaves no manner of doubt that with effect from 31.1.1979 i.e. the date on which three years period counted from 01.02.1976 ended, continued occupation of the Appellants land by the Respondents became illegal per se.This issue is no longer res integral and must be treated as settled by the judgments of this Court in Padmasundara Rao and Others Vs. State of Tamil Nadu and Others, Ashok Kumar and Others Vs. State of Haryana and Another, and a recent judgment in Devender Kumar Tyagi and Ors. v. State of UP. and Ors. (2011) 9 SCC 164. In Padma Sundara Raos case (supra), the Constitution Bench unequivocally held that the second proviso to Section 6(1) is mandatory and a declaration issued beyond the period of one year from the last publication of the notification issued u/s 4(1) is nullity. In view of the proposition laid down in these judgments, it must be held that the learned Single Judge had rightly held that the declaration issued u/s 6(1) was non-est.We are unable to accept the submission of Learned Counsel for two reasons. Firstly, it has not been shown whether the corrigendum had been published in the manner prescribed u/s 4(1). Secondly, the corrigendum was issued only for correcting the typographical mistakes in the gazette publication of the notification issued u/s 4(1). Such corrigendum will relate back to the date on which notification u/s 4(1) was issued and the same cannot be relied upon for recording a finding that the declaration u/s 6(1) was issued within the period prescribed under proviso (ii) to that Section 22.
| 1 | 2,449 | 1,263 |
### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
the appeal filed by the Respondents, this Court declined to interfere with the direction given by the High Court. In the second round of acquisition, the award was passed by the Land Acquisition Officer on 31.01.1997 and the writ petition was filed within one month and 11 days thereafter. Therefore, the Division Bench was clearly wrong in holding that the Appellant was guilty of laches. 17. The issue needs to be examined from another angle. A person who is deprived of his land can challenge the acquisition proceedings at various stages. He can question the notification issued u/s 4(1) on the ground of violation of the mandate contained therein like publication of the notification in the official gazette and/or two newspapers including the one in the regional language, failure of the Collector to cause public notice of the substance of the notification to be given at convenient places in the locality. He can challenge the declaration issued u/s 6(1) on the ground of non-compliance of Section 5A(1) and/or (2) or violation of proviso (ii) to Section 6(1). In a given case, the land owner can also challenge the notice issued u/s 9 and the award passed u/s 11 on the ground that he had not been heard or that the acquisition proceedings are nullity. He can also challenge the award if it is not made within the period prescribed u/s 11 A. The vesting of land in the Government can be challenged on the ground that the possession had not been taken in accordance with the prescribed procedure. The invoking of urgency clause contained in Section 17 can be questioned on the ground that there was no real urgency. There may be many more grounds on which the land owner can challenge the acquisition proceedings. Insofar as the Appellant is concerned, he had challenged the acquisition proceedings immediately after passing of the award and pleaded that the declaration issued u/s 6(1) was liable to be declared nullity because of violation of the time limit prescribed in proviso (ii). This being the position, it is not possible to approve the view taken by the Division Bench of the High Court that the writ petition was belated. 18. The finding recorded by the Division Bench of the High Court that the land had vested in the Government and, therefore, it was not open to the Appellant to challenge the same is also erroneous. Admittedly, possession of the Appellants land was taken u/s 35 which empowers the Government to temporarily occupy waste or arable land for a period of three years. For the sake of reference, that section is reproduced below: 35. Temporary occupation of waste or arable land, procedure when difference as to compensation exists: (1) Subject to the provisions of Part VII of this Act, whenever it appears to the [appropriate Government] that the temporary occupation and use of any waste or arable land are needed for any public purpose, or for a company, the appropriate Government may direct the Collector to procure the occupation and use of the same for such terms as it shall think fit, not exceeding three years from commencement of such occupation. (2) The Collector shall thereupon give notice in writing to the persons interested in such land of the purpose for which the same is needed, and shall, for the occupation and use thereof, for such term as aforesaid, and for the materials (if any) to be taken there from, pay to them such compensation, either in a gross sum of money, or by monthly or other periodical payments, as shall be agreed upon in writing between him and such persons respectively. (3) In case the Collector and the persons interested differ as to the sufficiency of the compensation or apportionment thereof, the Collector shall refer such difference to the decision of the Court. 19. The use of the expression not exceeding three years from commencement of such occupation leaves no manner of doubt that with effect from 31.1.1979 i.e. the date on which three years period counted from 01.02.1976 ended, continued occupation of the Appellants land by the Respondents became illegal per se. 20. We may now advert to the main question as to whether the declaration issued u/s 6(1) was nullity because the same was issued after expiry of the period of one year specified in proviso (ii) to that Section. This issue is no longer res integral and must be treated as settled by the judgments of this Court in Padmasundara Rao and Others Vs. State of Tamil Nadu and Others, Ashok Kumar and Others Vs. State of Haryana and Another, and a recent judgment in Devender Kumar Tyagi and Ors. v. State of UP. and Ors. (2011) 9 SCC 164. In Padma Sundara Raos case (supra), the Constitution Bench unequivocally held that the second proviso to Section 6(1) is mandatory and a declaration issued beyond the period of one year from the last publication of the notification issued u/s 4(1) is nullity. In view of the proposition laid down in these judgments, it must be held that the learned Single Judge had rightly held that the declaration issued u/s 6(1) was non-est. 21. Learned Counsel for the Respondents relied upon corrigendum dated 01.07.1994 and argued that if the period of one year is counted from the date of corrigendum then the declaration issued u/s 6(1) cannot be treated as beyond the period of one year. We are unable to accept the submission of Learned Counsel for two reasons. Firstly, it has not been shown whether the corrigendum had been published in the manner prescribed u/s 4(1). Secondly, the corrigendum was issued only for correcting the typographical mistakes in the gazette publication of the notification issued u/s 4(1). Such corrigendum will relate back to the date on which notification u/s 4(1) was issued and the same cannot be relied upon for recording a finding that the declaration u/s 6(1) was issued within the period prescribed under proviso (ii) to that Section 22.
### Response:
1
### Explanation:
rules of self imposed restraint which are required to be kept in view by the High Courts while exercising power under Article 226. One of these rules is that the High Court will not come to the aid of a person who approaches the Court with delay and no explanation is offered for the same - State of Madhya Pradesh Vs. Bhailal Bhai and Others, and Tilokchand and Motichand and Others Vs. H.B. Munshi and Another, . In the first of two cases, the Constitution Bench observed that even though no period of limitation has been prescribed for filing writ petition under Article 226 of the Constitution, the Court will come to the rescue of only those who are vigilant and a petition filed after expiry of the period of limitation prescribed for filing a suit will not be entertained unless cogent explanation is offered for the same. In the second case, Hidayatullah, Chief Justice who concurred with R.S. Bachawat and G.K. Mitter, JJ. expressed the view that there is no upper or lower limit for filing a writ petition and each case has to be decided on its own facts. The learned Chief Justice further observed that even if the petition is filed beyond the period of limitation prescribed for filing a suit, the Court may entertain the petition provided that the Petitioner gives satisfactory explanation or may decline relief in a case where the petition is filed within limitation but the explanation for the delay is not satisfactory.16. The factual matrix of this case shows that from 1992, the Appellant has been prosecuting his cause for securing possession of the land. He succeeded in that venture when the writ petition filed by him was allowed by the Division Bench of the High Court and in the appeal filed by the Respondents, this Court declined to interfere with the direction given by the High Court. In the second round of acquisition, the award was passed by the Land Acquisition Officer on 31.01.1997 and the writ petition was filed within one month and 11 days thereafter. Therefore, the Division Bench was clearly wrong in holding that the Appellant was guilty of laches.17. The issue needs to be examined from another angle. A person who is deprived of his land can challenge the acquisition proceedings at various stages. He can question the notification issued u/s 4(1) on the ground of violation of the mandate contained therein like publication of the notification in the official gazette and/or two newspapers including the one in the regional language, failure of the Collector to cause public notice of the substance of the notification to be given at convenient places in the locality. He can challenge the declaration issued u/s 6(1) on the ground of non-compliance of Section 5A(1) and/or (2) or violation of proviso (ii) to Section 6(1). In a given case, the land owner can also challenge the notice issued u/s 9 and the award passed u/s 11 on the ground that he had not been heard or that the acquisition proceedings are nullity. He can also challenge the award if it is not made within the period prescribed u/s 11 A. The vesting of land in the Government can be challenged on the ground that the possession had not been taken in accordance with the prescribed procedure. The invoking of urgency clause contained in Section 17 can be questioned on the ground that there was no real urgency. There may be many more grounds on which the land owner can challenge the acquisition proceedings. Insofar as the Appellant is concerned, he had challenged the acquisition proceedings immediately after passing of the award and pleaded that the declaration issued u/s 6(1) was liable to be declared nullity because of violation of the time limit prescribed in proviso (ii). This being the position, it is not possible to approve the view taken by the Division Bench of the High Court that the writ petition was belated.18. The finding recorded by the Division Bench of the High Court that the land had vested in the Government and, therefore, it was not open to the Appellant to challenge the same is also erroneous. Admittedly, possession of the Appellants land was taken u/s 35 which empowers the Government to temporarily occupy waste or arable land for a period of three years.19. The use of the expression not exceeding three years from commencement of such occupation leaves no manner of doubt that with effect from 31.1.1979 i.e. the date on which three years period counted from 01.02.1976 ended, continued occupation of the Appellants land by the Respondents became illegal per se.This issue is no longer res integral and must be treated as settled by the judgments of this Court in Padmasundara Rao and Others Vs. State of Tamil Nadu and Others, Ashok Kumar and Others Vs. State of Haryana and Another, and a recent judgment in Devender Kumar Tyagi and Ors. v. State of UP. and Ors. (2011) 9 SCC 164. In Padma Sundara Raos case (supra), the Constitution Bench unequivocally held that the second proviso to Section 6(1) is mandatory and a declaration issued beyond the period of one year from the last publication of the notification issued u/s 4(1) is nullity. In view of the proposition laid down in these judgments, it must be held that the learned Single Judge had rightly held that the declaration issued u/s 6(1) was non-est.We are unable to accept the submission of Learned Counsel for two reasons. Firstly, it has not been shown whether the corrigendum had been published in the manner prescribed u/s 4(1). Secondly, the corrigendum was issued only for correcting the typographical mistakes in the gazette publication of the notification issued u/s 4(1). Such corrigendum will relate back to the date on which notification u/s 4(1) was issued and the same cannot be relied upon for recording a finding that the declaration u/s 6(1) was issued within the period prescribed under proviso (ii) to that Section 22.
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Nitu Vs. Sheela Rani
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the services rendered by late Shri Yash Pal was concerned. The said judgment was delivered on 25th April, 2013. 6. Being aggrieved by the aforestated judgment, Civil Appeal No.88 of 2013 was filed by Respondent No.1 i.e. the mother of late Shri Yash Pal in the Court of Additional District Judge, Rohtak. The said appeal was dismissed by the judgment and order dated 2nd July, 2014. 7. Being aggrieved by the judgment delivered by the first appellate Court, the respondent mother filed Civil Revision, being C.R. No.6012 of 2014, before the High Court of Punjab and Haryana at Chandigarh. 8. After hearing the parties concerned, the High Court allowed the said Revision Petition by observing that the respondent mother was entitled to the succession certificate in view of the provisions of Section 8 of the Hindu Succession Act as she was also one of the heirs of late Shri Yash Pal. 9. Being aggrieved by the aforestated order passed by the High Court, the present appeal has been filed by the appellant – widow of late Shri Yash Pal. 10. The learned counsel appearing for the appellant submitted that the appellant is the only person who is entitled to the pension as per the provisions of the Scheme. The learned counsel submitted that pension is paid in pursuance of the aforestated Scheme and therefore, pension cannot be treated as other assets of the deceased and according to the provisions of the Scheme, only the appellant is entitled to the pension. In the circumstances, according to the learned counsel, the High Court has committed an error by observing that all legal heirs have a share in the pension payable in respect of the services rendered by late Shri Yash Pal. 11. The learned counsel relied upon the provisions of the Scheme which provide that only the widow is entitled to the pension and none else. He referred to the provisions of the Scheme and submitted that the impugned order passed by the High Court deserves to be quashed and set aside as it is not in consonance with the provisions of the Scheme. 12. On the other hand, the learned counsel appearing for the respondent mother submitted that she being a class-I heir of a Hindu and as late Shri Yash Pal died intestate, she is entitled to one-half share of the properties of late Shri Yash Pal, as he was survived by his widow and the mother. The learned counsel, therefore, submitted that the impugned order passed by the High Court is just and proper. 13. The learned counsel appearing for the State supported the case of the appellant and submitted that in the Scheme, the term family has been defined and in the instant case, the widow of the deceased is the only person who is entitled to pension and therefore, the impugned order deserves to be quashed and set aside so that the entire amount of pension can be paid to the appellant. 14. We have heard the learned counsel appearing for the parties and have also perused the provisions of the Scheme. 15. Let us look at the provisions of the Scheme, in pursuance of which the pension is to be paid in respect of services rendered by late Shri Yash Pal. Clause 4(ii) of the Scheme defines the term family, which reads as under :- 4(ii). Family for the purpose of this scheme includes the following relatives of the officer:- (a)wife, in the case of a male officer; (b) husband, in the case of a female officer; (c) minor sons; (d) unmarried minor daughters; (e) widowed/legally divorced daughters; and (f) the parents of an unmarried officer. 16. So far as the respondent mother is concerned, she has not been included in the definition of the term family for the reason that as per the provisions of sub-clause (f), parents of an unmarried officer would be a part of the family and therefore, the respondent mother would not be included in the family of late Shri Yash Pal as he was married. 17. So far as the provisions of the Hindu Succession Act, 1956, are concerned, it is true that the properties of a Hindu, who dies intestate would first of all go to the persons enumerated in class I of the schedule as per the provisions of Section 8 of the said Act and therefore, so far as the properties of late Shri Yash Pal are concerned, they would be divided among the respondent mother and the appellant wife, provided there is no other family member of late Shri Yash Pal alive, who would fall within class 1 heirs, but position in this case, with regard to pension, is different. 18. It is pertinent to note that in this case the pension is to be given under the provisions of the Scheme and therefore, only the person who is entitled to get the pension as per the Scheme would get it. Similar issue had arisen before this Court in the case of Violet Issaac (Smt.) v. Union of India (1991) 1 SCC 725 and after considering the relevant provisions, this Court came to the conclusion that family pension does not form part of the estate of the deceased and therefore, even an employee has no right to dispose of the same in his Will by giving a direction that someone other than the one who is entitled to it, should be given the same. In the instant case, as per the provisions of the Scheme, the appellant widow is the only family member who is entitled to the pension and therefore, the respondent mother would not get any right in the pension. Of course, it cannot be disputed that if there are other assets left by late Shri Yash Pal, the respondent mother would get 50% share, if late Shri Yash Pal had not prepared any Will and it appears that late Shri Yash Pal had died intestate and no Will had been executed by him.
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1[ds]16. So far as the respondent mother is concerned, she has not been included in the definition of the term family for the reason that as per the provisions ofe (f), parents of an unmarried officer would be a part of the family and therefore, the respondent mother would not be included in the family of late Shri Yash Pal as he was married17. So far as the provisions of the Hindu Succession Act, 1956, are concerned, it is true that the properties of a Hindu, who dies intestate would first of all go to the persons enumerated in class I of the schedule as per the provisions of Section 8 of the said Act and therefore, so far as the properties of late Shri Yash Pal are concerned, they would be divided among the respondent mother and the appellant wife, provided there is no other family member of late Shri Yash Pal alive, who would fall within class 1 heirs, but position in this case, with regard to pension, is different18. It is pertinent to note that in this case the pension is to be given under the provisions of the Scheme and therefore, only the person who is entitled to get the pension as per the Scheme would get it. Similar issue had arisen before this Court in the case of Violet Issaac (Smt.) v. Union of India (1991) 1 SCC 725 and after considering the relevant provisions, this Court came to the conclusion that family pension does not form part of the estate of the deceased and therefore, even an employee has no right to dispose of the same in his Will by giving a direction that someone other than the one who is entitled to it, should be given the same. In the instant case, as per the provisions of the Scheme, the appellant widow is the only family member who is entitled to the pension and therefore, the respondent mother would not get any right in the pension. Of course, it cannot be disputed that if there are other assets left by late Shri Yash Pal, the respondent mother would get 50% share, if late Shri Yash Pal had not prepared any Will and it appears that late Shri Yash Pal had died intestate and no Will had been executed by him.
| 1 | 1,535 | 431 |
### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
the services rendered by late Shri Yash Pal was concerned. The said judgment was delivered on 25th April, 2013. 6. Being aggrieved by the aforestated judgment, Civil Appeal No.88 of 2013 was filed by Respondent No.1 i.e. the mother of late Shri Yash Pal in the Court of Additional District Judge, Rohtak. The said appeal was dismissed by the judgment and order dated 2nd July, 2014. 7. Being aggrieved by the judgment delivered by the first appellate Court, the respondent mother filed Civil Revision, being C.R. No.6012 of 2014, before the High Court of Punjab and Haryana at Chandigarh. 8. After hearing the parties concerned, the High Court allowed the said Revision Petition by observing that the respondent mother was entitled to the succession certificate in view of the provisions of Section 8 of the Hindu Succession Act as she was also one of the heirs of late Shri Yash Pal. 9. Being aggrieved by the aforestated order passed by the High Court, the present appeal has been filed by the appellant – widow of late Shri Yash Pal. 10. The learned counsel appearing for the appellant submitted that the appellant is the only person who is entitled to the pension as per the provisions of the Scheme. The learned counsel submitted that pension is paid in pursuance of the aforestated Scheme and therefore, pension cannot be treated as other assets of the deceased and according to the provisions of the Scheme, only the appellant is entitled to the pension. In the circumstances, according to the learned counsel, the High Court has committed an error by observing that all legal heirs have a share in the pension payable in respect of the services rendered by late Shri Yash Pal. 11. The learned counsel relied upon the provisions of the Scheme which provide that only the widow is entitled to the pension and none else. He referred to the provisions of the Scheme and submitted that the impugned order passed by the High Court deserves to be quashed and set aside as it is not in consonance with the provisions of the Scheme. 12. On the other hand, the learned counsel appearing for the respondent mother submitted that she being a class-I heir of a Hindu and as late Shri Yash Pal died intestate, she is entitled to one-half share of the properties of late Shri Yash Pal, as he was survived by his widow and the mother. The learned counsel, therefore, submitted that the impugned order passed by the High Court is just and proper. 13. The learned counsel appearing for the State supported the case of the appellant and submitted that in the Scheme, the term family has been defined and in the instant case, the widow of the deceased is the only person who is entitled to pension and therefore, the impugned order deserves to be quashed and set aside so that the entire amount of pension can be paid to the appellant. 14. We have heard the learned counsel appearing for the parties and have also perused the provisions of the Scheme. 15. Let us look at the provisions of the Scheme, in pursuance of which the pension is to be paid in respect of services rendered by late Shri Yash Pal. Clause 4(ii) of the Scheme defines the term family, which reads as under :- 4(ii). Family for the purpose of this scheme includes the following relatives of the officer:- (a)wife, in the case of a male officer; (b) husband, in the case of a female officer; (c) minor sons; (d) unmarried minor daughters; (e) widowed/legally divorced daughters; and (f) the parents of an unmarried officer. 16. So far as the respondent mother is concerned, she has not been included in the definition of the term family for the reason that as per the provisions of sub-clause (f), parents of an unmarried officer would be a part of the family and therefore, the respondent mother would not be included in the family of late Shri Yash Pal as he was married. 17. So far as the provisions of the Hindu Succession Act, 1956, are concerned, it is true that the properties of a Hindu, who dies intestate would first of all go to the persons enumerated in class I of the schedule as per the provisions of Section 8 of the said Act and therefore, so far as the properties of late Shri Yash Pal are concerned, they would be divided among the respondent mother and the appellant wife, provided there is no other family member of late Shri Yash Pal alive, who would fall within class 1 heirs, but position in this case, with regard to pension, is different. 18. It is pertinent to note that in this case the pension is to be given under the provisions of the Scheme and therefore, only the person who is entitled to get the pension as per the Scheme would get it. Similar issue had arisen before this Court in the case of Violet Issaac (Smt.) v. Union of India (1991) 1 SCC 725 and after considering the relevant provisions, this Court came to the conclusion that family pension does not form part of the estate of the deceased and therefore, even an employee has no right to dispose of the same in his Will by giving a direction that someone other than the one who is entitled to it, should be given the same. In the instant case, as per the provisions of the Scheme, the appellant widow is the only family member who is entitled to the pension and therefore, the respondent mother would not get any right in the pension. Of course, it cannot be disputed that if there are other assets left by late Shri Yash Pal, the respondent mother would get 50% share, if late Shri Yash Pal had not prepared any Will and it appears that late Shri Yash Pal had died intestate and no Will had been executed by him.
### Response:
1
### Explanation:
16. So far as the respondent mother is concerned, she has not been included in the definition of the term family for the reason that as per the provisions ofe (f), parents of an unmarried officer would be a part of the family and therefore, the respondent mother would not be included in the family of late Shri Yash Pal as he was married17. So far as the provisions of the Hindu Succession Act, 1956, are concerned, it is true that the properties of a Hindu, who dies intestate would first of all go to the persons enumerated in class I of the schedule as per the provisions of Section 8 of the said Act and therefore, so far as the properties of late Shri Yash Pal are concerned, they would be divided among the respondent mother and the appellant wife, provided there is no other family member of late Shri Yash Pal alive, who would fall within class 1 heirs, but position in this case, with regard to pension, is different18. It is pertinent to note that in this case the pension is to be given under the provisions of the Scheme and therefore, only the person who is entitled to get the pension as per the Scheme would get it. Similar issue had arisen before this Court in the case of Violet Issaac (Smt.) v. Union of India (1991) 1 SCC 725 and after considering the relevant provisions, this Court came to the conclusion that family pension does not form part of the estate of the deceased and therefore, even an employee has no right to dispose of the same in his Will by giving a direction that someone other than the one who is entitled to it, should be given the same. In the instant case, as per the provisions of the Scheme, the appellant widow is the only family member who is entitled to the pension and therefore, the respondent mother would not get any right in the pension. Of course, it cannot be disputed that if there are other assets left by late Shri Yash Pal, the respondent mother would get 50% share, if late Shri Yash Pal had not prepared any Will and it appears that late Shri Yash Pal had died intestate and no Will had been executed by him.
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Handigas Dealers, Distributors & Consumers Association & Others Vs. Union of India & Others
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dealers and distributors. Petitioners 2, 3, 4 and 5 are individual consumers. Petitioners 6 and 7 are distributors. Petitioner 8 is an association of the distributors in South India.4. The primary relief sought for in the writ petition was to have an enquiry conducted through CBI so as to expose the corruption at high levels without which the petitioners could not have been duped into parting with the money. On notices being issued, several intervention applications were filed.5. On the appearance of Respondents 9 to 12 on 24-4-2000, the Court, after hearing the learned counsel for the parties, directed as under: "We direct Respondents 9 - 12 to file complete list of distributors, dealers and consumers for supply of gas and the amount received from them. The said respondents shall furnish details of the assets of their Company as well as of the Directors including the statement of bank accounts as on today. The said respondents shall not transfer, alienate or part with any of the assets, excluding the stock intrade, till the matter comes up for hearing. In the meantime the petitioner may also furnish list of such distributors, dealers and consumers who had taken supply of the gas." 6. The petitioners filed details of the claims which were due and payable by the respondents to them. The respondents were allowed time for verifying the correctness of the claims.7. It appears that better sense prevailed with Respondents 9 to 12 who came out with an offer to amicably settle the claims of the petitioners by filing a scheme of payment/settlement.8. In this process, it was found that there was some dispute as to the exact amount as to which the petitioners could be held entitled and the respondents could be held liable to pay. As there were certain factual issues which were to be gone into, we requested by order dated 21-7-2003 Mr Sunil Gupta, Senior Advocate to assist the Court as amicus and also intervene to settle the dispute between the parties as also to suggest a scheme of payment by holding a meeting with all those who may be concerned.9. The learned amicus curiae first prepared and submitted to the Court a compilation of tabular charts and supporting documents titled as "Consolidated Statements of the Claims" of the petitioners. The tabular charts sought to tabulate the admitted (undisputed) and disputed amounts between the parties under the aforementioned four heads viz. distributor deposit, trade balance, security deposit and rent. Copies of the compilation were also given to the respective counsel. The counsel for the respondent submitted a response to the consolidated statement taking certain objections to the same. Thereafter, on 3-2-2004 an order was passed directing that the parties may sit together with the amicus and "sort out the discrepancies". Accordingly, the parties attended meeting called by the amicus and put forth their respective contentions before him. Consequently, the amicus prepared and submitted to this Court his report dated 13-10-2004 wherein he recorded that the petitioners have not pressed their claim under the head, rent, and he also recorded his conclusions with regard to the moneys due from the respondents to the petitioners under the other three heads of distributor deposit, trade balance and security deposit.10. When the said report came up for consideration by the Court, the parties did not express any objection to the same and, therefore, it can safely be said that the findings recorded by the amicus in respect of the monetary claims of the petitioners under the aforesaid three heads enjoy the status of consensus arrived at by the parties in regard to the said monetary claims.11. However, on 25-10-2004, the Court asked the learned amicus to convene a meeting with the parties again and also make his suggestions on three remaining points, namely: (i) The 800 - odd additional cylinders lying with the petitioners which remain to be returned to the respondents.(ii) Interest, if any, payable by the respondents to the petitioners on the amounts due.(iii) The payment schedule to be followed by the respondents. In pursuance of the said order, the learned amicus again held a meeting on 11-12-2004 and after hearing the parties filed an addendum dated 11-1-2005 to his earlier report dated 13-10-2004. No objection was taken by the respondents to any of the other suggestions made by the amicus in the addendum on the aforementioned three remaining points. The petitioners also expressed no objection to any of the suggestions made in the addendum. It can safely be inferred that the suggestions made by the amicus on the aforementioned three points also enjoy the status of consensus arrived at between the parties.12. Since largely and substantially the parties have arrived at a consensus both as regards the monetary claims and the three remaining points, it is possible to cut short the controversy and make directions for giving effect to the report dated 13-10-2004 and the addendum dated 11-1-2005 submitted by the amicus with the modifications incorporating the Courts view on the two aspects of the Court Commissioner and the rate of interest. 13. We have heard the learned counsel for the parties and during the said hearings also the learned amicus has remained present to assist the Court.14. We are of the opinion that the principal relief asked for in the petition seeking directions for investigation by CBI is not an appropriate relief to be granted in the facts and circumstances of the present case for it may be difficult to record a clear finding as to criminal activity designedly having been entered into by Respondents 9 to 12. Maybe it was an ambitious adventure which turned out to be a misadventure and hence failed. Respondents 9 to 12 are inclined to make payments in the terms settled by the learned amicus and we feel that the solution suggested by the learned amicus is most reasonable and ought to be accepted. The learned counsel for the petitioners as also for Respondents 9 to 12 are agreeable to do so.
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1[ds]14. We are of the opinion that the principal relief asked for in the petition seeking directions for investigation by CBI is not an appropriate relief to be granted in the facts and circumstances of the present case for it may be difficult to record a clear finding as to criminal activity designedly having been entered into by Respondents 9 to 12. Maybe it was an ambitious adventure which turned out to be a misadventure and hence failed. Respondents 9 to 12 are inclined to make payments in the terms settled by the learned amicus and we feel that the solution suggested by the learned amicus is most reasonable and ought to be accepted. The learned counsel for the petitioners as also for Respondents 9 to 12 are agreeable to do so.
| 1 | 1,424 | 141 |
### 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:
dealers and distributors. Petitioners 2, 3, 4 and 5 are individual consumers. Petitioners 6 and 7 are distributors. Petitioner 8 is an association of the distributors in South India.4. The primary relief sought for in the writ petition was to have an enquiry conducted through CBI so as to expose the corruption at high levels without which the petitioners could not have been duped into parting with the money. On notices being issued, several intervention applications were filed.5. On the appearance of Respondents 9 to 12 on 24-4-2000, the Court, after hearing the learned counsel for the parties, directed as under: "We direct Respondents 9 - 12 to file complete list of distributors, dealers and consumers for supply of gas and the amount received from them. The said respondents shall furnish details of the assets of their Company as well as of the Directors including the statement of bank accounts as on today. The said respondents shall not transfer, alienate or part with any of the assets, excluding the stock intrade, till the matter comes up for hearing. In the meantime the petitioner may also furnish list of such distributors, dealers and consumers who had taken supply of the gas." 6. The petitioners filed details of the claims which were due and payable by the respondents to them. The respondents were allowed time for verifying the correctness of the claims.7. It appears that better sense prevailed with Respondents 9 to 12 who came out with an offer to amicably settle the claims of the petitioners by filing a scheme of payment/settlement.8. In this process, it was found that there was some dispute as to the exact amount as to which the petitioners could be held entitled and the respondents could be held liable to pay. As there were certain factual issues which were to be gone into, we requested by order dated 21-7-2003 Mr Sunil Gupta, Senior Advocate to assist the Court as amicus and also intervene to settle the dispute between the parties as also to suggest a scheme of payment by holding a meeting with all those who may be concerned.9. The learned amicus curiae first prepared and submitted to the Court a compilation of tabular charts and supporting documents titled as "Consolidated Statements of the Claims" of the petitioners. The tabular charts sought to tabulate the admitted (undisputed) and disputed amounts between the parties under the aforementioned four heads viz. distributor deposit, trade balance, security deposit and rent. Copies of the compilation were also given to the respective counsel. The counsel for the respondent submitted a response to the consolidated statement taking certain objections to the same. Thereafter, on 3-2-2004 an order was passed directing that the parties may sit together with the amicus and "sort out the discrepancies". Accordingly, the parties attended meeting called by the amicus and put forth their respective contentions before him. Consequently, the amicus prepared and submitted to this Court his report dated 13-10-2004 wherein he recorded that the petitioners have not pressed their claim under the head, rent, and he also recorded his conclusions with regard to the moneys due from the respondents to the petitioners under the other three heads of distributor deposit, trade balance and security deposit.10. When the said report came up for consideration by the Court, the parties did not express any objection to the same and, therefore, it can safely be said that the findings recorded by the amicus in respect of the monetary claims of the petitioners under the aforesaid three heads enjoy the status of consensus arrived at by the parties in regard to the said monetary claims.11. However, on 25-10-2004, the Court asked the learned amicus to convene a meeting with the parties again and also make his suggestions on three remaining points, namely: (i) The 800 - odd additional cylinders lying with the petitioners which remain to be returned to the respondents.(ii) Interest, if any, payable by the respondents to the petitioners on the amounts due.(iii) The payment schedule to be followed by the respondents. In pursuance of the said order, the learned amicus again held a meeting on 11-12-2004 and after hearing the parties filed an addendum dated 11-1-2005 to his earlier report dated 13-10-2004. No objection was taken by the respondents to any of the other suggestions made by the amicus in the addendum on the aforementioned three remaining points. The petitioners also expressed no objection to any of the suggestions made in the addendum. It can safely be inferred that the suggestions made by the amicus on the aforementioned three points also enjoy the status of consensus arrived at between the parties.12. Since largely and substantially the parties have arrived at a consensus both as regards the monetary claims and the three remaining points, it is possible to cut short the controversy and make directions for giving effect to the report dated 13-10-2004 and the addendum dated 11-1-2005 submitted by the amicus with the modifications incorporating the Courts view on the two aspects of the Court Commissioner and the rate of interest. 13. We have heard the learned counsel for the parties and during the said hearings also the learned amicus has remained present to assist the Court.14. We are of the opinion that the principal relief asked for in the petition seeking directions for investigation by CBI is not an appropriate relief to be granted in the facts and circumstances of the present case for it may be difficult to record a clear finding as to criminal activity designedly having been entered into by Respondents 9 to 12. Maybe it was an ambitious adventure which turned out to be a misadventure and hence failed. Respondents 9 to 12 are inclined to make payments in the terms settled by the learned amicus and we feel that the solution suggested by the learned amicus is most reasonable and ought to be accepted. The learned counsel for the petitioners as also for Respondents 9 to 12 are agreeable to do so.
### Response:
1
### Explanation:
14. We are of the opinion that the principal relief asked for in the petition seeking directions for investigation by CBI is not an appropriate relief to be granted in the facts and circumstances of the present case for it may be difficult to record a clear finding as to criminal activity designedly having been entered into by Respondents 9 to 12. Maybe it was an ambitious adventure which turned out to be a misadventure and hence failed. Respondents 9 to 12 are inclined to make payments in the terms settled by the learned amicus and we feel that the solution suggested by the learned amicus is most reasonable and ought to be accepted. The learned counsel for the petitioners as also for Respondents 9 to 12 are agreeable to do so.
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Steel Authority of India, Succesor of Bokaro Steel Limited Vs. Labour Court and Another
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could not be dismissed at this stage and that the company should be given an opportunity to adduce evidence in support of the action it had taken against the respondent.3. From the order of the Labour Court two writ petitions were filed in the Patna High Court, one by the respondent praying for quashing that part of the order which permitted the company to lead evidence in support of its action in dismissing him, and the other by the company questioning the finding that the Chief Medical Officer was not competent to frame the High Court dismissed both the Writ petitions. The appeal before us has been filed by special leave by the company challenging the finding made by the Labour Court and approved by the High Court that the Chief Medical Officer of the company had no authority to frame the charges against the respondent or constitute the inquiry committee and as such the procedure followed in dismissing the respondent from service was bad.4. The only question for decision in this appeal is whether the authority who framed the charges against the respondent and constituted the inquiry committee had the power to do so. Before the Labour Court as well as the High Court the respective cases of the parties were based on the services rules of the appellant-company. It appears that this body of rules which had been approved by the Board of Directors was first published in January 1965. By resolution No. 40n dated October 1, 1964 the Board of Directors approved the Discipline and Appeal Rules which contained provisions concerning acts of misconduct, nature of penalties, authorities competent to impose the penalties, the procedure of imposing minor and major penalties etc. Dismissal from service is a major penalty. Rule 2(f) defines Disciplinary Authority as the authority competent to impose any penalty under these rules as specified in the schedule. The schedule shows that for all posts below the scale of pay Rs. 500-1, 100, the disciplinary authority is the appointing authority for the propose of awarding major penalties. It also appears from the schedule that the "empowered authority" meaning the authority to whom powers may be delegated by the appointing authority is competent to award only minor penalties to employees of the scale of pay below Rs. 500-1, 100. Rule 8 lays down the procedure for imposing the major penalties. The Labour Court as well as the High Court found on a reading of Rule 8 and other provisions of the Discipline and Appeal Rules including the schedule that in the respondents case it was the appointing authority, namely the Personnel Manager, who was the disciplinary authority and was as such competent to frame the charges and to constitute the inquiry committee and the Chief Medical Officer who exercised these powers in this case had no authority to do so. On a reading of the rules we have no doubt that this is the position. It was contended on behalf of the company that the Chief Medical Officer had the delegated power to frame the charges and constitute the inquiry committee in this case. In support of this contention reliance was placed on resolution No. 7 passed on February 11, 1964 by the Board of Directors of Bokaro Steel was authorised to sub-delegate his powers, delegated him by the Board to the heads of office under him. An Office Order dated November 5, 1064 was referred to show that pursuant to that resolution the Managing Director had delegated the procedural powers in connection with disciplinary action to the Personnel Manager including the powers to frame charges and constitute inquiry committees in consultation with and on the recommendation of the concerned heads of departments with regard to employees upto and including the grade of Rs. 400-800." At that time the head of the Medical department was called the Senior Executive Medical Officer Officer Officer. A subsequent office order was also mentioned of the date June 22, 1966 showing that in supersession of the Office Order dated November 5, 1964 so far as it related to delegation, of powers, the Managing Director had delegated full powers to all the heads of departments to frame charges and to constitute inquiry committee with regard to employees "up to and including the grade of Rs. 400-800 subject to rules and procedures and in consultation with the Personnel Department". It was stated that the post of the Senior Executive Medical Officer was abolished and the new post of the Chief Medical Officer was created in its place as the head of the department.5. It was pointed out by the Labour Court that the said resolution No. 7 dated February 11, 1964 or the Office Orders of 1964 and 1966 on which the company sought to rely did not form part of the service rules approved by the Board of Directors. The copy of the service rules given to us during the hearing of the appeal includes the various amendments to these rules made from time to time till July 1972 which were approved by the Board of Directors. This copy does not include the aforesaid Office Orders of 1964 and 1966 on which the appellant-company sought to build their case. We therefore, agree with the concurrent finding of the High Court and the Labour Court that the Discipline and Appeal Rules of the company which had been approved by the Board of Directors did not authorise the Chief Medical Officer to frame the charges against the respondent or to constitute the inquiry committee. The High Court and the Labour Court also rightly repelled a contention put forward on behalf of the company built on Rule 20 of the Conduct Rules for the employees which has no application in this case. In the view we have taken it is not necessary to examine the argument advanced by the respondent that the Office Orders of 1964 and 1966 were not enforceable in view of the provisions of Section9-A of the Industrial Disputes Act, 1947.
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0[ds]It appears that this body of rules which had been approved by the Board of Directors was first published in January 1965. By resolution No. 40n dated October 1, 1964 the Board of Directors approved the Discipline and Appeal Rules which contained provisions concerning acts of misconduct, nature of penalties, authorities competent to impose the penalties, the procedure of imposing minor and major penalties etc. Dismissal from service is a major penalty. Rule 2(f) defines Disciplinary Authority as the authority competent to impose any penalty under these rules as specified in the schedule. The schedule shows that for all posts below the scale of pay Rs.100, the disciplinary authority is the appointing authority for the propose of awarding major penalties. It also appears from the schedule that the "empowered authority" meaning the authority to whom powers may be delegated by the appointing authority is competent to award only minor penalties to employees of the scale of pay below Rs.100. Rule 8 lays down the procedure for imposing the major penalties. The Labour Court as well as the High Court found on a reading of Rule 8 and other provisions of the Discipline and Appeal Rules including the schedule that in the respondents case it was the appointing authority, namely the Personnel Manager, who was the disciplinary authority and was as such competent to frame the charges and to constitute the inquiry committee and the Chief Medical Officer who exercised these powers in this case had no authority to do so. On a reading of the rules we have no doubt that this is the position.It was contended on behalf of the company that the Chief Medical Officer had the delegated power to frame the charges and constitute the inquiry committee in this case. In support of this contention reliance was placed on resolution No. 7 passed on February 11, 1964 by the Board of Directors of Bokaro Steel was authorised tos powers, delegated him by the Board to the heads of office under him. An Office Order dated November 5, 1064 was referred to show that pursuant to that resolution the Managing Director had delegated the procedural powers in connection with disciplinary action to the Personnel Manager including the powers to frame charges and constitute inquiry committees in consultation with and on the recommendation of the concerned heads of departments with regard to employees upto and including the grade of Rs.t that time the head of the Medical department was called the Senior Executive Medical Officer Officer Officer. A subsequent office order was also mentioned of the date June 22, 1966 showing that in supersession of the Office Order dated November 5, 1964 so far as it related to delegation, of powers, the Managing Director had delegated full powers to all the heads of departments to frame charges and to constitute inquiry committee with regard to employees "up to and including the grade of Rs.t to rules and procedures and in consultation with the Personnel Department". It was stated that the post of the Senior Executive Medical Officer was abolished and the new post of the Chief Medical Officer was created in its place as the head of the department.It was pointed out by the Labour Court that the said resolution No. 7 dated February 11, 1964 or the Office Orders of 1964 and 1966 on which the company sought to rely did not form part of the service rules approved by the Board of Directors. The copy of the service rules given to us during the hearing of the appeal includes the various amendments to these rules made from time to time till July 1972 which were approved by the Board of Directors. This copy does not include the aforesaid Office Orders of 1964 and 1966 on which thesought to build their case. We therefore, agree with the concurrent finding of the High Court and the Labour Court that the Discipline and Appeal Rules of the company which had been approved by the Board of Directors did not authorise the Chief Medical Officer to frame the charges against the respondent or to constitute the inquiry committee. The High Court and the Labour Court also rightly repelled a contention put forward on behalf of the company built on Rule 20 of the Conduct Rules for the employees which has no application in this case. In the view we have taken it is not necessary to examine the argument advanced by the respondent that the Office Orders of 1964 and 1966 were not enforceable in view of the provisions ofof the Industrial Disputes Act, 1947.
| 0 | 1,533 | 813 |
### 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:
could not be dismissed at this stage and that the company should be given an opportunity to adduce evidence in support of the action it had taken against the respondent.3. From the order of the Labour Court two writ petitions were filed in the Patna High Court, one by the respondent praying for quashing that part of the order which permitted the company to lead evidence in support of its action in dismissing him, and the other by the company questioning the finding that the Chief Medical Officer was not competent to frame the High Court dismissed both the Writ petitions. The appeal before us has been filed by special leave by the company challenging the finding made by the Labour Court and approved by the High Court that the Chief Medical Officer of the company had no authority to frame the charges against the respondent or constitute the inquiry committee and as such the procedure followed in dismissing the respondent from service was bad.4. The only question for decision in this appeal is whether the authority who framed the charges against the respondent and constituted the inquiry committee had the power to do so. Before the Labour Court as well as the High Court the respective cases of the parties were based on the services rules of the appellant-company. It appears that this body of rules which had been approved by the Board of Directors was first published in January 1965. By resolution No. 40n dated October 1, 1964 the Board of Directors approved the Discipline and Appeal Rules which contained provisions concerning acts of misconduct, nature of penalties, authorities competent to impose the penalties, the procedure of imposing minor and major penalties etc. Dismissal from service is a major penalty. Rule 2(f) defines Disciplinary Authority as the authority competent to impose any penalty under these rules as specified in the schedule. The schedule shows that for all posts below the scale of pay Rs. 500-1, 100, the disciplinary authority is the appointing authority for the propose of awarding major penalties. It also appears from the schedule that the "empowered authority" meaning the authority to whom powers may be delegated by the appointing authority is competent to award only minor penalties to employees of the scale of pay below Rs. 500-1, 100. Rule 8 lays down the procedure for imposing the major penalties. The Labour Court as well as the High Court found on a reading of Rule 8 and other provisions of the Discipline and Appeal Rules including the schedule that in the respondents case it was the appointing authority, namely the Personnel Manager, who was the disciplinary authority and was as such competent to frame the charges and to constitute the inquiry committee and the Chief Medical Officer who exercised these powers in this case had no authority to do so. On a reading of the rules we have no doubt that this is the position. It was contended on behalf of the company that the Chief Medical Officer had the delegated power to frame the charges and constitute the inquiry committee in this case. In support of this contention reliance was placed on resolution No. 7 passed on February 11, 1964 by the Board of Directors of Bokaro Steel was authorised to sub-delegate his powers, delegated him by the Board to the heads of office under him. An Office Order dated November 5, 1064 was referred to show that pursuant to that resolution the Managing Director had delegated the procedural powers in connection with disciplinary action to the Personnel Manager including the powers to frame charges and constitute inquiry committees in consultation with and on the recommendation of the concerned heads of departments with regard to employees upto and including the grade of Rs. 400-800." At that time the head of the Medical department was called the Senior Executive Medical Officer Officer Officer. A subsequent office order was also mentioned of the date June 22, 1966 showing that in supersession of the Office Order dated November 5, 1964 so far as it related to delegation, of powers, the Managing Director had delegated full powers to all the heads of departments to frame charges and to constitute inquiry committee with regard to employees "up to and including the grade of Rs. 400-800 subject to rules and procedures and in consultation with the Personnel Department". It was stated that the post of the Senior Executive Medical Officer was abolished and the new post of the Chief Medical Officer was created in its place as the head of the department.5. It was pointed out by the Labour Court that the said resolution No. 7 dated February 11, 1964 or the Office Orders of 1964 and 1966 on which the company sought to rely did not form part of the service rules approved by the Board of Directors. The copy of the service rules given to us during the hearing of the appeal includes the various amendments to these rules made from time to time till July 1972 which were approved by the Board of Directors. This copy does not include the aforesaid Office Orders of 1964 and 1966 on which the appellant-company sought to build their case. We therefore, agree with the concurrent finding of the High Court and the Labour Court that the Discipline and Appeal Rules of the company which had been approved by the Board of Directors did not authorise the Chief Medical Officer to frame the charges against the respondent or to constitute the inquiry committee. The High Court and the Labour Court also rightly repelled a contention put forward on behalf of the company built on Rule 20 of the Conduct Rules for the employees which has no application in this case. In the view we have taken it is not necessary to examine the argument advanced by the respondent that the Office Orders of 1964 and 1966 were not enforceable in view of the provisions of Section9-A of the Industrial Disputes Act, 1947.
### Response:
0
### Explanation:
It appears that this body of rules which had been approved by the Board of Directors was first published in January 1965. By resolution No. 40n dated October 1, 1964 the Board of Directors approved the Discipline and Appeal Rules which contained provisions concerning acts of misconduct, nature of penalties, authorities competent to impose the penalties, the procedure of imposing minor and major penalties etc. Dismissal from service is a major penalty. Rule 2(f) defines Disciplinary Authority as the authority competent to impose any penalty under these rules as specified in the schedule. The schedule shows that for all posts below the scale of pay Rs.100, the disciplinary authority is the appointing authority for the propose of awarding major penalties. It also appears from the schedule that the "empowered authority" meaning the authority to whom powers may be delegated by the appointing authority is competent to award only minor penalties to employees of the scale of pay below Rs.100. Rule 8 lays down the procedure for imposing the major penalties. The Labour Court as well as the High Court found on a reading of Rule 8 and other provisions of the Discipline and Appeal Rules including the schedule that in the respondents case it was the appointing authority, namely the Personnel Manager, who was the disciplinary authority and was as such competent to frame the charges and to constitute the inquiry committee and the Chief Medical Officer who exercised these powers in this case had no authority to do so. On a reading of the rules we have no doubt that this is the position.It was contended on behalf of the company that the Chief Medical Officer had the delegated power to frame the charges and constitute the inquiry committee in this case. In support of this contention reliance was placed on resolution No. 7 passed on February 11, 1964 by the Board of Directors of Bokaro Steel was authorised tos powers, delegated him by the Board to the heads of office under him. An Office Order dated November 5, 1064 was referred to show that pursuant to that resolution the Managing Director had delegated the procedural powers in connection with disciplinary action to the Personnel Manager including the powers to frame charges and constitute inquiry committees in consultation with and on the recommendation of the concerned heads of departments with regard to employees upto and including the grade of Rs.t that time the head of the Medical department was called the Senior Executive Medical Officer Officer Officer. A subsequent office order was also mentioned of the date June 22, 1966 showing that in supersession of the Office Order dated November 5, 1964 so far as it related to delegation, of powers, the Managing Director had delegated full powers to all the heads of departments to frame charges and to constitute inquiry committee with regard to employees "up to and including the grade of Rs.t to rules and procedures and in consultation with the Personnel Department". It was stated that the post of the Senior Executive Medical Officer was abolished and the new post of the Chief Medical Officer was created in its place as the head of the department.It was pointed out by the Labour Court that the said resolution No. 7 dated February 11, 1964 or the Office Orders of 1964 and 1966 on which the company sought to rely did not form part of the service rules approved by the Board of Directors. The copy of the service rules given to us during the hearing of the appeal includes the various amendments to these rules made from time to time till July 1972 which were approved by the Board of Directors. This copy does not include the aforesaid Office Orders of 1964 and 1966 on which thesought to build their case. We therefore, agree with the concurrent finding of the High Court and the Labour Court that the Discipline and Appeal Rules of the company which had been approved by the Board of Directors did not authorise the Chief Medical Officer to frame the charges against the respondent or to constitute the inquiry committee. The High Court and the Labour Court also rightly repelled a contention put forward on behalf of the company built on Rule 20 of the Conduct Rules for the employees which has no application in this case. In the view we have taken it is not necessary to examine the argument advanced by the respondent that the Office Orders of 1964 and 1966 were not enforceable in view of the provisions ofof the Industrial Disputes Act, 1947.
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Shirdi Nagar Panchayat, Shirdi Vs. Appasaheb Narayan Chaudhari & Others
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that the private respondents herein filed a writ petition before the High Court and prayed for the following reliefs: (B) to direct respondents No. 1 to 4 to initiate acquisition proceedings in respect of land Gut No. 8 to the extent of 86 Are, Gut No. 217 to the extent of 54 Are and land Gut No. 218 to the extent of 66 Are situated at village Nandurki (Bk) Ta. Rahata, District Ahmednagar by issuing appropriate writ of appropriate writ, order or direction in the nature of writ or as the case may be. (C) to direct respondent No. 1 to 4 to initiate acquisition proceedings and complete the same by passing award and grant compensation in respect of land Gut No. 8 to the extent of 86 Are, Gut No. 217 to the extent of 54 Are and land Gut No. 218 to the extent of 66 Are situated at village Nandurki (Bk) Ta. Rahata, District Ahmednagar by issuing appropriate writ of appropriate writ, order or direction in the nature of writ or as the case may be. 2.1 It was the case on behalf of the private respondents herein – original writ petitioners before the High Court that the then Shirdi Gram Panchayat took possession of the land of the original writ petitioners for construction of a water storage tank so as to supply water to the residents of the said area. However, original respondent No. 5 laid down the pipeline and then handed over the entire completed project to the Gram Panchayat, the same was done without acquiring the land under the provisions of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) and/or without paying any compensation under the Act. 2.2. That thereafter, the original writ petitioners filed the writ petition for the aforesaid reliefs in the year 2018. At this stage it is required to be noted that the possession of the land in question was taken over and a tank was constructed and the pipeline was laid down as far back as in the year 1983 and the writ petition for the aforesaid reliefs came to be filed in the year 2018, i.e., after a period of 35 years. 2.3 By the impugned judgment and order and after following the decision of this Court in the case of Vidaya Devi v. State of Himachal Pradesh, reported in (2020) 2 SCC 569, the High Court has allowed the said writ petition and has directed the appellant herein to prepare the proposal for acquisition. 3. An Additional Affidavit on behalf of the appellant herein – original respondent No.4 has been filed before this Court , by which it is now the case on behalf of Municipal Council (subsequently the Gram Panchayat has been converted into Municipal Council) that the possession of the land in question was taken for the purpose of construction of a tank by private negotiations and the agreed amount of compensation was paid, for which the extract of the cash book dated 12.11.1981 and the cash book for the month of May, 1983 and other documents are produced to show that approximately Rs. 1,21,000/- was paid to the original writ petitioners – respondent Nos. 1 & 2 herein and they received the amount of compensation. 4. Shri Neeraj Kishan Kaul, learned Senior Advocate appearing on behalf of the original writ petitioners has vehemently submitted that the documents which are now placed on record before this Court by way of an additional affidavit were not before the High Court and therefore the High Court had no opportunity to consider the same. Shri Kaul has submitted that the original writ petitioners are disputing having received any amount of compensation and that the land in question was acquired under the private negotiations. It is submitted that except the production of cash book, no other documentary evidence has been produced to show that the said amount of compensation was received by the original writ petitioners and/or any proceedings under the Act were initiated and/or any award/consent award was declared. It is therefore submitted that the original writ petitioners – private respondents herein had no opportunity to rebut the case now sought to be made out that the land in question was acquired under the private negotiations and that the original writ petitioners were paid the amount of compensation and/or the same was received by them. 5. Having heard Shri Sanjay Kharde, learned counsel for the appellant, Shri Neeraj Kishan Kaul, learned Senior Advocate appearing on behalf of the original writ petitioners and Shri Sachin Patil, learned counsel for the State and considering the additional affidavit filed on behalf of the appellant and as it is the specific case on behalf of the appellant – Nagar Panchayat that the possession of the land in question was taken over and the land in question was acquired by private negotiations and the amount of compensation was already paid and for which some documents are produced on record, we are of the opinion that one opportunity ought to be given to the appellant herein – original respondent No. 4. This is in order to submit the case before the High Court as now sought to be made out and/or canvassed which is that the land in question was acquired by private negotiations and possession was taken over by private negotiations and further that the amount of compensation was paid as far back as in the year 1981/1983. As the documents which are now produced on record by way of additional affidavit and now the stand taken on behalf of the appellant in the additional affidavit goes into the root of the matter, we deem it appropriate and proper to remand the matter to the High Court to consider the writ petition afresh and after giving an opportunity to the original respondent No.4 – appellant herein to file additional counter affidavit along with supporting documents and thereafter to give the opportunity to the original writ petitioners to rebut the same.
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1[ds]5. Having heard Shri Sanjay Kharde, learned counsel for the appellant, Shri Neeraj Kishan Kaul, learned Senior Advocate appearing on behalf of the original writ petitioners and Shri Sachin Patil, learned counsel for the State and considering the additional affidavit filed on behalf of the appellant and as it is the specific case on behalf of the appellant – Nagar Panchayat that the possession of the land in question was taken over and the land in question was acquired by private negotiations and the amount of compensation was already paid and for which some documents are produced on record, we are of the opinion that one opportunity ought to be given to the appellant herein – original respondent No. 4. This is in order to submit the case before the High Court as now sought to be made out and/or canvassed which is that the land in question was acquired by private negotiations and possession was taken over by private negotiations and further that the amount of compensation was paid as far back as in the year 1981/1983. As the documents which are now produced on record by way of additional affidavit and now the stand taken on behalf of the appellant in the additional affidavit goes into the root of the matter, we deem it appropriate and proper to remand the matter to the High Court to consider the writ petition afresh and after giving an opportunity to the original respondent No.4 – appellant herein to file additional counter affidavit along with supporting documents and thereafter to give the opportunity to the original writ petitioners to rebut the same.
| 1 | 1,180 | 285 |
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that the private respondents herein filed a writ petition before the High Court and prayed for the following reliefs: (B) to direct respondents No. 1 to 4 to initiate acquisition proceedings in respect of land Gut No. 8 to the extent of 86 Are, Gut No. 217 to the extent of 54 Are and land Gut No. 218 to the extent of 66 Are situated at village Nandurki (Bk) Ta. Rahata, District Ahmednagar by issuing appropriate writ of appropriate writ, order or direction in the nature of writ or as the case may be. (C) to direct respondent No. 1 to 4 to initiate acquisition proceedings and complete the same by passing award and grant compensation in respect of land Gut No. 8 to the extent of 86 Are, Gut No. 217 to the extent of 54 Are and land Gut No. 218 to the extent of 66 Are situated at village Nandurki (Bk) Ta. Rahata, District Ahmednagar by issuing appropriate writ of appropriate writ, order or direction in the nature of writ or as the case may be. 2.1 It was the case on behalf of the private respondents herein – original writ petitioners before the High Court that the then Shirdi Gram Panchayat took possession of the land of the original writ petitioners for construction of a water storage tank so as to supply water to the residents of the said area. However, original respondent No. 5 laid down the pipeline and then handed over the entire completed project to the Gram Panchayat, the same was done without acquiring the land under the provisions of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) and/or without paying any compensation under the Act. 2.2. That thereafter, the original writ petitioners filed the writ petition for the aforesaid reliefs in the year 2018. At this stage it is required to be noted that the possession of the land in question was taken over and a tank was constructed and the pipeline was laid down as far back as in the year 1983 and the writ petition for the aforesaid reliefs came to be filed in the year 2018, i.e., after a period of 35 years. 2.3 By the impugned judgment and order and after following the decision of this Court in the case of Vidaya Devi v. State of Himachal Pradesh, reported in (2020) 2 SCC 569, the High Court has allowed the said writ petition and has directed the appellant herein to prepare the proposal for acquisition. 3. An Additional Affidavit on behalf of the appellant herein – original respondent No.4 has been filed before this Court , by which it is now the case on behalf of Municipal Council (subsequently the Gram Panchayat has been converted into Municipal Council) that the possession of the land in question was taken for the purpose of construction of a tank by private negotiations and the agreed amount of compensation was paid, for which the extract of the cash book dated 12.11.1981 and the cash book for the month of May, 1983 and other documents are produced to show that approximately Rs. 1,21,000/- was paid to the original writ petitioners – respondent Nos. 1 & 2 herein and they received the amount of compensation. 4. Shri Neeraj Kishan Kaul, learned Senior Advocate appearing on behalf of the original writ petitioners has vehemently submitted that the documents which are now placed on record before this Court by way of an additional affidavit were not before the High Court and therefore the High Court had no opportunity to consider the same. Shri Kaul has submitted that the original writ petitioners are disputing having received any amount of compensation and that the land in question was acquired under the private negotiations. It is submitted that except the production of cash book, no other documentary evidence has been produced to show that the said amount of compensation was received by the original writ petitioners and/or any proceedings under the Act were initiated and/or any award/consent award was declared. It is therefore submitted that the original writ petitioners – private respondents herein had no opportunity to rebut the case now sought to be made out that the land in question was acquired under the private negotiations and that the original writ petitioners were paid the amount of compensation and/or the same was received by them. 5. Having heard Shri Sanjay Kharde, learned counsel for the appellant, Shri Neeraj Kishan Kaul, learned Senior Advocate appearing on behalf of the original writ petitioners and Shri Sachin Patil, learned counsel for the State and considering the additional affidavit filed on behalf of the appellant and as it is the specific case on behalf of the appellant – Nagar Panchayat that the possession of the land in question was taken over and the land in question was acquired by private negotiations and the amount of compensation was already paid and for which some documents are produced on record, we are of the opinion that one opportunity ought to be given to the appellant herein – original respondent No. 4. This is in order to submit the case before the High Court as now sought to be made out and/or canvassed which is that the land in question was acquired by private negotiations and possession was taken over by private negotiations and further that the amount of compensation was paid as far back as in the year 1981/1983. As the documents which are now produced on record by way of additional affidavit and now the stand taken on behalf of the appellant in the additional affidavit goes into the root of the matter, we deem it appropriate and proper to remand the matter to the High Court to consider the writ petition afresh and after giving an opportunity to the original respondent No.4 – appellant herein to file additional counter affidavit along with supporting documents and thereafter to give the opportunity to the original writ petitioners to rebut the same.
### Response:
1
### Explanation:
5. Having heard Shri Sanjay Kharde, learned counsel for the appellant, Shri Neeraj Kishan Kaul, learned Senior Advocate appearing on behalf of the original writ petitioners and Shri Sachin Patil, learned counsel for the State and considering the additional affidavit filed on behalf of the appellant and as it is the specific case on behalf of the appellant – Nagar Panchayat that the possession of the land in question was taken over and the land in question was acquired by private negotiations and the amount of compensation was already paid and for which some documents are produced on record, we are of the opinion that one opportunity ought to be given to the appellant herein – original respondent No. 4. This is in order to submit the case before the High Court as now sought to be made out and/or canvassed which is that the land in question was acquired by private negotiations and possession was taken over by private negotiations and further that the amount of compensation was paid as far back as in the year 1981/1983. As the documents which are now produced on record by way of additional affidavit and now the stand taken on behalf of the appellant in the additional affidavit goes into the root of the matter, we deem it appropriate and proper to remand the matter to the High Court to consider the writ petition afresh and after giving an opportunity to the original respondent No.4 – appellant herein to file additional counter affidavit along with supporting documents and thereafter to give the opportunity to the original writ petitioners to rebut the same.
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Bhopal Sugar Industries Limited Vs. State of Madhya Pradesh and Others
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in the area, one of the objects of which is to sell cane grown by its members to the appellants factory, that the said Society does not render any services to the appellants factory under the Act or otherwise and hence is not entitled t o recover any fee from the appellant-company. It is pointed out that respondent No. 3 is meant for helping its members and in fact renders various types of services to its cultivator-members so that they are not exploited. In fact in the matt er of supplies of cane made through the respondent No. 3 it is the Society which deals with its members who receive their price from the Society. Counsel pointed out that even in the return filed by respondent No. 3 to the writ petition, respon dent No. 3 enumerated four types of services which it claimed was rendering to the appellants factory, namely, (a) it made arrangements for lump-sum cane supply on lump- sum demand from the factory; apart from convenience this resulted in econo my to the factory as it had to maintain less staff; (b) it undertook equitable distribution of quota and the factory had not to undertake this function; (c) it undertook the maintenance of the records of individual growers for cane supplies a nd the factory had not to undertake this function and (d) it made payment to the suppliers though the factory is required to make payments for supplies effected immediately and in actual practice mostly the factory made payments late at i ts convenience but the Society made payments to the suppliers regularly according to the programme drawn by it; the appellants factory thus benefited by the existence of this Society. But according to Counsel for the appellant company none of these items referred to above really amounts to rendering any service to the appellants factory by way of conferring on it some special benefit having a direct, close or reasonable correlation to its transactions of purchase of cane and, if at al l, all these items referred to in the Return are really for the benefit of cultivator-members of the Society and in this behalf, Counsel relied upon a decision of this Court in Kewal Krishan Puris case where in the context of enhanced market fee levie d under Punjab Agricultural Produce Market Act, 1961 this Court has observed that the quid pro quo by way of rendering services must result in the conferral of some special benefits to the persons charged which have a direct, close and reasona ble correlation between such persons and their transactions and that any indirect or remote benefit to them would in no sense be such benefit. Counsel for the appellant-company, therefore, urged that since in everything that is being done b y it respondent No. 3 is rendering services to its own members and no services resulting in any special benefit to the appellants factory are rendered, no charge by way of any fee would be legally recoverable by respondent No. 3 from the appe llants factory.7. In our view having regard to the scheme of the Act and the activities which respondent No. 3 has been undertaking in the discharge of its normal functions it will be difficult to accept the contention urged by Counsel for the appellants factory that no services of any kind whatsoever resulting in conferral of special benefits on the appellants factory in regard to its transactions of purchases of cane are rendered by respondent No. 3 to the appellants factory. The scheme of the Act is that under sections 15 and 16 a declaration of reserved and assigned areas for purchase and supply of sugarcane is made by the Cane Commissioner for every factory after consulting in the manner prescrib ed the occupier of the factory and the Cane- growers Co-operative Society, if any, in that area and upon declaration of such areas an obligation is cast upon the occupier of the factory, in the case of "reserved area", to purchase all cane grown i n such area which is offered for sale and in respect of "assigned area" to purchase such quantity of cane grown therein and offered for sale for the factory as may be determined by the Cane Commissioner. Further, under s. 19 the State Gover nment can by order regulate the distribution, sale and purchase of cane within any "reserved and assigned area" as also from areas other than "reserved and assigned areas" and under cl. (b) of sub- sec. (2) such order made by the State Government ma y provide for the manner in which cane grown in the "reserved area" or the "assigned area" shall be purchased by the factory and the cane grown by a cane-grower shall not be purchased except through a Cane-growers Co-operative Society. In ot her words the scheme of Act contemplates situations where the appellants factory may have to purchase cane from within reserved or assigned areas only through the respondent No. 3 Society. Moreover in its Return the respondent No. 3 has averred that under its bye-laws the Society is established to develop scientific methods of sugar cane growing and calls on its members to introduce modern means of implements for cultivating sugarcane which unquestionably makes for assured bulk supply of uniformly good quality cane through its members to the appellants factory. In other words this function undertaken by respondent No. 3 is of a nature or kind similar to that undertaken by the council and theref ore it cannot be said that no services conferring special benefit on the appellants factory in the matter of its purchases of cane are rendered by respondent No; 3 to the appellants factory. Having regard to the aforesaid position it is not possible to accept the contention that in respect of purchases of cane made through the respondent No. 3 Society there is no element of quid pro quo in the shape of rendering services by respondent No. 3 to the appellants factory.8.
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0[ds]It is thus clear from the aforesaid statutory provisions that every factory is under an obligation to pay commission on all its purchases of cane at the prescribed rates and it has to pay such commission at t he rate of 2 Naya Paise per maund to the Society and 3 Naya Paise to the Council in respect of purchases made through a Cane-growers Co-operative Society and at the rate of 3 Naya Paise per maund to the Council where the purchases are made directly from the cultivators or cane-growers. It cannot be and was not disputed by Counsel on behalf of the respondents that the levy under s. 21 of the Act though called "commission" is really in the nature of a fee, the imposition of which is supportable only on the basis of quid pro quo in the shape of rendition of services to the factory in the matter of cane purchased by it and Counsel accepted this position as emerging from this Courts decision in Jaora Sugar Millsfor the appellant-company contended that respondent No. 2 Council has been established for the "reserved area" of the appellants factory so declared under s. 15 of the Act, that respondent No. 2 Council is required to discharge its statutory functions and duties under s. 6 of the Act confined to the "reserved area" meant for the appellants factory and as such the demand for commission (fee) in respect of purchases of cane ma de by the appellant-factory from non-reserved areas (which it is entitled to make along with its purchases from the "reserved area") would be illegal and without any authority of law because in respect of such purchases there is no quid pro quo in the shape of rendering of services by respondent No. 2 to the appellant- factory.It is not possible to accept this contention for more than one reason. In the first place there are no qualifying words to be found in s. 21 of the Act which li mit the imposition of commission (fee) to purchases of cane made by a factory from reserved area only; the imposition is on every maund of cane purchased by factory irrespective of the area from where such purchases may have been made. Secondly, and this is important, if the relevant provisions of ss. 5 and 6 of the Act are carefully examined it will appear that the functions and duties of the Development Council are not confined to the "reserved area" of a factory as urged by the Counsel for theregards the demand and recovery of commission (fee) by respondent No. 3 under s. 21(1)(a) in respect of purchases of sugarcane made by the appellants factory through it, the contention of Counsel for the appellant- company has been that respondent No. 3 is the concerned Cane-growers Co-operative Society in the area, one of the objects of which is to sell cane grown by its members to the appellants factory, that the said Society does not render any services to the appellants factory under the Act or otherwise and hence is not entitled t o recover any fee from the appellant-company. It is pointed out that respondent No. 3 is meant for helping its members and in fact renders various types of services to its cultivator-members so that they are not exploited. In fact in the matt er of supplies of cane made through the respondent No. 3 it is the Society which deals with its members who receive their price from the Society. Counsel pointed out that even in the return filed by respondent No. 3 to the writ petition, respon dent No. 3 enumerated four types of services which it claimed was rendering to the appellants factory, namely, (a) it made arrangements for lump-sum cane supply on lump- sum demand from the factory; apart from convenience this resulted in econo my to the factory as it had to maintain less staff; (b) it undertook equitable distribution of quota and the factory had not to undertake this function; (c) it undertook the maintenance of the records of individual growers for cane supplies a nd the factory had not to undertake this function and (d) it made payment to the suppliers though the factory is required to make payments for supplies effected immediately and in actual practice mostly the factory made payments late at i ts convenience but the Society made payments to the suppliers regularly according to the programme drawn by it; the appellants factory thus benefited by the existence of thisscheme of the Act is that under sections 15 and 16 a declaration of reserved and assigned areas for purchase and supply of sugarcane is made by the Cane Commissioner for every factory after consulting in the manner prescrib ed the occupier of the factory and the Cane- growers Co-operative Society, if any, in that area and upon declaration of such areas an obligation is cast upon the occupier of the factory, in the case of "reserved area", to purchase all cane grown i n such area which is offered for sale and in respect of "assigned area" to purchase such quantity of cane grown therein and offered for sale for the factory as may be determined by the Cane Commissioner. Further, under s. 19 the State Gover nment can by order regulate the distribution, sale and purchase of cane within any "reserved and assigned area" as also from areas other than "reserved and assigned areas" and under cl. (b) of sub- sec. (2) such order made by the State Government ma y provide for the manner in which cane grown in the "reserved area" or the "assigned area" shall be purchased by the factory and the cane grown by a cane-grower shall not be purchased except through a Cane-growers Co-operative Society. In ot her words the scheme of Act contemplates situations where the appellants factory may have to purchase cane from within reserved or assigned areas only through the respondent No. 3 Society. Moreover in its Return the respondent No. 3 has averred that under its bye-laws the Society is established to develop scientific methods of sugar cane growing and calls on its members to introduce modern means of implements for cultivating sugarcane which unquestionably makes for assured bulk supply of uniformly good quality cane through its members to the appellants factory. In other words this function undertaken by respondent No. 3 is of a nature or kind similar to that undertaken by the council and theref ore it cannot be said that no services conferring special benefit on the appellants factory in the matter of its purchases of cane are rendered by respondent No; 3 to the appellants factory. Having regard to the aforesaid position it is not possible to accept the contention that in respect of purchases of cane made through the respondent No. 3 Society there is no element of quid pro quo in the shape of rendering services by respondent No. 3 to the appellants factory.
| 0 | 3,091 | 1,268 |
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in the area, one of the objects of which is to sell cane grown by its members to the appellants factory, that the said Society does not render any services to the appellants factory under the Act or otherwise and hence is not entitled t o recover any fee from the appellant-company. It is pointed out that respondent No. 3 is meant for helping its members and in fact renders various types of services to its cultivator-members so that they are not exploited. In fact in the matt er of supplies of cane made through the respondent No. 3 it is the Society which deals with its members who receive their price from the Society. Counsel pointed out that even in the return filed by respondent No. 3 to the writ petition, respon dent No. 3 enumerated four types of services which it claimed was rendering to the appellants factory, namely, (a) it made arrangements for lump-sum cane supply on lump- sum demand from the factory; apart from convenience this resulted in econo my to the factory as it had to maintain less staff; (b) it undertook equitable distribution of quota and the factory had not to undertake this function; (c) it undertook the maintenance of the records of individual growers for cane supplies a nd the factory had not to undertake this function and (d) it made payment to the suppliers though the factory is required to make payments for supplies effected immediately and in actual practice mostly the factory made payments late at i ts convenience but the Society made payments to the suppliers regularly according to the programme drawn by it; the appellants factory thus benefited by the existence of this Society. But according to Counsel for the appellant company none of these items referred to above really amounts to rendering any service to the appellants factory by way of conferring on it some special benefit having a direct, close or reasonable correlation to its transactions of purchase of cane and, if at al l, all these items referred to in the Return are really for the benefit of cultivator-members of the Society and in this behalf, Counsel relied upon a decision of this Court in Kewal Krishan Puris case where in the context of enhanced market fee levie d under Punjab Agricultural Produce Market Act, 1961 this Court has observed that the quid pro quo by way of rendering services must result in the conferral of some special benefits to the persons charged which have a direct, close and reasona ble correlation between such persons and their transactions and that any indirect or remote benefit to them would in no sense be such benefit. Counsel for the appellant-company, therefore, urged that since in everything that is being done b y it respondent No. 3 is rendering services to its own members and no services resulting in any special benefit to the appellants factory are rendered, no charge by way of any fee would be legally recoverable by respondent No. 3 from the appe llants factory.7. In our view having regard to the scheme of the Act and the activities which respondent No. 3 has been undertaking in the discharge of its normal functions it will be difficult to accept the contention urged by Counsel for the appellants factory that no services of any kind whatsoever resulting in conferral of special benefits on the appellants factory in regard to its transactions of purchases of cane are rendered by respondent No. 3 to the appellants factory. The scheme of the Act is that under sections 15 and 16 a declaration of reserved and assigned areas for purchase and supply of sugarcane is made by the Cane Commissioner for every factory after consulting in the manner prescrib ed the occupier of the factory and the Cane- growers Co-operative Society, if any, in that area and upon declaration of such areas an obligation is cast upon the occupier of the factory, in the case of "reserved area", to purchase all cane grown i n such area which is offered for sale and in respect of "assigned area" to purchase such quantity of cane grown therein and offered for sale for the factory as may be determined by the Cane Commissioner. Further, under s. 19 the State Gover nment can by order regulate the distribution, sale and purchase of cane within any "reserved and assigned area" as also from areas other than "reserved and assigned areas" and under cl. (b) of sub- sec. (2) such order made by the State Government ma y provide for the manner in which cane grown in the "reserved area" or the "assigned area" shall be purchased by the factory and the cane grown by a cane-grower shall not be purchased except through a Cane-growers Co-operative Society. In ot her words the scheme of Act contemplates situations where the appellants factory may have to purchase cane from within reserved or assigned areas only through the respondent No. 3 Society. Moreover in its Return the respondent No. 3 has averred that under its bye-laws the Society is established to develop scientific methods of sugar cane growing and calls on its members to introduce modern means of implements for cultivating sugarcane which unquestionably makes for assured bulk supply of uniformly good quality cane through its members to the appellants factory. In other words this function undertaken by respondent No. 3 is of a nature or kind similar to that undertaken by the council and theref ore it cannot be said that no services conferring special benefit on the appellants factory in the matter of its purchases of cane are rendered by respondent No; 3 to the appellants factory. Having regard to the aforesaid position it is not possible to accept the contention that in respect of purchases of cane made through the respondent No. 3 Society there is no element of quid pro quo in the shape of rendering services by respondent No. 3 to the appellants factory.8.
### Response:
0
### Explanation:
from this Courts decision in Jaora Sugar Millsfor the appellant-company contended that respondent No. 2 Council has been established for the "reserved area" of the appellants factory so declared under s. 15 of the Act, that respondent No. 2 Council is required to discharge its statutory functions and duties under s. 6 of the Act confined to the "reserved area" meant for the appellants factory and as such the demand for commission (fee) in respect of purchases of cane ma de by the appellant-factory from non-reserved areas (which it is entitled to make along with its purchases from the "reserved area") would be illegal and without any authority of law because in respect of such purchases there is no quid pro quo in the shape of rendering of services by respondent No. 2 to the appellant- factory.It is not possible to accept this contention for more than one reason. In the first place there are no qualifying words to be found in s. 21 of the Act which li mit the imposition of commission (fee) to purchases of cane made by a factory from reserved area only; the imposition is on every maund of cane purchased by factory irrespective of the area from where such purchases may have been made. Secondly, and this is important, if the relevant provisions of ss. 5 and 6 of the Act are carefully examined it will appear that the functions and duties of the Development Council are not confined to the "reserved area" of a factory as urged by the Counsel for theregards the demand and recovery of commission (fee) by respondent No. 3 under s. 21(1)(a) in respect of purchases of sugarcane made by the appellants factory through it, the contention of Counsel for the appellant- company has been that respondent No. 3 is the concerned Cane-growers Co-operative Society in the area, one of the objects of which is to sell cane grown by its members to the appellants factory, that the said Society does not render any services to the appellants factory under the Act or otherwise and hence is not entitled t o recover any fee from the appellant-company. It is pointed out that respondent No. 3 is meant for helping its members and in fact renders various types of services to its cultivator-members so that they are not exploited. In fact in the matt er of supplies of cane made through the respondent No. 3 it is the Society which deals with its members who receive their price from the Society. Counsel pointed out that even in the return filed by respondent No. 3 to the writ petition, respon dent No. 3 enumerated four types of services which it claimed was rendering to the appellants factory, namely, (a) it made arrangements for lump-sum cane supply on lump- sum demand from the factory; apart from convenience this resulted in econo my to the factory as it had to maintain less staff; (b) it undertook equitable distribution of quota and the factory had not to undertake this function; (c) it undertook the maintenance of the records of individual growers for cane supplies a nd the factory had not to undertake this function and (d) it made payment to the suppliers though the factory is required to make payments for supplies effected immediately and in actual practice mostly the factory made payments late at i ts convenience but the Society made payments to the suppliers regularly according to the programme drawn by it; the appellants factory thus benefited by the existence of thisscheme of the Act is that under sections 15 and 16 a declaration of reserved and assigned areas for purchase and supply of sugarcane is made by the Cane Commissioner for every factory after consulting in the manner prescrib ed the occupier of the factory and the Cane- growers Co-operative Society, if any, in that area and upon declaration of such areas an obligation is cast upon the occupier of the factory, in the case of "reserved area", to purchase all cane grown i n such area which is offered for sale and in respect of "assigned area" to purchase such quantity of cane grown therein and offered for sale for the factory as may be determined by the Cane Commissioner. Further, under s. 19 the State Gover nment can by order regulate the distribution, sale and purchase of cane within any "reserved and assigned area" as also from areas other than "reserved and assigned areas" and under cl. (b) of sub- sec. (2) such order made by the State Government ma y provide for the manner in which cane grown in the "reserved area" or the "assigned area" shall be purchased by the factory and the cane grown by a cane-grower shall not be purchased except through a Cane-growers Co-operative Society. In ot her words the scheme of Act contemplates situations where the appellants factory may have to purchase cane from within reserved or assigned areas only through the respondent No. 3 Society. Moreover in its Return the respondent No. 3 has averred that under its bye-laws the Society is established to develop scientific methods of sugar cane growing and calls on its members to introduce modern means of implements for cultivating sugarcane which unquestionably makes for assured bulk supply of uniformly good quality cane through its members to the appellants factory. In other words this function undertaken by respondent No. 3 is of a nature or kind similar to that undertaken by the council and theref ore it cannot be said that no services conferring special benefit on the appellants factory in the matter of its purchases of cane are rendered by respondent No; 3 to the appellants factory. Having regard to the aforesaid position it is not possible to accept the contention that in respect of purchases of cane made through the respondent No. 3 Society there is no element of quid pro quo in the shape of rendering services by respondent No. 3 to the appellants factory.
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J.K. Synthetics Limited Vs. Commercial Taxes Officer
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machinery provisions which are construed like any other statute. The machinery provisions must, no doubt, be so construed as would effectuate the object and purpose of the statute and not defeat the same. [See Whitney vs. IRC 1926 AC 37, CIT vs. Mahaliram Ramjidas Indian United Mills Ltd. vs. CEPT and Gursahai Saigal vs. CIT 1963 (3) SCR 893 ]. But it must also be realised that provision by which the authority is empowered to levy and collect interest, even if construed as forming part of the machinery provisions, is substantive law for the simple reason that in the absence of contract or usage interest can be levied under law and it cannot be recovered by way of damages for wrongful detention of the amount. [See Bengal Nagpur Railway Co. Ltd. vs. Ruttanji Ramji and Union of India vs. A.L. Rallia Ram Our attention was, however, drawn by Mr. Sen to two cases. Even in those cases, CIT vs. M. Chandra Sekhar and Central Provinces Manganese Ore Co. Ltd. vs. CIT, all that the Court pointed out was that provision for charging interest was, it seems, introduced in order to compensate for the loss occasioned to the Revenue due to delay. But then interest was charged on the strength of a statutory provision, may be its objective was to compensate the Revenue for delay in payment of tax. But regardless of the reason which impelled the legislature to provide for charging interest, the Court must give that meaning to it as is conveyed by the language used and the purpose to be achieved. Therefore, any provision made in a statute for charging or levying interest on delayed payment of tax must be construed as a substantive law and not adjectival law. So construed and applying the normal rule of interpretation of statutes, we find, as pointed out by us earlier and by Bhagwati, J. in the Associated Cement Cos case, that if the Revenues contention is accepted it leads to conflicts and creates certain anomalies which could never have been intended by the legislature.8. Let us look at the question from a slightly different angle. Sec. 7(1) enjoins on every dealer that he shall furnish prescribed returns for the prescribed period within the prescribed time to the assessing authority. By the proviso the time can be extended by not more than fifteen days. The requirement of s. 7(1) is undoubtedly a statutory requirement. The prescribed return must be accompanied by a receipt evidencing the deposit of full amount of tax due in the State Government on the basis of the return. That is the requirement of s. 7(2). Sec. 7(2A), no doubt, permits payment of tax at shorter intervals but the ultimate requirement is deposit of the full amount of tax due shown in the return. When s. 11B(a) uses the expression tax payable under sub-ss. (2) and (2A) of s. 7, that must be understood in the context of the aforesaid expressions employed in the two sub-sections. Therefore, the expression tax payable under the said two sub-sections is the full amount of tax due and tax due is that amount which becomes due ex hypothesi on the turnover and taxable turnover shown in or based on the return. The word payable is a descriptive word, which ordinarily means that which must be paid or is due, or may be paid but its correct meaning can only be determined if the context in which it is used is kept in view. The word has been frequently understood to mean that which may, can or should be paid and is held equivalent to due. Therefore, the conjoint reading of ss. 7(1), (2) and (2A) and 11B of the Act leaves no room for doubt that the expression tax payable in s. 11B can only mean the full amount of tax which becomes due under sub-ss. (2) and (2A) of the Act when assessed on the basis of the information regarding turnover and taxable turnover furnished or shown in the return. Therefore, so long as the assessee pays the tax which according to him is due on the basis of information supplied in the return filed by him, there would be no default on his part to meet his statutory obligation under s. 7 of the Act and, therefore, it would be difficult to hold that the tax payable by him is not paid to visit him with the liability to pay interest under cl. (a) of s. 11B. It would be a different matter if the return is not approved by the authority but that is not the case here. It is difficult on the plain language of the section to hold that the law envisages the assessee to predicate the final assessment and expect him to pay the tax on that basis to avoid the liability to pay interest. That would be asking him to do the near impossible. 9. The learned counsel for the Revenue placed strong reliance on the decision of this Court in Kesoram Industries & Cotton Mills Ltd. vs. CWT. Reference was to the discussion on the third question, namely, whether the assessee owed a debt on the valuation day within the meaning of s. 2(m) to be deductible in computing the net wealth of the assessee. In that case the assessee had in the accounts for the year ending 31st March, 1957, shown a certain amount as provision for payment of income-tax and super tax. The majority answered the question in the affirmative whereas the third learned Judge disagreed. In the view we are taking on the relevant provisions of the Act it is unnecessary for us to examine the merit or demerit of the rival views.10. In the result we are of the view that the majority opinion expressed by Venkataramiah, J. in the Associated Cement Cos case (supra) does not, with respect, state the law correctly and in our view the legal position was correctly stated by Bhagwati, J. in his minority judgment.
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1[ds]Therefore, on a conjoint reading of ss. 7(1), (2) and (2A), r. 25, the information to be furnished under Form ST 5 and the form of verification, it becomes clear that the dealer must deposit the full amount of tax due on the basis of information furnished, which information must be correct and complete to the best of the dealers knowledge and belief without he being guilty of wilful omission. If the dealer has furnished full particulars in respect of his business, without wilfully omitting or withholding any particular information which has a bearing on the assessment of tax, which he honestly believes to be correct and complete, it would be difficult to hold that the dealer had not acted bona fide in depositing the tax due on that information before the submission of the return. Ofcourse the tax so deposited is to be deemed to be provisional and subject to necessary adjustments in pursuance of the final assessment. Sec. 7AA empowers levy of penalty if the assessing authority is satisfied that any dealer has without reasonable cause failed to furnish the return under s. 7(1) within the time allowed. The use of the words without reasonable cause clearly implies that if the dealer can show reasonable cause for his lapse he cannot be visited with the penalty prescribed by s. 7AA. To put it differently if reasonable cause is shown by the dealer for the lapse, he cannot be visited with penalty under this provision. This is also suggestive of the fact that the legislature desired to be harsh with wilful defaulters or those guilty of wilful omission of material information and not with dealers who failed to supply some information under the bona fide belief that the same was not necessary or those who had failed to pay the full tax due not with a view to evading or avoiding the liability to pay the tax but because they bona fide believed that they were liable to pay the tax assessed by them on the basis of the return and no more. If at a later date on the basis of a different interpretation put on the language of the relevant provisions of the law, the dealer becomes liable to pay tax in excess of that already paid, he may be called upon to make good the difference but he cannot be visited with penalty under s. 7AA unless it is shown that the dealer had withheld payment of the differential tax by wilfully withholding material information or had acted without reasonable cause in committing thethe amount of tax payable under(2) is paid on the basis of return, not on the basis of final assessment, there can be no question of payment of interest under cl. (a) of s. 11B. Similarly, if the tax is paid according to the return as required by(2A), in other words, if the full amount of tax due shown in the return is paid, there can be no question of charging interest under cl. (a) of s. 11B. So far as cl. (b) is concerned it is asituation. Where tax is found due on final assessment and the dealer is required to make good the difference, a notice of demand will issue. If the dealer fails to pay the tax within the time specified in the notice and if no time is specified within 30 days from the receipt of notice, he is required to pay interest at the rates prescribed by theBut if he pays the difference of tax within the prescribed time, there is no question of charging interest. If such an interpretation is not placed and if the Revenues plea is accepted serious anomalies wouldif the liability to pay interest on the balance tax amount accrues from the date of submission of returns under s. 7, cl. (b) of s. 11B r/w s. 11(2) would be rendered nugatory. Otherwise one would be required to hold that interest would be payable from the date of submission of the return till the date of issuance of notice of demand and thereafter no interest would have to be paid till the expiry of the specified period or thirty days, as the case may be, and thereafter interest would have to be paid at a given rate for the first three months and thereafter at a higher rate. Such could not be the legislative intent. Secondly, take the case of a dealer who has failed to submit a return and is subjected to assessment of tax on the basis of best judgment. Pursuant to the said assessment he deposits the tax. Such a dealer would not be liable to pay interest on the balance tax if the tax assessed under s. 10 is higher than what was provisionally assessed. He can always claim that he cannot be made liable to pay interest for the error of the authority in making the provisional assessment under s. 7A. The defaulter would be in a better position than a dealer who complies with the requirement of s. 7(1). And if he can show reasonable cause, he would also escape the penalty clause in ss. 7AA and 16(1). More or less a similar situation may arise in the matter of payment of interest where provisional assessment is made under s. 7B. Of course such a dealer may become liable to penalty but that is a different matter altogether. Take also the case of a dealer who submits a return without depositing the tax on the basis thereof. Under s. 25(4) the authority may or may not take cognizance of the return. If cognizance is not taken the dealer would be treated on par with one who has not submitted a return but if cognizance is taken he must be treated as one who is liable to pay interest under cl. (a) of s. 11B of the Act. Therefore, the view canvassed by the Revenue leads to incongruous situation which can never be the legislative intent. This is how the situation emerges on a plain reading of the provisions of the Act as they stood before Act 4 of 1979 came into force. After the substitution of s. 11B by Act 4 of 1979 the situation has changed altogether. What we have said earlier has nothing to do with s. 11B as introduced by Act 4 of 1979. We may now examine the case law on which reliance was placed.It is well known that when a statute levies a tax it does so by inserting a charging section by which a liability is created or fixed and then proceeds to provide the machinery to make the liability effective. It, therefore, provides the machinery for the assessment of the liability already fixed by the charging section, and then provides the mode for the recovery and collection of tax, including penal provisions meant to deal with defaulters. Provision is also made for charging interest on delayed payments, etc. Ordinarily the charging section which fixes the liability is strictly construed but that rule of strict construction is not extended to the machinery provisions which are construed like any other statute. The machinery provisions must, no doubt, be so construed as would effectuate the object and purpose of the statute and not defeat the same. [See Whitney vs. IRC 1926 AC 37, CIT vs. Mahaliram Ramjidas Indian United Mills Ltd. vs. CEPT and Gursahai Saigal vs. CIT 1963 (3) SCR 893 ]. But it must also be realised that provision by which the authority is empowered to levy and collect interest, even if construed as forming part of the machinery provisions, is substantive law for the simple reason that in the absence of contract or usage interest can be levied under law and it cannot be recovered by way of damages for wrongful detention of the amount. [See Bengal Nagpur Railway Co. Ltd. vs. Ruttanji Ramji and Union of India vs. A.L. Rallia Ram Our attention was, however, drawn by Mr. Sen to two cases. Even in those cases, CIT vs. M. Chandra Sekhar and Central Provinces Manganese Ore Co. Ltd. vs. CIT, all that the Court pointed out was that provision for charging interest was, it seems, introduced in order to compensate for the loss occasioned to the Revenue due to delay. But then interest was charged on the strength of a statutory provision, may be its objective was to compensate the Revenue for delay in payment of tax. But regardless of the reason which impelled the legislature to provide for charging interest, the Court must give that meaning to it as is conveyed by the language used and the purpose to be achieved. Therefore, any provision made in a statute for charging or levying interest on delayed payment of tax must be construed as a substantive law and not adjectival law. So construed and applying the normal rule of interpretation of statutes, we find, as pointed out by us earlier and by Bhagwati, J. in the Associated Cement Cos case, that if the Revenues contention is accepted it leads to conflicts and creates certain anomalies which could never have been intended by the legislature.8. Let us look at the question from a slightly different angle. Sec. 7(1) enjoins on every dealer that he shall furnish prescribed returns for the prescribed period within the prescribed time to the assessing authority. By the proviso the time can be extended by not more than fifteen days. The requirement of s. 7(1) is undoubtedly a statutory requirement. The prescribed return must be accompanied by a receipt evidencing the deposit of full amount of tax due in the State Government on the basis of the return. That is the requirement of s. 7(2). Sec. 7(2A), no doubt, permits payment of tax at shorter intervals but the ultimate requirement is deposit of the full amount of tax due shown in the return. When s. 11B(a) uses the expression tax payable under(2) and (2A) of s. 7, that must be understood in the context of the aforesaid expressions employed in the twoTherefore, the expression tax payable under the said twois the full amount of tax due and tax due is that amount which becomes due ex hypothesi on the turnover and taxable turnover shown in or based on the return. The word payable is a descriptive word, which ordinarily means that which must be paid or is due, or may be paid but its correct meaning can only be determined if the context in which it is used is kept in view. The word has been frequently understood to mean that which may, can or should be paid and is held equivalent to due. Therefore, the conjoint reading of ss. 7(1), (2) and (2A) and 11B of the Act leaves no room for doubt that the expression tax payable in s. 11B can only mean the full amount of tax which becomes due under(2) and (2A) of the Act when assessed on the basis of the information regarding turnover and taxable turnover furnished or shown in the return. Therefore, so long as the assessee pays the tax which according to him is due on the basis of information supplied in the return filed by him, there would be no default on his part to meet his statutory obligation under s. 7 of the Act and, therefore, it would be difficult to hold that the tax payable by him is not paid to visit him with the liability to pay interest under cl. (a) of s. 11B. It would be a different matter if the return is not approved by the authority but that is not the case here. It is difficult on the plain language of the section to hold that the law envisages the assessee to predicate the final assessment and expect him to pay the tax on that basis to avoid the liability to pay interest. That would be asking him to do the near impossible.Let us look at the question from a slightly different angle. Sec. 7(1) enjoins on every dealer that he shall furnish prescribed returns for the prescribed period within the prescribed time to the assessing authority. By the proviso the time can be extended by not more than fifteen days. The requirement of s. 7(1) is undoubtedly a statutory requirement. The prescribed return must be accompanied by a receipt evidencing the deposit of full amount of tax due in the State Government on the basis of the return. That is the requirement of s. 7(2). Sec. 7(2A), no doubt, permits payment of tax at shorter intervals but the ultimate requirement is deposit of the full amount of tax due shown in the return. When s. 11B(a) uses the expression tax payable under(2) and (2A) of s. 7, that must be understood in the context of the aforesaid expressions employed in the twoTherefore, the expression tax payable under the said twois the full amount of tax due and tax due is that amount which becomes due ex hypothesi on the turnover and taxable turnover shown in or based on the return. The word payable is a descriptive word, which ordinarily means that which must be paid or is due, or may be paid but its correct meaning can only be determined if the context in which it is used is kept in view. The word has been frequently understood to mean that which may, can or should be paid and is held equivalent to due. Therefore, the conjoint reading of ss. 7(1), (2) and (2A) and 11B of the Act leaves no room for doubt that the expression tax payable in s. 11B can only mean the full amount of tax which becomes due under(2) and (2A) of the Act when assessed on the basis of the information regarding turnover and taxable turnover furnished or shown in the return. Therefore, so long as the assessee pays the tax which according to him is due on the basis of information supplied in the return filed by him, there would be no default on his part to meet his statutory obligation under s. 7 of the Act and, therefore, it would be difficult to hold that the tax payable by him is not paid to visit him with the liability to pay interest under cl. (a) of s. 11B. It would be a different matter if the return is not approved by the authority but that is not the case here. It is difficult on the plain language of the section to hold that the law envisages the assessee to predicate the final assessment and expect him to pay the tax on that basis to avoid the liability to pay interest. That would be asking him to do the near impossible.The learned counsel for the Revenue placed strong reliance on the decision of this Court in Kesoram Industries & Cotton Mills Ltd. vs. CWT. Reference was to the discussion on the third question, namely, whether the assessee owed a debt on the valuation day within the meaning of s. 2(m) to be deductible in computing the net wealth of the assessee.In that case the assessee had in the accounts for the year ending 31st March, 1957, shown a certain amount as provision for payment ofand super tax. The majority answered the question in the affirmative whereas the third learned Judge disagreed. In the view we are taking on the relevant provisions of the Act it is unnecessary for us to examine the merit or demerit of the rival views.10. In the result we are of the view that the majority opinion expressed by Venkataramiah, J. in the Associated Cement Cos case (supra) does not, with respect, state the law correctly and in our view the legal position was correctly stated by Bhagwati, J. in his minority judgment.
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### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
machinery provisions which are construed like any other statute. The machinery provisions must, no doubt, be so construed as would effectuate the object and purpose of the statute and not defeat the same. [See Whitney vs. IRC 1926 AC 37, CIT vs. Mahaliram Ramjidas Indian United Mills Ltd. vs. CEPT and Gursahai Saigal vs. CIT 1963 (3) SCR 893 ]. But it must also be realised that provision by which the authority is empowered to levy and collect interest, even if construed as forming part of the machinery provisions, is substantive law for the simple reason that in the absence of contract or usage interest can be levied under law and it cannot be recovered by way of damages for wrongful detention of the amount. [See Bengal Nagpur Railway Co. Ltd. vs. Ruttanji Ramji and Union of India vs. A.L. Rallia Ram Our attention was, however, drawn by Mr. Sen to two cases. Even in those cases, CIT vs. M. Chandra Sekhar and Central Provinces Manganese Ore Co. Ltd. vs. CIT, all that the Court pointed out was that provision for charging interest was, it seems, introduced in order to compensate for the loss occasioned to the Revenue due to delay. But then interest was charged on the strength of a statutory provision, may be its objective was to compensate the Revenue for delay in payment of tax. But regardless of the reason which impelled the legislature to provide for charging interest, the Court must give that meaning to it as is conveyed by the language used and the purpose to be achieved. Therefore, any provision made in a statute for charging or levying interest on delayed payment of tax must be construed as a substantive law and not adjectival law. So construed and applying the normal rule of interpretation of statutes, we find, as pointed out by us earlier and by Bhagwati, J. in the Associated Cement Cos case, that if the Revenues contention is accepted it leads to conflicts and creates certain anomalies which could never have been intended by the legislature.8. Let us look at the question from a slightly different angle. Sec. 7(1) enjoins on every dealer that he shall furnish prescribed returns for the prescribed period within the prescribed time to the assessing authority. By the proviso the time can be extended by not more than fifteen days. The requirement of s. 7(1) is undoubtedly a statutory requirement. The prescribed return must be accompanied by a receipt evidencing the deposit of full amount of tax due in the State Government on the basis of the return. That is the requirement of s. 7(2). Sec. 7(2A), no doubt, permits payment of tax at shorter intervals but the ultimate requirement is deposit of the full amount of tax due shown in the return. When s. 11B(a) uses the expression tax payable under sub-ss. (2) and (2A) of s. 7, that must be understood in the context of the aforesaid expressions employed in the two sub-sections. Therefore, the expression tax payable under the said two sub-sections is the full amount of tax due and tax due is that amount which becomes due ex hypothesi on the turnover and taxable turnover shown in or based on the return. The word payable is a descriptive word, which ordinarily means that which must be paid or is due, or may be paid but its correct meaning can only be determined if the context in which it is used is kept in view. The word has been frequently understood to mean that which may, can or should be paid and is held equivalent to due. Therefore, the conjoint reading of ss. 7(1), (2) and (2A) and 11B of the Act leaves no room for doubt that the expression tax payable in s. 11B can only mean the full amount of tax which becomes due under sub-ss. (2) and (2A) of the Act when assessed on the basis of the information regarding turnover and taxable turnover furnished or shown in the return. Therefore, so long as the assessee pays the tax which according to him is due on the basis of information supplied in the return filed by him, there would be no default on his part to meet his statutory obligation under s. 7 of the Act and, therefore, it would be difficult to hold that the tax payable by him is not paid to visit him with the liability to pay interest under cl. (a) of s. 11B. It would be a different matter if the return is not approved by the authority but that is not the case here. It is difficult on the plain language of the section to hold that the law envisages the assessee to predicate the final assessment and expect him to pay the tax on that basis to avoid the liability to pay interest. That would be asking him to do the near impossible. 9. The learned counsel for the Revenue placed strong reliance on the decision of this Court in Kesoram Industries & Cotton Mills Ltd. vs. CWT. Reference was to the discussion on the third question, namely, whether the assessee owed a debt on the valuation day within the meaning of s. 2(m) to be deductible in computing the net wealth of the assessee. In that case the assessee had in the accounts for the year ending 31st March, 1957, shown a certain amount as provision for payment of income-tax and super tax. The majority answered the question in the affirmative whereas the third learned Judge disagreed. In the view we are taking on the relevant provisions of the Act it is unnecessary for us to examine the merit or demerit of the rival views.10. In the result we are of the view that the majority opinion expressed by Venkataramiah, J. in the Associated Cement Cos case (supra) does not, with respect, state the law correctly and in our view the legal position was correctly stated by Bhagwati, J. in his minority judgment.
### Response:
1
### Explanation:
is deposit of the full amount of tax due shown in the return. When s. 11B(a) uses the expression tax payable under(2) and (2A) of s. 7, that must be understood in the context of the aforesaid expressions employed in the twoTherefore, the expression tax payable under the said twois the full amount of tax due and tax due is that amount which becomes due ex hypothesi on the turnover and taxable turnover shown in or based on the return. The word payable is a descriptive word, which ordinarily means that which must be paid or is due, or may be paid but its correct meaning can only be determined if the context in which it is used is kept in view. The word has been frequently understood to mean that which may, can or should be paid and is held equivalent to due. Therefore, the conjoint reading of ss. 7(1), (2) and (2A) and 11B of the Act leaves no room for doubt that the expression tax payable in s. 11B can only mean the full amount of tax which becomes due under(2) and (2A) of the Act when assessed on the basis of the information regarding turnover and taxable turnover furnished or shown in the return. Therefore, so long as the assessee pays the tax which according to him is due on the basis of information supplied in the return filed by him, there would be no default on his part to meet his statutory obligation under s. 7 of the Act and, therefore, it would be difficult to hold that the tax payable by him is not paid to visit him with the liability to pay interest under cl. (a) of s. 11B. It would be a different matter if the return is not approved by the authority but that is not the case here. It is difficult on the plain language of the section to hold that the law envisages the assessee to predicate the final assessment and expect him to pay the tax on that basis to avoid the liability to pay interest. That would be asking him to do the near impossible.Let us look at the question from a slightly different angle. Sec. 7(1) enjoins on every dealer that he shall furnish prescribed returns for the prescribed period within the prescribed time to the assessing authority. By the proviso the time can be extended by not more than fifteen days. The requirement of s. 7(1) is undoubtedly a statutory requirement. The prescribed return must be accompanied by a receipt evidencing the deposit of full amount of tax due in the State Government on the basis of the return. That is the requirement of s. 7(2). Sec. 7(2A), no doubt, permits payment of tax at shorter intervals but the ultimate requirement is deposit of the full amount of tax due shown in the return. When s. 11B(a) uses the expression tax payable under(2) and (2A) of s. 7, that must be understood in the context of the aforesaid expressions employed in the twoTherefore, the expression tax payable under the said twois the full amount of tax due and tax due is that amount which becomes due ex hypothesi on the turnover and taxable turnover shown in or based on the return. The word payable is a descriptive word, which ordinarily means that which must be paid or is due, or may be paid but its correct meaning can only be determined if the context in which it is used is kept in view. The word has been frequently understood to mean that which may, can or should be paid and is held equivalent to due. Therefore, the conjoint reading of ss. 7(1), (2) and (2A) and 11B of the Act leaves no room for doubt that the expression tax payable in s. 11B can only mean the full amount of tax which becomes due under(2) and (2A) of the Act when assessed on the basis of the information regarding turnover and taxable turnover furnished or shown in the return. Therefore, so long as the assessee pays the tax which according to him is due on the basis of information supplied in the return filed by him, there would be no default on his part to meet his statutory obligation under s. 7 of the Act and, therefore, it would be difficult to hold that the tax payable by him is not paid to visit him with the liability to pay interest under cl. (a) of s. 11B. It would be a different matter if the return is not approved by the authority but that is not the case here. It is difficult on the plain language of the section to hold that the law envisages the assessee to predicate the final assessment and expect him to pay the tax on that basis to avoid the liability to pay interest. That would be asking him to do the near impossible.The learned counsel for the Revenue placed strong reliance on the decision of this Court in Kesoram Industries & Cotton Mills Ltd. vs. CWT. Reference was to the discussion on the third question, namely, whether the assessee owed a debt on the valuation day within the meaning of s. 2(m) to be deductible in computing the net wealth of the assessee.In that case the assessee had in the accounts for the year ending 31st March, 1957, shown a certain amount as provision for payment ofand super tax. The majority answered the question in the affirmative whereas the third learned Judge disagreed. In the view we are taking on the relevant provisions of the Act it is unnecessary for us to examine the merit or demerit of the rival views.10. In the result we are of the view that the majority opinion expressed by Venkataramiah, J. in the Associated Cement Cos case (supra) does not, with respect, state the law correctly and in our view the legal position was correctly stated by Bhagwati, J. in his minority judgment.
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SUDARSAN PUHAN Vs. JAYANTA KUMAR MOHANTY AND ANR
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appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 at p. 188, para 15 and Madhukar v. Sangram, (2001) 4 SCC 756 at p. 758, para 5.) 5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law. 30. The aforementioned cases were relied upon by this Court while reiterating the same principle in State Bank of India and Anr. v. Emmsons International Ltd. and Anr., (2011) 12 SCC 174 and Uttar Pradesh State Road Transport Corporation v. Mamta and Ors. (2016) 4 SCC 172 . 31. An appeal Under Section 173 of the M.V. Act is essentially in the nature of first appeal alike Section 96 of the Code and, therefore, the High Court is equally under legal obligation to decide all issues arising in the case both on facts and law after appreciating the entire evidence. [See National Insurance Co. Ltd. v. Naresh Kumar and Ors. ((2000) 10 SCC 198 and State of Punjab and Anr. v. Navdeep Kuur and Ors. (2004) 13 SCC 680]. 32. As observed supra, as a first Appellate Court, it was the duty of the High Court to have decided the appeals keeping in view the requirements of Order XX Rule 4(2) read with Order XLI Rule 31 of the Code which requires that judgment/order shall contain a concise statement of the case, points for determination, decisions thereon and the reasons. 33. Coming now to the facts of the case at hand, we consider it appropriate to reproduce the order of the High Court infra: Considering the submissions made by the learned Counsel for the parties and keeping in view the quantum of compensation amount awarded and the basis on which the same has been arrived at I feel, the interest of justice would be best served if the awarded compensation amount of Rs. 24,62,065/- is modified and reduced to Rs. 20,00,000/- which is payable to the claimant along with the awarded interest. The impugned award is modified to the said extent. The Appellant-Insurance Company is directed to deposit the modified compensation amount of Rs. 20,00,000/- along with awarded interest with the learned Tribunal within six weeks hence. On deposit of the amount, the same shall be disbursed to the claimant proportionately, as per the direction of the learned Tribunal given in the impugned award. 34. Mere perusal of the afore-quoted order of the High Court would show that the High Court neither set out the facts of the case of the parties in detail, nor dealt with any of the submissions urged except to mention them, nor took note of the grounds raised by the claimant and nor made any attempt to appreciate the evidence in the light of the settled legal principles applicable to the issues arising in the case and proceeded to allow the appeal filed by the Insurance Company and reduced the compensation from Rs. 24,62,065/- to Rs. 20,00,000/-. 35. The High Court only observed Considering the submissions of the learned Counsel for the parties and I feel that compensation should have been awarded as Rs. 20,00,000/- and not Rs. 24,62,065/- . No reasons were given by the High Court as to why the amount of compensation should be reduced from Rs. 24,62,065/- to Rs. 20,00,000/- and why it cannot be enhanced. Since the Appellant-claimant had also filed appeal for enhancement of the compensation, the entire controversy was again open for decision before the High Court at the instance of the claimant and Insurance Company. It was, therefore, necessary for the High Court to assign the reasons for not granting enhancement of compensation and/or its reduction. In the absence of any reasons, we are unable to uphold the impugned orders of the High Court. 36. As mentioned above, the Insurance Company did not choose to file any special leave to appeal in this Court against the impugned order of the High Court. The effect of non-filing of appeal is that the Insurance Company has in principle accepted the High Courts order. 37. This Court having allowed the claimants appeal and setting aside the impugned order, it results in dismissal of the appeal filed by the Insurance Company (M.A.C.A. No. 839 of 2014) and allowing of the appeal (M.A.C.A. No. 690/2014) filed by the claimant. Had the Insurance Company filed special leave to appeal against the impugned order in this Court seeking further reduction in the compensation awarded by the High Court like what the Insurance Company did when they had filed appeal before the High Court questioning inter alia the quantum of compensation being on higher side, the Insurance Company too would have been entitled to prosecute their appeal on merits after remand before the High Court in terms of this order. It was, however, not done by the Insurance Company.
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1[ds]20. Having heard the learned Counsel for the parties and on perusal of the record of the case, we find force in the submissions of the learned Counsel for the Appellant-claimant21. The powers of the first Appellate Court while deciding the first appeal are indeed well defined by various judicial pronouncements of this Court and are, therefore, no more res integra31. An appeal Under Section 173 of the M.V. Act is essentially in the nature of first appeal alike Section 96 of the Code and, therefore, the High Court is equally under legal obligation to decide all issues arising in the case both on facts and law after appreciating the entire evidence. [See National Insurance Co. Ltd. v. Naresh Kumar and Ors. ((2000) 10 SCC 198 and State of Punjab and Anr. v. Navdeep Kuur and Ors. (2004) 13 SCC 680]32. As observed supra, as a first Appellate Court, it was the duty of the High Court to have decided the appeals keeping in view the requirements of Order XX Rule 4(2) read with Order XLI Rule 31 of the Code which requires that judgment/order shall contain a concise statement of the case, points for determination, decisions thereon and the reasons34. Mere perusal of the afore-quoted order of the High Court would show that the High Court neither set out the facts of the case of the parties in detail, nor dealt with any of the submissions urged except to mention them, nor took note of the grounds raised by the claimant and nor made any attempt to appreciate the evidence in the light of the settled legal principles applicable to the issues arising in the case and proceeded to allow the appeal filed by the Insurance Company and reduced the compensation from Rs. 24,62,065/- to Rs. 20,00,000/-35. The High Court only observed Considering the submissions of the learned Counsel for the parties and I feel that compensation should have been awarded as Rs. 20,00,000/- and not Rs. 24,62,065/- . No reasons were given by the High Court as to why the amount of compensation should be reduced from Rs. 24,62,065/- to Rs. 20,00,000/- and why it cannot be enhanced. Since the Appellant-claimant had also filed appeal for enhancement of the compensation, the entire controversy was again open for decision before the High Court at the instance of the claimant and Insurance Company. It was, therefore, necessary for the High Court to assign the reasons for not granting enhancement of compensation and/or its reduction. In the absence of any reasons, we are unable to uphold the impugned orders of the High Court36. As mentioned above, the Insurance Company did not choose to file any special leave to appeal in this Court against the impugned order of the High Court. The effect of non-filing of appeal is that the Insurance Company has in principle accepted the High Courts order37. This Court having allowed the claimants appeal and setting aside the impugned order, it results in dismissal of the appeal filed by the Insurance Company (M.A.C.A. No. 839 of 2014) and allowing of the appeal (M.A.C.A. No. 690/2014) filed by the claimant. Had the Insurance Company filed special leave to appeal against the impugned order in this Court seeking further reduction in the compensation awarded by the High Court like what the Insurance Company did when they had filed appeal before the High Court questioning inter alia the quantum of compensation being on higher side, the Insurance Company too would have been entitled to prosecute their appeal on merits after remand before the High Court in terms of this order. It was, however, not done by the Insurance Company.
| 1 | 3,496 | 677 |
### 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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appellate court. Sitting as a court of first appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. (Vide Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 at p. 188, para 15 and Madhukar v. Sangram, (2001) 4 SCC 756 at p. 758, para 5.) 5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a first appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular first appeal shows that it falls short of considerations which are expected from the court of first appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular first appeal to the High Court for its fresh disposal in accordance with law. 30. The aforementioned cases were relied upon by this Court while reiterating the same principle in State Bank of India and Anr. v. Emmsons International Ltd. and Anr., (2011) 12 SCC 174 and Uttar Pradesh State Road Transport Corporation v. Mamta and Ors. (2016) 4 SCC 172 . 31. An appeal Under Section 173 of the M.V. Act is essentially in the nature of first appeal alike Section 96 of the Code and, therefore, the High Court is equally under legal obligation to decide all issues arising in the case both on facts and law after appreciating the entire evidence. [See National Insurance Co. Ltd. v. Naresh Kumar and Ors. ((2000) 10 SCC 198 and State of Punjab and Anr. v. Navdeep Kuur and Ors. (2004) 13 SCC 680]. 32. As observed supra, as a first Appellate Court, it was the duty of the High Court to have decided the appeals keeping in view the requirements of Order XX Rule 4(2) read with Order XLI Rule 31 of the Code which requires that judgment/order shall contain a concise statement of the case, points for determination, decisions thereon and the reasons. 33. Coming now to the facts of the case at hand, we consider it appropriate to reproduce the order of the High Court infra: Considering the submissions made by the learned Counsel for the parties and keeping in view the quantum of compensation amount awarded and the basis on which the same has been arrived at I feel, the interest of justice would be best served if the awarded compensation amount of Rs. 24,62,065/- is modified and reduced to Rs. 20,00,000/- which is payable to the claimant along with the awarded interest. The impugned award is modified to the said extent. The Appellant-Insurance Company is directed to deposit the modified compensation amount of Rs. 20,00,000/- along with awarded interest with the learned Tribunal within six weeks hence. On deposit of the amount, the same shall be disbursed to the claimant proportionately, as per the direction of the learned Tribunal given in the impugned award. 34. Mere perusal of the afore-quoted order of the High Court would show that the High Court neither set out the facts of the case of the parties in detail, nor dealt with any of the submissions urged except to mention them, nor took note of the grounds raised by the claimant and nor made any attempt to appreciate the evidence in the light of the settled legal principles applicable to the issues arising in the case and proceeded to allow the appeal filed by the Insurance Company and reduced the compensation from Rs. 24,62,065/- to Rs. 20,00,000/-. 35. The High Court only observed Considering the submissions of the learned Counsel for the parties and I feel that compensation should have been awarded as Rs. 20,00,000/- and not Rs. 24,62,065/- . No reasons were given by the High Court as to why the amount of compensation should be reduced from Rs. 24,62,065/- to Rs. 20,00,000/- and why it cannot be enhanced. Since the Appellant-claimant had also filed appeal for enhancement of the compensation, the entire controversy was again open for decision before the High Court at the instance of the claimant and Insurance Company. It was, therefore, necessary for the High Court to assign the reasons for not granting enhancement of compensation and/or its reduction. In the absence of any reasons, we are unable to uphold the impugned orders of the High Court. 36. As mentioned above, the Insurance Company did not choose to file any special leave to appeal in this Court against the impugned order of the High Court. The effect of non-filing of appeal is that the Insurance Company has in principle accepted the High Courts order. 37. This Court having allowed the claimants appeal and setting aside the impugned order, it results in dismissal of the appeal filed by the Insurance Company (M.A.C.A. No. 839 of 2014) and allowing of the appeal (M.A.C.A. No. 690/2014) filed by the claimant. Had the Insurance Company filed special leave to appeal against the impugned order in this Court seeking further reduction in the compensation awarded by the High Court like what the Insurance Company did when they had filed appeal before the High Court questioning inter alia the quantum of compensation being on higher side, the Insurance Company too would have been entitled to prosecute their appeal on merits after remand before the High Court in terms of this order. It was, however, not done by the Insurance Company.
### Response:
1
### Explanation:
20. Having heard the learned Counsel for the parties and on perusal of the record of the case, we find force in the submissions of the learned Counsel for the Appellant-claimant21. The powers of the first Appellate Court while deciding the first appeal are indeed well defined by various judicial pronouncements of this Court and are, therefore, no more res integra31. An appeal Under Section 173 of the M.V. Act is essentially in the nature of first appeal alike Section 96 of the Code and, therefore, the High Court is equally under legal obligation to decide all issues arising in the case both on facts and law after appreciating the entire evidence. [See National Insurance Co. Ltd. v. Naresh Kumar and Ors. ((2000) 10 SCC 198 and State of Punjab and Anr. v. Navdeep Kuur and Ors. (2004) 13 SCC 680]32. As observed supra, as a first Appellate Court, it was the duty of the High Court to have decided the appeals keeping in view the requirements of Order XX Rule 4(2) read with Order XLI Rule 31 of the Code which requires that judgment/order shall contain a concise statement of the case, points for determination, decisions thereon and the reasons34. Mere perusal of the afore-quoted order of the High Court would show that the High Court neither set out the facts of the case of the parties in detail, nor dealt with any of the submissions urged except to mention them, nor took note of the grounds raised by the claimant and nor made any attempt to appreciate the evidence in the light of the settled legal principles applicable to the issues arising in the case and proceeded to allow the appeal filed by the Insurance Company and reduced the compensation from Rs. 24,62,065/- to Rs. 20,00,000/-35. The High Court only observed Considering the submissions of the learned Counsel for the parties and I feel that compensation should have been awarded as Rs. 20,00,000/- and not Rs. 24,62,065/- . No reasons were given by the High Court as to why the amount of compensation should be reduced from Rs. 24,62,065/- to Rs. 20,00,000/- and why it cannot be enhanced. Since the Appellant-claimant had also filed appeal for enhancement of the compensation, the entire controversy was again open for decision before the High Court at the instance of the claimant and Insurance Company. It was, therefore, necessary for the High Court to assign the reasons for not granting enhancement of compensation and/or its reduction. In the absence of any reasons, we are unable to uphold the impugned orders of the High Court36. As mentioned above, the Insurance Company did not choose to file any special leave to appeal in this Court against the impugned order of the High Court. The effect of non-filing of appeal is that the Insurance Company has in principle accepted the High Courts order37. This Court having allowed the claimants appeal and setting aside the impugned order, it results in dismissal of the appeal filed by the Insurance Company (M.A.C.A. No. 839 of 2014) and allowing of the appeal (M.A.C.A. No. 690/2014) filed by the claimant. Had the Insurance Company filed special leave to appeal against the impugned order in this Court seeking further reduction in the compensation awarded by the High Court like what the Insurance Company did when they had filed appeal before the High Court questioning inter alia the quantum of compensation being on higher side, the Insurance Company too would have been entitled to prosecute their appeal on merits after remand before the High Court in terms of this order. It was, however, not done by the Insurance Company.
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Krishna Mohan Mookherjee Vs. Secretary and Treasurer, State Bank of India and Others
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to pass an order of dismissal could be pointed out and reliance was placed on Regulation 50, which we have earlier noticed, stands repealed, we may refer in this connection to Regulation 55 which reads as follows :"(1) Save as provided in sub-regulation (2), and as may be directed by the Central Board, a Local Board may exercise all the powers of the State Bank in respect of the staff serving the are in its jurisdiction.(2)(a) The initial appointments and promotions to various categories of employees in the Bank shall be made -(i) in the case of officers and employees starting on a pay lower than the starting pay in the scale applicable for the time being to Officers Grade II, by such authorities in the State Bank as may be specified, where the appointment or promotion is for service in the Circle, by the Chief General Manager concerned, and where the appointment or promotion is for service in or under Central Office, by the Managing Director;(ii) in the case of Officers Grade II and Grade I and of other employees to whom the Rules of services applicable to Officers Grade II or Grade I generally apply with or without modification by the Chief General Manager concerned or the Managing Director according as the appointments or promotion is for service in the Circle or in or under Central Office;(iii) in the case of Staff Officers of various grades and of other employees to whom the Rules of Service applicable to Staff Officers generally apply with or without modification by the Managing Director;(iv) in the case of Senior Staff Appointments and of employees to whom Rules of Service applicable to Senior Staff Appointments generally apply with or without modifications, by the Executive Committee;Such officers or employees shall not be dismissed from service of the State Bank by an authority lower than the appointing authority.(b) The salary and other emoluments to be granted to officers and to others employees with a starting pay equivalent to or higher than the starting pay in the scale applicable for the time being to Officers Grade II, shall be as laid down in Rules of Service approved by the Central Board and, where no such rules have been laid down, as fixed by the Executive Committee.(c) * * * * * *(d) The power to grant pensions to officers and other employees leaving the service of the State Bank, other than pensions provided for under the rules of the pension funds respectively applicable to them, shall be reserved to the Central Board.(e) The grant of gratuities or other financial assistance, either temporary or permanent, to widows, children or other dependents of deceased officers or other employees shall be made by the Executive Committee of the Central Board except where the grant of any such gratuity or financial assistance is authorised by any general direction given by the Central Board.19. From the averments made in the petition and from the materials on record, it does not become possible for us to come to any conclusion whether Regulation 55 has at all any application to the instant case.20. Even if we proceed on the basis that Regulation 55 has any bearing on the question of dismissal of the appellant, we cannot in the facts and circumstances of the case hold that there was been any breach of the said Regulation. Regulation 55(1) lays down that save as provided in sub-regulation (2) and as may be directed by Central Board, a Local Board may exercise all the powers of the State Bank in respect of the staff serving in the areas in its jurisdiction. There is nothing to indicate that the memorandum and the notice which we have earlier quoted did not come into existence as a result of a decision of the Local Board as directed by the Central Board or under the directions of the Central Board. There is also nothing to indicate that the appellant had been dismissed form service by an authority lower than the appointing authority. The order of dismissal has been communicated by the Superintendent, Staff Section who held the rank of General Manager who was duly authorised by the memorandum dated July 4, 1982 to take disciplinary action and pass orders imposing punishment against the appellant. It is also to be noticed that the appellant at no stage had raised any objection to the disciplinary proceedings against him initiated by the Superintendent and the punishment imposed on him by the Superintendent by virtue of the authority conferred on him by the said memorandum which we have earlier set out. It may also be pointed out that there are no proper averments in the petition filed by the appellant and indeed there are no materials to indicate that there has been any breach of Regulation 55 even if we assumed that the said Regulation had any application. In the absence of a statutory regulation, dismissal of an employee becomes entirely a managerial function.21. Para 521(12) of the Sastry Award, binding on the parties, requires that the person who cold pass an order of punishment, k should be notified. In compliance with the said requirement, the necessary notification had been made in the instant case and it may be pointed out once again that no objection had ever been taken to the nomination notified. We must, therefore, hold that in the instant case there is no substance in the contention of the appellant that the appellant had been dismissed by a person not competent to pass the order of dismissal.22. In this view of the matter, it does not really become necessary for us to consider the further argument of the learned counsel for the Bank that even if it could be said that the order of dismissal had not been passed by the competent authority, the order would result only in wrongful dismissal of the employee giving rise to a claim for damages, but could no be interfered with in a writ petition.
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0[ds]11. The law with regard to the applicability of the principles of natural justice isWe may, however, point out that the appellant in his representation dated December 12, 1962 clearly knowledges and admitted that the appellant had been afford full opportunity and all the points raised by him had been compiled with. It may also be noted that the further prayer of the appellant to make an oral representation after his representation in writing, was also allowed by the bank and the appellant was allow given an oral hearing.The learned Trial Judge has proceeded to hold that in view of regulation 50 of Schedule II and section22 of the Imperial Bank of India Act (Act XLVI of 1920) the dismissal of the employee could only be ordered by the Central Board or by the Local Board. He was of the view that the Amending Act of 1955 retained the said Regulation 50 of the Imperial Bank Act in the State Bank of India Act itself and in that view of the matter, the employee could be dismissed only in accordance with the provisions of the said Regulation.14. The Appellant Bench of the High Court has rightly pointed out that the learned single Judge failed to note that by the next Amending Act 58 of 1960, the said Regulation 50 on which the learned single Judge had relied was expressly repealed.From the averments made in the petition and from the materials on record, it does not become possible for us to come to any conclusion whether Regulation 55 has at all any application to the instant case.20. Even if we proceed on the basis that Regulation 55 has any bearing on the question of dismissal of the appellant, we cannot in the facts and circumstances of the case hold that there was been any breach of the said Regulation. Regulation 55(1) lays down that save as provided in(2) and as may be directed by Central Board, a Local Board may exercise all the powers of the State Bank in respect of the staff serving in the areas in its jurisdiction. There is nothing to indicate that the memorandum and the notice which we have earlier quoted did not come into existence as a result of a decision of the Local Board as directed by the Central Board or under the directions of the Central Board. There is also nothing to indicate that the appellant had been dismissed form service by an authority lower than the appointing authority. The order of dismissal has been communicated by the Superintendent, Staff Section who held the rank of General Manager who was duly authorised by the memorandum dated July 4, 1982 to take disciplinary action and pass orders imposing punishment against the appellant. It is also to be noticed that the appellant at no stage had raised any objection to the disciplinary proceedings against him initiated by the Superintendent and the punishment imposed on him by the Superintendent by virtue of the authority conferred on him by the said memorandum which we have earlier set out. It may also be pointed out that there are no proper averments in the petition filed by the appellant and indeed there are no materials to indicate that there has been any breach of Regulation 55 even if we assumed that the said Regulation had any application. In the absence of a statutory regulation, dismissal of an employee becomes entirely a managerial function.21. Para 521(12) of the Sastry Award, binding on the parties, requires that the person who cold pass an order of punishment, k should be notified. In compliance with the said requirement, the necessary notification had been made in the instant case and it may be pointed out once again that no objection had ever been taken to the nomination notified. We must, therefore, hold that in the instant case there is no substance in the contention of the appellant that the appellant had been dismissed by a person not competent to pass the order of dismissal.22. In this view of the matter, it does not really become necessary for us to consider the further argument of the learned counsel for the Bank that even if it could be said that the order of dismissal had not been passed by the competent authority, the order would result only in wrongful dismissal of the employee giving rise to a claim for damages, but could no be interfered with in a writ petition.
| 0 | 2,959 | 798 |
### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
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to pass an order of dismissal could be pointed out and reliance was placed on Regulation 50, which we have earlier noticed, stands repealed, we may refer in this connection to Regulation 55 which reads as follows :"(1) Save as provided in sub-regulation (2), and as may be directed by the Central Board, a Local Board may exercise all the powers of the State Bank in respect of the staff serving the are in its jurisdiction.(2)(a) The initial appointments and promotions to various categories of employees in the Bank shall be made -(i) in the case of officers and employees starting on a pay lower than the starting pay in the scale applicable for the time being to Officers Grade II, by such authorities in the State Bank as may be specified, where the appointment or promotion is for service in the Circle, by the Chief General Manager concerned, and where the appointment or promotion is for service in or under Central Office, by the Managing Director;(ii) in the case of Officers Grade II and Grade I and of other employees to whom the Rules of services applicable to Officers Grade II or Grade I generally apply with or without modification by the Chief General Manager concerned or the Managing Director according as the appointments or promotion is for service in the Circle or in or under Central Office;(iii) in the case of Staff Officers of various grades and of other employees to whom the Rules of Service applicable to Staff Officers generally apply with or without modification by the Managing Director;(iv) in the case of Senior Staff Appointments and of employees to whom Rules of Service applicable to Senior Staff Appointments generally apply with or without modifications, by the Executive Committee;Such officers or employees shall not be dismissed from service of the State Bank by an authority lower than the appointing authority.(b) The salary and other emoluments to be granted to officers and to others employees with a starting pay equivalent to or higher than the starting pay in the scale applicable for the time being to Officers Grade II, shall be as laid down in Rules of Service approved by the Central Board and, where no such rules have been laid down, as fixed by the Executive Committee.(c) * * * * * *(d) The power to grant pensions to officers and other employees leaving the service of the State Bank, other than pensions provided for under the rules of the pension funds respectively applicable to them, shall be reserved to the Central Board.(e) The grant of gratuities or other financial assistance, either temporary or permanent, to widows, children or other dependents of deceased officers or other employees shall be made by the Executive Committee of the Central Board except where the grant of any such gratuity or financial assistance is authorised by any general direction given by the Central Board.19. From the averments made in the petition and from the materials on record, it does not become possible for us to come to any conclusion whether Regulation 55 has at all any application to the instant case.20. Even if we proceed on the basis that Regulation 55 has any bearing on the question of dismissal of the appellant, we cannot in the facts and circumstances of the case hold that there was been any breach of the said Regulation. Regulation 55(1) lays down that save as provided in sub-regulation (2) and as may be directed by Central Board, a Local Board may exercise all the powers of the State Bank in respect of the staff serving in the areas in its jurisdiction. There is nothing to indicate that the memorandum and the notice which we have earlier quoted did not come into existence as a result of a decision of the Local Board as directed by the Central Board or under the directions of the Central Board. There is also nothing to indicate that the appellant had been dismissed form service by an authority lower than the appointing authority. The order of dismissal has been communicated by the Superintendent, Staff Section who held the rank of General Manager who was duly authorised by the memorandum dated July 4, 1982 to take disciplinary action and pass orders imposing punishment against the appellant. It is also to be noticed that the appellant at no stage had raised any objection to the disciplinary proceedings against him initiated by the Superintendent and the punishment imposed on him by the Superintendent by virtue of the authority conferred on him by the said memorandum which we have earlier set out. It may also be pointed out that there are no proper averments in the petition filed by the appellant and indeed there are no materials to indicate that there has been any breach of Regulation 55 even if we assumed that the said Regulation had any application. In the absence of a statutory regulation, dismissal of an employee becomes entirely a managerial function.21. Para 521(12) of the Sastry Award, binding on the parties, requires that the person who cold pass an order of punishment, k should be notified. In compliance with the said requirement, the necessary notification had been made in the instant case and it may be pointed out once again that no objection had ever been taken to the nomination notified. We must, therefore, hold that in the instant case there is no substance in the contention of the appellant that the appellant had been dismissed by a person not competent to pass the order of dismissal.22. In this view of the matter, it does not really become necessary for us to consider the further argument of the learned counsel for the Bank that even if it could be said that the order of dismissal had not been passed by the competent authority, the order would result only in wrongful dismissal of the employee giving rise to a claim for damages, but could no be interfered with in a writ petition.
### Response:
0
### Explanation:
11. The law with regard to the applicability of the principles of natural justice isWe may, however, point out that the appellant in his representation dated December 12, 1962 clearly knowledges and admitted that the appellant had been afford full opportunity and all the points raised by him had been compiled with. It may also be noted that the further prayer of the appellant to make an oral representation after his representation in writing, was also allowed by the bank and the appellant was allow given an oral hearing.The learned Trial Judge has proceeded to hold that in view of regulation 50 of Schedule II and section22 of the Imperial Bank of India Act (Act XLVI of 1920) the dismissal of the employee could only be ordered by the Central Board or by the Local Board. He was of the view that the Amending Act of 1955 retained the said Regulation 50 of the Imperial Bank Act in the State Bank of India Act itself and in that view of the matter, the employee could be dismissed only in accordance with the provisions of the said Regulation.14. The Appellant Bench of the High Court has rightly pointed out that the learned single Judge failed to note that by the next Amending Act 58 of 1960, the said Regulation 50 on which the learned single Judge had relied was expressly repealed.From the averments made in the petition and from the materials on record, it does not become possible for us to come to any conclusion whether Regulation 55 has at all any application to the instant case.20. Even if we proceed on the basis that Regulation 55 has any bearing on the question of dismissal of the appellant, we cannot in the facts and circumstances of the case hold that there was been any breach of the said Regulation. Regulation 55(1) lays down that save as provided in(2) and as may be directed by Central Board, a Local Board may exercise all the powers of the State Bank in respect of the staff serving in the areas in its jurisdiction. There is nothing to indicate that the memorandum and the notice which we have earlier quoted did not come into existence as a result of a decision of the Local Board as directed by the Central Board or under the directions of the Central Board. There is also nothing to indicate that the appellant had been dismissed form service by an authority lower than the appointing authority. The order of dismissal has been communicated by the Superintendent, Staff Section who held the rank of General Manager who was duly authorised by the memorandum dated July 4, 1982 to take disciplinary action and pass orders imposing punishment against the appellant. It is also to be noticed that the appellant at no stage had raised any objection to the disciplinary proceedings against him initiated by the Superintendent and the punishment imposed on him by the Superintendent by virtue of the authority conferred on him by the said memorandum which we have earlier set out. It may also be pointed out that there are no proper averments in the petition filed by the appellant and indeed there are no materials to indicate that there has been any breach of Regulation 55 even if we assumed that the said Regulation had any application. In the absence of a statutory regulation, dismissal of an employee becomes entirely a managerial function.21. Para 521(12) of the Sastry Award, binding on the parties, requires that the person who cold pass an order of punishment, k should be notified. In compliance with the said requirement, the necessary notification had been made in the instant case and it may be pointed out once again that no objection had ever been taken to the nomination notified. We must, therefore, hold that in the instant case there is no substance in the contention of the appellant that the appellant had been dismissed by a person not competent to pass the order of dismissal.22. In this view of the matter, it does not really become necessary for us to consider the further argument of the learned counsel for the Bank that even if it could be said that the order of dismissal had not been passed by the competent authority, the order would result only in wrongful dismissal of the employee giving rise to a claim for damages, but could no be interfered with in a writ petition.
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Deepak Chandrakant Patil Vs. State of Maharashtra
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either unreasonable or perverse and in any event did not call for any interference in the appeal against acquittal. So far as appellant is concerned, his conviction has been upheld by the High Court. 11. Learned counsel for the appellant urged before us that in view of the acquittal of the remaining accused there was in fact no reliable material on record on the basis of which the appellant could be convicted. It is not possible to sustain this submission because the evidence as against the appellant herein is different from the evidence as against other accused. There is no direct evidence as to who assaulted the deceased. Therefore, the evidence of the alleged eye witnesses who turned hostile was of no help to the prosecution. The identification of A-2 to A-5 who were said to be travelling in the auto rickshaw which followed the appellant and the deceased, was not found to be reliable, and the evidence as regards recoveries was also found to be not reliable. 12. So far as the appellant herein is concerned, it had been found as a fact that he had gone to the house of the deceased at about 10 PM on 29.12.1998 and he had persuaded him to accompany him to the house of A-1. The deceased was last seen by his wife and son at about 10.30 P.M. on that day when he accompanied the appellant on his own motorcycle to meet A-1. This circumstance is an incriminating circumstance and when considered with the other circumstances appearing against the appellant conclusively proves his guilt. Apart from being last seen with the deceased, there is evidence to the effect that he pointed out the place where the body of the deceased was lying which was in the garden behind the house of A-1. The motorcycle of the deceased was also recovered from the same spot. The evidence is thus conclusive that the appellant and the deceased travelled from the house of the deceased to the point where he was assaulted and killed. The objective findings also prove that the appellant had brought the deceased towards the house of A-1 and that in fact he had told the deceased that he was required by A-1. Learned counsel submitted that the statement made by the appellant that he had a fight with the deceased and that he could show the place where his body was lying, is not admissible as it was made in the presence of a Police Constable. Assuming that the inculpatory part of the statement may not be admissible in evidence, the statement so far as it relates to other parts disclosed leading to recovery, is admissible. It is also not as if with the aid of section 106 of the Code the appellant has been convicted because he was unable to give an explanation regarding facts within his exclusive knowledge. In this case, the appellant had brought the deceased from his house and later on pointed out the place where his dead body was found. The evidence on record suggested that he may be acting at the behest of A-1 but even if that is not proved, the evidence as against the appellant is abundant and conclusive enough to prove that he was responsible for the death of the deceased. 13. It has been submitted by the learned counsel for the appellant that there is no direct evidence to prove the participation of the appellant in the commission of the offence in view of the rejection of the evidence of the eye witnesses. In a case based on circumstantial evidence, there may be no direct evidence to prove the manner of assault or the actual participation of an accused in the assault on the deceased resulting in his death, but if the circumstantial evidence is conclusive in nature, a conviction on the basis of such circumstantial evidence may be recorded. It must be shown that the circumstances established on record are incriminating in nature, and the chain of circumstances established by the prosecution is so complete as not top be consistent with any other hypothesis except the guilt of the accused. 14. Learned Counsel for the appellant also submitted before us that the evidence of PWs 15 & 13 to the effect that the appellant was last seen in the company of the appellant became irrelevant in view of the fact that the prosecution had led direct evidence to prove the assault on the deceased. In our view, the submission does not help the appellant. In this case, the circumstance that the deceased was last seen by PWs 15 & 13 in the company of the appellant, is a circumstance which considered with other evidence on record has been found to prove the guilt of the accused. It is not as if the prosecution has tried to set up a case other than what was sought to be proved by the eye witnesses examined in the case who turned hostile. Since the eye witnesses turned hostile, the circumstance that the appellant had accompanied the deceased and was last seen by him was only treated as one of the circumstances in the chain of circumstances to prove his guilt. 15. In the instant case, we are satisfied that the Trial Court and the High Court rightly appreciated the evidence on record and the circumstances proved against the appellant conclusively prove his guilt. Mere fact that there is no evidence to show that he actually assaulted the deceased may not be of any consequence in the facts and circumstances of this case. We may only observe that in the face of the reliable evidence on record that the deceased had accompanied him at 10.30 P.M. on 29.12.1998, the accused-appellant did not offer any explanation as to whether they parted company thereafter. The fact that he knew about the dead body of the deceased lying in the garden behind the house of A-1 is almost clinching in nature and leaves nothing to doubt.
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0[ds]It is not possible to sustain this submission because the evidence as against the appellant herein is different from the evidence as against other accused. There is no direct evidence as to who assaulted the deceased. Therefore, the evidence of the alleged eye witnesses who turned hostile was of no help to the prosecution. The identification of2 to5 who were said to be travelling in the auto rickshaw which followed the appellant and the deceased, was not found to be reliable, and the evidence as regards recoveries was also found to be not reliableIn this case, the circumstance that the deceased was last seen by PWs 1513 in the company of the appellant, is a circumstance which considered with other evidence on record has been found to prove the guilt of the accused. It is not as if the prosecution has tried to set up a case other than what was sought to be proved by the eye witnesses examined in the case who turned hostile. Since the eye witnesses turned hostile, the circumstance that the appellant had accompanied the deceased and was last seen by him was only treated as one of the circumstances in the chain of circumstances to prove his guilt15. In the instant case, we are satisfied that the Trial Court and the High Court rightly appreciated the evidence on record and the circumstances proved against the appellant conclusively prove his guilt. Mere fact that there is no evidence to show that he actually assaulted the deceased may not be of any consequence in the facts and circumstances of this case. We may only observe that in the face of the reliable evidence on record that the deceased had accompanied him at 10.30 P.M. on 29.12.1998, thet did not offer any explanation as to whether they parted company thereafter. The fact that he knew about the dead body of the deceased lying in the garden behind the house ofA1is almost clinching in nature and leaves nothing to doubt.
| 0 | 2,945 | 354 |
### 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:
either unreasonable or perverse and in any event did not call for any interference in the appeal against acquittal. So far as appellant is concerned, his conviction has been upheld by the High Court. 11. Learned counsel for the appellant urged before us that in view of the acquittal of the remaining accused there was in fact no reliable material on record on the basis of which the appellant could be convicted. It is not possible to sustain this submission because the evidence as against the appellant herein is different from the evidence as against other accused. There is no direct evidence as to who assaulted the deceased. Therefore, the evidence of the alleged eye witnesses who turned hostile was of no help to the prosecution. The identification of A-2 to A-5 who were said to be travelling in the auto rickshaw which followed the appellant and the deceased, was not found to be reliable, and the evidence as regards recoveries was also found to be not reliable. 12. So far as the appellant herein is concerned, it had been found as a fact that he had gone to the house of the deceased at about 10 PM on 29.12.1998 and he had persuaded him to accompany him to the house of A-1. The deceased was last seen by his wife and son at about 10.30 P.M. on that day when he accompanied the appellant on his own motorcycle to meet A-1. This circumstance is an incriminating circumstance and when considered with the other circumstances appearing against the appellant conclusively proves his guilt. Apart from being last seen with the deceased, there is evidence to the effect that he pointed out the place where the body of the deceased was lying which was in the garden behind the house of A-1. The motorcycle of the deceased was also recovered from the same spot. The evidence is thus conclusive that the appellant and the deceased travelled from the house of the deceased to the point where he was assaulted and killed. The objective findings also prove that the appellant had brought the deceased towards the house of A-1 and that in fact he had told the deceased that he was required by A-1. Learned counsel submitted that the statement made by the appellant that he had a fight with the deceased and that he could show the place where his body was lying, is not admissible as it was made in the presence of a Police Constable. Assuming that the inculpatory part of the statement may not be admissible in evidence, the statement so far as it relates to other parts disclosed leading to recovery, is admissible. It is also not as if with the aid of section 106 of the Code the appellant has been convicted because he was unable to give an explanation regarding facts within his exclusive knowledge. In this case, the appellant had brought the deceased from his house and later on pointed out the place where his dead body was found. The evidence on record suggested that he may be acting at the behest of A-1 but even if that is not proved, the evidence as against the appellant is abundant and conclusive enough to prove that he was responsible for the death of the deceased. 13. It has been submitted by the learned counsel for the appellant that there is no direct evidence to prove the participation of the appellant in the commission of the offence in view of the rejection of the evidence of the eye witnesses. In a case based on circumstantial evidence, there may be no direct evidence to prove the manner of assault or the actual participation of an accused in the assault on the deceased resulting in his death, but if the circumstantial evidence is conclusive in nature, a conviction on the basis of such circumstantial evidence may be recorded. It must be shown that the circumstances established on record are incriminating in nature, and the chain of circumstances established by the prosecution is so complete as not top be consistent with any other hypothesis except the guilt of the accused. 14. Learned Counsel for the appellant also submitted before us that the evidence of PWs 15 & 13 to the effect that the appellant was last seen in the company of the appellant became irrelevant in view of the fact that the prosecution had led direct evidence to prove the assault on the deceased. In our view, the submission does not help the appellant. In this case, the circumstance that the deceased was last seen by PWs 15 & 13 in the company of the appellant, is a circumstance which considered with other evidence on record has been found to prove the guilt of the accused. It is not as if the prosecution has tried to set up a case other than what was sought to be proved by the eye witnesses examined in the case who turned hostile. Since the eye witnesses turned hostile, the circumstance that the appellant had accompanied the deceased and was last seen by him was only treated as one of the circumstances in the chain of circumstances to prove his guilt. 15. In the instant case, we are satisfied that the Trial Court and the High Court rightly appreciated the evidence on record and the circumstances proved against the appellant conclusively prove his guilt. Mere fact that there is no evidence to show that he actually assaulted the deceased may not be of any consequence in the facts and circumstances of this case. We may only observe that in the face of the reliable evidence on record that the deceased had accompanied him at 10.30 P.M. on 29.12.1998, the accused-appellant did not offer any explanation as to whether they parted company thereafter. The fact that he knew about the dead body of the deceased lying in the garden behind the house of A-1 is almost clinching in nature and leaves nothing to doubt.
### Response:
0
### Explanation:
It is not possible to sustain this submission because the evidence as against the appellant herein is different from the evidence as against other accused. There is no direct evidence as to who assaulted the deceased. Therefore, the evidence of the alleged eye witnesses who turned hostile was of no help to the prosecution. The identification of2 to5 who were said to be travelling in the auto rickshaw which followed the appellant and the deceased, was not found to be reliable, and the evidence as regards recoveries was also found to be not reliableIn this case, the circumstance that the deceased was last seen by PWs 1513 in the company of the appellant, is a circumstance which considered with other evidence on record has been found to prove the guilt of the accused. It is not as if the prosecution has tried to set up a case other than what was sought to be proved by the eye witnesses examined in the case who turned hostile. Since the eye witnesses turned hostile, the circumstance that the appellant had accompanied the deceased and was last seen by him was only treated as one of the circumstances in the chain of circumstances to prove his guilt15. In the instant case, we are satisfied that the Trial Court and the High Court rightly appreciated the evidence on record and the circumstances proved against the appellant conclusively prove his guilt. Mere fact that there is no evidence to show that he actually assaulted the deceased may not be of any consequence in the facts and circumstances of this case. We may only observe that in the face of the reliable evidence on record that the deceased had accompanied him at 10.30 P.M. on 29.12.1998, thet did not offer any explanation as to whether they parted company thereafter. The fact that he knew about the dead body of the deceased lying in the garden behind the house ofA1is almost clinching in nature and leaves nothing to doubt.
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Narendra Singh Vs. Nishant Sharma & Another
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to assume that he would have become a skilled worker in the course of time. The minimum wage earned by a skilled worker can be taken as Rs. 7,000/- per month. We take the monthly salary of the appellant accordingly. Following the principle laid down in Santosh Devi v. National Insurance Company reported in 2012 (6) SCC 421 , we add 30% to prospective increase of future income he could have been entitled to in course of his work life. Thus, the total annual income would be Rs. 1,09,200/-. Again following the principle laid down in Sarla Vermas case (supra), we take the multiplier of 17 to calculate the amount of compensation the appellant is entitled to under the head of loss of future income and arrive at Rs. 18,56,400/-. 10. Regarding the percentage of disability, the learned counsel on behalf of the appellant produced Ex-1-the appellants permanent disability certificate, Ex-2- the Injury Report and Ex-3-X-Ray Report as documentary evidence to prove his permanent partial disablement. Further, A.W.3- Dr. M.P. Goyal, in his evidence stated that the appellant had suffered from fracture of his foot bone. As per his evidence, the first and second metatarsal bone had compound fractures. During treatment, his right leg was amputated below knee. On examination by operation it was found that 3 and = inches below his right knee stump was present and as a result 60% permanent disability was assessed. The doctor also deposed that the appellant will be having problem for daily work and that he will be required to use artificial limb. 11. The learned counsel for the Respondent no. 2-Insurance Company, on the other hand, relied upon the case of Raj Kumar v. Ajay Kumar (2011) 1 SCC 343 , to assert that 60% disability of the appellant as assessed by the Courts below is on the higher side and that 60% physical disability as assessed by the Director of Rehabilitation Centre, Jaipur, does not amount to 60% economic disability. The learned counsel further argued as per Ajay Kumar case, that the Tribunal should not have mechanically applied the percentage of disability of the appellant as a percentage of economic loss or loss of earning capacity. It was opined in that case that "when a disability certificate states that the injured has suffered permanent disability to an extent of 45% in the left lower limb, it is not same as 45% permanent disability with reference to the whole body". This Court opined, that in most of the cases, equating extent of loss of earning capacity to the extent of permanent disability will result in award of either too high or too low a compensation. In paragraph no. 12 of the said judgment, this Court had further opined that the Tribunal has to decide if there is any permanent disability so that future loss of income can be calculated and if so, to what extent. If there is no permanent disablement, then future loss of income shall not be calculated. Therefore, the Tribunal has to decide: i) Whether the disablement is permanent or temporary?ii) If the disablement is permanent, whether it is permanent total disablement or permanent partial disablement?(iii) If the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is, the permanent disability suffered by the person? 12. Though paragraph 12 of the said judgment favours the case of the appellant herein the test laid down in the case, stands incorrect on principle in the presence of the First Schedule of the Workmen Compensation Act, 1923. The permanent partial disability of the appellant is correctly assessed by both the Courts below at 60% permanent partial disablement as per Entry 19 of the First Schedule of the Workmen Compensation Act, 1923. This finding is neither challenged by the insured nor by the Insurance Company before the appellate Court by obtaining permission from the Tribunal as provided under Section 170(b) of the Motor Vehicles Act, 1988 to avail the defence available for the insured and contest the proceeding. Therefore, the appellant is entitled to only 60% of the loss of future income. Hence, the total amount of compensation under the head of loss of future income is Rs. 11,13,840/-. 13. Under conventional heads, following the decision of Kumaresh (supra), we award Rs. 50,000/- for pain and suffering since the appellant cannot walk, sit, squat or run freely and he is not able to live a normal life. We also award Rs. 1,00,000/- for medical expenses for whole life since he has to survive with artificial limb which might require replacement from time to time. Since the appellants leg is amputated below the knee, his chances of mobility reduce drastically. He will be deprived from attending social functions. His chances of getting married also get reduced to a great extent. Therefore, we further award Rs. 3,00,000/- for loss of amenities and enjoyment of life including loss of marital prospects and marital happiness. We also award Rs. 50,000/- for conveyance charges and cost of attendant in his old age since he will be requiring assistance for his basic chores as he grows old. And we also award Rs. 50,000/- for food and nourishment. Hence, in total, a sum of Rs. 16,28,840/- is awarded as compensation in favour of the appellant.14. Further, an interest at the rate of 6% per annum on the compensation was awarded by the Tribunal which was enhanced to 7.5% by the High Court. The interest rates determined by both the Courts below are bad in law as per the legal principles laid down in Municipal Council of Delhi v. Association of Victims of Uphaar Tragedy (2011) 4 SCC 481, wherein this Court has awarded interest at the rate of 9% per annum on the compensation awarded in favour of the appellants. Applying the same legal principles, we grant interest at the rate of 9% per annum on the compensation awarded by this Court.
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1[ds]13. Under conventional heads, following the decision of Kumaresh (supra), we award Rs. 50,000/for pain and suffering since the appellant cannot walk, sit, squat or run freely and he is not able to live a normal life. We also award Rs. 1,00,000/l expenses for wholelife since he has to survive with artificial limb which might require replacement from time to time. Since the appellants leg is amputated below the knee, his chances of mobility reduce drastically. He will be deprived from attending social functions. His chances of getting married also get reduced to a great extent. Therefore, we further award Rs. 3,00,000/for loss of amenities and enjoyment of life including loss of marital prospects and marital happiness. We also award Rs. 50,000/for conveyance charges and cost of attendant in his old age since he will be requiring assistance for his basic chores as he grows old. And we also award Rs. 50,000/for food andnourishment. Hence, in total, a sum of Rs. 16,28,840/is awarded as compensation in favour of the appellant.14. Further, an interest at the rate of 6% per annum on the compensation was awarded by the Tribunal which was enhanced to 7.5% by the High Court. The interest rates determined by both the Courts below are bad in law as per the legal principles laid down in Municipal Council of Delhi v. Association of Victims of Uphaar Tragedy (2011) 4 SCC 481, wherein this Court has awarded interest at the rate of 9% per annum on the compensation awarded in favour of the appellants. Applying the same legal principles, we grant interest at the rate of 9% per annum on the compensation awarded by this Court.
| 1 | 2,730 | 320 |
### 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:
to assume that he would have become a skilled worker in the course of time. The minimum wage earned by a skilled worker can be taken as Rs. 7,000/- per month. We take the monthly salary of the appellant accordingly. Following the principle laid down in Santosh Devi v. National Insurance Company reported in 2012 (6) SCC 421 , we add 30% to prospective increase of future income he could have been entitled to in course of his work life. Thus, the total annual income would be Rs. 1,09,200/-. Again following the principle laid down in Sarla Vermas case (supra), we take the multiplier of 17 to calculate the amount of compensation the appellant is entitled to under the head of loss of future income and arrive at Rs. 18,56,400/-. 10. Regarding the percentage of disability, the learned counsel on behalf of the appellant produced Ex-1-the appellants permanent disability certificate, Ex-2- the Injury Report and Ex-3-X-Ray Report as documentary evidence to prove his permanent partial disablement. Further, A.W.3- Dr. M.P. Goyal, in his evidence stated that the appellant had suffered from fracture of his foot bone. As per his evidence, the first and second metatarsal bone had compound fractures. During treatment, his right leg was amputated below knee. On examination by operation it was found that 3 and = inches below his right knee stump was present and as a result 60% permanent disability was assessed. The doctor also deposed that the appellant will be having problem for daily work and that he will be required to use artificial limb. 11. The learned counsel for the Respondent no. 2-Insurance Company, on the other hand, relied upon the case of Raj Kumar v. Ajay Kumar (2011) 1 SCC 343 , to assert that 60% disability of the appellant as assessed by the Courts below is on the higher side and that 60% physical disability as assessed by the Director of Rehabilitation Centre, Jaipur, does not amount to 60% economic disability. The learned counsel further argued as per Ajay Kumar case, that the Tribunal should not have mechanically applied the percentage of disability of the appellant as a percentage of economic loss or loss of earning capacity. It was opined in that case that "when a disability certificate states that the injured has suffered permanent disability to an extent of 45% in the left lower limb, it is not same as 45% permanent disability with reference to the whole body". This Court opined, that in most of the cases, equating extent of loss of earning capacity to the extent of permanent disability will result in award of either too high or too low a compensation. In paragraph no. 12 of the said judgment, this Court had further opined that the Tribunal has to decide if there is any permanent disability so that future loss of income can be calculated and if so, to what extent. If there is no permanent disablement, then future loss of income shall not be calculated. Therefore, the Tribunal has to decide: i) Whether the disablement is permanent or temporary?ii) If the disablement is permanent, whether it is permanent total disablement or permanent partial disablement?(iii) If the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is, the permanent disability suffered by the person? 12. Though paragraph 12 of the said judgment favours the case of the appellant herein the test laid down in the case, stands incorrect on principle in the presence of the First Schedule of the Workmen Compensation Act, 1923. The permanent partial disability of the appellant is correctly assessed by both the Courts below at 60% permanent partial disablement as per Entry 19 of the First Schedule of the Workmen Compensation Act, 1923. This finding is neither challenged by the insured nor by the Insurance Company before the appellate Court by obtaining permission from the Tribunal as provided under Section 170(b) of the Motor Vehicles Act, 1988 to avail the defence available for the insured and contest the proceeding. Therefore, the appellant is entitled to only 60% of the loss of future income. Hence, the total amount of compensation under the head of loss of future income is Rs. 11,13,840/-. 13. Under conventional heads, following the decision of Kumaresh (supra), we award Rs. 50,000/- for pain and suffering since the appellant cannot walk, sit, squat or run freely and he is not able to live a normal life. We also award Rs. 1,00,000/- for medical expenses for whole life since he has to survive with artificial limb which might require replacement from time to time. Since the appellants leg is amputated below the knee, his chances of mobility reduce drastically. He will be deprived from attending social functions. His chances of getting married also get reduced to a great extent. Therefore, we further award Rs. 3,00,000/- for loss of amenities and enjoyment of life including loss of marital prospects and marital happiness. We also award Rs. 50,000/- for conveyance charges and cost of attendant in his old age since he will be requiring assistance for his basic chores as he grows old. And we also award Rs. 50,000/- for food and nourishment. Hence, in total, a sum of Rs. 16,28,840/- is awarded as compensation in favour of the appellant.14. Further, an interest at the rate of 6% per annum on the compensation was awarded by the Tribunal which was enhanced to 7.5% by the High Court. The interest rates determined by both the Courts below are bad in law as per the legal principles laid down in Municipal Council of Delhi v. Association of Victims of Uphaar Tragedy (2011) 4 SCC 481, wherein this Court has awarded interest at the rate of 9% per annum on the compensation awarded in favour of the appellants. Applying the same legal principles, we grant interest at the rate of 9% per annum on the compensation awarded by this Court.
### Response:
1
### Explanation:
13. Under conventional heads, following the decision of Kumaresh (supra), we award Rs. 50,000/for pain and suffering since the appellant cannot walk, sit, squat or run freely and he is not able to live a normal life. We also award Rs. 1,00,000/l expenses for wholelife since he has to survive with artificial limb which might require replacement from time to time. Since the appellants leg is amputated below the knee, his chances of mobility reduce drastically. He will be deprived from attending social functions. His chances of getting married also get reduced to a great extent. Therefore, we further award Rs. 3,00,000/for loss of amenities and enjoyment of life including loss of marital prospects and marital happiness. We also award Rs. 50,000/for conveyance charges and cost of attendant in his old age since he will be requiring assistance for his basic chores as he grows old. And we also award Rs. 50,000/for food andnourishment. Hence, in total, a sum of Rs. 16,28,840/is awarded as compensation in favour of the appellant.14. Further, an interest at the rate of 6% per annum on the compensation was awarded by the Tribunal which was enhanced to 7.5% by the High Court. The interest rates determined by both the Courts below are bad in law as per the legal principles laid down in Municipal Council of Delhi v. Association of Victims of Uphaar Tragedy (2011) 4 SCC 481, wherein this Court has awarded interest at the rate of 9% per annum on the compensation awarded in favour of the appellants. Applying the same legal principles, we grant interest at the rate of 9% per annum on the compensation awarded by this Court.
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Messrs Pharmed Private Limited Vs. Workmen
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the appellant company have diminished in consequence. There was no material placed before the Tribunal that the agreement has been terminated. On the other hand, the appellants, in C. M. P. 4620 of 1969 referred to earlier, requested this Court to receive as additional evidence, a copy of letter dated October 9, 1969 stated to have been received by them Smith, Kline and French (India) Ltd., regarding the termination of the agreement and certain other matters. We have already rejected that petition, and it follows that the appellant is not entitled to place any reliance on that letter.23. Therefore, the position before the Tribunal was that the appellant did not adduce any evidence to show the volume of business done by it in respect of each of the companies referred to above, as to whether the agreements had been terminated and, if so, the consequent diminution in the profits of the company. Under those circumstances, the Tribunal, in our view, was perfectly justified in holding after having due regard to the profits earned by the company, that its financial condition was quite good. In fact the Tribunal has stated that the working results for the years 1967-68 were filed by the appellant under a confidential cover and those statements do not show any decline in the gross profits earned by the company for that year.24. For these reasons, the second contention also has to be rejected.25. Coming to the last contention of Mr. Gokhale that refers to the actual rate of dearness allowance awarded by the Tribunal. He pointed out that the Tribunal has granted full neutralisation which is not permissible in law. In this connection he referred us to the decision of this Court in Kamani Metals & Alloys Ltd. v. Their Workmen and Bengal Chemical and Pharmaceutical Works Ltd. v. Its Workmen (supra). In fact, in the latter decision, this Court has referred to the earlier decisions on the point and ultimately summarised the position regarding the principles governing the fixation of wages and dearness allowance.26. In Kamani Metals case (supra) it has been stated that as it is not advisable to have a one-hundred per cent. neutralisation lest it lead to inflation, dearness allowance is often a little less than one hundred per cent. neutralisation. In Bengal Chemicals case (supra) after a review of the previous decisions, this Court held that full neutralisation is not normally given except to the very lowest class of employees. Mr. Gokhale pointed out that though the Tribunal had proceeded on the basis that full neutralisation should not be granted, nevertheless, the rate at which neutralisation has been granted by the Tribunal contravenes the principles laid down by this Court. Mr. Chari, on the other hand, no doubt pointed out that if properly worked out, the result would not be, as assumed by the appellant. In any event, he pointed out that no prohibition has been laid down by this Court against the grant of full neutralisation under any circumstance. Without going into this aspect, in our opinion, the matter can be disposed of on a different consideration.27. The Tribunal, we have already pointed out, has rejected the demand of the Union for grant of dearness allowance at the rate of 45% on cost of living index 610, wages being worked out at 500 and a 5% rise or fall for every 10 points. The Tribunal has taken the view that it is more scientific to provide for a sliding scale. We are in agreement with the Tribunal in this regard and it also accords with the principles laid down by this Court in the Bengal Chemicals case (supra).28. The further question is : what should be the rate or variation ? The Industrial Tribunal has taken note of the fact that the company and the Union, by the 1966 settlement, have agreed to 2% rise with every 10 points. It has also adverted to the fact that the rise in variation is to be on consolidated wages and not on basis wages. It took the view that a variation of 2.5% for every rise or fall of 10 points in the price index above 600 is proper. Though normally this Court does not interfere with the percentage of variation fixed by an Industrial Tribunal, unless it is very onerous and not related to the evidence in the case, it must not be missed that, in this case, there is a guidance afforded by the terms of the agreement entered into between the parties on April 6, 1966. We have already referred to the fact that in respect of demand No. 1 relating to dearness allowance, the parties agreed that between the cost of living index figure 581 and 600 arrived at after working at 500 index figure. As an interim measure in the same settlement, there is also provided, by agreement, that the workmen are to be given increased rates of dearness allowance : (a) between the cost of living index figure 601 and 610 at 24% rise, and (b) between the cost of living index figure 611 and 620 at 26% rise. That shows that the parties, by agreement, have provided in respect of variation by 2% by every 10 points. That, in our opinion furnishes a safe guide which should not have been ignored by the Industrial Tribunal.29. Therefore, in view of these circumstances which are available in the agreement of April 6, 1966, we have to effect a slight modification in the variation fixed by the Industrial Tribunal. We are also of the view the grant at the rate of 2.5% rise in dearness allowance, as awarded by the Industrial Tribunal, will involve the company in an annual burden of Rs. 2, 43, 000/ and that imposing such a large burden at once might create hardship on the company.30. In view of these circumstances, we would allow a variation of only 2% on every rise of all of 10 points and in the consumer price index above 600.
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1[ds]13. Before we proceed to deal with the contentions of Mr. Gokhale, it is necessary to state that the claim for revision of dearness allowance has been properly entertained by the Tribunal. The agreement of April 6, 1966 itself states that the cost of living index has gone above 600 and therefore the matter of dearness allowance has to be referred immediately for decision. Over and above this agreement, it is also to be seen that this Court has laid down in Remington Rand of India v. Its Workmen, that when a risethe cost of living index hasbeen established, the claim for a revision of dearness allowance cannot be rejected without examining it onTribunal, counsel pointed out, rejected the Unions plea that the appellant should be compared with the various firms which had entered into settlements with their workmen.The particulars, furnished by the appellant, in the settlements if properly looked into provide adequate information to establish that Chemo Pharma Ltd. and Cipla are concern which could be properly compared with the appellant company. The rejection of these statements, by the Tribunal was not justified. We are not inclined to accept this contention.15. The Tribunal has referred to the various matters contained in the statements furnished by the appellant regarding Chemo Pharma Ltd. and Cipla. But the Tribunal has taken the view that no particulars regarding the standing, the extent of labour force employed, the extent of their respective customers, the profit and loss and such other relevant information have been furnished by the appellant and therefore it took the view that those companies could not be considered for purposes of comparison with the appellant. For similar reasons the statements filed by the Union regarding the settlements stated to have been entered into by certain concerns with their workmen, were also rejected by the Tribunal. We do not find any error committed by the Tribunal in the reasons given by it for rejecting the claim of the management in this regard.16. The appellant has filed an application in this CourtC. M. P. 4620 of 1969praying for permission to file certain additional documents. One of the documents sought to be tendered is additional evidence is stated to contain particulars regarding the years in which the Chemo Pharma and Cipla were established as well as the number of workmen employed by each of those firms and their manufacturing activities. We have already referred to the fact that the Tribunal has declined to reply upon the statements filed by the appellants regarding these two concerns on the ground that they do not contain any information regarding their manufacturing activities, their labour force etc. In view of this we were not inclined to grant the permission asked for by the appellant and, as such, we have already rejectedC. M. P. 4620 of 1969on November 14, 1969.17. It follows that the first contention of Mr. Gokhale has to be rejected.Here again, we do not see any mistake or error committed by the Tribunal. The Tribunal has taken note of the fact that the appellant company manufactures pharmaceuticals on contract for various other concerns and that there is a possibility of those concerns taking up manufacture of such articles themselves. But the Tribunal has referred to the fact that the appellant itself is also a manufacturing concern making good profits and that no evidence to the company has been placed by the management.20.Mr. Gokhale referred us to the notice, dated January 19, 1967 given by Warner Hindustan Ltd., Bombay, to the appellant.It is stated in the said notice that Warner Hindustan Ltd. for whom the appellants are manufacturing certain products have established a pharmaceutical plant and that they expect to go into production from May 1967 onwards. The notice further states that the appellants from June 1967 will cease to manufacture certain types of Warner products and the rest of the products from July, August 1967. No evidence has been brought to our notice by the appellant that the agreement has been actually terminated, nor has any material been placed before us to show the volume of business transacted by the appellant with Warner Hindustan Ltd., before and after the termination of the agreement. Though the notice is of 1967, the management, so far as we could see, have not adduced any evidence before the Tribunal in this regard.21.Mr. Gokhale further referred us to a notice issued by Pfizer Ltd., dated November 26, 1968 to the appellant.That notice also states that the lan manufacturing of Pfizer products by the appellant would stand terminated by the end of March 1968. It is further stated that no more orders will be given to the appellant after March 31, 1968 and that the production in respect of orders already given would be continued until the end of June 1968. The same criticism that we have made regarding the notice issued by Warner Hindustan Ltd., applied to this notice also.22.Mr. Gokhale then referred us to the agreement dated July 22, 1963 entered into between the appellant and Smith, Kline and French (India) Ltd.One of the conditions of the agreement was that the appellants were to act as agents, consultants and advisers to Smith, Kline and French (India) Ltd. There are several other matters referred to in the agreement. Clause 7 of the agreement gives a right to the manufacture to terminate the agreement by three months written notice in the circumstances mentioned therein. According to Mr. Gokhale, the agreement has been terminated and the business profits of the appellant company have diminished in consequence. There was no material placed before the Tribunal that the agreement has been terminated. On the other hand, the appellants, inC. M. P. 4620 of 1969referred to earlier, requested this Court to receive as additional evidence, a copy of letter dated October 9, 1969 stated to have been received by them Smith, Kline and French (India) Ltd., regarding the termination of the agreement and certain other matters. We have already rejected that petition, and it follows that the appellant is not entitled to place any reliance on that letter.23. Therefore, the position before the Tribunal was that the appellant did not adduce any evidence to show the volume of business done by it in respect of each of the companies referred to above, as to whether the agreements had been terminated and, if so, the consequent diminution in the profits of the company. Under those circumstances, the Tribunal, in our view, was perfectly justified in holding after having due regard to the profits earned by the company, that its financial condition was quite good. In fact the Tribunal has stated that the working results for the yearswere filed by the appellant under a confidential cover and those statements do not show any decline in the gross profits earned by the company for that year.24. For these reasons, the second contention also has to beIndustrial Tribunal has taken note of the fact that the company and the Union, by the 1966 settlement, have agreed to 2% rise with every 10 points. It has also adverted to the fact that the rise in variation is to be on consolidated wages and not on basis wages. It took the view that a variation of 2.5% for every rise or fall of 10 points in the price index above 600 is proper. Though normally this Court does not interfere with the percentage of variation fixed by an Industrial Tribunal, unless it is very onerous and not related to the evidence in the case, it must not be missed that, in this case, there is a guidance afforded by the terms of the agreement entered into between the parties on April 6, 1966. We have already referred to the fact that in respect of demand No. 1 relating to dearness allowance, the parties agreed thatthe cost of living index figure581 and 600 arrived atafter working at 500 indexAs an interim measure in the same settlement, there is also provided, by agreement, that the workmen are to be given increased rates of dearness allowance : (a)the cost of living index figure601 and 610at 24% rise, and (b)the cost of living index figure20 at 26% rise. That shows that the parties, by agreement, have provided in respect of variation by 2% by every 10 points. That, in our opinion furnishes a safe guide which should not have been ignored by the Industrial Tribunal.29. Therefore, in view of these circumstances which are available in the agreement of April 6, 1966, we have to effect a slight modification in the variation fixed by the Industrial Tribunal. We are also of the view the grant at the rate of 2.5% rise in dearness allowance, as awarded by the Industrial Tribunal, will involve the company in an annual burden of Rs. 2, 43, 000/ and that imposing such a large burden at once might create hardship on the company.30. In view of these circumstances, we would allow a variation of only 2% on every rise of all of 10 points and in the consumer price index above 600.
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the appellant company have diminished in consequence. There was no material placed before the Tribunal that the agreement has been terminated. On the other hand, the appellants, in C. M. P. 4620 of 1969 referred to earlier, requested this Court to receive as additional evidence, a copy of letter dated October 9, 1969 stated to have been received by them Smith, Kline and French (India) Ltd., regarding the termination of the agreement and certain other matters. We have already rejected that petition, and it follows that the appellant is not entitled to place any reliance on that letter.23. Therefore, the position before the Tribunal was that the appellant did not adduce any evidence to show the volume of business done by it in respect of each of the companies referred to above, as to whether the agreements had been terminated and, if so, the consequent diminution in the profits of the company. Under those circumstances, the Tribunal, in our view, was perfectly justified in holding after having due regard to the profits earned by the company, that its financial condition was quite good. In fact the Tribunal has stated that the working results for the years 1967-68 were filed by the appellant under a confidential cover and those statements do not show any decline in the gross profits earned by the company for that year.24. For these reasons, the second contention also has to be rejected.25. Coming to the last contention of Mr. Gokhale that refers to the actual rate of dearness allowance awarded by the Tribunal. He pointed out that the Tribunal has granted full neutralisation which is not permissible in law. In this connection he referred us to the decision of this Court in Kamani Metals & Alloys Ltd. v. Their Workmen and Bengal Chemical and Pharmaceutical Works Ltd. v. Its Workmen (supra). In fact, in the latter decision, this Court has referred to the earlier decisions on the point and ultimately summarised the position regarding the principles governing the fixation of wages and dearness allowance.26. In Kamani Metals case (supra) it has been stated that as it is not advisable to have a one-hundred per cent. neutralisation lest it lead to inflation, dearness allowance is often a little less than one hundred per cent. neutralisation. In Bengal Chemicals case (supra) after a review of the previous decisions, this Court held that full neutralisation is not normally given except to the very lowest class of employees. Mr. Gokhale pointed out that though the Tribunal had proceeded on the basis that full neutralisation should not be granted, nevertheless, the rate at which neutralisation has been granted by the Tribunal contravenes the principles laid down by this Court. Mr. Chari, on the other hand, no doubt pointed out that if properly worked out, the result would not be, as assumed by the appellant. In any event, he pointed out that no prohibition has been laid down by this Court against the grant of full neutralisation under any circumstance. Without going into this aspect, in our opinion, the matter can be disposed of on a different consideration.27. The Tribunal, we have already pointed out, has rejected the demand of the Union for grant of dearness allowance at the rate of 45% on cost of living index 610, wages being worked out at 500 and a 5% rise or fall for every 10 points. The Tribunal has taken the view that it is more scientific to provide for a sliding scale. We are in agreement with the Tribunal in this regard and it also accords with the principles laid down by this Court in the Bengal Chemicals case (supra).28. The further question is : what should be the rate or variation ? The Industrial Tribunal has taken note of the fact that the company and the Union, by the 1966 settlement, have agreed to 2% rise with every 10 points. It has also adverted to the fact that the rise in variation is to be on consolidated wages and not on basis wages. It took the view that a variation of 2.5% for every rise or fall of 10 points in the price index above 600 is proper. Though normally this Court does not interfere with the percentage of variation fixed by an Industrial Tribunal, unless it is very onerous and not related to the evidence in the case, it must not be missed that, in this case, there is a guidance afforded by the terms of the agreement entered into between the parties on April 6, 1966. We have already referred to the fact that in respect of demand No. 1 relating to dearness allowance, the parties agreed that between the cost of living index figure 581 and 600 arrived at after working at 500 index figure. As an interim measure in the same settlement, there is also provided, by agreement, that the workmen are to be given increased rates of dearness allowance : (a) between the cost of living index figure 601 and 610 at 24% rise, and (b) between the cost of living index figure 611 and 620 at 26% rise. That shows that the parties, by agreement, have provided in respect of variation by 2% by every 10 points. That, in our opinion furnishes a safe guide which should not have been ignored by the Industrial Tribunal.29. Therefore, in view of these circumstances which are available in the agreement of April 6, 1966, we have to effect a slight modification in the variation fixed by the Industrial Tribunal. We are also of the view the grant at the rate of 2.5% rise in dearness allowance, as awarded by the Industrial Tribunal, will involve the company in an annual burden of Rs. 2, 43, 000/ and that imposing such a large burden at once might create hardship on the company.30. In view of these circumstances, we would allow a variation of only 2% on every rise of all of 10 points and in the consumer price index above 600.
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pharmaceuticals on contract for various other concerns and that there is a possibility of those concerns taking up manufacture of such articles themselves. But the Tribunal has referred to the fact that the appellant itself is also a manufacturing concern making good profits and that no evidence to the company has been placed by the management.20.Mr. Gokhale referred us to the notice, dated January 19, 1967 given by Warner Hindustan Ltd., Bombay, to the appellant.It is stated in the said notice that Warner Hindustan Ltd. for whom the appellants are manufacturing certain products have established a pharmaceutical plant and that they expect to go into production from May 1967 onwards. The notice further states that the appellants from June 1967 will cease to manufacture certain types of Warner products and the rest of the products from July, August 1967. No evidence has been brought to our notice by the appellant that the agreement has been actually terminated, nor has any material been placed before us to show the volume of business transacted by the appellant with Warner Hindustan Ltd., before and after the termination of the agreement. Though the notice is of 1967, the management, so far as we could see, have not adduced any evidence before the Tribunal in this regard.21.Mr. Gokhale further referred us to a notice issued by Pfizer Ltd., dated November 26, 1968 to the appellant.That notice also states that the lan manufacturing of Pfizer products by the appellant would stand terminated by the end of March 1968. It is further stated that no more orders will be given to the appellant after March 31, 1968 and that the production in respect of orders already given would be continued until the end of June 1968. The same criticism that we have made regarding the notice issued by Warner Hindustan Ltd., applied to this notice also.22.Mr. Gokhale then referred us to the agreement dated July 22, 1963 entered into between the appellant and Smith, Kline and French (India) Ltd.One of the conditions of the agreement was that the appellants were to act as agents, consultants and advisers to Smith, Kline and French (India) Ltd. There are several other matters referred to in the agreement. Clause 7 of the agreement gives a right to the manufacture to terminate the agreement by three months written notice in the circumstances mentioned therein. According to Mr. Gokhale, the agreement has been terminated and the business profits of the appellant company have diminished in consequence. There was no material placed before the Tribunal that the agreement has been terminated. On the other hand, the appellants, inC. M. P. 4620 of 1969referred to earlier, requested this Court to receive as additional evidence, a copy of letter dated October 9, 1969 stated to have been received by them Smith, Kline and French (India) Ltd., regarding the termination of the agreement and certain other matters. We have already rejected that petition, and it follows that the appellant is not entitled to place any reliance on that letter.23. Therefore, the position before the Tribunal was that the appellant did not adduce any evidence to show the volume of business done by it in respect of each of the companies referred to above, as to whether the agreements had been terminated and, if so, the consequent diminution in the profits of the company. Under those circumstances, the Tribunal, in our view, was perfectly justified in holding after having due regard to the profits earned by the company, that its financial condition was quite good. In fact the Tribunal has stated that the working results for the yearswere filed by the appellant under a confidential cover and those statements do not show any decline in the gross profits earned by the company for that year.24. For these reasons, the second contention also has to beIndustrial Tribunal has taken note of the fact that the company and the Union, by the 1966 settlement, have agreed to 2% rise with every 10 points. It has also adverted to the fact that the rise in variation is to be on consolidated wages and not on basis wages. It took the view that a variation of 2.5% for every rise or fall of 10 points in the price index above 600 is proper. Though normally this Court does not interfere with the percentage of variation fixed by an Industrial Tribunal, unless it is very onerous and not related to the evidence in the case, it must not be missed that, in this case, there is a guidance afforded by the terms of the agreement entered into between the parties on April 6, 1966. We have already referred to the fact that in respect of demand No. 1 relating to dearness allowance, the parties agreed thatthe cost of living index figure581 and 600 arrived atafter working at 500 indexAs an interim measure in the same settlement, there is also provided, by agreement, that the workmen are to be given increased rates of dearness allowance : (a)the cost of living index figure601 and 610at 24% rise, and (b)the cost of living index figure20 at 26% rise. That shows that the parties, by agreement, have provided in respect of variation by 2% by every 10 points. That, in our opinion furnishes a safe guide which should not have been ignored by the Industrial Tribunal.29. Therefore, in view of these circumstances which are available in the agreement of April 6, 1966, we have to effect a slight modification in the variation fixed by the Industrial Tribunal. We are also of the view the grant at the rate of 2.5% rise in dearness allowance, as awarded by the Industrial Tribunal, will involve the company in an annual burden of Rs. 2, 43, 000/ and that imposing such a large burden at once might create hardship on the company.30. In view of these circumstances, we would allow a variation of only 2% on every rise of all of 10 points and in the consumer price index above 600.
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Aneeta Hada & Another Vs. M/s Godfather Travels & Tours Pvt.Ltd
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responsible to, the company for the conduct of its business shall be proceeded against and punished for the said crime." 36. I may notice that in some of the decisions of this Court a liberal interpretation of notice had been advocated to suggest that a notice served upon a managing director of the company or a director of the company shall satisfy the requirements of law. [See Bilakchand Gyanchand Co. v. A. Chinnaswami JT 1999 (10) SC 236 and Rajneesh Aggarwal v. Amit J. Bhalla JT 2001 (1) SC 325 ]. 37. The said decisions proceeded on the premise that what is necessary is the knowledge of the accused that the cheque has been dishonoured so that the amount may be paid within a period of fifteen days from the date of such knowledge. 38. A learned Single Judge of the Kerala High Court in Pramod v. C.K. Velayudhan & Ors. [2006 (1) JCC (NI) 62] inter alia relying on a decision of this Court in Monaben Ketanbhai Shah v. State of Gujarat [(2004) 7 SCC 15 : 2004 Cri LJ 4249] opined: "...In other words, commission of offence under Section 138 of the Act by a juristic person is an inevitable legal pre-requisite or the condition precedent to proceed against a person referred to under Section 141 of the Act and to hold him guilty of the said offence." It was further opined: "19. Learned counsel for petitioner placed reliance upon the decision of the High Court of Andhra Pradesh in B.S.K. Prasad v. M/s. Laxmi Vessels, 2005 (1) LJ (NOC) 7 : (2004 Cri LJ 4079) (AP) in which it is held that "as per Section 138 of the Act the drawer of a dishonoured cheque only is liable for punishment". He also cited K. Seetharam Reddy v. K. Radhika Rani, (2002) 112 Comp Cas 204 (AP) in support of his arguments. It is held in the said decision that "Section 138 of the Negotiable Instruments Act, 1881, leaves no doubt that the person who has drawn the cheque on his account is alone liable in the event the cheque drawn by him is dishonoured". In the light of the above dictum also, I find that neither first accused- society nor petitioner, as secretary of the society can be proceeded against for offence under Section 138 of the Act. 20. But, despite all these, trial Court issued summons to petitioner. The mere description on the cause-title of the complaint appears to be the sole persuading factor which propelled learned Magistrate to summon petitioner. There was no other ground to proceed against the petitioner. Needless to say, a criminal Court will not get any jurisdiction to proceed against a person at the mere sight of the details on the docket-sheet or the cause title. No Court shall act upon the sole tag, label or the badge veiled on the cause-title. No Court shall be carried away by the prints and dots on the veil of cause-title. The Court is bound to unveil the complaint, feel the texure of its contents and test, the criminality. Criminality lies not on how a person is christened at the cause-title, but how he acts, as per the contents of the complaint." 39. In B.S.K. Prasad v. M/s. Laxmi Vessels & Anr. [2005 (1) JCC (NI) 86], a learned Single Judge of the Andhra Pradesh High Court has laid down the law in the following terms: "4. As per Section 138 of the Act the drawer of a dishonoured cheque only is liable for punishment. If the person that committed the offence under Section 138 of the Act is a company the Directors and the per-son-in-charge of the affairs of the company, who look after the day to day affairs of that company, apart from the company, would also be liable for the said offence, by virtue of Section 141 of the Act. As stated earlier there is no scope for invoking Section 141 of the Act because the dishonoured cheque was not issued for and on behalf of a company. Since petitioner, admittedly, did not draw the dishonoured cheque on an account maintained by him in a bank, and since there is no scope for invoking Section 141 of the Act to rope in the petitioner as Managing Director of a company of which A-1 is the Director, merely because A-1 is said to have given the dishonoured cheque in partial or full settlement of a debt due to 1st respondent from a company of which petitioner is the Managing Director, petitioner cannot be made liable for an offence under Section 138 of the Act. The fact that 1st respondent has a right to sue petitioner also for recovery of the debt due to him is not and cannot be a ground for making the petitioner liable for an offence under Section 138 of the Act, when the dishonoured cheque was not drawn for and on behalf of that company, on an account maintained by it in a bank. Therefore the fact that A1 who drew the dishonoured cheque happens to be a Director in the company of which petitioner is the Managing Director, for the debt allegedly due to 1st respondent from the said company, is of no consequence." 40. In Girish Saxena v. Praveen Kumar Jain & Ors. [2007 (2) JCC (NI) 220], a learned Single Judge of the Delhi High Court opined: "...It is settled law that only drawer of the cheque can be prosecuted under Section 138 of the Negotiable Instruments Act on the cheque getting dishonoured. Since the petitioner was neither the drawer of the cheque nor it is alleged that he was partner or proprietor of firm when cheque got dishonoured or he was the person responsible for non payment of cheque amount, no offence under Section 138 of Negotiable Instruments Act can be made out against the petitioner." 41. I agree with the aforementioned decisions of the High Courts as having laid down the correct law.
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1[ds]10. In the present case it is yet to be decided as to whether the liability was that of the company or the appellant herself. It could be personal liability of the appellant herself for discharging her debt for which she might have misused theof the company. Even under such circumstances the offence against her could be complete is not known at this stage since no evidence has been led in this regard. Therefore, the inference that the liability was that of the company and she was merely vicariously liable would, therefore, be a premature finding. On the other hand even if she has misused theto discharge her own liability, taking advantage of her authorization to put the signatures on theof M/s.Intel Travels, she still would be liable to be proceeded against and it would be a question between herself and the company whether she has committed any offencethe company also. At this stage, however, it is not possible to say anything without any evidence having been led.No comment is required on the reported decision in B.S.K. Prasads case (cited supra) since the decision in that case turns on the evidence led in that case. That opportunity has still not been given to the prosecution in this case and it is not known uptil now as to whether the cheque issued by the accused was issued on behalf of the company or to pay off her own debts. Again the judgment does not say anywhere that the signatory to the cheque cannot alone be prosecuted.22. Appellants reliance on the last case in Girish Saxena v. Praveen Kumar JainOrs. [(2007) 2 JCC (NI) 220] is also unnecessary since in that case the accused was not a signatory to the cheque. The decision in that case would not be applicable to the present case.With the greatest of respect to the learned judges, it is difficult to agree therewith. The findings, if taken to its logical corollary lead us to an anomalous position. The trial court, in a given case although the company is not an accused, would have to arrive at a finding that it is guilty. Company, although a juristic person, is a separate entity. Directors may come and go. The company remains. It has its own reputation and standing in the market which is required to be maintained. Nobody, without any authority of law, can sentence it or find it guilty of commission of offence. Before recording a finding that it is guilty of commission of a serious offence, it may be heard. The Director who was in charge of the company at one point of time may have no interest in the company. He may not even defend the company. He need not even continue to be its Director. He may have his own score to settle in view of change in management of the company. In a situation of that nature, the company would for all intent and purport would stand convicted, although, it was not an accused and, thus, had no opportunity to defend itself.29. Any person accused of commission of an offence, whether natural or juristic, has some rights. If it is to be found guilty of commission of an offence on the basis whereof its Directors are held liable, the procedures laid down in the Code of Criminal Procedure must be followed. In determining such an issue all relevant aspects of the matter must be kept in mind. The ground realities cannot be lost sight of. Accused persons are being convicted for commission of an offence under Section 138 of the Act inter alia on drawing statutory presumptions. Various provisions contained therein lean in favour of a drawer of the cheque or the holder thereof and against the accused. Sections 20, 118(c), 139 and 140 of the Act are some such provisions. The Act is a penal statute. Unlike offences under the general law it provides for reverse burden. The onus of proof shifts to the accused if some foundational facts are established.It is, therefore, in interpreting a statute of this nature difficult to conceive that it would be legally permissible to hold a company, the prime offender, liable for commission of an offence although it does not get an opportunity to defend itself. It is against all principles of fairness and justice. It is opposed to the Rule of Law. No statute in view of our Constitutional Scheme can be construed in such a manner so as to refuse an opportunity of being heard to a person. It would not only offend a commonsense, it may be held to be unconstitutional. Such a construction, therefore, in my opinion should be avoided. In any event in a case of this nature, the construction which may be available in invoking Essential Commodities Act, Prevention of Food Adulteration Act, which affects the Society at large may not have any application when only a private individual is involved.It is one thing to say that the complaint petition proceeded against the accused persons on the premise that the company had not committed the offence but the accused did, but it is another thing to say that although the company was the principal offender, it need not be made an accused at all. I have no doubt whatsoever in our mind that prosecution of the company is a sine qua non for prosecution of the other persons who fall within the second and third categories of the candidates, viz., everyone who wasincharge and was responsible for thebusiness of the company and any other person who was a director or managing director or secretary or officer of the company with whose connivance or due to whose neglect the company had committed theall the decisions of this Court in no uncertain terms sayscompany at the first instance should be proved to be offender and, thus, only question of proof that the Director is also liable being in charge of its affairs.34. True interpretation, in my opinion, of the said provision would be that a company has to be made an accused but applying the principle "lex non cogit ad impossibilia", i.e., if for some legal snag, the company cannot be proceeded against without obtaining sanction of a court of law or other authority, the trial as against the other accused may be proceeded against if the ingredients of Sections 138 as also 141 are otherwise fulfilled. In such an event, it would not be a case where the company had not been made an accused but would be one where the company cannot be proceeded against due to existence of a legal bar. A distinction must be borne in mind between cases where a company had not been made an accused and the one where despite making it an accused, it cannot be proceeded against because of a legal bar.I agree with the aforementioned decisions of the High Courts as having laid down the correct law.
| 1 | 10,053 | 1,272 |
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responsible to, the company for the conduct of its business shall be proceeded against and punished for the said crime." 36. I may notice that in some of the decisions of this Court a liberal interpretation of notice had been advocated to suggest that a notice served upon a managing director of the company or a director of the company shall satisfy the requirements of law. [See Bilakchand Gyanchand Co. v. A. Chinnaswami JT 1999 (10) SC 236 and Rajneesh Aggarwal v. Amit J. Bhalla JT 2001 (1) SC 325 ]. 37. The said decisions proceeded on the premise that what is necessary is the knowledge of the accused that the cheque has been dishonoured so that the amount may be paid within a period of fifteen days from the date of such knowledge. 38. A learned Single Judge of the Kerala High Court in Pramod v. C.K. Velayudhan & Ors. [2006 (1) JCC (NI) 62] inter alia relying on a decision of this Court in Monaben Ketanbhai Shah v. State of Gujarat [(2004) 7 SCC 15 : 2004 Cri LJ 4249] opined: "...In other words, commission of offence under Section 138 of the Act by a juristic person is an inevitable legal pre-requisite or the condition precedent to proceed against a person referred to under Section 141 of the Act and to hold him guilty of the said offence." It was further opined: "19. Learned counsel for petitioner placed reliance upon the decision of the High Court of Andhra Pradesh in B.S.K. Prasad v. M/s. Laxmi Vessels, 2005 (1) LJ (NOC) 7 : (2004 Cri LJ 4079) (AP) in which it is held that "as per Section 138 of the Act the drawer of a dishonoured cheque only is liable for punishment". He also cited K. Seetharam Reddy v. K. Radhika Rani, (2002) 112 Comp Cas 204 (AP) in support of his arguments. It is held in the said decision that "Section 138 of the Negotiable Instruments Act, 1881, leaves no doubt that the person who has drawn the cheque on his account is alone liable in the event the cheque drawn by him is dishonoured". In the light of the above dictum also, I find that neither first accused- society nor petitioner, as secretary of the society can be proceeded against for offence under Section 138 of the Act. 20. But, despite all these, trial Court issued summons to petitioner. The mere description on the cause-title of the complaint appears to be the sole persuading factor which propelled learned Magistrate to summon petitioner. There was no other ground to proceed against the petitioner. Needless to say, a criminal Court will not get any jurisdiction to proceed against a person at the mere sight of the details on the docket-sheet or the cause title. No Court shall act upon the sole tag, label or the badge veiled on the cause-title. No Court shall be carried away by the prints and dots on the veil of cause-title. The Court is bound to unveil the complaint, feel the texure of its contents and test, the criminality. Criminality lies not on how a person is christened at the cause-title, but how he acts, as per the contents of the complaint." 39. In B.S.K. Prasad v. M/s. Laxmi Vessels & Anr. [2005 (1) JCC (NI) 86], a learned Single Judge of the Andhra Pradesh High Court has laid down the law in the following terms: "4. As per Section 138 of the Act the drawer of a dishonoured cheque only is liable for punishment. If the person that committed the offence under Section 138 of the Act is a company the Directors and the per-son-in-charge of the affairs of the company, who look after the day to day affairs of that company, apart from the company, would also be liable for the said offence, by virtue of Section 141 of the Act. As stated earlier there is no scope for invoking Section 141 of the Act because the dishonoured cheque was not issued for and on behalf of a company. Since petitioner, admittedly, did not draw the dishonoured cheque on an account maintained by him in a bank, and since there is no scope for invoking Section 141 of the Act to rope in the petitioner as Managing Director of a company of which A-1 is the Director, merely because A-1 is said to have given the dishonoured cheque in partial or full settlement of a debt due to 1st respondent from a company of which petitioner is the Managing Director, petitioner cannot be made liable for an offence under Section 138 of the Act. The fact that 1st respondent has a right to sue petitioner also for recovery of the debt due to him is not and cannot be a ground for making the petitioner liable for an offence under Section 138 of the Act, when the dishonoured cheque was not drawn for and on behalf of that company, on an account maintained by it in a bank. Therefore the fact that A1 who drew the dishonoured cheque happens to be a Director in the company of which petitioner is the Managing Director, for the debt allegedly due to 1st respondent from the said company, is of no consequence." 40. In Girish Saxena v. Praveen Kumar Jain & Ors. [2007 (2) JCC (NI) 220], a learned Single Judge of the Delhi High Court opined: "...It is settled law that only drawer of the cheque can be prosecuted under Section 138 of the Negotiable Instruments Act on the cheque getting dishonoured. Since the petitioner was neither the drawer of the cheque nor it is alleged that he was partner or proprietor of firm when cheque got dishonoured or he was the person responsible for non payment of cheque amount, no offence under Section 138 of Negotiable Instruments Act can be made out against the petitioner." 41. I agree with the aforementioned decisions of the High Courts as having laid down the correct law.
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however, it is not possible to say anything without any evidence having been led.No comment is required on the reported decision in B.S.K. Prasads case (cited supra) since the decision in that case turns on the evidence led in that case. That opportunity has still not been given to the prosecution in this case and it is not known uptil now as to whether the cheque issued by the accused was issued on behalf of the company or to pay off her own debts. Again the judgment does not say anywhere that the signatory to the cheque cannot alone be prosecuted.22. Appellants reliance on the last case in Girish Saxena v. Praveen Kumar JainOrs. [(2007) 2 JCC (NI) 220] is also unnecessary since in that case the accused was not a signatory to the cheque. The decision in that case would not be applicable to the present case.With the greatest of respect to the learned judges, it is difficult to agree therewith. The findings, if taken to its logical corollary lead us to an anomalous position. The trial court, in a given case although the company is not an accused, would have to arrive at a finding that it is guilty. Company, although a juristic person, is a separate entity. Directors may come and go. The company remains. It has its own reputation and standing in the market which is required to be maintained. Nobody, without any authority of law, can sentence it or find it guilty of commission of offence. Before recording a finding that it is guilty of commission of a serious offence, it may be heard. The Director who was in charge of the company at one point of time may have no interest in the company. He may not even defend the company. He need not even continue to be its Director. He may have his own score to settle in view of change in management of the company. In a situation of that nature, the company would for all intent and purport would stand convicted, although, it was not an accused and, thus, had no opportunity to defend itself.29. Any person accused of commission of an offence, whether natural or juristic, has some rights. If it is to be found guilty of commission of an offence on the basis whereof its Directors are held liable, the procedures laid down in the Code of Criminal Procedure must be followed. In determining such an issue all relevant aspects of the matter must be kept in mind. The ground realities cannot be lost sight of. Accused persons are being convicted for commission of an offence under Section 138 of the Act inter alia on drawing statutory presumptions. Various provisions contained therein lean in favour of a drawer of the cheque or the holder thereof and against the accused. Sections 20, 118(c), 139 and 140 of the Act are some such provisions. The Act is a penal statute. Unlike offences under the general law it provides for reverse burden. The onus of proof shifts to the accused if some foundational facts are established.It is, therefore, in interpreting a statute of this nature difficult to conceive that it would be legally permissible to hold a company, the prime offender, liable for commission of an offence although it does not get an opportunity to defend itself. It is against all principles of fairness and justice. It is opposed to the Rule of Law. No statute in view of our Constitutional Scheme can be construed in such a manner so as to refuse an opportunity of being heard to a person. It would not only offend a commonsense, it may be held to be unconstitutional. Such a construction, therefore, in my opinion should be avoided. In any event in a case of this nature, the construction which may be available in invoking Essential Commodities Act, Prevention of Food Adulteration Act, which affects the Society at large may not have any application when only a private individual is involved.It is one thing to say that the complaint petition proceeded against the accused persons on the premise that the company had not committed the offence but the accused did, but it is another thing to say that although the company was the principal offender, it need not be made an accused at all. I have no doubt whatsoever in our mind that prosecution of the company is a sine qua non for prosecution of the other persons who fall within the second and third categories of the candidates, viz., everyone who wasincharge and was responsible for thebusiness of the company and any other person who was a director or managing director or secretary or officer of the company with whose connivance or due to whose neglect the company had committed theall the decisions of this Court in no uncertain terms sayscompany at the first instance should be proved to be offender and, thus, only question of proof that the Director is also liable being in charge of its affairs.34. True interpretation, in my opinion, of the said provision would be that a company has to be made an accused but applying the principle "lex non cogit ad impossibilia", i.e., if for some legal snag, the company cannot be proceeded against without obtaining sanction of a court of law or other authority, the trial as against the other accused may be proceeded against if the ingredients of Sections 138 as also 141 are otherwise fulfilled. In such an event, it would not be a case where the company had not been made an accused but would be one where the company cannot be proceeded against due to existence of a legal bar. A distinction must be borne in mind between cases where a company had not been made an accused and the one where despite making it an accused, it cannot be proceeded against because of a legal bar.I agree with the aforementioned decisions of the High Courts as having laid down the correct law.
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Joint Secretary To The Government Of India & Ors Vs. Khillu Ram And Anr
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the shop as allottees respectively of 2/3 and 1/3 shares therein. Aggrieved by the order of the Managing officer, the first respondent Khillu Ram preferred an appeal to the Settlement officer, Jullundur, who by his order dated February 12, 1962 set aside the order of the Managing officer and remanded the case for a fresh decision under rule 30 of the Rules. Rule 30 is in these terms:" Payment of compensation where an acquired evacuee property which is an allotable property is in occupation of more than one person. If more persons than one holding verified claims are in occupation of any acquired evacuee property which is an allotable property, the property shall be offered to the person whose gross compensation is the biggest and the other persons may be allotted such other acquired evacuee property which is allotable as may be available:"3. This rule has a proviso and an explanation none of which is relevant for the present purpose. After remand the case was transferred to the Assistant Settlement officer who found that the gross compensation payable to the first respondent was higher than that of the rival claimant, Teju Mal and in terms of rule 30 allotted the entire shop to the first respondent by his order dated November 27, 1962. A revision petition against this order made by Teju Mal was dismissed by the Deputy Chief Settlement Officer on September 5, 1963. In the meantime, as stated already, rule 30 had be en abrogated with effect from August 13, 1963. Teju Mal then moved the Central Government under sec. 33 of the Act. Teju Mals application under sec. 33 was heard on February 25, 1964. The effect of deletion of rule 30 was that the properties which were in the occupation of more than one person were to be put to sale. The Joint Secretary to the Government of India who heard the application under sec. 33 held that the case should be governed by the Rules as amended in 1963 excluding rule 30, and accordingly by his order dated February 26, 1964 he set aside the order allotting the shop to the first respondent Khillu Ram and directed the property in question to be put to sale. The first respondent filed a writ petition in the Punjab High Court for quashing the order passed under sec. 33. The Punjab High Court held that the subsequent deletion of rule 30 did not affect the existing rights of the first respondent and quashed the order of the Central Government made under sec. 33. The correctness of this ` order is challenged in the appeal before us which has been preferred by the Union of India and several other authorities concerned with the administration of the Displaced Persons (Compensation and Rehabilitation) Act, 1954.4. The only submission made by Mr. Sanghi appearing for the appellants is that rule 30 was a rule of procedure and its deletion in 1963 affected only the mode of proceeding by which the rival claims of Khillu Ram and Teju Mal was to be decided. It was argued that - amendment of the Rules in 1963 deleting rule 30 being procedural in character would affect the proceeding between the two respondents then pending, and their rights, it was submitted, should therefore be decided on the footing as if Rule 30 had never been in force. We are unable to accept this submission. The Act provides for the payment of compensation and rehabilitation grants to displaced persons and matters connected therewith. Under the Act a displaced person has a right to get compensation in the form and manner prescribed by the Act and the Rules framed there under. Rule 30 is in Chapter V of the Rules which deals with payment of compensation by transfer of acquired Evacuee Properties. Though the shop in question is a government built property and not an acquired evacuee property, rule 43 in Chapter VI of the Rules which provides for payment of compensation by transfer of government built property says that the "pro visions of rules 25 to 34 shall, so far as may be, apply to the transfer of any Government built property or Government plot under this Chapter". Rule 30 prescribes that where the property is in the occupation of more persons than one, it shall be offered to the person whose gross compensation is the highest. Clearly rule 30 deals not with the form of procedure but with a substantive right conferred by the Act on displaced persons. Mr. Sanghi described this rule as only a mode or manner of payment of compensation. This may be so, but the form and manner in which compensation is payable is also part of the right to get compensation. Rule 30 is not an instrument or machinery for asserting the right conferred by the Act; it does not regulate the procedure for settlement of disputes concerning that right. Therefore, the deletion of the rule in 1963 cannot affect pending actions. The rights of Khillu Ram and Teju Mal must be governed by rule 30 which was in force in 1959 when the dispute arose and was decided by the Managing officer. A full Bench of the Punjab and Haryana High Court in Pt. Dev Raj v. Union of India &ors.(A. I. R. 1974 Pun. 65) considering the same question which arises for determination in this appeal, held that "a displaced person has a right to the determination of his claim for compensation and its satisfaction in the prescribed manner and this is a substantive right", that so far as rule 30 is concerned "the right which a displaced person claims under this rule .. cannot be adversely affected or taken away unless it is expressly stated in the amending provision, or the language of the Act This, in our opinion, is a correct statement of the law. Neither by express words nor by implication the amendment of the Rules in 1963 deleting rule 30 has been made retrospective in operation.
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0[ds]We are unable to accept this submission. The Act provides for the payment of compensation and rehabilitation grants to displaced persons and matters connected therewith. Under the Act a displaced person has a right to get compensation in the form and manner prescribed by the Act and the Rules framed there under. Rule 30 is in Chapter V of the Rules which deals with payment of compensation by transfer of acquired Evacuee Properties. Though the shop in question is a government built property and not an acquired evacuee property, rule 43 in Chapter VI of the Rules which provides for payment of compensation by transfer of government built property says that the "pro visions of rules 25 to 34 shall, so far as may be, apply to the transfer of any Government built property or Government plot under this Chapter". Rule 30 prescribes that where the property is in the occupation of more persons than one, it shall be offered to the person whose gross compensation is the highest. Clearly rule 30 deals not with the form of procedure but with a substantive right conferred by the Act on displaced persons. Mr.Sanghi described this rule as only a mode or manner of payment of compensation.This may be so, but the form and manner in which compensation is payable is also part of the right to get compensation. Rule 30 is not an instrument or machinery for asserting the right conferred by the Act; it does not regulate the procedure for settlement of disputes concerning that right. Therefore, the deletion of the rule in 1963 cannot affect pending actions. The rights of Khillu Ram and Teju Mal must be governed by rule 30 which was in force in 1959 when the dispute arose and was decided by the Managing officer. A full Bench of the Punjab and Haryana High Court in Pt. Dev Raj v. Union of India &ors.(A. I. R. 1974 Pun. 65) considering the same question which arises for determination in this appeal, held that "a displaced person has a right to the determination of his claim for compensation and its satisfaction in the prescribed manner and this is a substantive right", that so far as rule 30 is concerned "the right which a displaced person claims under this rulecannot be adversely affected or taken away unless it is expressly stated in the amending provision, or the language of theThis, in our opinion, is a correct statement of the law. Neither by express words nor by implication the amendment of the Rules in 1963 deleting rule 30 has been made retrospective in operation.
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the shop as allottees respectively of 2/3 and 1/3 shares therein. Aggrieved by the order of the Managing officer, the first respondent Khillu Ram preferred an appeal to the Settlement officer, Jullundur, who by his order dated February 12, 1962 set aside the order of the Managing officer and remanded the case for a fresh decision under rule 30 of the Rules. Rule 30 is in these terms:" Payment of compensation where an acquired evacuee property which is an allotable property is in occupation of more than one person. If more persons than one holding verified claims are in occupation of any acquired evacuee property which is an allotable property, the property shall be offered to the person whose gross compensation is the biggest and the other persons may be allotted such other acquired evacuee property which is allotable as may be available:"3. This rule has a proviso and an explanation none of which is relevant for the present purpose. After remand the case was transferred to the Assistant Settlement officer who found that the gross compensation payable to the first respondent was higher than that of the rival claimant, Teju Mal and in terms of rule 30 allotted the entire shop to the first respondent by his order dated November 27, 1962. A revision petition against this order made by Teju Mal was dismissed by the Deputy Chief Settlement Officer on September 5, 1963. In the meantime, as stated already, rule 30 had be en abrogated with effect from August 13, 1963. Teju Mal then moved the Central Government under sec. 33 of the Act. Teju Mals application under sec. 33 was heard on February 25, 1964. The effect of deletion of rule 30 was that the properties which were in the occupation of more than one person were to be put to sale. The Joint Secretary to the Government of India who heard the application under sec. 33 held that the case should be governed by the Rules as amended in 1963 excluding rule 30, and accordingly by his order dated February 26, 1964 he set aside the order allotting the shop to the first respondent Khillu Ram and directed the property in question to be put to sale. The first respondent filed a writ petition in the Punjab High Court for quashing the order passed under sec. 33. The Punjab High Court held that the subsequent deletion of rule 30 did not affect the existing rights of the first respondent and quashed the order of the Central Government made under sec. 33. The correctness of this ` order is challenged in the appeal before us which has been preferred by the Union of India and several other authorities concerned with the administration of the Displaced Persons (Compensation and Rehabilitation) Act, 1954.4. The only submission made by Mr. Sanghi appearing for the appellants is that rule 30 was a rule of procedure and its deletion in 1963 affected only the mode of proceeding by which the rival claims of Khillu Ram and Teju Mal was to be decided. It was argued that - amendment of the Rules in 1963 deleting rule 30 being procedural in character would affect the proceeding between the two respondents then pending, and their rights, it was submitted, should therefore be decided on the footing as if Rule 30 had never been in force. We are unable to accept this submission. The Act provides for the payment of compensation and rehabilitation grants to displaced persons and matters connected therewith. Under the Act a displaced person has a right to get compensation in the form and manner prescribed by the Act and the Rules framed there under. Rule 30 is in Chapter V of the Rules which deals with payment of compensation by transfer of acquired Evacuee Properties. Though the shop in question is a government built property and not an acquired evacuee property, rule 43 in Chapter VI of the Rules which provides for payment of compensation by transfer of government built property says that the "pro visions of rules 25 to 34 shall, so far as may be, apply to the transfer of any Government built property or Government plot under this Chapter". Rule 30 prescribes that where the property is in the occupation of more persons than one, it shall be offered to the person whose gross compensation is the highest. Clearly rule 30 deals not with the form of procedure but with a substantive right conferred by the Act on displaced persons. Mr. Sanghi described this rule as only a mode or manner of payment of compensation. This may be so, but the form and manner in which compensation is payable is also part of the right to get compensation. Rule 30 is not an instrument or machinery for asserting the right conferred by the Act; it does not regulate the procedure for settlement of disputes concerning that right. Therefore, the deletion of the rule in 1963 cannot affect pending actions. The rights of Khillu Ram and Teju Mal must be governed by rule 30 which was in force in 1959 when the dispute arose and was decided by the Managing officer. A full Bench of the Punjab and Haryana High Court in Pt. Dev Raj v. Union of India &ors.(A. I. R. 1974 Pun. 65) considering the same question which arises for determination in this appeal, held that "a displaced person has a right to the determination of his claim for compensation and its satisfaction in the prescribed manner and this is a substantive right", that so far as rule 30 is concerned "the right which a displaced person claims under this rule .. cannot be adversely affected or taken away unless it is expressly stated in the amending provision, or the language of the Act This, in our opinion, is a correct statement of the law. Neither by express words nor by implication the amendment of the Rules in 1963 deleting rule 30 has been made retrospective in operation.
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We are unable to accept this submission. The Act provides for the payment of compensation and rehabilitation grants to displaced persons and matters connected therewith. Under the Act a displaced person has a right to get compensation in the form and manner prescribed by the Act and the Rules framed there under. Rule 30 is in Chapter V of the Rules which deals with payment of compensation by transfer of acquired Evacuee Properties. Though the shop in question is a government built property and not an acquired evacuee property, rule 43 in Chapter VI of the Rules which provides for payment of compensation by transfer of government built property says that the "pro visions of rules 25 to 34 shall, so far as may be, apply to the transfer of any Government built property or Government plot under this Chapter". Rule 30 prescribes that where the property is in the occupation of more persons than one, it shall be offered to the person whose gross compensation is the highest. Clearly rule 30 deals not with the form of procedure but with a substantive right conferred by the Act on displaced persons. Mr.Sanghi described this rule as only a mode or manner of payment of compensation.This may be so, but the form and manner in which compensation is payable is also part of the right to get compensation. Rule 30 is not an instrument or machinery for asserting the right conferred by the Act; it does not regulate the procedure for settlement of disputes concerning that right. Therefore, the deletion of the rule in 1963 cannot affect pending actions. The rights of Khillu Ram and Teju Mal must be governed by rule 30 which was in force in 1959 when the dispute arose and was decided by the Managing officer. A full Bench of the Punjab and Haryana High Court in Pt. Dev Raj v. Union of India &ors.(A. I. R. 1974 Pun. 65) considering the same question which arises for determination in this appeal, held that "a displaced person has a right to the determination of his claim for compensation and its satisfaction in the prescribed manner and this is a substantive right", that so far as rule 30 is concerned "the right which a displaced person claims under this rulecannot be adversely affected or taken away unless it is expressly stated in the amending provision, or the language of theThis, in our opinion, is a correct statement of the law. Neither by express words nor by implication the amendment of the Rules in 1963 deleting rule 30 has been made retrospective in operation.
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The Commissioner Of Income-Tax, Madras Vs. Sri Meenakshi Mills Ltd. & Ors
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the money should be brought to British India after it was taken by the borrower outside the taxable territory. The appellate Tribunal has pointed out that the assessee-companies had a preponderant, if not the whole, voice in the creation, running and management of the Bank and that Pudukottai was neither a cotton producing area nor had it a market for cotton and except that it was a non-taxable territory there was nothing else to recommend the carrying on of the cotton spinning or weaving business there. The Tribunal further remarked that having regard to the special position of Thyagaraja Chettiar and the balance sheets of the Bank and lack of investments in Pudukottai, it was reasonable to conclude that the Bank itself was started at Madurai and a branch was opened at Pudukottai only with a view to helping the financial operations of Thyagaraja Chettiar and the mills in which he was vitally interested. The Tribunal found that Pudukottai branch of the Bank had transmitted funds deposited by the assessee-companies for enabling the Madurai branch to advance loans at interest to the assessee-companies and the transmission of the funds was made with the knowledge of the assessee-companies who were the major shareholders of the Bank.In the context of these facts it must be held that the entire transactions formed part of a basic arrangement or scheme between the creditor and the debtor that the money should be brought into British India after it was taken by the borrower outside the taxable territory. We are accordingly of the opinion that the principle laid down in Wadias case, 17 ITR 63: (AIR 1949 FC 18) is satisfied in this case and that the Income-tax authorities were right in holding that the entire interest earned on fixed deposits was taxable.8. In the course of argument Mr. Venkataraman contended that even if Thyagaraja Chettiar, a Director of the assessee-companies knew in his capacity as Director of the Madurai Bank that money placed in fixed deposit by the assessee-companies would be transferred to the taxable territory, that knowledge cannot be imputed to the assessee-companies and so it cannot be said that the transfer was part of an integral arrangement of the loan transaction. In support of this argument learned Counsel referred to the decision of the Court of Appeal in David Payne and Co. Ltd. In re, Young v. David Payne and Co. Ltd., (1904) 2 Ch 608. We are unable to accept the argument of the respondents as correct. The decision in David Payne and Cos case supra, has no bearing on the question presented for determination in the present case. In David Payne and Co.s case, 1904-2 Ch. 608 supra, the question at issue related to the powers and duties of Directors and it was held that because the same person is a common director of two companies, the one company has not necessarily notice of everything that is within the knowledge of the common director, which knowledge he has acquired as director of the other company. In the present case the question at issue is entirely different. The appellate Tribunal has upon examination of the evidence, found that the transference of funds from Pudukottai to Madurai was made as part of the basic arrangement between the Bank and the assessee-companies and that Thyagaraja Chettiar who was the moving figure both in the Bank and in each of the assessee-companies had knowledge of this arrangement. It is well established that in a matter of this description the Income-tax authorities are entitled to pierce the veil of corporate entity and to look at the reality of the transaction. It is true that from the Juristic point of view the company is a legal personality entirely distinct from its members and the company is capable of enjoying rights and being subjected to duties which are not the same as those enjoyed or borne by its members. But in certain exceptional cases the Court is entitled to lift the veil of corporate entity and to pay regard to the economic realities behind the legal facade. For example, the Court has power to disregard the corporate entity if it is used for tax evasion or to circumvent tax obligation. For instance, in Apthorpe v. Peter Schoenhofen Brewing Co., Ltd., (1899) 4 Tax Cas 41 the Income-tax Commissioners had found as a fact that all the property of the New York company, except its land, had been transferred to an English company, and that the New York company had only been kept in being to hold the land, since aliens were not allowed to do so under New York law. All but three of the New York companys shares were held by the English company, and, as the Commissioners also found, if the business was technically that of the New York company, the latter was merely the agent of the English company. In the light of these findings the Court of Appeal, despite the argument based on Salomons case, 1897 AC 22 held that the New York business was that of the English company which was liable for English income-tax accordingly. In another case - Firestone Tyre and Rubber Co. v. Llewellin. 1957-1 WLR 464-an American company had an arrangement with its distributors on the Continent of Europe whereby they obtained supplies from the English manufacturers, its wholly owned subsidiary. The English company credited the American with the price received after deducting the costs plus 5 per cent. It was conceded that the subsidiary was a separate legal entity and not a mere emanation of the American parent, and that it was selling its own goods as principal and not its parents goods as agent. Nevertheless, these sales were a means whereby the American company carried on its European business, and it was held that the substance of the arrangement was that the American company traded in England through the agency of its subsidiary. We, therefore reject the argument of Mr. Venkataraman on this aspect of the case.
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1[ds]5. On behalf of the appellant Mr. Sen submitted at the outset that the High Court was not legally justified in interfering with the findings of fact reached by the appellate Tribunal and in concluding that there was no arrangement or scheme between the lender and the borrower for the transference of funds from Pudukottai to Madurai.In our opinion, there is justification for the argument put forward on behalf of the appellant and the High Court erred in law in interfering with the finding of the appellate Tribunal in this case.Having examined the findings of the appellate Tribunal in the present case we are satisfied that the test prescribed by the Federa1 Court in Wadias case, is fulfilled and the appellate Tribunal was right in its conclusion that there was a basic arrangement or scheme between theand the Bank that the money should be brought to British India after it was taken by the borrower outside the taxable territory. The appellate Tribunal has pointed out that thehad a preponderant, if not the whole, voice in the creation, running and management of the Bank and that Pudukottai was neither a cotton producing area nor had it a market for cotton and except that it was aterritory there was nothing else to recommend the carrying on of the cotton spinning or weaving business there. The Tribunal further remarked that having regard to the special position of Thyagaraja Chettiar and the balance sheets of the Bank and lack of investments in Pudukottai, it was reasonable to conclude that the Bank itself was started at Madurai and a branch was opened at Pudukottai only with a view to helping the financial operations of Thyagaraja Chettiar and the mills in which he was vitally interested. The Tribunal found that Pudukottai branch of the Bank had transmitted funds deposited by thefor enabling the Madurai branch to advance loans at interest to theand the transmission of the funds was made with the knowledge of thewho were the majorshareholders of thethe context of these facts it must be held that the entire transactions formed part of a basic arrangement or scheme between the creditor and the debtor that the money should be brought into British India after it was taken by the borrower outside the taxable territory. We are accordingly of the opinion that the principle laid down in Wadias case, 17 ITR 63: (AIR 1949 FC 18) is satisfied in this case and that theauthorities were right in holding that the entire interest earned on fixed deposits wasthe present case the question at issue is entirely different. The appellate Tribunal has upon examination of the evidence, found that the transference of funds from Pudukottai to Madurai was made as part of the basic arrangement between the Bank and theand that Thyagaraja Chettiar who was the moving figure both in the Bank and in each of thehad knowledge of this arrangement. It is well established that in a matter of this description theauthorities are entitled to pierce the veil of corporate entity and to look at the reality of the transaction. It is true that from the Juristic point of view the company is a legal personality entirely distinct from its members and the company is capable of enjoying rights and being subjected to duties which are not the same as those enjoyed or borne by its members. But in certain exceptional cases the Court is entitled to lift the veil of corporate entity and to pay regard to the economic realities behind the legal facade. For example, the Court has power to disregard the corporate entity if it is used for tax evasion or to circumvent tax obligation. For instance, in Apthorpe v. Peter Schoenhofen Brewing Co., Ltd., (1899) 4 Tax Cas 41 theCommissioners had found as a fact that all the property of the New York company, except its land, had been transferred to an English company, and that the New York company had only been kept in being to hold the land, since aliens were not allowed to do so under New York law. All but three of the New York companys shares were held by the English company, and, as the Commissioners also found, if the business was technically that of the New York company, the latter was merely the agent of the English company. In the light of these findings the Court of Appeal, despite the argument based on Salomons case, 1897 AC 22 held that the New York business was that of the English company which was liable for Englishaccordingly. In another caseFirestone Tyre and Rubber Co. v. Llewellin.an American company had an arrangement with its distributors on the Continent of Europe whereby they obtained supplies from the English manufacturers, its wholly owned subsidiary. The English company credited the American with the price received after deducting the costs plus 5 per cent. It was conceded that the subsidiary was a separate legal entity and not a mere emanation of the American parent, and that it was selling its own goods as principal and not its parents goods as agent. Nevertheless, these sales were a means whereby the American company carried on its European business, and it was held that the substance of the arrangement was that the American company traded in England through the agency of its subsidiary. We, therefore reject the argument of Mr. Venkataraman on this aspect of the case.
| 1 | 3,072 | 955 |
### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
the money should be brought to British India after it was taken by the borrower outside the taxable territory. The appellate Tribunal has pointed out that the assessee-companies had a preponderant, if not the whole, voice in the creation, running and management of the Bank and that Pudukottai was neither a cotton producing area nor had it a market for cotton and except that it was a non-taxable territory there was nothing else to recommend the carrying on of the cotton spinning or weaving business there. The Tribunal further remarked that having regard to the special position of Thyagaraja Chettiar and the balance sheets of the Bank and lack of investments in Pudukottai, it was reasonable to conclude that the Bank itself was started at Madurai and a branch was opened at Pudukottai only with a view to helping the financial operations of Thyagaraja Chettiar and the mills in which he was vitally interested. The Tribunal found that Pudukottai branch of the Bank had transmitted funds deposited by the assessee-companies for enabling the Madurai branch to advance loans at interest to the assessee-companies and the transmission of the funds was made with the knowledge of the assessee-companies who were the major shareholders of the Bank.In the context of these facts it must be held that the entire transactions formed part of a basic arrangement or scheme between the creditor and the debtor that the money should be brought into British India after it was taken by the borrower outside the taxable territory. We are accordingly of the opinion that the principle laid down in Wadias case, 17 ITR 63: (AIR 1949 FC 18) is satisfied in this case and that the Income-tax authorities were right in holding that the entire interest earned on fixed deposits was taxable.8. In the course of argument Mr. Venkataraman contended that even if Thyagaraja Chettiar, a Director of the assessee-companies knew in his capacity as Director of the Madurai Bank that money placed in fixed deposit by the assessee-companies would be transferred to the taxable territory, that knowledge cannot be imputed to the assessee-companies and so it cannot be said that the transfer was part of an integral arrangement of the loan transaction. In support of this argument learned Counsel referred to the decision of the Court of Appeal in David Payne and Co. Ltd. In re, Young v. David Payne and Co. Ltd., (1904) 2 Ch 608. We are unable to accept the argument of the respondents as correct. The decision in David Payne and Cos case supra, has no bearing on the question presented for determination in the present case. In David Payne and Co.s case, 1904-2 Ch. 608 supra, the question at issue related to the powers and duties of Directors and it was held that because the same person is a common director of two companies, the one company has not necessarily notice of everything that is within the knowledge of the common director, which knowledge he has acquired as director of the other company. In the present case the question at issue is entirely different. The appellate Tribunal has upon examination of the evidence, found that the transference of funds from Pudukottai to Madurai was made as part of the basic arrangement between the Bank and the assessee-companies and that Thyagaraja Chettiar who was the moving figure both in the Bank and in each of the assessee-companies had knowledge of this arrangement. It is well established that in a matter of this description the Income-tax authorities are entitled to pierce the veil of corporate entity and to look at the reality of the transaction. It is true that from the Juristic point of view the company is a legal personality entirely distinct from its members and the company is capable of enjoying rights and being subjected to duties which are not the same as those enjoyed or borne by its members. But in certain exceptional cases the Court is entitled to lift the veil of corporate entity and to pay regard to the economic realities behind the legal facade. For example, the Court has power to disregard the corporate entity if it is used for tax evasion or to circumvent tax obligation. For instance, in Apthorpe v. Peter Schoenhofen Brewing Co., Ltd., (1899) 4 Tax Cas 41 the Income-tax Commissioners had found as a fact that all the property of the New York company, except its land, had been transferred to an English company, and that the New York company had only been kept in being to hold the land, since aliens were not allowed to do so under New York law. All but three of the New York companys shares were held by the English company, and, as the Commissioners also found, if the business was technically that of the New York company, the latter was merely the agent of the English company. In the light of these findings the Court of Appeal, despite the argument based on Salomons case, 1897 AC 22 held that the New York business was that of the English company which was liable for English income-tax accordingly. In another case - Firestone Tyre and Rubber Co. v. Llewellin. 1957-1 WLR 464-an American company had an arrangement with its distributors on the Continent of Europe whereby they obtained supplies from the English manufacturers, its wholly owned subsidiary. The English company credited the American with the price received after deducting the costs plus 5 per cent. It was conceded that the subsidiary was a separate legal entity and not a mere emanation of the American parent, and that it was selling its own goods as principal and not its parents goods as agent. Nevertheless, these sales were a means whereby the American company carried on its European business, and it was held that the substance of the arrangement was that the American company traded in England through the agency of its subsidiary. We, therefore reject the argument of Mr. Venkataraman on this aspect of the case.
### Response:
1
### Explanation:
5. On behalf of the appellant Mr. Sen submitted at the outset that the High Court was not legally justified in interfering with the findings of fact reached by the appellate Tribunal and in concluding that there was no arrangement or scheme between the lender and the borrower for the transference of funds from Pudukottai to Madurai.In our opinion, there is justification for the argument put forward on behalf of the appellant and the High Court erred in law in interfering with the finding of the appellate Tribunal in this case.Having examined the findings of the appellate Tribunal in the present case we are satisfied that the test prescribed by the Federa1 Court in Wadias case, is fulfilled and the appellate Tribunal was right in its conclusion that there was a basic arrangement or scheme between theand the Bank that the money should be brought to British India after it was taken by the borrower outside the taxable territory. The appellate Tribunal has pointed out that thehad a preponderant, if not the whole, voice in the creation, running and management of the Bank and that Pudukottai was neither a cotton producing area nor had it a market for cotton and except that it was aterritory there was nothing else to recommend the carrying on of the cotton spinning or weaving business there. The Tribunal further remarked that having regard to the special position of Thyagaraja Chettiar and the balance sheets of the Bank and lack of investments in Pudukottai, it was reasonable to conclude that the Bank itself was started at Madurai and a branch was opened at Pudukottai only with a view to helping the financial operations of Thyagaraja Chettiar and the mills in which he was vitally interested. The Tribunal found that Pudukottai branch of the Bank had transmitted funds deposited by thefor enabling the Madurai branch to advance loans at interest to theand the transmission of the funds was made with the knowledge of thewho were the majorshareholders of thethe context of these facts it must be held that the entire transactions formed part of a basic arrangement or scheme between the creditor and the debtor that the money should be brought into British India after it was taken by the borrower outside the taxable territory. We are accordingly of the opinion that the principle laid down in Wadias case, 17 ITR 63: (AIR 1949 FC 18) is satisfied in this case and that theauthorities were right in holding that the entire interest earned on fixed deposits wasthe present case the question at issue is entirely different. The appellate Tribunal has upon examination of the evidence, found that the transference of funds from Pudukottai to Madurai was made as part of the basic arrangement between the Bank and theand that Thyagaraja Chettiar who was the moving figure both in the Bank and in each of thehad knowledge of this arrangement. It is well established that in a matter of this description theauthorities are entitled to pierce the veil of corporate entity and to look at the reality of the transaction. It is true that from the Juristic point of view the company is a legal personality entirely distinct from its members and the company is capable of enjoying rights and being subjected to duties which are not the same as those enjoyed or borne by its members. But in certain exceptional cases the Court is entitled to lift the veil of corporate entity and to pay regard to the economic realities behind the legal facade. For example, the Court has power to disregard the corporate entity if it is used for tax evasion or to circumvent tax obligation. For instance, in Apthorpe v. Peter Schoenhofen Brewing Co., Ltd., (1899) 4 Tax Cas 41 theCommissioners had found as a fact that all the property of the New York company, except its land, had been transferred to an English company, and that the New York company had only been kept in being to hold the land, since aliens were not allowed to do so under New York law. All but three of the New York companys shares were held by the English company, and, as the Commissioners also found, if the business was technically that of the New York company, the latter was merely the agent of the English company. In the light of these findings the Court of Appeal, despite the argument based on Salomons case, 1897 AC 22 held that the New York business was that of the English company which was liable for Englishaccordingly. In another caseFirestone Tyre and Rubber Co. v. Llewellin.an American company had an arrangement with its distributors on the Continent of Europe whereby they obtained supplies from the English manufacturers, its wholly owned subsidiary. The English company credited the American with the price received after deducting the costs plus 5 per cent. It was conceded that the subsidiary was a separate legal entity and not a mere emanation of the American parent, and that it was selling its own goods as principal and not its parents goods as agent. Nevertheless, these sales were a means whereby the American company carried on its European business, and it was held that the substance of the arrangement was that the American company traded in England through the agency of its subsidiary. We, therefore reject the argument of Mr. Venkataraman on this aspect of the case.
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Standard Drum & Barrel Manufacturers Company, Bombay Vs. Regional Director, Employees State Insurance Corporation., Bombay
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as it may think fit to impose. Therefore, it cannot be said that the orders passed as to the damages are beyond the scope of the section. Further it cannot be forgotten that the E.S.I. scheme is a piece of social security scheme. Social security is one of the fundamental needs of the day. It is a security which a Welfare State or Society furnishes through appropriate organisation or legislation against certain risks which an individual of small means cannot effectively provide by his own ability or foresight such a social insurance scheme provides benefits to the persons with small earnings as of right and not by way of charity. The fund for the social security scheme is raised from the combined contributory efforts of Insurer, Employer and the State. There is basic difference in the nature of benefits received under the Employees State Insurance Act and the Employees Provident Fund Act. Provident Fund is paid to the Industrial Worker after he retires or to his dependents in case of his early death. In case of contributory provident fund, both worker and employer are to contribute but the amount is paid to the workman concerned after his retirement or to his dependeants in case of his premature death. It has a co-relation with the contribution made by the worker. Such is not the case, with the Insurance scheme. Contribution raised under the Act goes to the common pool for providing benefits to the workmen in case of sickness, maternity and employment injury etc. It is not necessary to deal with the object of the legislation in any further details in view of the decision of the Supreme Court in A.I.R. 1978 S.C. 1478 (Royal Talkies, Hyderabad and others v. Employees State Insurance Corporation through its Regional Director, Hill Fort, Road Hyderabad. This is what the Supreme Court has observed in para 9 of the said judgment. "9. A consepectus of the statute, to the extent relevant, is necessary to appreciate the controversy at the Bar. The statutory personality and the social mission of the Act once projected, the resolution of the conflict of interpretation raised in this case is simple. Although, technically the Act is a pre-constitution one, it is a post-independence measure and shares the passion of the Constitution for social justice. Articles 38, 39, 41, 42, 43 and 43-A of the Constitution show concern for workers and their welfare. Since independence, this legislative motivation has found expression in many enactments. We are concerned with one such law designed to confer benefits on this weaker segment in situations of distress as is apparent from the preamble. The machinery for State Insurance is set up in the shape of a Corporation and subsidiary agencies. All employees in factories or establishments are sought to be insured against sickness and allied disabilities, but the funding, to implement the policy of insurance, is by contributions from the employer and the employee. In view of the complexities of modern business organisation the principal employer is made primarily liable for payment of contribution "in respect of every employee, whether directly employed by him or by or through an immediate employer". Of course, where the employee is not directly employed by him but through another immediate employer, the principal employer is empowered to recoup the contribution paid by him on behalf of the immediate employer (section 41). There is an inspectorate to superwise the determination and levy of the contributions. There is a chapter prescribing penalties; there is an adjudicating machinery and there are other policing processes for the smooth working of the beginning project envisaged by the Act. The benefits belong to the employees and are intended to embrace as extensive a circle as is feasible. In short, the social orientation, protective purpose and human coverage of the Act are important considerations in the statutory construction, more weighty than more legamacity or gramatical nicety. 8. It cannot also be forgotton that the regulations framed under the Act make specific provisions for the contribution of amount by the employer as well as the workmen. It prescribe time for payment of the amount and also prescribed procedure as to how the amount is to be paid. In the present case the employees contribution was already deducted. Therefore, in substance the said amount was entrusted to the employer by the employees for the purpose of paying contribution. This is clear from section 40(4) of the Act. By newly added Explanation II, to section 405 of the Indian Penal Code, this position is further clarified. Said Explanation reads as under: "A person, being an employer, who deducts the employees contribution from the wages payable to the employee for credit to the Employees State Insurance Fund held and administered by the Employees State Insurance Corporation established under the Employees State Insurance Act, (34 of 1948), shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid." It was rightly contended by Shri Jaykar, that in the present case the appellant-company is not only an habitual defaulter bus is practically treating the E.S.I. scheme, as self-financing scheme for its business. We find much substance in this contention of Shri Jaykar. In the present case it is practically an admitted position that in all 23 defaults were committed by the appellant company and it is in the case of last show cause notice that the maximum penalty is imposed. There is Corporation was quite justified in described that the appellant-company was a chronoic or a habitual defaulter and hence the maximum penalty prescribed by law was called for. Therefore, we do not find this is a case wherein any interference is called for with the discretion exercised by the Regional Director of E.S.I.
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0[ds]If all those three orders are read together it is quite clear that the Regional Director of the E.S.I. considered the explanation offered by thein its proper context. In case of two notices he reduced the claim for damages. So far as the last show cause notice is concerned, in view of the considerable delay in payment of contribution and the fact that it related to the 21st to 23rd defaults, he thought that there is no scope for any reduction in the damages. Therefore, it cannot be said that the orders passed by the Regional Director of E.S.I. are not speaking orders. The orders clearly indicate application of mind to the explanation offered by theregarding the delay in payment of contribution and, thereafter, a decision is taken by the Regional Director of the E.S.I. imposing penalty or damages. The order of the Regional Director of E.S.I. under sectioncannot be equated with the judgment of the Court containing detailed reasons. If the order passed indicates application of mind to all the relevant circumstances, and is not arbitrary then only because it is not like a judgment of the Court it cannot be held that it is not a speaking order. Therefore, in our view it cannot be said that the orders are vitiated either forof mind or that they are not speaking orders. As already observed the orders passed are speaking orders and give all the necessary particulars. Therefore, we do not find any substance in this contention of Shrithe present case it is practically an admitted position that in all 23 defaults were committed by the appellant company and it is in the case of last show cause notice that the maximum penalty is imposed. There is Corporation was quite justified in described that thewas a chronoic or a habitual defaulter and hence the maximum penalty prescribed by law was called for. Therefore, we do not find this is a case wherein any interference is called for with the discretion exercised by the Regional Director of E.S.I.
| 0 | 3,140 | 370 |
### 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:
as it may think fit to impose. Therefore, it cannot be said that the orders passed as to the damages are beyond the scope of the section. Further it cannot be forgotten that the E.S.I. scheme is a piece of social security scheme. Social security is one of the fundamental needs of the day. It is a security which a Welfare State or Society furnishes through appropriate organisation or legislation against certain risks which an individual of small means cannot effectively provide by his own ability or foresight such a social insurance scheme provides benefits to the persons with small earnings as of right and not by way of charity. The fund for the social security scheme is raised from the combined contributory efforts of Insurer, Employer and the State. There is basic difference in the nature of benefits received under the Employees State Insurance Act and the Employees Provident Fund Act. Provident Fund is paid to the Industrial Worker after he retires or to his dependents in case of his early death. In case of contributory provident fund, both worker and employer are to contribute but the amount is paid to the workman concerned after his retirement or to his dependeants in case of his premature death. It has a co-relation with the contribution made by the worker. Such is not the case, with the Insurance scheme. Contribution raised under the Act goes to the common pool for providing benefits to the workmen in case of sickness, maternity and employment injury etc. It is not necessary to deal with the object of the legislation in any further details in view of the decision of the Supreme Court in A.I.R. 1978 S.C. 1478 (Royal Talkies, Hyderabad and others v. Employees State Insurance Corporation through its Regional Director, Hill Fort, Road Hyderabad. This is what the Supreme Court has observed in para 9 of the said judgment. "9. A consepectus of the statute, to the extent relevant, is necessary to appreciate the controversy at the Bar. The statutory personality and the social mission of the Act once projected, the resolution of the conflict of interpretation raised in this case is simple. Although, technically the Act is a pre-constitution one, it is a post-independence measure and shares the passion of the Constitution for social justice. Articles 38, 39, 41, 42, 43 and 43-A of the Constitution show concern for workers and their welfare. Since independence, this legislative motivation has found expression in many enactments. We are concerned with one such law designed to confer benefits on this weaker segment in situations of distress as is apparent from the preamble. The machinery for State Insurance is set up in the shape of a Corporation and subsidiary agencies. All employees in factories or establishments are sought to be insured against sickness and allied disabilities, but the funding, to implement the policy of insurance, is by contributions from the employer and the employee. In view of the complexities of modern business organisation the principal employer is made primarily liable for payment of contribution "in respect of every employee, whether directly employed by him or by or through an immediate employer". Of course, where the employee is not directly employed by him but through another immediate employer, the principal employer is empowered to recoup the contribution paid by him on behalf of the immediate employer (section 41). There is an inspectorate to superwise the determination and levy of the contributions. There is a chapter prescribing penalties; there is an adjudicating machinery and there are other policing processes for the smooth working of the beginning project envisaged by the Act. The benefits belong to the employees and are intended to embrace as extensive a circle as is feasible. In short, the social orientation, protective purpose and human coverage of the Act are important considerations in the statutory construction, more weighty than more legamacity or gramatical nicety. 8. It cannot also be forgotton that the regulations framed under the Act make specific provisions for the contribution of amount by the employer as well as the workmen. It prescribe time for payment of the amount and also prescribed procedure as to how the amount is to be paid. In the present case the employees contribution was already deducted. Therefore, in substance the said amount was entrusted to the employer by the employees for the purpose of paying contribution. This is clear from section 40(4) of the Act. By newly added Explanation II, to section 405 of the Indian Penal Code, this position is further clarified. Said Explanation reads as under: "A person, being an employer, who deducts the employees contribution from the wages payable to the employee for credit to the Employees State Insurance Fund held and administered by the Employees State Insurance Corporation established under the Employees State Insurance Act, (34 of 1948), shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid." It was rightly contended by Shri Jaykar, that in the present case the appellant-company is not only an habitual defaulter bus is practically treating the E.S.I. scheme, as self-financing scheme for its business. We find much substance in this contention of Shri Jaykar. In the present case it is practically an admitted position that in all 23 defaults were committed by the appellant company and it is in the case of last show cause notice that the maximum penalty is imposed. There is Corporation was quite justified in described that the appellant-company was a chronoic or a habitual defaulter and hence the maximum penalty prescribed by law was called for. Therefore, we do not find this is a case wherein any interference is called for with the discretion exercised by the Regional Director of E.S.I.
### Response:
0
### Explanation:
If all those three orders are read together it is quite clear that the Regional Director of the E.S.I. considered the explanation offered by thein its proper context. In case of two notices he reduced the claim for damages. So far as the last show cause notice is concerned, in view of the considerable delay in payment of contribution and the fact that it related to the 21st to 23rd defaults, he thought that there is no scope for any reduction in the damages. Therefore, it cannot be said that the orders passed by the Regional Director of E.S.I. are not speaking orders. The orders clearly indicate application of mind to the explanation offered by theregarding the delay in payment of contribution and, thereafter, a decision is taken by the Regional Director of the E.S.I. imposing penalty or damages. The order of the Regional Director of E.S.I. under sectioncannot be equated with the judgment of the Court containing detailed reasons. If the order passed indicates application of mind to all the relevant circumstances, and is not arbitrary then only because it is not like a judgment of the Court it cannot be held that it is not a speaking order. Therefore, in our view it cannot be said that the orders are vitiated either forof mind or that they are not speaking orders. As already observed the orders passed are speaking orders and give all the necessary particulars. Therefore, we do not find any substance in this contention of Shrithe present case it is practically an admitted position that in all 23 defaults were committed by the appellant company and it is in the case of last show cause notice that the maximum penalty is imposed. There is Corporation was quite justified in described that thewas a chronoic or a habitual defaulter and hence the maximum penalty prescribed by law was called for. Therefore, we do not find this is a case wherein any interference is called for with the discretion exercised by the Regional Director of E.S.I.
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K. Narendra Vs. Riviera Apartments (P) Ltd
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at the time of entering into the agreement. We are not in the least holding that the consideration agreed upon between the parties was inadequate on the date of the agreement. We are only noticing the subsequent event. Possession over a meagre part of the property was delivered by the appellant to the respondents, not simultaneously with the agreement but subsequently at some point of time. To that extent, the recital in the agreement and the averments made in the plaint filed by the respondents are false. On a major part of the property, the appellant has continued to remain in possession. As opposed to this, the respondents have neither pleaded nor brought material on record to hold that they have acted in such a way as to render inequitable the denial of specific performance and to hold that theirs would be a case of greater hardship over the hardship of the appellant. Upon an evaluation of the totality ofthe circumstances, we are of the opinion that the performance of the contract would involve such hardship on the appellant as he did not foresee while the non- performance would not involve such hardship on the respondents. The contract though valid at the time when it was entered, is engrossed into such circumstances that the performance thereof cannot be secured with precision. The present one is a case where the discretionary jurisdiction to decree the specific performance ought not to be exercised in favour of the respondents. During the course of hearing the learned Senior Counsel for the respondents time and again emphasized and appealed to the Court that respondents were builders of repute and in the event of the specific performance being denied, they run a grave risk of loosing their reputation as their proposed building plan Girnar would not materialise and they will not be able to show their face to their prospective flat buyers. This is hardly a consideration which can weigh against the several circum stances which we have setout hereinabove. If a multi-storeyed complex cannot come up on the suit property, the respondents plans are going to fail in any case. 35. We have already held that until the repeal ofthe ULCRA in the year 1999 the property agreed to be transferred was incapable of being transferred for failure of the requisite permission under the ULCRA which situation continued to prevail for a period of about 16 years from the date of agreement until the repeal of ULCRA. In the facts and circumstances of the case we do not think it appropriate to extend the benefit of the subsequent event of repeal of ULCRA in favour of the respondent-plaintiffs after a lapse of 16years from the date of the contract. Permission for constructing a multi-storeyed complex on the premises was refused time and again by the NDMC until the suit for specific performance came to be decreed by the Trial Court. On none of the two events either of the parties had any control. We are clearly of the opinion that at one point of time the contract had stood frustrated by reference to Section 56 of the Contract Act. We do not think that the subsequent events can be pressed into service for so reviving the contract as to decree its specific performance. 36.The learned Counsel for the respondents submitted that in spite of a part area of the property agreed to be transferred having been rendered inalienable by the owner on account of its having been acquired by the State and part of the property having been found to be inalienable on account of being in excess of the ceiling limit provided by ULCRA, the respondents were prepared to have a sale deed executed of such remaining part of the property as is available to be transferred without insisting on a corresponding reduction in the price agreed to be paid. The learned Counsel for the respondents also submitted that the ULCRA having been repealed by the Urban Land Ceiling and Regulation (Repeal) Act, 1999, the hurdle of the land being in excess of the ceiling has been removed and this aspect of the matter has lost its relevance. We are not impressed by the submission. Though the respondents may on their part, in the changed circum-stances, be agreeable to have even lesser property being transferred to them, but in our opinion that is not permissible. The case of non-enforcement except with variation is statutorily covered by Section 18 of the Specific Relief Act, 1963. When the defendant sets up a variation then the plaintiff may have the contract specifically performed subject to the variation so set up only in cases of fraud, mistake of fact or misrepresentation or where the contract has failed to produce a certain legal result which the contract was intended to do or where the parties have subsequent to the execution of the contract varied its terms. Obviously, the case at hand is not covered by any of the situations contemplated by Section 18 abovesaid. 37. However, in our opinion the present one is a fit case where the respondents should be awarded some compensation in spite of its specific performance being refused. Section 21 of the Specific Relief Act provides for award of compensation either in addition to or in substitution of such performance. The explanation appended to the section expressly enacts that the Court is not precluded from exercising jurisdiction to award compensation even in a case where the contract has been rendered incapable of specific performance. Compensation to some extent is a matter of guess-work. An amount of Rs. 3,25,000, equivalent to the amount which was paid by the respondents to the appellant would be a reasonable amount of compensation in the facts and circumstances of the case which in our opinion deserves to be paid by the appellant to the respondents in substitution of the decree for specific performance. The respondents have also in their plaint claimed the relief of compensation in addition to other reliefs.
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1[ds]34. In our opinion, there has been a default on the part of the respondents in performing their obligations under the contract. The period lost between 25.7.1972 (the date of the agreement) and the years 1979 and 1980 when the litigation commenced, cannot be termed a reasonable period for which the appellant could have waited awaiting performance by the respondents though there was not a definedt for performance laid down by the agreement. The agreement contemplated several sanctions and clearances which were certainly not within the power of the parties and both the parties knew it well that they were the respondents who were being depended on for securing such sanctions/clearances. Part of the land formingr of the agreement was an excess land within the meaning of ULCRA and hence could not have been sold. Part of the land has been acquired by the State and to that extent the agreement has been rendered incapable of performance. The feasibility of ad complex as is proposed and planned by the respondents appears to be an impracticality. If the respondents would not be able to construct and deliver to the appellant some of the flats and contemplated by the novated agreement how and in what manner the remaining part of consideration shall be offered/paid by the respondents to the appellant is a question that defies answer on the material available on record. Added to all this is the factum of astronomical rise in the value of the land which none of the parties would have fore contemplated at the time of entering into the agreement. We are not in the least holding that the consideration agreed upon between the parties was inadequate on the date of the agreement. We are only noticing the subsequent event. Possession over a meagre part of the property was delivered by the appellant to the respondents, not simultaneously with the agreement but subsequently at some point of time. To that extent, the recital in the agreement and the averments made in the plaint filed by the respondents are false. On a major part of the property, the appellant has continued to remain in possession. As opposed to this, the respondents have neither pleaded nor brought material on record to hold that they have acted in such a way as to render inequitable the denial of specific performance and to hold that theirs would be a case of greater hardship over the hardship of the appellant. Upon an evaluation of the totality ofthe circumstances, we are of the opinion that the performance of the contract would involve such hardship on the appellant as he did not foresee while the nonperformance would not involve such hardship on the respondents. The contract though valid at the time when it was entered, is engrossed into such circumstances that the performance thereof cannot be secured with precision. The present one is a case where the discretionary jurisdiction to decree the specific performance ought not to be exercised in favour of the respondents. During the course of hearing the learned Senior Counsel for the respondents time and again emphasized and appealed to the Court that respondents were builders of repute and in the event of the specific performance being denied, they run a grave risk of loosing their reputation as their proposed building plan Girnar would not materialise and they will not be able to show their face to their prospective flat buyers. This is hardly a consideration which can weigh against the several circum stances which we have setout hereinabove. If ad complex cannot come up on the suit property, the respondents plans are going to fail in any case35. We have already held that until the repeal ofthe ULCRA in the year 1999 the property agreed to be transferred was incapable of being transferred for failure of the requisite permission under the ULCRA which situation continued to prevail for a period of about 16 years from the date of agreement until the repeal of ULCRA. In the facts and circumstances of the case we do not think it appropriate to extend the benefit of the subsequent event of repeal of ULCRA in favour of thes after a lapse of 16years from the date of the contract. Permission for constructing ad complex on the premises was refused time and again by the NDMC until the suit for specific performance came to be decreed by the Trial Court. On none of the two events either of the parties had any control. We are clearly of the opinion that at one point of time the contract had stood frustrated by reference to Section 56 of the Contract Act. We do not think that the subsequent events can be pressed into service for so reviving the contract as to decree its specific performance36.The learned Counsel for the respondents submitted that in spite of a part area of the property agreed to be transferred having been rendered inalienable by the owner on account of its having been acquired by the State and part of the property having been found to be inalienable on account of being in excess of the ceiling limit provided by ULCRA, the respondents were prepared to have a sale deed executed of such remaining part of the property as is available to be transferred without insisting on a corresponding reduction in the price agreed to be paid. The learned Counsel for the respondents also submitted that the ULCRA having been repealed by the Urban Land Ceiling and Regulation (Repeal) Act, 1999, the hurdle of the land being in excess of the ceiling has been removed and this aspect of the matter has lost its relevance. We are not impressed by the submission. Though the respondents may on their part, in the changedbe agreeable to have even lesser property being transferred to them, but in our opinion that is not permissible. The case oft except with variation is statutorily covered by Section 18 of the Specific Relief Act, 1963. When the defendant sets up a variation then the plaintiff may have the contract specifically performed subject to the variation so set up only in cases of fraud, mistake of fact or misrepresentation or where the contract has failed to produce a certain legal result which the contract was intended to do or where the parties have subsequent to the execution of the contract varied its terms. Obviously, the case at hand is not covered by any of the situations contemplated by Section 18 abovesaid37. However, in our opinion the present one is a fit case where the respondents should be awarded some compensation in spite of its specific performance being refused. Section 21 of the Specific Relief Act provides for award of compensation either in addition to or in substitution of such performance. The explanation appended to the section expressly enacts that the Court is not precluded from exercising jurisdiction to award compensation even in a case where the contract has been rendered incapable of specific performance. Compensation to some extent is a matter of. An amount of Rs. 3,25,000, equivalent to the amount which was paid by the respondents to the appellant would be a reasonable amount of compensation in the facts and circumstances of the case which in our opinion deserves to be paid by the appellant to the respondents in substitution of the decree for specific performance. The respondents have also in their plaint claimed the relief of compensation in addition to other reliefs.
| 1 | 7,372 | 1,315 |
### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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at the time of entering into the agreement. We are not in the least holding that the consideration agreed upon between the parties was inadequate on the date of the agreement. We are only noticing the subsequent event. Possession over a meagre part of the property was delivered by the appellant to the respondents, not simultaneously with the agreement but subsequently at some point of time. To that extent, the recital in the agreement and the averments made in the plaint filed by the respondents are false. On a major part of the property, the appellant has continued to remain in possession. As opposed to this, the respondents have neither pleaded nor brought material on record to hold that they have acted in such a way as to render inequitable the denial of specific performance and to hold that theirs would be a case of greater hardship over the hardship of the appellant. Upon an evaluation of the totality ofthe circumstances, we are of the opinion that the performance of the contract would involve such hardship on the appellant as he did not foresee while the non- performance would not involve such hardship on the respondents. The contract though valid at the time when it was entered, is engrossed into such circumstances that the performance thereof cannot be secured with precision. The present one is a case where the discretionary jurisdiction to decree the specific performance ought not to be exercised in favour of the respondents. During the course of hearing the learned Senior Counsel for the respondents time and again emphasized and appealed to the Court that respondents were builders of repute and in the event of the specific performance being denied, they run a grave risk of loosing their reputation as their proposed building plan Girnar would not materialise and they will not be able to show their face to their prospective flat buyers. This is hardly a consideration which can weigh against the several circum stances which we have setout hereinabove. If a multi-storeyed complex cannot come up on the suit property, the respondents plans are going to fail in any case. 35. We have already held that until the repeal ofthe ULCRA in the year 1999 the property agreed to be transferred was incapable of being transferred for failure of the requisite permission under the ULCRA which situation continued to prevail for a period of about 16 years from the date of agreement until the repeal of ULCRA. In the facts and circumstances of the case we do not think it appropriate to extend the benefit of the subsequent event of repeal of ULCRA in favour of the respondent-plaintiffs after a lapse of 16years from the date of the contract. Permission for constructing a multi-storeyed complex on the premises was refused time and again by the NDMC until the suit for specific performance came to be decreed by the Trial Court. On none of the two events either of the parties had any control. We are clearly of the opinion that at one point of time the contract had stood frustrated by reference to Section 56 of the Contract Act. We do not think that the subsequent events can be pressed into service for so reviving the contract as to decree its specific performance. 36.The learned Counsel for the respondents submitted that in spite of a part area of the property agreed to be transferred having been rendered inalienable by the owner on account of its having been acquired by the State and part of the property having been found to be inalienable on account of being in excess of the ceiling limit provided by ULCRA, the respondents were prepared to have a sale deed executed of such remaining part of the property as is available to be transferred without insisting on a corresponding reduction in the price agreed to be paid. The learned Counsel for the respondents also submitted that the ULCRA having been repealed by the Urban Land Ceiling and Regulation (Repeal) Act, 1999, the hurdle of the land being in excess of the ceiling has been removed and this aspect of the matter has lost its relevance. We are not impressed by the submission. Though the respondents may on their part, in the changed circum-stances, be agreeable to have even lesser property being transferred to them, but in our opinion that is not permissible. The case of non-enforcement except with variation is statutorily covered by Section 18 of the Specific Relief Act, 1963. When the defendant sets up a variation then the plaintiff may have the contract specifically performed subject to the variation so set up only in cases of fraud, mistake of fact or misrepresentation or where the contract has failed to produce a certain legal result which the contract was intended to do or where the parties have subsequent to the execution of the contract varied its terms. Obviously, the case at hand is not covered by any of the situations contemplated by Section 18 abovesaid. 37. However, in our opinion the present one is a fit case where the respondents should be awarded some compensation in spite of its specific performance being refused. Section 21 of the Specific Relief Act provides for award of compensation either in addition to or in substitution of such performance. The explanation appended to the section expressly enacts that the Court is not precluded from exercising jurisdiction to award compensation even in a case where the contract has been rendered incapable of specific performance. Compensation to some extent is a matter of guess-work. An amount of Rs. 3,25,000, equivalent to the amount which was paid by the respondents to the appellant would be a reasonable amount of compensation in the facts and circumstances of the case which in our opinion deserves to be paid by the appellant to the respondents in substitution of the decree for specific performance. The respondents have also in their plaint claimed the relief of compensation in addition to other reliefs.
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the land which none of the parties would have fore contemplated at the time of entering into the agreement. We are not in the least holding that the consideration agreed upon between the parties was inadequate on the date of the agreement. We are only noticing the subsequent event. Possession over a meagre part of the property was delivered by the appellant to the respondents, not simultaneously with the agreement but subsequently at some point of time. To that extent, the recital in the agreement and the averments made in the plaint filed by the respondents are false. On a major part of the property, the appellant has continued to remain in possession. As opposed to this, the respondents have neither pleaded nor brought material on record to hold that they have acted in such a way as to render inequitable the denial of specific performance and to hold that theirs would be a case of greater hardship over the hardship of the appellant. Upon an evaluation of the totality ofthe circumstances, we are of the opinion that the performance of the contract would involve such hardship on the appellant as he did not foresee while the nonperformance would not involve such hardship on the respondents. The contract though valid at the time when it was entered, is engrossed into such circumstances that the performance thereof cannot be secured with precision. The present one is a case where the discretionary jurisdiction to decree the specific performance ought not to be exercised in favour of the respondents. During the course of hearing the learned Senior Counsel for the respondents time and again emphasized and appealed to the Court that respondents were builders of repute and in the event of the specific performance being denied, they run a grave risk of loosing their reputation as their proposed building plan Girnar would not materialise and they will not be able to show their face to their prospective flat buyers. This is hardly a consideration which can weigh against the several circum stances which we have setout hereinabove. If ad complex cannot come up on the suit property, the respondents plans are going to fail in any case35. We have already held that until the repeal ofthe ULCRA in the year 1999 the property agreed to be transferred was incapable of being transferred for failure of the requisite permission under the ULCRA which situation continued to prevail for a period of about 16 years from the date of agreement until the repeal of ULCRA. In the facts and circumstances of the case we do not think it appropriate to extend the benefit of the subsequent event of repeal of ULCRA in favour of thes after a lapse of 16years from the date of the contract. Permission for constructing ad complex on the premises was refused time and again by the NDMC until the suit for specific performance came to be decreed by the Trial Court. On none of the two events either of the parties had any control. We are clearly of the opinion that at one point of time the contract had stood frustrated by reference to Section 56 of the Contract Act. We do not think that the subsequent events can be pressed into service for so reviving the contract as to decree its specific performance36.The learned Counsel for the respondents submitted that in spite of a part area of the property agreed to be transferred having been rendered inalienable by the owner on account of its having been acquired by the State and part of the property having been found to be inalienable on account of being in excess of the ceiling limit provided by ULCRA, the respondents were prepared to have a sale deed executed of such remaining part of the property as is available to be transferred without insisting on a corresponding reduction in the price agreed to be paid. The learned Counsel for the respondents also submitted that the ULCRA having been repealed by the Urban Land Ceiling and Regulation (Repeal) Act, 1999, the hurdle of the land being in excess of the ceiling has been removed and this aspect of the matter has lost its relevance. We are not impressed by the submission. Though the respondents may on their part, in the changedbe agreeable to have even lesser property being transferred to them, but in our opinion that is not permissible. The case oft except with variation is statutorily covered by Section 18 of the Specific Relief Act, 1963. When the defendant sets up a variation then the plaintiff may have the contract specifically performed subject to the variation so set up only in cases of fraud, mistake of fact or misrepresentation or where the contract has failed to produce a certain legal result which the contract was intended to do or where the parties have subsequent to the execution of the contract varied its terms. Obviously, the case at hand is not covered by any of the situations contemplated by Section 18 abovesaid37. However, in our opinion the present one is a fit case where the respondents should be awarded some compensation in spite of its specific performance being refused. Section 21 of the Specific Relief Act provides for award of compensation either in addition to or in substitution of such performance. The explanation appended to the section expressly enacts that the Court is not precluded from exercising jurisdiction to award compensation even in a case where the contract has been rendered incapable of specific performance. Compensation to some extent is a matter of. An amount of Rs. 3,25,000, equivalent to the amount which was paid by the respondents to the appellant would be a reasonable amount of compensation in the facts and circumstances of the case which in our opinion deserves to be paid by the appellant to the respondents in substitution of the decree for specific performance. The respondents have also in their plaint claimed the relief of compensation in addition to other reliefs.
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Dalip Singh Vs. The State Of Punjab
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of the learned counsel that Rule 278 was not applicable to the case of the appellant on August 18, 1950, is therefore totally without foundation.8. This brings us to the main contention in the case viz., that the compulsory retirement of the appellant under Rule 278 of the Patiala State Regulations was a removal from service within the meaning of Art. 311 of the Constitution. The question whether the termination of service by compulsory retirement in accordance with Service Rules amount to removal from service was considered by this Court in Shyamlal v. State of U. P. 1955-1 SCR 26 : (AIR 1954 SC 369 ) and again recently in State of Bombay v. Saubhagchand M. Doshi, 1958 SCR 571 : ( (S) AIR 1957 SC 892 ).The Court decided in Shyam Lals Case 1955-1 SCR 26 : (AIR 1954 SC 369 ) that two tests had to be applied for ascertaining whether a termination of service by compulsory retirement amounted to removal or dismissal so as to attract the provisions of Art. 311 of the Constitution. The first is whether the action is by way of punishment and to find that out the Court said that it was necessary that a charge or imputation against the officer is made the condition of the exercise of the power; the second is whether by compulsory retirement the officer is losing the benefit he has already earned as he does by dismissal or removal.In that case in fact a charge-sheet was drawn up against the officer and an enquiry held but ultimately the order of compulsory retirement was not based on the result of the enquiry. The Court pointed out that the enquiry was merely to help the Government to make up its mind as to whether it was in the public interest to dispense with his services so that the imputation made in the charge-sheet was not being made the condition of the exercise of the power.9. These tests were applied in Doshis Case, 1958 SCR 571 : ( (S) AIR 1957 SC 892 ) and it was held that the provisions of compulsory retirement under Rule 165-A of the Saurashtra Civil Service Rules under which the order of retirement was made there was not violative of Art. 311 (2).It was pointed out that "while misconduct and inefficiency are factors that enter into the account where the order is one of dismissal or removal or of retirement, there is this difference that while in the case of retirement they merely furnish the background and the enquiry, if held-and there is no duty to hold an enquiry-is only for the satisfaction of the authorities who have to take action, in the case of dismissal or removal, they form the very basis on which the order is made and the enquiry thereon must be formal, and must satisfy the rules of natural justice and the requirements of Art. 311 (2)."10. In the case before us the order of the Rajpramukh does not purport to be passed on any charge of misconduct or inefficiency. All its states is that the compulsory retirement is for "administrative reasons". It was only after the appellants own insistence to be supplied with the grounds which led to the decision that certain charges were communicated to him.There is therefore no basis for saying that the order of retirement contained any imposition or charge against the officer. The fact that considerations of misconduct or inefficiency weighed with the Government in coming to its conclusion whether any action should be taken under Rule 278 does not amount to any imputation or charge against the officer.11. Applying the other test, viz., whether the officer has lost the benefit he has earned, we find that the officer has been allowed full pension.There is no question of his having lost a benefit earned. It may be pointed out that Rule 278 itself provides for retirement on pension. If the provision had been for retirement without pension in accordance with the rules there might have been some reason to hold that the retirement was by way of punishment. As however the retirement can only be on pension in accordance with the rules-in the present case full pension has been granted to the officer-the order of retirement is clearly not by way of punishment.12. In Doshis Case, 1958 SCR 571 : ( (S) AIR 1957 SC 892 ) there is at p. 579 (of SCR): (at p. 895 of AIR) an observation which might at first sight seem to suggest that in the opinion of this Court compulsory retirement not amounting to dismissal or removal could only take place under a rule fixing an age for compulsory retirement.We do not think that was what the Court intended to say in Doshis Case 1958 SCR 571 : ( (S) AIR 1957 SC 892 ).In Doshis Case 1958 SCR 571 : ( (S) AIR 1957 SC 892 ) there was in fact a rule fixing an age for compulsory retirement, at the age of 55, and in addition another rule for compulsory retirement after an officer had completed the age of 50 or 25 years of service. It was in that context that the Court made the above observation. It had not in that case to deal with a rule which did provide for compulsory retirement, at any age whatsoever irrespective of the length of service put in. It will not be proper to read the observations in Doshis Case 1958 SCR 571 : ( (S) AIR 1957 SC 892 ) referred to above as laying down the law that retirement under the rule we are considering must necessarily be regarded as dismissal or removal within the meaning of Art. 311.13. We are therefore of opinion that the High Court was right in holding that the order of compulsory retirement made against the appellant was not removal from service so as to attract the provisions of Art. 311 of the Constitution and that the suit was rightly dismissed.
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0[ds]7. This makes it clear that up to the publication in 1952 of Volume III of the Pepsu Service Regulations the pension rules appearing in the 1931 edition of the Patiala State Regulations continued to be applicable to Pepsu. On August 18, 1950, therefore it is reasonable to hold that Rule 278 in its entirety remained in force and was applicable to Pepsu. It is interesting to mention that in this 1952 edition also this reservation by the Government of the "right to retire any of its employees on pension on political or on other "reasons" has been maintained (Vide Chapter V, Rule 10). The contention of the learned counsel that Rule 278 was not applicable to the case of the appellant on August 18, 1950, is therefore totally without foundation.In the case before us the order of the Rajpramukh does not purport to be passed on any charge of misconduct or inefficiency. All its states is that the compulsory retirement is for "administrative reasons". It was only after the appellants own insistence to be supplied with the grounds which led to the decision that certain charges were communicated to him.There is therefore no basis for saying that the order of retirement contained any imposition or charge against the officer. The fact that considerations of misconduct or inefficiency weighed with the Government in coming to its conclusion whether any action should be taken under Rule 278 does not amount to any imputation or charge against the officer.11. Applying the other test, viz., whether the officer has lost the benefit he has earned, we find that the officer has been allowed full pension.There is no question of his having lost a benefit earned. It may be pointed out that Rule 278 itself provides for retirement on pension. If the provision had been for retirement without pension in accordance with the rules there might have been some reason to hold that the retirement was by way of punishment. As however the retirement can only be on pension in accordance with the rules-in the present case full pension has been granted to the officer-the order of retirement is clearly not by way of punishment.We are therefore of opinion that the High Court was right in holding that the order of compulsory retirement made against the appellant was not removal from service so as to attract the provisions of Art. 311 of the Constitution and that the suit was rightly dismissed.
| 0 | 2,485 | 439 |
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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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of the learned counsel that Rule 278 was not applicable to the case of the appellant on August 18, 1950, is therefore totally without foundation.8. This brings us to the main contention in the case viz., that the compulsory retirement of the appellant under Rule 278 of the Patiala State Regulations was a removal from service within the meaning of Art. 311 of the Constitution. The question whether the termination of service by compulsory retirement in accordance with Service Rules amount to removal from service was considered by this Court in Shyamlal v. State of U. P. 1955-1 SCR 26 : (AIR 1954 SC 369 ) and again recently in State of Bombay v. Saubhagchand M. Doshi, 1958 SCR 571 : ( (S) AIR 1957 SC 892 ).The Court decided in Shyam Lals Case 1955-1 SCR 26 : (AIR 1954 SC 369 ) that two tests had to be applied for ascertaining whether a termination of service by compulsory retirement amounted to removal or dismissal so as to attract the provisions of Art. 311 of the Constitution. The first is whether the action is by way of punishment and to find that out the Court said that it was necessary that a charge or imputation against the officer is made the condition of the exercise of the power; the second is whether by compulsory retirement the officer is losing the benefit he has already earned as he does by dismissal or removal.In that case in fact a charge-sheet was drawn up against the officer and an enquiry held but ultimately the order of compulsory retirement was not based on the result of the enquiry. The Court pointed out that the enquiry was merely to help the Government to make up its mind as to whether it was in the public interest to dispense with his services so that the imputation made in the charge-sheet was not being made the condition of the exercise of the power.9. These tests were applied in Doshis Case, 1958 SCR 571 : ( (S) AIR 1957 SC 892 ) and it was held that the provisions of compulsory retirement under Rule 165-A of the Saurashtra Civil Service Rules under which the order of retirement was made there was not violative of Art. 311 (2).It was pointed out that "while misconduct and inefficiency are factors that enter into the account where the order is one of dismissal or removal or of retirement, there is this difference that while in the case of retirement they merely furnish the background and the enquiry, if held-and there is no duty to hold an enquiry-is only for the satisfaction of the authorities who have to take action, in the case of dismissal or removal, they form the very basis on which the order is made and the enquiry thereon must be formal, and must satisfy the rules of natural justice and the requirements of Art. 311 (2)."10. In the case before us the order of the Rajpramukh does not purport to be passed on any charge of misconduct or inefficiency. All its states is that the compulsory retirement is for "administrative reasons". It was only after the appellants own insistence to be supplied with the grounds which led to the decision that certain charges were communicated to him.There is therefore no basis for saying that the order of retirement contained any imposition or charge against the officer. The fact that considerations of misconduct or inefficiency weighed with the Government in coming to its conclusion whether any action should be taken under Rule 278 does not amount to any imputation or charge against the officer.11. Applying the other test, viz., whether the officer has lost the benefit he has earned, we find that the officer has been allowed full pension.There is no question of his having lost a benefit earned. It may be pointed out that Rule 278 itself provides for retirement on pension. If the provision had been for retirement without pension in accordance with the rules there might have been some reason to hold that the retirement was by way of punishment. As however the retirement can only be on pension in accordance with the rules-in the present case full pension has been granted to the officer-the order of retirement is clearly not by way of punishment.12. In Doshis Case, 1958 SCR 571 : ( (S) AIR 1957 SC 892 ) there is at p. 579 (of SCR): (at p. 895 of AIR) an observation which might at first sight seem to suggest that in the opinion of this Court compulsory retirement not amounting to dismissal or removal could only take place under a rule fixing an age for compulsory retirement.We do not think that was what the Court intended to say in Doshis Case 1958 SCR 571 : ( (S) AIR 1957 SC 892 ).In Doshis Case 1958 SCR 571 : ( (S) AIR 1957 SC 892 ) there was in fact a rule fixing an age for compulsory retirement, at the age of 55, and in addition another rule for compulsory retirement after an officer had completed the age of 50 or 25 years of service. It was in that context that the Court made the above observation. It had not in that case to deal with a rule which did provide for compulsory retirement, at any age whatsoever irrespective of the length of service put in. It will not be proper to read the observations in Doshis Case 1958 SCR 571 : ( (S) AIR 1957 SC 892 ) referred to above as laying down the law that retirement under the rule we are considering must necessarily be regarded as dismissal or removal within the meaning of Art. 311.13. We are therefore of opinion that the High Court was right in holding that the order of compulsory retirement made against the appellant was not removal from service so as to attract the provisions of Art. 311 of the Constitution and that the suit was rightly dismissed.
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7. This makes it clear that up to the publication in 1952 of Volume III of the Pepsu Service Regulations the pension rules appearing in the 1931 edition of the Patiala State Regulations continued to be applicable to Pepsu. On August 18, 1950, therefore it is reasonable to hold that Rule 278 in its entirety remained in force and was applicable to Pepsu. It is interesting to mention that in this 1952 edition also this reservation by the Government of the "right to retire any of its employees on pension on political or on other "reasons" has been maintained (Vide Chapter V, Rule 10). The contention of the learned counsel that Rule 278 was not applicable to the case of the appellant on August 18, 1950, is therefore totally without foundation.In the case before us the order of the Rajpramukh does not purport to be passed on any charge of misconduct or inefficiency. All its states is that the compulsory retirement is for "administrative reasons". It was only after the appellants own insistence to be supplied with the grounds which led to the decision that certain charges were communicated to him.There is therefore no basis for saying that the order of retirement contained any imposition or charge against the officer. The fact that considerations of misconduct or inefficiency weighed with the Government in coming to its conclusion whether any action should be taken under Rule 278 does not amount to any imputation or charge against the officer.11. Applying the other test, viz., whether the officer has lost the benefit he has earned, we find that the officer has been allowed full pension.There is no question of his having lost a benefit earned. It may be pointed out that Rule 278 itself provides for retirement on pension. If the provision had been for retirement without pension in accordance with the rules there might have been some reason to hold that the retirement was by way of punishment. As however the retirement can only be on pension in accordance with the rules-in the present case full pension has been granted to the officer-the order of retirement is clearly not by way of punishment.We are therefore of opinion that the High Court was right in holding that the order of compulsory retirement made against the appellant was not removal from service so as to attract the provisions of Art. 311 of the Constitution and that the suit was rightly dismissed.
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M/s. Indian Farmers Fertilizer Co-Operative Limited Vs. M/s. Bhadra Products
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with which they have no right to deal, imposing an unwarranted condition or addressing themselves to a wrong question. The majority opinion in the case leaves a Court or Tribunal with virtually no margin of legal error. Whether there is excess of jurisdiction or merely error within jurisdiction can be determined only by construing the empowering statute, which will give little guidance. It is really a question of how much latitude the court is prepared to allow. In the end it can only be a value judgment (see H.N.R. Wade, Constitutional and Administrative Aspects of the Anisminic case. Law Quarterly Review, Vol. 85,1969, p. 198). Why is it that a wrong decision on a question of limitation or res judicata was treated as a jurisdictional error and liable to be interfered with in revision? It is a bit difficult to understand how an erroneous decision on a question of limitation or res judicata would oust the jurisdiction of the court in the primitive sense of the term and render the decision or a decree embodying the decision a nullity liable to collateral attack. The reason can only be that the error of law was considered as vital by the court. And there is no yardstick to determine the magnitude of the error other than the opinion of the Court… 26. Likewise, in Hari Prasad Mulshanker Trivedi v. V.B. Raju (1974) 3 SCC 415 at 423-424, a Constitution Bench of this Court again referred to the blurring of lines between errors of law and errors of jurisdiction found in Anisminic (supra) as follows: Though the dividing line between lack of jurisdiction or power and erroneous exercise of it has become thin with the decision of the House of Lords in the Anisminic case, [(1967) 3 WLR 382] we do not think that the distinction between the two has been completely wiped out. We are aware of the difficulty in formulating an exhaustive rule to tell when there is lack of power and when there is an erroneous exercise of it. The difficulty has arisen because the word jurisdiction is an expression which is used in a variety of senses and takes its colour from its context, (see per Diplock, J., at p. 394 in the Anisminic case). Whereas the pure theory of jurisdiction would reduce jurisdictional control to a vanishing point, the adoption of a narrower meaning might result in a more useful legal concept even though the formal structure of law may lose something of its logical symmetry. At bottom the problem of defining the concept of jurisdiction for purpose of judicial review has been one of public policy rather than one of logic. [S. A. Smith : Judicial Review of Administrative Action, 2nd Edn., p. 98] And viewed from the aspect of public policy as reflected in the provisions of the 1950 and 1951 Acts, we do not think that a wrong decision on a question of ordinary residence for the purpose of entering a persons name in the electoral roll should be treated as a jurisdictional error which can be judicially reviewed either in a civil court or before an election tribunal. 27. In ITW Signode India Ltd. v. CCE (2004) 3 SCC 48 at 74, a case strongly relied upon by Shri Sinha, this Court held in the context of limitation qua recovery of duty under Section 11A of the Central Excise Act, 1944 as follows: 69. The question of limitation involves a question of jurisdiction. The finding of fact on the question of jurisdiction would be a jurisdictional fact. Such a jurisdictional question is to be determined having regard to both fact and law involved therein. The Tribunal, in our opinion, committed a manifest error in not determining the said question, particularly, when in the absence of any finding of fact that such short-levy of excise duty related to any positive act on the part of the appellant by way of fraud, collusion, wilful misstatement or suppression of facts, the extended period of limitation could not have been invoked and in that view of the matter no show-cause notice in terms of Rule 10 could have been issued. 28. Given the context of Section 11A of the Central Excise Act, 1944, obviously the expression jurisdiction would mean something more than merely being able to embark on the merits of a dispute. In a recent judgment under Section 9A of the Code of Civil Procedure, 1908 (as inserted by the State of Maharashtra), this Court in Foreshore Coop. Housing Society Ltd. v. Praveen D. Desai (2015) 6 SCC 412 , referred to the expression jurisdiction occurring in Section 9A and held an earlier judgment of this Court to be per incuriam. Though the Constitution Bench judgment in Ittavira (supra) was mentioned by the Bench, referring to the argument of one of the counsel for the parties, in the concluding portion, this judgment is not referred to at all. In any case, the reasoning of the Court in that case was in the context of Section 9A which, when contrasted with Order XIV of the Code of Civil Procedure, 1908, made the Court accept the wider concept of jurisdiction as laid down in Pandurang (supra). 29. In our view, therefore, it is clear that the award dated 23rd July, 2015 is an interim award, which being an arbitral award, can be challenged separately and independently under Section 34 of the Act. We are of the view that such an award, which does not relate to the arbitral tribunals own jurisdiction under Section 16, does not have to follow the drill of Section 16(5) and (6) of the Act. Having said this, we are of the view that Parliament may consider amending Section 34 of the Act so as to consolidate all interim awards together with the final arbitral award, so that one challenge under Section 34 can be made after delivery of the final arbitral award. Piecemeal challenges like piecemeal awards lead to unnecessary delay and additional expense.
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1[ds]8. As can be seen from Section 2(c) and Section 31(6), except for stating that an arbitral award includes an interim award, the Act is silent and does not define what an interim award is. We are, therefore, left with Section 31(6) which delineates the scope of interim arbitral awards and states that the arbitral tribunal may make an interim arbitral award on any matter with respect to which it may make a final arbitral award9. The language of Section 31(6) is advisedly wide in nature. A reading of the saidmakes it clear that the jurisdiction to make an interim arbitral award is left to the good sense of the arbitral tribunal, and that it extends to any matter with respect to which it may make a final arbitral award. The expression matter is wide in nature, and subsumes issues at which the parties are in dispute. It is clear, therefore, that any point of dispute between the parties which has to be answered by the arbitral tribunal can be the subject matter of an interim arbitral award. However, it is important to add a note of caution. In an appropriate case, the issue of more than one award may be necessitated on the facts of that case. However, by dealing with the matter in a piecemeal fashion, what must be borne in mind is that the resolution of the dispute as a whole will be delayed and parties will be put to additional expense. The arbitral tribunal should, therefore, consider whether there is any real advantage in delivering interim awards or in proceeding with the matter as a whole and delivering one final award, bearing in mind the avoidance of delay and additional expense. Ultimately, a fair means for resolution of all disputes should be uppermost in the mind of the arbitral tribunal16. Tested in the light of the statutory provisions and the case law cited above, it is clear that as the learned Arbitrator has disposed of one matter between the parties i.e. the issue of limitation finally, the award dated 23rd July, 2015 is an interim award within the meaning of Section 2(1)(c) of the Act and being subsumed within the expression arbitral award could, therefore, have been challenged under Section 34 of the Act28. Given the context of Section 11A of the Central Excise Act, 1944, obviously the expression jurisdiction would mean something more than merely being able to embark on the merits of a dispute29. In our view, therefore, it is clear that the award dated 23rd July, 2015 is an interim award, which being an arbitral award, can be challenged separately and independently under Section 34 of the Act. We are of the view that such an award, which does not relate to the arbitral tribunals own jurisdiction under Section 16, does not have to follow the drill of Section 16(5) and (6) of the Act. Having said this, we are of the view that Parliament may consider amending Section 34 of the Act so as to consolidate all interim awards together with the final arbitral award, so that one challenge under Section 34 can be made after delivery of the final arbitral award. Piecemeal challenges like piecemeal awards lead to unnecessary delay and additional expense.
| 1 | 8,580 | 620 |
### 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:
with which they have no right to deal, imposing an unwarranted condition or addressing themselves to a wrong question. The majority opinion in the case leaves a Court or Tribunal with virtually no margin of legal error. Whether there is excess of jurisdiction or merely error within jurisdiction can be determined only by construing the empowering statute, which will give little guidance. It is really a question of how much latitude the court is prepared to allow. In the end it can only be a value judgment (see H.N.R. Wade, Constitutional and Administrative Aspects of the Anisminic case. Law Quarterly Review, Vol. 85,1969, p. 198). Why is it that a wrong decision on a question of limitation or res judicata was treated as a jurisdictional error and liable to be interfered with in revision? It is a bit difficult to understand how an erroneous decision on a question of limitation or res judicata would oust the jurisdiction of the court in the primitive sense of the term and render the decision or a decree embodying the decision a nullity liable to collateral attack. The reason can only be that the error of law was considered as vital by the court. And there is no yardstick to determine the magnitude of the error other than the opinion of the Court… 26. Likewise, in Hari Prasad Mulshanker Trivedi v. V.B. Raju (1974) 3 SCC 415 at 423-424, a Constitution Bench of this Court again referred to the blurring of lines between errors of law and errors of jurisdiction found in Anisminic (supra) as follows: Though the dividing line between lack of jurisdiction or power and erroneous exercise of it has become thin with the decision of the House of Lords in the Anisminic case, [(1967) 3 WLR 382] we do not think that the distinction between the two has been completely wiped out. We are aware of the difficulty in formulating an exhaustive rule to tell when there is lack of power and when there is an erroneous exercise of it. The difficulty has arisen because the word jurisdiction is an expression which is used in a variety of senses and takes its colour from its context, (see per Diplock, J., at p. 394 in the Anisminic case). Whereas the pure theory of jurisdiction would reduce jurisdictional control to a vanishing point, the adoption of a narrower meaning might result in a more useful legal concept even though the formal structure of law may lose something of its logical symmetry. At bottom the problem of defining the concept of jurisdiction for purpose of judicial review has been one of public policy rather than one of logic. [S. A. Smith : Judicial Review of Administrative Action, 2nd Edn., p. 98] And viewed from the aspect of public policy as reflected in the provisions of the 1950 and 1951 Acts, we do not think that a wrong decision on a question of ordinary residence for the purpose of entering a persons name in the electoral roll should be treated as a jurisdictional error which can be judicially reviewed either in a civil court or before an election tribunal. 27. In ITW Signode India Ltd. v. CCE (2004) 3 SCC 48 at 74, a case strongly relied upon by Shri Sinha, this Court held in the context of limitation qua recovery of duty under Section 11A of the Central Excise Act, 1944 as follows: 69. The question of limitation involves a question of jurisdiction. The finding of fact on the question of jurisdiction would be a jurisdictional fact. Such a jurisdictional question is to be determined having regard to both fact and law involved therein. The Tribunal, in our opinion, committed a manifest error in not determining the said question, particularly, when in the absence of any finding of fact that such short-levy of excise duty related to any positive act on the part of the appellant by way of fraud, collusion, wilful misstatement or suppression of facts, the extended period of limitation could not have been invoked and in that view of the matter no show-cause notice in terms of Rule 10 could have been issued. 28. Given the context of Section 11A of the Central Excise Act, 1944, obviously the expression jurisdiction would mean something more than merely being able to embark on the merits of a dispute. In a recent judgment under Section 9A of the Code of Civil Procedure, 1908 (as inserted by the State of Maharashtra), this Court in Foreshore Coop. Housing Society Ltd. v. Praveen D. Desai (2015) 6 SCC 412 , referred to the expression jurisdiction occurring in Section 9A and held an earlier judgment of this Court to be per incuriam. Though the Constitution Bench judgment in Ittavira (supra) was mentioned by the Bench, referring to the argument of one of the counsel for the parties, in the concluding portion, this judgment is not referred to at all. In any case, the reasoning of the Court in that case was in the context of Section 9A which, when contrasted with Order XIV of the Code of Civil Procedure, 1908, made the Court accept the wider concept of jurisdiction as laid down in Pandurang (supra). 29. In our view, therefore, it is clear that the award dated 23rd July, 2015 is an interim award, which being an arbitral award, can be challenged separately and independently under Section 34 of the Act. We are of the view that such an award, which does not relate to the arbitral tribunals own jurisdiction under Section 16, does not have to follow the drill of Section 16(5) and (6) of the Act. Having said this, we are of the view that Parliament may consider amending Section 34 of the Act so as to consolidate all interim awards together with the final arbitral award, so that one challenge under Section 34 can be made after delivery of the final arbitral award. Piecemeal challenges like piecemeal awards lead to unnecessary delay and additional expense.
### Response:
1
### Explanation:
8. As can be seen from Section 2(c) and Section 31(6), except for stating that an arbitral award includes an interim award, the Act is silent and does not define what an interim award is. We are, therefore, left with Section 31(6) which delineates the scope of interim arbitral awards and states that the arbitral tribunal may make an interim arbitral award on any matter with respect to which it may make a final arbitral award9. The language of Section 31(6) is advisedly wide in nature. A reading of the saidmakes it clear that the jurisdiction to make an interim arbitral award is left to the good sense of the arbitral tribunal, and that it extends to any matter with respect to which it may make a final arbitral award. The expression matter is wide in nature, and subsumes issues at which the parties are in dispute. It is clear, therefore, that any point of dispute between the parties which has to be answered by the arbitral tribunal can be the subject matter of an interim arbitral award. However, it is important to add a note of caution. In an appropriate case, the issue of more than one award may be necessitated on the facts of that case. However, by dealing with the matter in a piecemeal fashion, what must be borne in mind is that the resolution of the dispute as a whole will be delayed and parties will be put to additional expense. The arbitral tribunal should, therefore, consider whether there is any real advantage in delivering interim awards or in proceeding with the matter as a whole and delivering one final award, bearing in mind the avoidance of delay and additional expense. Ultimately, a fair means for resolution of all disputes should be uppermost in the mind of the arbitral tribunal16. Tested in the light of the statutory provisions and the case law cited above, it is clear that as the learned Arbitrator has disposed of one matter between the parties i.e. the issue of limitation finally, the award dated 23rd July, 2015 is an interim award within the meaning of Section 2(1)(c) of the Act and being subsumed within the expression arbitral award could, therefore, have been challenged under Section 34 of the Act28. Given the context of Section 11A of the Central Excise Act, 1944, obviously the expression jurisdiction would mean something more than merely being able to embark on the merits of a dispute29. In our view, therefore, it is clear that the award dated 23rd July, 2015 is an interim award, which being an arbitral award, can be challenged separately and independently under Section 34 of the Act. We are of the view that such an award, which does not relate to the arbitral tribunals own jurisdiction under Section 16, does not have to follow the drill of Section 16(5) and (6) of the Act. Having said this, we are of the view that Parliament may consider amending Section 34 of the Act so as to consolidate all interim awards together with the final arbitral award, so that one challenge under Section 34 can be made after delivery of the final arbitral award. Piecemeal challenges like piecemeal awards lead to unnecessary delay and additional expense.
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Kanshi Ram Jagan Nath And Others Vs. The State
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to be effective, after the enactment of the Indian Finance Act 1950. The suit was filed on May 13, 1952, for injunction against notices of demand issued to the appellants from the Tehsil Office, Faridkot on or about April 20, 1951. The learned Solicitor-General concedes that the appellants claim must be confined to the period after April 1, 1950, from which date the Indian Finance Act, 1950 began to operate. He states that prior to that date the law could not be considered to be invalid because of Art. 277, which saved taxes, duties, cesses or fees which were being levied in any State prior to the commencement of the Constitution. He also concedes that the Finance Act, 1950 could not operate before April 1, 1950, and the question, therefore, is, what is the effect of the Indian Finance Act, 1950 on the order impugned? It may also be pointed out that the authority of the Regency Council to issue the impugned order and the validity of that order, unless affected by any Indian Law, are not called in question.4. The Indian Finance Act, 1950 was passed to give effect to the financial proposals for the year commencing on April 1, 1950.Section 11 of that Act extended, amongst others, the Central Excises and Salt act, 1944, to the whole of India including Part B States, except the State of Jammu and Kashmir.By S. 13 (2), it was provided, inter alia, as follows:"If immediately before the 1st day of April 1950, there is in force in any State other than Jammu and Kashmir a law corresponding to, but other than an Act referred to in sub-s. (1) or (2) of S. 11, such law is hereby repealed with effect from the said date . . . ."It is contended that by the extension of the Central Excises and Salt Act, 1944 there was repeal of any law imposing excise duty on the manufacture of any class of goods.Attention is, therefore, drawn to the provisions of the Robkar, where the royalty is charged as follows:Mehsul (Royalty) at the rate of Rs. 50 per lac bricks be charged from all the kilnowner irrespective of the fact where they construct brick-kilns on the land belonging to Government or not. In case they construct brick-kilns on the land belonging to Government, cost (of the land) or damages thereof be charged (from them) in addition to the Mehsul (Royalty). . . . ."5.The provisions of S. 13 (2) of the Indian Finance Act, 1950 clearly show that only a law corresponding to the Central Excises and Salt Act, 1944, was intended to be repealed. If the law did not correspond to the Indian statute, it would be saved by virtue of Art. 277.We have thus to determine in this case whether the Robkar of the Ijlas-i-Khas, imposing a royalty on bricks can be said to be a law corresponding to the Central Excises and Salt Act, 1944, which was extended on April 1, 1950.6. The argument of Mr. Daphtary proceeds on the assumption that the royalty is in the nature of an excise duty, and the Robkar is thus a law corresponding to the Indian statute. That, however, does not determine the question, because the words of sub-s. (2) of S. 13 of the Finance Act, 1950 are that the law repealed must be a law corresponding to the Indian statute. The argument in support of the contention that this is such a law is that the Central Excises and Salt Act, 1944 is, as its long title and preamble show, a consolidating and amending law relating to Central duties of excises on goods manufactured or produced in certain parts of India and to salt. It is urged that the Act is in the nature of a code which not only provides for the levy of excise duty on the commodities specifically mentioned therein but by implication, exonerates other articles from the levy of excise duty, and that, therefore, the Indian statute is comprehensive enough to include not only such commodities as are mentioned in it but also other commodities on which there is no levy. It is conceded, however that there is no negative provision under which other goods manufactured in India are expressly saved from the operation of any other law.7. Section 3 (1) of the Central Excises and Salt Act, 1944 lays down the charge of excise duty, and provides:"There shall be levied and collected in such manner as may be prescribed duties of excise on all excisable goods other than salt which are produced or manufactured in Indian . . . . . . at the rates, set forth in the First Schedule."Excisable goods" is defined by S. 2 (d), and means "goods specified in the First Schedule as being subject to a duty of excise and includes salt".These two provision read together limit the operation of the excise law to enumerated commodities and salt, and the ambit of the law is thus confined. The words "to consolidate and amend the law" have reference really to the Acts, which were repealed by S. 39. Prior to the enactment of this consolidating Act, there were no less than 17 Acts dealing with different commodities, and in 1944, all those laws were repealed, and a consolidated Act was passed to cover al those Acts and to include certain new commodities. The effect of consolidation was not to codify the law in such a way as to repeal other Acts, which were not specifically mentioned in the Schedule dealing with repeals. No negative provision to save other commodities from the operation of any existing local law was either expressly included or even contemplated in the Act. The result, therefore, is quite clear that the Robkar under which the royalty was imposed, cannot be said to be a law corresponding to the Central Excises and Salt Act, 1944, and is, therefore, not within the repeal created by S. 13 (2) of the Indian Finance Act, 1950.
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1[ds]7. Section 3 (1) ofthe Central Excises and Salt Act, 1944 lays down the charge of excise duty, andshall be levied and collected in such manner as may be prescribed duties of excise on all excisable goods other than salt which are produced or manufactured in Indian . . . . . . at the rates, set forth in the First Schedule."Excisable goods" is defined by S. 2 (d), and means "goods specified in the First Schedule as being subject to a duty of excise and includes salt".These two provision read together limit the operation of the excise law to enumerated commodities and salt, and the ambit of the law is thus confined. The words "to consolidate and amend the law" have reference really to the Acts, which were repealed by S. 39. Prior to the enactment of this consolidating Act, there were no less than 17 Acts dealing with different commodities, and in 1944, all those laws were repealed, and a consolidated Act was passed to cover al those Acts and to include certain new commodities. The effect of consolidation was not to codify the law in such a way as to repeal other Acts, which were not specifically mentioned in the Schedule dealing with repeals. No negative provision to save other commodities from the operation of any existing local law was either expressly included or even contemplated in the Act. The result, therefore, is quite clear that the Robkar under which the royalty was imposed, cannot be said to be a law corresponding tothe Central Excises and Salt Act, 1944, and is, therefore, not within the repeal created by S. 13 (2) of the Indian Finance Act, 1950.
| 1 | 1,320 | 326 |
### 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:
to be effective, after the enactment of the Indian Finance Act 1950. The suit was filed on May 13, 1952, for injunction against notices of demand issued to the appellants from the Tehsil Office, Faridkot on or about April 20, 1951. The learned Solicitor-General concedes that the appellants claim must be confined to the period after April 1, 1950, from which date the Indian Finance Act, 1950 began to operate. He states that prior to that date the law could not be considered to be invalid because of Art. 277, which saved taxes, duties, cesses or fees which were being levied in any State prior to the commencement of the Constitution. He also concedes that the Finance Act, 1950 could not operate before April 1, 1950, and the question, therefore, is, what is the effect of the Indian Finance Act, 1950 on the order impugned? It may also be pointed out that the authority of the Regency Council to issue the impugned order and the validity of that order, unless affected by any Indian Law, are not called in question.4. The Indian Finance Act, 1950 was passed to give effect to the financial proposals for the year commencing on April 1, 1950.Section 11 of that Act extended, amongst others, the Central Excises and Salt act, 1944, to the whole of India including Part B States, except the State of Jammu and Kashmir.By S. 13 (2), it was provided, inter alia, as follows:"If immediately before the 1st day of April 1950, there is in force in any State other than Jammu and Kashmir a law corresponding to, but other than an Act referred to in sub-s. (1) or (2) of S. 11, such law is hereby repealed with effect from the said date . . . ."It is contended that by the extension of the Central Excises and Salt Act, 1944 there was repeal of any law imposing excise duty on the manufacture of any class of goods.Attention is, therefore, drawn to the provisions of the Robkar, where the royalty is charged as follows:Mehsul (Royalty) at the rate of Rs. 50 per lac bricks be charged from all the kilnowner irrespective of the fact where they construct brick-kilns on the land belonging to Government or not. In case they construct brick-kilns on the land belonging to Government, cost (of the land) or damages thereof be charged (from them) in addition to the Mehsul (Royalty). . . . ."5.The provisions of S. 13 (2) of the Indian Finance Act, 1950 clearly show that only a law corresponding to the Central Excises and Salt Act, 1944, was intended to be repealed. If the law did not correspond to the Indian statute, it would be saved by virtue of Art. 277.We have thus to determine in this case whether the Robkar of the Ijlas-i-Khas, imposing a royalty on bricks can be said to be a law corresponding to the Central Excises and Salt Act, 1944, which was extended on April 1, 1950.6. The argument of Mr. Daphtary proceeds on the assumption that the royalty is in the nature of an excise duty, and the Robkar is thus a law corresponding to the Indian statute. That, however, does not determine the question, because the words of sub-s. (2) of S. 13 of the Finance Act, 1950 are that the law repealed must be a law corresponding to the Indian statute. The argument in support of the contention that this is such a law is that the Central Excises and Salt Act, 1944 is, as its long title and preamble show, a consolidating and amending law relating to Central duties of excises on goods manufactured or produced in certain parts of India and to salt. It is urged that the Act is in the nature of a code which not only provides for the levy of excise duty on the commodities specifically mentioned therein but by implication, exonerates other articles from the levy of excise duty, and that, therefore, the Indian statute is comprehensive enough to include not only such commodities as are mentioned in it but also other commodities on which there is no levy. It is conceded, however that there is no negative provision under which other goods manufactured in India are expressly saved from the operation of any other law.7. Section 3 (1) of the Central Excises and Salt Act, 1944 lays down the charge of excise duty, and provides:"There shall be levied and collected in such manner as may be prescribed duties of excise on all excisable goods other than salt which are produced or manufactured in Indian . . . . . . at the rates, set forth in the First Schedule."Excisable goods" is defined by S. 2 (d), and means "goods specified in the First Schedule as being subject to a duty of excise and includes salt".These two provision read together limit the operation of the excise law to enumerated commodities and salt, and the ambit of the law is thus confined. The words "to consolidate and amend the law" have reference really to the Acts, which were repealed by S. 39. Prior to the enactment of this consolidating Act, there were no less than 17 Acts dealing with different commodities, and in 1944, all those laws were repealed, and a consolidated Act was passed to cover al those Acts and to include certain new commodities. The effect of consolidation was not to codify the law in such a way as to repeal other Acts, which were not specifically mentioned in the Schedule dealing with repeals. No negative provision to save other commodities from the operation of any existing local law was either expressly included or even contemplated in the Act. The result, therefore, is quite clear that the Robkar under which the royalty was imposed, cannot be said to be a law corresponding to the Central Excises and Salt Act, 1944, and is, therefore, not within the repeal created by S. 13 (2) of the Indian Finance Act, 1950.
### Response:
1
### Explanation:
7. Section 3 (1) ofthe Central Excises and Salt Act, 1944 lays down the charge of excise duty, andshall be levied and collected in such manner as may be prescribed duties of excise on all excisable goods other than salt which are produced or manufactured in Indian . . . . . . at the rates, set forth in the First Schedule."Excisable goods" is defined by S. 2 (d), and means "goods specified in the First Schedule as being subject to a duty of excise and includes salt".These two provision read together limit the operation of the excise law to enumerated commodities and salt, and the ambit of the law is thus confined. The words "to consolidate and amend the law" have reference really to the Acts, which were repealed by S. 39. Prior to the enactment of this consolidating Act, there were no less than 17 Acts dealing with different commodities, and in 1944, all those laws were repealed, and a consolidated Act was passed to cover al those Acts and to include certain new commodities. The effect of consolidation was not to codify the law in such a way as to repeal other Acts, which were not specifically mentioned in the Schedule dealing with repeals. No negative provision to save other commodities from the operation of any existing local law was either expressly included or even contemplated in the Act. The result, therefore, is quite clear that the Robkar under which the royalty was imposed, cannot be said to be a law corresponding tothe Central Excises and Salt Act, 1944, and is, therefore, not within the repeal created by S. 13 (2) of the Indian Finance Act, 1950.
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M. P. V. Sundararamier & Company & Others Vs. State of Andhra Pradesh & Another
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is enacted. Therefore the explanation can only be read as contemplating a State other than Andhra as the State inside which a sale shall be deemed to have taken place. This is the inevitable result produced by the opening words of the explanation understood according to their plain meaning. So the explanation, omitting portions of it for the sake of clarity, can only be read in the manner shown below :"For the purposes of clause (a) (i) a sale or purchase shall be deemed to have taken place in the State being a State other than Andhra, in which the goods have been actually delivered notwithstanding that the property in the goods has passed in the State of Andhra." I therefore find it impossible to say that the explanation states that a sale shall be deemed to have taken place inside Andhra if under it the goods have been delivered there though the property in them passed in another State. The explanation does not hence, in my view, authorise the taxation of a sale under which goods are delivered in Andhra though property in them passed in Madras. 77. The view that I have taken of the purpose of the explanation in S. 22 was taken of the purpose of the explanation in Art. 286 (1) (a) in the Bengal Immunity Company Case (C) (supra). It was said at p. 646 of the report. "Here the avowed purpose of the Explanation is to explain what an outside sale referred to in sub-clause (a) is". The language of the explanations and the setting of each in its respective provision are identical. That language must therefore have the same meaning. It is said that the consideration that prevailed with the Court in the Bengal Immunity Company Case (C) (supra) in dealing with Art. 286 cannot apply in dealing with S. 22 for the latter is a provision in a taxing statute which the former is not. But I do not see that this comment, even justified, would lead to a different meaning being put on words used when they occur in a taxing statute which does not purport to levy a tax. As a matter of language only, words must have the same meaning. The words "for the purpose of clause (a) (i)" must therefore have the same meaning in the explanation in Art. 286 (1) (a) as in the explanation in S. 22. I am unable to distinguish the present case from the Bengal Immunity Company Case (C) (supra) for the purpose of determining the meaning of the words used. 78. It is then said that the explanation in S. 22 has two facets; that when it talks of a sale inside one State, it at the same time necessarily talks of a sale outside all other States. Therefore it is said that when under a sale goods are delivered in Andhra but property in them passes outside Andhra, the explanation at the same time makes such a sale inside Andhra and outside all other States. I do not follow this. Why should the explanation in this Andhra Act be concerned with saying when a sale shall be deemed to have taken place outside all other States ? Andhra cannot of course legislate for any other State. Nor is there anything in this Act which makes it necessary for the purposes of it to say when a sale shall be deemed to be outside all other States. It follows therefore that a construction cannot be put on the language used in the explanation which produces the result of showing a sale to be inside Andhra and so outside all other States. Further, as I have earlier pointed out, the words "For the purposes of clause (a) (i)" with which the explanation starts, show conclusively that it is necessarily confined to a sale under which goods are delivered in a State other than Andhra and the property in the goods passes in Andhra. It is no objection to this reading of the explanation to say that the Andhra Act would then be saying when a sale is to be deemed to have taken place inside another State and it has no power to do so as it can legislate only for itself and for no other State. Such an objection would be pointless because Andhra by saying that a sale shall be deemed to have taken place inside another State is only legislating for itself and only saying that such a sale is therefore an outside sale so far as it is concerned and cannot be taxed in view of S. 22 (a) of its Act. It may be that it is possible in construing the explanation in Art. 286 (1) (a) to conceive of two facets because that dealt with all States or any two States at a time and for all these the Constitution was fully competent to lay down the law. That however is not possible when construing a law passed by a State Legislature. Such law cannot regulate the laws of other States. And in this case the conception is further impossible because the language shows that the explanation is for explaining when a sale is to be deemed to have taken place outside the State of Andhra. It is not meant to explain when it is deemed to have taken place outside any State whatsoever that State may be. I am therefore unable to see that the explanation has any facet showing what would be a sale inside Andhra. 79.The conclusion that I reach is that the Sales Tax Act with which these cases are concerned does not authorise the taxing of a sale under which goods are delivered in Andhra but the property in them passes in Madras.In this view of the matter I do not think it necessary to discuss the various other grounds on which the respondents right to tax these sales was also challenged. 80. In the result I would allow these petitions.
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0[ds]It must, therefore, be taken that under the act, as it stood prior to the Constitution, the State of Madras had no power to impose a tax on sales of the kind mentioned in the Explanation to Art. 286 (1) (a). Now, the question is whether the Adaptation Order of the President (Fourth Amendment) dated July 2, 1952, has, by the insertion of S. 22 in the Madras act, altered the position. The contention of the respondent is that it has, because it has bodily incorporated the Explanation to Art. 286 (1) (a) in the section itself, and as under that Explanation, all sales falling within its ambit would be sales inside the State of Madras, they became taxable as sales within the definition in S. 2 (h) of the Madras Act; and that accordingly under S. 22 of the Andhra (Madras) Act the Explanation sales become taxable by the Andhra State as sales within that State17. The error in this argument lies in this that it focusses attention exclusively on the terms in which the Explanations are couched in Art. 286 (1) (a) and in S. 22 and completely overlooks the fundamental difference in the context and setting of these two enactments. The scope and purpose of Art. 286 have been considered at length in the decisions of this Court in The United Motors Case (B) as also in The Bengal Immunity Company Case (C) (supra), and it is sufficient to briefly recapitulate them.Under Entry 48 in List II of the Seventh Schedule tothe Government of India Act,, the Provincial Legislature had the exclusive competence to enact a law imposing a tax on the sale of goods, and under S. 99 (1), such a law could be made "for the Province or for any part thereof"In fact, acting on the nexus theory the Legislatures of the States enacted Sales Tax Laws adopting one or more of the nexi as the basis of taxation. This resulted in multiple taxation, as a consequence of which the free flow of commerce between the States became obstructed and the larger economics interests of the country suffered. It was to repair this mischief that the Constitution, while retaining the power in the States to tax sales under Entry 54 in List II sought to impose certain restrictions on that power in Art. 286. One of those retractions is contained in Art. 186 (1) (a) which prohibits a State from taxing outside sales. The Explanation now under consideration is attached to this provision, and it is in this context, viz., in its setting in an Article, the object of which was to impose fetters on the legislative powers of the States, that this Court observed that though positive in form, it was in substance negative in character, and that its true purpose was not to confer any fresh power of taxation on the State but to restrict the power which it previously had under Entry 54It should be remembered that unlike the Constitution, the law of a State can speak only within its own territories. It cannot operate either to invest another State with a power which it does not possess, or divest it of a power which it does possess under the Constitution. Its mandates can run only within its own borders. That being the position, what purpose would the Explanation serve in S. 22 of the Madras Act, if it merely meant that when goods are delivered under a contract of sale for consumption in the State of Madras, the outside State in which property in the goods passes has no power to tax the sale ? That is not the concern of the State of Madras, and indeed, the Legislature of Madras would be incompetent to enact such a law. In its context and setting, therefore, the Explanation to S. 22 must mean that it authorises the State of Madras to impose a tax on sales falling within its purview. Thus, while in the context of Art. 286 (1) (a) the Explanation thereto could be construed as purely negative in character though positive in form, it cannot be so construed in its setting in S. 22 of the Madras Act, where it must have a positive contentAccording to the definition in S. 2 (h), a sale in which property passes inside the State of Madras will be liable to be taxed, even though the goods are delivered for consumption outside that State, but under the Explanation such a sale will be deemed to have taken place in the outside State in which goods are delivered for consumption, and therefore the State of Madras will have no power to tax it. The purpose which the non-obstante clause serves is to render the Explanation effective against the definition is S. 2(h) and not to render it ineffective in its own sphere, as determined on its termsAgain, it is a rule of construction well-established that the several sections forming part of a statute should be read, unless there are compelling reasons contra, as constituting a single scheme and construed in such manner as would give effect to all of them. On this principle, S. 2(h) and S. 22 must be read together as defining what are sales, which are taxable under the Act and what are not, and so read, the Explanation really means that in sales in which goods are delivered for consumption in the State of Madras, the property therein shall be deemed to have passed inside that State, notwithstanding that it has, under the Sale of Good Act, passed outside that State. On this construction, those sales will fall within the definition in S. 2(h) and will be taxable.The contention of the petitioners, highly technical and based on the non-insertion of the Explanation in S. 2(h) must, in our opinion be rejected as unsound23. It should be remembered in this connection that the power which the President has under Art. 372(2) to adapt is the legislative power of the State whose law is adapted, and that includes the power to repeal and amend any provision. Provided that the law as adapted is within the legislative competence of the State and its enactment is in the process of bringing the State law into conformity with Art. 286, it seems to us that it is within the ambit of the power conferred by Art. 372 (2)If the adaptation order is within the scope of Art. 372 (2), then it is valid of its own force, and does not require the aid of a clause such as is contained in the concluding portions thereof. It is only when the adaptation amounts to something more than merely bringing the State law into conformity with the Constitutional provisions that there can arise a need for such a clause. In our opinion the effect of the concluding words of Art. 372 (2) is to render the question of the validity of the adaptation non-justiciable. The Adaptation Order in question must, accordingly, be held to be not open to attack on the ground that it goes beyond the limits contemplated by Art. 372 (2)We are therefore thrown back on the language of the Explanation itself to discover its true scope. If, in enacting the Explanation, the adaptation order merely intended to prohibit the State of Madras from imposing tax on sales under which goods are delivered for consumption outside that State even though property therein passed inside that State, it would clearly have expressed that intention in words to the following effect : "For the purpose of clause (a) (i); a sale under which goods are delivered for consumption outside the State of Madras shall be deemed to have taken place outside that State, notwithstanding that property in those goods passed inside that State."But the language of the Explanation is general, and fixes the situs of sales of an inter-State character in the State in which goods are actually delivered for consumption. Under this Explanation, a sale under which goods are delivery outside the State of Madras will be an outside sale for that State even though property in the goods passed inside that State, and likewise, a sale under which goods are delivered inside the State of Madras will be an inside sale for that State, even though property in the goods passed outside that State. As the language of the Explanation is general and of sufficient amplitude not merely to restrict but also to add to the power of the State to tax Explanation sales, and the reasons for construing it as purely restrictive in Art. 286 (1) (a) are, as already stated, without force in their application to a taxing statute, we must give full effect to the words of the enactment, and hold that they operate to confer on the State a power to tax Explanation salesArticle 286 (2) consists of two parts, one imposing a restriction on the power possessed by the State to tax sales under Entry 54 in so far as such sales are in the course of inter-State trade and commerce and another, vesting in Parliament a power to enact a law removing that restriction. If S. 22 had merely enacted that portion of Art. 286 (2) which prohibited imposition of taxes on inter-State sales, that might have furnished some plausible ground for the contention now urged by the petitioners; but it enacts both the parts of Art. 286 (2), the restriction, imposed therein and also the condition on which that restriction is be cease, viz., Parliament providing otherwise by law.Taken along with the admitted power of the States to impose tax on sales under Entry 54, the true scope of S. 22 is that it does impose a tax on the Explanation sales, but the imposition is to take effect only when Parliament lifts the ban. In other words, it is a piece of legislation imposing tax in praesenti but with a condition annexed that it is to come into force in futuro as and when Parliament so provides.It is not contended that there is in the Constitution any inhibition against conditional legislation.In the Queen v. Burah, 5, In App 178 (H), it was held by the Privy Council that a Legislature acting within the ambit of authority conferred on it by the Constitution has the power to enact a law either absolutely or conditionally, and that position has been repeatedly affirmed in this Court.Vide In reThe Delhi Laws Act,The only basis for this contention in the Act is its description in the Short Title as the "Sales Tax Laws Validation Act" and the marginal note to S. 2, which is similarly worded. But the true nature of a law has to be determined not on the label given to it in the statute but on its substance. Section 2 of the impugned Act which is the only substantive enactment therein makes no mention of any validation. It only provides that no law of a State imposing tax on sale shall be deemed to be invalid merely because such sales are in the course of inter-State trade or commerce. The effect of this provision is merely to liberate the State laws from the fetter placed on them by Art. 286 (2) and to enable such laws to operate on their own terms. The true scope of rate on their own terms. The true scope of the impugned Act is, to adopt the language of this Court in the decisions in The United Motors Case (B) and The Bengal Immunity Company Case (C) (supra) that it lifts the ban imposed on the States against taxing inter-State sales and not that it validates or ratifies any such law.Considering the legislation on its substance, we have no doubt that it is within the scope of the authority conferred on Parliament by Art. 286 (2) and is not ultra viresThis decision proceeded solely on the connotation of the word "prohibits" in S. 298 (2), Government of India Act, and can be of no assistance in the construction of Art. 286 (2), wherein that word does not occur. And even on the substance of it, we see no real analogy between the case in Punjab Province v. Daulat Singh (P) (supra) and the present. There, the law which was authorised by S. 298 (2) was one prohibiting certain transfers; here the law which Parliament is authorised to make is one not "prohibiting the States from imposing tax on inter-State sales, but permitting them to do so. While a law prohibiting transfers must be prospective, a law authorising imposition of tax need not be. It can be both prospective and retrospectiveThe impugned Act does not do that, but validates ex post facto laws of States imposing such a tax retrospectively for the specified period. Such a general law may be intra vires the States but not Parliament, nor is it one which can be justified by the power granted to it to "provide otherwise". It is therefore unconstitutional and void. In our opinion, this argument is only an amalgam of the two contentions already dealt with, and does not require further detailed consideration.The impugned Act, though it is in name a validating Act, is in essence a law lifting the ban under Art. 286 (2), and if no limitation on the character of that law could be spelt out of the language of that Article , then it must be upheld as within the authority conferred by itIf it is competent to the legislatures of the States to enact a law imposing a tax on inter-State sales to take effect when Parliament so provides, there is nothing unconstitutional or illegal either in S. 22 of the Madras Act or in the corresponding provisions in the Acts of other States. If conditional legislation is valid, as we have held it is, then S. 22 is clearly intra vires, and the foundation on which this contention of the petitioners rests, disappears and it must fall to the ground. In the result, we are of opinion that the impugned Act is intra vires, and is not open to challenge on any of the grounds put forward by the petitionersThe law of a State signifies, in its ordinary acceptation, whatever is an expression of the legislative, as distinguished from the executive or judicial power of a State. Its normal mode under the Constitution is no doubt that it is enacted by the Legislature of the State constituted in accordance with the procedure prescribed therein. But that is not the only mode in which the legislative power of the State could be exercised.Under Art. 213, the Governor is authorised, subject to the conditions laid down therein, to issue Ordinances which have the force of law, and these Ordinances are clearly laws of the State and not the less so by reason of their not having been passed by the State Legislature. Under Art. 252, it is open to Parliament acting on resolutions of the Legislatures of two or more States, to enact laws on subjects which are within the exclusive competence of the States, a recent instance of such legislation being Act No. XLII of 1955, the validity of which was the subject of consideration in R. M. D. Chamarbaugwalla v. Union of India , 1957 S C J 593 : ((S) AIR 1957 S C 628) (R)We entertain no doubt that by the expression "law of a State" in Art. 286 (2) and S. 2 of the impugned Act is meant whatever operates as law in the State, and that S. 22 of the Madras Act is a law within those enactments. Nor does it affect this conclusion that that law may not be open to challenge in a Court of law. A right to challenge a law must depend on the provisions of the Constitution governing the matter, and if those provisions enact that it is not open to question in a Court of law or that it is liable to be questioned only on certain specified grounds, that will not have the effect of depriving a statute duly enacted of its character as law. We are also not satisfied that a law as adapted under Art. 373 (2) is not open to attack on the ground that it contravenes some Constitutional provision. We are disposed to think that the concluding words of Art. 372 (2) preclude an attack on the adaptation order only on the ground that it does more than merely bringing the State law into conformity with the Constitution and is, in consequence, ultra vires the powers conferred by that Article. In the result, we must hold that S. 22 of the Madras Act is within the protection afforded by S. 2 of the impugned Act39. In our judgment, the language of the enactment is too clear and unambiguous to admit of this contention. If the purpose of the enactment is what the petitioners contend it to be, then nothing would have been easier for the Legislature than to have so framed the section as to confine its operation to levies or collections already made without giving effect to the law itself. On the contention of the petitioners, the first clause has to be discarded as wholly inoperative, and we should be loth to adopt a construction which leads to that result. It is true that on the contention of the State that the first clause had independent operation the second clause would be unnecessary, as even without it, the result sought to be achieved by it must follow on the first clause itself.But it is to be noted that the first clause has reference to the exercise of legislative power while the second is concerned with administrative action, and it is possible that the second clause might have been enacted by way of abundant caution. It is nothing strange or unusual for a Legislature to insert a provision ex abundanti cautela, so as to disarm possible objection; but it is inconceivable that it should enact a provision which is wholly inoperative. Of two alternative constructions of which one leads to the former and the other involves the latter result, there cannot be any question that it is the former that is to be preferred. Nor is it permissible to cut down the plain meaning of the terms of the statute on considerations of policy behind the legislation.But even from that point of view, there was the fact that there were dealers who had collected taxes from the purchasers for payment to the State, but were relieved of that obligation by the judgment in The Bengal Immunity Case (C) that , further, to validate only levies and collections made would give an advantage to those who evaded the law as then understood, over those who loyally obeyed it. It follows that we are unable to agree with the decision in Dialdas v. P. S. Talwalkar (L) (supra),in so far as it held that it was not competent to the State to start fresh proceedings for assessment of tax on the strength of the impugned Act. In out opinion, the true construction of S. 2 is that the two clauses therein are, as indicated by the conjunction, distinct and independent in their operation, and that the laws of the States are kept in force in respect of sales which had taken place during the specified period, and that proceedings in respect thereof for assessment are within the protection of the ActBut the impugned Act is in no sense a temporary Act. its life is not limited to any specified period. It is a permanent statute operating on all sales which took place during the specified period. The fallacy in this contention of the petitioners lies in mixing up the period, the sales during which are brought within the operation of the Act, with the period of the operation of the Act itself. The former may be said to be temporary, but the latter clearly is notIt would be sufficient answer to this contention that S. 22 of the Madras Act is only a piece of conditional legislation, imposing tax on inter-State sales when Parliament should enact a law lifting the ban, and if such legislation is competent as we have held it is, then no question of unconstitutionality of the section when it was enacted could arise.But it would be more satisfactory to decide the point on its own merits, as the question raised has been, of late, the subject of considerable discussion in this CourtThus, a law of the State on an Entry in List I, Sch. VII of the Constitution would be wholly incompetent and void. But the law may be on a topic within its competence, as for example, an Entry in List II, but it might infringe restriction imposed by the Constitution on the character of the law to be passed, as for example, limitations enacted in Part III of the Constitution. Here also the law to the extent of the repugnancy will be void.Thus, a legislation on a topic not within the competence of the Legislature and a legislation within its competence but violative of Constitutional limitations have both the same reckoning in a Court of law; they are both of them unenforceable. But does it follow from this that both the laws are of the same quality and character, and stand on the same footing for all purposes ?This question has been the subject of consideration in numerous decisions in the American Courts, andthe preponderance of authority is in favour of the view that while a law on a matter not within the competence of the Legislature is a nullity, a law on a topic within its competence but repugnant to the Constitutional prohibitions is only unenforceable. This distinction has a material bearing on the present discussion. If a law is on a field not within the domain of the Legislature, it is absolutely null and void, and a subsequent cession of that field to the Legislature will not have the effect of breathing life into what was a still-born piece of legislation and a fresh legislation on the subject would be requisite. But if the law is in respect of a matter assigned to the Legislature but its provisions disregard Constitutional prohibitions, though the law would be unenforceable by reason of those prohibitions, when once they are removed, the law will become effective without reenactmentWhere an enactment is unconstitutional in part but valid as to the rest, assuming of course that the two portions are severable, it cannot be held to have been wiped out of the statute book as it admittedly must remain there for the purpose of enforcement of the valid portion thereof, and being on the statute book, even that portion which is unenforceable on the ground that it is unconstitutional will operate proprio vigore when the Constitutional bar is removed, and there is no need for a fresh legislation to give effect thereto.On this view, the contention of the petitioners with reference to the Explanation in S. 22 of the Madras Act must fail.That Explanation operates, as already stated, on two classes of transactions. It renders taxation of sales in which the property in the goods passes in Madras but delivery takes place outside Madras illegal on the ground that they are outside sales falling within Art. 286 (1) (a). It also authorises the imposition of tax on the sales in which the property in the goods passes outside Madras but goods are delivered for consumption within Madras. It is valid in so far as it prohibits tax on outside sales, but invalid in so far as sales which goods are delivered inside the State are concerned, because such sales are hit by Art. 286 (2). The fact that it is invalid as to a part has not the effect of obliterating it out of the statute book, because it is valid as to a part and has to remain in the statute book for being enforced as to that part. The result of the enactment of the impugned Act is to lift the ban under Art. 286 (2), and the consequence of it is that that portion of the Explanation which relates to sales in which property passes outside Madras but the goods are delivered inside Madras and which was unenforceable before, became valid and enforceable.In this view, we do not feel called upon to express any opinion as to whether it would make any difference in the result if the impugned provision was unconstitutional in its entiretyArticle 286 (2) does not provide that a law which contravenes it is void, and when regard is had to the context of that provision, it is difficult to draw the inference that that is the consequence of contravention of that provision. Article 372 (1) provides for the continuance in force of all laws existing at the date of the Constitution. The proviso to Art. 286 (2) enacts that the President may by an order-continue operation of the Sales Tax Law up to 31st March 1951, and Art. 286 (2) itself enacts that no law of a State shall impose a tax. In the context in which they occur, the true meaning to be given to these words is, as already observed, that no law of State shall be effective to impose a tax; that is to say, the law cannot be enforced in so far as it imposes such a tax. Whether we consider the question on broad principles as to the effect of unconstitutionality of a statute or on the language of Art. 286 (2),the conclusion is inescapable that S. 22 of the Madras Act and the corresponding provisions in the other statutes cannot be held to be null and void and non est by reason of their being repugnant of Art. 286 (2) and the bar under that Article having been now removed, there is no legal impediment to effect being given to themIt overlooks that our Constitution was not written on a tabula-rasa, that a Federal Constitution has been established underthe Government of India Act,, and though that has undergone considerable change by way of repeal, modification and addition, it still remains the framework on which the present Constitution is built, and that the provisions of the Constitution must accordingly be read in the light of the provisions of the Government of India Act. It fails to give due weight to the setting of the relevant provisions of the Constitution and the interpretation which is to be put upon them in their context. Inthe Government of India Act,, there was no Entry corresponding to Entry 42 in List I of the Constitution. But there was in List II, Entry 48 which corresponds to Entry 54 in the Constitution. It is not in dispute that under Entry 48 the States had power to pass a law imposing a tax on inter-State sales, because the terms of the Entry are wide and would include inter-State as well as inter-State sales. It was on this view that the Provinces had enacted laws imposing tax on inter-State sales. Then the Constitution came into force, and it included for the first time a new Entry 42 in List I. It also reproduced Entry 48 in Entry 54 in List II in terms, for our purposes, identical. Having regard to the connotation of that Entry inthe Government of India Act,, one would have expected that if it was intended by the Constitution-makers that the States should be deprived of the power to tax inter-State sales which they had under Entry 48 inthe Government of India Act,that would have been made clear in the entry itself. It is material to note that while Entry 48 in the Government of India Act was "Taxes on the sale of goods and on advertisement", Entry 54 in List II of the Constitution as originally enacted was "Taxes on the sale or purchase of goods other than newspapers". Thus, the Constitution did limit the scope of entry 48 by excluding from it newspapers and if it was its intention to exclude inter-State sales from its purview, nothing would have been easier for it than to have said so,instead of leaving that result to be referred on a construction of Entry 42 in List I in the light of the American authorities on the Commerce Clause. This is strong indication that Entry 42 is not to be read as including tax on inter-State sales. This conclusion is further strengthened, when regard is had to the scheme of the Lists in the Seventh Schedule and the principle underlying the enumeration of heads of legislation thereinThe above analysis - and it is not exhaustive of the Entries in the Lists - leads to the inference the taxation is not intended to be comprised in the main subject in which it might on an extended construction be regarded as included, but is treated as a distinct matter for purposes of legislative competence. And this distinction is also manifest in the language of Art. 248, Cls. (1) and (2) and of Entry 97 in List I of the Constitution. Construing Entry 42 in the light of the above scheme, it is difficult to resist the conclusion that the power of Parliament to legislate on inter-State trade and commerce under Entry 42 does not include a power to impose a tax on sales in the course of such trade and commerce55.To sum up : (1) Entry 54 is successor to Entry 48 inthe Government of India Act,and it would be legitimate to construe it as including tax on inter-State sales, unless, there is anything repugnant to it in the Constitution, and there is none such. (2) Under the scheme of the Entries in the Lists taxation is regarded as a distinct matter and is separately set out. (3) Article 286 (2) proceeds on the basis that it is the States that have the power to enact laws imposing tax on inter-State sales. It is a fair inference to draw from these considerations that under Entry 54 in List II the States are competent to enact laws imposing tax on inter-State salesIf it is possible therefore to construe Entry 42 as not including tax on inter-State sales, then on the principle enunciated in Province of Madras v. Boddu Paidanna and Sons (Z3) and Governor-General in Council v. Province of Madras (Z4) (supra), we should so construe it, as that will avoid a conflict between the two EntriesTherefore, valuable as the American decisions are as showing how the question is dealt with in a sister Federal Constitution, great care should be taken in applying them in the interpretation of our Constitution. We should not forget that it is our Constitution that we are to interpret, and that interpretation must depend on the context and setting of the particular provision which has to be interpreted. Applying these principles and having regard to the features already set out, we must hold that Entry 42 in List I is not to be interpreted as including taxation. The same remarks apply to the argument based upon S. 92 of the Commonwealth of Australia Act, 1900 and Art. 301 of our Constitution. We should also add that Art. 302 (a) of the Constitution cannot be interpreted as throwing any light on the scope of Art. 301 with reference to the question of taxation, as it merely reproduces S. 297 (1) (b) ofthe Government of India Act,and as there was no provision therein corresponding to Art. 301, S. 297 (1) (b) could not have implied what is now sought to be inferred from Art. 304 (a)59.In the result, we are of opinion that if the State had the power under Entry 54 to impose a tax on inter-State sales subject only to the restriction enacted in Art. 286 (2), then by virtue of the impugned Act such law is rendered operative and proceedings taken thereunder are valid.We have reached this conclusion on a construction of the statutory provisions bearing on the question without reference to the Sixth Amendment of the Constitution which, proceeding on the view that the States had the power to tax inter-State sales under Entry 54, has amended the Constitution, and has vested the power to tax inter-State sales in the CentreIn our opinion, S. 53 merely provides that the laws in existence in the territories which were constituted into the State of Andhra continue to operate as before. In fact, by an Adaptation Order issued on November 12, 1953, even the name of Andhra was substituted for Madras in the Madras General Sales Tax Act. There is no substance in this contention.
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is enacted. Therefore the explanation can only be read as contemplating a State other than Andhra as the State inside which a sale shall be deemed to have taken place. This is the inevitable result produced by the opening words of the explanation understood according to their plain meaning. So the explanation, omitting portions of it for the sake of clarity, can only be read in the manner shown below :"For the purposes of clause (a) (i) a sale or purchase shall be deemed to have taken place in the State being a State other than Andhra, in which the goods have been actually delivered notwithstanding that the property in the goods has passed in the State of Andhra." I therefore find it impossible to say that the explanation states that a sale shall be deemed to have taken place inside Andhra if under it the goods have been delivered there though the property in them passed in another State. The explanation does not hence, in my view, authorise the taxation of a sale under which goods are delivered in Andhra though property in them passed in Madras. 77. The view that I have taken of the purpose of the explanation in S. 22 was taken of the purpose of the explanation in Art. 286 (1) (a) in the Bengal Immunity Company Case (C) (supra). It was said at p. 646 of the report. "Here the avowed purpose of the Explanation is to explain what an outside sale referred to in sub-clause (a) is". The language of the explanations and the setting of each in its respective provision are identical. That language must therefore have the same meaning. It is said that the consideration that prevailed with the Court in the Bengal Immunity Company Case (C) (supra) in dealing with Art. 286 cannot apply in dealing with S. 22 for the latter is a provision in a taxing statute which the former is not. But I do not see that this comment, even justified, would lead to a different meaning being put on words used when they occur in a taxing statute which does not purport to levy a tax. As a matter of language only, words must have the same meaning. The words "for the purpose of clause (a) (i)" must therefore have the same meaning in the explanation in Art. 286 (1) (a) as in the explanation in S. 22. I am unable to distinguish the present case from the Bengal Immunity Company Case (C) (supra) for the purpose of determining the meaning of the words used. 78. It is then said that the explanation in S. 22 has two facets; that when it talks of a sale inside one State, it at the same time necessarily talks of a sale outside all other States. Therefore it is said that when under a sale goods are delivered in Andhra but property in them passes outside Andhra, the explanation at the same time makes such a sale inside Andhra and outside all other States. I do not follow this. Why should the explanation in this Andhra Act be concerned with saying when a sale shall be deemed to have taken place outside all other States ? Andhra cannot of course legislate for any other State. Nor is there anything in this Act which makes it necessary for the purposes of it to say when a sale shall be deemed to be outside all other States. It follows therefore that a construction cannot be put on the language used in the explanation which produces the result of showing a sale to be inside Andhra and so outside all other States. Further, as I have earlier pointed out, the words "For the purposes of clause (a) (i)" with which the explanation starts, show conclusively that it is necessarily confined to a sale under which goods are delivered in a State other than Andhra and the property in the goods passes in Andhra. It is no objection to this reading of the explanation to say that the Andhra Act would then be saying when a sale is to be deemed to have taken place inside another State and it has no power to do so as it can legislate only for itself and for no other State. Such an objection would be pointless because Andhra by saying that a sale shall be deemed to have taken place inside another State is only legislating for itself and only saying that such a sale is therefore an outside sale so far as it is concerned and cannot be taxed in view of S. 22 (a) of its Act. It may be that it is possible in construing the explanation in Art. 286 (1) (a) to conceive of two facets because that dealt with all States or any two States at a time and for all these the Constitution was fully competent to lay down the law. That however is not possible when construing a law passed by a State Legislature. Such law cannot regulate the laws of other States. And in this case the conception is further impossible because the language shows that the explanation is for explaining when a sale is to be deemed to have taken place outside the State of Andhra. It is not meant to explain when it is deemed to have taken place outside any State whatsoever that State may be. I am therefore unable to see that the explanation has any facet showing what would be a sale inside Andhra. 79.The conclusion that I reach is that the Sales Tax Act with which these cases are concerned does not authorise the taxing of a sale under which goods are delivered in Andhra but the property in them passes in Madras.In this view of the matter I do not think it necessary to discuss the various other grounds on which the respondents right to tax these sales was also challenged. 80. In the result I would allow these petitions.
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Constitution. But there was in List II, Entry 48 which corresponds to Entry 54 in the Constitution. It is not in dispute that under Entry 48 the States had power to pass a law imposing a tax on inter-State sales, because the terms of the Entry are wide and would include inter-State as well as inter-State sales. It was on this view that the Provinces had enacted laws imposing tax on inter-State sales. Then the Constitution came into force, and it included for the first time a new Entry 42 in List I. It also reproduced Entry 48 in Entry 54 in List II in terms, for our purposes, identical. Having regard to the connotation of that Entry inthe Government of India Act,, one would have expected that if it was intended by the Constitution-makers that the States should be deprived of the power to tax inter-State sales which they had under Entry 48 inthe Government of India Act,that would have been made clear in the entry itself. It is material to note that while Entry 48 in the Government of India Act was "Taxes on the sale of goods and on advertisement", Entry 54 in List II of the Constitution as originally enacted was "Taxes on the sale or purchase of goods other than newspapers". Thus, the Constitution did limit the scope of entry 48 by excluding from it newspapers and if it was its intention to exclude inter-State sales from its purview, nothing would have been easier for it than to have said so,instead of leaving that result to be referred on a construction of Entry 42 in List I in the light of the American authorities on the Commerce Clause. This is strong indication that Entry 42 is not to be read as including tax on inter-State sales. This conclusion is further strengthened, when regard is had to the scheme of the Lists in the Seventh Schedule and the principle underlying the enumeration of heads of legislation thereinThe above analysis - and it is not exhaustive of the Entries in the Lists - leads to the inference the taxation is not intended to be comprised in the main subject in which it might on an extended construction be regarded as included, but is treated as a distinct matter for purposes of legislative competence. And this distinction is also manifest in the language of Art. 248, Cls. (1) and (2) and of Entry 97 in List I of the Constitution. Construing Entry 42 in the light of the above scheme, it is difficult to resist the conclusion that the power of Parliament to legislate on inter-State trade and commerce under Entry 42 does not include a power to impose a tax on sales in the course of such trade and commerce55.To sum up : (1) Entry 54 is successor to Entry 48 inthe Government of India Act,and it would be legitimate to construe it as including tax on inter-State sales, unless, there is anything repugnant to it in the Constitution, and there is none such. (2) Under the scheme of the Entries in the Lists taxation is regarded as a distinct matter and is separately set out. (3) Article 286 (2) proceeds on the basis that it is the States that have the power to enact laws imposing tax on inter-State sales. It is a fair inference to draw from these considerations that under Entry 54 in List II the States are competent to enact laws imposing tax on inter-State salesIf it is possible therefore to construe Entry 42 as not including tax on inter-State sales, then on the principle enunciated in Province of Madras v. Boddu Paidanna and Sons (Z3) and Governor-General in Council v. Province of Madras (Z4) (supra), we should so construe it, as that will avoid a conflict between the two EntriesTherefore, valuable as the American decisions are as showing how the question is dealt with in a sister Federal Constitution, great care should be taken in applying them in the interpretation of our Constitution. We should not forget that it is our Constitution that we are to interpret, and that interpretation must depend on the context and setting of the particular provision which has to be interpreted. Applying these principles and having regard to the features already set out, we must hold that Entry 42 in List I is not to be interpreted as including taxation. The same remarks apply to the argument based upon S. 92 of the Commonwealth of Australia Act, 1900 and Art. 301 of our Constitution. We should also add that Art. 302 (a) of the Constitution cannot be interpreted as throwing any light on the scope of Art. 301 with reference to the question of taxation, as it merely reproduces S. 297 (1) (b) ofthe Government of India Act,and as there was no provision therein corresponding to Art. 301, S. 297 (1) (b) could not have implied what is now sought to be inferred from Art. 304 (a)59.In the result, we are of opinion that if the State had the power under Entry 54 to impose a tax on inter-State sales subject only to the restriction enacted in Art. 286 (2), then by virtue of the impugned Act such law is rendered operative and proceedings taken thereunder are valid.We have reached this conclusion on a construction of the statutory provisions bearing on the question without reference to the Sixth Amendment of the Constitution which, proceeding on the view that the States had the power to tax inter-State sales under Entry 54, has amended the Constitution, and has vested the power to tax inter-State sales in the CentreIn our opinion, S. 53 merely provides that the laws in existence in the territories which were constituted into the State of Andhra continue to operate as before. In fact, by an Adaptation Order issued on November 12, 1953, even the name of Andhra was substituted for Madras in the Madras General Sales Tax Act. There is no substance in this contention.
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U.P. State Electricity Board Vs. Radhey Mohan Verma
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1. Leave granted. 2. The appeal is directed against the order of the High Court of Allahabad in CMWP No. 12217 of 1983. The respondent was admittedly a suspended employee of Mirzapur Electricity Supply Co. (for short Company) against whom disciplinary pro ceedings were pending. On 1-9-1975, under Section 4(1) of the Indian Electricity Act, 1910, for short the Act, the licence of the Company was revoked under a memorandum of understanding and an agreement reached with the appellant. One of the terms thereof was that the appellant will not take any employee against whom disciplinary proceedings were pending. The appellant took over the Company. Eight years thereafter, the respondent filed the writ petition placing reliance on Section 6-A of the Act as amended by an U.P. Act and contended that the respondent was entitled to be taken into service, but was unlawfully prevented from discharging his duties. The High Court accepted the contention and issued the mandamus as prayed for with consequential reliefs. 3. The only question that arises in this case is whether the respondent is entitled to the relief under Section 6- A(3) of the Act. Sub-section (2) of Section 6-A reads thus "6-A. (2) Notwithstanding anything contained in Sections 4, 4-A, 5 and 6, the licence of every undertaking, unless revoked before the commencement of the Indian Electricity (Uttar Pradesh Second Amendment) Ordinance, 1975, shall stand revoked with effect from the appointed day." * Sub-section (3) of Section 6-A says that on revocation of the licence under sub- section (2) the following provisions shall have effect, namely, - (a) every undertaking the licence in respect of which stands revoked shall by virtue of this section stand and be deemed to have stood transferred to and vest and be deemed to have vested in the State Electricity Board, hereinafter in this section called the Board free from any debt, mortgage or similar obligation of the licence attaching to the undertaking:Provided that any such debt, mortgage or similar obligation shall attach to the amount payable for the undertaking as mentioned in clause (h); (b) the rights, powers, authorities, duties and obligation s of the licensee under his licence shall stand transferred to the Board and the licence shall cease to have further operation; (c) the licensee shall deliver forthwith the undertaking to the Board or to such officer as the Board may appoint in that behalf, and if any property or asset, book of account, register or other document forming part of the undertaking be in the possession, custody or control of any person other than a licensee, such person shall also deliver the same to the Board or to such officer as aforesaid; (f)the owner of every undertaking shall within sixty days from the appointed day or within such further time as the Board may allow in that behalf, furnish to the Board or to such officer as the Board may specify, complete particulars of all liabilities and obligations incurred on the security of the undertaking and subsisting on the appointed day, and also of all agreement and other instruments pertaining to the undertaking (including agreement, decrees, awards, standing orders and other instruments relating to leave, pension, gratuity, provident fund and other terms of service of any person employed in the undertaking) in force immediately before the appointed day and the Board shall afford him all reasonable facilities for the same; (g) the following provisions shall govern the working in the undertaking immediately before tire appointed day:- (i) Every person who has been immediately before the appointed day in the employment of the licensee shall become on and from the appointed day an employee of the Board on the same terms and conditions and with the same rights as to pension, gratuity and other matters as would have been admissible to him if the undertaking had not been transferred to and vested in the Board and continue to do so unless and until his employment under the Board is terminated or until his remuneration or other terms and conditions of employment are duly altered by the Board:".A combined reading of these provisions clearly indicates that notwithstanding anything contained in Sections 4, 4-A, 5 and 6 the licence of every undertaking, unless revoked before the commencement of the Indian Electricity (Uttar Pradesh Second Amendment) Ordinance, 1975 shall stand revoked with effect from the appointed day. On revocation of the licence under sub-section (2), the consequences enumerated in clauses (a) to (g) of Section 6-A(3) would flow (sic follow). The owner of every undertaking shall furnish to the Board or to its authorised officer complete particulars of all liabilities and pre-existing obligations.As seen, clause (g) postulates that every person who has been immediately before the appointed day, in the appointment of the licensee (Mirzapur Electricity Supply Co.) shall become or, and from the appointed date employee of the Board on the same terms and conditions.... IL Is seen that admittedly the licence of the Company was revoked on 1- 9-1975. The Ordinance had come into force on 2 7-11-1975. Much prior to the Ordinance had come into force, licence of the Company stood revoked on 1-9-1975. The consequence is that Section 6-A(2) became inapplicable. Once subsection (2) becomes inapplicable and it riot being a statutory revocation, operation of subsection (3) is not extended; consequently, the respondent was not a deemed employee by operation of law. Unfortunately, the High Court had riot considered this statutory operation. Therefore, the High Court has committed manifest error of law in allowing the writ petition and issuing mandamus and the consequential benefits sought for by the respondent. It is open to the respondent to pursue the remedy other than the relief sought for under Section 6-A(3).
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1[ds]On revocation of the licence under(2), the consequences enumerated in clauses (a) to (g) of Sectionwould flow (sic follow). The owner of every undertaking shall furnish to the Board or to its authorised officer complete particulars of all liabilities andobligations.As seen, clause (g) postulates that every person who has been immediately before the appointed day, in the appointment of the licensee (Mirzapur Electricity Supply Co.) shall become or, and from the appointed date employee of the Board on the same terms and conditions.... IL Is seen that admittedly the licence of the Company was revoked on 1The Ordinance had come into force on 2Much prior to the Ordinance had come into force, licence of the Company stood revoked onThe consequence is that Sectionbecame inapplicable. Once subsection (2) becomes inapplicable and it riot being a statutory revocation, operation of subsection (3) is not extended; consequently, the respondent was not a deemed employee by operation of law. Unfortunately, the High Court had riot considered this statutory operation. Therefore, the High Court has committed manifest error of law in allowing the writ petition and issuing mandamus and the consequential benefits sought for by the respondent. It is open to the respondent to pursue the remedy other than the relief sought for under Section
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### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
1. Leave granted. 2. The appeal is directed against the order of the High Court of Allahabad in CMWP No. 12217 of 1983. The respondent was admittedly a suspended employee of Mirzapur Electricity Supply Co. (for short Company) against whom disciplinary pro ceedings were pending. On 1-9-1975, under Section 4(1) of the Indian Electricity Act, 1910, for short the Act, the licence of the Company was revoked under a memorandum of understanding and an agreement reached with the appellant. One of the terms thereof was that the appellant will not take any employee against whom disciplinary proceedings were pending. The appellant took over the Company. Eight years thereafter, the respondent filed the writ petition placing reliance on Section 6-A of the Act as amended by an U.P. Act and contended that the respondent was entitled to be taken into service, but was unlawfully prevented from discharging his duties. The High Court accepted the contention and issued the mandamus as prayed for with consequential reliefs. 3. The only question that arises in this case is whether the respondent is entitled to the relief under Section 6- A(3) of the Act. Sub-section (2) of Section 6-A reads thus "6-A. (2) Notwithstanding anything contained in Sections 4, 4-A, 5 and 6, the licence of every undertaking, unless revoked before the commencement of the Indian Electricity (Uttar Pradesh Second Amendment) Ordinance, 1975, shall stand revoked with effect from the appointed day." * Sub-section (3) of Section 6-A says that on revocation of the licence under sub- section (2) the following provisions shall have effect, namely, - (a) every undertaking the licence in respect of which stands revoked shall by virtue of this section stand and be deemed to have stood transferred to and vest and be deemed to have vested in the State Electricity Board, hereinafter in this section called the Board free from any debt, mortgage or similar obligation of the licence attaching to the undertaking:Provided that any such debt, mortgage or similar obligation shall attach to the amount payable for the undertaking as mentioned in clause (h); (b) the rights, powers, authorities, duties and obligation s of the licensee under his licence shall stand transferred to the Board and the licence shall cease to have further operation; (c) the licensee shall deliver forthwith the undertaking to the Board or to such officer as the Board may appoint in that behalf, and if any property or asset, book of account, register or other document forming part of the undertaking be in the possession, custody or control of any person other than a licensee, such person shall also deliver the same to the Board or to such officer as aforesaid; (f)the owner of every undertaking shall within sixty days from the appointed day or within such further time as the Board may allow in that behalf, furnish to the Board or to such officer as the Board may specify, complete particulars of all liabilities and obligations incurred on the security of the undertaking and subsisting on the appointed day, and also of all agreement and other instruments pertaining to the undertaking (including agreement, decrees, awards, standing orders and other instruments relating to leave, pension, gratuity, provident fund and other terms of service of any person employed in the undertaking) in force immediately before the appointed day and the Board shall afford him all reasonable facilities for the same; (g) the following provisions shall govern the working in the undertaking immediately before tire appointed day:- (i) Every person who has been immediately before the appointed day in the employment of the licensee shall become on and from the appointed day an employee of the Board on the same terms and conditions and with the same rights as to pension, gratuity and other matters as would have been admissible to him if the undertaking had not been transferred to and vested in the Board and continue to do so unless and until his employment under the Board is terminated or until his remuneration or other terms and conditions of employment are duly altered by the Board:".A combined reading of these provisions clearly indicates that notwithstanding anything contained in Sections 4, 4-A, 5 and 6 the licence of every undertaking, unless revoked before the commencement of the Indian Electricity (Uttar Pradesh Second Amendment) Ordinance, 1975 shall stand revoked with effect from the appointed day. On revocation of the licence under sub-section (2), the consequences enumerated in clauses (a) to (g) of Section 6-A(3) would flow (sic follow). The owner of every undertaking shall furnish to the Board or to its authorised officer complete particulars of all liabilities and pre-existing obligations.As seen, clause (g) postulates that every person who has been immediately before the appointed day, in the appointment of the licensee (Mirzapur Electricity Supply Co.) shall become or, and from the appointed date employee of the Board on the same terms and conditions.... IL Is seen that admittedly the licence of the Company was revoked on 1- 9-1975. The Ordinance had come into force on 2 7-11-1975. Much prior to the Ordinance had come into force, licence of the Company stood revoked on 1-9-1975. The consequence is that Section 6-A(2) became inapplicable. Once subsection (2) becomes inapplicable and it riot being a statutory revocation, operation of subsection (3) is not extended; consequently, the respondent was not a deemed employee by operation of law. Unfortunately, the High Court had riot considered this statutory operation. Therefore, the High Court has committed manifest error of law in allowing the writ petition and issuing mandamus and the consequential benefits sought for by the respondent. It is open to the respondent to pursue the remedy other than the relief sought for under Section 6-A(3).
### Response:
1
### Explanation:
On revocation of the licence under(2), the consequences enumerated in clauses (a) to (g) of Sectionwould flow (sic follow). The owner of every undertaking shall furnish to the Board or to its authorised officer complete particulars of all liabilities andobligations.As seen, clause (g) postulates that every person who has been immediately before the appointed day, in the appointment of the licensee (Mirzapur Electricity Supply Co.) shall become or, and from the appointed date employee of the Board on the same terms and conditions.... IL Is seen that admittedly the licence of the Company was revoked on 1The Ordinance had come into force on 2Much prior to the Ordinance had come into force, licence of the Company stood revoked onThe consequence is that Sectionbecame inapplicable. Once subsection (2) becomes inapplicable and it riot being a statutory revocation, operation of subsection (3) is not extended; consequently, the respondent was not a deemed employee by operation of law. Unfortunately, the High Court had riot considered this statutory operation. Therefore, the High Court has committed manifest error of law in allowing the writ petition and issuing mandamus and the consequential benefits sought for by the respondent. It is open to the respondent to pursue the remedy other than the relief sought for under Section
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Tika Ram Vs. State Of U.P.
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High Court. Other contentions on merits65. Apart from these contentions, both Shri Trivedi, Learned Senior Counsel, as also Shri Qamar Ahmed, Learned Counsel again raised the same questions of facts like the non-publication of Sections 4 and 6 notifications. Insofar as that is concerned, we have mentioned it only for rejecting the contention. After the judgment of the High Court we will not go into that question again being a pure question of fact. Similar is the question raised about the land belonging to the cooperative society and the release of the same. We do not think that that question needs to be answered in the wake of the High Courts judgment. The High Court judgment is absolutely correct in that behalf. In our considered opinion, even if the Government had taken a decision not to acquire the land belonging to the cooperative society as far as possible, there is nothing wrong if such lands were acquired. What is to be seen is the bona fides of the Government behind the decision to acquire the lands. On that account no fault can be found with the concerned notifications under Sections 4 and 6.66. Similar contentions were raised regarding the possession. We do not propose to go into the question of facts and questions relating to the individual claims. We have noted that the respondents herein having specifically claimed that the possession of the lands has already been taken. Therefore, accepting that claim, as has been done by the High Court, we would not go into those questions of fact.67. To put the record straight, there is enough evidence in shape of the stand taken by the LDA in its counter affidavit before the High Court, where it was asserted that the possession was already taken. Even in the present Civil Appeal, the same stand is reported with reference to a particular date, i.e., 21.5.1985 that the possession was taken and there is also a true copy of the Panchanama on record. Insofar as the Civil Appeal Nos. 2116-2118 (Tika Ram & Ors. Vs. The State of U.P. & Ors.) are concerned, it was urged by the appellants that in the affidavit of State of U.P. before the High Court, the date of taking possession was mentioned as 30.3.1986 and, therefore, it was urged that the possession could not have been taken on 21.5.1985 as per record. The Learned Senior Counsel for the LDA pointed out that this was incorrect and the correct date of taking possession was only 21.5.1985, while the possession of some plots was handed over to the LDA on 30.3.1986. This is apart from the fact that in todays context, when the whole township is standing, this question goes to the backdrop. In the face of Panchanama, which is on record, we would endorse the finding of the High Court that the possession was taken on 21.5.1985. 68. Shri Dwivedi, Learned Senior Counsel appearing on behalf of the LDA also found fault with the Sale Deed in favour of Pratap Sahkari Grih Nirman Samiti Ltd., which is being represented by Shri Trivedi, Learned Senior Counsel. It was urged that its claim was based on the Sale agreement, which was executed one day before the publication of Section 4 Notification in the Gazette, i.e., 8.12.1984. It is admitted case that the Sale Deed was registered on 22.1.1986, which is clearly a date beyond the date of Section 4 notification. It is already held by this Court in U.P. Jal Nigam Vs. Kalra Properties Ltd. reported in 1996 (3) SCC 124 and Star Wire (India) Ltd. Vs. State of Haryana & Ors. reported in 1996 (11) SCC 698 that if any purchases of the land are made after the publication of Section 4(1) notification, landlords in this case would not get any right or entitlement to question the validity of the title of the State based on the acquisition. Obviously, the claim of this society is on the basis of the Agreement of Sale dated 7.4.1983. It was reported by the Learned Senior Counsel that Shri Hukum Chand Gupta also expired on 27.7.1983 and ultimately, the Sale Deed was executed on 7.12.1984. We do not want to go into this question of fact, but we will certainly go with and endorse the finding of the High Court in this behalf that the society had purchased the land after the issuance of notification.69. It was urged by Shri Trivedi, Learned Senior Counsel for the appellants that there was a policy to give back 25% of the acquired land to the cooperative societies. This was suggested on the basis of various letters on record, suggesting that LDA was considering the revision. Shri Dwivedi, Learned Senior Counsel for LDA pointed out that once the land was acquired and the possession had been taken, Section 48 did not apply. Besides, according to the Learned Senior Counsel, the policy applied to the cooperative societies, who had land before the acquisition process begins. This was obviously with the object to safeguard the interests of the members of the society. The Learned Senior Counsel was at pains to point out that there is no such disclosure as to who were the members of the society. According to the Learned Senior Counsel, the society was nothing, but a front piece set up for obtaining 25% of the land. Therefore, the rent of the 25% of the land was not acceptable. It was also pointed out that the Sale Agreement was also entered into a day before the publication of the notification in the Gazette and the registration of the Sale Deed was also done much after the notification was published and, therefore, this policy, even if there is one, would not be applicable to the society in question. We would not, therefore, accept that claim that Pratap Sahkari Grih Nirman Samiti Ltd. should be given back 25% of the land acquired, which is again not possible in view of the township having come up in Gomti Nagar.
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0[ds]21. As regards the further arguments on merits, Learned Senior Counsel and, more particularly, the Learned Senior Counsel appearing on behalf of the LDA pointed out that the challenge to the land acquisitions on merits could not survive, particularly, in view of the fact that in all the land acquisitions, possessions were already taken and the awards were already passed. Both the Learned Counsel pointed out that in case of Ujariyaon Housing Schemethe Government had shown its bona fides by allowing the notifications therein to lapse and thereby, the interests of the land holders covered in Ujariyaon Housing Schemewere safeguarded, particularly, because that scheme had not been completed. However, Ujariyaon Housing Schemewas long back completed and could not be rejuvenated now, finding fault with the process of land acquisition covered between Section 4 and Section 18 thereof. Learned Counsel further pointed out that the delay in filing the writ petitions is also liable to be taken into account since it is likely to cause prejudice to those for whom the schemes were framed. As regards the urgency clause, Learned Counsel urged that the land was very urgently required for urban housing and after the acquisition there has been large scale development and utilization on the acquired land and thousands of constructions have been made and the schemes have been evolved leading to allotments to third parties. Now at this stage, if the notifications were to be quashed it would seriously prejudice the interest of the large number of people and the High Court was right in dismissing the Writ Petitions on this ground. The Learned Counsel further argued that in this case it must be noted that there are no allegations of mala fides or any evidence in support of it.e appeals were also opposed by respondent No. 9 Avadh School who supported the arguments on behalf of the State of Uttar Pradesh and LDA. The respondent No.9 Avadh School pointed out that the land was granted to it by LDA for 99 years dated 01.12.1995 whereas the Writ Petition challenging the same bearing No. 2220 (L/A)/1996 from which the Civil Appeal No. 2650/1998 arose was filed only later on, in the year 1996. It was pointed out that thel had already paid the entire amount due to the LDA. It was also pointed out that the total constructed area on the land is 26,000 square feet. It was urged that considering the laudable objects of the scheme, the school was developed and further considering its progress in the matter of infrastructure and the standard of education, it would be too late to cancel the acquisition of land a portion of which was allegedly allotted by the LDA.23. Learned Counsel on behalf of LDA referred to the history of case law and reiterated upon the validity of the UP Act No.5 of 1991. The Learned Counsel also reiterated that the declaration under Section 6 (1) was different from a published declaration. The contention, therefore, was that considering the scheme of the Act, the declaration referred to in Section 6 is public or notified declaration. Taking that clue, it is argued that there will be no difficulty if Sections 2 and 3 of the Validating Act are properly understood. It was argued that the Validating Act removes the defect pointed out in the case of Radhey Shyam (cited supra) and also the validating provisions and, therefore, it is not a case of simplicitor overruling of the judgment of the Supreme Court.24. Learned Counsel for LDA also opposed reference to Larger Bench. It was further pointed that since the schemes of Ghaziabad Development Authority(GDA) and Meerut Development Authority(MDA) were already upheld, the dispute in Ujariyaonscheme of LDA involved only 150 bighas whereas the notification pursuant to Ujariyaone involved 1776 acres of land and barring the appellants, everybody had accepted this scheme. Learned Counsel seriously disputed the claim in Tika Rams case and contended that the landowners had already accepted the compensation. In case of Pratap Sahakari Grih Nirman Samiti Ltd., it was pointed out that the sale agreement in that case was that there was no passing of consideration and even transfers were subsequent to Section 4 notification. Therefore, it was contended that the sale deed and the agreement of sale were created to take advantage of the policy decision of the State for giving back 25 per cent of the developed land to the Society for its members. The bona fides of the Pratap Sahakari Grih Nirman Samiti Ltd. were, therefore, seriously questioned by the Counsel. It was also pointed out that the land involved in this case was already taken over in the year 1985 and the same also stood utilized inasmuch as the whole township had come up thereupon. Learned Counsel also relied on the principle of staire decisis insofar as the validity of the UP Amendment Act is concerned.25. Learned Counsel further argued that there was no question of future operation of the proviso as it was not concerned in this case. It was pointed out that only two appeals of UjariyaonScheme were concerned, with that question. However, in that case the notification was published in the year 1991 and the Section 6 declaration was signed and published in the year 1992. Therefore, there was no question of simultaneous publication and, therefore, the issue of reference to the Larger Bench was aand could not be gone into. It is pointed out that the case of Meerut Development Authority (cited supra) was the complete answer to the validation aspect as that issue had arisen directly. It was further argued that there was no question of discriminating between the UjariyaonIII Scheme, and, therefore, there was no question of breach of Article 14 of the Constitution of India. It was argued that in Ujariyaon, the award was made by the Collector within the time prescribed, so there was no question of discrimination between UjariyaonII Schemes where the award was not made within time. Therefore, it was lapsed and hence, there was necessity of a fresh notification. As regards the question of validity of Section 17 of the Act, it was mainly in Tika Rams appeal, it was pointed out by Shri Qamar Ahmad, Learned Counsel that the reference to the decision in Anwar Ali Sarkar v. State of U.P. reported in AIR 1952 SC 75 and State of Punjab v. Gurdial Singh (cited supra) was not called for. In support of his argument Shri Dwivedi pointed out that Anwar Ali Sarkars case (cited supra) was distinguished in the later decisions of Kathi Ranning Rawat v. State of Saurashtra reported in 1952 SCR 435 and Kedar Nath Bajoria v. State of West Bengal reported in 1953 SCR 30. It was pointed out that it was now crystallized law that if the Legislature indicates the policy which inspired it and the object which it seeks to attain then it can leave selective application of the law to be made by the Executive Authority. Learned Counsel relied on R.K. Dalmia v. S.R. Tendolkar reported in 1959 SCR 279 and In re: Special Courts Bills, 1978 reported in 1979 (1) SCC 380. It was pointed out that the criteria of "urgency" and "emergency" in the instant case have been prescribed in the context of the exercise of power of eminent domain and this power under the Constitution of India can be exercised only for public purpose.26. Learned Counsel argued that the process of acquisition begins only when there is a public purpose and in such situation the effectuation of public purpose does not brook any delay and requires quick implementation, then alone the power under Section 17 (1) read with Section 17 (4) can be exercised. The Learned Counsel firmly admits that the criterion of "emergency" is still narrower category and there is sufficient guideline in(2) of Section 17. Therefore, the Counsel argues that the true criteria being clear guidelines, they are not arbitrary. It was further argued that there is no discretion in the matter of applied urgency clause to these acquisitions in question. Carrying the same argument further, Learned Counsel firmly admitted that Section 5A is a protection to the land acquisition and should not be lightly dispensed with. He also admitted that there are cases where it was held that the mere existence of urgency is not enough and State Government must independently apply its mind to the need of dispensing with Section 5A enquiry. Further it is pointed out that the High Court had considered this aspect in details and recorded the finding that the land was acquired for planning and development of housing accommodations. It was pointed out that the High Court had also looked into the records and it found that there was sufficient material for forming opinion that the land was needed urgently for developing a new township known as Gomti Nagar. Learned Counsel also pointed out to the finding of the High Court to the effect that the township had already come into the existence and the houses were allotted to thousands of people.27. Relying on Keshav Das v. State of U.P. reported in 1995 (6) SCC 240 , Learned Counsel urged that it has been held in the above ruling that where the possession of the land was already taken during the acquisition process and construction had been made and completed, the question of urgency and exercise of duty under Section 17 (4) of the Act could not be raised at a belated stage. Therefore, Learned Counsel insisted that the situation is no different in the present case. Further relying on Aditya Bhagat v. State of Bihar reported in 1974 (2) SCC 501 and Om Prakash v. State of U.P. reported in 1998 (6) SCC 1 , Learned Counsel urged that as compared to the total acquisition, the appellants land holding is limited to only 150 bighas of land and in such circumstances the Court should not block the acquisition. As regards the question ofof compensation under Section 17 (3) and (3A) of the Act, Learned Counsel pointed out that the documents filed in support of their plea were never filed before the High Court whereas this Writ Petition was pending for as long as 13 years and even after filing the special leave petition, it was pending for about 10 years. The documents came to be filed only after 8 years. Since the document involved question of fact, applications made in this behalf, namely, I.A. Nos.f 2006, were liable to be rejected. It was pointed out that the documents filed along with the said I.As. were not authenticated and verified by the appellant. The sources from which the documents emanated were also not indicated. It was further pointed out that) of Section 3(3A) of Section 17 are not attracted to a case where the power under Section 17 (4) has been exercised and Section5A has been dispensedIt is again pointed out that Section 17 (3) and (3A) do not provide consequences ofnt of estimated compensation in terms of the said provision and the Act does not say that the if possession and development have been taken and the development work has been done without compliance of the provisions then the taking of possession and the work done would become illegal. Learned Counsel further pointed out that all that it provided for was the payment of interest at the rate of 9 per cent per annum on the amount of compensation where compensation is not paid or deposited on or before taking possession. In support of this argument the Counsel relied on S.P. Jain v. State of U.P. reported in 1993 (4) SCC 369 and State of Maharashtra v. Manubhai Pragaji Vashi & Ors. reported in 1996 (3) SCC 1 . In fact, this judgment is a complete answer to the questions raised by Shri Trivedi, Learned Senior Counsel for the appellants. It holds Section 3 to be valid and also holds that it had cured the defect. The judgment also takes care of the contention that there was no necessity to raise the urgency clause in these acquisitions and the exercise of raising the urgency clause was not bona fide. Various other judgments were referred by Shri Trivedi which we have included in the earlier part of the judgment like S.R. Bhagwat v. State of Mysore (cited supra), ITW Signode India Ltd. v. Collector of Central Excise (cited supra), Bakhtawar Trust v. M.D. Narayan & Ors. (cited supra), Madan Mohan Pathak v. Union of India (cited supra), Indira Gandhi v. Raj Narayan (cited supra), Virender Singh Hooda v. State of Haryana (cited supra), I.N. Saxena v. State of Madhya Pradesh (cited supra) and Janpad Sabha v. C.P. Syndicate (cited supra). In view of the specific questions of this very act having been considered in Meerut Development Authoritys case (cited supra) there would be no necessity to go into the principles laid down in aforementioned cases in details here.34. The next argument of Shri Trivedi, Learned Senior Counsel was that the Amending Act did not remove the defect. In our opinion, the contention is incorrect in view of the fact that this question was considered and concluded in Meerut Development Authoritys case (cited supra). The same applies to the further question challenging Section 3 of the Amending Act wherein it is provided that the notification would not be invalid on the ground that declaration under Section 6 of the Act was published on the same day on which the notification under Section 4 of the Act was published or on any other date prior to the date of publication of notification under Section 4 of the Act. We have already pointed out that this Section was also considered specifically in paragraph 7 where it is quoted. Further in paragraph 16 which we have quoted, this question is specifically answered. We, therefore, need not dilate on that issue here.35. At this juncture, we must note the argument raised in the present case that the declaration under Section 6 of the Act was made on 04.12.1984 but was published on 08.12.1984. Therefore, in reality, the proviso did not actually cure the defect. It is because of the wording used to the effect "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."36. Learned Counsel pointed out that in the present case, Section 6 declarations were made earlier to the publication of notification under Section 4 of the Act. They further pointed out in proviso again the wording used is "declaration may be made." Learned Counsel, therefore, argued that even reading Sections 2 and 3 of the Amending Act, the defect is not cured as the proviso empowers to "make a declaration" and does not refer to "notification of declaration" under Section 6(2). The Learned Counsel, therefore, intended that it is not permissible to supply words (casus omissus) to the proviso and, therefore, if the proviso is read as it is, then it conflicts with the language of Section 3 which speaks not of declaration, but "publication of Section 6 notification". We do not think that the contention iseven a situation where Section 6 declaration was made prior to the publication of notification under Section 4, was held to be covered and cured under Section 3, the validity of which was confirmed by this Court. It would, therefore, be futile to argue that the Act did not cure the defect and on that account, the provision is bad. In our opinion, added proviso would have to be read along with and in the light of Section 3 of the amending Act which clearly envisages a situation of the declaration under Section 6 being published in the official Gazette on the same date on which notification under Section 4(1) of the principal Act was published in official Gazette or on any day prior to the date of publication of such notification as defined in Section 4(1) of the principal Act (emphasis supplied). Therefore, what is contemplated in proviso is the "publication" of notification. Since this position was not happily obtained in the proviso, the Court in MDAs case (cited supra), in paragraph 14, commented that proviso was not happily worded.We are also of the opinion that the word `a declaration in proviso to Section 17 (4) as inserted by the Validating Act would mean published or a notified declaration under Section 6 (2) of the Act when it is read in the light of Section 3 which refers to and validates not merely "a declaration", but the publication thereof in official Gazette. As such we do not find anything wrong even if the declaration is prior in time and its notification is simultaneous with the notification under Section 4 of the Land Acquisition Act. The two authorities cited above, namely, Ghaziabad Development Authoritys case and Meerut Development Authoritys case have taken the same view and we are in respectful agreement with the same.40. It was then argued that Section 17 (4) of the Act as amended by the Amending Act is ultra vires of the Articles 245 and 246 of the Constitution as it nearly overrules the decision of this Court in State of UP v. Radhey Shyam Nigam (cited supra). We have already dealt with this issue and pointed out that this question was specifically dealt with in the two judgments of Lucknow Development Authority and Meerut Development Authority (cited supra).supra).41. It was further argued by Shri Trivedi that the Amending Act is ultra vires the Article 300 A of the Constitution inasmuch as it deprives the petitioner of higher compensation as may be admissible pursuant to the fresh acquisition proceedings after 1987. Three cases have been relied upon, namely, State of Gujarat & Anr. v. Raman Lal Keshav Lal Soni & Ors. reported in 1983 (2) SCC 33 , T.R. Kapoor & Ors. v. State of Haryana & Ors. reported in 1986 Suppl. SCC 584 and Union of India v. Tushar Rajan Mohanty reported in 1994 (5) SCC 450 , wherein it is held that the Legislature cannot create prospective or retrospective law so as to contravene the fundamental rights and that the law must satisfy the requirements of the Constitution. We have absolutely no quarrel with that, however, we fail to understand as to how it applies here. For establishing their rights, the appellants would have to establish that the State Government was required, in law, to make a fresh acquisition and could not continue with the old one. We have already held that we are not convinced by the argument that there was anything wrong with the old proceedings which came to be validated by the Amending Act. We have also found that the Amending Act was a perfectly valid legislation. In that view, the challenge must fail.We do not think that there is any need to refer any of the questions raised above in view of our observations in the earlier paragraphs, as the schemes of Ghaziabad Development Authority and Meerut Development Authority have already been upheld by this Court in the earlier decisions. Secondly, the basic objective of the Validating Act was to protect the scheme during the periodonly and subsequently, there has been no such case of simultaneous notification in the State of Uttar Pradesh for the last two decades, as stated by the Learned Senior Counsel appearing on behalf of the LDA. Even in respect of Ujariyaon Housing Schemethe declaration under Section 6 of the Act is published much after the publication of notification under Section 4 of the Act. Thirdly, as has been done in MDAs case (cited supra) we have held that Section 17 (4) proviso has to be read together with and in the light of Section 3 of the amending Act and not de hors of each other in view of the statement of objects and reasons of that Act. It must be realized that this Court ironed the creases in the proviso added to Section 17(4) in MDAs case (cited supra). Fourthly, in one of the appeals before us in Civil Appeal Nos.(Tika Ram & Ors. Vs. The State of U.P. & Ors.) represented by Shri Qamar Ahmad, Learned Counsel, the land owners have already accepted the compensation, while in the matter of Civil Appeal No. 3415 of 1998 (Pratap Sahkari Grih Nirman Samiti Ltd. Vs. State of Uttar Pradesh & Ors.), the title of Society itself has been found to be infirm and not established as per the findings of the High Court. It is obvious that registration of the Sale Deed in respect of the Society is subsequent to the notification under Section 4 of the Act and, therefore, inconsequential. The agreements in favour of that Society do not show that there was any consideration passed. Again, the possession of the land has already been taken, as claimed by the LDA, way back in the year 1985 for which there are documents like Panchanama and the whole township has now come up, persons have built their houses. As far as the sixth point of reference is concerned, we would deal with the same separately in this judgment as we do not agree with the proposition made in that point. Lastly, as held in the cases of Mishri Lal (Dead) by L.Rs. Vs. Dhirendra Nath (Dead) by L.Rs. reported in 1999 (4) SCC 11 and Central Board of Dawoodi Bohra Community Vs. State of Maharashtra reported in 2005(2) SCC 673, the principle of Stare Decisis would apply. In this case, their Lordships referred to observations by Lord Reid and quoted seven principles regarding the bindingAs has been observed in Para 47, we would not take up the above topic. It was urged by the Learned Counsel that the State Government, though it acquired the possession under Section 17 of the Act, did not pay the 80% of compensation, as required under Section 17 of the Act and on that account, the whole exercise was bad. We do not think that the proposition is correct.The Learned Senior Counsel argued that in case where the accelerated possession is required to be taken, Section 17(1) of the Act, as also Section 17(2) of the Act would be attracted and such possession can be taken immediately after the publication of Section 9(1). Section 17(3) of the Act provides that in every case under Section 17(1) and Section 17(2) of the Act, the Collector shall offer compensation for standing crops and trees or other damage at the time of taking possession. The Learned Senior Counsel pointed out that the expression"under either of theion (3) is attracted only when the possession is taken under(1) or (2) of Section 17 of the Act. He, therefore, contended that where Sectionis dispensed with under Section 17(4) of the Act, twoi.e., (3) and (3A) of Section 17 of the Act would not apply. The argument is clearly incorrect. By this, the attempt is to dissect(4) in two parts, firstly, where(1) and (2) are applicable and secondly, where the enquiry under Sectionis dispensed with. That is not the import of the language. Section 17 has to be read in full. It plainly reads that where the possession is taken with the aid of Section 17(2), the compensation must fall in advance as per the provisions of Section 3A. In fact, Section 3A has been brought on the legislature with the sole purpose of providing a compensation for the possession taken. That is why 80% of the estimated compensation is to be paid because even thereafter, the award proceedings would go on and the total compensation would be decided upon. The attempt on the part of the Learned Senior Counsel to read that the payment of compensation is not required where Sectionenquiry is dispensed with, would be doing violence to the language, firstly, of Section 3A and secondly, of(4) itself. The clear legal position is that the dispensation of Sectionenquiry is only and only to enable the State Government to take possession under(1) and (2) of Section 17. A third category cannot be created so as to avoid the payment of compensation. The contention is, therefore, clearlythe whole acquisition be set atour considered view, even if the compensation is not paid or is short of 80%, the acquisition would not suffer. One could imagine the unreasonableness of the situation. Now suppose, there is state of emergency as contemplated in Section 17(2) of the Act and the compensation is not given, could the whole acquisition come to a naught? It would entail seriousCourt took the view that once the possession was taken under Section 17 of the Act, the Government could not withdrew from that position under Section 18 and even the provisions of Sectionwere not attracted. That was of course a case where the award was not passed under Sectionafter taking of the possession. A clear cut observation came to be made in that behalf in Para 12, to the effect that thewith Section 17 of the Act, insofar as, payment of compensation is concerned, did not result in lapsing of the land acquisitionclear cut observation came to be made in that behalf in Para 12, to the effect that thewith Section 17 of the Act, insofar as, payment of compensation is concerned, did not result in lapsing of the land acquisitionproceedings. The law laid down by this Court in Satendra Prasad Jain & Ors. Vs. State of U.P. & Ors. (cited supra) was approved. The Court also relied on the decision in P. Chinnanna Vs. State of A.P. reported in 1994 (5) SCC 486 and Awadh Bihari Yadav Vs. State of Bihar reported in 1995 (6) SCC 31 , where similar view was taken regarding the land acquisition proceedings not getting lapsed. The only result that may follow by thewould be the payment of interest, as contemplated in Section 34 and the proviso added thereto by 1984 Act. In that view, we do not wish to further refer the matter, as suggested by Shri Trivedi, Learned Senior Counsel and Shri Qamar Ahmad, Learned Counsel for the appellants. Therefore, even on the sixth question, there is no necessity of any reference.Learned Senior Counsel then urged that the provisions of the amending Act and also the provisions of Land Acquisition Act like Section 17 (4) are invalid on the test of Article 14 of the Constitution. It is pointed out by Shri Trivedi, Learned Senior Counsel that in GDAs case (cited supra) the impugned notification was held to be valid in view of the amendment made to Section 17 (4) of the Act. However, there was no challenge to the validity of Section 17 (4) of the Act in the said case. Similarly, it was argued that in MDA v. Satbir Singh [1996 (11) SCC 462 ], the Court had made observation in paragraph 8 that the validity of Section 17 (4) was upheld in GDAs case (cited supra), whereas in fact it was not tested in GDAs case (cited supra) at all. It was further urged that the validity of the Act was not tested with respect to its inconsistency with Article 14 and Article 300A of the Constitution of India. In this behalf it was argued by the Learned Counsel that there was an observation to the effect in paragraph 14 that the proviso was not happily worded. But a reading of it would clearly give us an indication that the proviso to(4) introduced by Section 2 of the Amendment Act 5 of 1991 would deal with both the situations ,namely, the notification published on or after September 24, 1984 but before January 11, 1989 as also the declaration to be simultaneously published subsequent thereto. It was further argued that if we read the proviso in the manner that we have already done then it would be a case of casus omissus being supplied by the Court. We have already taken all these arguments into consideration. In view of the interpretation given by us to Section 3 and the proviso and the necessity of reading the two provisions in the light of each other, there would be no occasion of supplying casus omissus and the argument in that behalf must fail.55. Insofar as the validity on the backdrop of Article 14 is concerned, it is true that in paragraph 8 there has been an observation that the validity of the proviso added by the State Legislature by way of an amendment to Section 17 (4) of the Act has been upheld by the two Judge Bench decision in GDAs case (cited supra). However, when we see the rest of the judgment it can be said that no such question was considered. However, the fact remains that in GDAs case (cited supra), the validity was not questioned or doubted and the challenged Section was interpreted and treated to be valid by theour opinion, reading paragraph 14 of this judgment in its correct perspective would repel the argument of the appellants that the provision is arbitrary in any manner or has the effect of creating impermissible classification. In our opinion, the language of paragraph 14 does not help the petitioners. If the petitioners in MDAs case (cited supra) did not specifically address the Court on the question of Constitutional validity of the Amending Act (as is being claimed by the appellants), we do not think it will be permissible for the petitioners to raise this point which was admittedly not raised either in GDAs case (cited supra) or MDAs case (cited supra). Petitioners would not be permitted to take such a course [see Delhi Cloth and General Mills Co. Ltd. Vs. Shambhu Nath Mukherji & Ors. reported in AIR 1978 SC 8 ]. We need not go in that question since MDAs case (cited supra) is a Larger Bench decision.56. However, this is apart from the fact that in our opinion there can be no question of Section 17 (4) proviso or the provisions of the Amending Act being invalid in any way. We, therefore, do not feel necessary to refer this case on this issue to a Larger Bench, particularly, in respect of the validity of the provisionsArticle 14 of the Constitution. We do not find the provisions in any manner arbitrary or making impermissible classifications or suggesting invidious discrimination nor can the provisions in the amending Act can be termed as "arbitrary" providing no guidingour opinion, it will not be necessary to go into that question as the present appeals pertaining to Ujariyaon Housing Schemeare relating only to the period between 24.9.1984 and 11.1.1989. It is stated by the Learned Senior Counsel appearing for the LDA that only two appeals pertain to Ujariyaon Housing Schemeand even in that case, the notifications were published in the year 1991 and the issue of simultaneous publication of notification does not arise, as Section 6 declaration was signed and published in 1992. Therefore, there will be no need to go into the academic question whether Amending Act applies only to the period between 24.9.1984 and 11.1.1989 or even the subsequent period. Further, even if, as held in MDAs Case (cited supra), it applied to the subsequent period, it does not infringe Article 14 for the reasons given by uswe have considered this argument in the earlier part of the judgment we again reiterate that the argument is clearly incorrect. The Validation Act did not confer any discretion on the State Government to apply its provisions to a particular scheme and then issue notifications. It was a one time exercise for validating a particular scheme by amending the Act which has already been found to be valid in MDAs case (cited supra). Again Ujariyaon Housing Schemedid not lapse because of the decision of the Government. Since the award was not made within the time prescribed by the Section 11A of the Act, it had the effect of lapsing the notifications. Therefore, the State Government was left with no other way and had to issue a fresh notification. In Ujariyaon Housing Schemethe award was made by the Collector within the time and, therefore, those notifications were not affected. Therefore, the argument that there was invidious discrimination in between the two schemes has tois apart from the fact that we are of the opinion that there is nothing wrong with the Amending Act insofar as its Constitutional validity is concerned. We have already rejected the argument that there was any discrimination between Ujariyaon Part II and Ujariyaon Part III schemes. We are convinced with the explanation given by the State Government as to why Ujariyaon Part III scheme was left out of the consideration of validation. Indeed the acquisition therein could not have been validated on account of the time having lapsed for doing so. Once Sections 2 and 3 and the proviso are read in the manner indicated in MDAs case (cited supra) as also in the light of observations made by us, no question remains of any Constitutional invalidity. We are not at all impressed by the contention raised that the Amending Act cannot pass the test of Article 14. We holdhave already pointed out that this group of cases would be of no help to the appellants, particularly, because the fact situation and the controversy involved in the present matter is entirely different. We do not agree with the Learned Counsel that there is any classification, much less any impermissible classification and any group has been treated favourably as against another group or that the law has treated a group more favourably than the other, refusing equal protection to such group. As regards the general principles from Anwar Ali Sarkars case (cited supra) as also from State of Punjab v. Gurdial Singh reported in AIR 1980 SC 319 , we must point out that ultimately this Court culled out the principle that if the Legislature indicates a policy which inspires it and the object which it seeks to attain, then the selective application of the law can be left to the discretion of the Executive authority [see Kedar Nath Bajorias case reported in 1953 SCR 30]. Such law has been approved in R.K. Dalmias case (cited supra) as also in In Re: Special Courts Bill (citedour opinion, these two criteria provide clear guidelines and cannot be held as arbitrary. In Krishi Utpadan Mandi Samitis case and Pista Devis case (cited supra), this Court has laid down that mere existence of urgency is not enough and the Government must further consider the matters objectively as to the dispensation with Section 5A permissible under that particular situation. Section 17 of the Act has existed on the statute book for a long time and on a number of occasions the applicable criteria of urgency and emergency have been tested by the Courts on account of the Government actions in that behalf being challenged. Wherever the Courts have found that urgency did not exist in reality or the dispensation of Section 5A was not considered separately such notifications have been struck down on a number of occasions. However, we do not see any reasonable argument having been made against the Constitutionalthere can be no dispute on the principles, we do not think that the principle are applicable to the present controversy. We have already given a reference of the case of Ishwarlal Girdharlal Joshi etc. Vs. State of Gujarat (cited supra). The Learned Counsel appearing on behalf of the respondents invited our attention to the findings recorded by the High Court, with which we are satisfied. We must observe that merely because the decision of the Government on question of urgency is not justiciable, it does not mean that Section 17(4) of the Act isHigh Court was, undoubtedly, correct in holding that there was no necessity of a notice since the satisfaction required on the part of the Executive is a subject of satisfaction, which can only be assailed on the ground that there was no sufficient material to dispense with the enquiry or the order suffers from malice. We will deal with the question as to whether there was an urgency and what is the nature of urgency required. We, therefore, do not think that(1) (3A) and (4) of Section 17 of the Act suffer, as there is no notice provided in thosebefore the possession isthe present case we have seen the judgment of the High Court which has gone into the records and has recorded categorical finding that there was sufficient material before the State Government and the State Government has objectively considered the issue of urgency. Even before this Court, there were no allegations of mala fides. A notice can be taken of the fact that all the lands which were acquired ultimately came to be utilized for the scheme. We, therefore, reject the argument that there was no urgency to justify dispensation of Section 5A inquiry by applying the urgencyHigh Court has correctly come to the conclusion that there was all the justification for invoking the urgency clause and taking the possession for the lands in question. We endorse the said finding of the High Court. Other contentions on merits65. Apart from these contentions, both Shri Trivedi, Learned Senior Counsel, as also Shri Qamar Ahmed, Learned Counsel again raised the same questions of facts like theof Sections 4 and 6 notifications. Insofar as that is concerned, we have mentioned it only for rejecting the contention. After the judgment of the High Court we will not go into that question again being a pure question of fact. Similar is the question raised about the land belonging to the cooperative society and the release of the same. We do not think that that question needs to be answered in the wake of the High Courts judgment. The High Court judgment is absolutely correct in that behalf. In our considered opinion, even if the Government had taken a decision not to acquire the land belonging to the cooperative society as far as possible, there is nothing wrong if such lands were acquired. What is to be seen is the bona fides of the Government behind the decision to acquire the lands. On that account no fault can be found with the concerned notifications under Sections 4 and 6.66. Similar contentions were raised regarding the possession. We do not propose to go into the question of facts and questions relating to the individual claims. We have noted that the respondents herein having specifically claimed that the possession of the lands has already been taken. Therefore, accepting that claim, as has been done by the High Court, we would not go into those questions of fact.67. To put the record straight, there is enough evidence in shape of the stand taken by the LDA in its counter affidavit before the High Court, where it was asserted that the possession was already taken. Even in the present Civil Appeal, the same stand is reported with reference to a particular date, i.e., 21.5.1985 that the possession was taken and there is also a true copy of the Panchanama on record. Insofar as the Civil Appeal Nos.(Tika Ram & Ors. Vs. The State of U.P. & Ors.) are concerned, it was urged by the appellants that in the affidavit of State of U.P. before the High Court, the date of taking possession was mentioned as 30.3.1986 and, therefore, it was urged that the possession could not have been taken on 21.5.1985 as per record. The Learned Senior Counsel for the LDA pointed out that this was incorrect and the correct date of taking possession was only 21.5.1985, while the possession of some plots was handed over to the LDA on 30.3.1986. This is apart from the fact that in todays context, when the whole township is standing, this question goes to the backdrop. In the face of Panchanama, which is on record, we would endorse the finding of the High Court that the possession was taken onthe claim of this society is on the basis of the Agreement of Sale dated 7.4.1983. It was reported by the Learned Senior Counsel that Shri Hukum Chand Gupta also expired on 27.7.1983 and ultimately, the Sale Deed was executed on 7.12.1984. We do not want to go into this question of fact, but we will certainly go with and endorse the finding of the High Court in this behalf that the society had purchased the land after the issuance of notification.69.It was urged by Shri Trivedi, Learned Senior Counsel for the appellants that there was a policy to give back 25% of the acquired land to the cooperative societies. This was suggested on the basis of various letters on record, suggesting that LDA was considering the revision. Shri Dwivedi, Learned Senior Counsel for LDA pointed out that once the land was acquired and the possession had been taken, Section 48 did not apply. Besides, according to the Learned Senior Counsel, the policy applied to the cooperative societies, who had land before the acquisition process begins. This was obviously with the object to safeguard the interests of the members of the society. The Learned Senior Counsel was at pains to point out that there is no such disclosure as to who were the members of the society.
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High Court. Other contentions on merits65. Apart from these contentions, both Shri Trivedi, Learned Senior Counsel, as also Shri Qamar Ahmed, Learned Counsel again raised the same questions of facts like the non-publication of Sections 4 and 6 notifications. Insofar as that is concerned, we have mentioned it only for rejecting the contention. After the judgment of the High Court we will not go into that question again being a pure question of fact. Similar is the question raised about the land belonging to the cooperative society and the release of the same. We do not think that that question needs to be answered in the wake of the High Courts judgment. The High Court judgment is absolutely correct in that behalf. In our considered opinion, even if the Government had taken a decision not to acquire the land belonging to the cooperative society as far as possible, there is nothing wrong if such lands were acquired. What is to be seen is the bona fides of the Government behind the decision to acquire the lands. On that account no fault can be found with the concerned notifications under Sections 4 and 6.66. Similar contentions were raised regarding the possession. We do not propose to go into the question of facts and questions relating to the individual claims. We have noted that the respondents herein having specifically claimed that the possession of the lands has already been taken. Therefore, accepting that claim, as has been done by the High Court, we would not go into those questions of fact.67. To put the record straight, there is enough evidence in shape of the stand taken by the LDA in its counter affidavit before the High Court, where it was asserted that the possession was already taken. Even in the present Civil Appeal, the same stand is reported with reference to a particular date, i.e., 21.5.1985 that the possession was taken and there is also a true copy of the Panchanama on record. Insofar as the Civil Appeal Nos. 2116-2118 (Tika Ram & Ors. Vs. The State of U.P. & Ors.) are concerned, it was urged by the appellants that in the affidavit of State of U.P. before the High Court, the date of taking possession was mentioned as 30.3.1986 and, therefore, it was urged that the possession could not have been taken on 21.5.1985 as per record. The Learned Senior Counsel for the LDA pointed out that this was incorrect and the correct date of taking possession was only 21.5.1985, while the possession of some plots was handed over to the LDA on 30.3.1986. This is apart from the fact that in todays context, when the whole township is standing, this question goes to the backdrop. In the face of Panchanama, which is on record, we would endorse the finding of the High Court that the possession was taken on 21.5.1985. 68. Shri Dwivedi, Learned Senior Counsel appearing on behalf of the LDA also found fault with the Sale Deed in favour of Pratap Sahkari Grih Nirman Samiti Ltd., which is being represented by Shri Trivedi, Learned Senior Counsel. It was urged that its claim was based on the Sale agreement, which was executed one day before the publication of Section 4 Notification in the Gazette, i.e., 8.12.1984. It is admitted case that the Sale Deed was registered on 22.1.1986, which is clearly a date beyond the date of Section 4 notification. It is already held by this Court in U.P. Jal Nigam Vs. Kalra Properties Ltd. reported in 1996 (3) SCC 124 and Star Wire (India) Ltd. Vs. State of Haryana & Ors. reported in 1996 (11) SCC 698 that if any purchases of the land are made after the publication of Section 4(1) notification, landlords in this case would not get any right or entitlement to question the validity of the title of the State based on the acquisition. Obviously, the claim of this society is on the basis of the Agreement of Sale dated 7.4.1983. It was reported by the Learned Senior Counsel that Shri Hukum Chand Gupta also expired on 27.7.1983 and ultimately, the Sale Deed was executed on 7.12.1984. We do not want to go into this question of fact, but we will certainly go with and endorse the finding of the High Court in this behalf that the society had purchased the land after the issuance of notification.69. It was urged by Shri Trivedi, Learned Senior Counsel for the appellants that there was a policy to give back 25% of the acquired land to the cooperative societies. This was suggested on the basis of various letters on record, suggesting that LDA was considering the revision. Shri Dwivedi, Learned Senior Counsel for LDA pointed out that once the land was acquired and the possession had been taken, Section 48 did not apply. Besides, according to the Learned Senior Counsel, the policy applied to the cooperative societies, who had land before the acquisition process begins. This was obviously with the object to safeguard the interests of the members of the society. The Learned Senior Counsel was at pains to point out that there is no such disclosure as to who were the members of the society. According to the Learned Senior Counsel, the society was nothing, but a front piece set up for obtaining 25% of the land. Therefore, the rent of the 25% of the land was not acceptable. It was also pointed out that the Sale Agreement was also entered into a day before the publication of the notification in the Gazette and the registration of the Sale Deed was also done much after the notification was published and, therefore, this policy, even if there is one, would not be applicable to the society in question. We would not, therefore, accept that claim that Pratap Sahkari Grih Nirman Samiti Ltd. should be given back 25% of the land acquired, which is again not possible in view of the township having come up in Gomti Nagar.
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present controversy. We have already given a reference of the case of Ishwarlal Girdharlal Joshi etc. Vs. State of Gujarat (cited supra). The Learned Counsel appearing on behalf of the respondents invited our attention to the findings recorded by the High Court, with which we are satisfied. We must observe that merely because the decision of the Government on question of urgency is not justiciable, it does not mean that Section 17(4) of the Act isHigh Court was, undoubtedly, correct in holding that there was no necessity of a notice since the satisfaction required on the part of the Executive is a subject of satisfaction, which can only be assailed on the ground that there was no sufficient material to dispense with the enquiry or the order suffers from malice. We will deal with the question as to whether there was an urgency and what is the nature of urgency required. We, therefore, do not think that(1) (3A) and (4) of Section 17 of the Act suffer, as there is no notice provided in thosebefore the possession isthe present case we have seen the judgment of the High Court which has gone into the records and has recorded categorical finding that there was sufficient material before the State Government and the State Government has objectively considered the issue of urgency. Even before this Court, there were no allegations of mala fides. A notice can be taken of the fact that all the lands which were acquired ultimately came to be utilized for the scheme. We, therefore, reject the argument that there was no urgency to justify dispensation of Section 5A inquiry by applying the urgencyHigh Court has correctly come to the conclusion that there was all the justification for invoking the urgency clause and taking the possession for the lands in question. We endorse the said finding of the High Court. Other contentions on merits65. Apart from these contentions, both Shri Trivedi, Learned Senior Counsel, as also Shri Qamar Ahmed, Learned Counsel again raised the same questions of facts like theof Sections 4 and 6 notifications. Insofar as that is concerned, we have mentioned it only for rejecting the contention. After the judgment of the High Court we will not go into that question again being a pure question of fact. Similar is the question raised about the land belonging to the cooperative society and the release of the same. We do not think that that question needs to be answered in the wake of the High Courts judgment. The High Court judgment is absolutely correct in that behalf. In our considered opinion, even if the Government had taken a decision not to acquire the land belonging to the cooperative society as far as possible, there is nothing wrong if such lands were acquired. What is to be seen is the bona fides of the Government behind the decision to acquire the lands. On that account no fault can be found with the concerned notifications under Sections 4 and 6.66. Similar contentions were raised regarding the possession. We do not propose to go into the question of facts and questions relating to the individual claims. We have noted that the respondents herein having specifically claimed that the possession of the lands has already been taken. Therefore, accepting that claim, as has been done by the High Court, we would not go into those questions of fact.67. To put the record straight, there is enough evidence in shape of the stand taken by the LDA in its counter affidavit before the High Court, where it was asserted that the possession was already taken. Even in the present Civil Appeal, the same stand is reported with reference to a particular date, i.e., 21.5.1985 that the possession was taken and there is also a true copy of the Panchanama on record. Insofar as the Civil Appeal Nos.(Tika Ram & Ors. Vs. The State of U.P. & Ors.) are concerned, it was urged by the appellants that in the affidavit of State of U.P. before the High Court, the date of taking possession was mentioned as 30.3.1986 and, therefore, it was urged that the possession could not have been taken on 21.5.1985 as per record. The Learned Senior Counsel for the LDA pointed out that this was incorrect and the correct date of taking possession was only 21.5.1985, while the possession of some plots was handed over to the LDA on 30.3.1986. This is apart from the fact that in todays context, when the whole township is standing, this question goes to the backdrop. In the face of Panchanama, which is on record, we would endorse the finding of the High Court that the possession was taken onthe claim of this society is on the basis of the Agreement of Sale dated 7.4.1983. It was reported by the Learned Senior Counsel that Shri Hukum Chand Gupta also expired on 27.7.1983 and ultimately, the Sale Deed was executed on 7.12.1984. We do not want to go into this question of fact, but we will certainly go with and endorse the finding of the High Court in this behalf that the society had purchased the land after the issuance of notification.69.It was urged by Shri Trivedi, Learned Senior Counsel for the appellants that there was a policy to give back 25% of the acquired land to the cooperative societies. This was suggested on the basis of various letters on record, suggesting that LDA was considering the revision. Shri Dwivedi, Learned Senior Counsel for LDA pointed out that once the land was acquired and the possession had been taken, Section 48 did not apply. Besides, according to the Learned Senior Counsel, the policy applied to the cooperative societies, who had land before the acquisition process begins. This was obviously with the object to safeguard the interests of the members of the society. The Learned Senior Counsel was at pains to point out that there is no such disclosure as to who were the members of the society.
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Proj.Officer,Singareni Colleries Co. Ltd Vs. B. Komaraiah
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S. Rajendra Babu, J. Leave granted. 2. In respect of certain lands acquired for the purpose of Singareni Colleries Company Limited, a Government company, the Land Acquisition Officer fixed the market value at Rs. 4,000/- per acre for dry land and Rs. 6,000/- per acre for wet land. The aggrieved claimants obtained a reference to civil court for enhancement of compensation which was granted by fixing the rate at Rs. 40,000/- per acre. On coming to know of the judgment made by the civil court enhancing the compensation, the appellants filed a writ petition in the High Court seeking for quashing of the order and decree made in the reference principally on the ground that they were not made parties to the proceedings. The appellants also filed another writ petition seeking stay of the operation of the order and decree of the civil court. In the latter petition while directing issue of notice to the claimants the learned single Judge of the High Court granted interim stay of the operation of the order made by the civil court. In the mean while, the Land Acquisition Officer preferred an appeal against the order of the civil court in which an application was also filed seeking interim stay. The Division Bench of the High Court in the appeal preferred by the Land Acquisition Officer directed issuance of notice to the respondents with an order of stay of the execution of the decree on the condition that the appellants in the said appeal, namely, the Land Acquisition Officer, was to deposit a sum of Rs. 20,000/- per acre and proportionate statutory benefits within ten weeks from that date and in the event of the appellants failing to deposit, the order would stand vacated. The learned single Judge of the High Court, however, did not find any reason to vacate the interim stay granted by him earlier in the writ proceedings initiated by the appellants. On a representation being made on behalf of the claimants that the writ petition be heard along with the said appeal, the two matters were directed to be clubbed together. The respondents preferred a writ appeal against the order made by the learned single Judge granting the interim stay of the order made by the civil court. The said writ appeal was dismissed on July 18, 2000 by the Division Bench of the High Court on merit. Thereafter, on November 18, 2000, another Division Bench made another order directing the appellants to deposit the compensation as directed in the appeal filed against the order of the civil court within two months from the date of the order failing which the interim stay granted in the earlier writ petition would stand vacated. It is against this order that this appeal is preferred by special leave. 3. The basis question raised in the writ petition filed by the appellants is that the order made by the civil court enhancing the compensation and the proceedings thereto are not binding on them inasmuch as they were not parties to the proceedings in the reference court. When that question is yet to be adjudicated, it would be in fitness of things that an interim order been granted by the High Court and, particularly when the claimants appeal against the order made by the learned single Judge in the writ petition having stood dismissed by another Division Bench, it was not appropriate for the High Court to have passed an order as impugned herein. The appropriate course was to hear the writ petition as well as the appeal filed by the Land Acquisition Officer together and dispose to the matters. Ultimately, the burden will be upon the appellants to pay the compensation. Therefore, until their writ petition is decided, no effective order could have been made in respect of payment of compensation arising under the proceedings.
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1[ds]3. The basis question raised in the writ petition filed by the appellants is that the order made by the civil court enhancing the compensation and the proceedings thereto are not binding on them inasmuch as they were not parties to the proceedings in the reference court. When that question is yet to be adjudicated, it would be in fitness of things that an interim order been granted by the High Court and, particularly when the claimants appeal against the order made by the learned single Judge in the writ petition having stood dismissed by another Division Bench, it was not appropriate for the High Court to have passed an order as impugned herein. The appropriate course was to hear the writ petition as well as the appeal filed by the Land Acquisition Officer together and dispose to the matters. Ultimately, the burden will be upon the appellants to pay the compensation. Therefore, until their writ petition is decided, no effective order could have been made in respect of payment of compensation arising under the proceedings.
| 1 | 689 | 192 |
### 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:
S. Rajendra Babu, J. Leave granted. 2. In respect of certain lands acquired for the purpose of Singareni Colleries Company Limited, a Government company, the Land Acquisition Officer fixed the market value at Rs. 4,000/- per acre for dry land and Rs. 6,000/- per acre for wet land. The aggrieved claimants obtained a reference to civil court for enhancement of compensation which was granted by fixing the rate at Rs. 40,000/- per acre. On coming to know of the judgment made by the civil court enhancing the compensation, the appellants filed a writ petition in the High Court seeking for quashing of the order and decree made in the reference principally on the ground that they were not made parties to the proceedings. The appellants also filed another writ petition seeking stay of the operation of the order and decree of the civil court. In the latter petition while directing issue of notice to the claimants the learned single Judge of the High Court granted interim stay of the operation of the order made by the civil court. In the mean while, the Land Acquisition Officer preferred an appeal against the order of the civil court in which an application was also filed seeking interim stay. The Division Bench of the High Court in the appeal preferred by the Land Acquisition Officer directed issuance of notice to the respondents with an order of stay of the execution of the decree on the condition that the appellants in the said appeal, namely, the Land Acquisition Officer, was to deposit a sum of Rs. 20,000/- per acre and proportionate statutory benefits within ten weeks from that date and in the event of the appellants failing to deposit, the order would stand vacated. The learned single Judge of the High Court, however, did not find any reason to vacate the interim stay granted by him earlier in the writ proceedings initiated by the appellants. On a representation being made on behalf of the claimants that the writ petition be heard along with the said appeal, the two matters were directed to be clubbed together. The respondents preferred a writ appeal against the order made by the learned single Judge granting the interim stay of the order made by the civil court. The said writ appeal was dismissed on July 18, 2000 by the Division Bench of the High Court on merit. Thereafter, on November 18, 2000, another Division Bench made another order directing the appellants to deposit the compensation as directed in the appeal filed against the order of the civil court within two months from the date of the order failing which the interim stay granted in the earlier writ petition would stand vacated. It is against this order that this appeal is preferred by special leave. 3. The basis question raised in the writ petition filed by the appellants is that the order made by the civil court enhancing the compensation and the proceedings thereto are not binding on them inasmuch as they were not parties to the proceedings in the reference court. When that question is yet to be adjudicated, it would be in fitness of things that an interim order been granted by the High Court and, particularly when the claimants appeal against the order made by the learned single Judge in the writ petition having stood dismissed by another Division Bench, it was not appropriate for the High Court to have passed an order as impugned herein. The appropriate course was to hear the writ petition as well as the appeal filed by the Land Acquisition Officer together and dispose to the matters. Ultimately, the burden will be upon the appellants to pay the compensation. Therefore, until their writ petition is decided, no effective order could have been made in respect of payment of compensation arising under the proceedings.
### Response:
1
### Explanation:
3. The basis question raised in the writ petition filed by the appellants is that the order made by the civil court enhancing the compensation and the proceedings thereto are not binding on them inasmuch as they were not parties to the proceedings in the reference court. When that question is yet to be adjudicated, it would be in fitness of things that an interim order been granted by the High Court and, particularly when the claimants appeal against the order made by the learned single Judge in the writ petition having stood dismissed by another Division Bench, it was not appropriate for the High Court to have passed an order as impugned herein. The appropriate course was to hear the writ petition as well as the appeal filed by the Land Acquisition Officer together and dispose to the matters. Ultimately, the burden will be upon the appellants to pay the compensation. Therefore, until their writ petition is decided, no effective order could have been made in respect of payment of compensation arising under the proceedings.
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Appellate Assistant Commissioner of Income Tax, A-Range, Bangalore Vs. Late B. Appaiah Naidu (By His Legal Representative)
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HEGDE J. 1. These are appeals by special leave arising from the decision of the High Court of Mysore in I.T.R.C. No. 14 of 1966. Therein the High Court pronounced its opinion on the two questions of law referred to it by the Commissioner of Income-tax, Mysore, Bangalore. The two questions referred for its opinion are : " (a) Whether, on the facts and in the circumstances of the case, the assessments made under section 23(3) and 26(2) of the Mysore Income-tax Act, 1923, of Shri B. A. Sriramamurthy, the legal representative and successor to late Shri B. A. Appaiah Naidu, for the assessment years 1946-47 and 1947-48 are ab initio bad for the reason that there is no provision in the Mysore Income-tax Act, 1923, corresponding to section 24B of the Indian Income-tax Act, 1922 ? (b) Whether, on the facts and in the circumstances of the case, the Appellate Assistant Commissioner of Income-tax, A Range, is justified in disposing of the appeals merely on the first additional ground involving the legal issue mentioned in question 1 above, considering it as the preliminary issue, without considering the other grounds raised by the appellant before him, one of which grounds is to the effect that the assessee should be given the status of Hindu undivided family and specially when such claim for the status of Hindu undivided family by the assessee has already been referred to the High Court by the assessee for the assessment years 1950-51 and 1951-52 ? " 2. In this case we are concerned with the assessment years 1946-47, the relevant accounting year ending on June 30, 1946, and 1947-48, the relevant accounting year ending on June 30, 1947. In both these years the assessee, Sriramamurthy, was assessed as the legal representative of his deceased father Appaiah Naidu. The notice under section 23(2) had been served on Appaiah Naidu. Those assessments were made on January 15, 1963. Appaiah Naidu had died long before that date. The question for decision is whether the assessments in question are valid assessmentsThe High Court decided the first question against the department. In so doing, it followed the decision of the Bombay High Court in Commissioner of Income-tax v. Mr. Ellis C. Reid. On the second question, it came to the conclusion that no purpose will be served by answering that question as no reassessment can be made against the assessees Hindu undivided family as the same is barred by time 3. Mr. Solicitor-General appearing for the department does not challenge the correctness of the decision of the High Court on the first question. In fact, following the decision of the Bombay High Court in Reids case , the Central Legislature had amended the Income-tax Act of 1922 and included in the Act section 24B 4. Now coming to the second question as noticed earlier, the assessment was made in respect of the income of Appaiah Naidu on his legal representative, his son Sriramamurthy, in the status of an individual and not as the karta of his Hindu undivided family. The department cannot now be permitted to change its case and contend that in reality the assessee is the Hindu undivided family 5.
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0[ds]Now coming to the second question as noticed earlier, the assessment was made in respect of the income of Appaiah Naidu on his legal representative, his son Sriramamurthy, in the status of an individual and not as the karta of his Hindu undivided family. The department cannot now be permitted to change its case and contend that in reality the assessee is the Hindu undivided family
| 0 | 599 | 75 |
### 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:
HEGDE J. 1. These are appeals by special leave arising from the decision of the High Court of Mysore in I.T.R.C. No. 14 of 1966. Therein the High Court pronounced its opinion on the two questions of law referred to it by the Commissioner of Income-tax, Mysore, Bangalore. The two questions referred for its opinion are : " (a) Whether, on the facts and in the circumstances of the case, the assessments made under section 23(3) and 26(2) of the Mysore Income-tax Act, 1923, of Shri B. A. Sriramamurthy, the legal representative and successor to late Shri B. A. Appaiah Naidu, for the assessment years 1946-47 and 1947-48 are ab initio bad for the reason that there is no provision in the Mysore Income-tax Act, 1923, corresponding to section 24B of the Indian Income-tax Act, 1922 ? (b) Whether, on the facts and in the circumstances of the case, the Appellate Assistant Commissioner of Income-tax, A Range, is justified in disposing of the appeals merely on the first additional ground involving the legal issue mentioned in question 1 above, considering it as the preliminary issue, without considering the other grounds raised by the appellant before him, one of which grounds is to the effect that the assessee should be given the status of Hindu undivided family and specially when such claim for the status of Hindu undivided family by the assessee has already been referred to the High Court by the assessee for the assessment years 1950-51 and 1951-52 ? " 2. In this case we are concerned with the assessment years 1946-47, the relevant accounting year ending on June 30, 1946, and 1947-48, the relevant accounting year ending on June 30, 1947. In both these years the assessee, Sriramamurthy, was assessed as the legal representative of his deceased father Appaiah Naidu. The notice under section 23(2) had been served on Appaiah Naidu. Those assessments were made on January 15, 1963. Appaiah Naidu had died long before that date. The question for decision is whether the assessments in question are valid assessmentsThe High Court decided the first question against the department. In so doing, it followed the decision of the Bombay High Court in Commissioner of Income-tax v. Mr. Ellis C. Reid. On the second question, it came to the conclusion that no purpose will be served by answering that question as no reassessment can be made against the assessees Hindu undivided family as the same is barred by time 3. Mr. Solicitor-General appearing for the department does not challenge the correctness of the decision of the High Court on the first question. In fact, following the decision of the Bombay High Court in Reids case , the Central Legislature had amended the Income-tax Act of 1922 and included in the Act section 24B 4. Now coming to the second question as noticed earlier, the assessment was made in respect of the income of Appaiah Naidu on his legal representative, his son Sriramamurthy, in the status of an individual and not as the karta of his Hindu undivided family. The department cannot now be permitted to change its case and contend that in reality the assessee is the Hindu undivided family 5.
### Response:
0
### Explanation:
Now coming to the second question as noticed earlier, the assessment was made in respect of the income of Appaiah Naidu on his legal representative, his son Sriramamurthy, in the status of an individual and not as the karta of his Hindu undivided family. The department cannot now be permitted to change its case and contend that in reality the assessee is the Hindu undivided family
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Union of India & Ors Vs. Brigadier Javed Iqbal
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conscious decision was taken to recommend for promotion. As noted, the guidelines provide for the Selection Board to take note of the medical classification of the officer. That apart, for an objective selection, the guideline requires the Selection Board to keep in view the employability of the officer in the next higher rank. In a matter of the present nature where the selection was being made to a high rank from that of Brigadier to Major General and that too in JAG branch, the employability of such officer and the nature of duties was also to be kept in view. In the instant case, the only disability of the officer concerned while in SHAPE-2 also is with regard to the risk in high altitude service and the No.1 Selection Board has kept in view the normal nature of work to be performed as JAG (Litigation). In that view, the No.1 Selection Board should be credited of having applied its mind before recommending the case of the respondent. Further, after clearance by the No.1 Selection Board, the Chief of Defence Staff had on 12.02.2021 taken note of the medical status of the respondent and had approved the recommendation. When officers of such high rank have applied their mind in the instant case and approved the case of respondent for promotion the repeated objection by the Military Secretary is not justified. 15. The other aspect of the matter is that the respondent having filed an appeal and having made a request for waiver initially and thereafter for medical re-examination cannot be held against the respondent. Though the Selection Board had already recommended the candidature of the respondent which had been approved by the Chief of Army Staff, the respondent had sought for re-examination which is to his credit and was rightly allowed. The Medical Board in the opinion dated 20.09.2021 (ANNEXURE A/10) has recorded as hereunder :- This 57 year old serving officer was detected to have hypertension during AME in Apr 2018. He was evaluated and diagnosed to have Primary Hypertension. He was advised medication BP control was adequate. Subsequently the officer has discontinued medicine for last one year as recorded by AMS and BP has remained within normal limits (Photocopy of BP recordings by AMA attached). He is being observed in LMC P2 (Permanent). He has reported for remedial exam/Board as per directions of the COAS vide integrated HQ, MoD letter no. 76086/Gen/DGMS-5A dated 13 Sep. 2021. He is presently asymptomatic. He is not on any medication for Hypertension. 3. DIAGNOSIS : Primary Hypertension Opinion: This 57 year old serving officer is a case of primary hypertension. He has adequate blood pressure control with life style modification for one year. BP control remains adequate. He has no target organ damage. In view of the above, the officer is a candidate for upgradation to SHAPE-I (as per DGAFMS memorandum No. 182 of 2012 Para 17 d). (emphasis supplied) 16. As noted, the learned ASG disputed the same by referring to the treatment and follow up booklet which is produced along with the additional documents by the respondent himself to indicate that the observation recorded in the chart as, - not on medication on various dates is based only on the oral statement of respondent made to the doctor which cannot be given credence. On this aspect, it is necessary to note that the medical records are of the Command Hospital itself and not of a private practitioner. The first date on which it is recorded as, - not on medication is on 25.06.2020 and the same is continued thereafter. The observations extracted above would indicate that the doctor has categorically recorded that the blood pressure has been controlled with lifestyle modification and the BP control remains adequate. When the opinion has been tendered by the competent medical experts, merely because the Military Secretary is not satisfied with the same will not entail either the AFT or this court to sit as a medical expert and reassess the opinion given by the Medical Board. 17. Be that as it may, when the No.1 Selection Board had taken note of the medical records as it existed earlier, in the background of nature of employability of the respondent, which was approved by the Chief of Army Staff and further when there is medical record to indicate that the medical condition of the respondent has improved for the better and the AFT while arriving at its conclusion has kept in view all aspects of the matter, such consideration would not call for interference. 18. The learned ASG further referred to the circular dated 07.09.2016, more particularly to para 3 thereof which read as hereunder:- 3. Post declassification of Selection Board results the empanelled officers are promoted in their turn based on availability of vacancies, performance & medical fitness. Given the time lag between the declassification of Selection Board results and physical promotion of an officer, there is a need to ensure that only those officers who are in acceptable medical category are promoted to the next higher rank. The actions to be taken by the officers and their Reporting chain on empanelment and during physical assumption of next higher rank are enumerated in succeeding paragraphs. In that regard, it is contended that given the time lag between declassification of the Selection Board results and the physical promotion of an officer, it should be ensured that only those officers who are in acceptable medical category are promoted to the next higher rank. The said requirement also cannot act as a bar in the instant case, since as noted above, firstly there is an improvement in the health condition and the respondent is opined to be in SHAPE-1 by the Medical Board. Even otherwise as noted, the medical condition was kept in view by the No.1 Selection Board and all competent authorities, in the backdrop of employability and there is no other additional medical disability acquired by the respondent during the period of time lag, if any.
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0[ds]7. The factual aspects insofar as the No.1 Selection Board recommending on 26.10.2020 the case of respondent for promotion on obtaining 94.482 marks and at that stage, the respondent was in SHAPE-2 medical category is not in dispute. The position is also that the Chief of Defence Staff on securing details on 12.02.2021 had declassified the results on 05.05.2021.10. The case of the respondent was in the medical classification S1H1A1P1E2 referred to therein. It was subject to review and the regular Review Medical Board had not happened in the routine period of two years due to Covid-19 restrictions. The Regulation 67 of Regulations for the Army provides that an officer who is in the classification S1H1A1P1E2 also can be considered for promotion provided the conditions the fulfilled. Hence, Regulation 67(b)(ii)(aa) noted above provides that there is no absolute bar from being considered for promotion. Consideration could be made subject to the other criteria being met and the Selection Board will have to keep in perspective these aspects. Though the assessment made by the Selection Board is only a recommendation, the approval to be granted by the competent authority would be relevant. However, the nature of the post for which the selection is made and the consideration made by the Selection Board would also remain relevant. In that circumstance, the nature of consideration made by the No.1 Selection Board forms a relevant basis more particularly in a circumstance where in the instant case after recommendation by the No.1 Selection Board, the Chief of Defence Staff had also taken note of the medical status of the respondent and taking into consideration the nature of duties to be performed as Deputy JAG had cleared the respondent for promotion.13. Having taken note of the contentions, the facts involved herein appear to be peculiar to the case on hand. Firstly, as noted from regulation 67(b), an officer in SHAPE-2 also can be considered for promotion provided the Medical Board finds the officer to be capable of performing the normal active service duties. In the instant case, the respondent is the JAG officer and even if promoted would generally perform his duties in the headquarters. It cannot be disputed that as contended by the learned ASG the services may require him to occasionally go to high altitude areas. In that regard, a consideration of the Medical Board opinion during April 2018 records that the respondent is unfit for high altitude employability i.e., 9000 feet and above. As on the date of consideration by No.1 Selection Board, undisputedly the respondent was in SHAPE-2 medical condition. Apart from the fact that we have taken note of the observations of the AFT from the records of the selection process we have referred to the circular dated 06.05.1987 relating to selection process. It is noted that as per the composition of the Selection Board for the various ranks, it is indicated that No.1 Selection Board would consider the cases for promotion from the rank of Brigadier to Major General which is relevant in the instant case and No.1 Selection Board consists of the cream of officers in the Rank. In the guidelines for conduct of Selection Board, the aspects to be taken into consideration is delineated and provides for the eligibility of the officer to be considered. Among the aspects indicated therein, the medical classification of the officer is one of the aspects. Further, while providing for objectivity in the selection process, apart from the overall performance of the officer, the employability of the officer in the next higher rank is to be kept in view by the Selection Board. The regulations while providing for the consideration empowers the Chief of Army Staff to ultimately take a decision. The role of the Military Secretary is only to bring to the notice of the Chief of the Army Staff if the officer concerned has been graded against the guidelines in the board grading.14. In the background of the above, even if the primary aspect of the respondent officer being classified as SHAPE-2 as on the date of consideration by the No.1 Selection Board and as on the date of declassification on 05.05.2021 to which detailed reference as made by the learned ASG is taken note of, as rightly observed by the AFT the medical records were available before the No.1 Selection Board and a conscious decision was taken to recommend for promotion. As noted, the guidelines provide for the Selection Board to take note of the medical classification of the officer. That apart, for an objective selection, the guideline requires the Selection Board to keep in view the employability of the officer in the next higher rank. In a matter of the present nature where the selection was being made to a high rank from that of Brigadier to Major General and that too in JAG branch, the employability of such officer and the nature of duties was also to be kept in view. In the instant case, the only disability of the officer concerned while in SHAPE-2 also is with regard to the risk in high altitude service and the No.1 Selection Board has kept in view the normal nature of work to be performed as JAG (Litigation). In that view, the No.1 Selection Board should be credited of having applied its mind before recommending the case of the respondent. Further, after clearance by the No.1 Selection Board, the Chief of Defence Staff had on 12.02.2021 taken note of the medical status of the respondent and had approved the recommendation. When officers of such high rank have applied their mind in the instant case and approved the case of respondent for promotion the repeated objection by the Military Secretary is not justified.15. The other aspect of the matter is that the respondent having filed an appeal and having made a request for waiver initially and thereafter for medical re-examination cannot be held against the respondent. Though the Selection Board had already recommended the candidature of the respondent which had been approved by the Chief of Army Staff, the respondent had sought for re-examination which is to his credit and was rightly allowed.16. As noted, the learned ASG disputed the same by referring to the treatment and follow up booklet which is produced along with the additional documents by the respondent himself to indicate that the observation recorded in the chart as, - not on medication on various dates is based only on the oral statement of respondent made to the doctor which cannot be given credence. On this aspect, it is necessary to note that the medical records are of the Command Hospital itself and not of a private practitioner. The first date on which it is recorded as, - not on medication is on 25.06.2020 and the same is continued thereafter. The observations extracted above would indicate that the doctor has categorically recorded that the blood pressure has been controlled with lifestyle modification and the BP control remains adequate. When the opinion has been tendered by the competent medical experts, merely because the Military Secretary is not satisfied with the same will not entail either the AFT or this court to sit as a medical expert and reassess the opinion given by the Medical Board.17. Be that as it may, when the No.1 Selection Board had taken note of the medical records as it existed earlier, in the background of nature of employability of the respondent, which was approved by the Chief of Army Staff and further when there is medical record to indicate that the medical condition of the respondent has improved for the better and the AFT while arriving at its conclusion has kept in view all aspects of the matter, such consideration would not call for interference.The said requirement also cannot act as a bar in the instant case, since as noted above, firstly there is an improvement in the health condition and the respondent is opined to be in SHAPE-1 by the Medical Board. Even otherwise as noted, the medical condition was kept in view by the No.1 Selection Board and all competent authorities, in the backdrop of employability and there is no other additional medical disability acquired by the respondent during the period of time lag, if any.
| 0 | 4,802 | 1,481 |
### 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:
conscious decision was taken to recommend for promotion. As noted, the guidelines provide for the Selection Board to take note of the medical classification of the officer. That apart, for an objective selection, the guideline requires the Selection Board to keep in view the employability of the officer in the next higher rank. In a matter of the present nature where the selection was being made to a high rank from that of Brigadier to Major General and that too in JAG branch, the employability of such officer and the nature of duties was also to be kept in view. In the instant case, the only disability of the officer concerned while in SHAPE-2 also is with regard to the risk in high altitude service and the No.1 Selection Board has kept in view the normal nature of work to be performed as JAG (Litigation). In that view, the No.1 Selection Board should be credited of having applied its mind before recommending the case of the respondent. Further, after clearance by the No.1 Selection Board, the Chief of Defence Staff had on 12.02.2021 taken note of the medical status of the respondent and had approved the recommendation. When officers of such high rank have applied their mind in the instant case and approved the case of respondent for promotion the repeated objection by the Military Secretary is not justified. 15. The other aspect of the matter is that the respondent having filed an appeal and having made a request for waiver initially and thereafter for medical re-examination cannot be held against the respondent. Though the Selection Board had already recommended the candidature of the respondent which had been approved by the Chief of Army Staff, the respondent had sought for re-examination which is to his credit and was rightly allowed. The Medical Board in the opinion dated 20.09.2021 (ANNEXURE A/10) has recorded as hereunder :- This 57 year old serving officer was detected to have hypertension during AME in Apr 2018. He was evaluated and diagnosed to have Primary Hypertension. He was advised medication BP control was adequate. Subsequently the officer has discontinued medicine for last one year as recorded by AMS and BP has remained within normal limits (Photocopy of BP recordings by AMA attached). He is being observed in LMC P2 (Permanent). He has reported for remedial exam/Board as per directions of the COAS vide integrated HQ, MoD letter no. 76086/Gen/DGMS-5A dated 13 Sep. 2021. He is presently asymptomatic. He is not on any medication for Hypertension. 3. DIAGNOSIS : Primary Hypertension Opinion: This 57 year old serving officer is a case of primary hypertension. He has adequate blood pressure control with life style modification for one year. BP control remains adequate. He has no target organ damage. In view of the above, the officer is a candidate for upgradation to SHAPE-I (as per DGAFMS memorandum No. 182 of 2012 Para 17 d). (emphasis supplied) 16. As noted, the learned ASG disputed the same by referring to the treatment and follow up booklet which is produced along with the additional documents by the respondent himself to indicate that the observation recorded in the chart as, - not on medication on various dates is based only on the oral statement of respondent made to the doctor which cannot be given credence. On this aspect, it is necessary to note that the medical records are of the Command Hospital itself and not of a private practitioner. The first date on which it is recorded as, - not on medication is on 25.06.2020 and the same is continued thereafter. The observations extracted above would indicate that the doctor has categorically recorded that the blood pressure has been controlled with lifestyle modification and the BP control remains adequate. When the opinion has been tendered by the competent medical experts, merely because the Military Secretary is not satisfied with the same will not entail either the AFT or this court to sit as a medical expert and reassess the opinion given by the Medical Board. 17. Be that as it may, when the No.1 Selection Board had taken note of the medical records as it existed earlier, in the background of nature of employability of the respondent, which was approved by the Chief of Army Staff and further when there is medical record to indicate that the medical condition of the respondent has improved for the better and the AFT while arriving at its conclusion has kept in view all aspects of the matter, such consideration would not call for interference. 18. The learned ASG further referred to the circular dated 07.09.2016, more particularly to para 3 thereof which read as hereunder:- 3. Post declassification of Selection Board results the empanelled officers are promoted in their turn based on availability of vacancies, performance & medical fitness. Given the time lag between the declassification of Selection Board results and physical promotion of an officer, there is a need to ensure that only those officers who are in acceptable medical category are promoted to the next higher rank. The actions to be taken by the officers and their Reporting chain on empanelment and during physical assumption of next higher rank are enumerated in succeeding paragraphs. In that regard, it is contended that given the time lag between declassification of the Selection Board results and the physical promotion of an officer, it should be ensured that only those officers who are in acceptable medical category are promoted to the next higher rank. The said requirement also cannot act as a bar in the instant case, since as noted above, firstly there is an improvement in the health condition and the respondent is opined to be in SHAPE-1 by the Medical Board. Even otherwise as noted, the medical condition was kept in view by the No.1 Selection Board and all competent authorities, in the backdrop of employability and there is no other additional medical disability acquired by the respondent during the period of time lag, if any.
### Response:
0
### Explanation:
him to occasionally go to high altitude areas. In that regard, a consideration of the Medical Board opinion during April 2018 records that the respondent is unfit for high altitude employability i.e., 9000 feet and above. As on the date of consideration by No.1 Selection Board, undisputedly the respondent was in SHAPE-2 medical condition. Apart from the fact that we have taken note of the observations of the AFT from the records of the selection process we have referred to the circular dated 06.05.1987 relating to selection process. It is noted that as per the composition of the Selection Board for the various ranks, it is indicated that No.1 Selection Board would consider the cases for promotion from the rank of Brigadier to Major General which is relevant in the instant case and No.1 Selection Board consists of the cream of officers in the Rank. In the guidelines for conduct of Selection Board, the aspects to be taken into consideration is delineated and provides for the eligibility of the officer to be considered. Among the aspects indicated therein, the medical classification of the officer is one of the aspects. Further, while providing for objectivity in the selection process, apart from the overall performance of the officer, the employability of the officer in the next higher rank is to be kept in view by the Selection Board. The regulations while providing for the consideration empowers the Chief of Army Staff to ultimately take a decision. The role of the Military Secretary is only to bring to the notice of the Chief of the Army Staff if the officer concerned has been graded against the guidelines in the board grading.14. In the background of the above, even if the primary aspect of the respondent officer being classified as SHAPE-2 as on the date of consideration by the No.1 Selection Board and as on the date of declassification on 05.05.2021 to which detailed reference as made by the learned ASG is taken note of, as rightly observed by the AFT the medical records were available before the No.1 Selection Board and a conscious decision was taken to recommend for promotion. As noted, the guidelines provide for the Selection Board to take note of the medical classification of the officer. That apart, for an objective selection, the guideline requires the Selection Board to keep in view the employability of the officer in the next higher rank. In a matter of the present nature where the selection was being made to a high rank from that of Brigadier to Major General and that too in JAG branch, the employability of such officer and the nature of duties was also to be kept in view. In the instant case, the only disability of the officer concerned while in SHAPE-2 also is with regard to the risk in high altitude service and the No.1 Selection Board has kept in view the normal nature of work to be performed as JAG (Litigation). In that view, the No.1 Selection Board should be credited of having applied its mind before recommending the case of the respondent. Further, after clearance by the No.1 Selection Board, the Chief of Defence Staff had on 12.02.2021 taken note of the medical status of the respondent and had approved the recommendation. When officers of such high rank have applied their mind in the instant case and approved the case of respondent for promotion the repeated objection by the Military Secretary is not justified.15. The other aspect of the matter is that the respondent having filed an appeal and having made a request for waiver initially and thereafter for medical re-examination cannot be held against the respondent. Though the Selection Board had already recommended the candidature of the respondent which had been approved by the Chief of Army Staff, the respondent had sought for re-examination which is to his credit and was rightly allowed.16. As noted, the learned ASG disputed the same by referring to the treatment and follow up booklet which is produced along with the additional documents by the respondent himself to indicate that the observation recorded in the chart as, - not on medication on various dates is based only on the oral statement of respondent made to the doctor which cannot be given credence. On this aspect, it is necessary to note that the medical records are of the Command Hospital itself and not of a private practitioner. The first date on which it is recorded as, - not on medication is on 25.06.2020 and the same is continued thereafter. The observations extracted above would indicate that the doctor has categorically recorded that the blood pressure has been controlled with lifestyle modification and the BP control remains adequate. When the opinion has been tendered by the competent medical experts, merely because the Military Secretary is not satisfied with the same will not entail either the AFT or this court to sit as a medical expert and reassess the opinion given by the Medical Board.17. Be that as it may, when the No.1 Selection Board had taken note of the medical records as it existed earlier, in the background of nature of employability of the respondent, which was approved by the Chief of Army Staff and further when there is medical record to indicate that the medical condition of the respondent has improved for the better and the AFT while arriving at its conclusion has kept in view all aspects of the matter, such consideration would not call for interference.The said requirement also cannot act as a bar in the instant case, since as noted above, firstly there is an improvement in the health condition and the respondent is opined to be in SHAPE-1 by the Medical Board. Even otherwise as noted, the medical condition was kept in view by the No.1 Selection Board and all competent authorities, in the backdrop of employability and there is no other additional medical disability acquired by the respondent during the period of time lag, if any.
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Sahakar Global Limited & Another Vs. Barjora Alert Cooperative Labour Contract & Construction Society Limited & Others
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Inviting Electronics Bids ("NIEB" for short) issued, the appellant had not submitted its registered power of attorney. Aggrieved, the appellant moved the High Court by instituting a writ proceeding. The learned single judge of the High court by order dated 28th April, 2017 took the view that though submission of a registered power of attorney by a bidder was mandatory, yet, having regard to the clause in the NIEB which enabled the tendering authority to seek clarifications/ information or additional supporting documents in respect of any matter concerning the tender, the tendering authority should have asked the appellant to submit a registered document in place of the notarized power of attorney which had been submitted along with the appellants bid. Consequently, the learned single judge of the High Court directed that such an opportunity be given to all concerned who had participated in the tender process.3. The aforesaid order of the learned single judge was challenged in appeal by the present respondent No.1 - Barjora Alert Co-operative Labour & Construction Society Limited, respondent No.4 - Ainul Hoque as well as by the State of West Bengal. The appellate Bench of the High Court set aside the order of the learned single judge and took the view that non-submission of the registered power of attorney was fatal to the bid submitted by a prospective bidder. Aggrieved, these appeals have been filed. 4. The matter lies within a short compass and for a proper appreciation of the issue arising we may at the outset extract certain relevant parts of the NIEB which are as follows: "4. Eligibility criteria for participation in bid.a. WORK CREDENTIAL:-i. ............. ..............IV. Other terms and conditions of the credentials.i. ............. ..............e. The partnership firm shall have to submit the registered/ Notarized partnership deed and Registered Power of Attorney (Non Statutory Documents)f. A company shall have to submit Registered Article of Memorandum.***INSTRUCTIONS TO BIDDERSSECTION-A1. .............. ...........3. Digital Signature Certificate (DSC):-Each contractor is required to obtain a class-II or class-III Digital Signature Certificate (DSC) for submission of tender/Bids, from the approved service provider of the National Informations Centre (NIC) on payment of requisite amount details are available at the Web Site stated in clause 2 of Guideline to Bidder/tenderer DSC is given as a USB e-Token. Where an individual person holds a digital certificate in his own name duly issued to him against the company or the firm of which he happens to be a director (even Managing Director) or partner, such individual person shall, while uploading any bid for and on behalf of such company or firm invariably upload a copy of registered power of attorney showing clear authorization in his favour, by the rest of the directors of such company or the partners of such firm, to upload such bid. The power of attorney shall have to be registered in accordance with the provisions of the Registration Act, 1908. Vide Notification No.61/SPW/12 dated 08.06.2012 of Secretary, P.W. & P.W. (Roads) Department, Govt. of W.B.... ................ ..............6. Submission of Bids:-A-2 Non Statutory Cover containingSl.No.Category NameSub-Category DescriptionDetailsA..........B.Company DetailsCompany Details-11. Registration Certificate under Company Act. (if any)2. Registered or Notarized Deed of Partnership Firm/ Registered Article of Association & Memorandum.3. Registered Power of Attorney (For Partnership Firm/ Private Limited Company, if any) vide Clause-3 under Section-A of page-4, Instruction to Bidder. Registration certificate, Bye-Laws issued by the co-operation department, latest audit report audited by Co-operation department, resolution copy of Annual General Meeting/General meeting/Committee meeting empowered to use of D.S.C. to any member of the respective Society of are to be submitted by the Registered labour Co-op. Societies, EngineersCo.opt. Societies............B. Bid evaluation:-i. ................ ..............v. While evaluation the Notice Inviting Authority may summon of the bids and seek clarification/information or additional supporting documents or original hard copies against any of the documents only, which are already submitted/uploaded in the web portal and if these are not produced by the intending Bidders within the stipulated time frame (within only 48 hours), their proposals will be liable for rejection." 5. From the above, it appears to us that though in different parts of the NIEB it has been specifically recited that partnership firms/private limited companies will have to submit their registered power of attorney, as to whether the same requirement would apply to a public limited company is conspicuously absent. In fact, in the clauses under the Heading other terms and conditions of the credentials [clauses (e) and (f)], extracted above, it is explicitly stated that while a partnership firm is required to submit a registered/notarized partnership deed and registered power of attorney, a company is required to submit a registered Article of Memorandum only. Similarly, under clause 6 of Section -A of the NIEB under the Heading Submission of Bids the requirement of submission of registered power of attorney is only with reference to partnership firms and private limited companies.6. The appellant is a public limited company. While clause 3 under the Heading "Instructions to Bidders" of the NIEB which deals with Digital Signature Certificate (DSC) suggests that every company may be required to submit a registered power of attorney, the said clause cannot be read in isolation and de hors the other provisions of the NIEB. That apart, in the present case, the notarized power of attorney submitted by the appellant clearly indicated that the person under whose digitized signature the bid was submitted on behalf of the appellant was authorized by the Company to so act. In these circumstances, no other conclusion save and except that submission of registered power of attorney was not a mandatory requirement under the NIEB can be reached. If that is so, the power of the tendering authority to seek clarifications/information or additional supporting documents or original hard copies was open to be exercised at its discretion which option was not availed of by the tendering authority. Instead, the tendering authority proceeding on the basis that the requirement of submission of registered power of attorney is a mandatory requirement had rejected the technical bid of the appellant.
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1[ds]5. From the above, it appears to us that though in different parts of the NIEB it has been specifically recited that partnership firms/private limited companies will have to submit their registered power of attorney, as to whether the same requirement would apply to a public limited company is conspicuously absent. In fact, in the clauses under the Heading other terms and conditions of the credentials [clauses (e) and (f)], extracted above, it is explicitly stated that while a partnership firm is required to submit a registered/notarized partnership deed and registered power of attorney, a company is required to submit a registered Article of Memorandum only. Similarly, under clause 6 of SectionA of the NIEB under the Heading Submission of Bids the requirement of submission of registered power of attorney is only with reference to partnership firms and private limited companies.6. The appellant is a public limited company. While clause 3 under the Heading "Instructions to Bidders" of the NIEB which deals with Digital Signature Certificate (DSC) suggests that every company may be required to submit a registered power of attorney, the said clause cannot be read in isolation and de hors the other provisions of the NIEB. That apart, in the present case, the notarized power of attorney submitted by the appellant clearly indicated that the person under whose digitized signature the bid was submitted on behalf of the appellant was authorized by the Company to so act. In these circumstances, no other conclusion save and except that submission of registered power of attorney was not a mandatory requirement under the NIEB can be reached. If that is so, the power of the tendering authority to seek clarifications/information or additional supporting documents or original hard copies was open to be exercised at its discretion which option was not availed of by the tendering authority. Instead, the tendering authority proceeding on the basis that the requirement of submission of registered power of attorney is a mandatory requirement had rejected the technical bid of the appellant.
| 1 | 1,191 | 373 |
### 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:
Inviting Electronics Bids ("NIEB" for short) issued, the appellant had not submitted its registered power of attorney. Aggrieved, the appellant moved the High Court by instituting a writ proceeding. The learned single judge of the High court by order dated 28th April, 2017 took the view that though submission of a registered power of attorney by a bidder was mandatory, yet, having regard to the clause in the NIEB which enabled the tendering authority to seek clarifications/ information or additional supporting documents in respect of any matter concerning the tender, the tendering authority should have asked the appellant to submit a registered document in place of the notarized power of attorney which had been submitted along with the appellants bid. Consequently, the learned single judge of the High Court directed that such an opportunity be given to all concerned who had participated in the tender process.3. The aforesaid order of the learned single judge was challenged in appeal by the present respondent No.1 - Barjora Alert Co-operative Labour & Construction Society Limited, respondent No.4 - Ainul Hoque as well as by the State of West Bengal. The appellate Bench of the High Court set aside the order of the learned single judge and took the view that non-submission of the registered power of attorney was fatal to the bid submitted by a prospective bidder. Aggrieved, these appeals have been filed. 4. The matter lies within a short compass and for a proper appreciation of the issue arising we may at the outset extract certain relevant parts of the NIEB which are as follows: "4. Eligibility criteria for participation in bid.a. WORK CREDENTIAL:-i. ............. ..............IV. Other terms and conditions of the credentials.i. ............. ..............e. The partnership firm shall have to submit the registered/ Notarized partnership deed and Registered Power of Attorney (Non Statutory Documents)f. A company shall have to submit Registered Article of Memorandum.***INSTRUCTIONS TO BIDDERSSECTION-A1. .............. ...........3. Digital Signature Certificate (DSC):-Each contractor is required to obtain a class-II or class-III Digital Signature Certificate (DSC) for submission of tender/Bids, from the approved service provider of the National Informations Centre (NIC) on payment of requisite amount details are available at the Web Site stated in clause 2 of Guideline to Bidder/tenderer DSC is given as a USB e-Token. Where an individual person holds a digital certificate in his own name duly issued to him against the company or the firm of which he happens to be a director (even Managing Director) or partner, such individual person shall, while uploading any bid for and on behalf of such company or firm invariably upload a copy of registered power of attorney showing clear authorization in his favour, by the rest of the directors of such company or the partners of such firm, to upload such bid. The power of attorney shall have to be registered in accordance with the provisions of the Registration Act, 1908. Vide Notification No.61/SPW/12 dated 08.06.2012 of Secretary, P.W. & P.W. (Roads) Department, Govt. of W.B.... ................ ..............6. Submission of Bids:-A-2 Non Statutory Cover containingSl.No.Category NameSub-Category DescriptionDetailsA..........B.Company DetailsCompany Details-11. Registration Certificate under Company Act. (if any)2. Registered or Notarized Deed of Partnership Firm/ Registered Article of Association & Memorandum.3. Registered Power of Attorney (For Partnership Firm/ Private Limited Company, if any) vide Clause-3 under Section-A of page-4, Instruction to Bidder. Registration certificate, Bye-Laws issued by the co-operation department, latest audit report audited by Co-operation department, resolution copy of Annual General Meeting/General meeting/Committee meeting empowered to use of D.S.C. to any member of the respective Society of are to be submitted by the Registered labour Co-op. Societies, EngineersCo.opt. Societies............B. Bid evaluation:-i. ................ ..............v. While evaluation the Notice Inviting Authority may summon of the bids and seek clarification/information or additional supporting documents or original hard copies against any of the documents only, which are already submitted/uploaded in the web portal and if these are not produced by the intending Bidders within the stipulated time frame (within only 48 hours), their proposals will be liable for rejection." 5. From the above, it appears to us that though in different parts of the NIEB it has been specifically recited that partnership firms/private limited companies will have to submit their registered power of attorney, as to whether the same requirement would apply to a public limited company is conspicuously absent. In fact, in the clauses under the Heading other terms and conditions of the credentials [clauses (e) and (f)], extracted above, it is explicitly stated that while a partnership firm is required to submit a registered/notarized partnership deed and registered power of attorney, a company is required to submit a registered Article of Memorandum only. Similarly, under clause 6 of Section -A of the NIEB under the Heading Submission of Bids the requirement of submission of registered power of attorney is only with reference to partnership firms and private limited companies.6. The appellant is a public limited company. While clause 3 under the Heading "Instructions to Bidders" of the NIEB which deals with Digital Signature Certificate (DSC) suggests that every company may be required to submit a registered power of attorney, the said clause cannot be read in isolation and de hors the other provisions of the NIEB. That apart, in the present case, the notarized power of attorney submitted by the appellant clearly indicated that the person under whose digitized signature the bid was submitted on behalf of the appellant was authorized by the Company to so act. In these circumstances, no other conclusion save and except that submission of registered power of attorney was not a mandatory requirement under the NIEB can be reached. If that is so, the power of the tendering authority to seek clarifications/information or additional supporting documents or original hard copies was open to be exercised at its discretion which option was not availed of by the tendering authority. Instead, the tendering authority proceeding on the basis that the requirement of submission of registered power of attorney is a mandatory requirement had rejected the technical bid of the appellant.
### Response:
1
### Explanation:
5. From the above, it appears to us that though in different parts of the NIEB it has been specifically recited that partnership firms/private limited companies will have to submit their registered power of attorney, as to whether the same requirement would apply to a public limited company is conspicuously absent. In fact, in the clauses under the Heading other terms and conditions of the credentials [clauses (e) and (f)], extracted above, it is explicitly stated that while a partnership firm is required to submit a registered/notarized partnership deed and registered power of attorney, a company is required to submit a registered Article of Memorandum only. Similarly, under clause 6 of SectionA of the NIEB under the Heading Submission of Bids the requirement of submission of registered power of attorney is only with reference to partnership firms and private limited companies.6. The appellant is a public limited company. While clause 3 under the Heading "Instructions to Bidders" of the NIEB which deals with Digital Signature Certificate (DSC) suggests that every company may be required to submit a registered power of attorney, the said clause cannot be read in isolation and de hors the other provisions of the NIEB. That apart, in the present case, the notarized power of attorney submitted by the appellant clearly indicated that the person under whose digitized signature the bid was submitted on behalf of the appellant was authorized by the Company to so act. In these circumstances, no other conclusion save and except that submission of registered power of attorney was not a mandatory requirement under the NIEB can be reached. If that is so, the power of the tendering authority to seek clarifications/information or additional supporting documents or original hard copies was open to be exercised at its discretion which option was not availed of by the tendering authority. Instead, the tendering authority proceeding on the basis that the requirement of submission of registered power of attorney is a mandatory requirement had rejected the technical bid of the appellant.
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Union Of India Vs. Azadi Bachao Andolan
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595]. "We infer that Stantus was created by petitioners with a view to reducing their taxes through qualification of the corporation under the convention. The test, however, is not the personal purpose of a taxpayer in creating a corporation. Rather, it is whether that purpose is intended to be accomplished through a corporation carrying out substantive business functions. If the purpose of the corporation is to carry out substantive business functions, or if it in fact engages in substantive business activity, it will not be disregarded for Federal tax purposes." 164. In Barber-Greene Americas, Inc. vs. Commissioner of Internal Revenue [1960) 35 T.C. 365, 383, 384] it was observed that a corporation will not be denied Western Hemisphere trade corporation tax benefits merely because it was purposely created and operated in such way as to obtain such benefits. Similarly, a corporation otherwise qualified should not be disregarded merely because it was purposely created and operated to obtain the benefits of the United States-Swiss Confederation Income Tax Convention. 165. Though the words “sham”, and “device” were loosely used in connection with the incorporation under the Mauritius law, we deem if fit to enter a caveat here. These words are not intended to be used as magic mantras or catshall phrases to defeat or nullify the effect of a legal situation. As Lord Atkin pointed out in Duke of Westminster [supra note 57]: "I do not use the word device in any sinister sense; for it has to be recognised that the subject, whether poor and humble or wealthy and noble, has the legal right so to dispose of his capital and income as to attract upon himself the least amount of tax. The only function of a court of law is to determine the legal result of his dispositions so far as they affect tax." Lord Tomlin said: "There may, of course, be cases where documents are not bona fide nor intended to be acted upon, but are only used as a cloak to conceal of different transaction." 166. In Snook vs. London and West Riding Investments Ltd. [(1967) All ER 518 at 528] Lord Diplock L.J, explained the use of the word “sham” as a legal concept in the following words: "it is, I think necessary to consider what, if any, legal concept is involved in the use of this popular and pejorative word. I apprehend that, if it has any meaning in law, it means acts done or documents executed by the parties to the “sham” which are intended by them to give to third parties or to the court the appearance of creating between the parties legal rights and obligations different from the actual legal rights and obligations (if any), which the parties intend to create. One thing I think, however, is clear in legal principle, morality and the authorities (see Yorkshire Railway Wagon Contracting State vs. Maclure (1882) 21 Ch. D. 309; Stoneleigh Finance, Ltd. vs. Phillips (1965) 1 All ER 513) that for acts or documents to be a “sham”, with whatever legal consequences follow from this, all the parties thereto must have a common intention that the acts or documents are not to create the legal rights and obligations which they give the appearance of creating. No unexpressed intentions of a “shammer” affect the rights of a party whom he deceived." 167. In Waman Rao and others vs. Union of India & others [1981) 2 SCC 362 at para 45, and Minerva Mills Ltd and others vs. Union of India and others [1980) 3 SCC 625 at para 91] this Court considered the import of the word “device” with reference to Article 31B which provided that the Acts and Regulations specified Ninth Schedule shall not be deemed to be void or even to have become void on the groud that they are inconsistent with the Fundamental Rights. The use of the word “device” here was not pejorative, but to describe a provision of law intended to produce a certain legal result. 168. If the Court finds that notwithstanding a series of legal steps taken by an assessee, the intended legal result has not been achieved, the Court might be justified in overlooking the intermediate steps, but it would not be permissible for the Court to treat the intervening legal steps as non-est based upon some hypothetical assessment of the “real motive” of the assesssee. In our view, the court must deal with what is tangible in an objective manner and cannot afford to chase a will-o”-the-wisp. 169. The judgment of the Privy Council in Bank of Chettiand [supra note 94], wholeheartedly approving the dicta in the passage from the opinion of Lord Russel in Westminster [supra note 57], was the law in this country when the Constitution came into force. This was the law in force then, which continued by reason of Article 372. Unless abrogated by an Act or Parliament, or by a clear pronouncement of this Court, we think that this legal principle would continue to hold good. Having anxiously scanned McDowell [supra note 1], we find no reference therein to having dissented from or overruled the decision of the Privy Council in Bank of Chettinad [supra note 94]. If any, the principle appears to have been reiterated with approval by the Constitutional Bench of this Court in Mathuram [supra note 93]. We are, therefore, unable to accept the contention of the respondents that there has been a very drastic change in the fiscal jurisprudence, in India, as would entail a departure. In our judgment, from Westminster [supra note 57] to Bank of Chettinad [supra note 94] to Mathuram [supra note 93], despite the hiccups of McDowell [supra note 1], the law has remained the same.170. We are unable to agree with the submission that an act which is otherwise valid in law can be treated as non-est merely on the basis of some underlying motive supposedly resulting in some economic detriment or prejudice to the national interests, as perceived by the respondents.
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1[ds]31. The contention of the respondents, which weighed with the High Court viz, that the impugned circular No. 789 in inconsistent with the provisions of the Act, is a total non-sequitur. As we have pointed out, Circular No. 789 is a circular within the meaning of section 90; therefore, it must have the legal consequences contemplated by sub-section (2) of section 90. In other words, the circular shall prevail even if inconsistent with the provisions of Income-tax Act, 1961 insofar as assessees covered by the provisions of the DTAC are concerned.In our view, the contention is wholly misconceived. Section 90, as we have already noticed (including its precursor under the 1922 Act), was brought on the statute book precisely to enable the executive to negotiate a DTAC and quickly implement it. Even accepting the contention of the respondents that the powers exercised by the Central Government under section 90 are delegated powers of legislation, we areee as to why a delegatee of legislative power in all cases has no power to grant exemption. There are provisions galore in statutes made by Parliament and State legislatures wherein the power of conditional or unconditional exemption from the provisions of the statutes are expressly delegated to the executive. For example, even in fiscal legislation like the Central Excise Act and Sales Tax, Act there are provisions for exemption from the levy of Tax [See Section 5A of Central Excise Act, 1944 and Section 8(5) of the Central Sales Tax Act, 1956]. Therefore we areto accept the contentionthat the delegate of a legislative power cannot exercise the power of exemption in a fiscalour view, the High Court was not justified in reading the circular as not complying with the provisions of section 119. The circular falls well within the parameters of the powers exercisable by the CBDT under Section 119 of the Act.50. The High Court persuaded itself to hold that the circular is ultra vires the powers of the CBDT on completely erroneous grounds. The impugned circular provides that whenever a certificate of residence is issued by the Mauritius Authorities, such certificate will constitute sufficient evidence of accepting the status of residences as well as beneficial ownership for applying the DTAC accordingly. It also provides that the test of residence mentioned above would also apply in respect of income from capital gains on sale of shares. Accordingly, FIIs etc. which are resident in Mauritius would not be taxable in India on income from capital gains arising in India on sale of shares as per paragraph 4 of Article 13. This, the High Court thought amounts to issuing instructions "de hors the provisions of the Act".51. In our view, this thinking of the High Court is erroneous. The only restriction on the power of the CBDT is to prevent it from interfering with the course ofof any particularassessee or the discretion of the Commissioner of Income-Tax (Appeals). It would be useful to recall the background against which this circular was issued.As early as on March 30, 1994, the CBDT had issued circular no. 682 in which it had been emphasised that anyus deriving income from alienation of shares of an Indian company would beto capital gainstax only in Mauritius as per Mauritius tax law and would not have any capital gains tax liability in India. This circular was a clear enunciation of the provisions contained in the DTAC, which would have overriding effect over the provisions of sections 4 and 5of the Income-taxAct, 1961 by virtue of section 90(1) of the Act. If, in the teeth of this clarification, the assessing officers chose to ignore the guidelines and spent their time, talent and energy on inconsequential matters, we think that the CBDT was justified in issuingdirections vide circular no. 789, under its powers under section 119, to set things on course by eliminating avoidable wastage of time, talent and energy of the assesssing officers discharging the onerous public duty of collection of revenue. The circular no. 789 does not in any way crib, cabin or confine the powers of the assessing officer with regard to any particular assessment. It merely formulates broad guidelines to be applied in the matter ofes covered by the provisions of the DTAC.56. We do not think the circular in any way takes away or curtails the jurisdiction of the assessing officer to assess the income of the assessee before him. In our view, therefore, it is erroneous to say that the impugned circular No. 789 dated 13.4.2000 is ultra vires the provisions of section 119 of the Act. In our judgment, the powers conferred upon the CBDT by sub-sections (1) and (2) of Section 119 are wide enough to accommodate such acourt reiterated the legal position, well established by a long series of decisions, in Maharashtra State Board of Secondary and Higher Secondary Education and another vs. Paritosh Bhupeshkumar Sheth and others [(1984)4 SCC 27 at paralong as the body entrusted with the task of framing the rules or regulations acts within the scope of the authority conferred on it, in the sense that the rules or regulations made by it have a rational nexus with the object and purpose of the status, the court should not concern itself with the wisdom or efficaciousness of such rules or regulations. It is exclusively within the province of the legislature and its delegate to determine, as a matter of policy, how the provisions of the statute can best be implemented and what measures, substantive as well as procedural would have to be incorporated in the rules or regulations for the efficacioushe objects and purposes of the Act. It is not for the Court to examine the merits or demerits of such a policy because its scrutiny has to be limited to the question as to whether the impugned regulations fall within the scope of the regulation-making power conferred on the delegate by the statute".Applying this test, we areto hold thatimpugned circular amounts to impermissible delegation of legislative power. That the amendment made in section 90 was intended to empower the Government to enter into agreement with foreign Government, if necessary, for relief or avoidance of double taxation, is also made clear by the Finance Minister in his Budget Speech,to accept the contentionof the respondent that the DTAC is ultra vires the powers of the Central Government under Section 90 onts susceptibility toon behalf of the residents of third countries.63. The High Court seems to have heavily relied on an assessment order made by the assessing officer in the case of Cox and Kings Ltd. drawing inspiration therefrom. We are afraid that it was impermissible for the High Court to do so. An assessment made in the case of a particular assessee isbe challenged by the Revenue or by the assessee by the procedure available under the Act. In a Public Interest Litigation it would be most unfair to comment on the correctness of the assessment order made in the case of a particular assessee, especially when the assessee is not a party before the High Court. Any observation made by the Court would result in prejudice to one or the other party to the litigation. For this reason, we refrain from making any observations about the correctness or otherwise of the assessment order made in Cox and Kings Ltd. Needless to say, we decline to draw inspiration therefrom, for our inspiration is drawn from principles of law as gathered from statutes and precedents.We are inclined to agree with the submission of the appellants that, merely because exemption has been granted in respect of taxability of a particular source of income, it cannot be postulated that the entity is notas contended by the respondents.In our view, the contention of the respondents proceeds on the fallacious premise that liability to taxation is the same asx. Liability to taxation is a legal situation;of tax isa fiscal fact. For the purpose of application of Article 4 of the DTAC, what is relevant is the legal situation, namely, liability to taxation, and not the fiscal fact of actualx. If this were not so, the DTAC would not have used the wordsbut would have used some appropriate words like. On the language of the DTAC, it is notto accept the contentionof the respondents that offshore companies incorporated and registered under MOBA are notunder the Mauritius Income-tax Act; nor is itto accept the contentionthat such companies would not bein Mauritius within the meaning of Article 3 read with Article 4 of the DTAC.95. There is a further reason in support of our view. The expressionhas been adopted from the Organisation for Economic Co-operation and Development Council (OECD) Model Convention 1977. The OECD commentary on article 4, definingsays; "Conventions for the avoidance of double taxation do not normally concern themselves with the domestic lawsof the Contractinglaying down the conditions under which a person is to be treated fiscally asand, consequently, is fullyto tax in. The expression used isby reasons of various factors. This definition has been carried over even in Article 4 dealing within the OECD Model Convention 1992.It is, therefore, not possible for usto accept theso strenuously urged on behalf of the respondents that avoidance of double taxation can arise only when tax is actually paid in oneIn our view, the recommendations of the Working Group of the JPC are intended for Parliament to take appropriate action. The JPC might have noticed certain consequences, intended or unintended, flowing from the DTAC and has made appropriate recommendations. Based on them, it is not possible for us to say that the DTAC or the impugned circular are contrary to law, nor would it beto interfere witheither of them on the basis of the report of the JPC.There are many principles in fiscal economy which, though at first blush might appear to be evil, are tolerated in a developing economy, in the interest of long term development. Deficit financing for example, is one treaty, shopping in our view, is another. Despite the sound and fury of the respondents over the so called "abuse" of "treaty shopping", perhaps, it may have been intended at the time when Indo-Mauritius DTAC was entered into. Whether it should continue, and, if so, for low long is a matter which is best left to the discretion of the executive as it is dependent upon several economic and political considerations. This Court cannot judge the legality of treaty shopping merely because one section of thought considers it improper. A holistic view has to be taken to adjudge what is perhaps regarded in contemporary thinking as a necessary evil in a developing economy.of the Privy Council in Bank ofChettiand [supra note 94], wholeheartedly approving the dicta in the passage from the opinion of Lord Russel in Westminster [supra note 57], was the law in this country when the Constitution came into force. This was the law in force then, which continued by reason of Article 372. Unless abrogated by an Act or Parliament, or by a clearis Court, we think that this legal principle would continue to hold good. Having anxiously scanned McDowell [supra note 1], we find no reference therein to having dissented from or overruled the decisionof the Privy Council in Bank ofChettinad [supra note 94]. If any, the principle appears to have been reiterated with approval by the Constitutional Bench of this Court in Mathuram [supra note 93]. We are, therefore,to accept thecontention of the respondents that there has been a very drastic change in the fiscal jurisprudence, in India, as would entail a departure. In our judgment, from Westminster [supra note 57] to Bank of Chettinad [supra note 94] to Mathuram [supra note 93], despite the hiccups of McDowell [supra note 1], the law has remained the same.170. We areto agree with the submissionthat an act which is otherwise valid in law can be treated as non-est merely on the basis of some underlying motive supposedly resulting in some economic detriment or prejudice to the national interests, as perceived by the
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595]. "We infer that Stantus was created by petitioners with a view to reducing their taxes through qualification of the corporation under the convention. The test, however, is not the personal purpose of a taxpayer in creating a corporation. Rather, it is whether that purpose is intended to be accomplished through a corporation carrying out substantive business functions. If the purpose of the corporation is to carry out substantive business functions, or if it in fact engages in substantive business activity, it will not be disregarded for Federal tax purposes." 164. In Barber-Greene Americas, Inc. vs. Commissioner of Internal Revenue [1960) 35 T.C. 365, 383, 384] it was observed that a corporation will not be denied Western Hemisphere trade corporation tax benefits merely because it was purposely created and operated in such way as to obtain such benefits. Similarly, a corporation otherwise qualified should not be disregarded merely because it was purposely created and operated to obtain the benefits of the United States-Swiss Confederation Income Tax Convention. 165. Though the words “sham”, and “device” were loosely used in connection with the incorporation under the Mauritius law, we deem if fit to enter a caveat here. These words are not intended to be used as magic mantras or catshall phrases to defeat or nullify the effect of a legal situation. As Lord Atkin pointed out in Duke of Westminster [supra note 57]: "I do not use the word device in any sinister sense; for it has to be recognised that the subject, whether poor and humble or wealthy and noble, has the legal right so to dispose of his capital and income as to attract upon himself the least amount of tax. The only function of a court of law is to determine the legal result of his dispositions so far as they affect tax." Lord Tomlin said: "There may, of course, be cases where documents are not bona fide nor intended to be acted upon, but are only used as a cloak to conceal of different transaction." 166. In Snook vs. London and West Riding Investments Ltd. [(1967) All ER 518 at 528] Lord Diplock L.J, explained the use of the word “sham” as a legal concept in the following words: "it is, I think necessary to consider what, if any, legal concept is involved in the use of this popular and pejorative word. I apprehend that, if it has any meaning in law, it means acts done or documents executed by the parties to the “sham” which are intended by them to give to third parties or to the court the appearance of creating between the parties legal rights and obligations different from the actual legal rights and obligations (if any), which the parties intend to create. One thing I think, however, is clear in legal principle, morality and the authorities (see Yorkshire Railway Wagon Contracting State vs. Maclure (1882) 21 Ch. D. 309; Stoneleigh Finance, Ltd. vs. Phillips (1965) 1 All ER 513) that for acts or documents to be a “sham”, with whatever legal consequences follow from this, all the parties thereto must have a common intention that the acts or documents are not to create the legal rights and obligations which they give the appearance of creating. No unexpressed intentions of a “shammer” affect the rights of a party whom he deceived." 167. In Waman Rao and others vs. Union of India & others [1981) 2 SCC 362 at para 45, and Minerva Mills Ltd and others vs. Union of India and others [1980) 3 SCC 625 at para 91] this Court considered the import of the word “device” with reference to Article 31B which provided that the Acts and Regulations specified Ninth Schedule shall not be deemed to be void or even to have become void on the groud that they are inconsistent with the Fundamental Rights. The use of the word “device” here was not pejorative, but to describe a provision of law intended to produce a certain legal result. 168. If the Court finds that notwithstanding a series of legal steps taken by an assessee, the intended legal result has not been achieved, the Court might be justified in overlooking the intermediate steps, but it would not be permissible for the Court to treat the intervening legal steps as non-est based upon some hypothetical assessment of the “real motive” of the assesssee. In our view, the court must deal with what is tangible in an objective manner and cannot afford to chase a will-o”-the-wisp. 169. The judgment of the Privy Council in Bank of Chettiand [supra note 94], wholeheartedly approving the dicta in the passage from the opinion of Lord Russel in Westminster [supra note 57], was the law in this country when the Constitution came into force. This was the law in force then, which continued by reason of Article 372. Unless abrogated by an Act or Parliament, or by a clear pronouncement of this Court, we think that this legal principle would continue to hold good. Having anxiously scanned McDowell [supra note 1], we find no reference therein to having dissented from or overruled the decision of the Privy Council in Bank of Chettinad [supra note 94]. If any, the principle appears to have been reiterated with approval by the Constitutional Bench of this Court in Mathuram [supra note 93]. We are, therefore, unable to accept the contention of the respondents that there has been a very drastic change in the fiscal jurisprudence, in India, as would entail a departure. In our judgment, from Westminster [supra note 57] to Bank of Chettinad [supra note 94] to Mathuram [supra note 93], despite the hiccups of McDowell [supra note 1], the law has remained the same.170. We are unable to agree with the submission that an act which is otherwise valid in law can be treated as non-est merely on the basis of some underlying motive supposedly resulting in some economic detriment or prejudice to the national interests, as perceived by the respondents.
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That the amendment made in section 90 was intended to empower the Government to enter into agreement with foreign Government, if necessary, for relief or avoidance of double taxation, is also made clear by the Finance Minister in his Budget Speech,to accept the contentionof the respondent that the DTAC is ultra vires the powers of the Central Government under Section 90 onts susceptibility toon behalf of the residents of third countries.63. The High Court seems to have heavily relied on an assessment order made by the assessing officer in the case of Cox and Kings Ltd. drawing inspiration therefrom. We are afraid that it was impermissible for the High Court to do so. An assessment made in the case of a particular assessee isbe challenged by the Revenue or by the assessee by the procedure available under the Act. In a Public Interest Litigation it would be most unfair to comment on the correctness of the assessment order made in the case of a particular assessee, especially when the assessee is not a party before the High Court. Any observation made by the Court would result in prejudice to one or the other party to the litigation. For this reason, we refrain from making any observations about the correctness or otherwise of the assessment order made in Cox and Kings Ltd. Needless to say, we decline to draw inspiration therefrom, for our inspiration is drawn from principles of law as gathered from statutes and precedents.We are inclined to agree with the submission of the appellants that, merely because exemption has been granted in respect of taxability of a particular source of income, it cannot be postulated that the entity is notas contended by the respondents.In our view, the contention of the respondents proceeds on the fallacious premise that liability to taxation is the same asx. Liability to taxation is a legal situation;of tax isa fiscal fact. For the purpose of application of Article 4 of the DTAC, what is relevant is the legal situation, namely, liability to taxation, and not the fiscal fact of actualx. If this were not so, the DTAC would not have used the wordsbut would have used some appropriate words like. On the language of the DTAC, it is notto accept the contentionof the respondents that offshore companies incorporated and registered under MOBA are notunder the Mauritius Income-tax Act; nor is itto accept the contentionthat such companies would not bein Mauritius within the meaning of Article 3 read with Article 4 of the DTAC.95. There is a further reason in support of our view. The expressionhas been adopted from the Organisation for Economic Co-operation and Development Council (OECD) Model Convention 1977. The OECD commentary on article 4, definingsays; "Conventions for the avoidance of double taxation do not normally concern themselves with the domestic lawsof the Contractinglaying down the conditions under which a person is to be treated fiscally asand, consequently, is fullyto tax in. The expression used isby reasons of various factors. This definition has been carried over even in Article 4 dealing within the OECD Model Convention 1992.It is, therefore, not possible for usto accept theso strenuously urged on behalf of the respondents that avoidance of double taxation can arise only when tax is actually paid in oneIn our view, the recommendations of the Working Group of the JPC are intended for Parliament to take appropriate action. The JPC might have noticed certain consequences, intended or unintended, flowing from the DTAC and has made appropriate recommendations. Based on them, it is not possible for us to say that the DTAC or the impugned circular are contrary to law, nor would it beto interfere witheither of them on the basis of the report of the JPC.There are many principles in fiscal economy which, though at first blush might appear to be evil, are tolerated in a developing economy, in the interest of long term development. Deficit financing for example, is one treaty, shopping in our view, is another. Despite the sound and fury of the respondents over the so called "abuse" of "treaty shopping", perhaps, it may have been intended at the time when Indo-Mauritius DTAC was entered into. Whether it should continue, and, if so, for low long is a matter which is best left to the discretion of the executive as it is dependent upon several economic and political considerations. This Court cannot judge the legality of treaty shopping merely because one section of thought considers it improper. A holistic view has to be taken to adjudge what is perhaps regarded in contemporary thinking as a necessary evil in a developing economy.of the Privy Council in Bank ofChettiand [supra note 94], wholeheartedly approving the dicta in the passage from the opinion of Lord Russel in Westminster [supra note 57], was the law in this country when the Constitution came into force. This was the law in force then, which continued by reason of Article 372. Unless abrogated by an Act or Parliament, or by a clearis Court, we think that this legal principle would continue to hold good. Having anxiously scanned McDowell [supra note 1], we find no reference therein to having dissented from or overruled the decisionof the Privy Council in Bank ofChettinad [supra note 94]. If any, the principle appears to have been reiterated with approval by the Constitutional Bench of this Court in Mathuram [supra note 93]. We are, therefore,to accept thecontention of the respondents that there has been a very drastic change in the fiscal jurisprudence, in India, as would entail a departure. In our judgment, from Westminster [supra note 57] to Bank of Chettinad [supra note 94] to Mathuram [supra note 93], despite the hiccups of McDowell [supra note 1], the law has remained the same.170. We areto agree with the submissionthat an act which is otherwise valid in law can be treated as non-est merely on the basis of some underlying motive supposedly resulting in some economic detriment or prejudice to the national interests, as perceived by the
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Smt. Chand Dhawan Vs. Jawaharlal Dhawan
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at liberty to grant relief of maintenance simpliciter obtainable under one Act in Act in proceedings under the other. As is evident, both the statutes are codified as such and are clear on their subjects and by liberty of interpretation interchargeability cannot be permitted so as to destroy the distinction on the subject of maintenance26. Relief to the wife may also be due under section 125 of the Code Criminal Procedure whereunder an order of maintenance can be granted after contest, and an order of interim maintenance can be made at the outset, without much contest. This provision however has two peculiar features (i) the provision applies to all and not only to Hindus; and(ii) maintenance allowance cannot exceed a sum of Rs. 500/- per mensem. But this is meansure in the alternative to provide destitute wives 27. This Court has ruled that if the language used in a statute can be construed widely so as to salvage the remedial intendment, the court must adopt it. Of course, if the language of a statute does not admit of the construction sought, wishful thinking is no substitute, and then not the court but the legislature is to blame for enacting a damp squib statute. These are the observations of V. R. Krishan Iyer, J. in Carew and Company v. Union of India, 1975 (2) SCC 791 at pages 803-804 : 1975 AIR(SC) 220 at p. 2270). Towards interpreting statutes, the court must endeavor to see its legislative intendment. Where the language is ambiguous or capable of more than one meaning, the court must sympathetically and imaginatively discover the true purpose and object of the provision by filling gaps, clearing doubts, and mitigating hardships, harshness or unfair consequences. See Motor Owner Insurance Com. Ltd. v. Jadavji Keshvji Modi, 1981 (4) SCC 660 : 1981 AIR(SC) 2059), paras 14, 15 and 16. These principles were pressed into service by learned counsel for the appellant contending that if the claim of the wife for maintenance was otherwise justified on fact and law, the procedures and the fora should not stand in her way and let her cash on her claim over-ruling all objections. It was asserted that the Amritsar Court had jurisdiction to grant relief, as asked for, because once upon a time it was seisin of the petition for dissolution of marriage by mutual consent, though such petition was withdrawn28. On the afore-analysis and distinction drawn between the fora and perceptives, it is which is ancillary or incidental in a matrimonial court under the Hindu Marriage Act could be tried as an original claim in that court; a claim which may for the moment be assumed as valid, otherwise agitable in the civil court under the Hindu Adoptions and Maintenance Act, 1956. As said before, these two enactments keeping apart, the remaining two, i.e., Hindu Succession Act, 1956 and Hindu Minority and Guardianship Act, 1956 are a package of enactments, being part of one socio-legal scheme applicable to Hindus. When distinctive claims are covered distinctly under two different statutes and agitable in the courts conceived thereunder, it is difficult to sustain the plea that when a claim is otherwise valid, choosing of one forum or the other should be of no consequence. These are not mere procedural technicalities or irregularities, as termed by one line of reasoning by some of the High Courts. These are matters which go to the root of the juridiction. The matrimonial Court, a court of special jurisdiction, is not meant to pronounce upon a claim of maintenance without having to go into the exercise of passing a decree, which implies that unless it goes onwards, moves or leads through, to affect or disrupt the material status between the parties. By rejecting a claim, the matrimonial court does make an appealable decree in terms of Section 28, but neither affects nor disrupts the marriage. It certainly does not pass a decree in terms of Section 25 for its decision has not moved or done anything towards, or led through, to disturb the marriage, or to confer or take away any legal character or status. Like a surgeon, the matrimonial court, if operating, assumes the obligation of the post operating, assumes the obligation of the post operatives, and when not leaves the patient to the physician29. On the afore analysis we have been led to the conclusion that the step of the wife to move the court of Additional District Judge, Amritsar for grant of maintenance under section 25 of the Hindu Marriage Act was ill-advised. The judgment of the High Court under appeal could be no other than the one that it was in the present state of law and the facts and circumstances. It is still open to the wife to stake her claim to maintenance in other fora. The judgments of the High Courts earlier quoted, and others which our view are overruled. The earlier and predominant view was the correct one and the later an aberration; something unfortunate from the precedential point of view. The appeals thus inevitably have to and are hereby dismissed, but without any order as to costs30. Before we part with this judgment, we need to mention that while this judgment was reserved, an Interlocutory Application was received by the Registry, which unnumbered Interlocutory Application was duly transmitted to us. It is for directing the appellant to pay arrears of maintenance. While granting leave this Court on 8th July, 1991 had ordered that during the pendency of the appeal, but without prejudice to the respective stands of the spouses, the husband shall pay a sum of Rs. 1000/- per mensem by way of maintenance to the wife month to month by bank draft. In the Interlocutory Application there is an allegation that this Courts orders have not been complied with. Let notice on the application separately be issued to the respondent returnable within six weeks to show cause why payment of arrears of maintenance be not secured to the wife forthwith 31.
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0[ds]23. The preamble to the Hindu Marriage Act suggests that it is an Act to amend and codify the law relating to marriage among Hindus. Though it speaks only of the law relating to marriage, yet the Act itself lays down rules relating to the solemnization and requirements of a valid Hindu marriage as well as Restitution of Conjugal Rights, Judicial Separation, Nullity of Marriage, Divorce, legitimacy of children and other allied matters. Where the statute expressly codifies the law, the courts as a general rule, is not al liberty to go outside the law so created, just on the basis that before its enactment another law prevailed. Now the other law in the context which prevailed prior to that was the uncodified Hindu law on the subject. Prior to the year 1955 or 1956 maintenance could be claimed by a Hindu wife through court intervention and with the aid of the case law developed. Now with effect from December 21, 1956, the Hindu Adoptions of Maintenance Act is in force and that too in a codified form. Its preamble too suggests that it is in Act to amend codify the law relating to adoptions and maintenance among Hindus. Section 18(1) of the Hindu Adoptions and Maintenance Act, 1956 entitles a Hindu wife to claim maintenance from her husband during her life-time. Sub-section (2) of Section 18 grants her the right to live separately, without forfeiting her claim to maintenance, if he is guilty of any of the misbehavior enumerated therein or on account of his being in one of objectionable conditions as mentions as mentioned therein. So while sustaining her marriage and preserving her material status, the wife is entitled to claim maintenance from her husband. On the other hand, under the Hindu Marriage Act in contrast, her claim for maintenance pendente lite is durated on the pendency of a litigation of the kind envisaged under Section 9 to 14 of the Hindu Marriage Act, and her claim to permanent maintenance or alimony is based on the supposition that either her marital status has been strained or affected by passing a decree for restitution of conjugal rights or judicial separation in favour or against her, or her marriage stands dissolved by a decree of nullity or divorce, with or without her consent. Thus when her marital status is to be affected or disrupted the court does so by passing a decree for or against her. On or at the time of the happening of that event, the court being siezed of the matter, invokes its ancillary or incidental power to grant permanent alimony. Not only that, the court retains the jurisdiction at subsequent stages to fulfill this incidental or ancillary obligation when moved by an application on the behalf by a party entitled to relief. The court further retains the power to change or alter the order in view of the changed circumstance". Thus the whole exercise is within the gamut of a diseased or a broken marriage. And in order to avoid conflict of perceptions the legislature while codifying the Hindu Marriage Act preserved the right of permanent maintenance in favour of the husband or the wife, as the case may be, dependent on the court passing a decree of the kind as envisaged under section 9 to 14 of the Act. In other words without the marital status being affected or disrupted by the matrimonial Court under the Hindu Marriage Act the claim of permanent alimony was not to be valid as ancillary or incidental to such affection or disruption. The wifes claim to maintenance necessarily has taken to be agitated under the Hindu Adoptions and Maintenance Act, 1956 which is a legislative measure later in point of time than the Hindu Marriage Act, 1955, though part of the same socio-legal scheme revolutionizing the law applicable to Hindus24. Section 41 of the Evidence Act inter alia provides that a final judgment, order or decree of a competent court in the exercise of matrimonial jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to such character is relevant. And that such judgment, order or decree is conclusive proof as to the conferral, accrual, or taking away of such legal character from a point of time as declared by the court. Such judgments are known as judgments in rem, binding the whole world. But the judgment of that kind must have done something positive onwards. This provision is indicative of the quality of matrimonial jurisdiction25. We have thus, in this light, no hesitation in coming to the view that when by court intervention under the Hindu Marriage Act, affection or disruption to the marital status has come by, at that juncture, while passing the decree, it undoubtedly has the power to grant permanent alimony or maintenance, if that power is invoked at that time. It also retains the power subsequently to be invoked on application by a party entitled to relief. And such order, in all events remains within the jurisdiction of that court, to be altered or modified as future situations may warrant. In contrast, without affectation or disruption of the marital status, a Hindu wife sustaining that status can live in separation from her husband, and whether she is living in that state or not, her claim to maintenance stands preserved in codification under section 18(1) of the Hindu Adoption and Maintenance Act. The court is not at liberty to grant relief of maintenance simpliciter obtainable under one Act in Act in proceedings under the other. As is evident, both the statutes are codified as such and are clear on their subjects and by liberty of interpretation interchargeability cannot be permitted so as to destroy the distinction on the subject of maintenance26. Relief to the wife may also be due under section 125 of the Code Criminal Procedure whereunder an order of maintenance can be granted after contest, and an order of interim maintenance can be made at the outset, without much contest. This provision however has two peculiarthe provision applies to all and not only to Hindus; and(ii) maintenance allowance cannot exceed a sum of Rs. 500/- per mensem. But this is meansure in the alternative to provide destituteThis Court has ruled that if the language used in a statute can be construed widely so as to salvage the remedial intendment, the court must adopt it. Of course, if the language of a statute does not admit of the construction sought, wishful thinking is no substitute, and then not the court but the legislature is to blame for enacting a damp squib statute. These are the observations of V. R. Krishan Iyer, J. in Carew and Company v. Union of India, 1975 (2) SCC 791 at pages 803-804 : 1975 AIR(SC) 220 at p. 2270). Towards interpreting statutes, the court must endeavor to see its legislative intendment. Where the language is ambiguous or capable of more than one meaning, the court must sympathetically and imaginatively discover the true purpose and object of the provision by filling gaps, clearing doubts, and mitigating hardships, harshness or unfair consequences. See Motor Owner Insurance Com. Ltd. v. Jadavji Keshvji Modi, 1981 (4) SCC 660 : 1981 AIR(SC) 2059), paras 14, 15 and 16. These principles were pressed into service by learned counsel for the appellant contending that if the claim of the wife for maintenance was otherwise justified on fact and law, the procedures and the fora should not stand in her way and let her cash on her claim over-ruling all objections. It was asserted that the Amritsar Court had jurisdiction to grant relief, as asked for, because once upon a time it was seisin of the petition for dissolution of marriage by mutual consent, though such petition was withdrawn28. On the afore-analysis and distinction drawn between the fora and perceptives, it is which is ancillary or incidental in a matrimonial court under the Hindu Marriage Act could be tried as an original claim in that court; a claim which may for the moment be assumed as valid, otherwise agitable in the civil court under the Hindu Adoptions and Maintenance Act, 1956. As said before, these two enactments keeping apart, the remaining two, i.e., Hindu Succession Act, 1956 and Hindu Minority and Guardianship Act, 1956 are a package of enactments, being part of one socio-legal scheme applicable to Hindus. When distinctive claims are covered distinctly under two different statutes and agitable in the courts conceived thereunder, it is difficult to sustain the plea that when a claim is otherwise valid, choosing of one forum or the other should be of no consequence. These are not mere procedural technicalities or irregularities, as termed by one line of reasoning by some of the High Courts. These are matters which go to the root of the juridiction. The matrimonial Court, a court of special jurisdiction, is not meant to pronounce upon a claim of maintenance without having to go into the exercise of passing a decree, which implies that unless it goes onwards, moves or leads through, to affect or disrupt the material status between the parties. By rejecting a claim, the matrimonial court does make an appealable decree in terms of Section 28, but neither affects nor disrupts the marriage. It certainly does not pass a decree in terms of Section 25 for its decision has not moved or done anything towards, or led through, to disturb the marriage, or to confer or take away any legal character or status. Like a surgeon, the matrimonial court, if operating, assumes the obligation of the post operating, assumes the obligation of the post operatives, and when not leaves the patient to the physician29. On the afore analysis we have been led to the conclusion that the step of the wife to move the court of Additional District Judge, Amritsar for grant of maintenance under section 25 of the Hindu Marriage Act was ill-advised. The judgment of the High Court under appeal could be no other than the one that it was in the present state of law and the facts and circumstances. It is still open to the wife to stake her claim to maintenance in other fora. The judgments of the High Courts earlier quoted, and others which our view are overruled. The earlier and predominant view was the correct one and the later an aberration; something unfortunate from the precedential point of view. The appeals thus inevitably have to and are hereby dismissed, but without any order as to costs30. Before we part with this judgment, we need to mention that while this judgment was reserved, an Interlocutory Application was received by the Registry, which unnumbered Interlocutory Application was duly transmitted to us. It is for directing the appellant to pay arrears of maintenance. While granting leave this Court on 8th July, 1991 had ordered that during the pendency of the appeal, but without prejudice to the respective stands of the spouses, the husband shall pay a sum of Rs. 1000/- per mensem by way of maintenance to the wife month to month by bank draft. In the Interlocutory Application there is an allegation that this Courts orders have not been complied with. Let notice on the application separately be issued to the respondent returnable within six weeks to show cause why payment of arrears of maintenance be not secured to the wife forthwith
| 0 | 5,788 | 2,106 |
### 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:
at liberty to grant relief of maintenance simpliciter obtainable under one Act in Act in proceedings under the other. As is evident, both the statutes are codified as such and are clear on their subjects and by liberty of interpretation interchargeability cannot be permitted so as to destroy the distinction on the subject of maintenance26. Relief to the wife may also be due under section 125 of the Code Criminal Procedure whereunder an order of maintenance can be granted after contest, and an order of interim maintenance can be made at the outset, without much contest. This provision however has two peculiar features (i) the provision applies to all and not only to Hindus; and(ii) maintenance allowance cannot exceed a sum of Rs. 500/- per mensem. But this is meansure in the alternative to provide destitute wives 27. This Court has ruled that if the language used in a statute can be construed widely so as to salvage the remedial intendment, the court must adopt it. Of course, if the language of a statute does not admit of the construction sought, wishful thinking is no substitute, and then not the court but the legislature is to blame for enacting a damp squib statute. These are the observations of V. R. Krishan Iyer, J. in Carew and Company v. Union of India, 1975 (2) SCC 791 at pages 803-804 : 1975 AIR(SC) 220 at p. 2270). Towards interpreting statutes, the court must endeavor to see its legislative intendment. Where the language is ambiguous or capable of more than one meaning, the court must sympathetically and imaginatively discover the true purpose and object of the provision by filling gaps, clearing doubts, and mitigating hardships, harshness or unfair consequences. See Motor Owner Insurance Com. Ltd. v. Jadavji Keshvji Modi, 1981 (4) SCC 660 : 1981 AIR(SC) 2059), paras 14, 15 and 16. These principles were pressed into service by learned counsel for the appellant contending that if the claim of the wife for maintenance was otherwise justified on fact and law, the procedures and the fora should not stand in her way and let her cash on her claim over-ruling all objections. It was asserted that the Amritsar Court had jurisdiction to grant relief, as asked for, because once upon a time it was seisin of the petition for dissolution of marriage by mutual consent, though such petition was withdrawn28. On the afore-analysis and distinction drawn between the fora and perceptives, it is which is ancillary or incidental in a matrimonial court under the Hindu Marriage Act could be tried as an original claim in that court; a claim which may for the moment be assumed as valid, otherwise agitable in the civil court under the Hindu Adoptions and Maintenance Act, 1956. As said before, these two enactments keeping apart, the remaining two, i.e., Hindu Succession Act, 1956 and Hindu Minority and Guardianship Act, 1956 are a package of enactments, being part of one socio-legal scheme applicable to Hindus. When distinctive claims are covered distinctly under two different statutes and agitable in the courts conceived thereunder, it is difficult to sustain the plea that when a claim is otherwise valid, choosing of one forum or the other should be of no consequence. These are not mere procedural technicalities or irregularities, as termed by one line of reasoning by some of the High Courts. These are matters which go to the root of the juridiction. The matrimonial Court, a court of special jurisdiction, is not meant to pronounce upon a claim of maintenance without having to go into the exercise of passing a decree, which implies that unless it goes onwards, moves or leads through, to affect or disrupt the material status between the parties. By rejecting a claim, the matrimonial court does make an appealable decree in terms of Section 28, but neither affects nor disrupts the marriage. It certainly does not pass a decree in terms of Section 25 for its decision has not moved or done anything towards, or led through, to disturb the marriage, or to confer or take away any legal character or status. Like a surgeon, the matrimonial court, if operating, assumes the obligation of the post operating, assumes the obligation of the post operatives, and when not leaves the patient to the physician29. On the afore analysis we have been led to the conclusion that the step of the wife to move the court of Additional District Judge, Amritsar for grant of maintenance under section 25 of the Hindu Marriage Act was ill-advised. The judgment of the High Court under appeal could be no other than the one that it was in the present state of law and the facts and circumstances. It is still open to the wife to stake her claim to maintenance in other fora. The judgments of the High Courts earlier quoted, and others which our view are overruled. The earlier and predominant view was the correct one and the later an aberration; something unfortunate from the precedential point of view. The appeals thus inevitably have to and are hereby dismissed, but without any order as to costs30. Before we part with this judgment, we need to mention that while this judgment was reserved, an Interlocutory Application was received by the Registry, which unnumbered Interlocutory Application was duly transmitted to us. It is for directing the appellant to pay arrears of maintenance. While granting leave this Court on 8th July, 1991 had ordered that during the pendency of the appeal, but without prejudice to the respective stands of the spouses, the husband shall pay a sum of Rs. 1000/- per mensem by way of maintenance to the wife month to month by bank draft. In the Interlocutory Application there is an allegation that this Courts orders have not been complied with. Let notice on the application separately be issued to the respondent returnable within six weeks to show cause why payment of arrears of maintenance be not secured to the wife forthwith 31.
### Response:
0
### Explanation:
Maintenance Act. The court is not at liberty to grant relief of maintenance simpliciter obtainable under one Act in Act in proceedings under the other. As is evident, both the statutes are codified as such and are clear on their subjects and by liberty of interpretation interchargeability cannot be permitted so as to destroy the distinction on the subject of maintenance26. Relief to the wife may also be due under section 125 of the Code Criminal Procedure whereunder an order of maintenance can be granted after contest, and an order of interim maintenance can be made at the outset, without much contest. This provision however has two peculiarthe provision applies to all and not only to Hindus; and(ii) maintenance allowance cannot exceed a sum of Rs. 500/- per mensem. But this is meansure in the alternative to provide destituteThis Court has ruled that if the language used in a statute can be construed widely so as to salvage the remedial intendment, the court must adopt it. Of course, if the language of a statute does not admit of the construction sought, wishful thinking is no substitute, and then not the court but the legislature is to blame for enacting a damp squib statute. These are the observations of V. R. Krishan Iyer, J. in Carew and Company v. Union of India, 1975 (2) SCC 791 at pages 803-804 : 1975 AIR(SC) 220 at p. 2270). Towards interpreting statutes, the court must endeavor to see its legislative intendment. Where the language is ambiguous or capable of more than one meaning, the court must sympathetically and imaginatively discover the true purpose and object of the provision by filling gaps, clearing doubts, and mitigating hardships, harshness or unfair consequences. See Motor Owner Insurance Com. Ltd. v. Jadavji Keshvji Modi, 1981 (4) SCC 660 : 1981 AIR(SC) 2059), paras 14, 15 and 16. These principles were pressed into service by learned counsel for the appellant contending that if the claim of the wife for maintenance was otherwise justified on fact and law, the procedures and the fora should not stand in her way and let her cash on her claim over-ruling all objections. It was asserted that the Amritsar Court had jurisdiction to grant relief, as asked for, because once upon a time it was seisin of the petition for dissolution of marriage by mutual consent, though such petition was withdrawn28. On the afore-analysis and distinction drawn between the fora and perceptives, it is which is ancillary or incidental in a matrimonial court under the Hindu Marriage Act could be tried as an original claim in that court; a claim which may for the moment be assumed as valid, otherwise agitable in the civil court under the Hindu Adoptions and Maintenance Act, 1956. As said before, these two enactments keeping apart, the remaining two, i.e., Hindu Succession Act, 1956 and Hindu Minority and Guardianship Act, 1956 are a package of enactments, being part of one socio-legal scheme applicable to Hindus. When distinctive claims are covered distinctly under two different statutes and agitable in the courts conceived thereunder, it is difficult to sustain the plea that when a claim is otherwise valid, choosing of one forum or the other should be of no consequence. These are not mere procedural technicalities or irregularities, as termed by one line of reasoning by some of the High Courts. These are matters which go to the root of the juridiction. The matrimonial Court, a court of special jurisdiction, is not meant to pronounce upon a claim of maintenance without having to go into the exercise of passing a decree, which implies that unless it goes onwards, moves or leads through, to affect or disrupt the material status between the parties. By rejecting a claim, the matrimonial court does make an appealable decree in terms of Section 28, but neither affects nor disrupts the marriage. It certainly does not pass a decree in terms of Section 25 for its decision has not moved or done anything towards, or led through, to disturb the marriage, or to confer or take away any legal character or status. Like a surgeon, the matrimonial court, if operating, assumes the obligation of the post operating, assumes the obligation of the post operatives, and when not leaves the patient to the physician29. On the afore analysis we have been led to the conclusion that the step of the wife to move the court of Additional District Judge, Amritsar for grant of maintenance under section 25 of the Hindu Marriage Act was ill-advised. The judgment of the High Court under appeal could be no other than the one that it was in the present state of law and the facts and circumstances. It is still open to the wife to stake her claim to maintenance in other fora. The judgments of the High Courts earlier quoted, and others which our view are overruled. The earlier and predominant view was the correct one and the later an aberration; something unfortunate from the precedential point of view. The appeals thus inevitably have to and are hereby dismissed, but without any order as to costs30. Before we part with this judgment, we need to mention that while this judgment was reserved, an Interlocutory Application was received by the Registry, which unnumbered Interlocutory Application was duly transmitted to us. It is for directing the appellant to pay arrears of maintenance. While granting leave this Court on 8th July, 1991 had ordered that during the pendency of the appeal, but without prejudice to the respective stands of the spouses, the husband shall pay a sum of Rs. 1000/- per mensem by way of maintenance to the wife month to month by bank draft. In the Interlocutory Application there is an allegation that this Courts orders have not been complied with. Let notice on the application separately be issued to the respondent returnable within six weeks to show cause why payment of arrears of maintenance be not secured to the wife forthwith
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Ritesh Agarwal Vs. Securities & Exchange Board Of India&Ors
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that the Act provides for remedial measures and, thus, it was entitled to issue any direction. It was, however, held: "106. It has to be noted that Section 11B does not even remotely empower the respondent to impose penalties." It was furthermore held : "108. The legislature has clearly spelt out the penal provisions in the Act at 3 places – Section 12(3) provides for suspension or cancellation of the certificate of registration granted to the market intermediaries in the event of their proven misconduct, provision under Chapter VIA, provides for imposition of monetary penalty for certain offences specified therein;Section 24 empowers Courts to award punishment for violation of offences under the Act etc. Since legislature has deliberately chosen to create specific offences and penalties thereto, it is not possible to view that under Section 11B the respondent is competent to issue a direction which tantamounts to imposition of penalties, While widening the scope of such measures used in Section 11, to include penalties, and thereby stretching the scope of issuing directions under Section 11B to cover imposition of penalties, the limitation stated above need be kept in mind. However, it is understood that the respondent has also been taking the view that Section 11B is not a penal provision, but preventive and remedial in its application. If that is so, it has to be seen whether the impugned direction prohibiting the appellant from accessing the capital market for a period of 2 years from the date of the order is preventive or remedial. In the absence of any explanation from the respondent as to what exactly is meant by accessing the capital market, it has to be understood as is understood in the common parlance - i.e., entry to the capital market for issuing/offering securities. In this context, it is to be noted that the charge against the Appellant is of market manipulation. The shares of the appellant are listed/traded in the stock exchanges even today. That being the case preventing the appellant raising further capital/offering shares to the public in the next two years cannot serve as a preventive measure to debilitate the appellant indulging in market manipulation. Similarly, by no stretch of imagination the said direction can be considered even remedial as prospective barring of a public issue cannot remedy an act of market manipulation allegedly indulged for a specific purpose, 3 years ago. A remedial action is normally seen as one intended to correct, remove or lessen a wrong, fault or defect. Purport of preventive or remedial directions which can be issued in a proven case of fraudulent and unfair trade practice is discernible from the provisions of regulation 12 of the Regulations, already cited in this order. In my view the impugned order is neither remedial nor preventive but punitive in effect as it takes away the appellants right to mobilize funds from the public to carry on its business. According to Websters Encyclopaedic Unabridged Dictionary penalty means a punishment imposed or incurred for a violation of law or rule. In the instant case it is seen that the order is made in the light of the finding – by the authority, that the appellant has violated the regulations. This nexus also strengthens the view that the order debarring the appellant from accessing the capital market is a penalty. In this view of the matter the order has no legal backing and therefore cannot sustain." [Emphasis supplied] Similar observations were made in BPL Limited v. Securities & Exchange Board of India, SEBI [2002] 38 SCL 310 (SAT) and Videocon International Ltd. v. Securities & Exchange Board of India, Shri D.R. Mehta, Chairman, SEBI and Dr. R.K. Kakkar, Division Chief, SEBI [2002] 38 SCL 422. 19. Ritesh Agarwal and Deepak Agarwal are said to be minors. As they were minors having regard to the provisions of the Indian Contract Act, they could not have been proceeded against strictly in terms of the provisions of the said Act. Apart from the actions taken by the Board, the persons who undertook those fraudulent actions may also be held to be guilty of making a mis-representation and commission of fraud not only before the prospective purchasers of the shares but also before the statutory authority. The same, however, would itself not mean that a minor would not be penalized for entering into a contract which per se was not enforceable. A contract must be entered into by a person who can make a promise or make an offer. If he cannot make an offer or in his favour an offer cannot be made, the contract would be void as an agreement which is not enforceable in law would be void. Section 11 of the Indian Contract Act provides that the person who is competent to contract must be of the age of majority. If Ritesh Agarwal and Deepak Agarwal were minors, as would appear from their birth certificates, they could not have entered into the contract.20. We, therefore, are of the opinion that subject to any other or further order which the Board may pass as against Shri Surender Kumar Agarwal and Smt. Rooprekha Agarwal, the impugned directions would not be binding on Ritesh Agarwal and Deepak Agarwal.21. We do not accept the contention of Ms. Aggarwal that the offence is a continuing one.22. We do not also accept the contention that Rooprekha Agarwal was not a promoter and only promoters were Ritesh Polyesters Limited and Surender Kumar Agarwal. We, however, accept the contention of Mr. Sundaram that Ritesh Agarwal and Deepak Agarwal could not have proceeded against for violation of the FUTP Regulations.23. We, however, uphold other directions issued by the Board including the action taken in respect of the offences purported to have been committed. We also grant liberty to the authorities to proceed against the offenders not only for other or further charges to which they made themselves liable under the SEBI Act but also under the Companies Act, 1956 and other penal statutes, if attracted.
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1[ds]19. Ritesh Agarwal and Deepak Agarwal are said to be minors. As they were minors having regard to the provisions of the Indian Contract Act, they could not have been proceeded against strictly in terms of the provisions of the said Act. Apart from the actions taken by the Board, the persons who undertook those fraudulent actions may also be held to be guilty of making a mis-representation and commission of fraud not only before the prospective purchasers of the shares but also before the statutory authority. The same, however, would itself not mean that a minor would not be penalized for entering into a contract which per se was not enforceable. A contract must be entered into by a person who can make a promise or make an offer. If he cannot make an offer or in his favour an offer cannot be made, the contract would be void as an agreement which is not enforceable in law would be void. Section 11 of the Indian Contract Act provides that the person who is competent to contract must be of the age of majority. If Ritesh Agarwal and Deepak Agarwal were minors, as would appear from their birth certificates, they could not have entered into the contract.20. We, therefore, are of the opinion that subject to any other or further order which the Board may pass as against Shri Surender Kumar Agarwal and Smt. Rooprekha Agarwal, the impugned directions would not be binding on Ritesh Agarwal and Deepak Agarwal.21. We do not accept the contention of Ms. Aggarwal that the offence is a continuing one.22. We do not also accept the contention that Rooprekha Agarwal was not a promoter and only promoters were Ritesh Polyesters Limited and Surender Kumar Agarwal. We, however, accept the contention of Mr. Sundaram that Ritesh Agarwal and Deepak Agarwal could not have proceeded against for violation of the FUTP Regulations.23. We, however, uphold other directions issued by the Board including the action taken in respect of the offences purported to have been committed. We also grant liberty to the authorities to proceed against the offenders not only for other or further charges to which they made themselves liable under the SEBI Act but also under the Companies Act, 1956 and other penal statutes, if attracted.
| 1 | 5,541 | 419 |
### 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:
that the Act provides for remedial measures and, thus, it was entitled to issue any direction. It was, however, held: "106. It has to be noted that Section 11B does not even remotely empower the respondent to impose penalties." It was furthermore held : "108. The legislature has clearly spelt out the penal provisions in the Act at 3 places – Section 12(3) provides for suspension or cancellation of the certificate of registration granted to the market intermediaries in the event of their proven misconduct, provision under Chapter VIA, provides for imposition of monetary penalty for certain offences specified therein;Section 24 empowers Courts to award punishment for violation of offences under the Act etc. Since legislature has deliberately chosen to create specific offences and penalties thereto, it is not possible to view that under Section 11B the respondent is competent to issue a direction which tantamounts to imposition of penalties, While widening the scope of such measures used in Section 11, to include penalties, and thereby stretching the scope of issuing directions under Section 11B to cover imposition of penalties, the limitation stated above need be kept in mind. However, it is understood that the respondent has also been taking the view that Section 11B is not a penal provision, but preventive and remedial in its application. If that is so, it has to be seen whether the impugned direction prohibiting the appellant from accessing the capital market for a period of 2 years from the date of the order is preventive or remedial. In the absence of any explanation from the respondent as to what exactly is meant by accessing the capital market, it has to be understood as is understood in the common parlance - i.e., entry to the capital market for issuing/offering securities. In this context, it is to be noted that the charge against the Appellant is of market manipulation. The shares of the appellant are listed/traded in the stock exchanges even today. That being the case preventing the appellant raising further capital/offering shares to the public in the next two years cannot serve as a preventive measure to debilitate the appellant indulging in market manipulation. Similarly, by no stretch of imagination the said direction can be considered even remedial as prospective barring of a public issue cannot remedy an act of market manipulation allegedly indulged for a specific purpose, 3 years ago. A remedial action is normally seen as one intended to correct, remove or lessen a wrong, fault or defect. Purport of preventive or remedial directions which can be issued in a proven case of fraudulent and unfair trade practice is discernible from the provisions of regulation 12 of the Regulations, already cited in this order. In my view the impugned order is neither remedial nor preventive but punitive in effect as it takes away the appellants right to mobilize funds from the public to carry on its business. According to Websters Encyclopaedic Unabridged Dictionary penalty means a punishment imposed or incurred for a violation of law or rule. In the instant case it is seen that the order is made in the light of the finding – by the authority, that the appellant has violated the regulations. This nexus also strengthens the view that the order debarring the appellant from accessing the capital market is a penalty. In this view of the matter the order has no legal backing and therefore cannot sustain." [Emphasis supplied] Similar observations were made in BPL Limited v. Securities & Exchange Board of India, SEBI [2002] 38 SCL 310 (SAT) and Videocon International Ltd. v. Securities & Exchange Board of India, Shri D.R. Mehta, Chairman, SEBI and Dr. R.K. Kakkar, Division Chief, SEBI [2002] 38 SCL 422. 19. Ritesh Agarwal and Deepak Agarwal are said to be minors. As they were minors having regard to the provisions of the Indian Contract Act, they could not have been proceeded against strictly in terms of the provisions of the said Act. Apart from the actions taken by the Board, the persons who undertook those fraudulent actions may also be held to be guilty of making a mis-representation and commission of fraud not only before the prospective purchasers of the shares but also before the statutory authority. The same, however, would itself not mean that a minor would not be penalized for entering into a contract which per se was not enforceable. A contract must be entered into by a person who can make a promise or make an offer. If he cannot make an offer or in his favour an offer cannot be made, the contract would be void as an agreement which is not enforceable in law would be void. Section 11 of the Indian Contract Act provides that the person who is competent to contract must be of the age of majority. If Ritesh Agarwal and Deepak Agarwal were minors, as would appear from their birth certificates, they could not have entered into the contract.20. We, therefore, are of the opinion that subject to any other or further order which the Board may pass as against Shri Surender Kumar Agarwal and Smt. Rooprekha Agarwal, the impugned directions would not be binding on Ritesh Agarwal and Deepak Agarwal.21. We do not accept the contention of Ms. Aggarwal that the offence is a continuing one.22. We do not also accept the contention that Rooprekha Agarwal was not a promoter and only promoters were Ritesh Polyesters Limited and Surender Kumar Agarwal. We, however, accept the contention of Mr. Sundaram that Ritesh Agarwal and Deepak Agarwal could not have proceeded against for violation of the FUTP Regulations.23. We, however, uphold other directions issued by the Board including the action taken in respect of the offences purported to have been committed. We also grant liberty to the authorities to proceed against the offenders not only for other or further charges to which they made themselves liable under the SEBI Act but also under the Companies Act, 1956 and other penal statutes, if attracted.
### Response:
1
### Explanation:
19. Ritesh Agarwal and Deepak Agarwal are said to be minors. As they were minors having regard to the provisions of the Indian Contract Act, they could not have been proceeded against strictly in terms of the provisions of the said Act. Apart from the actions taken by the Board, the persons who undertook those fraudulent actions may also be held to be guilty of making a mis-representation and commission of fraud not only before the prospective purchasers of the shares but also before the statutory authority. The same, however, would itself not mean that a minor would not be penalized for entering into a contract which per se was not enforceable. A contract must be entered into by a person who can make a promise or make an offer. If he cannot make an offer or in his favour an offer cannot be made, the contract would be void as an agreement which is not enforceable in law would be void. Section 11 of the Indian Contract Act provides that the person who is competent to contract must be of the age of majority. If Ritesh Agarwal and Deepak Agarwal were minors, as would appear from their birth certificates, they could not have entered into the contract.20. We, therefore, are of the opinion that subject to any other or further order which the Board may pass as against Shri Surender Kumar Agarwal and Smt. Rooprekha Agarwal, the impugned directions would not be binding on Ritesh Agarwal and Deepak Agarwal.21. We do not accept the contention of Ms. Aggarwal that the offence is a continuing one.22. We do not also accept the contention that Rooprekha Agarwal was not a promoter and only promoters were Ritesh Polyesters Limited and Surender Kumar Agarwal. We, however, accept the contention of Mr. Sundaram that Ritesh Agarwal and Deepak Agarwal could not have proceeded against for violation of the FUTP Regulations.23. We, however, uphold other directions issued by the Board including the action taken in respect of the offences purported to have been committed. We also grant liberty to the authorities to proceed against the offenders not only for other or further charges to which they made themselves liable under the SEBI Act but also under the Companies Act, 1956 and other penal statutes, if attracted.
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Mahant Sri Jagannath Ramanuj Das And Another Vs. The State Of Orissa And Another
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institution and there is no reason why the discretion of the trustee in regard to the spending of surplus for such purposes also should be still further restricted by directions which the Commissioner may choose to issue.Section 47 (1) lays down how the rule of cy pres is to be applied not merely when the original purpose of the trust fails or becomes incapable of being carried out either in whole or in part by reason of subsequent events, but also where there is a surplus left after meeting the legitimate expenses of the institution. Objection apparently could be raised against the last provision of the sub-section, but as sub-section (4) of S. 47 gives the party aggrieved by any order of the Commissioner in this respect to file a suit in a civil court and the court is empowered to modify or set aside such order of the Commissioner, we do not think that there is any reasonable ground for complaint.9. The only other section that requires consideration is S. 49 under which every Math or temple having an annual income exceeding Rs. 250/- has got to make an annual contribution for meeting the expenses of the Commissioner and the officers and servants working under him. The first question that arises with regard to this provision is whether the imposition is a tax or a fee, and it is not disputed that if it is a tax, the Provincial legislature would have no authority to enact such a provision.This question has been elaborately discussed in our judgment in the Madras appeal referred to above and it is not necessary to repeat the discussions over again. As has been pointed out in the Madras appeal, there is no generic difference between a tax and a fee and both are different forms in which the taxing power of a State manifests itself. Our Constitution, however, has made a distinction between a tax and a fee for legislative purposes and while there are various entries in the three lists with regard to various forms of taxation, there is an entry at the end of each one of these lists as regards fees which could be levied in respect of every one of the matters that are included therein.A tax is undoubtedly in the nature of a compulsory exaction of money by a public authority for public purposes, the payment of which is enforced by law. But the essential thing in a tax is that the imposition is made for public purposes to meet the general expenses of the State without reference to any special benefit to be conferred upon the payers of the tax. The taxes collected are all merged in the general revenue of the State to be applied for general public purposes. Thus, tax is a common burden and the only return which the tax-payer gets is the participation in the common benefits of the State. Fees, on the other hand, are payments primarily in the public interest but for some special service rendered or some special work done for the benefit of those from whom payments are demanded.Thus, in fees there is always an element of quid pro quo which is absent in a tax. Two elements are thus essential in order that a payment may be regarded as a fee. In the first place, it must be levied in consideration of certain services which the individuals accepted either willingly or unwillingly. But this by itself is not enough to make the imposition a fee, if the payments demanded for rendering of such services are not set apart or specifically appropriated for that purpose but are merged in the general revenue of the State to be spent for general public purposes.Judged by this test, the contribution that is levided by S. 49 of the Orissa Act will have to be regarded as a fee and not a tax. The payment is demanded only for the purpose of meeting the expenses of the Commissioner and his office which is the machinery set up for due administration of the affairs of the religious institution. The collections made are not merged in the general public revenue and are not appropriated in the manner laid down for appropriation of expenses for other public purposes. They go to constitute the fund which is contemplated by S. 50 of the Act and this fund, to which also the Provincial Government contributes both by way of loan and grant, is specifically set apart for the rendering of service involved in carrying out the provisions of the Act.We think, therefore that according to the principles which this court has enunciated in the Madras appeal mentioned above, the contribution could legiumately be regarded as fees and hence it was within the competence of the Provincial Legislature to enact this provision. The fact that the amount of levy is graded according to the capacity of the payers through it gives it the appearance of an income-tax, is not by any means a decisive test.10. We are further of opinion that an imposition like this cannot be said to be hit by Art. 27 of the Constitution. What is forbidden by Art. 27 is the specific appropriation of the proceeds of any tax in payment of expenses for the promotion or maintenance or any particular religion or religious denomination. The object of the contribution under S. 49 is not the fostering or preservation of the Hindu religion or of any denomination within it; the purpose is to see that religious trusts and institutions wherever they exist are properly administered. It is the secular administration of the religious institutions that the Legislature seeks to control and the object, as enunciated in the Act, is to ensure that the endowments attached to the religious institutions are properly administered and their income is duly appropriated for purposes for which they were founded or exist. As there is no question of favouring any particular religion or religious denomination, Art. 27 could not possibly apply.
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1[ds]8. There is nothing wrong in the provision of S. 46 itself but legitimate exception, we think, can be taken to the proviso appended to the section. Under the law, as it stands, the Mahant or the superior of a Math has very wide powers of disposal over the surplus income and the only restriction that is recognised is that he cannot spend the income for his own personal use unconnected with the dignity of his office. The purposes specified in S. 46 are all conducive to the benefit of the institution and there is no reason why the discretion of the trustee in regard to the spending of surplus for such purposes also should be still further restricted by directions which the Commissioner may choose to issue.Section 47 (1) lays down how the rule of cy pres is to be applied not merely when the original purpose of the trust fails or becomes incapable of being carried out either in whole or in part by reason of subsequent events, but also where there is a surplus left after meeting the legitimate expenses of the institution. Objection apparently could be raised against the last provision of the sub-section, but as sub-section (4) of S. 47 gives the party aggrieved by any order of the Commissioner in this respect to file a suit in a civil court and the court is empowered to modify or set aside such order of the Commissioner, we do not think that there is any reasonable ground for complaint.9. The only other section that requires consideration is S. 49 under which every Math or temple having an annual income exceeding Rs. 250/- has got to make an annual contribution for meeting the expenses of the Commissioner and the officers and servants working under him. The first question that arises with regard to this provision is whether the imposition is a tax or a fee, and it is not disputed that if it is a tax, the Provincial legislature would have no authority to enact such a provision.This question has been elaborately discussed in our judgment in the Madras appeal referred to above and it is not necessary to repeat the discussions over again. As has been pointed out in the Madras appeal, there is no generic difference between a tax and a fee and both are different forms in which the taxing power of a State manifests itself. Our Constitution, however, has made a distinction between a tax and a fee for legislative purposes and while there are various entries in the three lists with regard to various forms of taxation, there is an entry at the end of each one of these lists as regards fees which could be levied in respect of every one of the matters that are included therein.A tax is undoubtedly in the nature of a compulsory exaction of money by a public authority for public purposes, the payment of which is enforced by law. But the essential thing in a tax is that the imposition is made for public purposes to meet the general expenses of the State without reference to any special benefit to be conferred upon the payers of the tax. The taxes collected are all merged in the general revenue of the State to be applied for general public purposes. Thus, tax is a common burden and the only return which the tax-payer gets is the participation in the common benefits of the State. Fees, on the other hand, are payments primarily in the public interest but for some special service rendered or some special work done for the benefit of those from whom payments are demanded.Thus, in fees there is always an element of quid pro quo which is absent in a tax. Two elements are thus essential in order that a payment may be regarded as a fee. In the first place, it must be levied in consideration of certain services which the individuals accepted either willingly or unwillingly. But this by itself is not enough to make the imposition a fee, if the payments demanded for rendering of such services are not set apart or specifically appropriated for that purpose but are merged in the general revenue of the State to be spent for general public purposes.Judged by this test, the contribution that is levided by S. 49 of the Orissa Act will have to be regarded as a fee and not a tax. The payment is demanded only for the purpose of meeting the expenses of the Commissioner and his office which is the machinery set up for due administration of the affairs of the religious institution. The collections made are not merged in the general public revenue and are not appropriated in the manner laid down for appropriation of expenses for other public purposes. They go to constitute the fund which is contemplated by S. 50 of the Act and this fund, to which also the Provincial Government contributes both by way of loan and grant, is specifically set apart for the rendering of service involved in carrying out the provisions of the Act.We think, therefore that according to the principles which this court has enunciated in the Madras appeal mentioned above, the contribution could legiumately be regarded as fees and hence it was within the competence of the Provincial Legislature to enact this provision. The fact that the amount of levy is graded according to the capacity of the payers through it gives it the appearance of an income-tax, is not by any means a decisive test.10. We are further of opinion that an imposition like this cannot be said to be hit by Art. 27 of the Constitution. What is forbidden by Art. 27 is the specific appropriation of the proceeds of any tax in payment of expenses for the promotion or maintenance or any particular religion or religious denomination. The object of the contribution under S. 49 is not the fostering or preservation of the Hindu religion or of any denomination within it; the purpose is to see that religious trusts and institutions wherever they exist are properly administered. It is the secular administration of the religious institutions that the Legislature seeks to control and the object, as enunciated in the Act, is to ensure that the endowments attached to the religious institutions are properly administered and their income is duly appropriated for purposes for which they were founded or exist. As there is no question of favouring any particular religion or religious denomination, Art. 27 could not possibly apply.
| 1 | 3,138 | 1,160 |
### 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:
institution and there is no reason why the discretion of the trustee in regard to the spending of surplus for such purposes also should be still further restricted by directions which the Commissioner may choose to issue.Section 47 (1) lays down how the rule of cy pres is to be applied not merely when the original purpose of the trust fails or becomes incapable of being carried out either in whole or in part by reason of subsequent events, but also where there is a surplus left after meeting the legitimate expenses of the institution. Objection apparently could be raised against the last provision of the sub-section, but as sub-section (4) of S. 47 gives the party aggrieved by any order of the Commissioner in this respect to file a suit in a civil court and the court is empowered to modify or set aside such order of the Commissioner, we do not think that there is any reasonable ground for complaint.9. The only other section that requires consideration is S. 49 under which every Math or temple having an annual income exceeding Rs. 250/- has got to make an annual contribution for meeting the expenses of the Commissioner and the officers and servants working under him. The first question that arises with regard to this provision is whether the imposition is a tax or a fee, and it is not disputed that if it is a tax, the Provincial legislature would have no authority to enact such a provision.This question has been elaborately discussed in our judgment in the Madras appeal referred to above and it is not necessary to repeat the discussions over again. As has been pointed out in the Madras appeal, there is no generic difference between a tax and a fee and both are different forms in which the taxing power of a State manifests itself. Our Constitution, however, has made a distinction between a tax and a fee for legislative purposes and while there are various entries in the three lists with regard to various forms of taxation, there is an entry at the end of each one of these lists as regards fees which could be levied in respect of every one of the matters that are included therein.A tax is undoubtedly in the nature of a compulsory exaction of money by a public authority for public purposes, the payment of which is enforced by law. But the essential thing in a tax is that the imposition is made for public purposes to meet the general expenses of the State without reference to any special benefit to be conferred upon the payers of the tax. The taxes collected are all merged in the general revenue of the State to be applied for general public purposes. Thus, tax is a common burden and the only return which the tax-payer gets is the participation in the common benefits of the State. Fees, on the other hand, are payments primarily in the public interest but for some special service rendered or some special work done for the benefit of those from whom payments are demanded.Thus, in fees there is always an element of quid pro quo which is absent in a tax. Two elements are thus essential in order that a payment may be regarded as a fee. In the first place, it must be levied in consideration of certain services which the individuals accepted either willingly or unwillingly. But this by itself is not enough to make the imposition a fee, if the payments demanded for rendering of such services are not set apart or specifically appropriated for that purpose but are merged in the general revenue of the State to be spent for general public purposes.Judged by this test, the contribution that is levided by S. 49 of the Orissa Act will have to be regarded as a fee and not a tax. The payment is demanded only for the purpose of meeting the expenses of the Commissioner and his office which is the machinery set up for due administration of the affairs of the religious institution. The collections made are not merged in the general public revenue and are not appropriated in the manner laid down for appropriation of expenses for other public purposes. They go to constitute the fund which is contemplated by S. 50 of the Act and this fund, to which also the Provincial Government contributes both by way of loan and grant, is specifically set apart for the rendering of service involved in carrying out the provisions of the Act.We think, therefore that according to the principles which this court has enunciated in the Madras appeal mentioned above, the contribution could legiumately be regarded as fees and hence it was within the competence of the Provincial Legislature to enact this provision. The fact that the amount of levy is graded according to the capacity of the payers through it gives it the appearance of an income-tax, is not by any means a decisive test.10. We are further of opinion that an imposition like this cannot be said to be hit by Art. 27 of the Constitution. What is forbidden by Art. 27 is the specific appropriation of the proceeds of any tax in payment of expenses for the promotion or maintenance or any particular religion or religious denomination. The object of the contribution under S. 49 is not the fostering or preservation of the Hindu religion or of any denomination within it; the purpose is to see that religious trusts and institutions wherever they exist are properly administered. It is the secular administration of the religious institutions that the Legislature seeks to control and the object, as enunciated in the Act, is to ensure that the endowments attached to the religious institutions are properly administered and their income is duly appropriated for purposes for which they were founded or exist. As there is no question of favouring any particular religion or religious denomination, Art. 27 could not possibly apply.
### Response:
1
### Explanation:
institution and there is no reason why the discretion of the trustee in regard to the spending of surplus for such purposes also should be still further restricted by directions which the Commissioner may choose to issue.Section 47 (1) lays down how the rule of cy pres is to be applied not merely when the original purpose of the trust fails or becomes incapable of being carried out either in whole or in part by reason of subsequent events, but also where there is a surplus left after meeting the legitimate expenses of the institution. Objection apparently could be raised against the last provision of the sub-section, but as sub-section (4) of S. 47 gives the party aggrieved by any order of the Commissioner in this respect to file a suit in a civil court and the court is empowered to modify or set aside such order of the Commissioner, we do not think that there is any reasonable ground for complaint.9. The only other section that requires consideration is S. 49 under which every Math or temple having an annual income exceeding Rs. 250/- has got to make an annual contribution for meeting the expenses of the Commissioner and the officers and servants working under him. The first question that arises with regard to this provision is whether the imposition is a tax or a fee, and it is not disputed that if it is a tax, the Provincial legislature would have no authority to enact such a provision.This question has been elaborately discussed in our judgment in the Madras appeal referred to above and it is not necessary to repeat the discussions over again. As has been pointed out in the Madras appeal, there is no generic difference between a tax and a fee and both are different forms in which the taxing power of a State manifests itself. Our Constitution, however, has made a distinction between a tax and a fee for legislative purposes and while there are various entries in the three lists with regard to various forms of taxation, there is an entry at the end of each one of these lists as regards fees which could be levied in respect of every one of the matters that are included therein.A tax is undoubtedly in the nature of a compulsory exaction of money by a public authority for public purposes, the payment of which is enforced by law. But the essential thing in a tax is that the imposition is made for public purposes to meet the general expenses of the State without reference to any special benefit to be conferred upon the payers of the tax. The taxes collected are all merged in the general revenue of the State to be applied for general public purposes. Thus, tax is a common burden and the only return which the tax-payer gets is the participation in the common benefits of the State. Fees, on the other hand, are payments primarily in the public interest but for some special service rendered or some special work done for the benefit of those from whom payments are demanded.Thus, in fees there is always an element of quid pro quo which is absent in a tax. Two elements are thus essential in order that a payment may be regarded as a fee. In the first place, it must be levied in consideration of certain services which the individuals accepted either willingly or unwillingly. But this by itself is not enough to make the imposition a fee, if the payments demanded for rendering of such services are not set apart or specifically appropriated for that purpose but are merged in the general revenue of the State to be spent for general public purposes.Judged by this test, the contribution that is levided by S. 49 of the Orissa Act will have to be regarded as a fee and not a tax. The payment is demanded only for the purpose of meeting the expenses of the Commissioner and his office which is the machinery set up for due administration of the affairs of the religious institution. The collections made are not merged in the general public revenue and are not appropriated in the manner laid down for appropriation of expenses for other public purposes. They go to constitute the fund which is contemplated by S. 50 of the Act and this fund, to which also the Provincial Government contributes both by way of loan and grant, is specifically set apart for the rendering of service involved in carrying out the provisions of the Act.We think, therefore that according to the principles which this court has enunciated in the Madras appeal mentioned above, the contribution could legiumately be regarded as fees and hence it was within the competence of the Provincial Legislature to enact this provision. The fact that the amount of levy is graded according to the capacity of the payers through it gives it the appearance of an income-tax, is not by any means a decisive test.10. We are further of opinion that an imposition like this cannot be said to be hit by Art. 27 of the Constitution. What is forbidden by Art. 27 is the specific appropriation of the proceeds of any tax in payment of expenses for the promotion or maintenance or any particular religion or religious denomination. The object of the contribution under S. 49 is not the fostering or preservation of the Hindu religion or of any denomination within it; the purpose is to see that religious trusts and institutions wherever they exist are properly administered. It is the secular administration of the religious institutions that the Legislature seeks to control and the object, as enunciated in the Act, is to ensure that the endowments attached to the religious institutions are properly administered and their income is duly appropriated for purposes for which they were founded or exist. As there is no question of favouring any particular religion or religious denomination, Art. 27 could not possibly apply.
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Satya Nand Munjal Vs. Commr Of Gift Tax
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to the revocable gift. Consequently, it was held that the assessee had surrendered his right to get back 14,000 bonus shares which were treated as a gift by the assessee to the transferee in view of the provisions of Section 4(1)(c) of the Act. The assessee was taxed accordingly.18. Feeling aggrieved by the reassessment order, the assessee preferred an appeal to the Commissioner of Gift Tax (Appeals). By his order dated 8th September 1998 the Commissioner held that since there was no regular transfer of the bonus shares, the transferee could not claim any ownership of the shares. In fact he was only a trustee of the assessee in respect of the bonus shares. The Commissioner also referred to McDowell & Co. and held that the assessee had carefully planned his affairs in such a manner as to deprive the Revenue of a substantial amount of gift tax. The reassessment order was accordingly upheld. 19. The assessee then took up the matter with the Tribunal which held in its order dated 23rd May 2000 that in view of the assessment to gift tax made in respect of the assessee for the Assessment Year 1982-83, the notice issued under Section 16(1) of the Act was merely a change of opinion and, as such the reassessment proceedings could not have been taken up. On the merits of the case, it was noted that neither the dividend income on the bonus shares nor their value had been taxed in the hands of the assessee. Consequently, the assessee was liable to succeed on the merits of the case also. The gift tax reassessment was accordingly quashed by the Tribunal. 20. The Revenue then came up in appeal before the High Court with the substantial question of law mentioned above. 21. In the impugned order, the High Court held that the assessee was liable to gift tax on the value of the bonus shares which were a gift made by the assessee to the transferee. It was held that the bonus shares were income from the original shares by relying upon Escorts Farms (Ramgarh) Ltd. v. Commissioner of Income Tax, [1996] 222 ITR 509. Accordingly, the order of the Tribunal was set aside and the reassessment order upheld. Discussion and conclusions: 22. Although learned counsel for the assessee seriously doubted the correctness of the impugned judgment and order on several grounds, we find that it is not necessary for us to go into all the issues raised by him. 23. The fundamental question before the High Court was whether there was in fact a gift of 14,000 bonus shares made by the assess to the transferee. The answer to this question lies in the interpretation of Section 4(1)(c) of the Act which reads as follows :- Gifts to include certain transfers. 4. (1) For the purposes of this Act,- (a) xxx (b) xxx (c) where there is a release, discharge, surrender, forfeiture or abandonment of any debt, contract or other actionable claim or of any interest in property by any person, the value of the release, discharge, surrender, forfeiture or abandonment to the extent to which it has not been found to the satisfaction of the Assessing Officer to have been bona fide, shall be deemed to be a gift made by the person responsible for the release, discharge, surrender, forfeiture or abandonment; (d) to (e) xxx 24. A perusal of the impugned judgment and order facially indicates that there has been no consideration of the provisions of Section 4(1)(c) of the Act. From the rather elaborate narration of facts, it is quite clear that the assessee had made a valid revocable gift of 6000 equity shares in the company on 20th February 1982 to the transferee. This is a finding of fact conclusively determined by the High Court in the assessees own case. 25. The only event that took place in the previous year relevant to the Assessment Year 1989-90 was the revocation of the gift by the assessee on 15th June 1988. Was this event enough for the Gift Tax Officer, in 1996, to re-open the assessment for the year 1989-90, while keeping in mind the fact that bonus shares were allotted to the transferee on 29th September 1982 and 31st May 1986? It is possible, on an interpretation of Section 4(1)(c) of the Act to answer this question either way, but unfortunately the High Court did not even notice this provision of the Act. Of course, the submission of learned counsel for the assessee is that on an interpretation of Section 4(1)(c) of the Act, it cannot be said by any stretch of imagination, that the assessee had made a gift of 14,000 bonus shares to the transferee in the previous year relevant to the Assessment Year 1989-90. 26. However, we are not inclined to decide this issue finally since we do not have the view of the High Court on the interpretation of Section 4(1)(c) of the Act. Nor do we have the view of the High Court on the applicability or otherwise of the principle laid down in McDowell & Co. 27. As far as the applicability of Escorts Farms is concerned, the question that arose for consideration in that case was the determination of the cost of acquisition of the original shares when bonus shares are subsequently issued. That is the second part of Section 4(1)(c) of the Act and that question would arise (if at all) only after a finding is given by the High Court on the first part of Section 4(1)(c) of the Act. But, as we have noted above, the High Court has not considered the interpretation of Section 4(1)(c) of the Act. 28. Under the circumstances we have no option but remand the matter for de novo consideration by the High Court keeping in mind the provisions of Section 4(1)(c) of the Act as well as the orders passed in the case of the assessee for the Assessment Year 1982-83. We do so accordingly.
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1[ds]22. Although learned counsel for the assessee seriously doubted the correctness of the impugned judgment and order on several grounds, we find that it is not necessary for us to go into all the issues raised by him.A perusal of the impugned judgment and order facially indicates that there has been no consideration of the provisions of Section 4(1)(c) of the Act. From the rather elaborate narration of facts, it is quite clear that the assessee had made a valid revocable gift of 6000 equity shares in the company on 20th February 1982 to the transferee. This is a finding of fact conclusively determined by the High Court in the assessees own case25. The only event that took place in the previous year relevant to the Assessment Year 1989-90 was the revocation of the gift by the assessee on 15th June 1988. Was this event enough for the Gift Tax Officer, in 1996, to re-open the assessment for the year 1989-90, while keeping in mind the fact that bonus shares were allotted to the transferee on 29th September 1982 and 31st May 1986? It is possible, on an interpretation of Section 4(1)(c) of the Act to answer this question either way, but unfortunately the High Court did not even notice this provision of the Act. Of course, the submission of learned counsel for the assessee is that on an interpretation of Section 4(1)(c) of the Act, it cannot be said by any stretch of imagination, that the assessee had made a gift of 14,000 bonus shares to the transferee in the previous year relevant to the Assessment Year 1989-9026. However, we are not inclined to decide this issue finally since we do not have the view of the High Court on the interpretation of Section 4(1)(c) of the Act. Nor do we have the view of the High Court on the applicability or otherwise of the principle laid down in McDowell & Co27. As far as the applicability of Escorts Farms is concerned, the question that arose for consideration in that case was the determination of the cost of acquisition of the original shares when bonus shares are subsequently issued. That is the second part of Section 4(1)(c) of the Act and that question would arise (if at all) only after a finding is given by the High Court on the first part of Section 4(1)(c) of the Act. But, as we have noted above, the High Court has not considered the interpretation of Section 4(1)(c) of the Act28. Under the circumstances we have no option but remand the matter for de novo consideration by the High Court keeping in mind the provisions of Section 4(1)(c) of the Act as well as the orders passed in the case of the assessee for the Assessment Year 1982-83. We do so accordingly.
| 1 | 2,469 | 554 |
### 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:
to the revocable gift. Consequently, it was held that the assessee had surrendered his right to get back 14,000 bonus shares which were treated as a gift by the assessee to the transferee in view of the provisions of Section 4(1)(c) of the Act. The assessee was taxed accordingly.18. Feeling aggrieved by the reassessment order, the assessee preferred an appeal to the Commissioner of Gift Tax (Appeals). By his order dated 8th September 1998 the Commissioner held that since there was no regular transfer of the bonus shares, the transferee could not claim any ownership of the shares. In fact he was only a trustee of the assessee in respect of the bonus shares. The Commissioner also referred to McDowell & Co. and held that the assessee had carefully planned his affairs in such a manner as to deprive the Revenue of a substantial amount of gift tax. The reassessment order was accordingly upheld. 19. The assessee then took up the matter with the Tribunal which held in its order dated 23rd May 2000 that in view of the assessment to gift tax made in respect of the assessee for the Assessment Year 1982-83, the notice issued under Section 16(1) of the Act was merely a change of opinion and, as such the reassessment proceedings could not have been taken up. On the merits of the case, it was noted that neither the dividend income on the bonus shares nor their value had been taxed in the hands of the assessee. Consequently, the assessee was liable to succeed on the merits of the case also. The gift tax reassessment was accordingly quashed by the Tribunal. 20. The Revenue then came up in appeal before the High Court with the substantial question of law mentioned above. 21. In the impugned order, the High Court held that the assessee was liable to gift tax on the value of the bonus shares which were a gift made by the assessee to the transferee. It was held that the bonus shares were income from the original shares by relying upon Escorts Farms (Ramgarh) Ltd. v. Commissioner of Income Tax, [1996] 222 ITR 509. Accordingly, the order of the Tribunal was set aside and the reassessment order upheld. Discussion and conclusions: 22. Although learned counsel for the assessee seriously doubted the correctness of the impugned judgment and order on several grounds, we find that it is not necessary for us to go into all the issues raised by him. 23. The fundamental question before the High Court was whether there was in fact a gift of 14,000 bonus shares made by the assess to the transferee. The answer to this question lies in the interpretation of Section 4(1)(c) of the Act which reads as follows :- Gifts to include certain transfers. 4. (1) For the purposes of this Act,- (a) xxx (b) xxx (c) where there is a release, discharge, surrender, forfeiture or abandonment of any debt, contract or other actionable claim or of any interest in property by any person, the value of the release, discharge, surrender, forfeiture or abandonment to the extent to which it has not been found to the satisfaction of the Assessing Officer to have been bona fide, shall be deemed to be a gift made by the person responsible for the release, discharge, surrender, forfeiture or abandonment; (d) to (e) xxx 24. A perusal of the impugned judgment and order facially indicates that there has been no consideration of the provisions of Section 4(1)(c) of the Act. From the rather elaborate narration of facts, it is quite clear that the assessee had made a valid revocable gift of 6000 equity shares in the company on 20th February 1982 to the transferee. This is a finding of fact conclusively determined by the High Court in the assessees own case. 25. The only event that took place in the previous year relevant to the Assessment Year 1989-90 was the revocation of the gift by the assessee on 15th June 1988. Was this event enough for the Gift Tax Officer, in 1996, to re-open the assessment for the year 1989-90, while keeping in mind the fact that bonus shares were allotted to the transferee on 29th September 1982 and 31st May 1986? It is possible, on an interpretation of Section 4(1)(c) of the Act to answer this question either way, but unfortunately the High Court did not even notice this provision of the Act. Of course, the submission of learned counsel for the assessee is that on an interpretation of Section 4(1)(c) of the Act, it cannot be said by any stretch of imagination, that the assessee had made a gift of 14,000 bonus shares to the transferee in the previous year relevant to the Assessment Year 1989-90. 26. However, we are not inclined to decide this issue finally since we do not have the view of the High Court on the interpretation of Section 4(1)(c) of the Act. Nor do we have the view of the High Court on the applicability or otherwise of the principle laid down in McDowell & Co. 27. As far as the applicability of Escorts Farms is concerned, the question that arose for consideration in that case was the determination of the cost of acquisition of the original shares when bonus shares are subsequently issued. That is the second part of Section 4(1)(c) of the Act and that question would arise (if at all) only after a finding is given by the High Court on the first part of Section 4(1)(c) of the Act. But, as we have noted above, the High Court has not considered the interpretation of Section 4(1)(c) of the Act. 28. Under the circumstances we have no option but remand the matter for de novo consideration by the High Court keeping in mind the provisions of Section 4(1)(c) of the Act as well as the orders passed in the case of the assessee for the Assessment Year 1982-83. We do so accordingly.
### Response:
1
### Explanation:
22. Although learned counsel for the assessee seriously doubted the correctness of the impugned judgment and order on several grounds, we find that it is not necessary for us to go into all the issues raised by him.A perusal of the impugned judgment and order facially indicates that there has been no consideration of the provisions of Section 4(1)(c) of the Act. From the rather elaborate narration of facts, it is quite clear that the assessee had made a valid revocable gift of 6000 equity shares in the company on 20th February 1982 to the transferee. This is a finding of fact conclusively determined by the High Court in the assessees own case25. The only event that took place in the previous year relevant to the Assessment Year 1989-90 was the revocation of the gift by the assessee on 15th June 1988. Was this event enough for the Gift Tax Officer, in 1996, to re-open the assessment for the year 1989-90, while keeping in mind the fact that bonus shares were allotted to the transferee on 29th September 1982 and 31st May 1986? It is possible, on an interpretation of Section 4(1)(c) of the Act to answer this question either way, but unfortunately the High Court did not even notice this provision of the Act. Of course, the submission of learned counsel for the assessee is that on an interpretation of Section 4(1)(c) of the Act, it cannot be said by any stretch of imagination, that the assessee had made a gift of 14,000 bonus shares to the transferee in the previous year relevant to the Assessment Year 1989-9026. However, we are not inclined to decide this issue finally since we do not have the view of the High Court on the interpretation of Section 4(1)(c) of the Act. Nor do we have the view of the High Court on the applicability or otherwise of the principle laid down in McDowell & Co27. As far as the applicability of Escorts Farms is concerned, the question that arose for consideration in that case was the determination of the cost of acquisition of the original shares when bonus shares are subsequently issued. That is the second part of Section 4(1)(c) of the Act and that question would arise (if at all) only after a finding is given by the High Court on the first part of Section 4(1)(c) of the Act. But, as we have noted above, the High Court has not considered the interpretation of Section 4(1)(c) of the Act28. Under the circumstances we have no option but remand the matter for de novo consideration by the High Court keeping in mind the provisions of Section 4(1)(c) of the Act as well as the orders passed in the case of the assessee for the Assessment Year 1982-83. We do so accordingly.
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Commnr. Of Central Excise, Chandigarh Vs. M/S. Stesalit Ltd
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the respondent on upgraded reactors, they were not eligible for the benefit of exemption provided vide Notification No. 67/95-CE dated 16.03.1995. They were, therefore, required to pay duty on copper coils as an intermediate product which was meant for captive consumption.7. This led to issuance of show cause notice dated 17.04.2001 to the respondent by the adjudicating authority proposing therein the demand of unpaid duty payable by the respondent on the aforementioned goods and also penalty. By order dated 25.02.2003, the adjudicating authority confirmed the demand of duty for Rs. 2,05,291/- along with interest under Section 11-AB of the Central Excise Act, 1944 (hereinafter referred to as "the Act"). The authority also imposed a penalty of Rs. 2,06,000/- under Section 11-AC of the Act read with Rule 173-Q of the Rules.8. Felt aggrieved by the aforesaid order, the respondent (assessee) filed appeal before the Tribunal. The respondent, however, did not challenge the demand of duty but confined their challenge only to imposition of penalty and, in particular, its quantum. According to the respondent, having regard to the totality of the facts and circumstances of the case, at best, nominal amount of penalty could be levied on the respondent but not the one imposed.9. By impugned order dated 05.11.2003, the Tribunal partly allowed the respondents appeal and reduced the amount of penalty from Rs. 2,06,000/- to Rs. 50,000/-. It is against this order, the Revenue has filed this appeal by way of special leave before this Court. 10. Heard Mr. K. Radhakrishnan, learned senior counsel for the appellant. None appeared for the respondent. 11. Mr. Radhakrishnan, learned senior counsel appearing for the appellant(Revenue) while assailing the legality and correctness of the impugned order contended that keeping in view the law laid down by this Court in Union of India & Ors. v. Dharamendra Textile Processors & Ors., (2008) 13 SCC 369 , which unfortunately was not taken note of by the Tribunal though it has direct bearing over the issue in question, the impugned order cannot be said to be legally sustainable and is, therefore, liable to be set aside and that of the adjudicating authority restored.12. It was his submission that the Tribunal had no jurisdiction to reduce the quantum of amount of the penalty imposed by the adjudicating authority on the respondent under Section 11-AC of the Act read with Rule 173-Q of the Rules in the light of the law laid down in Dharamendra Textile Processorss case (supra) and, more so, when in principle, neither the respondent questioned the grounds for its imposition and nor the Tribunal found any fault in the imposition. In other words, the submission was that in the light of the law laid down in the case of Dharamendra Textile Processors (supra), there was no discretion left with the Tribunal to reduce the quantum of penalty amount once it held that a case for penalty is made out. 13. Having heard the learned counsel for the appellant and on perusal of the record of the case, we are inclined to accept the submission of the learned counsel for the appellant.14. As rightly argued by the learned counsel for the appellant, the issue urged herein was examined by three judge Bench of this Court in Union of India & Ors. v. Dharamendra Textile Processors & Ors.(supra). It was a reference made to examine the correctness of the two earlier decisions of this Court rendered in Dilip N. Shroff v. Joint Commissioner of Income Tax, Mumbai & Anr., (2007) 6 SCC 329 and Chairman, SEBI v. Shriram Mutual Fund & Anr., (2006) 5 SCC 361. Their Lordships examined the issue in detail and held that the law laid down in the case of Dilip N. Shroff (supra) is not correct whereas the law laid down in the case of SEBI (supra) is correct. The following observations of Their Lordships are apposite which reads as under: "15. The stand of learned counsel for the assessee is that the absence of specific reference to mens rea is a case of casus omissus. If the contention of learned counsel for the assessee is accepted that the use of the expression "assessee shall be liable" proves the existence of discretion, it would lead to a very absurd result. In fact in the same provision there is an expression used i.e. "liability to pay duty". It can by no stretch of imagination be said that the adjudicating authority has even a discretion to levy duty less than what is legally and statutorily leviable.............""19. In Union Budget of 1996-1997, Section 11-AC of the Act was introduced. It has made the position clear that there is no scope for any discretion. In Para 136 of the Union Budget reference has been made to the provision stating that the levy of penalty is a mandatory penalty. In the Notes on Clauses also the similar indication has been given.20. Above being the position, the plea that Rules 96-ZQ and 96-ZO have a concept of discretion inbuilt cannot be sustained. Dilip Shroff case was not correctly decided but SEBI case has analysed the legal position in the correct perspectives. The reference is answered................." (emphasis supplied)15. Applying the aforementioned law to the facts of this case, we are of the considered opinion that the Tribunal erred in reducing the amount of penalty from Rs. 2,06,000/- to Rs. 50,000/-. Indeed, the Tribunal, in our opinion, failed to take into consideration the law laid down in the case of Dharamendra Textile Processors (supra) which the Tribunal was bound to take while deciding the appeal and instead the Tribunal wrongly placed reliance on its own decision in the case of Escorts JCB Ltd. v. CCE 2000 (118) ELT 650 (Tribunal). We also find that the Tribunal gave no justifiable legal reasons for reducing the penalty amount.16. In the light of foregoing discussion, we are unable to concur with the reasoning and the conclusion arrived at by the Tribunal. They are not legally sustainable and, therefore, deserve to be set aside.
|
1[ds]13. Having heard the learned counsel for the appellant and on perusal of the record of the case, we are inclined to accept the submission of the learned counsel for the appellant.14. As rightly argued by the learned counsel for the appellant, the issue urged herein was examined by three judge Bench of this Court in Union of India & Ors. v. Dharamendra Textile Processors & Ors.(supra).It was a reference made to examine the correctness of the two earlier decisions of this Court rendered in Dilip N. Shroff v. Joint Commissioner of Income Tax, Mumbai & Anr., (2007) 6 SCC 329 and Chairman, SEBI v. Shriram Mutual Fund & Anr., (2006) 5 SCC 361. Their Lordships examined the issue in detail and held that the law laid down in the case of Dilip N. Shroff (supra) is not correct whereas the law laid down in the case of SEBI (supra) isThe following observations of Their Lordships are apposite which reads asThe stand of learned counsel for the assessee is that the absence of specific reference to mens rea is a case of casus omissus. If the contention of learned counsel for the assessee is accepted that the use of the expression "assessee shall be liable" proves the existence of discretion, it would lead to a very absurd result. In fact in the same provision there is an expression used i.e. "liability to pay duty". It can by no stretch of imagination be said that the adjudicating authority has even a discretion to levy duty less than what is legally and statutorily leviable.............""19. In Union Budget of 1996-1997, Section 11-AC of the Act was introduced. It has made the position clear that there is no scope for any discretion. In Para 136 of the Union Budget reference has been made to the provision stating that the levy of penalty is a mandatory penalty. In the Notes on Clauses also the similar indication has been given.20. Above being the position, the plea that Rules 96-ZQ and 96-ZO have a concept of discretion inbuilt cannot be sustained. Dilip Shroff case was not correctly decided but SEBI case has analysed the legal position in the correct perspectives. The reference issupplied)15. Applying the aforementioned law to the facts of this case, we are of the considered opinion that the Tribunal erred in reducing the amount of penalty from Rs. 2,06,000/- to Rs. 50,000/-. Indeed, the Tribunal, in our opinion, failed to take into consideration the law laid down in the case of Dharamendra Textile Processors (supra) which the Tribunal was bound to take while deciding the appeal and instead the Tribunal wrongly placed reliance on its own decision in the case of Escorts JCB Ltd. v. CCE 2000 (118) ELT 650 (Tribunal). We also find that the Tribunal gave no justifiable legal reasons for reducing the penalty amount.16. In the light of foregoing discussion, we are unable to concur with the reasoning and the conclusion arrived at by the Tribunal. They are not legally sustainable and, therefore, deserve to be set aside.
| 1 | 1,407 | 580 |
### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
the respondent on upgraded reactors, they were not eligible for the benefit of exemption provided vide Notification No. 67/95-CE dated 16.03.1995. They were, therefore, required to pay duty on copper coils as an intermediate product which was meant for captive consumption.7. This led to issuance of show cause notice dated 17.04.2001 to the respondent by the adjudicating authority proposing therein the demand of unpaid duty payable by the respondent on the aforementioned goods and also penalty. By order dated 25.02.2003, the adjudicating authority confirmed the demand of duty for Rs. 2,05,291/- along with interest under Section 11-AB of the Central Excise Act, 1944 (hereinafter referred to as "the Act"). The authority also imposed a penalty of Rs. 2,06,000/- under Section 11-AC of the Act read with Rule 173-Q of the Rules.8. Felt aggrieved by the aforesaid order, the respondent (assessee) filed appeal before the Tribunal. The respondent, however, did not challenge the demand of duty but confined their challenge only to imposition of penalty and, in particular, its quantum. According to the respondent, having regard to the totality of the facts and circumstances of the case, at best, nominal amount of penalty could be levied on the respondent but not the one imposed.9. By impugned order dated 05.11.2003, the Tribunal partly allowed the respondents appeal and reduced the amount of penalty from Rs. 2,06,000/- to Rs. 50,000/-. It is against this order, the Revenue has filed this appeal by way of special leave before this Court. 10. Heard Mr. K. Radhakrishnan, learned senior counsel for the appellant. None appeared for the respondent. 11. Mr. Radhakrishnan, learned senior counsel appearing for the appellant(Revenue) while assailing the legality and correctness of the impugned order contended that keeping in view the law laid down by this Court in Union of India & Ors. v. Dharamendra Textile Processors & Ors., (2008) 13 SCC 369 , which unfortunately was not taken note of by the Tribunal though it has direct bearing over the issue in question, the impugned order cannot be said to be legally sustainable and is, therefore, liable to be set aside and that of the adjudicating authority restored.12. It was his submission that the Tribunal had no jurisdiction to reduce the quantum of amount of the penalty imposed by the adjudicating authority on the respondent under Section 11-AC of the Act read with Rule 173-Q of the Rules in the light of the law laid down in Dharamendra Textile Processorss case (supra) and, more so, when in principle, neither the respondent questioned the grounds for its imposition and nor the Tribunal found any fault in the imposition. In other words, the submission was that in the light of the law laid down in the case of Dharamendra Textile Processors (supra), there was no discretion left with the Tribunal to reduce the quantum of penalty amount once it held that a case for penalty is made out. 13. Having heard the learned counsel for the appellant and on perusal of the record of the case, we are inclined to accept the submission of the learned counsel for the appellant.14. As rightly argued by the learned counsel for the appellant, the issue urged herein was examined by three judge Bench of this Court in Union of India & Ors. v. Dharamendra Textile Processors & Ors.(supra). It was a reference made to examine the correctness of the two earlier decisions of this Court rendered in Dilip N. Shroff v. Joint Commissioner of Income Tax, Mumbai & Anr., (2007) 6 SCC 329 and Chairman, SEBI v. Shriram Mutual Fund & Anr., (2006) 5 SCC 361. Their Lordships examined the issue in detail and held that the law laid down in the case of Dilip N. Shroff (supra) is not correct whereas the law laid down in the case of SEBI (supra) is correct. The following observations of Their Lordships are apposite which reads as under: "15. The stand of learned counsel for the assessee is that the absence of specific reference to mens rea is a case of casus omissus. If the contention of learned counsel for the assessee is accepted that the use of the expression "assessee shall be liable" proves the existence of discretion, it would lead to a very absurd result. In fact in the same provision there is an expression used i.e. "liability to pay duty". It can by no stretch of imagination be said that the adjudicating authority has even a discretion to levy duty less than what is legally and statutorily leviable.............""19. In Union Budget of 1996-1997, Section 11-AC of the Act was introduced. It has made the position clear that there is no scope for any discretion. In Para 136 of the Union Budget reference has been made to the provision stating that the levy of penalty is a mandatory penalty. In the Notes on Clauses also the similar indication has been given.20. Above being the position, the plea that Rules 96-ZQ and 96-ZO have a concept of discretion inbuilt cannot be sustained. Dilip Shroff case was not correctly decided but SEBI case has analysed the legal position in the correct perspectives. The reference is answered................." (emphasis supplied)15. Applying the aforementioned law to the facts of this case, we are of the considered opinion that the Tribunal erred in reducing the amount of penalty from Rs. 2,06,000/- to Rs. 50,000/-. Indeed, the Tribunal, in our opinion, failed to take into consideration the law laid down in the case of Dharamendra Textile Processors (supra) which the Tribunal was bound to take while deciding the appeal and instead the Tribunal wrongly placed reliance on its own decision in the case of Escorts JCB Ltd. v. CCE 2000 (118) ELT 650 (Tribunal). We also find that the Tribunal gave no justifiable legal reasons for reducing the penalty amount.16. In the light of foregoing discussion, we are unable to concur with the reasoning and the conclusion arrived at by the Tribunal. They are not legally sustainable and, therefore, deserve to be set aside.
### Response:
1
### Explanation:
13. Having heard the learned counsel for the appellant and on perusal of the record of the case, we are inclined to accept the submission of the learned counsel for the appellant.14. As rightly argued by the learned counsel for the appellant, the issue urged herein was examined by three judge Bench of this Court in Union of India & Ors. v. Dharamendra Textile Processors & Ors.(supra).It was a reference made to examine the correctness of the two earlier decisions of this Court rendered in Dilip N. Shroff v. Joint Commissioner of Income Tax, Mumbai & Anr., (2007) 6 SCC 329 and Chairman, SEBI v. Shriram Mutual Fund & Anr., (2006) 5 SCC 361. Their Lordships examined the issue in detail and held that the law laid down in the case of Dilip N. Shroff (supra) is not correct whereas the law laid down in the case of SEBI (supra) isThe following observations of Their Lordships are apposite which reads asThe stand of learned counsel for the assessee is that the absence of specific reference to mens rea is a case of casus omissus. If the contention of learned counsel for the assessee is accepted that the use of the expression "assessee shall be liable" proves the existence of discretion, it would lead to a very absurd result. In fact in the same provision there is an expression used i.e. "liability to pay duty". It can by no stretch of imagination be said that the adjudicating authority has even a discretion to levy duty less than what is legally and statutorily leviable.............""19. In Union Budget of 1996-1997, Section 11-AC of the Act was introduced. It has made the position clear that there is no scope for any discretion. In Para 136 of the Union Budget reference has been made to the provision stating that the levy of penalty is a mandatory penalty. In the Notes on Clauses also the similar indication has been given.20. Above being the position, the plea that Rules 96-ZQ and 96-ZO have a concept of discretion inbuilt cannot be sustained. Dilip Shroff case was not correctly decided but SEBI case has analysed the legal position in the correct perspectives. The reference issupplied)15. Applying the aforementioned law to the facts of this case, we are of the considered opinion that the Tribunal erred in reducing the amount of penalty from Rs. 2,06,000/- to Rs. 50,000/-. Indeed, the Tribunal, in our opinion, failed to take into consideration the law laid down in the case of Dharamendra Textile Processors (supra) which the Tribunal was bound to take while deciding the appeal and instead the Tribunal wrongly placed reliance on its own decision in the case of Escorts JCB Ltd. v. CCE 2000 (118) ELT 650 (Tribunal). We also find that the Tribunal gave no justifiable legal reasons for reducing the penalty amount.16. In the light of foregoing discussion, we are unable to concur with the reasoning and the conclusion arrived at by the Tribunal. They are not legally sustainable and, therefore, deserve to be set aside.
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Collector Of Customs & Ors Vs. Pednkar And Company (Private) Limited (In Liquidation) &Anr
|
and also time for delivery were postponed."The Division Bench, on the other hand, after extensively dealing with all the facts and circumstances of the case including the terms of the contract, came to the conclusion that -"...... no property could pass before the goods were delivered at the Bombay godowns of the B.C. Cycle Company."17. The controversy has to be resolved by reference to Sections 18, 19 and 20 of the Sale of Goods Act, 1930.18. It is, in our opinion, not possible to hold that the property in goods passed at the time of agreement dated February 20, 1959. The contract to sell related not to the entire consignment of the goods which were being imported by the respondent but only to part of those goods, even though it may be a major part. Out of 208 dozen rock shafts which were imported, 200 dozen were to be sold by the respondent company to respondent No. 2. There was nothing to prevent the respondent company from selecting for itself any eight dozen rock shafts out of the whole consignment. The place of delivery of the goods was buyers godown in Bombay. The property in the goods could not pass in favour of respondent No. 2 until, after the arrival of the goods in Bombay, two hundred dozen rock shafts to be delivered to the buyer were separated. So far as industrial sewing machines were concerned, the property in them could also not pass to the buyer before the passing of the property in rock shafts as the contract between the respondent company and the buyer was one indivisible contract. The High Court, in our opinion, rightly held that the property in the goods did not pass to the buyer till the time of the delivery of the goods in Bombay. No specific goods in a deliverable state were attached to the contract when it was made.19. Mr. Sanghi submits that the fact that the Cycle Company was principally financing the whole transaction and stood guarantee to the Bankers in Delhi enabling the respondent to open a letter of credit for the importation of the goods clearly indicates that, notwithstanding the place of delivery in the contract, the parties intended that the imported goods were appropriated to the contract when the same was made. In many genuine commercial transactions guarantee can be arranged by a party importing or exporting goods under a valid licence. The mere fact of financial guarantee to a Banker for the purpose of opening a letter of credit without anything more, would not convert the guarantor to be the owner of the property the moment the contract was entered if the terms therein pointed to the contrary. We are unable to hold that the mere fact of the Cycle Company being the guarantor with regard to the financial arrangement, which the respondent made with the Bankers in Delhi, would lead to the inescapable conclusion that the property in the goods had passed to the Cycle Company at the time when the contract was made. The correspondence between the respondent and the Cycle Company, that between the parties and the Banker and the arrangements for clearing the goods through the Calcutta Clearing House relied upon by Mr. Sanghi, do not lead to a contrary conclusion.20. It is clear that the respondent had a valid import licence under the cover of which it imported the goods from japan and, as we have held above, the property in the goods had never passed during the importation as alleged by the Customs authorities.21. The entire controversy before the adjudicator was with reference to the importation of the goods by the Cycle Company which fact was sought to be established against the respondent from the legal position urged with regard to the passing of property to the Cycle Company at the time the contract had been made on February 20, 1959. Mr. Sanghi submits that if, on the facts and circumstances, conduct of the parties and the correspondence during the relevant period taken with the advance of finance and guarantee of the Cycle Company, the adjudicator came to the conclusion that the property had passed and the goods were liable to confiscation and the conclusion was prima facie reasonable, the High Court had no jurisdiction to interfere with the order under Article 226 of the Constitution. This would be true, says counsel, even if the High Court could on the same facts and circumstances take another view in the matter. We are unable to accede to the submission.22. We are dealing with an order of confiscation of certain goods imported under a licence granted to the respondent. It was never disputed that it was a valid licence. It was also not an Actual User licence. The respondent, therefore, could sell these imported goods to others. The whole matter, therefore, turned on the legal issue as to whether property had passed at the time the respondent had entered into the contract for the sale of the imported goods. Even the Customs Authority in its additional show cause notice made particular reference to Section 20 of the Sale of Goods Act and pointed out that -"the ownership in the goods under consideration appears to have passed on to M/s. Bombay and Calcutta Cycle Company right from the time the sale contract was concluded".When, therefore, on the terms of the contract along with other relevant facts and circumstances which had to be looked into by the adjudicator for application of Section 20 of the Sale of Goods Act, he committed a manifest error of law apparent on the face of the order, the High Courts jurisdiction to interfere under Article 226 of the Constitution is clearly attracted. The submission of Mr. Sanghi is, therefore, without any force.23. In the view we have taken regarding passing of property in the goods we need not deal with Mr. Sanghis submission with reference to the provisions of warranty under Section 12 of the Sale of Goods Act.
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0[ds]We are, therefore, unable to agree with Mr. Sanghi that he can be permitted to raise this question of a "make-believe" transaction by the respondent.It is, in our opinion, not possible to hold that the property in goods passed at the time of agreement dated February 20, 1959. The contract to sell related not to the entire consignment of the goods which were being imported by the respondent but only to part of those goods, even though it may be a major part. Out of 208 dozen rock shafts which were imported, 200 dozen were to be sold by the respondent company to respondent No. 2. There was nothing to prevent the respondent company from selecting for itself any eight dozen rock shafts out of the whole consignment. The place of delivery of the goods was buyers godown in Bombay. The property in the goods could not pass in favour of respondent No. 2 until, after the arrival of the goods in Bombay, two hundred dozen rock shafts to be delivered to the buyer were separated. So far as industrial sewing machines were concerned, the property in them could also not pass to the buyer before the passing of the property in rock shafts as the contract between the respondent company and the buyer was one indivisible contract. The High Court, in our opinion, rightly held that the property in the goods did not pass to the buyer till the time of the delivery of the goods in Bombay. No specific goods in a deliverable state were attached to the contract when it was made.are unable to hold that the mere fact of the Cycle Company being the guarantor with regard to the financial arrangement, which the respondent made with the Bankers in Delhi, would lead to the inescapable conclusion that the property in the goods had passed to the Cycle Company at the time when the contract was made. The correspondence between the respondent and the Cycle Company, that between the parties and the Banker and the arrangements for clearing the goods through the Calcutta Clearing House relied upon by Mr. Sanghi, do not lead to a contrary conclusion.20. It is clear that the respondent had a valid import licence under the cover of which it imported the goods from japan and, as we have held above, the property in the goods had never passed during the importation as alleged by the Customsare unable to accede to the submission.22. We are dealing with an order of confiscation of certain goods imported under a licence granted to the respondent. It was never disputed that it was a valid licence. It was also not an Actual User licence. The respondent, therefore, could sell these imported goods to others. The whole matter, therefore, turned on the legal issue as to whether property had passed at the time the respondent had entered into the contract for the sale of the imported goods. Even the Customs Authority in its additional show cause notice made particular reference to Section 20 of the Sale of Goods Act and pointed out that -"the ownership in the goods under consideration appears to have passed on to M/s. Bombay and Calcutta Cycle Company right from the time the sale contract was concluded".When, therefore, on the terms of the contract along with other relevant facts and circumstances which had to be looked into by the adjudicator for application of Section 20 of the Sale of Goods Act, he committed a manifest error of law apparent on the face of the order, the High Courts jurisdiction to interfere under Article 226 of the Constitution is clearly attracted. The submission of Mr. Sanghi is, therefore, without any force.23. In the view we have taken regarding passing of property in the goods we need not deal with Mr. Sanghis submission with reference to the provisions of warranty under Section 12 of the Sale of Goods Act.
| 0 | 3,717 | 713 |
### 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:
and also time for delivery were postponed."The Division Bench, on the other hand, after extensively dealing with all the facts and circumstances of the case including the terms of the contract, came to the conclusion that -"...... no property could pass before the goods were delivered at the Bombay godowns of the B.C. Cycle Company."17. The controversy has to be resolved by reference to Sections 18, 19 and 20 of the Sale of Goods Act, 1930.18. It is, in our opinion, not possible to hold that the property in goods passed at the time of agreement dated February 20, 1959. The contract to sell related not to the entire consignment of the goods which were being imported by the respondent but only to part of those goods, even though it may be a major part. Out of 208 dozen rock shafts which were imported, 200 dozen were to be sold by the respondent company to respondent No. 2. There was nothing to prevent the respondent company from selecting for itself any eight dozen rock shafts out of the whole consignment. The place of delivery of the goods was buyers godown in Bombay. The property in the goods could not pass in favour of respondent No. 2 until, after the arrival of the goods in Bombay, two hundred dozen rock shafts to be delivered to the buyer were separated. So far as industrial sewing machines were concerned, the property in them could also not pass to the buyer before the passing of the property in rock shafts as the contract between the respondent company and the buyer was one indivisible contract. The High Court, in our opinion, rightly held that the property in the goods did not pass to the buyer till the time of the delivery of the goods in Bombay. No specific goods in a deliverable state were attached to the contract when it was made.19. Mr. Sanghi submits that the fact that the Cycle Company was principally financing the whole transaction and stood guarantee to the Bankers in Delhi enabling the respondent to open a letter of credit for the importation of the goods clearly indicates that, notwithstanding the place of delivery in the contract, the parties intended that the imported goods were appropriated to the contract when the same was made. In many genuine commercial transactions guarantee can be arranged by a party importing or exporting goods under a valid licence. The mere fact of financial guarantee to a Banker for the purpose of opening a letter of credit without anything more, would not convert the guarantor to be the owner of the property the moment the contract was entered if the terms therein pointed to the contrary. We are unable to hold that the mere fact of the Cycle Company being the guarantor with regard to the financial arrangement, which the respondent made with the Bankers in Delhi, would lead to the inescapable conclusion that the property in the goods had passed to the Cycle Company at the time when the contract was made. The correspondence between the respondent and the Cycle Company, that between the parties and the Banker and the arrangements for clearing the goods through the Calcutta Clearing House relied upon by Mr. Sanghi, do not lead to a contrary conclusion.20. It is clear that the respondent had a valid import licence under the cover of which it imported the goods from japan and, as we have held above, the property in the goods had never passed during the importation as alleged by the Customs authorities.21. The entire controversy before the adjudicator was with reference to the importation of the goods by the Cycle Company which fact was sought to be established against the respondent from the legal position urged with regard to the passing of property to the Cycle Company at the time the contract had been made on February 20, 1959. Mr. Sanghi submits that if, on the facts and circumstances, conduct of the parties and the correspondence during the relevant period taken with the advance of finance and guarantee of the Cycle Company, the adjudicator came to the conclusion that the property had passed and the goods were liable to confiscation and the conclusion was prima facie reasonable, the High Court had no jurisdiction to interfere with the order under Article 226 of the Constitution. This would be true, says counsel, even if the High Court could on the same facts and circumstances take another view in the matter. We are unable to accede to the submission.22. We are dealing with an order of confiscation of certain goods imported under a licence granted to the respondent. It was never disputed that it was a valid licence. It was also not an Actual User licence. The respondent, therefore, could sell these imported goods to others. The whole matter, therefore, turned on the legal issue as to whether property had passed at the time the respondent had entered into the contract for the sale of the imported goods. Even the Customs Authority in its additional show cause notice made particular reference to Section 20 of the Sale of Goods Act and pointed out that -"the ownership in the goods under consideration appears to have passed on to M/s. Bombay and Calcutta Cycle Company right from the time the sale contract was concluded".When, therefore, on the terms of the contract along with other relevant facts and circumstances which had to be looked into by the adjudicator for application of Section 20 of the Sale of Goods Act, he committed a manifest error of law apparent on the face of the order, the High Courts jurisdiction to interfere under Article 226 of the Constitution is clearly attracted. The submission of Mr. Sanghi is, therefore, without any force.23. In the view we have taken regarding passing of property in the goods we need not deal with Mr. Sanghis submission with reference to the provisions of warranty under Section 12 of the Sale of Goods Act.
### Response:
0
### Explanation:
We are, therefore, unable to agree with Mr. Sanghi that he can be permitted to raise this question of a "make-believe" transaction by the respondent.It is, in our opinion, not possible to hold that the property in goods passed at the time of agreement dated February 20, 1959. The contract to sell related not to the entire consignment of the goods which were being imported by the respondent but only to part of those goods, even though it may be a major part. Out of 208 dozen rock shafts which were imported, 200 dozen were to be sold by the respondent company to respondent No. 2. There was nothing to prevent the respondent company from selecting for itself any eight dozen rock shafts out of the whole consignment. The place of delivery of the goods was buyers godown in Bombay. The property in the goods could not pass in favour of respondent No. 2 until, after the arrival of the goods in Bombay, two hundred dozen rock shafts to be delivered to the buyer were separated. So far as industrial sewing machines were concerned, the property in them could also not pass to the buyer before the passing of the property in rock shafts as the contract between the respondent company and the buyer was one indivisible contract. The High Court, in our opinion, rightly held that the property in the goods did not pass to the buyer till the time of the delivery of the goods in Bombay. No specific goods in a deliverable state were attached to the contract when it was made.are unable to hold that the mere fact of the Cycle Company being the guarantor with regard to the financial arrangement, which the respondent made with the Bankers in Delhi, would lead to the inescapable conclusion that the property in the goods had passed to the Cycle Company at the time when the contract was made. The correspondence between the respondent and the Cycle Company, that between the parties and the Banker and the arrangements for clearing the goods through the Calcutta Clearing House relied upon by Mr. Sanghi, do not lead to a contrary conclusion.20. It is clear that the respondent had a valid import licence under the cover of which it imported the goods from japan and, as we have held above, the property in the goods had never passed during the importation as alleged by the Customsare unable to accede to the submission.22. We are dealing with an order of confiscation of certain goods imported under a licence granted to the respondent. It was never disputed that it was a valid licence. It was also not an Actual User licence. The respondent, therefore, could sell these imported goods to others. The whole matter, therefore, turned on the legal issue as to whether property had passed at the time the respondent had entered into the contract for the sale of the imported goods. Even the Customs Authority in its additional show cause notice made particular reference to Section 20 of the Sale of Goods Act and pointed out that -"the ownership in the goods under consideration appears to have passed on to M/s. Bombay and Calcutta Cycle Company right from the time the sale contract was concluded".When, therefore, on the terms of the contract along with other relevant facts and circumstances which had to be looked into by the adjudicator for application of Section 20 of the Sale of Goods Act, he committed a manifest error of law apparent on the face of the order, the High Courts jurisdiction to interfere under Article 226 of the Constitution is clearly attracted. The submission of Mr. Sanghi is, therefore, without any force.23. In the view we have taken regarding passing of property in the goods we need not deal with Mr. Sanghis submission with reference to the provisions of warranty under Section 12 of the Sale of Goods Act.
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Avinder Singh Etc Vs. State Of Punjab & Anr. Etc
|
out the object and the purposes of the Acts and to use the Commissioner for Transport as its instrument to fix and recover the licence and permit fees, provided it preserved its own capacity intact and retained perfect control over him; that as it could at any time repeal the legislation and withdraw such authority and discretion as it had vested in him, it had not assigned, transferred or abrogated its sovereign power to levy taxes, nor had it renounced or abdicated its responsibilities in favour of a newly created legislative authority and that, accordingly, the two Acts were valid, Lord Morris of Borth-y-Gest said:"What they (the legislature) created by the passing of the Transport Acts could not reasonably be described as a new legislative power or separate legislative body armed with general legislative authority (see R. v. Burah, 1978) A.C. 889). Nor did the Queensland Legislatare create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence (see In re the Initiative and Referendum Act (1919) A.C. 945 at 946)." 31. The point to be emphasised-and this is rather crucial- is the statement of their Lordships that the legislature preserved its capacity intact and retained perfect control over the Commissioner for Transport inasmuch as it could at any time repeal the legislation and with draw the authority and discretion it had vested in him, and, therefore, the legislature did not abdicate its functions. The proposition so stated is very wide and sweeping. By that standard, there is nothing unconstitutional about s. 90(5) of the Act. 32. In the course of the argument certain observations of this Court were read to the effect that there was always a check by the courts on unconstitutional misuse of delegated power and that, in itself with out more, was good enough to make the delegation good. So stated, the proposition may be perhaps too wide to be valid; for any naked delegation may then be sustained by stating that the court is there as the watch-dog. We do not have to go that far in the present case and so we make no final pronouncement on this extension of delegations jurisprudence. We must state, while concluding that Punjab & Haryana High Court has overruled similar contentions on grounds which have our approval [see AIR 1977 P & 297 and 74 PLR (1972) P 149]. 33. We are conscious that constitutional legitimation of unlimited power of delegation to the Executive by the Legislature may, on critical occasions, be subversive of responsible government and erosive of democratic order. That peril prompts us to hint at certain portents to our parliamentary system, not because they are likely new but because society may have to pay the price some day. 34. As a back-drop to this train of thoughts a few statements from a working paper presented by Prof. Upendra Baxi of the Delhi University at a recent seminar may be excerpted:"...law making remains the, more or less, exclusive prerogative of a small cross-section of elites. This necessarily affects both the quality of the law made as well its special communication, acceptance and effectively. It also reinforces the highly centralised system of power. It is time that we considered the desirability and feasibility of building into the law-making processes a substantial amount of public participation." "Peoples participation in the enforcement and implementation of the law is also not actively sought, sponsored or structured by the State....Equally now is the idea that there should be a "social audit" of major legislations by the beneficiaries or, more generally, the consumers of legal justice." "...The situation in regard to delegated legislation the volume of which is immensely greater than that of usual legislation, is even more alarming. The Indian Parliament enacted from the period 1973 to 1977 a total of 302 laws; as against this the total number of statutory orders and rules passed in the same period was approximately 25, 414. Corresponding figures for States and union territories are not just available but the number of rules issued under the delegated legislation powers may well be astronomical......" 35. Plenary powers of law-making are entrusted to elected representatives. But the political government instructed by the bureaucracy, by and large, gets bills through with the aid of the three-line whip. Even otherwise, legislators are some times innocent of legal skills; and complex legislations call for considerable information and instruction. The law-making sequence leaves much to subordinate legislation which, in practical terms, means surrender to the surrogate, viz., the bureaucracy which occupies commanding heights within the Secretariat. The technocracy and the bureaucracy which mostly draft subordinate legislation are perhaps well-meaning and well- informed but insulated from parliamentary audit, isolated from popular pressure and paper-logged most of the time. And units of local self-government are reduced to a para-babel mechanisms, what with a pyramid of officialdom above them. The core of Shri Tarkundes argument, even though rejected in legal terms by force of precedents, has a realistic touch to the effect that municipal administration in the matter of taxation, if taken over by Government as under s. 90(5) of the Act, becomes administration by the barrel of the Secretariat pen. The doctrine of delegation, in its extreme positions, is fraught with democracy by proxy of a coterie, of which the nation, in its naivete, may not be fully cognizant.Therefore, the system of law-making and performance auditing needs careful, yet radical, re-structuring, if participative, pluralist Government by the People is not to be jettisoned. We have laid down the law and obeyed the precedents but felt it necessary to lay bare briefly the political portents implicit in the extent law, for action by the national leadership betimes. Who owns and operates India, that is Bharat ? That disturbing interrogation becomes deeply relevant as we debate and decide the jurisprudence of delegation of power and vicarious exercise and so we have pardonably ventured to make heuristic hints and to project new perspectives. 36.
|
0[ds]It must be remembered that as between two interpretations that which sustains the validity of the law must be preferred. A close look at the schematic provisions and administrative realities is very revealing. Is Government innocent of the total needs of municipal bodies and indifferent to the legitimate pressures of its denizens?This conspectus of provisions brings into bold relief the anaemic nature of municipal autonomy. Full-blooded units of self-government, reflecting full faith in decentralised democracy uninhibited by a hierarchy of bureaucrats is the vision of Art. 40. While the Gandhian goal is of a shining crescent on a starry sky the sorry reality is that our municipalities vis-a-vis government are wan like a full moon at middayThis study of the statutory scheme shows that, in large measure, municipal councils reign, municipal commissioners rule; local self government is an experiment in directed democracy by the bureaucracy, Art. 40, notwithstanding. State Governments master-mind municipal administration in broad policies and even in smaller details and legally can suspend resolutions and supersede the organ itself. Municipal legislation sanctions this Operation Mask. If pluralism and decentralisation are to strengthen our democracy more authority and autonomy, at least experimentally, must be vested in local bodies. To day, prompt elections when periods expire are rare; councillors exist, debate, resolve, but power eludes them. Even so, municipal maya also counts ceremonially and otherwise.To set the record straight, we must state that many municipal bodies do exercise their limited powers properly and serve the public without nagging interference by Government officials. Municipalities are realities, often precarious, thoughThis statutorily sanctified comprehensive oversight by Government weaken the assumption of Shri Tarkunde that State Governments know little of the needs and respond remotely to the pressures of the locality and that the guidelines stressed in the rulings cited above vanish when Government directly operates under s. 90(5). The finances, budgetary estimates and many aspects of the affairs of each municipal body, reach the Government, channelled through its minions, and, by force of statute, are approved, sanctioned, modified or reversed by the State Secretariat. So, there is not much force in the submission that under s. 90(5) governmental action may b e a blind mans buff, not intelligent appreciationSecondly, under s. 90(5) Government acts to augment municipal revenues and so will, understandably, inform itself of the needs of the corporation and, on fiscal economics, o f what the traffic will bear. The statutory strategy also ensures this. First, a directive is given, obviously after considering relevant matters. Only if indifference or intractability is displayed, the fiscal sword of s. 90(5) is unsheathedMoreover, there is overall control by the legislature, sometimes, ineffective, sometimes meaningful. It is familiar knowledge that there are a number of institutionalised means by which the legislature exercises supervision and control over municipal matters. Broadly speaking, they are: (a) through inter-relations, (b) by discussions and debates, (c) by approval or otherwise of rules and orders, and (d) by financial control when the budget is presented. A study of the legislative proceedings in the various States of the country brings out many of these means of control (see Indian Administrative System, edited by Ramesh K. Arora & Co. Chapter 17). In a sense, the general municipal administration comes under fire in the House on many occasions, including during the debate on the Governors Address. Financial control and supervision by the legislators come up when budget proposals which contain allocation for municipal administration are presented to the House and at the time of the Appropriations Bill. Moreover, the Public Accounts Committee, the Estimates Committee and like other bodies also make functional probes into municipal administration-fiscal and other. There may be a big gap between the power of control and its actual exercise but it is also a fact that in a general way the political echelons in Government and the bureaucracy in turn are influenced in their policies by the criticisms of the municipal administration on the floor of the House and through other representations. We cannot, therefore, dismiss the legal position that there is control by the Legislature over Government in its supervision of municipal administration therefore, delegated legislation cannot be said to be uncontrolled or unchecked by the delegator.This discussion is of critical importance in view of the argument put forward by Shri Tarkunde that when Government exercises power under s. 90(6) it is a law unto itself, unbridled and uncontrolled by the Legislature. We may now refer to a few decisions which have been brought to our notice by counsel appearing for the municipal bodies and the State of Punjab to make out that the needs of municipalities and the pressures of local people are within the ken of the State Government and they also respond like municipal bodies and guide themselves in the manner corporations do. More importantly, excessive delegation stands negatived because of legislative control over Government. Even in the Liberty Cinema case, (supra) the control by Government over the municipal administration was relied upon as a policy guideline and it is an a fortiori case if the Government itself takes action, responsible and responsive as it is to the elected representatives of the HouseIn the course of the argument certain observations of this Court were read to the effect that there was always a check by the courts on unconstitutional misuse of delegated power and that, in itself with out more, was good enough to make the delegation good. So stated, the proposition may be perhaps too wide to be valid; for any naked delegation may then be sustained by stating that the court is there as the watch-dog. We do not have to go that far in the present case and so we make no final pronouncement on this extension of delegations jurisprudenceWe must state, while concluding that Punjab & Haryana High Court has overruled similar contentions on grounds which have our approval [see AIR 1977 P & 297 and 74 PLR (1972) P 149]We are conscious that constitutional legitimation of unlimited power of delegation to the Executive by the Legislature may, on critical occasions, be subversive of responsible government and erosive of democratic order. That peril prompts us to hint at certain portents to our parliamentary system, not because they are likely new but because society may have to pay the price some dayPlenary powers of law-making are entrusted to elected representatives. But the political government instructed by the bureaucracy, by and large, gets bills through with the aid of the three-line whip. Even otherwise, legislators are some times innocent of legal skills; and complex legislations call for considerable information and instruction. The law-making sequence leaves much to subordinate legislation which, in practical terms, means surrender to the surrogate, viz., the bureaucracy which occupies commanding heights within the Secretariat. The technocracy and the bureaucracy which mostly draft subordinate legislation are perhaps well-meaning and well- informed but insulated from parliamentary audit, isolated from popular pressure and paper-logged most of the time. And units of local self-government are reduced to a para-babel mechanisms, what with a pyramid of officialdom above them. The core of Shri Tarkundes argument, even though rejected in legal terms by force of precedents, has a realistic touch to the effect that municipal administration in the matter of taxation, if taken over by Government as under s. 90(5) of the Act, becomes administration by the barrel of the Secretariat pen. The doctrine of delegation, in its extreme positions, is fraught with democracy by proxy of a coterie, of which the nation, in its naivete, may not be fully cognizant.Therefore, the system of law-making and performance auditing needs careful, yet radical, re-structuring, if participative, pluralist Government by the People is not to be jettisoned. We have laid down the law and obeyed the precedents but felt it necessary to lay bare briefly the political portents implicit in the extent law, for action by the national leadership betimes. Who owns and operates India, that is Bharat ? That disturbing interrogation becomes deeply relevant as we debate and decide the jurisprudence of delegation of power and vicarious exercise and so we have pardonably ventured to make heuristic hints and to project new perspectives.
| 0 | 11,477 | 1,531 |
### 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:
out the object and the purposes of the Acts and to use the Commissioner for Transport as its instrument to fix and recover the licence and permit fees, provided it preserved its own capacity intact and retained perfect control over him; that as it could at any time repeal the legislation and withdraw such authority and discretion as it had vested in him, it had not assigned, transferred or abrogated its sovereign power to levy taxes, nor had it renounced or abdicated its responsibilities in favour of a newly created legislative authority and that, accordingly, the two Acts were valid, Lord Morris of Borth-y-Gest said:"What they (the legislature) created by the passing of the Transport Acts could not reasonably be described as a new legislative power or separate legislative body armed with general legislative authority (see R. v. Burah, 1978) A.C. 889). Nor did the Queensland Legislatare create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence (see In re the Initiative and Referendum Act (1919) A.C. 945 at 946)." 31. The point to be emphasised-and this is rather crucial- is the statement of their Lordships that the legislature preserved its capacity intact and retained perfect control over the Commissioner for Transport inasmuch as it could at any time repeal the legislation and with draw the authority and discretion it had vested in him, and, therefore, the legislature did not abdicate its functions. The proposition so stated is very wide and sweeping. By that standard, there is nothing unconstitutional about s. 90(5) of the Act. 32. In the course of the argument certain observations of this Court were read to the effect that there was always a check by the courts on unconstitutional misuse of delegated power and that, in itself with out more, was good enough to make the delegation good. So stated, the proposition may be perhaps too wide to be valid; for any naked delegation may then be sustained by stating that the court is there as the watch-dog. We do not have to go that far in the present case and so we make no final pronouncement on this extension of delegations jurisprudence. We must state, while concluding that Punjab & Haryana High Court has overruled similar contentions on grounds which have our approval [see AIR 1977 P & 297 and 74 PLR (1972) P 149]. 33. We are conscious that constitutional legitimation of unlimited power of delegation to the Executive by the Legislature may, on critical occasions, be subversive of responsible government and erosive of democratic order. That peril prompts us to hint at certain portents to our parliamentary system, not because they are likely new but because society may have to pay the price some day. 34. As a back-drop to this train of thoughts a few statements from a working paper presented by Prof. Upendra Baxi of the Delhi University at a recent seminar may be excerpted:"...law making remains the, more or less, exclusive prerogative of a small cross-section of elites. This necessarily affects both the quality of the law made as well its special communication, acceptance and effectively. It also reinforces the highly centralised system of power. It is time that we considered the desirability and feasibility of building into the law-making processes a substantial amount of public participation." "Peoples participation in the enforcement and implementation of the law is also not actively sought, sponsored or structured by the State....Equally now is the idea that there should be a "social audit" of major legislations by the beneficiaries or, more generally, the consumers of legal justice." "...The situation in regard to delegated legislation the volume of which is immensely greater than that of usual legislation, is even more alarming. The Indian Parliament enacted from the period 1973 to 1977 a total of 302 laws; as against this the total number of statutory orders and rules passed in the same period was approximately 25, 414. Corresponding figures for States and union territories are not just available but the number of rules issued under the delegated legislation powers may well be astronomical......" 35. Plenary powers of law-making are entrusted to elected representatives. But the political government instructed by the bureaucracy, by and large, gets bills through with the aid of the three-line whip. Even otherwise, legislators are some times innocent of legal skills; and complex legislations call for considerable information and instruction. The law-making sequence leaves much to subordinate legislation which, in practical terms, means surrender to the surrogate, viz., the bureaucracy which occupies commanding heights within the Secretariat. The technocracy and the bureaucracy which mostly draft subordinate legislation are perhaps well-meaning and well- informed but insulated from parliamentary audit, isolated from popular pressure and paper-logged most of the time. And units of local self-government are reduced to a para-babel mechanisms, what with a pyramid of officialdom above them. The core of Shri Tarkundes argument, even though rejected in legal terms by force of precedents, has a realistic touch to the effect that municipal administration in the matter of taxation, if taken over by Government as under s. 90(5) of the Act, becomes administration by the barrel of the Secretariat pen. The doctrine of delegation, in its extreme positions, is fraught with democracy by proxy of a coterie, of which the nation, in its naivete, may not be fully cognizant.Therefore, the system of law-making and performance auditing needs careful, yet radical, re-structuring, if participative, pluralist Government by the People is not to be jettisoned. We have laid down the law and obeyed the precedents but felt it necessary to lay bare briefly the political portents implicit in the extent law, for action by the national leadership betimes. Who owns and operates India, that is Bharat ? That disturbing interrogation becomes deeply relevant as we debate and decide the jurisprudence of delegation of power and vicarious exercise and so we have pardonably ventured to make heuristic hints and to project new perspectives. 36.
### Response:
0
### Explanation:
may b e a blind mans buff, not intelligent appreciationSecondly, under s. 90(5) Government acts to augment municipal revenues and so will, understandably, inform itself of the needs of the corporation and, on fiscal economics, o f what the traffic will bear. The statutory strategy also ensures this. First, a directive is given, obviously after considering relevant matters. Only if indifference or intractability is displayed, the fiscal sword of s. 90(5) is unsheathedMoreover, there is overall control by the legislature, sometimes, ineffective, sometimes meaningful. It is familiar knowledge that there are a number of institutionalised means by which the legislature exercises supervision and control over municipal matters. Broadly speaking, they are: (a) through inter-relations, (b) by discussions and debates, (c) by approval or otherwise of rules and orders, and (d) by financial control when the budget is presented. A study of the legislative proceedings in the various States of the country brings out many of these means of control (see Indian Administrative System, edited by Ramesh K. Arora & Co. Chapter 17). In a sense, the general municipal administration comes under fire in the House on many occasions, including during the debate on the Governors Address. Financial control and supervision by the legislators come up when budget proposals which contain allocation for municipal administration are presented to the House and at the time of the Appropriations Bill. Moreover, the Public Accounts Committee, the Estimates Committee and like other bodies also make functional probes into municipal administration-fiscal and other. There may be a big gap between the power of control and its actual exercise but it is also a fact that in a general way the political echelons in Government and the bureaucracy in turn are influenced in their policies by the criticisms of the municipal administration on the floor of the House and through other representations. We cannot, therefore, dismiss the legal position that there is control by the Legislature over Government in its supervision of municipal administration therefore, delegated legislation cannot be said to be uncontrolled or unchecked by the delegator.This discussion is of critical importance in view of the argument put forward by Shri Tarkunde that when Government exercises power under s. 90(6) it is a law unto itself, unbridled and uncontrolled by the Legislature. We may now refer to a few decisions which have been brought to our notice by counsel appearing for the municipal bodies and the State of Punjab to make out that the needs of municipalities and the pressures of local people are within the ken of the State Government and they also respond like municipal bodies and guide themselves in the manner corporations do. More importantly, excessive delegation stands negatived because of legislative control over Government. Even in the Liberty Cinema case, (supra) the control by Government over the municipal administration was relied upon as a policy guideline and it is an a fortiori case if the Government itself takes action, responsible and responsive as it is to the elected representatives of the HouseIn the course of the argument certain observations of this Court were read to the effect that there was always a check by the courts on unconstitutional misuse of delegated power and that, in itself with out more, was good enough to make the delegation good. So stated, the proposition may be perhaps too wide to be valid; for any naked delegation may then be sustained by stating that the court is there as the watch-dog. We do not have to go that far in the present case and so we make no final pronouncement on this extension of delegations jurisprudenceWe must state, while concluding that Punjab & Haryana High Court has overruled similar contentions on grounds which have our approval [see AIR 1977 P & 297 and 74 PLR (1972) P 149]We are conscious that constitutional legitimation of unlimited power of delegation to the Executive by the Legislature may, on critical occasions, be subversive of responsible government and erosive of democratic order. That peril prompts us to hint at certain portents to our parliamentary system, not because they are likely new but because society may have to pay the price some dayPlenary powers of law-making are entrusted to elected representatives. But the political government instructed by the bureaucracy, by and large, gets bills through with the aid of the three-line whip. Even otherwise, legislators are some times innocent of legal skills; and complex legislations call for considerable information and instruction. The law-making sequence leaves much to subordinate legislation which, in practical terms, means surrender to the surrogate, viz., the bureaucracy which occupies commanding heights within the Secretariat. The technocracy and the bureaucracy which mostly draft subordinate legislation are perhaps well-meaning and well- informed but insulated from parliamentary audit, isolated from popular pressure and paper-logged most of the time. And units of local self-government are reduced to a para-babel mechanisms, what with a pyramid of officialdom above them. The core of Shri Tarkundes argument, even though rejected in legal terms by force of precedents, has a realistic touch to the effect that municipal administration in the matter of taxation, if taken over by Government as under s. 90(5) of the Act, becomes administration by the barrel of the Secretariat pen. The doctrine of delegation, in its extreme positions, is fraught with democracy by proxy of a coterie, of which the nation, in its naivete, may not be fully cognizant.Therefore, the system of law-making and performance auditing needs careful, yet radical, re-structuring, if participative, pluralist Government by the People is not to be jettisoned. We have laid down the law and obeyed the precedents but felt it necessary to lay bare briefly the political portents implicit in the extent law, for action by the national leadership betimes. Who owns and operates India, that is Bharat ? That disturbing interrogation becomes deeply relevant as we debate and decide the jurisprudence of delegation of power and vicarious exercise and so we have pardonably ventured to make heuristic hints and to project new perspectives.
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M/S. Harish Chandra & Company Vs. State Of U.P. Thr. Superintending Eng
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evidence. It was not permissible in law; Thirdly, the High Court should have confined its inquiry to find out as to whether any legal misconduct was committed by the arbitrator and, if so, how and in what manner. It was, however, not done; Fourthly, the High Court went into the factual question by referring to clause 26 of the agreement for holding that the arbitrator passed an award contrary to clause 26 and thereby traveled beyond the terms of agreement which constituted a legal misconduct on his part. This finding, in our view, is, on the face of it, untenable in law for the reason, inter alia, that this objection was neither raised before the arbitrator and nor before the Trial Court in the manner in which it was raised for the first time in the High Court. In any event, in the absence of any finding recorded by the arbitrator and the Trial Court, such issue could not have been gone into for the first time in appeal by the High Court. That apart, it has otherwise no substance on facts for the simple reason that it being a question of fact, the same could not be examined in appeal; Fifthly, the High Court failed to see that clause 26 only prohibits the appellant from assigning the agreement to any third person. Clause 26, therefore, had nothing to do with the claims filed by the appellants. It was an admitted fact that the appellant did not assign the agreement to any third person. If some work was got done by the appellant by employing some small contractor then it did not constitute a case of assignment of a whole agreement in favour of small contractors within the meaning of clause 26 so as to empower the State to cancel the agreement on such ground. The finding of the High Court that the award is rendered bad because it was passed in contravention of clause 26 of the agreement is, therefore, not legally sustainable in law; Sixthly, the High Court further failed to see that there was no error apparent on the face of the record in the findings recorded by the arbitrator; Seventhly, the High Court also failed to see that the Trial Court had elaborately gone into all the factual issues and rightly did not find any substance in the objections raised by the respondent; and lastly, the award being a reasoned one (running into 36 pages-Annexure P5 pages 127-163 of the SLP paper book), the reasoning of the arbitrator could not be said to be perverse to the extent that no man with ordinary prudence could take such view and nor any finding of the arbitrator was against any provision of law or in contravention of any of the clauses of the agreement so as to constitute a case of legal misconduct on the part of the arbitrator within the meaning of Section 30 of the Act for setting aside an award. 38) We, on perusal of the award, find that the main claim of the appellant (claimant) against the State was claim No. 12 which was in relation to the work done by the appellant of breaking of large pieces of hard rock from 9.00 Km to 9.80 Km distance. Since the respondent (State) disputed the appellants claim on various factual grounds and hence the issue centered around to the questions as to whether the appellant did this work and, if so, how and in what manner and to what extent and lastly, what should be the rate at which the appellant should be paid, if it is held that the appellant has done the work. 39) The arbitrator in Paras 19 to 36 of the award examined these issues on the basis of the evidence adduced by the parties and held that the appellant has done the work in question and, therefore, they were entitled to claim its price for the work done. Though the appellant, in their claim petition, claimed the money at the rate of Rs.30 per Cu M but the arbitrator did not accept the rates claimed by the appellant and instead awarded the amount to the appellant at the rate of Rs.12.97 per Cu.M. 40) So far as claim No. 13 was concerned, it pertained to interest claimed by the appellant on their some amount whereas the claim No. 17 was in relation to some deductions already made by the respondent in the appellants bills for certain work done under the agreement. 41) In our considered view, it is clear from the facts of the case that the claims made by the appellant were essentially based on facts. They were accordingly probed on oral and documentary evidence adduced by the parties, which resulted in partial success of 3 claims in appellants favour and rejection of 3 claims. So far as the State is concerned, they did not pursue their counter claim consequent upon its rejection by the arbitrator. 42) We have not been able to notice any kind of perversity in the arbitrators reasoning and nor are we able to notice any kind of apparent error whether legal or otherwise in the award which may constitute a case of any legal misconduct on the part of the arbitrator empowering the Court to set aside the award by taking recourse to Section 30 of the Act. The reasoning and the conclusion arrived at by the arbitrator is one of the possible view which is capable of being taken by the arbitrator on the material brought on record and we find no legal ground to set it aside the same. 43) Learned counsel for the respondent made sincere attempt to support the reasoning and the conclusion reached by the High Court but in the light of what we have discussed above, we can not accept any of his submissions. 44) In the light of foregoing discussion, we are unable to concur with the reasoning and the conclusion arrived at by the High Court.
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1[ds]41) In our considered view, it is clear from the facts of the case that the claims made by the appellant were essentially based on facts. They were accordingly probed on oral and documentary evidence adduced by the parties, which resulted in partial success of 3 claims in appellants favour and rejection of 3 claims. So far as the State is concerned, they did not pursue their counter claim consequent upon its rejection by the arbitrator42) We have not been able to notice any kind of perversity in the arbitrators reasoning and nor are we able to notice any kind of apparent error whether legal or otherwise in the award which may constitute a case of any legal misconduct on the part of the arbitrator empowering the Court to set aside the award by taking recourse to Section 30 of the Act. The reasoning and the conclusion arrived at by the arbitrator is one of the possible view which is capable of being taken by the arbitrator on the material brought on record and we find no legal ground to set it aside the samewe are unable to concur with the reasoning and the conclusion arrived at by the High Court
| 1 | 4,886 | 213 |
### 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:
evidence. It was not permissible in law; Thirdly, the High Court should have confined its inquiry to find out as to whether any legal misconduct was committed by the arbitrator and, if so, how and in what manner. It was, however, not done; Fourthly, the High Court went into the factual question by referring to clause 26 of the agreement for holding that the arbitrator passed an award contrary to clause 26 and thereby traveled beyond the terms of agreement which constituted a legal misconduct on his part. This finding, in our view, is, on the face of it, untenable in law for the reason, inter alia, that this objection was neither raised before the arbitrator and nor before the Trial Court in the manner in which it was raised for the first time in the High Court. In any event, in the absence of any finding recorded by the arbitrator and the Trial Court, such issue could not have been gone into for the first time in appeal by the High Court. That apart, it has otherwise no substance on facts for the simple reason that it being a question of fact, the same could not be examined in appeal; Fifthly, the High Court failed to see that clause 26 only prohibits the appellant from assigning the agreement to any third person. Clause 26, therefore, had nothing to do with the claims filed by the appellants. It was an admitted fact that the appellant did not assign the agreement to any third person. If some work was got done by the appellant by employing some small contractor then it did not constitute a case of assignment of a whole agreement in favour of small contractors within the meaning of clause 26 so as to empower the State to cancel the agreement on such ground. The finding of the High Court that the award is rendered bad because it was passed in contravention of clause 26 of the agreement is, therefore, not legally sustainable in law; Sixthly, the High Court further failed to see that there was no error apparent on the face of the record in the findings recorded by the arbitrator; Seventhly, the High Court also failed to see that the Trial Court had elaborately gone into all the factual issues and rightly did not find any substance in the objections raised by the respondent; and lastly, the award being a reasoned one (running into 36 pages-Annexure P5 pages 127-163 of the SLP paper book), the reasoning of the arbitrator could not be said to be perverse to the extent that no man with ordinary prudence could take such view and nor any finding of the arbitrator was against any provision of law or in contravention of any of the clauses of the agreement so as to constitute a case of legal misconduct on the part of the arbitrator within the meaning of Section 30 of the Act for setting aside an award. 38) We, on perusal of the award, find that the main claim of the appellant (claimant) against the State was claim No. 12 which was in relation to the work done by the appellant of breaking of large pieces of hard rock from 9.00 Km to 9.80 Km distance. Since the respondent (State) disputed the appellants claim on various factual grounds and hence the issue centered around to the questions as to whether the appellant did this work and, if so, how and in what manner and to what extent and lastly, what should be the rate at which the appellant should be paid, if it is held that the appellant has done the work. 39) The arbitrator in Paras 19 to 36 of the award examined these issues on the basis of the evidence adduced by the parties and held that the appellant has done the work in question and, therefore, they were entitled to claim its price for the work done. Though the appellant, in their claim petition, claimed the money at the rate of Rs.30 per Cu M but the arbitrator did not accept the rates claimed by the appellant and instead awarded the amount to the appellant at the rate of Rs.12.97 per Cu.M. 40) So far as claim No. 13 was concerned, it pertained to interest claimed by the appellant on their some amount whereas the claim No. 17 was in relation to some deductions already made by the respondent in the appellants bills for certain work done under the agreement. 41) In our considered view, it is clear from the facts of the case that the claims made by the appellant were essentially based on facts. They were accordingly probed on oral and documentary evidence adduced by the parties, which resulted in partial success of 3 claims in appellants favour and rejection of 3 claims. So far as the State is concerned, they did not pursue their counter claim consequent upon its rejection by the arbitrator. 42) We have not been able to notice any kind of perversity in the arbitrators reasoning and nor are we able to notice any kind of apparent error whether legal or otherwise in the award which may constitute a case of any legal misconduct on the part of the arbitrator empowering the Court to set aside the award by taking recourse to Section 30 of the Act. The reasoning and the conclusion arrived at by the arbitrator is one of the possible view which is capable of being taken by the arbitrator on the material brought on record and we find no legal ground to set it aside the same. 43) Learned counsel for the respondent made sincere attempt to support the reasoning and the conclusion reached by the High Court but in the light of what we have discussed above, we can not accept any of his submissions. 44) In the light of foregoing discussion, we are unable to concur with the reasoning and the conclusion arrived at by the High Court.
### Response:
1
### Explanation:
41) In our considered view, it is clear from the facts of the case that the claims made by the appellant were essentially based on facts. They were accordingly probed on oral and documentary evidence adduced by the parties, which resulted in partial success of 3 claims in appellants favour and rejection of 3 claims. So far as the State is concerned, they did not pursue their counter claim consequent upon its rejection by the arbitrator42) We have not been able to notice any kind of perversity in the arbitrators reasoning and nor are we able to notice any kind of apparent error whether legal or otherwise in the award which may constitute a case of any legal misconduct on the part of the arbitrator empowering the Court to set aside the award by taking recourse to Section 30 of the Act. The reasoning and the conclusion arrived at by the arbitrator is one of the possible view which is capable of being taken by the arbitrator on the material brought on record and we find no legal ground to set it aside the samewe are unable to concur with the reasoning and the conclusion arrived at by the High Court
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Saila Bala Dassi Vs. Nirmala Sundari Dassi & Another
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proceedings, which would be obnoxious to some provision of the Code.It would follow from the above authorities that whoever is entitled to be but has not been brought on record under O. 22, R. 10 in a pending suit or proceeding would be entitled to prefer an appeal against the decree or order passed therein if his assignor could have filed such an appeal, there being no prohibition against it in the Code,and that accordingly the appellant as an assignee of the second respondent of the mortgaged properties would have been entitled to prefer an appeal against the judgment of P. B. Mukharji, J.8. It is next contended that S. 146 authorises only the initiation of any proceeding, and that thought it would have been competent to the appellant to have preferred an appeal against the judgment of P. B. Mukharji, J., she not having done so was not entitled to be brought on record as an appellant to continue the appeal preferred by the second respondent. We are not disposed to construe S. 146 narrowly in the manner contended for by counsel for the first respondent. That section was introduced for the first time in the Civil Procedure Code, 1908 with the object of facilitating the exercise of rights by persons in whom they come to be vested by devolution or assignment, and being a beneficent provision should be construed liberally and so as to advance justice and not in a restricted or technical sense. It has been held by a Full Bench of the Madras High Court in Muthiah Chettiar v. Govinddoss Krishnadoss, ILR 44 Mad 919 : (AIR 1921 Mad 599 ) (E) that the assignee of a part of a decree is entitled to continue an execution application filed by the transfereor-decreeholder. Vide also Moidin Kutty v. Dorai swami, ILR (1952) Mad 622): (AIR 1952 Mad 51 ) (F).The right to file an appeal must therefore be held to carry with it the right to continue an appeal which had been filed by the person under whom the applicant claims,and the petition of the appellant to be brought on record as an appellant in Appeal No. 152 of 1955 must be held to be maintainable under S. 146.9. It remains to consider whether, on the merits, there should be an order in favour of the appellant. Of that, we have no doubt whatsoever. The proceedings in which she seeks to intervene arise in execution of a mortgage decree. She has purchased the properties comprised in the decree for Rs. 60,000 under a covenant that they are free from encumbrances. And after her purchase, the first respondent has started proceedings for sale of the properties, nearly 18 years after the decree had been passed. The appellant maintains that the execution proceedings are barred by limitation, and desires to be heard on that question. It is true that P. B. Mukharji, J., has rejected this contention, but a reading of his judgment shows - and that is what he himself observes - that there are substantial questions of law calling for decision. Even apart from the plea of limitation, there is also a question as to the amount payable in discharge and satisfaction of the decree obtained by the first respondent in Suit No. 158 of 1935. Both the respondents claim that they have settled it at Rs. 17,670. But it is stated for the appellant that under the decree which is sought to be executed the amount recoverable for principal and interest will not exceed Rs. 6,000. In the affidavit of Sanjit Kumar Ghose dated December 20, 1956, filed on behalf of the first respondent, particulars are given as to how the sum of Rs. 17,670 was made up. It will be seen there from that a sum of Rs. 7,200 is claimed for interest upto March 8, 1956, calculating it not at the rate provided in the final decree but at the contract rate. Then a sum of Rs. 5,000 is included as for costs incurred by the mortgagee in suits other than Suit No. 158 of 1935 and in proceedings connected therewith. The appellant contends that the properties in her hands could, under no circumstances, be made liable for this amount. A sum of Rs. 1,750 is agreed to be paid for costs in the sale reference, in the proceedings before P. B. Mukharji, J., and in Appeal No. 152 of 1955. Asks the appellant, where is the settlement in this, and how can it bind me? It is obvious that there are several substantial questions arising for determination in which the appellant as purchaser of the properties is vitally interested, and indeed is the only person interested.As a purchaser pendente lite, she will be bound by the proceedings taken by the first respondent in execution of her decree, and justice requires that has would be given an opportunity to protest her rights.10. We accordingly set aside the order of the Court below dated August 6, 1956 and direct that the appellant be brought on record as additional appellant in Appeal No. 152 of 1955. As Sudhir Kumar Mitter, the appellant now on record, has dropped the fight with the first respondent, we conceive that no embarrassment will result in there being on record two appellants with conflicting interest.But, in any event, the Court can, if necessary, take action suo motu either under O. 1, R. 10 or in its inherent jurisdiction and transpose Sudhir Kumar Mitter as second respondent in the appeal,as was done in In re Mathews; Oates v. Mooney, 1905-2 Ch. 460 (G), and Vanjiappa Goundan v. Annamalai Chettiar, 1939-2 Mad LJ 551: (AIR 1940 Mad 69 ) (H). As for costs, the appellant should, in terms of the order of this Court granting her leave to appeal, pay the contesting respondent her costs in this appeal. The costs of and incidental to the application in Appeal No. 152 of 1955 in the High Court will abide the result of that appeal.
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1[ds]It would follow from the above authorities that whoever is entitled to be but has not been brought on record under O. 22, R. 10 in a pending suit or proceeding would be entitled to prefer an appeal against the decree or order passed therein if his assignor could have filed such an appeal, there being no prohibition against it in the Code,and that accordingly the appellant as an assignee of the second respondent of the mortgaged properties would have been entitled to prefer an appeal against the judgment of P. B. Mukharji,our opinion, the application filed by the appellant falls with in S. 146 of the Civil Procedure Code, and she is entitled to be brought on record under that section.It is next contended that S. 146 authorises only the initiation of any proceeding, and that thought it would have been competent to the appellant to have preferred an appeal against the judgment of P. B. Mukharji, J., she not having done so was not entitled to be brought on record as an appellant to continue the appeal preferred by the secondrespondent. We are not disposed to construe S. 146 narrowly in the manner contended for by counsel for the first respondent. That section was introduced for the first time in the Civil Procedure Code, 1908 with the object of facilitating the exercise of rights by persons in whom they come to be vested by devolution or assignment, and being a beneficent provision should be construed liberally and so as to advance justice and not in a restricted or technical sense. It has been held by a Full Bench of the Madras High Court in Muthiah Chettiar v. Govinddoss Krishnadoss, ILR 44 Mad 919 : (AIR 1921 Mad 599 ) (E) that the assignee of a part of a decree is entitled to continue an execution application filed by theVide also Moidin Kutty v. Dorai swami, ILR (1952) Mad 622): (AIR 1952 Mad 51 ) (F).The right to file an appeal must therefore be held to carry with it the right to continue an appeal which had been filed by the person under whom the applicant claims,and the petition of the appellant to be brought on record as an appellant in Appeal No. 152 of 1955 must be held to be maintainable under S.is obvious that there are several substantial questions arising for determination in which the appellant as purchaser of the properties is vitally interested, and indeed is the only person interested.As a purchaser pendente lite, she will be bound by the proceedings taken by the first respondent in execution of her decree, and justice requires that has would be given an opportunity to protest her rights.10. We accordingly set aside the order of the Court below dated August 6, 1956 and direct that the appellant be brought on record as additional appellant in Appeal No. 152 of 1955. As Sudhir Kumar Mitter, the appellant now on record, has dropped the fight with the first respondent, we conceive that no embarrassment will result in there being on record two appellants with conflicting interest.But, in any event, the Court can, if necessary, take action suo motu either under O. 1, R. 10 or in its inherent jurisdiction and transpose Sudhir Kumar Mitter as second respondent in the appeal,as was done in In re Mathews; Oates v. Mooney,Ch. 460 (G), and Vanjiappa Goundan v. Annamalai Chettiar,Mad LJ 551: (AIR 1940 Mad 69 ) (H). As for costs, the appellant should, in terms of the order of this Court granting her leave to appeal, pay the contesting respondent her costs in this appeal. The costs of and incidental to the application in Appeal No. 152 of 1955 in the High Court will abide the result of that appeal.
| 1 | 2,712 | 702 |
### 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:
proceedings, which would be obnoxious to some provision of the Code.It would follow from the above authorities that whoever is entitled to be but has not been brought on record under O. 22, R. 10 in a pending suit or proceeding would be entitled to prefer an appeal against the decree or order passed therein if his assignor could have filed such an appeal, there being no prohibition against it in the Code,and that accordingly the appellant as an assignee of the second respondent of the mortgaged properties would have been entitled to prefer an appeal against the judgment of P. B. Mukharji, J.8. It is next contended that S. 146 authorises only the initiation of any proceeding, and that thought it would have been competent to the appellant to have preferred an appeal against the judgment of P. B. Mukharji, J., she not having done so was not entitled to be brought on record as an appellant to continue the appeal preferred by the second respondent. We are not disposed to construe S. 146 narrowly in the manner contended for by counsel for the first respondent. That section was introduced for the first time in the Civil Procedure Code, 1908 with the object of facilitating the exercise of rights by persons in whom they come to be vested by devolution or assignment, and being a beneficent provision should be construed liberally and so as to advance justice and not in a restricted or technical sense. It has been held by a Full Bench of the Madras High Court in Muthiah Chettiar v. Govinddoss Krishnadoss, ILR 44 Mad 919 : (AIR 1921 Mad 599 ) (E) that the assignee of a part of a decree is entitled to continue an execution application filed by the transfereor-decreeholder. Vide also Moidin Kutty v. Dorai swami, ILR (1952) Mad 622): (AIR 1952 Mad 51 ) (F).The right to file an appeal must therefore be held to carry with it the right to continue an appeal which had been filed by the person under whom the applicant claims,and the petition of the appellant to be brought on record as an appellant in Appeal No. 152 of 1955 must be held to be maintainable under S. 146.9. It remains to consider whether, on the merits, there should be an order in favour of the appellant. Of that, we have no doubt whatsoever. The proceedings in which she seeks to intervene arise in execution of a mortgage decree. She has purchased the properties comprised in the decree for Rs. 60,000 under a covenant that they are free from encumbrances. And after her purchase, the first respondent has started proceedings for sale of the properties, nearly 18 years after the decree had been passed. The appellant maintains that the execution proceedings are barred by limitation, and desires to be heard on that question. It is true that P. B. Mukharji, J., has rejected this contention, but a reading of his judgment shows - and that is what he himself observes - that there are substantial questions of law calling for decision. Even apart from the plea of limitation, there is also a question as to the amount payable in discharge and satisfaction of the decree obtained by the first respondent in Suit No. 158 of 1935. Both the respondents claim that they have settled it at Rs. 17,670. But it is stated for the appellant that under the decree which is sought to be executed the amount recoverable for principal and interest will not exceed Rs. 6,000. In the affidavit of Sanjit Kumar Ghose dated December 20, 1956, filed on behalf of the first respondent, particulars are given as to how the sum of Rs. 17,670 was made up. It will be seen there from that a sum of Rs. 7,200 is claimed for interest upto March 8, 1956, calculating it not at the rate provided in the final decree but at the contract rate. Then a sum of Rs. 5,000 is included as for costs incurred by the mortgagee in suits other than Suit No. 158 of 1935 and in proceedings connected therewith. The appellant contends that the properties in her hands could, under no circumstances, be made liable for this amount. A sum of Rs. 1,750 is agreed to be paid for costs in the sale reference, in the proceedings before P. B. Mukharji, J., and in Appeal No. 152 of 1955. Asks the appellant, where is the settlement in this, and how can it bind me? It is obvious that there are several substantial questions arising for determination in which the appellant as purchaser of the properties is vitally interested, and indeed is the only person interested.As a purchaser pendente lite, she will be bound by the proceedings taken by the first respondent in execution of her decree, and justice requires that has would be given an opportunity to protest her rights.10. We accordingly set aside the order of the Court below dated August 6, 1956 and direct that the appellant be brought on record as additional appellant in Appeal No. 152 of 1955. As Sudhir Kumar Mitter, the appellant now on record, has dropped the fight with the first respondent, we conceive that no embarrassment will result in there being on record two appellants with conflicting interest.But, in any event, the Court can, if necessary, take action suo motu either under O. 1, R. 10 or in its inherent jurisdiction and transpose Sudhir Kumar Mitter as second respondent in the appeal,as was done in In re Mathews; Oates v. Mooney, 1905-2 Ch. 460 (G), and Vanjiappa Goundan v. Annamalai Chettiar, 1939-2 Mad LJ 551: (AIR 1940 Mad 69 ) (H). As for costs, the appellant should, in terms of the order of this Court granting her leave to appeal, pay the contesting respondent her costs in this appeal. The costs of and incidental to the application in Appeal No. 152 of 1955 in the High Court will abide the result of that appeal.
### Response:
1
### Explanation:
It would follow from the above authorities that whoever is entitled to be but has not been brought on record under O. 22, R. 10 in a pending suit or proceeding would be entitled to prefer an appeal against the decree or order passed therein if his assignor could have filed such an appeal, there being no prohibition against it in the Code,and that accordingly the appellant as an assignee of the second respondent of the mortgaged properties would have been entitled to prefer an appeal against the judgment of P. B. Mukharji,our opinion, the application filed by the appellant falls with in S. 146 of the Civil Procedure Code, and she is entitled to be brought on record under that section.It is next contended that S. 146 authorises only the initiation of any proceeding, and that thought it would have been competent to the appellant to have preferred an appeal against the judgment of P. B. Mukharji, J., she not having done so was not entitled to be brought on record as an appellant to continue the appeal preferred by the secondrespondent. We are not disposed to construe S. 146 narrowly in the manner contended for by counsel for the first respondent. That section was introduced for the first time in the Civil Procedure Code, 1908 with the object of facilitating the exercise of rights by persons in whom they come to be vested by devolution or assignment, and being a beneficent provision should be construed liberally and so as to advance justice and not in a restricted or technical sense. It has been held by a Full Bench of the Madras High Court in Muthiah Chettiar v. Govinddoss Krishnadoss, ILR 44 Mad 919 : (AIR 1921 Mad 599 ) (E) that the assignee of a part of a decree is entitled to continue an execution application filed by theVide also Moidin Kutty v. Dorai swami, ILR (1952) Mad 622): (AIR 1952 Mad 51 ) (F).The right to file an appeal must therefore be held to carry with it the right to continue an appeal which had been filed by the person under whom the applicant claims,and the petition of the appellant to be brought on record as an appellant in Appeal No. 152 of 1955 must be held to be maintainable under S.is obvious that there are several substantial questions arising for determination in which the appellant as purchaser of the properties is vitally interested, and indeed is the only person interested.As a purchaser pendente lite, she will be bound by the proceedings taken by the first respondent in execution of her decree, and justice requires that has would be given an opportunity to protest her rights.10. We accordingly set aside the order of the Court below dated August 6, 1956 and direct that the appellant be brought on record as additional appellant in Appeal No. 152 of 1955. As Sudhir Kumar Mitter, the appellant now on record, has dropped the fight with the first respondent, we conceive that no embarrassment will result in there being on record two appellants with conflicting interest.But, in any event, the Court can, if necessary, take action suo motu either under O. 1, R. 10 or in its inherent jurisdiction and transpose Sudhir Kumar Mitter as second respondent in the appeal,as was done in In re Mathews; Oates v. Mooney,Ch. 460 (G), and Vanjiappa Goundan v. Annamalai Chettiar,Mad LJ 551: (AIR 1940 Mad 69 ) (H). As for costs, the appellant should, in terms of the order of this Court granting her leave to appeal, pay the contesting respondent her costs in this appeal. The costs of and incidental to the application in Appeal No. 152 of 1955 in the High Court will abide the result of that appeal.
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LOVELEEN KUMAR Vs. STATE OF HARYANA
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a few years, that is, up to four to five years. Beyond that it may be unsafe, even if it relates to a neighbouring land. What may be a reliable standard if the gap is of only a few years, may become unsafe and unreliable standard where the gap is larger. For example, for determining the market value of a land acquired in 1992, adopting the annual increase method with reference to a sale or acquisition in 1970 or 1980 may have many pitfalls. This is because, over the course of years, the rate of annual increase may itself undergo drastic change apart from the likelihood of occurrence of varying periods of stagnation in prices or sudden spurts in prices affecting the very standard of increase. In addition to this, the land in the case of Ashrafi (supra) was very small as compared to the acquisition on hand. The award passed in that matter cannot be taken into consideration as a comparable factor while awarding compensation in this matter which involves more than 229 acres of land. The award that had been relied upon was passed keeping in mind the price as prevailed in the year 1995 in Ashrafis matter (supra), that too for a small commercial area. As there is a huge time gap between the acquisition in Ashrafi (supra) and the present one, and the land in Ashrafi (supra) was much smaller, Ashrafi (supra) cannot be a safe criterion to assess compensation in this case, and more so in view of the ample evidence available on record. The Court cannot lose sight of the facts and the documents. This Court in the case of Special Land Acquisition Officer v. Karigowda & Ors., (2010) 5 SCC 708 discussed the burden upon each party in reference and held that each case must be examined on its own facts. It held as follows: 28. We may notice that Part III provides for procedure and rights of the claimants to receive compensation for acquisition of their land and also states various legal remedies which are available to them under the scheme of the Act. Under Section 18 of the Act, the Reference Court determines the quantum of compensation payable to the claimants. Section 23 provides guidelines, which would be taken into consideration by the court of competent jurisdiction while determining the compensation to be awarded for the acquired land. Section 24 of the Act is a negative provision and states what should not be considered by the court while determining the compensation. In other words, Sections 23 and 24 of the Act provide a complete scheme which can safely be termed as statutory guidelines and factors which are to be considered or not to be considered by the court while determining the market value of the acquired land. These provisions provide a limitation within which the court has to exercise its judicial discretion while ensuring that the claimants get a fair market value of the acquired land with statutory and permissible benefits. Keeping in view the scheme of the Act and the interpretation which these provisions have received in the past, it is difficult even to comprehend that there is possibility of providing any straitjacket formula which can be treated as panacea to resolve all controversies uniformly, in relation to determination of the value of the acquired land. This essentially must depend upon the facts and circumstances of each case. 29. It is a settled principle of law that the onus to prove entitlement to receive higher compensation is upon the claimants. In Basant Kumar v. Union of India [(1996) 11 SCC 542] this Court held that the claimants are expected to lead cogent and proper evidence in support of their claim. Onus primarily is on the claimants, which they can discharge while placing and proving on record sale instances and/or such other evidences as they deem proper, keeping in mind the method of computation for awarding of compensation which they rely upon. In this very case, this Court stated the principles of awarding compensation and placed the matter beyond ambiguity, while also capsulating the factors regulating the discretion of the Court while awarding the compensation. This principle was reiterated by this Court even in Gafar v. Moradabad Development Authority [(2007) 7 SCC 614] and the Court held as under: (SCC p. 620, para 12) 12. As held by this Court in various decisions, the burden is on the claimants to establish that the amounts awarded to them by the Land Acquisition Officer are inadequate and that they are entitled to more. That burden had to be discharged by the claimants and only if the initial burden in that behalf was discharged, the burden shifted to the State to justify the award. Thus, the onus being primarily upon the claimants, they are expected to lead evidence to revert the same, if they so desire. In other words, it cannot be said that there is no onus whatsoever upon the State in such reference proceedings. The court cannot lose sight of the facts and clear position of documents, that obligation to pay fair compensation is on the State in its absolute terms. Every case has to be examined on its own facts and the courts are expected to scrutinise the evidence led by the parties in such proceedings. Moreover, it was brought to our notice that the land is acquired mainly for the purpose of a residential colony, and about 5% commercial area to cater to the needs of such residential colony will also be built. Be that as it may, since the reasons assigned by the High Court while coming to the conclusion were assigned solely on the basis of Ashrafi (supra), and as the evidence on record adduced by both the parties was not considered, much less properly considered, the matter, in our opinion, needs reconsideration by the High Court in as much as the High Court in such matters would be the last Court to decide the matter on facts.
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1[ds]7. Having gone through the material on record and after considering the arguments of the advocates, we are of the opinion that the Reference Court, as well as the High Court, have not considered the sale deeds produced on behalf of the State for determination of compensation. A chart of the sale deeds on record filed before us by the learned advocates appearing on behalf of the State reveals prima facie the value of certain lands involved in those sale deeds. The site plan of the village Hansi depicts such sold patches as being in the middle of the acquired land. The lands in all the sale deeds shown alongside the plan are in close proximity and adjoining to the land acquired under the Section 4 notification of the present case. There is no reason as to why the High Court, while coming to its conclusion, has not referred to the sale statistics. If the sale statistics are to be ignored, the High Court should have furnished reasons for doing so.8. The High Court has mainly relied upon Ashrafi (supra) for coming to its conclusion. In our considered opinion, the method of granting compensation on the basis of cumulative increase as done was not permissible in the facts of the case, in view of the sale deeds produced. The method of working out compensation without considering the evidence on record cannot be said to be justifiable. The land in Ashrafi (supra) was acquired in the year 1995 and was very small. It was for a commercial purpose. In the matter on hand, the land was acquired in the year 2005. Thus, there is a gap of about 10 years between the two acquisitions. Relying on such an acquisition of a decade ago may be unsafe. This Court in the case of ONGC Ltd. v. Rameshbhai Jivanbhai Patel, (2008) 14 SCC 745 observed that a transaction or acquisition over five years before the present acquisition is an unreliable standard. It held as follows:15. Normally, recourse is taken to the mode of determining the market value by providing appropriate escalation over the proved market value of nearby lands in previous years (as evidenced by sale transactions or acquisitions), where there is no evidence of any contemporaneous sale transactions or acquisitions of comparable lands in the neighbourhood. The said method is reasonably safe where the relied-on sale transactions/acquisitions precede the subject acquisition by only a few years, that is, up to four to five years. Beyond that it may be unsafe, even if it relates to a neighbouring land. What may be a reliable standard if the gap is of only a few years, may become unsafe and unreliable standard where the gap is larger. For example, for determining the market value of a land acquired in 1992, adopting the annual increase method with reference to a sale or acquisition in 1970 or 1980 may have many pitfalls. This is because, over the course of years, the rate of annual increase may itself undergo drastic change apart from the likelihood of occurrence of varying periods of stagnation in prices or sudden spurts in prices affecting the very standard of increase.In addition to this, the land in the case of Ashrafi (supra) was very small as compared to the acquisition on hand. The award passed in that matter cannot be taken into consideration as a comparable factor while awarding compensation in this matter which involves more than 229 acres of land. The award that had been relied upon was passed keeping in mind the price as prevailed in the year 1995 in Ashrafis matter (supra), that too for a small commercial area. As there is a huge time gap between the acquisition in Ashrafi (supra) and the present one, and the land in Ashrafi (supra) was much smaller, Ashrafi (supra) cannot be a safe criterion to assess compensation in this case, and more so in view of the ample evidence available on record. The Court cannot lose sight of the facts and the documents. This Court in the case of Special Land Acquisition Officer v. Karigowda & Ors., (2010) 5 SCC 708 discussed the burden upon each party in reference and held that each case must be examined on its own facts. It held as follows:28. We may notice that Part III provides for procedure and rights of the claimants to receive compensation for acquisition of their land and also states various legal remedies which are available to them under the scheme of the Act. Under Section 18 of the Act, the Reference Court determines the quantum of compensation payable to the claimants. Section 23 provides guidelines, which would be taken into consideration by the court of competent jurisdiction while determining the compensation to be awarded for the acquired land. Section 24 of the Act is a negative provision and states what should not be considered by the court while determining the compensation. In other words, Sections 23 and 24 of the Act provide a complete scheme which can safely be termed as statutory guidelines and factors which are to be considered or not to be considered by the court while determining the market value of the acquired land. These provisions provide a limitation within which the court has to exercise its judicial discretion while ensuring that the claimants get a fair market value of the acquired land with statutory and permissible benefits. Keeping in view the scheme of the Act and the interpretation which these provisions have received in the past, it is difficult even to comprehend that there is possibility of providing any straitjacket formula which can be treated as panacea to resolve all controversies uniformly, in relation to determination of the value of the acquired land. This essentially must depend upon the facts and circumstances of each case.29. It is a settled principle of law that the onus to prove entitlement to receive higher compensation is upon the claimants. In Basant Kumar v. Union of India [(1996) 11 SCC 542] this Court held that the claimants are expected to lead cogent and proper evidence in support of their claim. Onus primarily is on the claimants, which they can discharge while placing and proving on record sale instances and/or such other evidences as they deem proper, keeping in mind the method of computation for awarding of compensation which they rely upon. In this very case, this Court stated the principles of awarding compensation and placed the matter beyond ambiguity, while also capsulating the factors regulating the discretion of the Court while awarding the compensation. This principle was reiterated by this Court even in Gafar v. Moradabad Development Authority [(2007) 7 SCC 614] and the Court held as under: (SCC p. 620, para 12)12. As held by this Court in various decisions, the burden is on the claimants to establish that the amounts awarded to them by the Land Acquisition Officer are inadequate and that they are entitled to more. That burden had to be discharged by the claimants and only if the initial burden in that behalf was discharged, the burden shifted to the State to justify the award.Thus, the onus being primarily upon the claimants, they are expected to lead evidence to revert the same, if they so desire. In other words, it cannot be said that there is no onus whatsoever upon the State in such reference proceedings. The court cannot lose sight of the facts and clear position of documents, that obligation to pay fair compensation is on the State in its absolute terms. Every case has to be examined on its own facts and the courts are expected to scrutinise the evidence led by the parties in such proceedings.Moreover, it was brought to our notice that the land is acquired mainly for the purpose of a residential colony, and about 5% commercial area to cater to the needs of such residential colony will also be built. Be that as it may, since the reasons assigned by the High Court while coming to the conclusion were assigned solely on the basis of Ashrafi (supra), and as the evidence on record adduced by both the parties was not considered, much less properly considered, the matter, in our opinion, needs reconsideration by the High Court in as much as the High Court in such matters would be the last Court to decide the matter on facts.
| 1 | 3,090 | 1,540 |
### 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:
a few years, that is, up to four to five years. Beyond that it may be unsafe, even if it relates to a neighbouring land. What may be a reliable standard if the gap is of only a few years, may become unsafe and unreliable standard where the gap is larger. For example, for determining the market value of a land acquired in 1992, adopting the annual increase method with reference to a sale or acquisition in 1970 or 1980 may have many pitfalls. This is because, over the course of years, the rate of annual increase may itself undergo drastic change apart from the likelihood of occurrence of varying periods of stagnation in prices or sudden spurts in prices affecting the very standard of increase. In addition to this, the land in the case of Ashrafi (supra) was very small as compared to the acquisition on hand. The award passed in that matter cannot be taken into consideration as a comparable factor while awarding compensation in this matter which involves more than 229 acres of land. The award that had been relied upon was passed keeping in mind the price as prevailed in the year 1995 in Ashrafis matter (supra), that too for a small commercial area. As there is a huge time gap between the acquisition in Ashrafi (supra) and the present one, and the land in Ashrafi (supra) was much smaller, Ashrafi (supra) cannot be a safe criterion to assess compensation in this case, and more so in view of the ample evidence available on record. The Court cannot lose sight of the facts and the documents. This Court in the case of Special Land Acquisition Officer v. Karigowda & Ors., (2010) 5 SCC 708 discussed the burden upon each party in reference and held that each case must be examined on its own facts. It held as follows: 28. We may notice that Part III provides for procedure and rights of the claimants to receive compensation for acquisition of their land and also states various legal remedies which are available to them under the scheme of the Act. Under Section 18 of the Act, the Reference Court determines the quantum of compensation payable to the claimants. Section 23 provides guidelines, which would be taken into consideration by the court of competent jurisdiction while determining the compensation to be awarded for the acquired land. Section 24 of the Act is a negative provision and states what should not be considered by the court while determining the compensation. In other words, Sections 23 and 24 of the Act provide a complete scheme which can safely be termed as statutory guidelines and factors which are to be considered or not to be considered by the court while determining the market value of the acquired land. These provisions provide a limitation within which the court has to exercise its judicial discretion while ensuring that the claimants get a fair market value of the acquired land with statutory and permissible benefits. Keeping in view the scheme of the Act and the interpretation which these provisions have received in the past, it is difficult even to comprehend that there is possibility of providing any straitjacket formula which can be treated as panacea to resolve all controversies uniformly, in relation to determination of the value of the acquired land. This essentially must depend upon the facts and circumstances of each case. 29. It is a settled principle of law that the onus to prove entitlement to receive higher compensation is upon the claimants. In Basant Kumar v. Union of India [(1996) 11 SCC 542] this Court held that the claimants are expected to lead cogent and proper evidence in support of their claim. Onus primarily is on the claimants, which they can discharge while placing and proving on record sale instances and/or such other evidences as they deem proper, keeping in mind the method of computation for awarding of compensation which they rely upon. In this very case, this Court stated the principles of awarding compensation and placed the matter beyond ambiguity, while also capsulating the factors regulating the discretion of the Court while awarding the compensation. This principle was reiterated by this Court even in Gafar v. Moradabad Development Authority [(2007) 7 SCC 614] and the Court held as under: (SCC p. 620, para 12) 12. As held by this Court in various decisions, the burden is on the claimants to establish that the amounts awarded to them by the Land Acquisition Officer are inadequate and that they are entitled to more. That burden had to be discharged by the claimants and only if the initial burden in that behalf was discharged, the burden shifted to the State to justify the award. Thus, the onus being primarily upon the claimants, they are expected to lead evidence to revert the same, if they so desire. In other words, it cannot be said that there is no onus whatsoever upon the State in such reference proceedings. The court cannot lose sight of the facts and clear position of documents, that obligation to pay fair compensation is on the State in its absolute terms. Every case has to be examined on its own facts and the courts are expected to scrutinise the evidence led by the parties in such proceedings. Moreover, it was brought to our notice that the land is acquired mainly for the purpose of a residential colony, and about 5% commercial area to cater to the needs of such residential colony will also be built. Be that as it may, since the reasons assigned by the High Court while coming to the conclusion were assigned solely on the basis of Ashrafi (supra), and as the evidence on record adduced by both the parties was not considered, much less properly considered, the matter, in our opinion, needs reconsideration by the High Court in as much as the High Court in such matters would be the last Court to decide the matter on facts.
### Response:
1
### Explanation:
by only a few years, that is, up to four to five years. Beyond that it may be unsafe, even if it relates to a neighbouring land. What may be a reliable standard if the gap is of only a few years, may become unsafe and unreliable standard where the gap is larger. For example, for determining the market value of a land acquired in 1992, adopting the annual increase method with reference to a sale or acquisition in 1970 or 1980 may have many pitfalls. This is because, over the course of years, the rate of annual increase may itself undergo drastic change apart from the likelihood of occurrence of varying periods of stagnation in prices or sudden spurts in prices affecting the very standard of increase.In addition to this, the land in the case of Ashrafi (supra) was very small as compared to the acquisition on hand. The award passed in that matter cannot be taken into consideration as a comparable factor while awarding compensation in this matter which involves more than 229 acres of land. The award that had been relied upon was passed keeping in mind the price as prevailed in the year 1995 in Ashrafis matter (supra), that too for a small commercial area. As there is a huge time gap between the acquisition in Ashrafi (supra) and the present one, and the land in Ashrafi (supra) was much smaller, Ashrafi (supra) cannot be a safe criterion to assess compensation in this case, and more so in view of the ample evidence available on record. The Court cannot lose sight of the facts and the documents. This Court in the case of Special Land Acquisition Officer v. Karigowda & Ors., (2010) 5 SCC 708 discussed the burden upon each party in reference and held that each case must be examined on its own facts. It held as follows:28. We may notice that Part III provides for procedure and rights of the claimants to receive compensation for acquisition of their land and also states various legal remedies which are available to them under the scheme of the Act. Under Section 18 of the Act, the Reference Court determines the quantum of compensation payable to the claimants. Section 23 provides guidelines, which would be taken into consideration by the court of competent jurisdiction while determining the compensation to be awarded for the acquired land. Section 24 of the Act is a negative provision and states what should not be considered by the court while determining the compensation. In other words, Sections 23 and 24 of the Act provide a complete scheme which can safely be termed as statutory guidelines and factors which are to be considered or not to be considered by the court while determining the market value of the acquired land. These provisions provide a limitation within which the court has to exercise its judicial discretion while ensuring that the claimants get a fair market value of the acquired land with statutory and permissible benefits. Keeping in view the scheme of the Act and the interpretation which these provisions have received in the past, it is difficult even to comprehend that there is possibility of providing any straitjacket formula which can be treated as panacea to resolve all controversies uniformly, in relation to determination of the value of the acquired land. This essentially must depend upon the facts and circumstances of each case.29. It is a settled principle of law that the onus to prove entitlement to receive higher compensation is upon the claimants. In Basant Kumar v. Union of India [(1996) 11 SCC 542] this Court held that the claimants are expected to lead cogent and proper evidence in support of their claim. Onus primarily is on the claimants, which they can discharge while placing and proving on record sale instances and/or such other evidences as they deem proper, keeping in mind the method of computation for awarding of compensation which they rely upon. In this very case, this Court stated the principles of awarding compensation and placed the matter beyond ambiguity, while also capsulating the factors regulating the discretion of the Court while awarding the compensation. This principle was reiterated by this Court even in Gafar v. Moradabad Development Authority [(2007) 7 SCC 614] and the Court held as under: (SCC p. 620, para 12)12. As held by this Court in various decisions, the burden is on the claimants to establish that the amounts awarded to them by the Land Acquisition Officer are inadequate and that they are entitled to more. That burden had to be discharged by the claimants and only if the initial burden in that behalf was discharged, the burden shifted to the State to justify the award.Thus, the onus being primarily upon the claimants, they are expected to lead evidence to revert the same, if they so desire. In other words, it cannot be said that there is no onus whatsoever upon the State in such reference proceedings. The court cannot lose sight of the facts and clear position of documents, that obligation to pay fair compensation is on the State in its absolute terms. Every case has to be examined on its own facts and the courts are expected to scrutinise the evidence led by the parties in such proceedings.Moreover, it was brought to our notice that the land is acquired mainly for the purpose of a residential colony, and about 5% commercial area to cater to the needs of such residential colony will also be built. Be that as it may, since the reasons assigned by the High Court while coming to the conclusion were assigned solely on the basis of Ashrafi (supra), and as the evidence on record adduced by both the parties was not considered, much less properly considered, the matter, in our opinion, needs reconsideration by the High Court in as much as the High Court in such matters would be the last Court to decide the matter on facts.
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Bhuwan Singh Vs. M/S Oriental Insurance Co.Ltd
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an effective learners licence may also drive the vehicle and such a person satisfies the requirement of the Rule 3 of the Central Motor Vehicle Rule 1988. Limitations as to useAgri. Use. 11. Concededly the appellant had been holding a learners licence. It expired on 22.12.2000. The accident took place on 5.1.2001. He applied for grant of a regular licence only on 22.1.2001, whereafter only the licence was granted to him. Rule 14 of the Central Motor Vehicles Rules, 1989 provides for the manner in which an application for driving licence is to be filed. Such an application is to be filed in Form 4 and is required to be inter alia accompanied by an effective learners licence to drive the vehicle of the type to which the application relates. 12. Different provisions in the Motor Vehicles Act as also rules framed thereunder exist for filing applications for grant of learners licence and a licence. Whereas an application for grant of a learners licence is filed in form 3 prescribed by the rules; an application for grant of licence is filed in Form 4. 13. The word effective licence is defined in Section 3 of the Act. Sub- Section 2 of Section 149, however, uses the word duly licensed. In Swaran Singh (supra), a three-Judge Bench of this Court has drawn a distinction between the said two terms. 14. The Act provides for grant of a learners licence. It indisputably is a licence within the meaning of provisions thereof. A person holding a learners licence is also entitled to drive a vehicle but it is granted for a specific period. The terms and conditions for grant of a learners licence are different from those of a regular licence. Holding of a learners licence is imperative for filing an application for grant of licence as provided for in Rule 4 of the Rules. Converse however is not true. Only because the appellant held a learners licence which had expired and was not valid on the date of accident, he cannot be said to be duly licensed. It is true that despite expiry of a regular licence, it may be renewed, but no provision has been brought to our notice providing for automatic renewal of learners licence. In Ram Babu Tiwari v. United India Insurance Co. Ltd. & Ors., III (2008) ACC 776 (SC)=VIII (2008) SLT 167=(2008) 8 SCC 165 , this Court held: “18. It is beyond any doubt or dispute that only in the event an application for renewal of licence is filed within a period 30 days from the date of expiry thereof, the same would be renewed automatically which means that even if an accident had taken place within the aforementioned period, the driver may be held to be possessing a valid licence. The proviso appended to Sub-section (1) of Section 15, however, clearly states that the driving licence shall be renewed with effect from the date of its renewal in the event the application for renewal of a licence is made more than 30 days after the date of its expiry. It is, therefore, evident that as, on renewal of the licence on such terms, the driver of the vehicle cannot be said to be holding a valid licence, the insurer would not be liable to indemnify the insured." 15. Appellant herein raised a specific plea that he was not driving the vehicle and one Diwan Singh was driving the same. The said fact was within his special knowledge. Burden of proof, therefore, to prove the same was on him. He did not examine Diwan Singh. 16. The claimants in their claim petition described the appellant as owner as well as driver of the vehicle. The Insurance Company, as noticed hereinbefore, has also categorically raised the plea that the appellant was not holding a valid and effective licence. The burden of proof ordinarily would be on Insurance Company to establish that there has been a breach of conditions of the contract of insurance. In this case, however, the burden in terms of Section 106 of the Evidence Act was on the appellant. He failed to discharge the said burden. As indicated hereinbefore, not only a criminal case was pending against him, he was also charge-sheeted. 17. A finding of fact has been arrived at that he had been driving the vehicle. He in view of the pleadings raised by the Insurance Company cannot be said to have been prejudiced by non-framing of specific issue as to whether he was driving the vehicle or not. He was aware of the pleadings of the parties. He adduced evidence in that behalf. The Tribunal as also the High Court arrived at a finding of fact that it was the appellant who had been driving the vehicle.18. If that be so, the question raised before us must be determined having regard to the proved facts namely as on the date of accident he was not holding any valid and effective licence.19. In terms of Section 149 of the Act, the Insurance Company would be liable to pay the awarded amount to the claimants provided the accident is covered by the terms of the policy, although the burden in respect thereof would be in the Insurance Company.20. It is now well settled in view of Section 58 of the Indian Evidence Act that facts admitted need not to be proved.21. The question as to whether the appellant was holding a valid licence or not was within his knowledge. The driver was to show that he held licence in respect of the vehicle for which he had filed an application. Filing of an application and grant thereof would therefore are pre-requisite for holding a valid and effective licence.22. As on 5.1.2001 the appellant was not duly licensed as his learners licence expired on 22.12.2000. He filed an application for grant of licence much later. Insurance Company, therefore, in our opinion was not bound to reimburse him in terms of the Contract of Insurance.
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0[ds]14. The Act provides for grant of a learners licence. It indisputably is a licence within the meaning of provisions thereof. A person holding a learners licence is also entitled to drive a vehicle but it is granted for a specific period. The terms and conditions for grant of a learners licence are different from those of a regular licence. Holding of a learners licence is imperative for filing an application for grant of licence as provided for in Rule 4 of the Rules. Converse however is not true. Only because the appellant held a learners licence which had expired and was not valid on the date of accident, he cannot be said to be duly licensed. It is true that despite expiry of a regular licence, it may be renewed, but no provision has been brought to our notice providing for automatic renewal of learners licence.A finding of fact has been arrived at that he had been driving the vehicle. He in view of the pleadings raised by the Insurance Company cannot be said to have been prejudiced byof specific issue as to whether he was driving the vehicle or not. He was aware of the pleadings of the parties. He adduced evidence in that behalf. The Tribunal as also the High Court arrived at a finding of fact that it was the appellant who had been driving the vehicle.18. If that be so, the question raised before us must be determined having regard to the proved facts namely as on the date of accident he was not holding any valid and effective licence.19. In terms of Section 149 of the Act, the Insurance Company would be liable to pay the awarded amount to the claimants provided the accident is covered by the terms of the policy, although the burden in respect thereof would be in the Insurance Company.20. It is now well settled in view of Section 58 of the Indian Evidence Act that facts admitted need not to be proved.21. The question as to whether the appellant was holding a valid licence or not was within his knowledge. The driver was to show that he held licence in respect of the vehicle for which he had filed an application. Filing of an application and grant thereof would therefore arefor holding a valid and effective licence.22. As on 5.1.2001 the appellant was not duly licensed as his learners licence expired on 22.12.2000. He filed an application for grant of licence much later. Insurance Company, therefore, in our opinion was not bound to reimburse him in terms of the Contract of Insurance.
| 0 | 2,073 | 469 |
### 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:
an effective learners licence may also drive the vehicle and such a person satisfies the requirement of the Rule 3 of the Central Motor Vehicle Rule 1988. Limitations as to useAgri. Use. 11. Concededly the appellant had been holding a learners licence. It expired on 22.12.2000. The accident took place on 5.1.2001. He applied for grant of a regular licence only on 22.1.2001, whereafter only the licence was granted to him. Rule 14 of the Central Motor Vehicles Rules, 1989 provides for the manner in which an application for driving licence is to be filed. Such an application is to be filed in Form 4 and is required to be inter alia accompanied by an effective learners licence to drive the vehicle of the type to which the application relates. 12. Different provisions in the Motor Vehicles Act as also rules framed thereunder exist for filing applications for grant of learners licence and a licence. Whereas an application for grant of a learners licence is filed in form 3 prescribed by the rules; an application for grant of licence is filed in Form 4. 13. The word effective licence is defined in Section 3 of the Act. Sub- Section 2 of Section 149, however, uses the word duly licensed. In Swaran Singh (supra), a three-Judge Bench of this Court has drawn a distinction between the said two terms. 14. The Act provides for grant of a learners licence. It indisputably is a licence within the meaning of provisions thereof. A person holding a learners licence is also entitled to drive a vehicle but it is granted for a specific period. The terms and conditions for grant of a learners licence are different from those of a regular licence. Holding of a learners licence is imperative for filing an application for grant of licence as provided for in Rule 4 of the Rules. Converse however is not true. Only because the appellant held a learners licence which had expired and was not valid on the date of accident, he cannot be said to be duly licensed. It is true that despite expiry of a regular licence, it may be renewed, but no provision has been brought to our notice providing for automatic renewal of learners licence. In Ram Babu Tiwari v. United India Insurance Co. Ltd. & Ors., III (2008) ACC 776 (SC)=VIII (2008) SLT 167=(2008) 8 SCC 165 , this Court held: “18. It is beyond any doubt or dispute that only in the event an application for renewal of licence is filed within a period 30 days from the date of expiry thereof, the same would be renewed automatically which means that even if an accident had taken place within the aforementioned period, the driver may be held to be possessing a valid licence. The proviso appended to Sub-section (1) of Section 15, however, clearly states that the driving licence shall be renewed with effect from the date of its renewal in the event the application for renewal of a licence is made more than 30 days after the date of its expiry. It is, therefore, evident that as, on renewal of the licence on such terms, the driver of the vehicle cannot be said to be holding a valid licence, the insurer would not be liable to indemnify the insured." 15. Appellant herein raised a specific plea that he was not driving the vehicle and one Diwan Singh was driving the same. The said fact was within his special knowledge. Burden of proof, therefore, to prove the same was on him. He did not examine Diwan Singh. 16. The claimants in their claim petition described the appellant as owner as well as driver of the vehicle. The Insurance Company, as noticed hereinbefore, has also categorically raised the plea that the appellant was not holding a valid and effective licence. The burden of proof ordinarily would be on Insurance Company to establish that there has been a breach of conditions of the contract of insurance. In this case, however, the burden in terms of Section 106 of the Evidence Act was on the appellant. He failed to discharge the said burden. As indicated hereinbefore, not only a criminal case was pending against him, he was also charge-sheeted. 17. A finding of fact has been arrived at that he had been driving the vehicle. He in view of the pleadings raised by the Insurance Company cannot be said to have been prejudiced by non-framing of specific issue as to whether he was driving the vehicle or not. He was aware of the pleadings of the parties. He adduced evidence in that behalf. The Tribunal as also the High Court arrived at a finding of fact that it was the appellant who had been driving the vehicle.18. If that be so, the question raised before us must be determined having regard to the proved facts namely as on the date of accident he was not holding any valid and effective licence.19. In terms of Section 149 of the Act, the Insurance Company would be liable to pay the awarded amount to the claimants provided the accident is covered by the terms of the policy, although the burden in respect thereof would be in the Insurance Company.20. It is now well settled in view of Section 58 of the Indian Evidence Act that facts admitted need not to be proved.21. The question as to whether the appellant was holding a valid licence or not was within his knowledge. The driver was to show that he held licence in respect of the vehicle for which he had filed an application. Filing of an application and grant thereof would therefore are pre-requisite for holding a valid and effective licence.22. As on 5.1.2001 the appellant was not duly licensed as his learners licence expired on 22.12.2000. He filed an application for grant of licence much later. Insurance Company, therefore, in our opinion was not bound to reimburse him in terms of the Contract of Insurance.
### Response:
0
### Explanation:
14. The Act provides for grant of a learners licence. It indisputably is a licence within the meaning of provisions thereof. A person holding a learners licence is also entitled to drive a vehicle but it is granted for a specific period. The terms and conditions for grant of a learners licence are different from those of a regular licence. Holding of a learners licence is imperative for filing an application for grant of licence as provided for in Rule 4 of the Rules. Converse however is not true. Only because the appellant held a learners licence which had expired and was not valid on the date of accident, he cannot be said to be duly licensed. It is true that despite expiry of a regular licence, it may be renewed, but no provision has been brought to our notice providing for automatic renewal of learners licence.A finding of fact has been arrived at that he had been driving the vehicle. He in view of the pleadings raised by the Insurance Company cannot be said to have been prejudiced byof specific issue as to whether he was driving the vehicle or not. He was aware of the pleadings of the parties. He adduced evidence in that behalf. The Tribunal as also the High Court arrived at a finding of fact that it was the appellant who had been driving the vehicle.18. If that be so, the question raised before us must be determined having regard to the proved facts namely as on the date of accident he was not holding any valid and effective licence.19. In terms of Section 149 of the Act, the Insurance Company would be liable to pay the awarded amount to the claimants provided the accident is covered by the terms of the policy, although the burden in respect thereof would be in the Insurance Company.20. It is now well settled in view of Section 58 of the Indian Evidence Act that facts admitted need not to be proved.21. The question as to whether the appellant was holding a valid licence or not was within his knowledge. The driver was to show that he held licence in respect of the vehicle for which he had filed an application. Filing of an application and grant thereof would therefore arefor holding a valid and effective licence.22. As on 5.1.2001 the appellant was not duly licensed as his learners licence expired on 22.12.2000. He filed an application for grant of licence much later. Insurance Company, therefore, in our opinion was not bound to reimburse him in terms of the Contract of Insurance.
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Union Of India Vs. Hbl Nife Power Systems Ltd
|
undergo thirteen tests as stipulated in Annexure P-2. Ministry of Defence/Navy authorities cannot accept the final product without being fully associated with the development of the product right from the stage of procurement of raw material to the stage of final product. As per the policy, RFP could be issued only to a firm which is duly registered with DGQA for supply of the product after development of the product under the aegis of DGQA. Having regard to the requirements of a highly critical spare part like submarine batteries, the Government has framed the policy for issuance of the development indent, developing the source and registration with DGQA. It is pertinent to note that in the writ petition, policy itself was not under challenge. In fact, in the writ petition, respondent-company itself prayed only for issuance of request for proposal under the policy. The High Court did not keep in view the policy of the Government and the mandatory requirement of DGQA being associated with the development of submarine batteries which is a critical defence spare part. 11. If the country wishes to play a substantial role in the Indian Ocean and Arabian Sea, India must ensure high standards of defence power comparing with the neighbouring countries and it should have modernized submarines. Modernized submarines require submarine batteries with high sophisticated standard under the aegis of DGQA. The Government cannot put the life of its defence personnel and submarine worth crores of rupees to risk simply because the respondent claims to have the capability and can supply submarine batteries. For such defence critical spare parts like submarine batteries, there cannot be any open advertisement inviting tenders. Advertisements are issued calling for tenders only for common use items which are normally available in the open market with a wide range of sources. Submarine batteries do not fall under this category of common use items. The respondent cannot claim any vested right to be issued a development indent or RFP or a supply order simply because it has made investments to manufacture submarine batteries. Straightway RFP cannot be issued to the respondent by ignoring the procedure for issuing a development indent and testing the batteries. 12. As the matter was pending for over a decade, we have asked the appellant-Union of India about the subsequent development of the second source for supply of submarine batteries and for the status of the respondent. In response, on instruction Mr. S.W.A. Qadri, onbehalf of the appellant has filed elaborate written submission. It is stated that after grant of stay order dated 16.12.2005 by this Court against the impugned order, the appellant initiated a case for development of an alternate vendor for submarine batteries seeking development indents from IHQ (N)/DEE as per directives of Ministry of Defence vide ID No.3536/04/D(N-I) dated 08.02.2005. Accordingly, open tender was issued in newspapers on 29.05.2006 wherein several firms including the respondent responded. For development of a second source of Type-I batteries, development order was placed on the respondent HBL Ltd. on 22.03.2007, as per which the firm was to develop four Type-I cells at a cost of Rs.11.16 lakhs with a delivery schedule of eighteen months. The prototype batteries manufactured by respondent-HBL failed to meet DGQA’s stipulated standard for relevant discharge (C2) test. Thereafter, on 12.07.2011, a meeting was held with the participants of DEE and M/s. HBL representatives. Post detailed deliberation, the respondent was asked to manufacture four cells afresh and present them for type testing. Test of batteries was completed at the factory premises in June 2012 and batteries were transferred to BCF, Sewri in January 2013. However, on receipt at BCF, Sewri, visible bulging was observed in all batteries and lead tape discontinuity in one battery during first maintenance charge. During analysis in February 2013, bulging was found to exceed permissible limit of 12 mm on all batteries post first full charge. However, respondent opined that the bulging was due to improper packaging whilst transporting batteries from the premises (Hyderabad) to Mumbai. Thereafter, respondent firm–HBL agreed on certain conditions for manufacturing of four new prototype cells with a lead time of three-six months and agreed to complete manufacturing of test cells by February 2014. However, there was delay on the part of the respondent and finally the trial of test cells was completed on 14.11.2014 and the trials were validated by CQAE, Secunderabad. Test cells were received at BCF, Sewri in January 2015. Charging/discharging trials commenced wherein charging parameters were examined and found to be satisfactory. In this regard, in the written submission filed by UOI, it is stated as under:- “8. …The performance report forwarded by ASD (Mbi)/BCF wherein all parameters of the cells were examined, indicates satisfactory test results. In view of the satisfactory completion of indigenization efforts by respondent herein (M/s. HBL, Hyderabad) the firm was nominated as IHQ MOD (N) approved vendor for supply of Type-I submarine batteries for EKM submarines on 28.05.20159. ..the next procurement case shall have an additional qualified vendor for Type-I submarine batteries to increase the market competence for both technical and financial aspects.” Though the subsequent developments may not be relevant to determine the issue, we have referred to the written submission in extenso for the sake of completion. 13. The aforesaid discussion and also the written submission as to how the respondent developed the batteries over a period of time reiterate that the development of second source could only be as per the guidelines of DGQA and under the supervision and inspection of the officials of the DGQA and not independently. The High Court did not keep in view the policy of the Government in purchasing the critical spare parts for the defence and in particular, in developing submarine batteries under the aegis of the Defence Ministry and the High Court erred in directing the appellants to issue an advertisement giving details about the technical specifications for submarine batteries and in selecting the product submitted in response to the advertisement and the impugned order is not sustainable.
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1[ds]As the matter was pending for over a decade, we have asked the appellant-Union of India about the subsequent development of the second source for supply of submarine batteries and for the status of the respondent. In response, on instruction Mr. S.W.A. Qadri, onbehalf of the appellant has filed elaborate written submission. It is stated that after grant of stay order dated 16.12.2005 by this Court against the impugned order, the appellant initiated a case for development of an alternate vendor for submarine batteries seeking development indents from IHQ (N)/DEE as per directives of Ministry of Defence vide ID No.3536/04/D(N-I) dated 08.02.2005. Accordingly, open tender was issued in newspapers on 29.05.2006 wherein several firms including the respondent responded. For development of a second source of Type-I batteries, development order was placed on the respondent HBL Ltd. on 22.03.2007, as per which the firm was to develop four Type-I cells at a cost of Rs.11.16 lakhs with a delivery schedule of eighteen months. The prototype batteries manufactured by respondent-HBL failed to meetstipulated standard for relevant discharge (C2) test. Thereafter, on 12.07.2011, a meeting was held with the participants of DEE and M/s. HBL representatives. Post detailed deliberation, the respondent was asked to manufacture four cells afresh and present them for type testing. Test of batteries was completed at the factory premises in June 2012 and batteries were transferred to BCF, Sewri in January 2013. However, on receipt at BCF, Sewri, visible bulging was observed in all batteries and lead tape discontinuity in one battery during first maintenance charge. During analysis in February 2013, bulging was found to exceed permissible limit of 12 mm on all batteries post first full charge. However, respondent opined that the bulging was due to improper packaging whilst transporting batteries from the premises (Hyderabad) to Mumbai. Thereafter, respondent firm–HBL agreed on certain conditions for manufacturing of four new prototype cells with a lead time of three-six months and agreed to complete manufacturing of test cells by February 2014. However, there was delay on the part of the respondent and finally the trial of test cells was completed on 14.11.2014 and the trials were validated by CQAE, Secunderabad. Test cells were received at BCF, Sewri in January 2015. Charging/discharging trials commenced wherein charging parameters were examined and found to be satisfactory. In this regard, in the written submission filed by UOI, it is stated as…The performance report forwarded by ASD (Mbi)/BCF wherein all parameters of the cells were examined, indicates satisfactory test results. In view of the satisfactory completion of indigenization efforts by respondent herein (M/s. HBL, Hyderabad) the firm was nominated as IHQ MOD (N) approved vendor for supply of Type-I submarine batteries for EKM submarines on 28.05.20159. ..the next procurement case shall have an additional qualified vendor for Type-I submarine batteries to increase the market competence for both technical and financial aspects.The aforesaid discussion and also the written submission as to how the respondent developed the batteries over a period of time reiterate that the development of second source could only be as per the guidelines of DGQA and under the supervision and inspection of the officials of the DGQA and not independently. The High Court did not keep in view the policy of the Government in purchasing the critical spare parts for the defence and in particular, in developing submarine batteries under the aegis of the Defence Ministry and the High Court erred in directing the appellants to issue an advertisement giving details about the technical specifications for submarine batteries and in selecting the product submitted in response to the advertisement and the impugned order is not sustainable.
| 1 | 3,183 | 673 |
### 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:
undergo thirteen tests as stipulated in Annexure P-2. Ministry of Defence/Navy authorities cannot accept the final product without being fully associated with the development of the product right from the stage of procurement of raw material to the stage of final product. As per the policy, RFP could be issued only to a firm which is duly registered with DGQA for supply of the product after development of the product under the aegis of DGQA. Having regard to the requirements of a highly critical spare part like submarine batteries, the Government has framed the policy for issuance of the development indent, developing the source and registration with DGQA. It is pertinent to note that in the writ petition, policy itself was not under challenge. In fact, in the writ petition, respondent-company itself prayed only for issuance of request for proposal under the policy. The High Court did not keep in view the policy of the Government and the mandatory requirement of DGQA being associated with the development of submarine batteries which is a critical defence spare part. 11. If the country wishes to play a substantial role in the Indian Ocean and Arabian Sea, India must ensure high standards of defence power comparing with the neighbouring countries and it should have modernized submarines. Modernized submarines require submarine batteries with high sophisticated standard under the aegis of DGQA. The Government cannot put the life of its defence personnel and submarine worth crores of rupees to risk simply because the respondent claims to have the capability and can supply submarine batteries. For such defence critical spare parts like submarine batteries, there cannot be any open advertisement inviting tenders. Advertisements are issued calling for tenders only for common use items which are normally available in the open market with a wide range of sources. Submarine batteries do not fall under this category of common use items. The respondent cannot claim any vested right to be issued a development indent or RFP or a supply order simply because it has made investments to manufacture submarine batteries. Straightway RFP cannot be issued to the respondent by ignoring the procedure for issuing a development indent and testing the batteries. 12. As the matter was pending for over a decade, we have asked the appellant-Union of India about the subsequent development of the second source for supply of submarine batteries and for the status of the respondent. In response, on instruction Mr. S.W.A. Qadri, onbehalf of the appellant has filed elaborate written submission. It is stated that after grant of stay order dated 16.12.2005 by this Court against the impugned order, the appellant initiated a case for development of an alternate vendor for submarine batteries seeking development indents from IHQ (N)/DEE as per directives of Ministry of Defence vide ID No.3536/04/D(N-I) dated 08.02.2005. Accordingly, open tender was issued in newspapers on 29.05.2006 wherein several firms including the respondent responded. For development of a second source of Type-I batteries, development order was placed on the respondent HBL Ltd. on 22.03.2007, as per which the firm was to develop four Type-I cells at a cost of Rs.11.16 lakhs with a delivery schedule of eighteen months. The prototype batteries manufactured by respondent-HBL failed to meet DGQA’s stipulated standard for relevant discharge (C2) test. Thereafter, on 12.07.2011, a meeting was held with the participants of DEE and M/s. HBL representatives. Post detailed deliberation, the respondent was asked to manufacture four cells afresh and present them for type testing. Test of batteries was completed at the factory premises in June 2012 and batteries were transferred to BCF, Sewri in January 2013. However, on receipt at BCF, Sewri, visible bulging was observed in all batteries and lead tape discontinuity in one battery during first maintenance charge. During analysis in February 2013, bulging was found to exceed permissible limit of 12 mm on all batteries post first full charge. However, respondent opined that the bulging was due to improper packaging whilst transporting batteries from the premises (Hyderabad) to Mumbai. Thereafter, respondent firm–HBL agreed on certain conditions for manufacturing of four new prototype cells with a lead time of three-six months and agreed to complete manufacturing of test cells by February 2014. However, there was delay on the part of the respondent and finally the trial of test cells was completed on 14.11.2014 and the trials were validated by CQAE, Secunderabad. Test cells were received at BCF, Sewri in January 2015. Charging/discharging trials commenced wherein charging parameters were examined and found to be satisfactory. In this regard, in the written submission filed by UOI, it is stated as under:- “8. …The performance report forwarded by ASD (Mbi)/BCF wherein all parameters of the cells were examined, indicates satisfactory test results. In view of the satisfactory completion of indigenization efforts by respondent herein (M/s. HBL, Hyderabad) the firm was nominated as IHQ MOD (N) approved vendor for supply of Type-I submarine batteries for EKM submarines on 28.05.20159. ..the next procurement case shall have an additional qualified vendor for Type-I submarine batteries to increase the market competence for both technical and financial aspects.” Though the subsequent developments may not be relevant to determine the issue, we have referred to the written submission in extenso for the sake of completion. 13. The aforesaid discussion and also the written submission as to how the respondent developed the batteries over a period of time reiterate that the development of second source could only be as per the guidelines of DGQA and under the supervision and inspection of the officials of the DGQA and not independently. The High Court did not keep in view the policy of the Government in purchasing the critical spare parts for the defence and in particular, in developing submarine batteries under the aegis of the Defence Ministry and the High Court erred in directing the appellants to issue an advertisement giving details about the technical specifications for submarine batteries and in selecting the product submitted in response to the advertisement and the impugned order is not sustainable.
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1
### Explanation:
As the matter was pending for over a decade, we have asked the appellant-Union of India about the subsequent development of the second source for supply of submarine batteries and for the status of the respondent. In response, on instruction Mr. S.W.A. Qadri, onbehalf of the appellant has filed elaborate written submission. It is stated that after grant of stay order dated 16.12.2005 by this Court against the impugned order, the appellant initiated a case for development of an alternate vendor for submarine batteries seeking development indents from IHQ (N)/DEE as per directives of Ministry of Defence vide ID No.3536/04/D(N-I) dated 08.02.2005. Accordingly, open tender was issued in newspapers on 29.05.2006 wherein several firms including the respondent responded. For development of a second source of Type-I batteries, development order was placed on the respondent HBL Ltd. on 22.03.2007, as per which the firm was to develop four Type-I cells at a cost of Rs.11.16 lakhs with a delivery schedule of eighteen months. The prototype batteries manufactured by respondent-HBL failed to meetstipulated standard for relevant discharge (C2) test. Thereafter, on 12.07.2011, a meeting was held with the participants of DEE and M/s. HBL representatives. Post detailed deliberation, the respondent was asked to manufacture four cells afresh and present them for type testing. Test of batteries was completed at the factory premises in June 2012 and batteries were transferred to BCF, Sewri in January 2013. However, on receipt at BCF, Sewri, visible bulging was observed in all batteries and lead tape discontinuity in one battery during first maintenance charge. During analysis in February 2013, bulging was found to exceed permissible limit of 12 mm on all batteries post first full charge. However, respondent opined that the bulging was due to improper packaging whilst transporting batteries from the premises (Hyderabad) to Mumbai. Thereafter, respondent firm–HBL agreed on certain conditions for manufacturing of four new prototype cells with a lead time of three-six months and agreed to complete manufacturing of test cells by February 2014. However, there was delay on the part of the respondent and finally the trial of test cells was completed on 14.11.2014 and the trials were validated by CQAE, Secunderabad. Test cells were received at BCF, Sewri in January 2015. Charging/discharging trials commenced wherein charging parameters were examined and found to be satisfactory. In this regard, in the written submission filed by UOI, it is stated as…The performance report forwarded by ASD (Mbi)/BCF wherein all parameters of the cells were examined, indicates satisfactory test results. In view of the satisfactory completion of indigenization efforts by respondent herein (M/s. HBL, Hyderabad) the firm was nominated as IHQ MOD (N) approved vendor for supply of Type-I submarine batteries for EKM submarines on 28.05.20159. ..the next procurement case shall have an additional qualified vendor for Type-I submarine batteries to increase the market competence for both technical and financial aspects.The aforesaid discussion and also the written submission as to how the respondent developed the batteries over a period of time reiterate that the development of second source could only be as per the guidelines of DGQA and under the supervision and inspection of the officials of the DGQA and not independently. The High Court did not keep in view the policy of the Government in purchasing the critical spare parts for the defence and in particular, in developing submarine batteries under the aegis of the Defence Ministry and the High Court erred in directing the appellants to issue an advertisement giving details about the technical specifications for submarine batteries and in selecting the product submitted in response to the advertisement and the impugned order is not sustainable.
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Siddhu Matriculation Hr. Secondary School Vs. K. Shyam Sunder and Ors
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that there had been a pre-determined political decision to scrap the Act 2010. The Cabinet on 22.5.2011 had taken a decision to do away with the Act 2010 and brought the Ordinance for that purpose.(viii) There was no material before the Government on the basis of which, the decision not to implement the Act 2010 could be taken as admittedly the Expert Committee had not done any exercise of reviewing the syllabus and textbooks till then.(ix) The validity of the said decision was challenged by parents and teachers and various other organisations before the High Court and interim orders were passed. It was at that stage that the Bill was introduced in the House on 7.6.2011 and the Amendment Act was passed and enforced with retrospective effect i.e. from 22.5.2011, the date of the decision of the Cabinet in this regard.(x) The interim orders passed by the High Court were challenged before this Court and the appeals were disposed of by this court vide judgment and order dated 14.6.2011, issuing large number of directions including constitution of the Expert Committee which would find out ways and means to enforce the common education system.(xi) The Secretary of School Education Department had filed affidavits before the High Court as well as before this Court pointing out that the Amendment Act 2011 was necessary in view of the fact that the Act 2010 was illegal and unconstitutional. However, the Secretary of School Education Department was inadvertently made a member of the Expert Committee by this Court. Though her inclusion in the Committee was totally unwarranted particularly in view of her stand taken before the High Court that the Act 2010 was unconstitutional and illegal.(xii) The Secretary, to the Govt. of Tamil Nadu School Education Department, who had been entrusted the responsibility to plead on behalf of the State, herself had approved the textbooks and fixed the prices for those books of Standards VIIIth, IXth and Xth vide G.O. dated 9.5.2011.(xiii) The members of the Expert Committee did not reject the text books and syllabus in toto, however, pointed out certain discrepancies therein and asked for rectification/improvements of the same.(xiv) The High Court as well as this Court upheld the validity of the Act 2010. Thus, it was not permissible for the legislature to annul the effect of the said judgments by the Amendment Act 2011, particularly so far as the Ist and VIth Standards are concerned. The list of approved textbooks had been published and made known to all concerned. Thus, the Act 2010 stood completely implemented so far these Standards were concerned.(xv) The Statement of Objects and Reasons of the Act 2011 clearly stipulated that legislature intended to find out a better system of school education. Thus, the object has been to repeal the Act 2010.(xvi) The legislature is competent to enact the revalidation Act under certain circumstances, where the statutory provisions are struck down by the court, fundamentally altering the conditions on which such a decision is based, but the legislature cannot enact, as has been enacted herein, an invalidation Act, rendering a statute nugatory.(xvii) The School Education Department of Tamil Nadu on 24.2.2011 called for private publishers to come out with the textbooks based on common education system, and submit for clearance by the Department by 5.4.2011, as taken note of by the High Court in its order dated 10.6.2011. Thus, in such a fact-situation, it was not permissible for the State to revert back to the old system at this advanced stage.(xviii) Most of the other directions given by the High Court on 30.4.2010, stood complied with. The DTERT had been appointed as Academic Authority as required under Section 29 of the Act 2009, vide G.O. dated 27.7.2010.(xix) The material produced by the respondents before this Court reveal that norms had been made known and the NCF 2005 was also implemented by issuing Tamil Nadu Curriculum 2009.(xx) The issue of repugnancy of the Act 2010 with the Act 2009 merely remains an academic issue as most of the discrepancies stood removed. Even if something remains to be done, it can be cured even now, however, such a minor issue could not be a good ground for putting the Act 2010 under suspended animation for an indefinite period on uncertain terms.(xxi) Undoubtedly, there had been a few instances of portraying the personality by the leader of political party earlier in power, i.e. personal glorification, self publicity and promotion of his own cult and philosophy, which could build his political image and influence the young students, particularly, in the books of primary classes. Such objectionable material, if any, could be deleted, rather than putting the operation of the Act 2010 in abeyance for indefinite period.(xxii) As early as in April 2011, textbooks for Xth Standard were posted in the official website of School Education Department and many students downloaded the same and started study of the same as the students, parents and teachers had been under the impression that for Standards II to V and VII to X, common education system would definitely be implemented from academic year 2011-12. Such pious hope of so many stakeholders could not be betrayed. Rolling back the Act 2010 at this belated stage and withdrawal thereof even for Standard I and VI would be unjust, iniquitous and unfair to all concerned.(xxiii) The Amendment Act 2011, in fact, has the effect of bringing back the effect of Section 14 of the Act 2010 which had been declared ultra vires by the High Court for the reason that the Board could not be given binding directions by the State Government.(xxiv) Even if a very few schools could not exercise their choice of multiple text books, it could not be a ground of scrapping the Act 2010.Steps should have been taken to remove the discrepancy.(xxv) Passing the Act 2011, amounts to nullify the effect of the High Court and this Courts judgments and such an act simply tantamounts to subversive of law. 71. In view of the above,
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0[ds]The Government has to rise above the nexus of vested interests and nepotism and eschewhas consistently been held by this Court that the doctrine of malafide does not involve any question of bonafide or malafide on the part of legislature as in such a case, the Court is concerned to a limited issue of competence of the particular legislature to enact a particular law. If the legislature is competent to pass a particular enactment, the motives which impelled it to an act are really irrelevant. On the other hand, if the legislature lacks competence, the question of motive does not arrive at all. Therefore, whether a statute is constitutional or not is, thus, always a question of power of the legislature to enact that Statute.Motive of the legislature while enacting a Statute is inconsequential: "Malice or motive is beside the point, and it is not permissible to suggest parliamentary incompetence on the score of mala fides."Thelegislative competence can be adjudged with reference to Articles 245 and 246 of the Constitution read with the three lists given in the Seventh Schedule as well as with reference to Article 13(2) of the Constitution which prohibits the State from making any law which takes away or abridges the rights conferred by Part-III of the Constitution and provides that any law made in contravention of this Clause shall, to the extent of contravention beorder to test the constitutional validity of the Act, where it is alleged that the statute violates the fundamental rights, it is necessary to ascertain its true nature and character and the impact of the Act. Thus, courts may examine with some strictness the substance of the legislation and for that purpose, the court has to look behind the form and appearance thereof to discover the true character and nature of the legislation. Its purport and intent have to be determined. In order to do so it is permissible in law to take into consideration all factors such as history of the legislation, the purpose thereof, the surrounding circumstances and conditions, the mischief which it intended to suppress, the remedy for the disease which the legislature resolved to cure and the true reason for theCourt lacks expertise especially in disputes relating to policies of pure academic educational matters. Therefore, generally it should abide by the opinion of the Expert Body. The Constitution Bench of this Court in The University of Mysore & Anr. v. C.D. Govinda Rao & Anr., AIR 1965 SC 491 held that "normally the courts should be slow to interfere with the opinions expressed by the experts". It would normally be wise and safe for the courts to leave such decisions to experts who are more familiar with the problems they face than the courts generally canis a settled proposition of law that what cannot be done directly, is not permissible to be done obliquely, meaning thereby, whatever is prohibited by law to be done, cannot legally be effected by an indirect and circuitous contrivance on the principle of "quando aliquid prohibetur, prohibetur at omne per quod devenitur ad illud." An authority cannot be permitted to evade a law by "shift orthe legislature cannot carry out each and every function by itself, it may be necessary to delegate its power for certain limited purposes in favour of the executive. Delegating such powers itself is a legislative function. Such delegation of power, however, cannot be wide, uncanalised or unguided. The legislature while delegating such power is required to lay down the criteria or standard so as to enable the delegatee to act within the framework of the statute. The principle on which the power of the legislature is to be exercised is required to be disclosed. It is also trite that essential legislative functions cannot beinstant case requires to be examined in the light of the aforesaid settled legal propositions, though it may not be necessary to deal with all these issues in great detail as the High Court has already dealt with the same elaborately.56. In the instant case, as the Expert Committee had submitted a report and most of the members had given their opinion on different issues and as we have also examined the reports, it is evident from the same that each member had pointed out certain defects in the curriculum as well as in the text books etc. There was no unanimity on any particular issue, as each member has expressed a different opinion on differentHigh Court, after taking note of the counter affidavit filed by the present appellants labeling the Act 2010 as illegal, irrational and unconstitutional, after it had already undergone an intense judicial scrutiny and held to be Constitutionally valid by the High Court vide judgment and order dated 30.4.2010 and by this Court vide judgment and order dated 10.9.2010, the question that arises for consideration is as to whether it was permissible for the Secretary of the Education Department to label the Act as illegal and unconstitutional. Does such a conduct amount to sitting in appeal against the judgments of the High Court as well as of this Court or does it not amount to an attempt to take away the effect of the judgments of the High Court as well of this Court ?59. The High Court has taken note of these pleadings taken by the State authorities :"From a perusal of the counter affidavit filed by the Secretary, School Education Department, it is manifestly clear that the Government has taken the consistent stand that the policy formulated by the previous Government by implementing the Uniform Syllabus System was illegal and that the amount of Rs. 200 crores spent for printing the textbooks under the new syllabus was because of the wrong policy......" (Emphasis added)The report submitted by the Expert Committee, in fact, did not contain any collective opinion. All the members have expressed their different views and most of the members had approved the contents of the text books, in general, pointing out certain defects which could be cured by issuing corrigendums or replacements etc.60. Section 18 of the Act 2010 enables the State Government to remove difficulties, if any, in implementation of the said Act. The provisions thereof read as under:"If any difficulty arises in giving effect to the provisions of this Act, the Government may, by order published in the Tamil Nadu Government Gazette, make such provisions, not inconsistent with the provisions of this Act as appears to them to be necessary or expedient for removing the difficulty;..."Therefore, the amendment itself is totally unwarranted. If the State Government was facing any difficulty, the same could have been removed by issuing a Government order under Section 18 of the Act which conferred all residuary powers on it.The nature of the defect as canvassed by the State counsel is reflected in the pleadings that indicates an undesirable inclusion of certain chapters that do not subserve the purpose of a uniform standard and multicultural educational pattern. The contention appears to be that such material may damagingly divert the mind of the young students towards a motivated attempt of individualistic glorification. In the opinion of the court, if such material does create any adverse impact or is otherwise targeted towards unwanted propaganda without any contribution towards the educational standard sought to be achieved, then such material upon a thorough investigation and deliberation by the Expert Committee could be deleted with the aid of Section 18 of the Act 2010. It appears that the State Government while introducing the Amendment Act 2011 did not appropriately focus attention on the provision of Section 18 quoted hereinabove that are inclusive of all powers that may be required to remove such difficulties. Had the said provision been carefully noted, there would have been no occasion to suspend the implementation of the Act 2010. What could have been done with the help of a needle was unnecessarily attempted by wielding a sword from the blunt side. Not only this the said provision was not even pointed out by the State machinery before the High Court nor did its legal infantry choose to examine the same. Even before us the learned counsel were unable to successfully counter the availability of such powers with the State Government. In addition to that, needless to re-emphasize, the High Court while dealing with the validity of the provisions of the Act 2010, had already conceded liberty to the State Government to remove defects and had on the other hand struck down the offending provisions in Section 14 thereof empowering the State Government to compel the Education Board to be bound on questions of policy. Thus, the State Government was left with sufficient powers to deal with the nature of defects appropriately under the said judgment with a statutory power available for that purpose under Section 18 of the Act 2010.61. It may be relevant to point out here that Statement of Objects and Reasons given to the Amendment Act 2011 reveal a very sorry state of affairs and point out towards the intention of the legislature not to enforce the Act 2010 atlegislature in its wisdom had enforced the Act 2010 providing for common syllabus and text books for Standards I and VI from the academic year 2010-2011 and for Standards II to V and VII to X from the academic year 2011-2012, the validity of this law has been upheld by the High Court vide judgment and order dated 30.4.2010 and by this Court vide order dated 10.9.2010. Certain directions had been issued by the High Court which could be carried out easily by the State exercising its administrative powers without resorting to any legislative function. By the Amendment Act, even the application of Act 2010, so far as Standards I and VI are concerned, has also been withdrawn without realising that students who have studied in academic year 2010-11 would have difficulty in the next higher class if they are given a different syllabus and different kind of text books. The Amendment Act 2011 provided that the students in Standards I and VI would also revert back to the old system which had already elapsed.65. The Amendment Act 2011, in fact, nullified the earlier judgment of the High Court dated 30.4.2010, duly approved by the order of this Court dated 10.9.2010, and tantamounts to repealing of the Act 2010 as unfettered and uncanalised power has been bestowed upon the Government to notify the commencement of the uniform education system. State Government may submit only to the extent that the High Court itself had given option to the State to implement the Common Education System after ensuring compliance of directions issued by the High Court itself. However, no such liberty was available to the State so far as Standards I and VI are concerned.66. It is also evident from the record that after the new Government was sworn in on 16.5.2011, tenders were invited to publish books being taught under the old system on 21.5.2011 and subsequent thereto, it was decided in the Cabinet meeting on 22.5.2011 not to implement the uniform education system. Whole exercise of amending the Act 2010 was carried out most hurriedly. However, proceeding in haste itself cannot be a ground of challenge to the validity of a Statute though proceeding in haste amounts to arbitrariness and in such a fact-situation the administrative order becomes liable to be quashed. The facts mentioned hereinabove reveal that tenders had been invited on 21.5.2011 for publishing the text books, taught under the old system even prior to Cabinet meeting dated 22.5.2011. Thus, a decision had already been taken not to implement the Common Education System.67. If one crore twenty lacs students are now to revert back to the multiple syllabus with the syllabus and textbooks applicable prior to 2010 after the academic term of 2011-12 has begun, they would be utterly confused and would be put to enormous stress. Students can not be put to so much strain and stress unnecessarily. The entire exercise by the Government is therefore arbitrary, discriminatory and oppressive to students, teachers and parents.The State Government should have acted bearing in mind that "destiny of a nation rests with its youths". Personality of a child is developed at the time of basic education during his formative years of life. Their career should not be left in dolorific conditions with uncertainty to such a great extent. The younger generation has to compete in global market. Education is not a consumer service nor the educational institution can be equated with shops, therefore, "there are statutory prohibitions for establishing and administering educational institution without prior permission or approval by the authority concerned."Thus, the State Government could by no means be justified in amending the provisions of Section 3 of the Act 2010, particularly in such uncertain terms. Undertaking given by the learned Advocate General to the High Court that the Act 2010 would be implemented in the academic year 2012-13, cannot be a good reason to hold the Act 2011 valid.68 Submissions advanced on behalf of the appellants that it is within the exclusive domain of the legislature to fix the date of commencement of an Act, and court has no competence to interfere in such a matter, is totally misconceived for the reason that the legislature in its wisdom had fixed the dates of commencement of the Act though in a phased manner. The Act commenced into force accordingly. The courts intervened in the matter in peculiar circumstances and passed certain orders in this regard also. The legislature could not wash off the effect of those judgments at all. The judgments cited to buttress the arguments, particularly in A.K. Roy v. Union of India & Anr., AIR 1982 SC 710 ; Aeltemesh Rein v. Union of India & Ors., AIR 1988 SC 1768 ; Union of India v. Shree Gajanan Maharaj Sansthan, (2002) 5 SCC 44 ; and Common Cause v. Union of India & Ors., AIR 2003 SC 4493 , wherein it has been held that a writ in the nature of mandamus directing the Central Government to bring a statute or a provision in a statute into force in exercise of powers conferred by Parliament in that statute cannot be issued, stand distinguished.69. As explained hereinabove, the Amendment Act 2011, to the extent it applies to enforcement of Act 2010, nullified the judgment of the High Court dated 30.4.2010 duly approved by this Court vide order dated 10.9.2010. Thus, we concur with the conclusion reached by the High Court in this regard.70. To summarise our conclusions:(i) The Act 2010 was enacted to enforce the uniform education system in the State of Tamil Nadu in order to impart quality education to all children, without any discrimination on the ground of their economic, social or cultural background.(ii) The Act itself provided for its commencement giving the academic years though, in phased programme i.e. for Standards I to VI from the academic year 2010-2011; and for other Standards from academic year 2011-2012, thus, enforcement was not dependent on any further notification.(iii) The validity of the Act was challenged by various persons/ institutions and societies, parents of the students, but mainly by private schools organisations, opposing the common education system in the entire State. The writ petitions were dismissed upholding the validity of the Act. However, few provisions, particularly, the provisions of Sections 11, 12 and 14 were struck down by the High Court vide judgment and order dated 30.4.2010. The said judgment of the High Court was duly approved by a speaking order of this Court dated 10.9.2010. Certain directions had been given in the said judgment by the High Court which could have been complied with by issuing executive directions. Moreover, directions issued by the High Court could be complied with even by changing the Schedule as provided in the judgment dated 30.4.2010 itself.(iv) Section 18 of the Act 2010 itself enabled the Government to issue any executive direction to remove any difficulty to enforce the statutory provisions of the Act 2010. The Act 2010 itself provided for an adequate residuary power with the government to remove any difficulty in enforcement of the Act 2010, by issuing an administrative order.(v) Justification pleaded by the State that Amendment Act 2011 was brought to avoid contempt proceedings as the directions issued by the High Court could not be complied with, is totally a misconceived idea and not worth acceptance.(vi) The new government took over on 16.5.2011 and immediately thereafter, the Government received representations from various private schools/organizations on 17th/18th May, 2011 to scrap the uniform education system. As most of these representations were made by the societies/organisations who had earlier challenged the validity of the Act 2010 and met their waterloo in the hierarchy of the courts, such representations were, in fact, not even maintainable and, thus could not have been entertained by the Government.(vii) Before the first Cabinet meeting of the new Government on 22.5.2011, i.e. on 21.5.2011, tenders were invited to publish the books under the old education system. It shows that there had been a pre-determined political decision to scrap the Act 2010. The Cabinet on 22.5.2011 had taken a decision to do away with the Act 2010 and brought the Ordinance for that purpose.(viii) There was no material before the Government on the basis of which, the decision not to implement the Act 2010 could be taken as admittedly the Expert Committee had not done any exercise of reviewing the syllabus and textbooks till then.(ix) The validity of the said decision was challenged by parents and teachers and various other organisations before the High Court and interim orders were passed. It was at that stage that the Bill was introduced in the House on 7.6.2011 and the Amendment Act was passed and enforced with retrospective effect i.e. from 22.5.2011, the date of the decision of the Cabinet in this regard.(x) The interim orders passed by the High Court were challenged before this Court and the appeals were disposed of by this court vide judgment and order dated 14.6.2011, issuing large number of directions including constitution of the Expert Committee which would find out ways and means to enforce the common education system.(xi) The Secretary of School Education Department had filed affidavits before the High Court as well as before this Court pointing out that the Amendment Act 2011 was necessary in view of the fact that the Act 2010 was illegal and unconstitutional. However, the Secretary of School Education Department was inadvertently made a member of the Expert Committee by this Court. Though her inclusion in the Committee was totally unwarranted particularly in view of her stand taken before the High Court that the Act 2010 was unconstitutional and illegal.(xii) The Secretary, to the Govt. of Tamil Nadu School Education Department, who had been entrusted the responsibility to plead on behalf of the State, herself had approved the textbooks and fixed the prices for those books of Standards VIIIth, IXth and Xth vide G.O. dated 9.5.2011.(xiii) The members of the Expert Committee did not reject the text books and syllabus in toto, however, pointed out certain discrepancies therein and asked for rectification/improvements of the same.(xiv) The High Court as well as this Court upheld the validity of the Act 2010. Thus, it was not permissible for the legislature to annul the effect of the said judgments by the Amendment Act 2011, particularly so far as the Ist and VIth Standards are concerned. The list of approved textbooks had been published and made known to all concerned. Thus, the Act 2010 stood completely implemented so far these Standards were concerned.(xv) The Statement of Objects and Reasons of the Act 2011 clearly stipulated that legislature intended to find out a better system of school education. Thus, the object has been to repeal the Act 2010.(xvi) The legislature is competent to enact the revalidation Act under certain circumstances, where the statutory provisions are struck down by the court, fundamentally altering the conditions on which such a decision is based, but the legislature cannot enact, as has been enacted herein, an invalidation Act, rendering a statute nugatory.(xvii) The School Education Department of Tamil Nadu on 24.2.2011 called for private publishers to come out with the textbooks based on common education system, and submit for clearance by the Department by 5.4.2011, as taken note of by the High Court in its order dated 10.6.2011. Thus, in such a fact-situation, it was not permissible for the State to revert back to the old system at this advanced stage.(xviii) Most of the other directions given by the High Court on 30.4.2010, stood complied with. The DTERT had been appointed as Academic Authority as required under Section 29 of the Act 2009, vide G.O. dated 27.7.2010.(xix) The material produced by the respondents before this Court reveal that norms had been made known and the NCF 2005 was also implemented by issuing Tamil Nadu Curriculum 2009.(xx) The issue of repugnancy of the Act 2010 with the Act 2009 merely remains an academic issue as most of the discrepancies stood removed. Even if something remains to be done, it can be cured even now, however, such a minor issue could not be a good ground for putting the Act 2010 under suspended animation for an indefinite period on uncertain terms.(xxi) Undoubtedly, there had been a few instances of portraying the personality by the leader of political party earlier in power, i.e. personal glorification, self publicity and promotion of his own cult and philosophy, which could build his political image and influence the young students, particularly, in the books of primary classes. Such objectionable material, if any, could be deleted, rather than putting the operation of the Act 2010 in abeyance for indefinite period.(xxii) As early as in April 2011, textbooks for Xth Standard were posted in the official website of School Education Department and many students downloaded the same and started study of the same as the students, parents and teachers had been under the impression that for Standards II to V and VII to X, common education system would definitely be implemented from academic year 2011-12. Such pious hope of so many stakeholders could not be betrayed. Rolling back the Act 2010 at this belated stage and withdrawal thereof even for Standard I and VI would be unjust, iniquitous and unfair to all concerned.(xxiii) The Amendment Act 2011, in fact, has the effect of bringing back the effect of Section 14 of the Act 2010 which had been declared ultra vires by the High Court for the reason that the Board could not be given binding directions by the State Government.(xxiv) Even if a very few schools could not exercise their choice of multiple text books, it could not be a ground of scrapping the Act 2010.Steps should have been taken to remove the discrepancy.(xxv) Passing the Act 2011, amounts to nullify the effect of the High Court and this Courts judgments and such an act simply tantamounts to subversive of law.
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### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
that there had been a pre-determined political decision to scrap the Act 2010. The Cabinet on 22.5.2011 had taken a decision to do away with the Act 2010 and brought the Ordinance for that purpose.(viii) There was no material before the Government on the basis of which, the decision not to implement the Act 2010 could be taken as admittedly the Expert Committee had not done any exercise of reviewing the syllabus and textbooks till then.(ix) The validity of the said decision was challenged by parents and teachers and various other organisations before the High Court and interim orders were passed. It was at that stage that the Bill was introduced in the House on 7.6.2011 and the Amendment Act was passed and enforced with retrospective effect i.e. from 22.5.2011, the date of the decision of the Cabinet in this regard.(x) The interim orders passed by the High Court were challenged before this Court and the appeals were disposed of by this court vide judgment and order dated 14.6.2011, issuing large number of directions including constitution of the Expert Committee which would find out ways and means to enforce the common education system.(xi) The Secretary of School Education Department had filed affidavits before the High Court as well as before this Court pointing out that the Amendment Act 2011 was necessary in view of the fact that the Act 2010 was illegal and unconstitutional. However, the Secretary of School Education Department was inadvertently made a member of the Expert Committee by this Court. Though her inclusion in the Committee was totally unwarranted particularly in view of her stand taken before the High Court that the Act 2010 was unconstitutional and illegal.(xii) The Secretary, to the Govt. of Tamil Nadu School Education Department, who had been entrusted the responsibility to plead on behalf of the State, herself had approved the textbooks and fixed the prices for those books of Standards VIIIth, IXth and Xth vide G.O. dated 9.5.2011.(xiii) The members of the Expert Committee did not reject the text books and syllabus in toto, however, pointed out certain discrepancies therein and asked for rectification/improvements of the same.(xiv) The High Court as well as this Court upheld the validity of the Act 2010. Thus, it was not permissible for the legislature to annul the effect of the said judgments by the Amendment Act 2011, particularly so far as the Ist and VIth Standards are concerned. The list of approved textbooks had been published and made known to all concerned. Thus, the Act 2010 stood completely implemented so far these Standards were concerned.(xv) The Statement of Objects and Reasons of the Act 2011 clearly stipulated that legislature intended to find out a better system of school education. Thus, the object has been to repeal the Act 2010.(xvi) The legislature is competent to enact the revalidation Act under certain circumstances, where the statutory provisions are struck down by the court, fundamentally altering the conditions on which such a decision is based, but the legislature cannot enact, as has been enacted herein, an invalidation Act, rendering a statute nugatory.(xvii) The School Education Department of Tamil Nadu on 24.2.2011 called for private publishers to come out with the textbooks based on common education system, and submit for clearance by the Department by 5.4.2011, as taken note of by the High Court in its order dated 10.6.2011. Thus, in such a fact-situation, it was not permissible for the State to revert back to the old system at this advanced stage.(xviii) Most of the other directions given by the High Court on 30.4.2010, stood complied with. The DTERT had been appointed as Academic Authority as required under Section 29 of the Act 2009, vide G.O. dated 27.7.2010.(xix) The material produced by the respondents before this Court reveal that norms had been made known and the NCF 2005 was also implemented by issuing Tamil Nadu Curriculum 2009.(xx) The issue of repugnancy of the Act 2010 with the Act 2009 merely remains an academic issue as most of the discrepancies stood removed. Even if something remains to be done, it can be cured even now, however, such a minor issue could not be a good ground for putting the Act 2010 under suspended animation for an indefinite period on uncertain terms.(xxi) Undoubtedly, there had been a few instances of portraying the personality by the leader of political party earlier in power, i.e. personal glorification, self publicity and promotion of his own cult and philosophy, which could build his political image and influence the young students, particularly, in the books of primary classes. Such objectionable material, if any, could be deleted, rather than putting the operation of the Act 2010 in abeyance for indefinite period.(xxii) As early as in April 2011, textbooks for Xth Standard were posted in the official website of School Education Department and many students downloaded the same and started study of the same as the students, parents and teachers had been under the impression that for Standards II to V and VII to X, common education system would definitely be implemented from academic year 2011-12. Such pious hope of so many stakeholders could not be betrayed. Rolling back the Act 2010 at this belated stage and withdrawal thereof even for Standard I and VI would be unjust, iniquitous and unfair to all concerned.(xxiii) The Amendment Act 2011, in fact, has the effect of bringing back the effect of Section 14 of the Act 2010 which had been declared ultra vires by the High Court for the reason that the Board could not be given binding directions by the State Government.(xxiv) Even if a very few schools could not exercise their choice of multiple text books, it could not be a ground of scrapping the Act 2010.Steps should have been taken to remove the discrepancy.(xxv) Passing the Act 2011, amounts to nullify the effect of the High Court and this Courts judgments and such an act simply tantamounts to subversive of law. 71. In view of the above,
### Response:
0
### Explanation:
the old education system. It shows that there had been a pre-determined political decision to scrap the Act 2010. The Cabinet on 22.5.2011 had taken a decision to do away with the Act 2010 and brought the Ordinance for that purpose.(viii) There was no material before the Government on the basis of which, the decision not to implement the Act 2010 could be taken as admittedly the Expert Committee had not done any exercise of reviewing the syllabus and textbooks till then.(ix) The validity of the said decision was challenged by parents and teachers and various other organisations before the High Court and interim orders were passed. It was at that stage that the Bill was introduced in the House on 7.6.2011 and the Amendment Act was passed and enforced with retrospective effect i.e. from 22.5.2011, the date of the decision of the Cabinet in this regard.(x) The interim orders passed by the High Court were challenged before this Court and the appeals were disposed of by this court vide judgment and order dated 14.6.2011, issuing large number of directions including constitution of the Expert Committee which would find out ways and means to enforce the common education system.(xi) The Secretary of School Education Department had filed affidavits before the High Court as well as before this Court pointing out that the Amendment Act 2011 was necessary in view of the fact that the Act 2010 was illegal and unconstitutional. However, the Secretary of School Education Department was inadvertently made a member of the Expert Committee by this Court. Though her inclusion in the Committee was totally unwarranted particularly in view of her stand taken before the High Court that the Act 2010 was unconstitutional and illegal.(xii) The Secretary, to the Govt. of Tamil Nadu School Education Department, who had been entrusted the responsibility to plead on behalf of the State, herself had approved the textbooks and fixed the prices for those books of Standards VIIIth, IXth and Xth vide G.O. dated 9.5.2011.(xiii) The members of the Expert Committee did not reject the text books and syllabus in toto, however, pointed out certain discrepancies therein and asked for rectification/improvements of the same.(xiv) The High Court as well as this Court upheld the validity of the Act 2010. Thus, it was not permissible for the legislature to annul the effect of the said judgments by the Amendment Act 2011, particularly so far as the Ist and VIth Standards are concerned. The list of approved textbooks had been published and made known to all concerned. Thus, the Act 2010 stood completely implemented so far these Standards were concerned.(xv) The Statement of Objects and Reasons of the Act 2011 clearly stipulated that legislature intended to find out a better system of school education. Thus, the object has been to repeal the Act 2010.(xvi) The legislature is competent to enact the revalidation Act under certain circumstances, where the statutory provisions are struck down by the court, fundamentally altering the conditions on which such a decision is based, but the legislature cannot enact, as has been enacted herein, an invalidation Act, rendering a statute nugatory.(xvii) The School Education Department of Tamil Nadu on 24.2.2011 called for private publishers to come out with the textbooks based on common education system, and submit for clearance by the Department by 5.4.2011, as taken note of by the High Court in its order dated 10.6.2011. Thus, in such a fact-situation, it was not permissible for the State to revert back to the old system at this advanced stage.(xviii) Most of the other directions given by the High Court on 30.4.2010, stood complied with. The DTERT had been appointed as Academic Authority as required under Section 29 of the Act 2009, vide G.O. dated 27.7.2010.(xix) The material produced by the respondents before this Court reveal that norms had been made known and the NCF 2005 was also implemented by issuing Tamil Nadu Curriculum 2009.(xx) The issue of repugnancy of the Act 2010 with the Act 2009 merely remains an academic issue as most of the discrepancies stood removed. Even if something remains to be done, it can be cured even now, however, such a minor issue could not be a good ground for putting the Act 2010 under suspended animation for an indefinite period on uncertain terms.(xxi) Undoubtedly, there had been a few instances of portraying the personality by the leader of political party earlier in power, i.e. personal glorification, self publicity and promotion of his own cult and philosophy, which could build his political image and influence the young students, particularly, in the books of primary classes. Such objectionable material, if any, could be deleted, rather than putting the operation of the Act 2010 in abeyance for indefinite period.(xxii) As early as in April 2011, textbooks for Xth Standard were posted in the official website of School Education Department and many students downloaded the same and started study of the same as the students, parents and teachers had been under the impression that for Standards II to V and VII to X, common education system would definitely be implemented from academic year 2011-12. Such pious hope of so many stakeholders could not be betrayed. Rolling back the Act 2010 at this belated stage and withdrawal thereof even for Standard I and VI would be unjust, iniquitous and unfair to all concerned.(xxiii) The Amendment Act 2011, in fact, has the effect of bringing back the effect of Section 14 of the Act 2010 which had been declared ultra vires by the High Court for the reason that the Board could not be given binding directions by the State Government.(xxiv) Even if a very few schools could not exercise their choice of multiple text books, it could not be a ground of scrapping the Act 2010.Steps should have been taken to remove the discrepancy.(xxv) Passing the Act 2011, amounts to nullify the effect of the High Court and this Courts judgments and such an act simply tantamounts to subversive of law.
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Raja Kulkarni And Others Vs. The State Of Bombay
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it. Nagendra Nath v. Suresh Chandra. We consider that the word appeal must be constructed in its plain and natural sense without the insertion of any qualifying words such as are intended to be introduced by the contention raised before us. There is yet another reason for not constructing the word appeal in the manner suggested by the appellants and that is that the legislature in introducing this provision contemplated that industrial peace should not be disturbed so long as the matter was pending in the court of appeal, irrespective of the fact whether such an appeal was competent in law, if this were not the case, the parties could easily defeat the object of the legislature by errogating to themselves the right to decide about the competency of the appeal without reference to the court, commit a breach of the peace and escape the penalty imposed by S. 27. There was no justification for the appellants to instigate the workers in the so-called bona fide belief that section 27 did not apply to an appeal which they thought was incompetent. In this view of the matter it is not necessary to consider whether the conferment of a right of appeal during the pendency of a proceeding can affect the rights of the parties to those proceedings and make the order the pending proceeding appealable. (8) The second contention relates to the alleged infringement of the rights of the appellants under Article 19 (1) (a) and (c), read with Article 14 of the Constitution. In order to understand this contention, a reference to the provisions of the Bombay Industrial Relations Act, 1946, will be necessary. (9) Section 3, sub-section (32) defines Representative of Employees as one entitled to act as such under section 30 and representative Union is defined as a Union for the time being registered as a representative Union under the Act (Sub-section 33). (10) Section 12 enjoins upon the Registrar of Union appointed under the Act to maintain: (a) a register of Unions registered by him under the provisions of the Act and (b) a list of approved Unions. (11) Section 13 deals with the registration of Union by the Registrar. By the first sub-section a Union can be registered as a representative Union for an industry in a local area if it has for the whole of the period of three months next preceding the date of its application, a membership of not less than 15 per cent of the total number of employees employed in any industry in any local area. If a Union does not satisfy that condition and has a membership of not less than five per cent, it can be registered as a qualified Union, If neither of these Unions has been registered in respect of an industry, then a Union having a membership of not less than 15 per cent of the total number of employees employed in any undertaking in such industry can by an application to the Registrar by registered as a primary Union. It is common ground that the Rashtriya Mill Mazdoor Sangh comes under the first category and the Union of which the appellants are office-bearers comes under the second namely that it is a qualified Union. This registration can be cancelled under section 15 if it has been procured by mistake, misrepresentation or fraud or if the membership has fallen below the minimum required under section 13 for its registration. (12) It is argued that the right of the appellants to freedom of speech and expression and to form associations or Unions under Article 19 (1) and (c), read with Article 14, conferring the right or equality before the law or the equal protection of the laws is infringed by the Act, inasmuch as it gives preference to a trade Union upon the artificial test of having the greater percentage of membership, namely not less than 15 per cent. We see little merit in this contention. It is obvious that the Act imposes no restriction either upon the freedom of speech and expression of the Textile workers or their right to form associations or Unions; indeed it is not denied that the workers have already formed as many as three Unions, though they do not exhaust the number of workers in Bombay, for it leaves as many as 65 per cent of workers unorganized who do not belong to any trade Union. The statute lays down the minimum qualification of 15 per cent, of membership to enable the Union to be called a representativee Union so as to represent the interests of the entire body of workers in their relations with the employers. After laying down the test of not less than 15 per cent it was perfectly reasonable not to allow any other Union such as the appellants to interpose in a dispute on behalf of the Textile workers when they did not command the minimum percentage or when their membership fell below the prescribed percentage. It is perfectly open to the appellants to enlist that percentage over the Rashtriya Mill Mazdoor Sangh so as to be able to represent the interests of all the workers. The right to freedom of speech and expression is not denied to the appellants, nor are they prohibited from forming associations or Unions. (13) The Act makes no discrimination between Textile workers as a class but lays down a reasonable classification to the effect that a certain percentage of membership possessed by a Union will be allowed to represent the workers as a class to the exclusion of others but there is nothing to prevent the other Unions or other workers from forming a fresh Union and enrolling a higher percentage so as to acquire the sole right of representation. The appellants challenge the validity of the Act as infringing their fundamental rights and yet they base their case of discrimination on the provisions of the same Act. This position is not in accord with reason or principle. (14)
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0[ds]From the mere fact that such an appeal is held to be unmaintainable on any ground whatsoever, it does not follow that there was no appeal pending before the Court. Article 182 (2) of the Indian Limitation Act prescribed three years period of limitation for the execution of a decree or order to run from the date of the final decree or order of the Appellate Court when there has been an appeal.The Privy Council constructed the latter phrase to mean that any application by a party to the Appellate Court to set aside or revise a decree or order of a Court subordinate thereto is an appeal within the meaning of the above provision, even though it is irregular or incompetent, or the persons affected by the application to execute were not parties., or it did not imperil the whole decree or order. They refused to read into the words any qualification either as to the character of the appeal, or as to the parties to it. Nagendra Nath v. Suresh Chandra. We consider that the word appeal must be constructed in its plain and natural sense without the insertion of any qualifying words such as are intended to be introduced by the contention raised before us. There is yet another reason for not constructing the word appeal in the manner suggested by the appellants and that is that the legislature in introducing this provision contemplated that industrial peace should not be disturbed so long as the matter was pending in the court of appeal, irrespective of the fact whether such an appeal was competent in law, if this were not the case, the parties could easily defeat the object of the legislature by errogating to themselves the right to decide about the competency of the appeal without reference to the court, commit a breach of the peace and escape the penalty imposed by S. 27. There was no justification for the appellants to instigate the workers in the so-called bona fide belief that section 27 did not apply to an appeal which they thought was incompetent. In this view of the matter it is not necessary to consider whether the conferment of a right of appeal during the pendency of a proceeding can affect the rights of the parties to those proceedings and make the order the pending proceeding appealableIt is obvious that the Act imposes no restriction either upon the freedom of speech and expression of the Textile workers or their right to form associations or Unions; indeed it is not denied that the workers have already formed as many as three Unions, though they do not exhaust the number of workers in Bombay, for it leaves as many as 65 per cent of workers unorganized who do not belong to any trade Union. The statute lays down the minimum qualification of 15 per cent, of membership to enable the Union to be called a representativee Union so as to represent the interests of the entire body of workers in their relations with the employers. After laying down the test of not less than 15 per cent it was perfectly reasonable not to allow any other Union such as the appellants to interpose in a dispute on behalf of the Textile workers when they did not command the minimum percentage or when their membership fell below the prescribed percentage. It is perfectly open to the appellants to enlist that percentage over the Rashtriya Mill Mazdoor Sangh so as to be able to represent the interests of all the workers. The right to freedom of speech and expression is not denied to the appellants, nor are they prohibited from forming associations or Unions.The Act makes no discrimination between Textile workers as a class but lays down a reasonable classification to the effect that a certain percentage of membership possessed by a Union will be allowed to represent the workers as a class to the exclusion of others but there is nothing to prevent the other Unions or other workers from forming a fresh Union and enrolling a higher percentage so as to acquire the sole right of representation. The appellants challenge the validity of the Act as infringing their fundamental rights and yet they base their case of discrimination on the provisions of the same Act. This position is not in accord with reason or principle.
| 0 | 2,364 | 762 |
### 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:
it. Nagendra Nath v. Suresh Chandra. We consider that the word appeal must be constructed in its plain and natural sense without the insertion of any qualifying words such as are intended to be introduced by the contention raised before us. There is yet another reason for not constructing the word appeal in the manner suggested by the appellants and that is that the legislature in introducing this provision contemplated that industrial peace should not be disturbed so long as the matter was pending in the court of appeal, irrespective of the fact whether such an appeal was competent in law, if this were not the case, the parties could easily defeat the object of the legislature by errogating to themselves the right to decide about the competency of the appeal without reference to the court, commit a breach of the peace and escape the penalty imposed by S. 27. There was no justification for the appellants to instigate the workers in the so-called bona fide belief that section 27 did not apply to an appeal which they thought was incompetent. In this view of the matter it is not necessary to consider whether the conferment of a right of appeal during the pendency of a proceeding can affect the rights of the parties to those proceedings and make the order the pending proceeding appealable. (8) The second contention relates to the alleged infringement of the rights of the appellants under Article 19 (1) (a) and (c), read with Article 14 of the Constitution. In order to understand this contention, a reference to the provisions of the Bombay Industrial Relations Act, 1946, will be necessary. (9) Section 3, sub-section (32) defines Representative of Employees as one entitled to act as such under section 30 and representative Union is defined as a Union for the time being registered as a representative Union under the Act (Sub-section 33). (10) Section 12 enjoins upon the Registrar of Union appointed under the Act to maintain: (a) a register of Unions registered by him under the provisions of the Act and (b) a list of approved Unions. (11) Section 13 deals with the registration of Union by the Registrar. By the first sub-section a Union can be registered as a representative Union for an industry in a local area if it has for the whole of the period of three months next preceding the date of its application, a membership of not less than 15 per cent of the total number of employees employed in any industry in any local area. If a Union does not satisfy that condition and has a membership of not less than five per cent, it can be registered as a qualified Union, If neither of these Unions has been registered in respect of an industry, then a Union having a membership of not less than 15 per cent of the total number of employees employed in any undertaking in such industry can by an application to the Registrar by registered as a primary Union. It is common ground that the Rashtriya Mill Mazdoor Sangh comes under the first category and the Union of which the appellants are office-bearers comes under the second namely that it is a qualified Union. This registration can be cancelled under section 15 if it has been procured by mistake, misrepresentation or fraud or if the membership has fallen below the minimum required under section 13 for its registration. (12) It is argued that the right of the appellants to freedom of speech and expression and to form associations or Unions under Article 19 (1) and (c), read with Article 14, conferring the right or equality before the law or the equal protection of the laws is infringed by the Act, inasmuch as it gives preference to a trade Union upon the artificial test of having the greater percentage of membership, namely not less than 15 per cent. We see little merit in this contention. It is obvious that the Act imposes no restriction either upon the freedom of speech and expression of the Textile workers or their right to form associations or Unions; indeed it is not denied that the workers have already formed as many as three Unions, though they do not exhaust the number of workers in Bombay, for it leaves as many as 65 per cent of workers unorganized who do not belong to any trade Union. The statute lays down the minimum qualification of 15 per cent, of membership to enable the Union to be called a representativee Union so as to represent the interests of the entire body of workers in their relations with the employers. After laying down the test of not less than 15 per cent it was perfectly reasonable not to allow any other Union such as the appellants to interpose in a dispute on behalf of the Textile workers when they did not command the minimum percentage or when their membership fell below the prescribed percentage. It is perfectly open to the appellants to enlist that percentage over the Rashtriya Mill Mazdoor Sangh so as to be able to represent the interests of all the workers. The right to freedom of speech and expression is not denied to the appellants, nor are they prohibited from forming associations or Unions. (13) The Act makes no discrimination between Textile workers as a class but lays down a reasonable classification to the effect that a certain percentage of membership possessed by a Union will be allowed to represent the workers as a class to the exclusion of others but there is nothing to prevent the other Unions or other workers from forming a fresh Union and enrolling a higher percentage so as to acquire the sole right of representation. The appellants challenge the validity of the Act as infringing their fundamental rights and yet they base their case of discrimination on the provisions of the same Act. This position is not in accord with reason or principle. (14)
### Response:
0
### Explanation:
From the mere fact that such an appeal is held to be unmaintainable on any ground whatsoever, it does not follow that there was no appeal pending before the Court. Article 182 (2) of the Indian Limitation Act prescribed three years period of limitation for the execution of a decree or order to run from the date of the final decree or order of the Appellate Court when there has been an appeal.The Privy Council constructed the latter phrase to mean that any application by a party to the Appellate Court to set aside or revise a decree or order of a Court subordinate thereto is an appeal within the meaning of the above provision, even though it is irregular or incompetent, or the persons affected by the application to execute were not parties., or it did not imperil the whole decree or order. They refused to read into the words any qualification either as to the character of the appeal, or as to the parties to it. Nagendra Nath v. Suresh Chandra. We consider that the word appeal must be constructed in its plain and natural sense without the insertion of any qualifying words such as are intended to be introduced by the contention raised before us. There is yet another reason for not constructing the word appeal in the manner suggested by the appellants and that is that the legislature in introducing this provision contemplated that industrial peace should not be disturbed so long as the matter was pending in the court of appeal, irrespective of the fact whether such an appeal was competent in law, if this were not the case, the parties could easily defeat the object of the legislature by errogating to themselves the right to decide about the competency of the appeal without reference to the court, commit a breach of the peace and escape the penalty imposed by S. 27. There was no justification for the appellants to instigate the workers in the so-called bona fide belief that section 27 did not apply to an appeal which they thought was incompetent. In this view of the matter it is not necessary to consider whether the conferment of a right of appeal during the pendency of a proceeding can affect the rights of the parties to those proceedings and make the order the pending proceeding appealableIt is obvious that the Act imposes no restriction either upon the freedom of speech and expression of the Textile workers or their right to form associations or Unions; indeed it is not denied that the workers have already formed as many as three Unions, though they do not exhaust the number of workers in Bombay, for it leaves as many as 65 per cent of workers unorganized who do not belong to any trade Union. The statute lays down the minimum qualification of 15 per cent, of membership to enable the Union to be called a representativee Union so as to represent the interests of the entire body of workers in their relations with the employers. After laying down the test of not less than 15 per cent it was perfectly reasonable not to allow any other Union such as the appellants to interpose in a dispute on behalf of the Textile workers when they did not command the minimum percentage or when their membership fell below the prescribed percentage. It is perfectly open to the appellants to enlist that percentage over the Rashtriya Mill Mazdoor Sangh so as to be able to represent the interests of all the workers. The right to freedom of speech and expression is not denied to the appellants, nor are they prohibited from forming associations or Unions.The Act makes no discrimination between Textile workers as a class but lays down a reasonable classification to the effect that a certain percentage of membership possessed by a Union will be allowed to represent the workers as a class to the exclusion of others but there is nothing to prevent the other Unions or other workers from forming a fresh Union and enrolling a higher percentage so as to acquire the sole right of representation. The appellants challenge the validity of the Act as infringing their fundamental rights and yet they base their case of discrimination on the provisions of the same Act. This position is not in accord with reason or principle.
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Commissioner Of Income-Tax, Mysore Vs. Bangalore Transport Co. Ltd
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gross sale proceeds were received by them in India and that being the position the provisions of Section 4 (1) (a) were immediately attracted and the income, profits and gains so received became chargeable to tax under Section 3 of the Act."The same principle applies to receipts in the course of business of a transport operator.7. The Company carried on the business of a transport operator between April 1, 1956 and September 30, 1956 and the audited accounts of the Company disclosed that embedded in the gross receipts was a net profit of Rs. 4,01,954 during that period. That profit reduced by outgoings properly allowable in the computation of the total taxable income became subject to a charge to tax. The total taxable profits may under the scheme of the Act be determined at the end of the previous year but it does not follow therefrom that to profits earned during the year, the charge of tax does not attach. Assuming that the business of the Company was closed on October 1, 1956 when its undertaking and assets were taken over by the Government of Mysore, it was, for reasons stated earlier, still liable to be taxed in respect of its profits which accrued or were received by the Company prior to the date of the closure of the business.8. Counsel for the Company relied upon a recent decision of this Court in Commissioner of Income-tax, Gujarat v. Ashokbhai Chimanbhai, 1965-56 ITR 42 = (AIR 1965 SC 1343 ) and contended that profits of a business which are liable to tax under the Income-tax Act, can only accrue at the end of the previous year and not before. But that case lays down no such proposition. Under an agreement of partnership, the manager of a Hindu undivided family who was a partner was to receive a share in the profits of the firm. The accounts of the firm were to be adjusted at the end of every calendar year. Before the expiry of the previous year relevant to the assessment year 1955-56, there was a partition in the family and the entire share in the profits of the firm as, under the partition agreement, allotted to the manager. The Income-tax Officer in proceedings for assessment to tax sought to apportion the profits received by the manager between the undivided family and the manager in his individual capacity. This Court held that the right to receive the share of profits of the firm for the previous year 1955 arose on the settlement of accounts of the firm, and not before, and on that date the manager alone was the owner of the share of profits and the family had no right therein and it was not liable to be taxed in respect of any part of the income. It is clear on a bare perusal of the statement of facts of that case that no income or profits had accrued to the Hindu undivided family at any time in the year of account prior to the date of dissolution. It was observed in Ashokbhai Chimanbhais case, 1965-56 ITR 42 at p. 46 = (AIR 1965 SC 1343 at p. 1345):"In the gross receipts of a business day after day or from transaction to transaction lies embedded or dormant profit or loss; on such dormant profit or loss undoubtedly taxable profits if any of the business will be computed. But dormant profits cannot be equated with profits charged to tax under Sections 3 and 4 of the Income-tax Act. The concept of accrual of profits of a business involves the determination by the method of accounting at the end of the accounting year or any shorter period determined by law. If profits accrue to the assessee directly from the business the question whether they accrue de die in diem or at the close of the year of account has at best an academic significance, but when upon ascertainment of profits the right of a person to a share therein is determined, the question assumes practical importance, for it is only on the right to receive profits or income, profits accrue to that person. If there is no right, no profits will be deemed to have accrued."The Hindu undivided family became entitled to a share in the profits of the firm only at the end of every calendar year, and not before. If before that date the right of the family to a share in the profits was divested, no income accrued or arose to the family. In the present case the profits directly arose to the Company de die in diem, and could be ascertained by the method of accounting adopted by the Company at the end of the year or when the business was closed.9. The question whether the amount of profits assessed were actually shared by the Company within the meaning of Sec.26 (2) of the Indian Income-tax Act does not need consideration. By sub-section (2) of sec. 26 where a person carrying on any business, profession or vocation has been succeeded in such capacity by another person, such person and such other person shall, each be assessed in respect of his actual share, if any, of the income, profits and gains of the previous year. The question whether the profits of the Company held taxable by the Income-tax Officer represented the actual share of the Company in the profits and gains of the previous year was never raised before the Income-tax Appellate Tribunal and has not been decided. Counsel for the Company merely contended that the amount sought to be charged was not liable to be taxed, because it was not profit of the Company. Counsel has also not contended before us that for the profits received by the Company the State of Mysore is, by virtue of Section 26 (2) of the Income-tax Act, liable to be taxed.10. The answer recorded by the High Court will therefore be discharged and there will be an answer in the affirmative.
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1[ds]6. There is no warrant for this argument in the scheme of the Income-tax Act. Under Section 10 (1) of the Income-tax Act, 1922, tax is payable by an assessee under the head "Profits and gains of business, profession or vocation" in respect of the profit or gains of any business, profession or vocation carried on by him. There is nothing in the Act which supports the argument that for profits of the business to be taxable, the business must be actively carried on for the whole of the previous year, or till the end of the previous year. Under the scheme of the Income-tax Act whenever an assessee receives in the course of his business money or moneys worth, income embedded therein accrues or arises to him, and becomes subject to an ambulatory charge. If at the end of the previous year, on making up accounts there is no overall income the charge does not crystallise because there is no income on which the charge of tax may settle.The Company carried on the business of a transport operator between April 1, 1956 and September 30, 1956 and the audited accounts of the Company disclosed that embedded in the gross receipts was a net profit of Rs. 4,01,954 during that period. That profit reduced by outgoings properly allowable in the computation of the total taxable income became subject to a charge to tax. The total taxable profits may under the scheme of the Act be determined at the end of the previous year but it does not follow therefrom that to profits earned during the year, the charge of tax does not attach. Assuming that the business of the Company was closed on October 1, 1956 when its undertaking and assets were taken over by the Government of Mysore, it was, for reasons stated earlier, still liable to be taxed in respect of its profits which accrued or were received by the Company prior to the date of the closure of thethat case lays down no such proposition. Under an agreement of partnership, the manager of a Hindu undivided family who was a partner was to receive a share in the profits of the firm. The accounts of the firm were to be adjusted at the end of every calendaris clear on a bare perusal of the statement of facts of that case that no income or profits had accrued to the Hindu undivided family at any time in the year of account prior to the date ofHindu undivided family became entitled to a share in the profits of the firm only at the end of every calendar year, and not before. If before that date the right of the family to a share in the profits was divested, no income accrued or arose to the family. In the present case the profits directly arose to the Company de die in diem, and could be ascertained by the method of accounting adopted by the Company at the end of the year or when the business washas also not contended before us that for the profits received by the Company the State of Mysore is, by virtue of Section 26 (2) of the Income-tax Act, liable to be taxed.10. The answer recorded by the High Court will therefore be discharged and there will be an answer in theour judgment the High Court erred in assuming that the character of the compensation received by the Company was determinative of the question submitted by the Tribunal. It was the claim of the Revenue that in the previous year the Company had earned taxable profit amounting to Rs. 3,16,439 and that profit was subject to tax in the hands of the Company. The department was not seeking to taxle or any part of the compensation received by the Company and the discussion as to what the compensation received by the Company was intended to replace was not relevant in determiningts which accrued or arose to the Company during the period April 1, 1956 to September 30, 1956 were taxable.
| 1 | 2,316 | 727 |
### 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:
gross sale proceeds were received by them in India and that being the position the provisions of Section 4 (1) (a) were immediately attracted and the income, profits and gains so received became chargeable to tax under Section 3 of the Act."The same principle applies to receipts in the course of business of a transport operator.7. The Company carried on the business of a transport operator between April 1, 1956 and September 30, 1956 and the audited accounts of the Company disclosed that embedded in the gross receipts was a net profit of Rs. 4,01,954 during that period. That profit reduced by outgoings properly allowable in the computation of the total taxable income became subject to a charge to tax. The total taxable profits may under the scheme of the Act be determined at the end of the previous year but it does not follow therefrom that to profits earned during the year, the charge of tax does not attach. Assuming that the business of the Company was closed on October 1, 1956 when its undertaking and assets were taken over by the Government of Mysore, it was, for reasons stated earlier, still liable to be taxed in respect of its profits which accrued or were received by the Company prior to the date of the closure of the business.8. Counsel for the Company relied upon a recent decision of this Court in Commissioner of Income-tax, Gujarat v. Ashokbhai Chimanbhai, 1965-56 ITR 42 = (AIR 1965 SC 1343 ) and contended that profits of a business which are liable to tax under the Income-tax Act, can only accrue at the end of the previous year and not before. But that case lays down no such proposition. Under an agreement of partnership, the manager of a Hindu undivided family who was a partner was to receive a share in the profits of the firm. The accounts of the firm were to be adjusted at the end of every calendar year. Before the expiry of the previous year relevant to the assessment year 1955-56, there was a partition in the family and the entire share in the profits of the firm as, under the partition agreement, allotted to the manager. The Income-tax Officer in proceedings for assessment to tax sought to apportion the profits received by the manager between the undivided family and the manager in his individual capacity. This Court held that the right to receive the share of profits of the firm for the previous year 1955 arose on the settlement of accounts of the firm, and not before, and on that date the manager alone was the owner of the share of profits and the family had no right therein and it was not liable to be taxed in respect of any part of the income. It is clear on a bare perusal of the statement of facts of that case that no income or profits had accrued to the Hindu undivided family at any time in the year of account prior to the date of dissolution. It was observed in Ashokbhai Chimanbhais case, 1965-56 ITR 42 at p. 46 = (AIR 1965 SC 1343 at p. 1345):"In the gross receipts of a business day after day or from transaction to transaction lies embedded or dormant profit or loss; on such dormant profit or loss undoubtedly taxable profits if any of the business will be computed. But dormant profits cannot be equated with profits charged to tax under Sections 3 and 4 of the Income-tax Act. The concept of accrual of profits of a business involves the determination by the method of accounting at the end of the accounting year or any shorter period determined by law. If profits accrue to the assessee directly from the business the question whether they accrue de die in diem or at the close of the year of account has at best an academic significance, but when upon ascertainment of profits the right of a person to a share therein is determined, the question assumes practical importance, for it is only on the right to receive profits or income, profits accrue to that person. If there is no right, no profits will be deemed to have accrued."The Hindu undivided family became entitled to a share in the profits of the firm only at the end of every calendar year, and not before. If before that date the right of the family to a share in the profits was divested, no income accrued or arose to the family. In the present case the profits directly arose to the Company de die in diem, and could be ascertained by the method of accounting adopted by the Company at the end of the year or when the business was closed.9. The question whether the amount of profits assessed were actually shared by the Company within the meaning of Sec.26 (2) of the Indian Income-tax Act does not need consideration. By sub-section (2) of sec. 26 where a person carrying on any business, profession or vocation has been succeeded in such capacity by another person, such person and such other person shall, each be assessed in respect of his actual share, if any, of the income, profits and gains of the previous year. The question whether the profits of the Company held taxable by the Income-tax Officer represented the actual share of the Company in the profits and gains of the previous year was never raised before the Income-tax Appellate Tribunal and has not been decided. Counsel for the Company merely contended that the amount sought to be charged was not liable to be taxed, because it was not profit of the Company. Counsel has also not contended before us that for the profits received by the Company the State of Mysore is, by virtue of Section 26 (2) of the Income-tax Act, liable to be taxed.10. The answer recorded by the High Court will therefore be discharged and there will be an answer in the affirmative.
### Response:
1
### Explanation:
6. There is no warrant for this argument in the scheme of the Income-tax Act. Under Section 10 (1) of the Income-tax Act, 1922, tax is payable by an assessee under the head "Profits and gains of business, profession or vocation" in respect of the profit or gains of any business, profession or vocation carried on by him. There is nothing in the Act which supports the argument that for profits of the business to be taxable, the business must be actively carried on for the whole of the previous year, or till the end of the previous year. Under the scheme of the Income-tax Act whenever an assessee receives in the course of his business money or moneys worth, income embedded therein accrues or arises to him, and becomes subject to an ambulatory charge. If at the end of the previous year, on making up accounts there is no overall income the charge does not crystallise because there is no income on which the charge of tax may settle.The Company carried on the business of a transport operator between April 1, 1956 and September 30, 1956 and the audited accounts of the Company disclosed that embedded in the gross receipts was a net profit of Rs. 4,01,954 during that period. That profit reduced by outgoings properly allowable in the computation of the total taxable income became subject to a charge to tax. The total taxable profits may under the scheme of the Act be determined at the end of the previous year but it does not follow therefrom that to profits earned during the year, the charge of tax does not attach. Assuming that the business of the Company was closed on October 1, 1956 when its undertaking and assets were taken over by the Government of Mysore, it was, for reasons stated earlier, still liable to be taxed in respect of its profits which accrued or were received by the Company prior to the date of the closure of thethat case lays down no such proposition. Under an agreement of partnership, the manager of a Hindu undivided family who was a partner was to receive a share in the profits of the firm. The accounts of the firm were to be adjusted at the end of every calendaris clear on a bare perusal of the statement of facts of that case that no income or profits had accrued to the Hindu undivided family at any time in the year of account prior to the date ofHindu undivided family became entitled to a share in the profits of the firm only at the end of every calendar year, and not before. If before that date the right of the family to a share in the profits was divested, no income accrued or arose to the family. In the present case the profits directly arose to the Company de die in diem, and could be ascertained by the method of accounting adopted by the Company at the end of the year or when the business washas also not contended before us that for the profits received by the Company the State of Mysore is, by virtue of Section 26 (2) of the Income-tax Act, liable to be taxed.10. The answer recorded by the High Court will therefore be discharged and there will be an answer in theour judgment the High Court erred in assuming that the character of the compensation received by the Company was determinative of the question submitted by the Tribunal. It was the claim of the Revenue that in the previous year the Company had earned taxable profit amounting to Rs. 3,16,439 and that profit was subject to tax in the hands of the Company. The department was not seeking to taxle or any part of the compensation received by the Company and the discussion as to what the compensation received by the Company was intended to replace was not relevant in determiningts which accrued or arose to the Company during the period April 1, 1956 to September 30, 1956 were taxable.
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UNION OF INDIA AND OTHERS Vs. DYALU RAM
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as ‘civil cooks? continuously since the date of their initial appointment. In the view of the Tribunal, the respondents could not have been treated to be privately engaged as daily wagers and Regimental Funds are not private funds raised out of individual contributions made by the Junior Commissioned Officers. Consequently, the order of termination was quashed with a direction to reinstate the respondents. The Tribunal has denied back wages but directed that the respondents should be treated to be in continuous service as civil cooks for the period during which they remained out of employment. While observing that no specific scheme was shown to it under which regularization could be claimed, the Tribunal has granted liberty to the respondents to represent their cases for regularization before the appropriate authority and directed that if there is a scheme in existence, their applications should be considered in accordance with their position in seniority. 3. The facts pertaining to the companion appeal are similar. 4. The Union of India assailed the above directions before the Division Bench of the High Court. The Writ Petitions have been dismissed. 5. Assailing the judgment of the Tribunal, Mr. Kailash Vasudev, learned Senior Counsel appearing on behalf of the Union of India submits that the position of Unit run Canteens of the Indian Army is not res integra and has been settled by a judgment of a three-Judge Bench in R.R. Pillai (D) Through Lrs. Versus Commanding Officer, Headquarters, Southern Air Command (U) [2009 (13) SCC 311 ]. It has been submitted that following this decision, the position in law is well settled that employees of Unit run Canteens are not engaged by the Army authorities and do not hold a post under the Union Government. This decision, has subsequently been followed in Union of India versus Gobinda Prasad Mula [2012 (13) SCC 565 ]. 6. In the above premises, it was urged that the basis on which reinstatement was granted is contrary to the law laid down by this Court. Learned counsel submitted that the Tribunal had no jurisdiction to entertain the Original Application, having regard to the provisions of Section 14 of the Administrative Tribunals Act, 1985 (?the Act?). 7. On the other hand, Mr. Ashok Agarwal, learned counsel appearing on behalf of the respondents submits that the Tribunal has elaborately considered the facts of the present appeals and has taken cognizance of the fact that though the respondents had worked continuously since 1993, their services were abruptly terminated in 2003. Learned counsel submitted that according to the finding of the Tribunal, the services of the respondents were arbitrarily terminated on the ground that they had declined to comply with a unilateral request to enter into a contract contrary to the original terms of engagement. Moreover, it was urged that following the decision of the Tribunal, they were reinstated on 9 January 2006, subject to the outcome of the Writ Petitions. Finally, it was urged that during the pendency of these proceedings, by an interim order dated 14 March 2014, this Court had directed that the pendency of the proceedings will not come in the way of the Union Government framing a policy for regularization of persons who are paid out of Regimental Funds. Learned counsel submitted that there is in fact such a policy, which is contained in Office Memorandum No.8(1) 2012/D (Civ II) dated 26 March 2012 of the Government of India in the Ministry of Defence. 8. The position of Unit run Canteens of the Indian Army is no longer res integra following the decision of the three-Judge Bench in R.R. Pillai (supra). The reference to the Bench of three-Judges was occasioned as a result of a doubt having been cast on an earlier decision of a two-Judge Bench in Union of India versus M. Aslam [2001 (1) SCC 720 ]. The Bench of three-Judges observed that despite noticing that Unit run Canteens are not funded from the Consolidated Fund of India, the two-Judge Bench in M. Aslam (supra) erroneously held that these canteens are funded by the Canteen Stores Department (CSD). In R.R. Pillai (supra), after reviewing the position of regimental canteens, this Court held that the employees have not been granted the status of government employees at any stage. Hence the reference was answered by holding that employees of the Unit run Canteens are not government employees. This decision has been followed in a subsequent decision in Gobinda Prasad Mula (supra). 9. In the present case, the judgment of the Tribunal is rendered unsustainable by the position of law which has been elaborated in both the above decisions. Indeed, once it is held that employees of regimental canteens are neither government servants nor are they engaged in connection with a civil post under the Union, the Tribunal would have had no jurisdiction to entertain the claim under Section 14 of the Act. 10. In this view of the matter, the directions which have been issued by the Tribunal are unsustainable. The submission which was sought to be urged by learned counsel appearing on behalf of the respondents based on the Office Memorandum dated 26 March 2012 of the Ministry of Defence is misconceived. The Office Memorandum applies to casual workers who are working in Directorates/Departments of the Ministry of Defence. Persons in the position of the respondents are not employed by either a Directorate or Department of the Ministry of Defence. Their role and position is already elaborated upon by the two judgments which we have cited above. 11. In pursuance of the judgment of the Tribunal, the respondents were reinstated, though subject to the outcome of the writ petitions. As a result of the order of reinstatement, they are continously in the service of the regimental canteens. 12. Once we have come to the conclusion that they do not have the status of government servants, we will necessarily to have to set aside the order passed by the Tribunal and the order of the High Court affirming that decision.
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1[ds]8. The position of Unit run Canteens of the Indian Army is no longer res integra following the decision of the three-Judge Bench in R.R. Pillai (supra). The reference to the Bench of three-Judges was occasioned as a result of a doubt having been cast on an earlier decision of a two-Judge Bench in Union of India versus M. Aslam [2001 (1) SCC 720 ]. The Bench of three-Judges observed that despite noticing that Unit run Canteens are not funded from the Consolidated Fund of India, the two-Judge Bench in M. Aslam (supra) erroneously held that these canteens are funded by the Canteen Stores Department (CSD). In R.R. Pillai (supra), after reviewing the position of regimental canteens, this Court held that the employees have not been granted the status of government employees at any stage. Hence the reference was answered by holding that employees of the Unit run Canteens are not government employees. This decision has been followed in a subsequent decision in Gobinda Prasad Mula (supra)9. In the present case, the judgment of the Tribunal is rendered unsustainable by the position of law which has been elaborated in both the above decisions. Indeed, once it is held that employees of regimental canteens are neither government servants nor are they engaged in connection with a civil post under the Union, the Tribunal would have had no jurisdiction to entertain the claim under Section 14 of the Act10. In this view of the matter, the directions which have been issued by the Tribunal are unsustainable. The submission which was sought to be urged by learned counsel appearing on behalf of the respondents based on the Office Memorandum dated 26 March 2012 of the Ministry of Defence is misconceived. The Office Memorandum applies to casual workers who are working in Directorates/Departments of the Ministry of Defence. Persons in the position of the respondents are not employed by either a Directorate or Department of the Ministry of Defence. Their role and position is already elaborated upon by the two judgments which we have cited above11. In pursuance of the judgment of the Tribunal, the respondents were reinstated, though subject to the outcome of the writ petitions. As a result of the order of reinstatement, they are continously in the service of the regimental canteens12. Once we have come to the conclusion that they do not have the status of government servants, we will necessarily to have to set aside the order passed by the Tribunal and the order of the High Court affirming that decision.
| 1 | 1,243 | 470 |
### 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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as ‘civil cooks? continuously since the date of their initial appointment. In the view of the Tribunal, the respondents could not have been treated to be privately engaged as daily wagers and Regimental Funds are not private funds raised out of individual contributions made by the Junior Commissioned Officers. Consequently, the order of termination was quashed with a direction to reinstate the respondents. The Tribunal has denied back wages but directed that the respondents should be treated to be in continuous service as civil cooks for the period during which they remained out of employment. While observing that no specific scheme was shown to it under which regularization could be claimed, the Tribunal has granted liberty to the respondents to represent their cases for regularization before the appropriate authority and directed that if there is a scheme in existence, their applications should be considered in accordance with their position in seniority. 3. The facts pertaining to the companion appeal are similar. 4. The Union of India assailed the above directions before the Division Bench of the High Court. The Writ Petitions have been dismissed. 5. Assailing the judgment of the Tribunal, Mr. Kailash Vasudev, learned Senior Counsel appearing on behalf of the Union of India submits that the position of Unit run Canteens of the Indian Army is not res integra and has been settled by a judgment of a three-Judge Bench in R.R. Pillai (D) Through Lrs. Versus Commanding Officer, Headquarters, Southern Air Command (U) [2009 (13) SCC 311 ]. It has been submitted that following this decision, the position in law is well settled that employees of Unit run Canteens are not engaged by the Army authorities and do not hold a post under the Union Government. This decision, has subsequently been followed in Union of India versus Gobinda Prasad Mula [2012 (13) SCC 565 ]. 6. In the above premises, it was urged that the basis on which reinstatement was granted is contrary to the law laid down by this Court. Learned counsel submitted that the Tribunal had no jurisdiction to entertain the Original Application, having regard to the provisions of Section 14 of the Administrative Tribunals Act, 1985 (?the Act?). 7. On the other hand, Mr. Ashok Agarwal, learned counsel appearing on behalf of the respondents submits that the Tribunal has elaborately considered the facts of the present appeals and has taken cognizance of the fact that though the respondents had worked continuously since 1993, their services were abruptly terminated in 2003. Learned counsel submitted that according to the finding of the Tribunal, the services of the respondents were arbitrarily terminated on the ground that they had declined to comply with a unilateral request to enter into a contract contrary to the original terms of engagement. Moreover, it was urged that following the decision of the Tribunal, they were reinstated on 9 January 2006, subject to the outcome of the Writ Petitions. Finally, it was urged that during the pendency of these proceedings, by an interim order dated 14 March 2014, this Court had directed that the pendency of the proceedings will not come in the way of the Union Government framing a policy for regularization of persons who are paid out of Regimental Funds. Learned counsel submitted that there is in fact such a policy, which is contained in Office Memorandum No.8(1) 2012/D (Civ II) dated 26 March 2012 of the Government of India in the Ministry of Defence. 8. The position of Unit run Canteens of the Indian Army is no longer res integra following the decision of the three-Judge Bench in R.R. Pillai (supra). The reference to the Bench of three-Judges was occasioned as a result of a doubt having been cast on an earlier decision of a two-Judge Bench in Union of India versus M. Aslam [2001 (1) SCC 720 ]. The Bench of three-Judges observed that despite noticing that Unit run Canteens are not funded from the Consolidated Fund of India, the two-Judge Bench in M. Aslam (supra) erroneously held that these canteens are funded by the Canteen Stores Department (CSD). In R.R. Pillai (supra), after reviewing the position of regimental canteens, this Court held that the employees have not been granted the status of government employees at any stage. Hence the reference was answered by holding that employees of the Unit run Canteens are not government employees. This decision has been followed in a subsequent decision in Gobinda Prasad Mula (supra). 9. In the present case, the judgment of the Tribunal is rendered unsustainable by the position of law which has been elaborated in both the above decisions. Indeed, once it is held that employees of regimental canteens are neither government servants nor are they engaged in connection with a civil post under the Union, the Tribunal would have had no jurisdiction to entertain the claim under Section 14 of the Act. 10. In this view of the matter, the directions which have been issued by the Tribunal are unsustainable. The submission which was sought to be urged by learned counsel appearing on behalf of the respondents based on the Office Memorandum dated 26 March 2012 of the Ministry of Defence is misconceived. The Office Memorandum applies to casual workers who are working in Directorates/Departments of the Ministry of Defence. Persons in the position of the respondents are not employed by either a Directorate or Department of the Ministry of Defence. Their role and position is already elaborated upon by the two judgments which we have cited above. 11. In pursuance of the judgment of the Tribunal, the respondents were reinstated, though subject to the outcome of the writ petitions. As a result of the order of reinstatement, they are continously in the service of the regimental canteens. 12. Once we have come to the conclusion that they do not have the status of government servants, we will necessarily to have to set aside the order passed by the Tribunal and the order of the High Court affirming that decision.
### Response:
1
### Explanation:
8. The position of Unit run Canteens of the Indian Army is no longer res integra following the decision of the three-Judge Bench in R.R. Pillai (supra). The reference to the Bench of three-Judges was occasioned as a result of a doubt having been cast on an earlier decision of a two-Judge Bench in Union of India versus M. Aslam [2001 (1) SCC 720 ]. The Bench of three-Judges observed that despite noticing that Unit run Canteens are not funded from the Consolidated Fund of India, the two-Judge Bench in M. Aslam (supra) erroneously held that these canteens are funded by the Canteen Stores Department (CSD). In R.R. Pillai (supra), after reviewing the position of regimental canteens, this Court held that the employees have not been granted the status of government employees at any stage. Hence the reference was answered by holding that employees of the Unit run Canteens are not government employees. This decision has been followed in a subsequent decision in Gobinda Prasad Mula (supra)9. In the present case, the judgment of the Tribunal is rendered unsustainable by the position of law which has been elaborated in both the above decisions. Indeed, once it is held that employees of regimental canteens are neither government servants nor are they engaged in connection with a civil post under the Union, the Tribunal would have had no jurisdiction to entertain the claim under Section 14 of the Act10. In this view of the matter, the directions which have been issued by the Tribunal are unsustainable. The submission which was sought to be urged by learned counsel appearing on behalf of the respondents based on the Office Memorandum dated 26 March 2012 of the Ministry of Defence is misconceived. The Office Memorandum applies to casual workers who are working in Directorates/Departments of the Ministry of Defence. Persons in the position of the respondents are not employed by either a Directorate or Department of the Ministry of Defence. Their role and position is already elaborated upon by the two judgments which we have cited above11. In pursuance of the judgment of the Tribunal, the respondents were reinstated, though subject to the outcome of the writ petitions. As a result of the order of reinstatement, they are continously in the service of the regimental canteens12. Once we have come to the conclusion that they do not have the status of government servants, we will necessarily to have to set aside the order passed by the Tribunal and the order of the High Court affirming that decision.
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Rana Sheo Ambar Singh Vs. Allahabad Bank Ltd., Allahabad
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It is true that under S. 44 of the Act when calculating net assets, the income from sir and khudkashat land and grove land has been excluded on the ground that bhumidari rights have been conferred therein under S. 18 of the Act. That is however for the purposes of calculating what should be paid to the intermediary as compensation and in that connection it was necessary to take into account the fact that the legislature was creating a new right in the intermediary with respect to certain lands and therefore it was not necessary to give money as compensation. That would not however make any difference in our view as to the legal effect of the notification under S. 4 and under the notification sir and khudkashat land and grove land would vest in the State and would not be an exception to the consequences of vesting in S. 6 and therefore the proprietary right in sir and khudkashat land and grove land which were mortgaged would be extinguished and the bhumidari right which is created by S. 18 would be a new right altogether and would not therefore be considered to be included under the mortgage in this case.9. This brings us to a consideration of S. 6 (h) of the Act. That lays down that"no claim or liability enforceable or incurred before the date of vesting by or against such intermediary for any money, which is charged on or is secured by a mortgage of such estate or part thereof shall, except as provided in S. 73 of the Transfer of Property Act, 1882, be enforceable against his interest in the estate."This provision has in our opinion a two-fold effect. In the first place, it makes it impossible for the mortgagee to follow the proprietary right after it vests in the State. Secondly it provides that the only way in which the mortgagee can recover his money advanced on the security of the property which vested in the State by virtue of the notification under S. 4 and the consequences thereof under S. 6 is to follow the procedure under S. 73 of the Transfer of Property Act. Section 73 (2) provides that :"where the mortgaged property or any part thereof or any interest therein is acquired under the Land Acquisition Act, 1894 (of 1894), or any other enactment for the time being in force providing for the compulsory acquisition, of immovable property, the mortgagee shall be entitled to claim payment of the mortgage money, in whole or in part, out of the amount due to the mortgagor as compensation."There is no doubt that the property mortgaged has been compulsorily acquired in this case by the State under the Act. Therefore, S. 6 (h) read with S. 73 directs that the mortgagee shall proceed in the manner provided in S. 73, namely, follow the compensation money, and there is no other way possible for him in view of S. 6 (h) with respect to the property which has been acquired under the Act. We have held that sir and khudkashat land and grove land have been acquired under the Act and have vested in the State; therefore the mortgagee is relegated to enforce his rights against the mortgagor in the manner provided in S. 73 of Transfer of Property Act and in no other way. What we say here does not affect that property which is not acquired by the state, for example, property expectted under S. 9 of the Act; but where the property has vested in the State by virtue of a notification under S.4 and its consequences under S.6, the only course open to the mortageee is to follow the compensation money under S.6(h). The bhumidari rights created under S. are not compensation; they are special rights confered on the intermidiary by virtue of his cultivatory possession of the lands comprised therein. The respondent therefore cannot enforce his rights under the mortgage by sale of the bhumidari rights created in favour of the appellant under S. 18 so far as his sir and khudkashat land and grove land and concerned; it can only follow the compensation money as provided in S. 6 (h). The argumed that bhumidari rights can be followed as substituted security must therefore equally fail.10. Out attention in this connection was drawn to S. 8 (2) of the U. P. Zamindars Debt Reduction Act No. XV of 1953. That Act provides for scaling down of debts of zamindars whose estate have been acquired under the Act. It also provides that the debts due shall be realisable from the compensation and rehabilitation grant, and in particular S. 8(2) provides that "notwithstanding anything in any law the reduced amount found in the case of a mortgagor or judgment-debtor as the case may be, under section 3 or 4 as respects mortgaged estates shall not be legally recoverable otherwise than out of the compensation and rehabilitation grant payable to such mortgagor or judgment-debtor in respect of such estates." We have not been able to understand how the provisions of the U. P. Zamindars Debt Reduction Act can affect the construction of S. 6 (h) of the Act read with other provisions of the Act. It is not necessary for us therefore to construe S. 8 (2) of the U. P. Zamindars Debt Reduction Act, for we are clear on the provisions of S. 6 (h) and the other provisions of the Act that bhumidari rights created in favour of the appellant cannot be sold in execution of the decree held against him by the respondent under the mortgage of 1914.11. This brings us to the question of limitation. Mr. Aggarwala conceded that if the appellant succeeds on the first point it would not be necessary for us to consider the question of limitation. Therefore, as the appellants succeeds on the first point we need not consider whether the application for execution by sale of bhumidari rights created under S. 18 is barred by limitation.
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1[ds]It is not in dispute that the Taluka of Khajurgaon was an estate within the meaning of the Act. It may be mentioned that the judgment-debtor had certain sir and khudkashat lands and zamindars grove in the sixty-seven villages comprised within the Talukdarilands therefore whether cultivable or barren or grove lands vested in the State on the notification under S. 4 having been made save as otherwise provided in this Act. Therefore, proprietary rights in sir and khudkashat land and grove land would vest in the State on the coming into force of the notification under S. 4 unless there was some provision otherwise in theprovision clearly creates an exception to the property which vests in the State on the making of a notification under S. 4. The exception is in favour of all wells and trees in abadi and all buildings and it is significant to note that these things will continue to belong to the intermediary, though the further provision shows that the site of the wells, and buildings with the area appurtenant thereto would vest in the Government and would be deemed to be settled with the intermediary on such conditions and terms as may be prescribed.legislature was therefore creating a new right under S. 18 and the old proprietary right in sir and khudkashat land and any intermediarys grove land had already vested under s. 6 in the State. Therefore, it cannot be said that S. 18 is an exception to the consequences provided in S. 6 and therefore sir and khudkashat land and grove land continue to be the property of the judgment-debtor in this case in the same manner as they were his property at the time of the mortgage and would therefore be available in execution of the decree as the proprietary rights mortgaged. We are of opinion that the proprietary rights in sir and khudkashat land and in grove land have vested in the State and what in conferred on the intermediary by S. 18 is a new right altogether which he never had and which could not therefore have been mortgaged inis true that under S. 44 of the Act when calculating net assets, the income from sir and khudkashat land and grove land has been excluded on the ground that bhumidari rights have been conferred therein under S. 18 of the Act. That is however for the purposes of calculating what should be paid to the intermediary as compensation and in that connection it was necessary to take into account the fact that the legislature was creating a new right in the intermediary with respect to certain lands and therefore it was not necessary to give money as compensation. That would not however make any difference in our view as to the legal effect of the notification under S. 4 and under the notification sir and khudkashat land and grove land would vest in the State and would not be an exception to the consequences of vesting in S. 6 and therefore the proprietary right in sir and khudkashat land and grove land which were mortgaged would be extinguished and the bhumidari right which is created by S. 18 would be a new right altogether and would not therefore be considered to be included under the mortgage in thisprovision has in our opinion a two-fold effect. In the first place, it makes it impossible for the mortgagee to follow the proprietary right after it vests in the State. Secondly it provides that the only way in which the mortgagee can recover his money advanced on the security of the property which vested in the State by virtue of the notification under S. 4 and the consequences thereof under S. 6 is to follow the procedure under S. 73 of the Transfer of Property Act.is no doubt that the property mortgaged has been compulsorily acquired in this case by the State under the Act. Therefore, S. 6 (h) read with S. 73 directs that the mortgagee shall proceed in the manner provided in S. 73, namely, follow the compensation money, and there is no other way possible for him in view of S. 6 (h) with respect to the property which has been acquired under the Act. We have held that sir and khudkashat land and grove land have been acquired under the Act and have vested in the State; therefore the mortgagee is relegated to enforce his rights against the mortgagor in the manner provided in S. 73 of Transfer of Property Act and in no other way. What we say here does not affect that property which is not acquired by the state, for example, property expectted under S. 9 of the Act; but where the property has vested in the State by virtue of a notification under S.4 and its consequences under S.6, the only course open to the mortageee is to follow the compensation money under S.6(h). The bhumidari rights created under S. are not compensation; they are special rights confered on the intermidiary by virtue of his cultivatory possession of the lands comprised therein. The respondent therefore cannot enforce his rights under the mortgage by sale of the bhumidari rights created in favour of the appellant under S. 18 so far as his sir and khudkashat land and grove land and concerned; it can only follow the compensation money as provided in S. 6 (h). The argumed that bhumidari rights can be followed as substituted security must therefore equally fail.We have not been able to understand how the provisions of the U. P. Zamindars Debt Reduction Act can affect the construction of S. 6 (h) of the Act read with other provisions of the Act. It is not necessary for us therefore to construe S. 8 (2) of the U. P. Zamindars Debt Reduction Act, for we are clear on the provisions of S. 6 (h) and the other provisions of the Act that bhumidari rights created in favour of the appellant cannot be sold in execution of the decree held against him by the respondent under the mortgage ofas the appellants succeeds on the first point we need not consider whether the application for execution by sale of bhumidari rights created under S. 18 is barred by limitation.
| 1 | 3,975 | 1,100 |
### 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:
It is true that under S. 44 of the Act when calculating net assets, the income from sir and khudkashat land and grove land has been excluded on the ground that bhumidari rights have been conferred therein under S. 18 of the Act. That is however for the purposes of calculating what should be paid to the intermediary as compensation and in that connection it was necessary to take into account the fact that the legislature was creating a new right in the intermediary with respect to certain lands and therefore it was not necessary to give money as compensation. That would not however make any difference in our view as to the legal effect of the notification under S. 4 and under the notification sir and khudkashat land and grove land would vest in the State and would not be an exception to the consequences of vesting in S. 6 and therefore the proprietary right in sir and khudkashat land and grove land which were mortgaged would be extinguished and the bhumidari right which is created by S. 18 would be a new right altogether and would not therefore be considered to be included under the mortgage in this case.9. This brings us to a consideration of S. 6 (h) of the Act. That lays down that"no claim or liability enforceable or incurred before the date of vesting by or against such intermediary for any money, which is charged on or is secured by a mortgage of such estate or part thereof shall, except as provided in S. 73 of the Transfer of Property Act, 1882, be enforceable against his interest in the estate."This provision has in our opinion a two-fold effect. In the first place, it makes it impossible for the mortgagee to follow the proprietary right after it vests in the State. Secondly it provides that the only way in which the mortgagee can recover his money advanced on the security of the property which vested in the State by virtue of the notification under S. 4 and the consequences thereof under S. 6 is to follow the procedure under S. 73 of the Transfer of Property Act. Section 73 (2) provides that :"where the mortgaged property or any part thereof or any interest therein is acquired under the Land Acquisition Act, 1894 (of 1894), or any other enactment for the time being in force providing for the compulsory acquisition, of immovable property, the mortgagee shall be entitled to claim payment of the mortgage money, in whole or in part, out of the amount due to the mortgagor as compensation."There is no doubt that the property mortgaged has been compulsorily acquired in this case by the State under the Act. Therefore, S. 6 (h) read with S. 73 directs that the mortgagee shall proceed in the manner provided in S. 73, namely, follow the compensation money, and there is no other way possible for him in view of S. 6 (h) with respect to the property which has been acquired under the Act. We have held that sir and khudkashat land and grove land have been acquired under the Act and have vested in the State; therefore the mortgagee is relegated to enforce his rights against the mortgagor in the manner provided in S. 73 of Transfer of Property Act and in no other way. What we say here does not affect that property which is not acquired by the state, for example, property expectted under S. 9 of the Act; but where the property has vested in the State by virtue of a notification under S.4 and its consequences under S.6, the only course open to the mortageee is to follow the compensation money under S.6(h). The bhumidari rights created under S. are not compensation; they are special rights confered on the intermidiary by virtue of his cultivatory possession of the lands comprised therein. The respondent therefore cannot enforce his rights under the mortgage by sale of the bhumidari rights created in favour of the appellant under S. 18 so far as his sir and khudkashat land and grove land and concerned; it can only follow the compensation money as provided in S. 6 (h). The argumed that bhumidari rights can be followed as substituted security must therefore equally fail.10. Out attention in this connection was drawn to S. 8 (2) of the U. P. Zamindars Debt Reduction Act No. XV of 1953. That Act provides for scaling down of debts of zamindars whose estate have been acquired under the Act. It also provides that the debts due shall be realisable from the compensation and rehabilitation grant, and in particular S. 8(2) provides that "notwithstanding anything in any law the reduced amount found in the case of a mortgagor or judgment-debtor as the case may be, under section 3 or 4 as respects mortgaged estates shall not be legally recoverable otherwise than out of the compensation and rehabilitation grant payable to such mortgagor or judgment-debtor in respect of such estates." We have not been able to understand how the provisions of the U. P. Zamindars Debt Reduction Act can affect the construction of S. 6 (h) of the Act read with other provisions of the Act. It is not necessary for us therefore to construe S. 8 (2) of the U. P. Zamindars Debt Reduction Act, for we are clear on the provisions of S. 6 (h) and the other provisions of the Act that bhumidari rights created in favour of the appellant cannot be sold in execution of the decree held against him by the respondent under the mortgage of 1914.11. This brings us to the question of limitation. Mr. Aggarwala conceded that if the appellant succeeds on the first point it would not be necessary for us to consider the question of limitation. Therefore, as the appellants succeeds on the first point we need not consider whether the application for execution by sale of bhumidari rights created under S. 18 is barred by limitation.
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1
### Explanation:
therefore whether cultivable or barren or grove lands vested in the State on the notification under S. 4 having been made save as otherwise provided in this Act. Therefore, proprietary rights in sir and khudkashat land and grove land would vest in the State on the coming into force of the notification under S. 4 unless there was some provision otherwise in theprovision clearly creates an exception to the property which vests in the State on the making of a notification under S. 4. The exception is in favour of all wells and trees in abadi and all buildings and it is significant to note that these things will continue to belong to the intermediary, though the further provision shows that the site of the wells, and buildings with the area appurtenant thereto would vest in the Government and would be deemed to be settled with the intermediary on such conditions and terms as may be prescribed.legislature was therefore creating a new right under S. 18 and the old proprietary right in sir and khudkashat land and any intermediarys grove land had already vested under s. 6 in the State. Therefore, it cannot be said that S. 18 is an exception to the consequences provided in S. 6 and therefore sir and khudkashat land and grove land continue to be the property of the judgment-debtor in this case in the same manner as they were his property at the time of the mortgage and would therefore be available in execution of the decree as the proprietary rights mortgaged. We are of opinion that the proprietary rights in sir and khudkashat land and in grove land have vested in the State and what in conferred on the intermediary by S. 18 is a new right altogether which he never had and which could not therefore have been mortgaged inis true that under S. 44 of the Act when calculating net assets, the income from sir and khudkashat land and grove land has been excluded on the ground that bhumidari rights have been conferred therein under S. 18 of the Act. That is however for the purposes of calculating what should be paid to the intermediary as compensation and in that connection it was necessary to take into account the fact that the legislature was creating a new right in the intermediary with respect to certain lands and therefore it was not necessary to give money as compensation. That would not however make any difference in our view as to the legal effect of the notification under S. 4 and under the notification sir and khudkashat land and grove land would vest in the State and would not be an exception to the consequences of vesting in S. 6 and therefore the proprietary right in sir and khudkashat land and grove land which were mortgaged would be extinguished and the bhumidari right which is created by S. 18 would be a new right altogether and would not therefore be considered to be included under the mortgage in thisprovision has in our opinion a two-fold effect. In the first place, it makes it impossible for the mortgagee to follow the proprietary right after it vests in the State. Secondly it provides that the only way in which the mortgagee can recover his money advanced on the security of the property which vested in the State by virtue of the notification under S. 4 and the consequences thereof under S. 6 is to follow the procedure under S. 73 of the Transfer of Property Act.is no doubt that the property mortgaged has been compulsorily acquired in this case by the State under the Act. Therefore, S. 6 (h) read with S. 73 directs that the mortgagee shall proceed in the manner provided in S. 73, namely, follow the compensation money, and there is no other way possible for him in view of S. 6 (h) with respect to the property which has been acquired under the Act. We have held that sir and khudkashat land and grove land have been acquired under the Act and have vested in the State; therefore the mortgagee is relegated to enforce his rights against the mortgagor in the manner provided in S. 73 of Transfer of Property Act and in no other way. What we say here does not affect that property which is not acquired by the state, for example, property expectted under S. 9 of the Act; but where the property has vested in the State by virtue of a notification under S.4 and its consequences under S.6, the only course open to the mortageee is to follow the compensation money under S.6(h). The bhumidari rights created under S. are not compensation; they are special rights confered on the intermidiary by virtue of his cultivatory possession of the lands comprised therein. The respondent therefore cannot enforce his rights under the mortgage by sale of the bhumidari rights created in favour of the appellant under S. 18 so far as his sir and khudkashat land and grove land and concerned; it can only follow the compensation money as provided in S. 6 (h). The argumed that bhumidari rights can be followed as substituted security must therefore equally fail.We have not been able to understand how the provisions of the U. P. Zamindars Debt Reduction Act can affect the construction of S. 6 (h) of the Act read with other provisions of the Act. It is not necessary for us therefore to construe S. 8 (2) of the U. P. Zamindars Debt Reduction Act, for we are clear on the provisions of S. 6 (h) and the other provisions of the Act that bhumidari rights created in favour of the appellant cannot be sold in execution of the decree held against him by the respondent under the mortgage ofas the appellants succeeds on the first point we need not consider whether the application for execution by sale of bhumidari rights created under S. 18 is barred by limitation.
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Rithwik Energy Generation Pvt. Ltd Vs. Bangalore Electricity Supply Co. Ltd. & Others
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to be applied being whether the Court considers the adjudication of the said issue material and essential for its decision.15. As seen from the Appellate Tribunals judgment dated 21.10.2011, not only did the appellant considered the subsequent event as directly and substantially in issue for deciding the appeal, which incidentally was not opposed by Respondent No.1 on this ground but on the ground that it would be bringing in a new issue at the stage of appeal, but the Appellate Tribunal having turned down the Respondent No.1s plea, and having examined subsequent events, it cannot but be said that the Appellate Tribunal itself considered the issue No.3 raised by it, based on subsequent events brought to its notice, as being directly and immediately in issue. On this ground also, therefore, we are of the view that, apart from the appellant being estopped in law from raising such a plea, the plea itself has no legs to stand down.16. We now come to the other main plank of Mr. Mehtas submission. Mr. Mehta read to us Clause 9.3.2 of the PPA and contended that the letter dated 05.05.2011 substantially complied with the requirements of the said clause and should be treated to be a notice of default under the said clause. To appreciate this plea, Clause 9.3.2 of the PPA needs to be set out:"9.3.2 Termination for corporations Default: Upon the occurrence of an event of default as set out in sub-clause 9.2.2 above, Company may deliver a Default Notice to theult which requires the co-operative of both BESCOM and the Company to remedy, BESCOM shall render all reasonable cooperation to enable the Event of Default to be remedied."A reading of this clause would show that upon occurrence of an event of default, a default notice may be served to the Corporation in writing. The requirements of the aforesaid notice are two fold - (1) to specify in reasonable detail the event of default giving rise to the notice, and (2) calling upon Respondent No.1 to remedy the same within a period of 30 days from the delivery of the default notice unless the parties have agreed otherwise. It is only then that the Company may deliver a termination notice to the Corporation.17. On a perusal of the letter dated 05.05.2011, what is clear is that the letter speaks only of events of default, but does not call upon Respondent No.1 to remedy the same within the period specified. This, according to Mr. Mehta, is in any event substantial compliance with the aforesaid clause. We cannot agree. Both parts of Clause 9.3.2 are important - one specifying in reasonable detail the event of default and the second, calling upon Respondent No.1 to remedy the same within a period of 30 days. It is also important to note that the parties may otherwise agree, in which case the Respondent No.1 may remedy the defaults mentioned in the notice either before or after the expiry of 30 days period laid down, showing that the parties considered that this part of Clause 9.3.2 is as important as the first part, for otherwise, a termination notice could, de hors the second part of Clause 9.3.2 have issued straight away without more. This being the case, we are unable to agree with Mr. Mehtas submission that there has been substantial compliance of Clause 9.3.2 of the PPA.18. Mr. Mehta cited three judgments before us to persuade us that the letter dated 05.05.2011 substantially complied with Clause 9.3.2 of the PPA.19. In Nani Gopal Biswas v. The Municipality of Howrah, [1958 S.C.R. 774, this Court was concerned with a notice issued under Section 299 of the Calcutta Municipal Act, 1923. Since Section 300 of the Municipal Act was attracted to the facts of the case and not Section 299, this Court held that even though the notice may be headed as being under Section 299 of the Act, it would make no difference as, in substance, the effective part of the notice leaves no doubt in the minds of the parties concerned that the requisition is to remove an encroachment caused by a compound wall which is a structure which falls within Section 300. This case is wholly distinguishable inasmuch as all that was required by Section 300 of the Calcutta Municipal Act was the fact that a compound wall was an encroachment. This was clearly stated in the notice, and the fact that it was stated to be under a wrong provision of law would, therefore, make no difference to the substance of the notice.20. Similarly, in Thakur Pratap Singh v. Shri Krishna Gupta and Others, [1955] 2 S.C.R. 1029, this Court dealt with the filling up of a nomination paper in order to stand for the office of President of a Municipal Committee. Here again, this Court held that the fact that the word "occupation" in the form was either struck out or left blank would make no difference since a mans occupation is not one of the qualifications for the office of President. It was, therefore, held that this part of the form was only directory, and is part of the description of the candidate, but does not go to the root of the matter, so long as there is enough material in the paper to enable him to be identified beyond doubt. This judgment again is wholly distinguishable on facts in that, as has been found by us above, the part of Clause 9.3.2 relating to calling upon Respondent No.1 to remedy defaults within a period of 30 days unless otherwise agreed is as important as the events of default that have been stated to have taken place. Substantial compliance, therefore, can be no answer to such a mandatory requirement.21. It is unnecessary for us to pronounce on any further aspect, including the aspect of late payment and late opening of Letter of Credit. We are of the view that the Appellate Tribunal in the impugned judgment cannot be faulted on any score.
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0[ds]12. Having heard the learned counsel appearing for the parties, we are of the view that there is no doubt whatsoever that the appellant itself invited the Appellate Tribunal to go into a subsequent event, which, according to it, was of extreme importance in deciding the appeal. This being the case, it is clear that, after contest, and after the Appellate Tribunal held in favour of the appellant that such subsequent event is indeed important and will be decided by the Tribunal, and then suffering a finding which was found, on merits, to be against it, we are of the view that the appellant is clearly estopped from attempting to argue now that the very important issue raised by way of subsequent events according to the appellant itself should be held, as a matter of law, to be only a collateral issue and therefore, not res judicata.As seen from the Appellate Tribunals judgment dated 21.10.2011, not only did the appellant considered the subsequent event as directly and substantially in issue for deciding the appeal, which incidentally was not opposed by Respondent No.1 on this ground but on the ground that it would be bringing in a new issue at the stage of appeal, but the Appellate Tribunal having turned down the Respondent No.1s plea, and having examined subsequent events, it cannot but be said that the Appellate Tribunal itself considered the issue No.3 raised by it, based on subsequent events brought to its notice, as being directly and immediately in issue. On this ground also, therefore, we are of the view that, apart from the appellant being estopped in law from raising such a plea, the plea itself has no legs to stand down.On a perusal of the letter dated 05.05.2011, what is clear is that the letter speaks only of events of default, but does not call upon Respondent No.1 to remedy the same within the period specified. This, according to Mr. Mehta, is in any event substantial compliance with the aforesaid clause. We cannot agree. Both parts of Clause 9.3.2 are importantone specifying in reasonable detail the event of default and the second, calling upon Respondent No.1 to remedy the same within a period of 30 days. It is also important to note that the parties may otherwise agree, in which case the Respondent No.1 may remedy the defaults mentioned in the notice either before or after the expiry of 30 days period laid down, showing that the parties considered that this part of Clause 9.3.2 is as important as the first part, for otherwise, a termination notice could, de hors the second part of Clause 9.3.2 have issued straight away without more. This being the case, we are unable to agree with Mr. Mehtas submission that there has been substantial compliance of Clause 9.3.2 of the PPA.18. Mr. Mehta cited three judgments before us to persuade us that the letter dated 05.05.2011 substantially complied with Clause 9.3.2 of the PPA.19. In Nani Gopal Biswas v. The Municipality of Howrah, [1958 S.C.R. 774, this Court was concerned with a notice issued under Section 299 of the Calcutta Municipal Act, 1923. Since Section 300 of the Municipal Act was attracted to the facts of the case and not Section 299, this Court held that even though the notice may be headed as being under Section 299 of the Act, it would make no difference as, in substance, the effective part of the notice leaves no doubt in the minds of the parties concerned that the requisition is to remove an encroachment caused by a compound wall which is a structure which falls within Section 300. This case is wholly distinguishable inasmuch as all that was required by Section 300 of the Calcutta Municipal Act was the fact that a compound wall was an encroachment. This was clearly stated in the notice, and the fact that it was stated to be under a wrong provision of law would, therefore, make no difference to the substance of the notice.20. Similarly, in Thakur Pratap Singh v. Shri Krishna Gupta and Others, [1955] 2 S.C.R. 1029, this Court dealt with the filling up of a nomination paper in order to stand for the office of President of a Municipal Committee. Here again, this Court held that the fact that the word "occupation" in the form was either struck out or left blank would make no difference since a mans occupation is not one of the qualifications for the office of President. It was, therefore, held that this part of the form was only directory, and is part of the description of the candidate, but does not go to the root of the matter, so long as there is enough material in the paper to enable him to be identified beyond doubt. This judgment again is wholly distinguishable on facts in that, as has been found by us above, the part of Clause 9.3.2 relating to calling upon Respondent No.1 to remedy defaults within a period of 30 days unless otherwise agreed is as important as the events of default that have been stated to have taken place. Substantial compliance, therefore, can be no answer to such a mandatory requirement.21. It is unnecessary for us to pronounce on any further aspect, including the aspect of late payment and late opening of Letter of Credit. We are of the view that the Appellate Tribunal in the impugned judgment cannot be faulted on any score.
| 0 | 3,620 | 1,004 |
### 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 be applied being whether the Court considers the adjudication of the said issue material and essential for its decision.15. As seen from the Appellate Tribunals judgment dated 21.10.2011, not only did the appellant considered the subsequent event as directly and substantially in issue for deciding the appeal, which incidentally was not opposed by Respondent No.1 on this ground but on the ground that it would be bringing in a new issue at the stage of appeal, but the Appellate Tribunal having turned down the Respondent No.1s plea, and having examined subsequent events, it cannot but be said that the Appellate Tribunal itself considered the issue No.3 raised by it, based on subsequent events brought to its notice, as being directly and immediately in issue. On this ground also, therefore, we are of the view that, apart from the appellant being estopped in law from raising such a plea, the plea itself has no legs to stand down.16. We now come to the other main plank of Mr. Mehtas submission. Mr. Mehta read to us Clause 9.3.2 of the PPA and contended that the letter dated 05.05.2011 substantially complied with the requirements of the said clause and should be treated to be a notice of default under the said clause. To appreciate this plea, Clause 9.3.2 of the PPA needs to be set out:"9.3.2 Termination for corporations Default: Upon the occurrence of an event of default as set out in sub-clause 9.2.2 above, Company may deliver a Default Notice to theult which requires the co-operative of both BESCOM and the Company to remedy, BESCOM shall render all reasonable cooperation to enable the Event of Default to be remedied."A reading of this clause would show that upon occurrence of an event of default, a default notice may be served to the Corporation in writing. The requirements of the aforesaid notice are two fold - (1) to specify in reasonable detail the event of default giving rise to the notice, and (2) calling upon Respondent No.1 to remedy the same within a period of 30 days from the delivery of the default notice unless the parties have agreed otherwise. It is only then that the Company may deliver a termination notice to the Corporation.17. On a perusal of the letter dated 05.05.2011, what is clear is that the letter speaks only of events of default, but does not call upon Respondent No.1 to remedy the same within the period specified. This, according to Mr. Mehta, is in any event substantial compliance with the aforesaid clause. We cannot agree. Both parts of Clause 9.3.2 are important - one specifying in reasonable detail the event of default and the second, calling upon Respondent No.1 to remedy the same within a period of 30 days. It is also important to note that the parties may otherwise agree, in which case the Respondent No.1 may remedy the defaults mentioned in the notice either before or after the expiry of 30 days period laid down, showing that the parties considered that this part of Clause 9.3.2 is as important as the first part, for otherwise, a termination notice could, de hors the second part of Clause 9.3.2 have issued straight away without more. This being the case, we are unable to agree with Mr. Mehtas submission that there has been substantial compliance of Clause 9.3.2 of the PPA.18. Mr. Mehta cited three judgments before us to persuade us that the letter dated 05.05.2011 substantially complied with Clause 9.3.2 of the PPA.19. In Nani Gopal Biswas v. The Municipality of Howrah, [1958 S.C.R. 774, this Court was concerned with a notice issued under Section 299 of the Calcutta Municipal Act, 1923. Since Section 300 of the Municipal Act was attracted to the facts of the case and not Section 299, this Court held that even though the notice may be headed as being under Section 299 of the Act, it would make no difference as, in substance, the effective part of the notice leaves no doubt in the minds of the parties concerned that the requisition is to remove an encroachment caused by a compound wall which is a structure which falls within Section 300. This case is wholly distinguishable inasmuch as all that was required by Section 300 of the Calcutta Municipal Act was the fact that a compound wall was an encroachment. This was clearly stated in the notice, and the fact that it was stated to be under a wrong provision of law would, therefore, make no difference to the substance of the notice.20. Similarly, in Thakur Pratap Singh v. Shri Krishna Gupta and Others, [1955] 2 S.C.R. 1029, this Court dealt with the filling up of a nomination paper in order to stand for the office of President of a Municipal Committee. Here again, this Court held that the fact that the word "occupation" in the form was either struck out or left blank would make no difference since a mans occupation is not one of the qualifications for the office of President. It was, therefore, held that this part of the form was only directory, and is part of the description of the candidate, but does not go to the root of the matter, so long as there is enough material in the paper to enable him to be identified beyond doubt. This judgment again is wholly distinguishable on facts in that, as has been found by us above, the part of Clause 9.3.2 relating to calling upon Respondent No.1 to remedy defaults within a period of 30 days unless otherwise agreed is as important as the events of default that have been stated to have taken place. Substantial compliance, therefore, can be no answer to such a mandatory requirement.21. It is unnecessary for us to pronounce on any further aspect, including the aspect of late payment and late opening of Letter of Credit. We are of the view that the Appellate Tribunal in the impugned judgment cannot be faulted on any score.
### Response:
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### Explanation:
12. Having heard the learned counsel appearing for the parties, we are of the view that there is no doubt whatsoever that the appellant itself invited the Appellate Tribunal to go into a subsequent event, which, according to it, was of extreme importance in deciding the appeal. This being the case, it is clear that, after contest, and after the Appellate Tribunal held in favour of the appellant that such subsequent event is indeed important and will be decided by the Tribunal, and then suffering a finding which was found, on merits, to be against it, we are of the view that the appellant is clearly estopped from attempting to argue now that the very important issue raised by way of subsequent events according to the appellant itself should be held, as a matter of law, to be only a collateral issue and therefore, not res judicata.As seen from the Appellate Tribunals judgment dated 21.10.2011, not only did the appellant considered the subsequent event as directly and substantially in issue for deciding the appeal, which incidentally was not opposed by Respondent No.1 on this ground but on the ground that it would be bringing in a new issue at the stage of appeal, but the Appellate Tribunal having turned down the Respondent No.1s plea, and having examined subsequent events, it cannot but be said that the Appellate Tribunal itself considered the issue No.3 raised by it, based on subsequent events brought to its notice, as being directly and immediately in issue. On this ground also, therefore, we are of the view that, apart from the appellant being estopped in law from raising such a plea, the plea itself has no legs to stand down.On a perusal of the letter dated 05.05.2011, what is clear is that the letter speaks only of events of default, but does not call upon Respondent No.1 to remedy the same within the period specified. This, according to Mr. Mehta, is in any event substantial compliance with the aforesaid clause. We cannot agree. Both parts of Clause 9.3.2 are importantone specifying in reasonable detail the event of default and the second, calling upon Respondent No.1 to remedy the same within a period of 30 days. It is also important to note that the parties may otherwise agree, in which case the Respondent No.1 may remedy the defaults mentioned in the notice either before or after the expiry of 30 days period laid down, showing that the parties considered that this part of Clause 9.3.2 is as important as the first part, for otherwise, a termination notice could, de hors the second part of Clause 9.3.2 have issued straight away without more. This being the case, we are unable to agree with Mr. Mehtas submission that there has been substantial compliance of Clause 9.3.2 of the PPA.18. Mr. Mehta cited three judgments before us to persuade us that the letter dated 05.05.2011 substantially complied with Clause 9.3.2 of the PPA.19. In Nani Gopal Biswas v. The Municipality of Howrah, [1958 S.C.R. 774, this Court was concerned with a notice issued under Section 299 of the Calcutta Municipal Act, 1923. Since Section 300 of the Municipal Act was attracted to the facts of the case and not Section 299, this Court held that even though the notice may be headed as being under Section 299 of the Act, it would make no difference as, in substance, the effective part of the notice leaves no doubt in the minds of the parties concerned that the requisition is to remove an encroachment caused by a compound wall which is a structure which falls within Section 300. This case is wholly distinguishable inasmuch as all that was required by Section 300 of the Calcutta Municipal Act was the fact that a compound wall was an encroachment. This was clearly stated in the notice, and the fact that it was stated to be under a wrong provision of law would, therefore, make no difference to the substance of the notice.20. Similarly, in Thakur Pratap Singh v. Shri Krishna Gupta and Others, [1955] 2 S.C.R. 1029, this Court dealt with the filling up of a nomination paper in order to stand for the office of President of a Municipal Committee. Here again, this Court held that the fact that the word "occupation" in the form was either struck out or left blank would make no difference since a mans occupation is not one of the qualifications for the office of President. It was, therefore, held that this part of the form was only directory, and is part of the description of the candidate, but does not go to the root of the matter, so long as there is enough material in the paper to enable him to be identified beyond doubt. This judgment again is wholly distinguishable on facts in that, as has been found by us above, the part of Clause 9.3.2 relating to calling upon Respondent No.1 to remedy defaults within a period of 30 days unless otherwise agreed is as important as the events of default that have been stated to have taken place. Substantial compliance, therefore, can be no answer to such a mandatory requirement.21. It is unnecessary for us to pronounce on any further aspect, including the aspect of late payment and late opening of Letter of Credit. We are of the view that the Appellate Tribunal in the impugned judgment cannot be faulted on any score.
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Britannia Industries Limited Vs. Union Bank of India
|
in Bombay Tyre International Ltd. s case (supra ). In the present case before us also, the Assistant Collector found as a fact that secondary packing of the Petitioners biscuits in tin boxes and corrugated card-board boxes was not special packing done at the request of the wholesale buyer but was part of the normal packing for marketing these goods. This view about the nature of packing of biscuits is supported by the division Bench decision of this Court in Sathe Biscuits case (supra ). ( 36 ) FOR the foregoing reasons, we conclude that the Petitioners claim for deduction on account of special packing was rightly rejected by the Assistant Collector. Even if the Petitioners can legitimately contend that the law relating to deduction on account of special packing had developed only after, pronouncements made by the Supreme Court in Bombay Tyre International ltd. s case (supra), the Petitioners must still fail because even after being given further opportunities under the order of the learned Single Judge dated 5th December 1983, the materials produced by them were not believed by the Assistant Collector. In rejecting the petitioners said case regarding special packing, the Assistant Collector did not commit any error of law or fact apparent on the face of the record which would warrant interference under Article 226 of the Constitution. After giving reasons, the Assistant Collector had disbelieved the petitioners case. He found the packings to be normal or usual packings. Therefore, we are unable to interfere with the order of the Assistant Collector rejecting the claim for deduction on account of special packing. ( 37 ) BEFORE we conclude, we may deal with the preliminary objection raised by Mr. Hidayatullah. His submission was that it was not open to Mr. Sethna, the learned Counsel for the Respondents, to urge any point which cannot be found in the orders of the Assistant Collector dated 10th august 1984 and 30th March 1985. According to Mr. Hidayatullah, the learned Counsel for the petitioners, the points now urged by Mr. Sethna were also not taken in the affidavit filed on behalf of the Respondents. In this connection, the learned Counsel for the Petitioners had relied upon a number of reported decisions including Commr. of Police v. Gordhandas, A. I. R. 1952 s. C. 16; Mohinder Singh Gill v. Chief Election Commissioner, A. I. R. 1978 S. C. 851; Bush (India) Ltd. v. Union of India and Others, 1980 (6) Excise Law Times 258 at p. 260 and leukoplast (India) Ltd. v. State of Goa, 1988 (36) Excise Law Times 369 . We find no substance in the preliminary objection by which, in effect, the learned Counsel attempted to shut out submissions made on behalf of the Respondents. The orders in question of the Assistant collector were quasi judicial in nature. The Assistant Collector had given several reasons in his two orders dated 10th August 1984 and 30th March 1985. Even if it is assumed that some of his reasons are erroneous, in the event this Court is unable to strike down the rest of the reasons contained in the orders of the Assistant Collector, this Court under Article 226 of the constitution cannot quash such quasi judicial order of the Assistant Collector. The Petitioners accordingly are bound to fail. Amongst other reasons, on facts, the Assistant Collector had disbelieved the claim of the Petitioner Company that it had in fact incurred transport costs and that such costs were included in the price charged to its wholesalers. The Assistant Collector also disbelieved that any special packing was used by the Petitioner Company. The secondary packing were found upon the facts to be part of the normal packing for making the petitioner companys goods marketable. These findings were sufficient for rejecting the Petitioners claim for deduction under the heads of freight and transport charges and costs of special packing. ( 38 ) IN the instant case, by the format order dated 5th December 1983 Pendse, J. had directed the assistant Collector to pass orders subject to final orders of this Court. Therefore, at the final hearing, in order to support the orders passed by the Assistant Collector, the Respondents were entitled to make all appropriate submissions on points of law which did not require further investigation of facts and which related to the question of jurisdiction of the Assistant Collector. ( 39 ) AT the time of his reply, Mr. Hidayatullah, the learned Counsel for the Petitioners, had relied upon some decisions rendered by the CEGAT, vide Collector of Central Excise v. Windsor foods Ltd. 1988 (37) Excise Law Times 297. In their said decisions the ratio of Godfrey Philips india Ltd. s case (supra) was purported to be applied. We have already dealt with the decision in godfrey Philips India Ltds case (supra ). Therefore, we consider it unnecessary to separately deal with the decisions which had only applied the law laid down in Godfrey Philips India Ltd. s case (supra) and Madras Rubber Factorys case (supra) to the particular fact. ( 40 ) IN the above view, we are unable to interfere with the order of the Assistant Collector demanding balance excise duty payable by the Petitioner Company. He has already given credit for deductions to be made on account of freight insurance and surcharge on sale tax. The petitioners have failed to make out any case for refund under any other head. We have already noticed that in the present case the Petitioners ultimately did not urge their claim for refund for any period prior to 1st October 1975. The same is subject-matter of a separate Writ Petition. It is, therefore, unnecessary to any longer consider the submission of the learned Counsel on both sides regarding the extent of the Writ Courts power to order refund of duties paid in excess of the amount lawfully recoverable. In the present case, the question of unjust enrichment was not taken in the affidavit. We, therefore, need not decide the said point also.
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0[ds]It was not accepted that the cash monies in the form of these deposits available to the assessee company were allowed to lie idle and borrowings were made from other sources at higher market rate. The assessees did not adduce evidence to show that the said amounts were not at all utilised as capital. Liability to pay interest on these deposits was to be discharged out of the miscellaneous income arising, if any, by way of deposits and not out of the sale price of goods( 17 ) IN our view, the Assistant Collector of Central Excise, Respondent No. 6, did not commit any jurisdictional error in rejecting the Petitioner Companys claim for deduction on account of such interest payments on deposits from its wholesalers. It was not very material that in the books of account of the Petitioner Company interest paid on the said deposits was separately shown. Prior to the filing of this Writ Petition, the Petitioners at no earlier stage of the proceedings had claimed deduction of such interest payments entered in their books of account for the purposes of fixation of price lists for their products sold to wholesalers. Secondly, payments of interest are made for use of money borrowed, lent or advanced. We see no reason why the said interest payments upon deposits received by the Petitioner Company are to be deducted in assessing the wholesale price under Section 4 of the Act merely because the persons who made the said deposits of money happened to be wholesale buyers of the Petitioners products. Therefore, the petitioner companys claim for deduction on account of interest payments upon the deposits made by its wholesale distributors ought to failIn his order dated 10th august 1984 the Assistant Collector mentioned two invoices and transport bills produced by the petitioner Company in order to show payments of transport charges. The Assistant Collector had referred to clause 5 of the agreement between Messrs. Britannia Industries Ltd. and their authorised wholesalers and interpreted the same by holding that all the expenses including transport demurrage/wharfages had to be borne by the wholesale dealer. Therefore, the assessees claim that it incurred transport charges was not acceptable and anything contrary to the provisions of clause 5 of the agreement had not been brought forward. The Assistant Collector observed that the sale of biscuits by the Petitioner was on the basis of different regions and the prices of biscuits manufactured by the Petitioner Company in Bombay city and suburbs and always remained lower than the prices of the same biscuits sold in the regions outside Bombay city and suburbs. The differences in prices in the different regions was due to the delivery charges payable on account of carriage of the goods for delivery over longer distances. The further finding of the Assistant Collector was that in the case before him freight paid was not averaged in order to make the wholesale cash prices of the biscuits same everywhereWhether transport charges had entered into the prices payable by the wholesalers was a question of fact.We, however, cannot subscribe to the extreme view canvassed on behalf of the respondents that the price charged by the manufacturer at the factory gate can never include transport charges. In case excise duty levied under Section 3 of the Central Excises and Salt Act is to be collected with reference to the value of excisable articles, such value is to be determined in terms of Section 4 of the Act. Such value under Section 4 (1) (a) is deemed to be the normal price, i. e. the price at which such goods are ordinarily sold by the assessee to a buyer in the course of at wholesale trade. It is possible to visualize cases in which the price payable by a wholesaler at the factory gate includes charges and payments which do not enrich or add the value of the product at the time and place of removal. In view of the observations of the Supreme court in paragraph 49 of its judgment in the case of Union of India v. Bombay Tyre International ltd. (supra), the price of an article is related to its value and into that value is added the expenses incurred on account of the factors which have contributed to the value up to the date of the sale. In case the freight is averaged in order to have uniform wholesale cash price at the factory gate and elsewhere, the price charged at the factory gate would be loaded, i. e. the wholesale cash price at the factory gate and at the place of delivery elsewhere made the same. The cost of transportation may be equalised and included and one averaged figure may be added to the priceAccording to the Petitioner, the price list submitted by it mentioned they prices. Only in its subsequent price list dated 6th August 1980 the Petitioner Company had first time filled up the columns relating to other deductions claimed from the price under Section 4 (2) and Section 4 (4) (d) of the Act. According to the Petitioners themselves, since 1968, the Petitioner Companys products were being sold by followingl procedure laid down in Chapter VIIA of the central Excise Rules. In the original Writ Petition the Petitioner Company did not mention the amount of deduction claimed towards freight charges. We have already mentioned that in his orders dated 10th August 1984 and 30th March 1985 the Assistant Collector had, inter alia, held that the Petitioner Company had failed to satisfy him that the Company had incurred transport charges and the same had been added to the wholesale cash prices, on the basis of which excise duties were leviedFrom the extracts of profit and loss account of the Petitioner Company produced before the Excise authorities it is not possible for this Court to say how much of these transport charges were incurred for carriage of the raw materials or of the bread which were not excisable articles. In the above view, it is not possible to hold that upon the material produced before the Central excise authorities the Assistant Collector had committed any error apparent on the face of the record in rejecting the deduction claimed on account of transport and freight charges in order to arrive at the normal wholesale price during the period 1st October 1975 to the date of the issue of the present Rule. We are not inclined to further protract the proceedings by remitting the matter back to the Central Excise authorities. The Petitioner Company has been already given ample opportunity to establish its claim for refund on account of deductions towards transport charges. Under orders of this Court, the Assistant Collector, even after issue of the Rule, twice considered whether the Petitioner Company was entitled to deduction on account of transport charges but had come to the conclusion that the Petitioner Company had failed to prove the same by producing necessary material. Therefore, the matter cannot be again remitted back and the petitioners contention for deduction on account of freight and carriage costs ought to stand rejected( 26 ) THE third head of deduction was the costs of special secondary packing from the assessable value of the biscuits. Under Section 4 (4) (d), the value in relation to excisable articles included the cost of packing except the cost of packing which is of a durable nature and is returnable by the buyer to the assessee. In the present case, the Petitioner Company had initially claimed that some of its manufactured goods were packed materials which were durable in nature and returnable by the buyer. The Petitioner Company failed to prove the same( 32 ) IN our view, the Assistant Collector had rightly rejected the claim for deduction on account of wooden packing used for supply of biscuits to Canteen Stores Department. No particulars of purchase of wood, use of wooden packing and the total quantity of biscuits sold to the Canteen stores Department were placed before the Assistant Collector. Therefore, no sufficient material in this behalf was placed before the Assistant Collector. Upon Appraisal of the evidence, the assistant Collector had rejected the Petitioners claim for deduction on account of wooden boxes( 33 ) IN our view, these findings of fact regarding (i) the nature of packing and (ii) the reasons for such packing cannot be assailed in Writ Court. The Assistant Collector found that the packings in question were necessary for marketing biscuits. The claim of the Petitioner Company to the effect that the wholesalers themselves had made request was not substantiated by evidenceWe are unable to decide the case on the basis of the demonstration given before us about the nature of the packing for sale at the factory gate and elsewhere of the biscuits manufactured by the Petitioner Company. The relevant period of the refund claimed was between 1st October 1975 to the date of filing of the Writ Petition. Secondly, how the biscuits manufactured by the Petitioner Company were despatched upcountry is a matter entirely one of fact. The Petitioner did not place any material before us in order to substantiate its contention. The Collectors finding that the packing in question was normal packing and not additional or special packing is one of fact. As already stated, before filing the Writ Petition, such a claim for deduction on account of special packing charges was not made. Even during the heading of the matter before him, according to the assistant Collector, the evidence adduced was not sufficient to prove the Petitioners claim. The petitioner Companys profit and loss account or the certificate granted by its auditors did not indicate separately the costs of normal packing and the costs of special packing made either at the request of the party or for facilitating delivery in Mofussil. It is not at all clear whether the petitioner Company had claimed deduction of entire packing costs or only the costs of packing in corrugatedboxes. It has been pointed out before us that the sale invoices of the petitioner did not also mention such packingIn the present case before us also, the Assistant Collector found as a fact that secondary packing of the Petitioners biscuits in tin boxes and corrugatedwas not special packing done at the request of the wholesale buyer but was part of the normal packing for marketing these goods. This view about the nature of packing of biscuits is supported by the division Bench decision of this Court in Sathe Biscuits case (supra )( 36 ) FOR the foregoing reasons, we conclude that the Petitioners claim for deduction on account of special packing was rightly rejected by the Assistant Collector. Even if the Petitioners can legitimately contend that the law relating to deduction on account of special packing had developed only after, pronouncements made by the Supreme Court in Bombay Tyre International ltd. s case (supra), the Petitioners must still fail because even after being given further opportunities under the order of the learned Single Judge dated 5th December 1983, the materials produced by them were not believed by the Assistant Collector. In rejecting the petitioners said case regarding special packing, the Assistant Collector did not commit any error of law or fact apparent on the face of the record which would warrant interference under Article 226 of the Constitution. After giving reasons, the Assistant Collector had disbelieved the petitioners case. He found the packings to be normal or usual packings. Therefore, we are unable to interfere with the order of the Assistant Collector rejecting the claim for deduction on account of special packingWe find no substance in the preliminary objection by which, in effect, the learned Counsel attempted to shut out submissions made on behalf of the Respondents. The orders in question of the Assistant collector were quasi judicial in nature. The Assistant Collector had given several reasons in his two orders dated 10th August 1984 and 30th March 1985. Even if it is assumed that some of his reasons are erroneous, in the event this Court is unable to strike down the rest of the reasons contained in the orders of the Assistant Collector, this Court under Article 226 of the constitution cannot quash such quasi judicial order of the Assistant Collector. The Petitioners accordingly are bound to fail. Amongst other reasons, on facts, the Assistant Collector had disbelieved the claim of the Petitioner Company that it had in fact incurred transport costs and that such costs were included in the price charged to its wholesalers. The Assistant Collector also disbelieved that any special packing was used by the Petitioner Company. The secondary packing were found upon the facts to be part of the normal packing for making the petitioner companys goods marketable. These findings were sufficient for rejecting the Petitioners claim for deduction under the heads of freight and transport charges and costs of special packing( 38 ) IN the instant case, by the format order dated 5th December 1983 Pendse, J. had directed the assistant Collector to pass orders subject to final orders of this Court. Therefore, at the final hearing, in order to support the orders passed by the Assistant Collector, the Respondents were entitled to make all appropriate submissions on points of law which did not require further investigation of facts and which related to the question of jurisdiction of the Assistant CollectorWe have already dealt with the decision in godfrey Philips India Ltds case (supra ). Therefore, we consider it unnecessary to separately deal with the decisions which had only applied the law laid down in Godfrey Philips India Ltd. s case (supra) and Madras Rubber Factorys case (supra) to the particular fact( 40 ) IN the above view, we are unable to interfere with the order of the Assistant Collector demanding balance excise duty payable by the Petitioner Company. He has already given credit for deductions to be made on account of freight insurance and surcharge on sale tax. The petitioners have failed to make out any case for refund under any other head. We have already noticed that in the present case the Petitioners ultimately did not urge their claim for refund for any period prior to 1st October 1975. The same isr of a separate Writ Petition. It is, therefore, unnecessary to any longer consider the submission of the learned Counsel on both sides regarding the extent of the Writ Courts power to order refund of duties paid in excess of the amount lawfully recoverable. In the present case, the question of unjust enrichment was not taken in the affidavit. We, therefore, need not decide the said point also.
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in Bombay Tyre International Ltd. s case (supra ). In the present case before us also, the Assistant Collector found as a fact that secondary packing of the Petitioners biscuits in tin boxes and corrugated card-board boxes was not special packing done at the request of the wholesale buyer but was part of the normal packing for marketing these goods. This view about the nature of packing of biscuits is supported by the division Bench decision of this Court in Sathe Biscuits case (supra ). ( 36 ) FOR the foregoing reasons, we conclude that the Petitioners claim for deduction on account of special packing was rightly rejected by the Assistant Collector. Even if the Petitioners can legitimately contend that the law relating to deduction on account of special packing had developed only after, pronouncements made by the Supreme Court in Bombay Tyre International ltd. s case (supra), the Petitioners must still fail because even after being given further opportunities under the order of the learned Single Judge dated 5th December 1983, the materials produced by them were not believed by the Assistant Collector. In rejecting the petitioners said case regarding special packing, the Assistant Collector did not commit any error of law or fact apparent on the face of the record which would warrant interference under Article 226 of the Constitution. After giving reasons, the Assistant Collector had disbelieved the petitioners case. He found the packings to be normal or usual packings. Therefore, we are unable to interfere with the order of the Assistant Collector rejecting the claim for deduction on account of special packing. ( 37 ) BEFORE we conclude, we may deal with the preliminary objection raised by Mr. Hidayatullah. His submission was that it was not open to Mr. Sethna, the learned Counsel for the Respondents, to urge any point which cannot be found in the orders of the Assistant Collector dated 10th august 1984 and 30th March 1985. According to Mr. Hidayatullah, the learned Counsel for the petitioners, the points now urged by Mr. Sethna were also not taken in the affidavit filed on behalf of the Respondents. In this connection, the learned Counsel for the Petitioners had relied upon a number of reported decisions including Commr. of Police v. Gordhandas, A. I. R. 1952 s. C. 16; Mohinder Singh Gill v. Chief Election Commissioner, A. I. R. 1978 S. C. 851; Bush (India) Ltd. v. Union of India and Others, 1980 (6) Excise Law Times 258 at p. 260 and leukoplast (India) Ltd. v. State of Goa, 1988 (36) Excise Law Times 369 . We find no substance in the preliminary objection by which, in effect, the learned Counsel attempted to shut out submissions made on behalf of the Respondents. The orders in question of the Assistant collector were quasi judicial in nature. The Assistant Collector had given several reasons in his two orders dated 10th August 1984 and 30th March 1985. Even if it is assumed that some of his reasons are erroneous, in the event this Court is unable to strike down the rest of the reasons contained in the orders of the Assistant Collector, this Court under Article 226 of the constitution cannot quash such quasi judicial order of the Assistant Collector. The Petitioners accordingly are bound to fail. Amongst other reasons, on facts, the Assistant Collector had disbelieved the claim of the Petitioner Company that it had in fact incurred transport costs and that such costs were included in the price charged to its wholesalers. The Assistant Collector also disbelieved that any special packing was used by the Petitioner Company. The secondary packing were found upon the facts to be part of the normal packing for making the petitioner companys goods marketable. These findings were sufficient for rejecting the Petitioners claim for deduction under the heads of freight and transport charges and costs of special packing. ( 38 ) IN the instant case, by the format order dated 5th December 1983 Pendse, J. had directed the assistant Collector to pass orders subject to final orders of this Court. Therefore, at the final hearing, in order to support the orders passed by the Assistant Collector, the Respondents were entitled to make all appropriate submissions on points of law which did not require further investigation of facts and which related to the question of jurisdiction of the Assistant Collector. ( 39 ) AT the time of his reply, Mr. Hidayatullah, the learned Counsel for the Petitioners, had relied upon some decisions rendered by the CEGAT, vide Collector of Central Excise v. Windsor foods Ltd. 1988 (37) Excise Law Times 297. In their said decisions the ratio of Godfrey Philips india Ltd. s case (supra) was purported to be applied. We have already dealt with the decision in godfrey Philips India Ltds case (supra ). Therefore, we consider it unnecessary to separately deal with the decisions which had only applied the law laid down in Godfrey Philips India Ltd. s case (supra) and Madras Rubber Factorys case (supra) to the particular fact. ( 40 ) IN the above view, we are unable to interfere with the order of the Assistant Collector demanding balance excise duty payable by the Petitioner Company. He has already given credit for deductions to be made on account of freight insurance and surcharge on sale tax. The petitioners have failed to make out any case for refund under any other head. We have already noticed that in the present case the Petitioners ultimately did not urge their claim for refund for any period prior to 1st October 1975. The same is subject-matter of a separate Writ Petition. It is, therefore, unnecessary to any longer consider the submission of the learned Counsel on both sides regarding the extent of the Writ Courts power to order refund of duties paid in excess of the amount lawfully recoverable. In the present case, the question of unjust enrichment was not taken in the affidavit. We, therefore, need not decide the said point also.
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case on the basis of the demonstration given before us about the nature of the packing for sale at the factory gate and elsewhere of the biscuits manufactured by the Petitioner Company. The relevant period of the refund claimed was between 1st October 1975 to the date of filing of the Writ Petition. Secondly, how the biscuits manufactured by the Petitioner Company were despatched upcountry is a matter entirely one of fact. The Petitioner did not place any material before us in order to substantiate its contention. The Collectors finding that the packing in question was normal packing and not additional or special packing is one of fact. As already stated, before filing the Writ Petition, such a claim for deduction on account of special packing charges was not made. Even during the heading of the matter before him, according to the assistant Collector, the evidence adduced was not sufficient to prove the Petitioners claim. The petitioner Companys profit and loss account or the certificate granted by its auditors did not indicate separately the costs of normal packing and the costs of special packing made either at the request of the party or for facilitating delivery in Mofussil. It is not at all clear whether the petitioner Company had claimed deduction of entire packing costs or only the costs of packing in corrugatedboxes. It has been pointed out before us that the sale invoices of the petitioner did not also mention such packingIn the present case before us also, the Assistant Collector found as a fact that secondary packing of the Petitioners biscuits in tin boxes and corrugatedwas not special packing done at the request of the wholesale buyer but was part of the normal packing for marketing these goods. This view about the nature of packing of biscuits is supported by the division Bench decision of this Court in Sathe Biscuits case (supra )( 36 ) FOR the foregoing reasons, we conclude that the Petitioners claim for deduction on account of special packing was rightly rejected by the Assistant Collector. Even if the Petitioners can legitimately contend that the law relating to deduction on account of special packing had developed only after, pronouncements made by the Supreme Court in Bombay Tyre International ltd. s case (supra), the Petitioners must still fail because even after being given further opportunities under the order of the learned Single Judge dated 5th December 1983, the materials produced by them were not believed by the Assistant Collector. In rejecting the petitioners said case regarding special packing, the Assistant Collector did not commit any error of law or fact apparent on the face of the record which would warrant interference under Article 226 of the Constitution. After giving reasons, the Assistant Collector had disbelieved the petitioners case. He found the packings to be normal or usual packings. Therefore, we are unable to interfere with the order of the Assistant Collector rejecting the claim for deduction on account of special packingWe find no substance in the preliminary objection by which, in effect, the learned Counsel attempted to shut out submissions made on behalf of the Respondents. The orders in question of the Assistant collector were quasi judicial in nature. The Assistant Collector had given several reasons in his two orders dated 10th August 1984 and 30th March 1985. Even if it is assumed that some of his reasons are erroneous, in the event this Court is unable to strike down the rest of the reasons contained in the orders of the Assistant Collector, this Court under Article 226 of the constitution cannot quash such quasi judicial order of the Assistant Collector. The Petitioners accordingly are bound to fail. Amongst other reasons, on facts, the Assistant Collector had disbelieved the claim of the Petitioner Company that it had in fact incurred transport costs and that such costs were included in the price charged to its wholesalers. The Assistant Collector also disbelieved that any special packing was used by the Petitioner Company. The secondary packing were found upon the facts to be part of the normal packing for making the petitioner companys goods marketable. These findings were sufficient for rejecting the Petitioners claim for deduction under the heads of freight and transport charges and costs of special packing( 38 ) IN the instant case, by the format order dated 5th December 1983 Pendse, J. had directed the assistant Collector to pass orders subject to final orders of this Court. Therefore, at the final hearing, in order to support the orders passed by the Assistant Collector, the Respondents were entitled to make all appropriate submissions on points of law which did not require further investigation of facts and which related to the question of jurisdiction of the Assistant CollectorWe have already dealt with the decision in godfrey Philips India Ltds case (supra ). Therefore, we consider it unnecessary to separately deal with the decisions which had only applied the law laid down in Godfrey Philips India Ltd. s case (supra) and Madras Rubber Factorys case (supra) to the particular fact( 40 ) IN the above view, we are unable to interfere with the order of the Assistant Collector demanding balance excise duty payable by the Petitioner Company. He has already given credit for deductions to be made on account of freight insurance and surcharge on sale tax. The petitioners have failed to make out any case for refund under any other head. We have already noticed that in the present case the Petitioners ultimately did not urge their claim for refund for any period prior to 1st October 1975. The same isr of a separate Writ Petition. It is, therefore, unnecessary to any longer consider the submission of the learned Counsel on both sides regarding the extent of the Writ Courts power to order refund of duties paid in excess of the amount lawfully recoverable. In the present case, the question of unjust enrichment was not taken in the affidavit. We, therefore, need not decide the said point also.
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Raj Kumar Karwal & Another Vs. Union of India & Others
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conferred on Customs Officers under the Customs Act, 1962. 21. For the offences under the Act, the investigation is entrusted to officers in whom powers of an officer-in-charge of a police station are vested by a notification issued under Section 53 of the Act by the concerned Government. Thus a special investigating agency is created to investigate the commission of offences under the Act. There is no doubt that the Act creates new offences, empowers officers of certain departments to effect arrest, search and seizure, outlines the procedure therefore, provides for a special machinery to investigate these offences and provides for the constitution of Special Courts for the trial of offences under the Act, notwithstanding anything contained in the Code. But, argued learned counsel for the appellants, the officers empowered to investigate under Section 53 of the Act must of necessity follow the procedure for investigation under Chapter XII of the Code, since the Act does not lay down its own procedure for investigation. By virtue of Section 41 of the Act, the provisions of the Code would apply since there is no provision in the Act which runs counter to the provisions of the Code. It was said that since the term ‘investigation’ is not defined by the Act, the definition thereof found in Section, 2(h) of the Code must be invoked in view of Section 2(xxix) of the Act which in terms states that words and expressions used in the Act but not defined will carry the meaning assigned to them, if defined in the Code. Section 2(h) of the Code, which defines ‘investigation’ by an inclusive definition means all proceedings under the Code for collection of evidence conducted by a police officer or by any person authorised by a magistrate in this behalf. Under Section 4(2) of the Code all offences under any other law have to be investigated, inquired into, tried and otherwise dealt with according to the provisions contained in the Code. However, according to Section 5, nothing contained in the Code shall, unless otherwise provided, affect any special or local law or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. The power to investigate is to be found in Chapter XII of the Code which begins with Section154 and ends with Section 176. The scheme of this Chapter is that the law can be set in motion in regard to a cognizable offence on receipt of information, written or oral, by the officer-in-charge of a police station. Once such information is received and registered, Section 156 empowers any officer-in-charge of the police station to investigate the same without any magisterial order. The investigation which so commences must be concluded, without unnecessary delay, by the submission of a report under Section 173 of the Code to the concerned Magistrate in the prescribed form. Any person on whom power to investigate under Chapter XII is conferred can be said to be ‘police an officer’, no matter by what name he is called. The nomenclature is not important, the cannot of the power he exercises is the determinative factor. The important attribute of police power is not only the power to investigate into the commission of cognizable offence but also the power to prosecute the offender by filing a report or a charge-sheet under Section 173 of the Code. That is why this Court has since the decision in Badku Joti Savant accepted the ratio that unless an officer is invested under any special law with the powers of investigation under the Code, including the power to submit a report under Section 173, he cannot be described to be a ‘police officer’ under Section 25, Evidence Act. Counsel for the appellants, however, argued that since the Act does not prescribe the procedure for investigation, the officers invested with power under Section 53 of the Act must necessarily resort to the procedure under Chapter XII of the Code which would require them to culminate the investigation by submitting a report under Section 173 of the Code. Attractive though the submission appears at first blush, it cannot stand close scrutiny. In the first place as pointed out earlier there is nothing in the provisions of the Act to show that the legislature desired to vest in the officers appointed under Section 53 of the Act, all the powers of Chapter XII, including the power to submit a report under Section 173 of the Code. But the issue is placed beyond the pale of doubt by sub-section (1) of Section 36A of the Act which begins with a non-obstinate clause notwithstanding anything contained in the Code and proceeds to say in clause (d) as under : "36-A(d) : a Special Court may, upon a perusal of police report of the facts constituting an offence under this Act or upon a complaint made by an officer of the Central Government or a State Government authorised in this behalf, take cognizance of that offence without the accused being committed to it for trial.". 22. This clause makes it clear that if the investigation is conducted by the police, it would conclude in a police report but if the investigation is made by an officer of any other department including the DRI. the Special Court would take cognizance of the offence upon a formal complaint made by such authorised officer of the concerned Government. Needless to say that such a complaint would have to be under Section 190 of the Code. This clause, in our view, clinches the matter. We must, therefore, negative the contention that an officer appointed under Section 53 of the Act, other than a police officer, is entitled to exercise ‘all’ the powers under Chapter XII of the Code, including the power to submit a report or charge-sheet under Section 173 of the Code. That being so, the case does not satisfy the ratio of Badku Joti Savant and subsequent decisions referred to earlier.
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0[ds]We, therefore, agree that as Section 25, Evidence Act, engrafts a wholesome protection it must not be construed in a narrow and technical sense but must be understood in a broad and popular sense. But at the same time it cannot be construed in so wide a sense as to include persons on whom only some of the powers exercised by the police are conferred within the category of policea plain reading of the section it is clear that if there is any inconsistency between the provisionsof the Act and the Code, the former will2(h) of the Code, which definesby an inclusive definition means all proceedings under the Code for collection of evidence conducted by a police officer or by any person authorised by a magistrate in this behalf. Under Section 4(2) of the Code all offences under any other law have to be investigated, inquired into, tried and otherwise dealt with according to the provisions contained in the Code. However, according to Section 5, nothing contained in the Code shall, unless otherwise provided, affect any special or local law or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. The power to investigate is to be found in Chapter XII of the Code which begins with Section154 and ends with Section 176. The scheme of this Chapter is that the law can be set in motion in regard to a cognizable offence on receipt of information, written or oral, by theof a police station. Once such information is received and registered, Section 156 empowers anyof the police station to investigate the same without any magisterial order. The investigation which so commences must be concluded, without unnecessary delay, by the submission of a report under Section 173 of the Code to the concerned Magistrate in the prescribed form. Any person on whom power to investigate under Chapter XII is conferred can be said to be ‘police anno matter by what name he is called. The nomenclature is not important, the cannot of the power he exercises is the determinative factor. The important attribute of police power is not only the power to investigate into the commission of cognizable offence but also the power to prosecute the offender by filing a report or aunder Section 173 of the Code. That is why this Court has since the decision in Badku Joti Savant accepted the ratio that unless an officer is invested under any special law with the powers of investigation under the Code, including the power to submit a report under Section 173, he cannot be described to be a ‘policeunder Section 25, Evidence Act.Attractive though the submission appears at first blush, it cannot stand close scrutiny. In the first place as pointed out earlier there is nothing in the provisions of the Act to show that the legislature desired to vest in the officers appointed under Section 53 of the Act, all the powers of Chapter XII,the power to submit a report under Section 173 of the Code. But the issue is placed beyond the pale of doubt by(1) of Section 36A of the Act which begins with aclause notwithstanding anything contained in the Code and proceeds to say in clause (d) as under: a Special Court may, upon a perusal of police report of the facts constituting an offence under this Act or upon a complaint made by an officer of the Central Government or a State Government authorised in this behalf, take cognizance of that offence without the accused being committed to it for trial.".This clause makes it clear that if the investigation is conducted by the police, it would conclude in a police report but if the investigation is made by an officer of any other department including the DRI. the Special Court would take cognizance of the offence upon a formal complaint made by such authorised officer of the concerned Government. Needless to say that such a complaint would have to be under Section 190 of the Code. This clause, in our view, clinches the matter. We must, therefore, negative the contention that an officer appointed under Section 53 of the Act, other than a police officer, is entitled to exercisethe powers under Chapter XII of the Code, including the power to submit a report orunder Section 173 of the Code. That being so, the case does not satisfy the ratio of Badku Joti Savant and subsequent decisions referred to earlier.
| 0 | 8,337 | 831 |
### 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:
conferred on Customs Officers under the Customs Act, 1962. 21. For the offences under the Act, the investigation is entrusted to officers in whom powers of an officer-in-charge of a police station are vested by a notification issued under Section 53 of the Act by the concerned Government. Thus a special investigating agency is created to investigate the commission of offences under the Act. There is no doubt that the Act creates new offences, empowers officers of certain departments to effect arrest, search and seizure, outlines the procedure therefore, provides for a special machinery to investigate these offences and provides for the constitution of Special Courts for the trial of offences under the Act, notwithstanding anything contained in the Code. But, argued learned counsel for the appellants, the officers empowered to investigate under Section 53 of the Act must of necessity follow the procedure for investigation under Chapter XII of the Code, since the Act does not lay down its own procedure for investigation. By virtue of Section 41 of the Act, the provisions of the Code would apply since there is no provision in the Act which runs counter to the provisions of the Code. It was said that since the term ‘investigation’ is not defined by the Act, the definition thereof found in Section, 2(h) of the Code must be invoked in view of Section 2(xxix) of the Act which in terms states that words and expressions used in the Act but not defined will carry the meaning assigned to them, if defined in the Code. Section 2(h) of the Code, which defines ‘investigation’ by an inclusive definition means all proceedings under the Code for collection of evidence conducted by a police officer or by any person authorised by a magistrate in this behalf. Under Section 4(2) of the Code all offences under any other law have to be investigated, inquired into, tried and otherwise dealt with according to the provisions contained in the Code. However, according to Section 5, nothing contained in the Code shall, unless otherwise provided, affect any special or local law or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. The power to investigate is to be found in Chapter XII of the Code which begins with Section154 and ends with Section 176. The scheme of this Chapter is that the law can be set in motion in regard to a cognizable offence on receipt of information, written or oral, by the officer-in-charge of a police station. Once such information is received and registered, Section 156 empowers any officer-in-charge of the police station to investigate the same without any magisterial order. The investigation which so commences must be concluded, without unnecessary delay, by the submission of a report under Section 173 of the Code to the concerned Magistrate in the prescribed form. Any person on whom power to investigate under Chapter XII is conferred can be said to be ‘police an officer’, no matter by what name he is called. The nomenclature is not important, the cannot of the power he exercises is the determinative factor. The important attribute of police power is not only the power to investigate into the commission of cognizable offence but also the power to prosecute the offender by filing a report or a charge-sheet under Section 173 of the Code. That is why this Court has since the decision in Badku Joti Savant accepted the ratio that unless an officer is invested under any special law with the powers of investigation under the Code, including the power to submit a report under Section 173, he cannot be described to be a ‘police officer’ under Section 25, Evidence Act. Counsel for the appellants, however, argued that since the Act does not prescribe the procedure for investigation, the officers invested with power under Section 53 of the Act must necessarily resort to the procedure under Chapter XII of the Code which would require them to culminate the investigation by submitting a report under Section 173 of the Code. Attractive though the submission appears at first blush, it cannot stand close scrutiny. In the first place as pointed out earlier there is nothing in the provisions of the Act to show that the legislature desired to vest in the officers appointed under Section 53 of the Act, all the powers of Chapter XII, including the power to submit a report under Section 173 of the Code. But the issue is placed beyond the pale of doubt by sub-section (1) of Section 36A of the Act which begins with a non-obstinate clause notwithstanding anything contained in the Code and proceeds to say in clause (d) as under : "36-A(d) : a Special Court may, upon a perusal of police report of the facts constituting an offence under this Act or upon a complaint made by an officer of the Central Government or a State Government authorised in this behalf, take cognizance of that offence without the accused being committed to it for trial.". 22. This clause makes it clear that if the investigation is conducted by the police, it would conclude in a police report but if the investigation is made by an officer of any other department including the DRI. the Special Court would take cognizance of the offence upon a formal complaint made by such authorised officer of the concerned Government. Needless to say that such a complaint would have to be under Section 190 of the Code. This clause, in our view, clinches the matter. We must, therefore, negative the contention that an officer appointed under Section 53 of the Act, other than a police officer, is entitled to exercise ‘all’ the powers under Chapter XII of the Code, including the power to submit a report or charge-sheet under Section 173 of the Code. That being so, the case does not satisfy the ratio of Badku Joti Savant and subsequent decisions referred to earlier.
### Response:
0
### Explanation:
We, therefore, agree that as Section 25, Evidence Act, engrafts a wholesome protection it must not be construed in a narrow and technical sense but must be understood in a broad and popular sense. But at the same time it cannot be construed in so wide a sense as to include persons on whom only some of the powers exercised by the police are conferred within the category of policea plain reading of the section it is clear that if there is any inconsistency between the provisionsof the Act and the Code, the former will2(h) of the Code, which definesby an inclusive definition means all proceedings under the Code for collection of evidence conducted by a police officer or by any person authorised by a magistrate in this behalf. Under Section 4(2) of the Code all offences under any other law have to be investigated, inquired into, tried and otherwise dealt with according to the provisions contained in the Code. However, according to Section 5, nothing contained in the Code shall, unless otherwise provided, affect any special or local law or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. The power to investigate is to be found in Chapter XII of the Code which begins with Section154 and ends with Section 176. The scheme of this Chapter is that the law can be set in motion in regard to a cognizable offence on receipt of information, written or oral, by theof a police station. Once such information is received and registered, Section 156 empowers anyof the police station to investigate the same without any magisterial order. The investigation which so commences must be concluded, without unnecessary delay, by the submission of a report under Section 173 of the Code to the concerned Magistrate in the prescribed form. Any person on whom power to investigate under Chapter XII is conferred can be said to be ‘police anno matter by what name he is called. The nomenclature is not important, the cannot of the power he exercises is the determinative factor. The important attribute of police power is not only the power to investigate into the commission of cognizable offence but also the power to prosecute the offender by filing a report or aunder Section 173 of the Code. That is why this Court has since the decision in Badku Joti Savant accepted the ratio that unless an officer is invested under any special law with the powers of investigation under the Code, including the power to submit a report under Section 173, he cannot be described to be a ‘policeunder Section 25, Evidence Act.Attractive though the submission appears at first blush, it cannot stand close scrutiny. In the first place as pointed out earlier there is nothing in the provisions of the Act to show that the legislature desired to vest in the officers appointed under Section 53 of the Act, all the powers of Chapter XII,the power to submit a report under Section 173 of the Code. But the issue is placed beyond the pale of doubt by(1) of Section 36A of the Act which begins with aclause notwithstanding anything contained in the Code and proceeds to say in clause (d) as under: a Special Court may, upon a perusal of police report of the facts constituting an offence under this Act or upon a complaint made by an officer of the Central Government or a State Government authorised in this behalf, take cognizance of that offence without the accused being committed to it for trial.".This clause makes it clear that if the investigation is conducted by the police, it would conclude in a police report but if the investigation is made by an officer of any other department including the DRI. the Special Court would take cognizance of the offence upon a formal complaint made by such authorised officer of the concerned Government. Needless to say that such a complaint would have to be under Section 190 of the Code. This clause, in our view, clinches the matter. We must, therefore, negative the contention that an officer appointed under Section 53 of the Act, other than a police officer, is entitled to exercisethe powers under Chapter XII of the Code, including the power to submit a report orunder Section 173 of the Code. That being so, the case does not satisfy the ratio of Badku Joti Savant and subsequent decisions referred to earlier.
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Telecom District Manager, Goa and Others Vs. V.S. Dempo and Company and Others
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1. Appeals are taken on board. 2. These appeals by special leave arise from the judgment of the Bombay High Court, Panaji Bench made on 31-3-1995 in CWP No. 398 of 1994 and batch. The facts relate to the dispute raised by the respondents for two bills, one for a sum of Rs 99, 196 and the other for Rs 71, 280. The appellant-Union of India has taken the stand that under the Administrative Instructions issued by it, the dispute cannot be referred unless the subscriber approaches the court and the court gives the direction for appointment of an arbitrator under Section 7-B of the Telegraph Act, 1885. Section 7-B reads as under. "7-B. Arbitration of Disputes. - (1) Except as otherwise expressly provided in this Act, if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person for whose benefit the line, appliance or apparatus is, or has been, provided, the dispute shall be determined by arbitration and shall, for the purposes of such determination, be referred to an arbitrator appointed by the Central Government either specially for the determination of that dispute or generally for the determination of disputes under this section.(2) The award of the arbitrator appointed under sub-section (1) shall be conclusive between the parties to the dispute and shall not be questioned in any court." * 3. A reading thereof would indicate that if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person for whose benefit the line, appliance or apparatus is, or has been provided, the dispute shall be determined by an arbitrator. Such determination shall be referred to an arbitrator appointed by the Central Government either specifically for the determination of the dispute or generally for the determination of the dispute under this section. The award of the arbitrator shall be conclusive between the parties to the dispute and its correctness is prohibited from being questioned in a court of law. It would, otherwise, be clear that any dispute regarding the billing of the meter and the liability on a subscriber thereon when its correctness is disputed, should be referred to the arbitrator by the Central Government. The arbitrators award shall be final. In a recent judgment, considering the provisions of the Act, this Court has explained that when the arbitrators award is final, it would be subject to only judicial review. The judicial review by the High Court or this Court would be possible only when the arbitrator gives reasons in support of the conclusions he reaches, be it technical or on factual basis. The Administrative Instructions issued by the Union of India that the dispute shall be referred only when there is a reference by the court is obviously in defiance of the language used in Section 7-B. The power to refer the dispute has been given by Parliament only with a view to see that the authority acts within reasonable limits and that when the subscriber disputes the correctness of the meter reading or operation of the apparatus etc. instead of litigating the dispute in a civil court, it should be decided by the arbitrator under Section 7-B. Obviously, pending proceedings the Act intended to operate without undue delay to secure public revenue and also flow of electrical operation envisages under the Act. Under those circumstances, we are of the view that the High Court is right in directing that the authority under the Act is enjoined to make reference under Section 7-B without any direction by the court and if need be it is for the subscriber to approach the court
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0[ds]3. A reading thereof would indicate that if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person for whose benefit the line, appliance or apparatus is, or has been provided, the dispute shall be determined by an arbitrator. Such determination shall be referred to an arbitrator appointed by the Central Government either specifically for the determination of the dispute or generally for the determination of the dispute under this section. The award of the arbitrator shall be conclusive between the parties to the dispute and its correctness is prohibited from being questioned in a court of law. It would, otherwise, be clear that any dispute regarding the billing of the meter and the liability on a subscriber thereon when its correctness is disputed, should be referred to the arbitrator by the Central Government. The arbitrators award shall be final. In a recent judgment, considering the provisions of the Act, this Court has explained that when the arbitrators award is final, it would be subject to only judicial review. The judicial review by the High Court or this Court would be possible only when the arbitrator gives reasons in support of the conclusions he reaches, be it technical or on factual basis. The Administrative Instructions issued by the Union of India that the dispute shall be referred only when there is a reference by the court is obviously in defiance of the language used in Section 7-B. The power to refer the dispute has been given by Parliament only with a view to see that the authority acts within reasonable limits and that when the subscriber disputes the correctness of the meter reading or operation of the apparatus etc. instead of litigating the dispute in a civil court, it should be decided by the arbitrator under Section 7-B. Obviously, pending proceedings the Act intended to operate without undue delay to secure public revenue and also flow of electrical operation envisages under the Act. Under those circumstances, we are of the view that the High Court is right in directing that the authority under the Act is enjoined to make reference under Section 7-B without any direction by the court and if need be it is for the subscriber to approach the
| 0 | 669 | 408 |
### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
1. Appeals are taken on board. 2. These appeals by special leave arise from the judgment of the Bombay High Court, Panaji Bench made on 31-3-1995 in CWP No. 398 of 1994 and batch. The facts relate to the dispute raised by the respondents for two bills, one for a sum of Rs 99, 196 and the other for Rs 71, 280. The appellant-Union of India has taken the stand that under the Administrative Instructions issued by it, the dispute cannot be referred unless the subscriber approaches the court and the court gives the direction for appointment of an arbitrator under Section 7-B of the Telegraph Act, 1885. Section 7-B reads as under. "7-B. Arbitration of Disputes. - (1) Except as otherwise expressly provided in this Act, if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person for whose benefit the line, appliance or apparatus is, or has been, provided, the dispute shall be determined by arbitration and shall, for the purposes of such determination, be referred to an arbitrator appointed by the Central Government either specially for the determination of that dispute or generally for the determination of disputes under this section.(2) The award of the arbitrator appointed under sub-section (1) shall be conclusive between the parties to the dispute and shall not be questioned in any court." * 3. A reading thereof would indicate that if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person for whose benefit the line, appliance or apparatus is, or has been provided, the dispute shall be determined by an arbitrator. Such determination shall be referred to an arbitrator appointed by the Central Government either specifically for the determination of the dispute or generally for the determination of the dispute under this section. The award of the arbitrator shall be conclusive between the parties to the dispute and its correctness is prohibited from being questioned in a court of law. It would, otherwise, be clear that any dispute regarding the billing of the meter and the liability on a subscriber thereon when its correctness is disputed, should be referred to the arbitrator by the Central Government. The arbitrators award shall be final. In a recent judgment, considering the provisions of the Act, this Court has explained that when the arbitrators award is final, it would be subject to only judicial review. The judicial review by the High Court or this Court would be possible only when the arbitrator gives reasons in support of the conclusions he reaches, be it technical or on factual basis. The Administrative Instructions issued by the Union of India that the dispute shall be referred only when there is a reference by the court is obviously in defiance of the language used in Section 7-B. The power to refer the dispute has been given by Parliament only with a view to see that the authority acts within reasonable limits and that when the subscriber disputes the correctness of the meter reading or operation of the apparatus etc. instead of litigating the dispute in a civil court, it should be decided by the arbitrator under Section 7-B. Obviously, pending proceedings the Act intended to operate without undue delay to secure public revenue and also flow of electrical operation envisages under the Act. Under those circumstances, we are of the view that the High Court is right in directing that the authority under the Act is enjoined to make reference under Section 7-B without any direction by the court and if need be it is for the subscriber to approach the court
### Response:
0
### Explanation:
3. A reading thereof would indicate that if any dispute concerning any telegraph line, appliance or apparatus arises between the telegraph authority and the person for whose benefit the line, appliance or apparatus is, or has been provided, the dispute shall be determined by an arbitrator. Such determination shall be referred to an arbitrator appointed by the Central Government either specifically for the determination of the dispute or generally for the determination of the dispute under this section. The award of the arbitrator shall be conclusive between the parties to the dispute and its correctness is prohibited from being questioned in a court of law. It would, otherwise, be clear that any dispute regarding the billing of the meter and the liability on a subscriber thereon when its correctness is disputed, should be referred to the arbitrator by the Central Government. The arbitrators award shall be final. In a recent judgment, considering the provisions of the Act, this Court has explained that when the arbitrators award is final, it would be subject to only judicial review. The judicial review by the High Court or this Court would be possible only when the arbitrator gives reasons in support of the conclusions he reaches, be it technical or on factual basis. The Administrative Instructions issued by the Union of India that the dispute shall be referred only when there is a reference by the court is obviously in defiance of the language used in Section 7-B. The power to refer the dispute has been given by Parliament only with a view to see that the authority acts within reasonable limits and that when the subscriber disputes the correctness of the meter reading or operation of the apparatus etc. instead of litigating the dispute in a civil court, it should be decided by the arbitrator under Section 7-B. Obviously, pending proceedings the Act intended to operate without undue delay to secure public revenue and also flow of electrical operation envisages under the Act. Under those circumstances, we are of the view that the High Court is right in directing that the authority under the Act is enjoined to make reference under Section 7-B without any direction by the court and if need be it is for the subscriber to approach the
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The State of Mysore & Another Vs. R.N. Rajanna & Another
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Grover, J. 1. This is an appeal by special leave from a judgment of the Mysore High Court allowing a petition filed under Article 226 of the Constitution by Respondent No. 1 and granting him certain reliefs. 2. The facts may be briefly stated. Respondent No. 1 joined as a Veterinary Inspector in December 1953. In September, 1961, he was posted as Lecturer in Clinical Medicine in the Medical College of Bangalore. On 25th October, 1961, he was temporarily promoted "without prejudice to the seniority of others" as General Manager, Hubli-Dharwar Milk Supply Scheme in the scale of Rs. 250-20-360-25-500 (revised scale) with immediate effect. On 13th December, 1962, Respondent No. 2 was promoted as Dairy Extension Officer in the grade of Rs. 175-400. On 2nd April, 1963, Respondent No. 2 was posted as General Manager of the Dharwar Milk Supply Scheme in the grade of Rs. 250-500. By another order made on the 15th May, 1966 in modification of the previous order, Respondent No. 2 was posted as Superintendent, Bangalore Milk Supply Scheme on his own pay and scale of General Manager. That was a Class II post. On 19th October, 1963, the grade of Class II was given to Respondent No. 2 in the scale of Rs. 275-600. It may be mentioned that all these postings were done in an officiating capacity. In December, 1964, the post of General Manager of the Hubli-Dharwar Milk Supply Scheme was upgraded to Class II. The Respondent represented that although he was occupying a Class II post he was drawing a salary of Class III post and, therefore, he should be given the salary in the grade of Rs. 275-600 being the salary of Class II grade. His claim was negatived by an order dated July 23, 1966. Ultimately, he filed a petition under Article 226 challenging the order negativing his claim and asking for other reliefs. 3. The High Court took the view that when Respondent No. 1 became a Dairy Development Officer in the year 1962 which was a Class II post, he could not be given the emoluments less than those payable to the occupant of Class II post. Rule 32 of the Mysore Civil Services Rules was held to be inapplicable to him. The High Court does not appear to have gone into the question which had been raised in the petition that Respondent No. 2 who was junior to him was given the promotions and other benefits which offended the fundamental right of the equality of opportunity in the matter of promotion. In addition to quashing the impugned order, the High Court issued a direction for payment to Respondent No. 1 of the emoluments of Class II post from the appropriate date. 4. On behalf of the State, which is the Appellant before us, it had been pointed out that Respondents Nos. 1 and 2 did not belong to one cadre and that the appointments which had been made from time to time were purely on ad hoc and temporary basis. It was further argued that the real claim of Respondent No. 1 was that he should be considered as Class II Officer because the post of General Manager, Hubli-Dharwar Milk Supply Scheme, was upgraded in December, 1964. That contention, it is said, is wholly untenable but what has to be seen are the terms of appointment of Respondent No. 1. Although on 5th October, 1962, the Respondent No. 1 was transferred and posted as Dairy Development Officer, Headquarters, but that was on his own pay and grade. The mere fact that he was holding a Class II post did not entitle him in these circumstances to claim the emoluments of a person holding a Class II post. There was no order ever made by any competent authority by which the Respondent No. 1 was appointed to Class II service that as per the existing cadre and Recruitment Rules of the Department the gazetted posts were to be filled up in the ratio of 60 per cent by promotion from the officials in the cadre of Veterinary Assistant Surgeons on seniority-cum-merit basis and 40 per cent by direct recruitment through the Public Service Commission. The promotion of Respondent No. 1 was only on a temporary basis and he had no lien on the post of General Manager. Consequent upon the upgrading of his post, his lien was changed to his original service of Veterinary Assistant Surgeon. When Respondent No. 1 was posted on 5th October, 1962 as Dairy Development Officer on his own pay and grade, his temporary promotion to the post of the General Manager ceased as soon as that post was upgraded to Class II. It was emphasised that the lien which the Respondent No. 1 had was on the post of Veterinary Assistant Surgeon. As regards the reliance placed by the Respondent No. 1 on Rule 42 of the Mysore Civil Services Rules, it was averred that he was not entitled to the benefit of that Rule. The reason was that after the post of the General Manager had been upgraded to Class II the lien of Respondent No. 1 on that post had come to an end and had shifted to that of Veterinary Assistant Surgeon with effect from 1st January, 1965. 5. Before us reliance had also been placed on behalf of Respondent No. 1 on Rule 42-B of the Mysore Civil Services Rules. Rule 43 had also been referred to. None of these essential and material matters has been considered by the High Court.We are unable to uphold the judgment of the High Court on the reasoning contained in it. In our judgment certain points which had material bearing on the controversy between the parties did not engage the attention of the High Court fully and no decision was given with regard to them.
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1[ds]4. On behalf of the State, which is the Appellant before us, it had been pointed out that Respondents Nos. 1 and 2 did not belong to one cadre and that the appointments which had been made from time to time were purely on ad hoc and temporary basis. It was further argued that the real claim of Respondent No. 1 was that he should be considered as Class II Officer because the post of General Manager,r Milk Supply Scheme, was upgraded in December, 1964.That contention, it is said, is wholly untenable but what has to be seen are the terms of appointment of Respondent No. 1. Although on 5th October, 1962, the Respondent No. 1 was transferred and posted as Dairy Development Officer, Headquarters, but that was on his own pay and grade. The mere fact that he was holding a Class II post did not entitle him in these circumstances to claim the emoluments of a person holding a Class II post. There was no order ever made by any competent authority by which the Respondent No. 1 was appointed to Class II service that as per the existing cadre and Recruitment Rules of the Department the gazetted posts were to be filled up in the ratio of 60 per cent by promotion from the officials in the cadre of Veterinary Assistant Surgeons ont basis and 40 per cent by direct recruitment through the Public Service Commission. The promotion of Respondent No. 1 was only on a temporary basis and he had no lien on the post of General Manager. Consequent upon the upgrading of his post, his lien was changed to his original service of Veterinary Assistant Surgeon. When Respondent No. 1 was posted on 5th October, 1962 as Dairy Development Officer on his own pay and grade, his temporary promotion to the post of the General Manager ceased as soon as that post was upgraded to Class II. It was emphasised that the lien which the Respondent No. 1 had was on the post of Veterinary Assistant Surgeon. As regards the reliance placed by the Respondent No. 1 on Rule 42 of the Mysore Civil Services Rules, it was averred that he was not entitled to the benefit of that Rule. The reason was that after the post of the General Manager had been upgraded to Class II the lien of Respondent No. 1 on that post had come to an end and had shifted to that of Veterinary Assistant Surgeon with effect from 1st January, 19655. Before us reliance had also been placed on behalf of Respondent No. 1 on RuleB of the Mysore Civil Services Rules. Rule 43 had also been referred to.None of these essential and material matters has been considered by the High Court.We are unable to uphold the judgment of the High Court on the reasoning contained in it. In our judgment certain points which had material bearing on the controversy between the parties did not engage the attention of the High Court fully and no decision was given with regard to them.
| 1 | 1,082 | 559 |
### Instruction:
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Grover, J. 1. This is an appeal by special leave from a judgment of the Mysore High Court allowing a petition filed under Article 226 of the Constitution by Respondent No. 1 and granting him certain reliefs. 2. The facts may be briefly stated. Respondent No. 1 joined as a Veterinary Inspector in December 1953. In September, 1961, he was posted as Lecturer in Clinical Medicine in the Medical College of Bangalore. On 25th October, 1961, he was temporarily promoted "without prejudice to the seniority of others" as General Manager, Hubli-Dharwar Milk Supply Scheme in the scale of Rs. 250-20-360-25-500 (revised scale) with immediate effect. On 13th December, 1962, Respondent No. 2 was promoted as Dairy Extension Officer in the grade of Rs. 175-400. On 2nd April, 1963, Respondent No. 2 was posted as General Manager of the Dharwar Milk Supply Scheme in the grade of Rs. 250-500. By another order made on the 15th May, 1966 in modification of the previous order, Respondent No. 2 was posted as Superintendent, Bangalore Milk Supply Scheme on his own pay and scale of General Manager. That was a Class II post. On 19th October, 1963, the grade of Class II was given to Respondent No. 2 in the scale of Rs. 275-600. It may be mentioned that all these postings were done in an officiating capacity. In December, 1964, the post of General Manager of the Hubli-Dharwar Milk Supply Scheme was upgraded to Class II. The Respondent represented that although he was occupying a Class II post he was drawing a salary of Class III post and, therefore, he should be given the salary in the grade of Rs. 275-600 being the salary of Class II grade. His claim was negatived by an order dated July 23, 1966. Ultimately, he filed a petition under Article 226 challenging the order negativing his claim and asking for other reliefs. 3. The High Court took the view that when Respondent No. 1 became a Dairy Development Officer in the year 1962 which was a Class II post, he could not be given the emoluments less than those payable to the occupant of Class II post. Rule 32 of the Mysore Civil Services Rules was held to be inapplicable to him. The High Court does not appear to have gone into the question which had been raised in the petition that Respondent No. 2 who was junior to him was given the promotions and other benefits which offended the fundamental right of the equality of opportunity in the matter of promotion. In addition to quashing the impugned order, the High Court issued a direction for payment to Respondent No. 1 of the emoluments of Class II post from the appropriate date. 4. On behalf of the State, which is the Appellant before us, it had been pointed out that Respondents Nos. 1 and 2 did not belong to one cadre and that the appointments which had been made from time to time were purely on ad hoc and temporary basis. It was further argued that the real claim of Respondent No. 1 was that he should be considered as Class II Officer because the post of General Manager, Hubli-Dharwar Milk Supply Scheme, was upgraded in December, 1964. That contention, it is said, is wholly untenable but what has to be seen are the terms of appointment of Respondent No. 1. Although on 5th October, 1962, the Respondent No. 1 was transferred and posted as Dairy Development Officer, Headquarters, but that was on his own pay and grade. The mere fact that he was holding a Class II post did not entitle him in these circumstances to claim the emoluments of a person holding a Class II post. There was no order ever made by any competent authority by which the Respondent No. 1 was appointed to Class II service that as per the existing cadre and Recruitment Rules of the Department the gazetted posts were to be filled up in the ratio of 60 per cent by promotion from the officials in the cadre of Veterinary Assistant Surgeons on seniority-cum-merit basis and 40 per cent by direct recruitment through the Public Service Commission. The promotion of Respondent No. 1 was only on a temporary basis and he had no lien on the post of General Manager. Consequent upon the upgrading of his post, his lien was changed to his original service of Veterinary Assistant Surgeon. When Respondent No. 1 was posted on 5th October, 1962 as Dairy Development Officer on his own pay and grade, his temporary promotion to the post of the General Manager ceased as soon as that post was upgraded to Class II. It was emphasised that the lien which the Respondent No. 1 had was on the post of Veterinary Assistant Surgeon. As regards the reliance placed by the Respondent No. 1 on Rule 42 of the Mysore Civil Services Rules, it was averred that he was not entitled to the benefit of that Rule. The reason was that after the post of the General Manager had been upgraded to Class II the lien of Respondent No. 1 on that post had come to an end and had shifted to that of Veterinary Assistant Surgeon with effect from 1st January, 1965. 5. Before us reliance had also been placed on behalf of Respondent No. 1 on Rule 42-B of the Mysore Civil Services Rules. Rule 43 had also been referred to. None of these essential and material matters has been considered by the High Court.We are unable to uphold the judgment of the High Court on the reasoning contained in it. In our judgment certain points which had material bearing on the controversy between the parties did not engage the attention of the High Court fully and no decision was given with regard to them.
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4. On behalf of the State, which is the Appellant before us, it had been pointed out that Respondents Nos. 1 and 2 did not belong to one cadre and that the appointments which had been made from time to time were purely on ad hoc and temporary basis. It was further argued that the real claim of Respondent No. 1 was that he should be considered as Class II Officer because the post of General Manager,r Milk Supply Scheme, was upgraded in December, 1964.That contention, it is said, is wholly untenable but what has to be seen are the terms of appointment of Respondent No. 1. Although on 5th October, 1962, the Respondent No. 1 was transferred and posted as Dairy Development Officer, Headquarters, but that was on his own pay and grade. The mere fact that he was holding a Class II post did not entitle him in these circumstances to claim the emoluments of a person holding a Class II post. There was no order ever made by any competent authority by which the Respondent No. 1 was appointed to Class II service that as per the existing cadre and Recruitment Rules of the Department the gazetted posts were to be filled up in the ratio of 60 per cent by promotion from the officials in the cadre of Veterinary Assistant Surgeons ont basis and 40 per cent by direct recruitment through the Public Service Commission. The promotion of Respondent No. 1 was only on a temporary basis and he had no lien on the post of General Manager. Consequent upon the upgrading of his post, his lien was changed to his original service of Veterinary Assistant Surgeon. When Respondent No. 1 was posted on 5th October, 1962 as Dairy Development Officer on his own pay and grade, his temporary promotion to the post of the General Manager ceased as soon as that post was upgraded to Class II. It was emphasised that the lien which the Respondent No. 1 had was on the post of Veterinary Assistant Surgeon. As regards the reliance placed by the Respondent No. 1 on Rule 42 of the Mysore Civil Services Rules, it was averred that he was not entitled to the benefit of that Rule. The reason was that after the post of the General Manager had been upgraded to Class II the lien of Respondent No. 1 on that post had come to an end and had shifted to that of Veterinary Assistant Surgeon with effect from 1st January, 19655. Before us reliance had also been placed on behalf of Respondent No. 1 on RuleB of the Mysore Civil Services Rules. Rule 43 had also been referred to.None of these essential and material matters has been considered by the High Court.We are unable to uphold the judgment of the High Court on the reasoning contained in it. In our judgment certain points which had material bearing on the controversy between the parties did not engage the attention of the High Court fully and no decision was given with regard to them.
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Karnataka Pawnbrokers' Association and Others Vs. State of Karnataka and Others
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behalf of the appellants that if at all in the transactions in question, the auctioneer must be held liable for payment of tax34. Now coming to the contention that inasmuch as the pawnbroker is given liberty to bid and purchase at the sale of unredeemed goods, he cannot be deemed as a "seller" as he cannot sell the goods to himself. This contention is misconceived as the pawnbroker in such a circumstances plays a dual role - one as a pawnbroker and the other as the individual self. As a matter of fact, a similar question arose before the Madras High Court in L.S. Chandramouli & Co. v. State of Madras (Mad)). In that case, the question for consideration was whether a local agent of a non-resident principal who carried on business of his own also transfers the goods of the non-resident principal to his own business can be considered as a transaction of sale chargeable to tax. The learned Judges overruling a similar contention held that the agent concerned held two different capacities - one as an agent of a non-resident principal - and the other as the proprietor of his own business, two different identities altogether. While transferring the goods of the non-resident principal to himself, he not only acted as an agent of his non-resident principal but also as a purchaser and there is nothing in law which militates against the said conclusions and consequent tax liability on such person. We have no hesitation to reject the contention of the learned counsel for the appellants that the pawnbroker cannot be treated as a seller of goods in the first and circumstances of these cases and, therefore, not a "dealer" under the Sales Tax Act35. It is now well settled that any activity incidental or ancillary to the main business will also come within the definition of "business" under the Sales Tax Act and, therefore, the contention that the sale of unredeemed goods, being incidental to the business of pawnbroker was not liable to sales tax, cannot be accepted36. Let us now consider the decisions cited on behalf of the learned counsel for the appellants 37. Mr. K. Parasaran, learned Senior Counsel for the appellants, cited a Single Bench judgment of the Madras High Court in Provincial Govt. of Madras v. Mudukuru Munirathnam Chetti. This judgment, apart from the fact that it was rendered under the Madras General Sales Tax Act, 1939, is not directly on the point and the context in which the judgment was rendered, was entirely different. That judgment considered a transaction treated by both the parties as loan and entrustment of goods for sale to others to discharge the loan. It was held that that transaction cannot be treated as a sale at the hands of the person who advanced the money for the purpose of levy of sales tax. The nature and character of the transaction in the case on hand are totally different. Therefore, the case cited has no application to the facts of this case38. Likewise, the decision cited by Mr. Dave learned Senior Counsel for the appellants, namely, Dy. Commr. of Commercial Taxes v. A.R.S. Thirumeninatha Nadar (Mad)); Lallan Prasad v. Rahmat Ali ; Balkrishan Gupta v. Swadeshi Polytex Ltd. and Chowringhee Sales Bureau (P) Ltd. v. CIT are all under different circumstances and with reference to the facts of those cases which have no direct bearing to the issues raised in these cases39. In Dy. Commr. of Commercial Taxes (Mad)) the Division Bench of the Madras High Court, on the facts of the case, held that the bank in selling the goods pawned to it did not act as an agent of the assessee and the sales were on behalf of the pledger. The learned Judges further held that the pawn or pledge by itself did not make the pawnee or pledgee the owner of the goods on the peculiar facts of that case40. In Lallan Prasad case this Court considered a question whether the appellant in that case was entitled to a decree in view of his denial of the pledge and his failure to offer to redeliver the goods. In answering that question, this Court, after referring to Section 176 of the Indian Contract Act, held that so long, however, as the sale does not take place, the pawnor is entitled to redeem the goods on payment of the debt. Therefore, the right to sue on the debt assume that he is in a position to redeliver the goods on payment of the debt, and if by denying the pledge or otherwise, he was put himself in a position whereby he is not able to redeliver the goods, he cannot obtain a decree41. In Balkrishan Gupta again a judgment of this Court had considered a question that arose under the Companies Act, 1956 and the effect and consequence of appointment of a receiver in respect of certain shares of a company42. In Chowringhee Sales Bureau (P) Ltd. this Court, on the peculiar facts of that case, found that there was a close and direct connection between an auctioneer and the transaction of auction-sale in that case. On the basis of the peculiar facts, this Court also found that the auctioneer had collected sales tax on the auction-sale of the goods but had not passed on the same to the Revenue. In such circumstances, this Court held that the auctioneer was liable to pay sales tax under the West Bengal Act43. None of the cases cited by the learned counsel for the appellants had any bearing on the facts of the cases on hand. On the other hand, the decisions cited in the judgments under appeal and cited in this judgment in support of the conclusions are directly on point44. We have already stated that we are in agreement with the conclusions reached by the learned Judges in the judgments under appeal and we have dealt with only the principal reasons sufficient for approving the judgments under appeal
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1[ds]25. The learned Judges of the Division Bench of the Karnataka High Court as well as the learned Judges of the Division Bench of the Madras High Court have written elaborately on the subject citing numerous authorities of this Court and of the High Courts to support their conclusions. We are, with respect, in agreement with the conclusions and the reasonings given for such conclusions in the judgments under appeal. We do not, therefore, propose to give elaborate reasonings, except to point out the principal reasonings to sustain the conclusions reached in judgments under appeal26. It cannot be and it is not disputed that the pawnbroker has special property rights in the goods pledged, a right higher than a mere right of detention of goods but a right lesser than general property right in the goods. To put in differently, the pawnor at the time of the pledge not only transfers to the pawnee, the special right in the pledge but also passes on his right to transfer the general property right in the pledge in the event of the pledge remaining unredeemed resulting in the sale of the pledge by public auction through an approved auctioneer. The position being what is stated above, the natural consequence will be that it is the pawnee who holds not only the absolute special property right in the pledge but also the conditional general property interest in the pledge, the condition being that he can pass on that general property only in the event of the pledge being brought to sale by public auction in accordance with the Act and the Rules framed thereunder27. In this connection, we can usefully quote a passage from Kandula Radhakrishna Rao which has been approved by this Court in Bagal Kot Cement Co. v. State ofApplying the above principle to the facts of these cases, we are clearly of the opinion that in the sales of unredeemed goods through public auction by an approved auctioneer, the pawnee who has control or possession over the goods and who was given statutory authority to pass the general property in and title to the goods, is the seller and as such, satisfies the definition of "dealer" under the General Sales Tax Act of both the States. This conclusion is further strengthened by the definition of "pawnbroker" (supra). The Explanation to the definition of "pawnbroker" contemplates that every person who keeps a shop for the purchase or sale of goods or chattels and who purchases goods or chattles and pays or advances thereon any sum of money, with or under an agreement or understanding expressed or implied that the goods or chattles may be afterwards repurchased on any terms, is a "pawnbroker" within the meaning of the main clause. The activities of a pawnbroker as detailed above will satisfy the definition of "business" as well. We have also noticed that the pawnor has no role at all in the sale of the goods pledged except to redeem the same before the sale is concluded. Therefore, he cannot be treated as a seller in the context of theWe are in agreement with the above observations and the conclusions reached thereon. This answers, in the negative, the contention advanced on behalf of the appellants that if at all in the transactions in question, the auctioneer must be held liable for payment of tax34. Now coming to the contention that inasmuch as the pawnbroker is given liberty to bid and purchase at the sale of unredeemed goods, he cannot be deemed as a "seller" as he cannot sell the goods to himself. This contention is misconceived as the pawnbroker in such a circumstances plays a dual roleone as a pawnbroker and the other as the individual self. As a matter of fact, a similar question arose before the Madras High Court in L.S. Chandramouli & Co. v. State of Madras (Mad)). In that case, the question for consideration was whether a local agent of aprincipal who carried on business of his own also transfers the goods of theprincipal to his own business can be considered as a transaction of sale chargeable to tax. The learned Judges overruling a similar contention held that the agent concerned held two different capacitiesone as an agent of aand the other as the proprietor of his own business, two different identities altogether. While transferring the goods of theprincipal to himself, he not only acted as an agent of hisprincipal but also as a purchaser and there is nothing in law which militates against the said conclusions and consequent tax liability on such person. We have no hesitation to reject the contention of the learned counsel for the appellants that the pawnbroker cannot be treated as a seller of goods in the first and circumstances of these cases and, therefore, not a "dealer" under the Sales Tax Act35. It is now well settled that any activity incidental or ancillary to the main business will also come within the definition of "business" under the Sales Tax Act and, therefore, the contention that the sale of unredeemed goods, being incidental to the business of pawnbroker was not liable to sales tax, cannot be accepted36. Let us now consider the decisions cited on behalf of the learned counsel for theMr. K. Parasaran, learned Senior Counsel for the appellants, cited a Single Bench judgment of the Madras High Court in Provincial Govt. of Madras v. Mudukuru Munirathnam Chetti. This judgment, apart from the fact that it was rendered under the Madras General Sales Tax Act, 1939, is not directly on the point and the context in which the judgment was rendered, was entirely different. That judgment considered a transaction treated by both the parties as loan and entrustment of goods for sale to others to discharge the loan. It was held that that transaction cannot be treated as a sale at the hands of the person who advanced the money for the purpose of levy of sales tax. The nature and character of the transaction in the case on hand are totally different. Therefore, the case cited has no application to the facts of thiscase38. Likewise, the decision cited by Mr. Dave learned Senior Counsel for the appellants, namely, Dy. Commr. of Commercial Taxes v. A.R.S. Thirumeninatha Nadar (Mad)); Lallan Prasad v. Rahmat Ali ; Balkrishan Gupta v. Swadeshi Polytex Ltd. and Chowringhee Sales Bureau (P) Ltd. v. CIT are all under different circumstances and with reference to the facts of those cases which have no direct bearing to the issues raised in these cases39. In Dy. Commr. of Commercial Taxes (Mad)) the Division Bench of the Madras High Court, on the facts of the case, held that the bank in selling the goods pawned to it did not act as an agent of the assessee and the sales were on behalf of the pledger. The learned Judges further held that the pawn or pledge by itself did not make the pawnee or pledgee the owner of the goods on the peculiar facts of that case40. In Lallan Prasad case this Court considered a question whether the appellant in that case was entitled to a decree in view of his denial of the pledge and his failure to offer to redeliver the goods. In answering that question, this Court, after referring to Section 176 of the Indian Contract Act, held that so long, however, as the sale does not take place, the pawnor is entitled to redeem the goods on payment of the debt. Therefore, the right to sue on the debt assume that he is in a position to redeliver the goods on payment of the debt, and if by denying the pledge or otherwise, he was put himself in a position whereby he is not able to redeliver the goods, he cannot obtain a decree41. In Balkrishan Gupta again a judgment of this Court had considered a question that arose under the Companies Act, 1956 and the effect and consequence of appointment of a receiver in respect of certain shares of a company42. In Chowringhee Sales Bureau (P) Ltd. this Court, on the peculiar facts of that case, found that there was a close and direct connection between an auctioneer and the transaction ofin that case. On the basis of the peculiar facts, this Court also found that the auctioneer had collected sales tax on theof the goods but had not passed on the same to the Revenue. In such circumstances, this Court held that the auctioneer was liable to pay sales tax under the West Bengal Act43. None of the cases cited by the learned counsel for the appellants had any bearing on the facts of the cases on hand. On the other hand, the decisions cited in the judgments under appeal and cited in this judgment in support of the conclusions are directly on point44. We have already stated that we are in agreement with the conclusions reached by the learned Judges in the judgments under appeal and we have dealt with only the principal reasons sufficient for approving the judgments under appeal
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behalf of the appellants that if at all in the transactions in question, the auctioneer must be held liable for payment of tax34. Now coming to the contention that inasmuch as the pawnbroker is given liberty to bid and purchase at the sale of unredeemed goods, he cannot be deemed as a "seller" as he cannot sell the goods to himself. This contention is misconceived as the pawnbroker in such a circumstances plays a dual role - one as a pawnbroker and the other as the individual self. As a matter of fact, a similar question arose before the Madras High Court in L.S. Chandramouli & Co. v. State of Madras (Mad)). In that case, the question for consideration was whether a local agent of a non-resident principal who carried on business of his own also transfers the goods of the non-resident principal to his own business can be considered as a transaction of sale chargeable to tax. The learned Judges overruling a similar contention held that the agent concerned held two different capacities - one as an agent of a non-resident principal - and the other as the proprietor of his own business, two different identities altogether. While transferring the goods of the non-resident principal to himself, he not only acted as an agent of his non-resident principal but also as a purchaser and there is nothing in law which militates against the said conclusions and consequent tax liability on such person. We have no hesitation to reject the contention of the learned counsel for the appellants that the pawnbroker cannot be treated as a seller of goods in the first and circumstances of these cases and, therefore, not a "dealer" under the Sales Tax Act35. It is now well settled that any activity incidental or ancillary to the main business will also come within the definition of "business" under the Sales Tax Act and, therefore, the contention that the sale of unredeemed goods, being incidental to the business of pawnbroker was not liable to sales tax, cannot be accepted36. Let us now consider the decisions cited on behalf of the learned counsel for the appellants 37. Mr. K. Parasaran, learned Senior Counsel for the appellants, cited a Single Bench judgment of the Madras High Court in Provincial Govt. of Madras v. Mudukuru Munirathnam Chetti. This judgment, apart from the fact that it was rendered under the Madras General Sales Tax Act, 1939, is not directly on the point and the context in which the judgment was rendered, was entirely different. That judgment considered a transaction treated by both the parties as loan and entrustment of goods for sale to others to discharge the loan. It was held that that transaction cannot be treated as a sale at the hands of the person who advanced the money for the purpose of levy of sales tax. The nature and character of the transaction in the case on hand are totally different. Therefore, the case cited has no application to the facts of this case38. Likewise, the decision cited by Mr. Dave learned Senior Counsel for the appellants, namely, Dy. Commr. of Commercial Taxes v. A.R.S. Thirumeninatha Nadar (Mad)); Lallan Prasad v. Rahmat Ali ; Balkrishan Gupta v. Swadeshi Polytex Ltd. and Chowringhee Sales Bureau (P) Ltd. v. CIT are all under different circumstances and with reference to the facts of those cases which have no direct bearing to the issues raised in these cases39. In Dy. Commr. of Commercial Taxes (Mad)) the Division Bench of the Madras High Court, on the facts of the case, held that the bank in selling the goods pawned to it did not act as an agent of the assessee and the sales were on behalf of the pledger. The learned Judges further held that the pawn or pledge by itself did not make the pawnee or pledgee the owner of the goods on the peculiar facts of that case40. In Lallan Prasad case this Court considered a question whether the appellant in that case was entitled to a decree in view of his denial of the pledge and his failure to offer to redeliver the goods. In answering that question, this Court, after referring to Section 176 of the Indian Contract Act, held that so long, however, as the sale does not take place, the pawnor is entitled to redeem the goods on payment of the debt. Therefore, the right to sue on the debt assume that he is in a position to redeliver the goods on payment of the debt, and if by denying the pledge or otherwise, he was put himself in a position whereby he is not able to redeliver the goods, he cannot obtain a decree41. In Balkrishan Gupta again a judgment of this Court had considered a question that arose under the Companies Act, 1956 and the effect and consequence of appointment of a receiver in respect of certain shares of a company42. In Chowringhee Sales Bureau (P) Ltd. this Court, on the peculiar facts of that case, found that there was a close and direct connection between an auctioneer and the transaction of auction-sale in that case. On the basis of the peculiar facts, this Court also found that the auctioneer had collected sales tax on the auction-sale of the goods but had not passed on the same to the Revenue. In such circumstances, this Court held that the auctioneer was liable to pay sales tax under the West Bengal Act43. None of the cases cited by the learned counsel for the appellants had any bearing on the facts of the cases on hand. On the other hand, the decisions cited in the judgments under appeal and cited in this judgment in support of the conclusions are directly on point44. We have already stated that we are in agreement with the conclusions reached by the learned Judges in the judgments under appeal and we have dealt with only the principal reasons sufficient for approving the judgments under appeal
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context of theWe are in agreement with the above observations and the conclusions reached thereon. This answers, in the negative, the contention advanced on behalf of the appellants that if at all in the transactions in question, the auctioneer must be held liable for payment of tax34. Now coming to the contention that inasmuch as the pawnbroker is given liberty to bid and purchase at the sale of unredeemed goods, he cannot be deemed as a "seller" as he cannot sell the goods to himself. This contention is misconceived as the pawnbroker in such a circumstances plays a dual roleone as a pawnbroker and the other as the individual self. As a matter of fact, a similar question arose before the Madras High Court in L.S. Chandramouli & Co. v. State of Madras (Mad)). In that case, the question for consideration was whether a local agent of aprincipal who carried on business of his own also transfers the goods of theprincipal to his own business can be considered as a transaction of sale chargeable to tax. The learned Judges overruling a similar contention held that the agent concerned held two different capacitiesone as an agent of aand the other as the proprietor of his own business, two different identities altogether. While transferring the goods of theprincipal to himself, he not only acted as an agent of hisprincipal but also as a purchaser and there is nothing in law which militates against the said conclusions and consequent tax liability on such person. We have no hesitation to reject the contention of the learned counsel for the appellants that the pawnbroker cannot be treated as a seller of goods in the first and circumstances of these cases and, therefore, not a "dealer" under the Sales Tax Act35. It is now well settled that any activity incidental or ancillary to the main business will also come within the definition of "business" under the Sales Tax Act and, therefore, the contention that the sale of unredeemed goods, being incidental to the business of pawnbroker was not liable to sales tax, cannot be accepted36. Let us now consider the decisions cited on behalf of the learned counsel for theMr. K. Parasaran, learned Senior Counsel for the appellants, cited a Single Bench judgment of the Madras High Court in Provincial Govt. of Madras v. Mudukuru Munirathnam Chetti. This judgment, apart from the fact that it was rendered under the Madras General Sales Tax Act, 1939, is not directly on the point and the context in which the judgment was rendered, was entirely different. That judgment considered a transaction treated by both the parties as loan and entrustment of goods for sale to others to discharge the loan. It was held that that transaction cannot be treated as a sale at the hands of the person who advanced the money for the purpose of levy of sales tax. The nature and character of the transaction in the case on hand are totally different. Therefore, the case cited has no application to the facts of thiscase38. Likewise, the decision cited by Mr. Dave learned Senior Counsel for the appellants, namely, Dy. Commr. of Commercial Taxes v. A.R.S. Thirumeninatha Nadar (Mad)); Lallan Prasad v. Rahmat Ali ; Balkrishan Gupta v. Swadeshi Polytex Ltd. and Chowringhee Sales Bureau (P) Ltd. v. CIT are all under different circumstances and with reference to the facts of those cases which have no direct bearing to the issues raised in these cases39. In Dy. Commr. of Commercial Taxes (Mad)) the Division Bench of the Madras High Court, on the facts of the case, held that the bank in selling the goods pawned to it did not act as an agent of the assessee and the sales were on behalf of the pledger. The learned Judges further held that the pawn or pledge by itself did not make the pawnee or pledgee the owner of the goods on the peculiar facts of that case40. In Lallan Prasad case this Court considered a question whether the appellant in that case was entitled to a decree in view of his denial of the pledge and his failure to offer to redeliver the goods. In answering that question, this Court, after referring to Section 176 of the Indian Contract Act, held that so long, however, as the sale does not take place, the pawnor is entitled to redeem the goods on payment of the debt. Therefore, the right to sue on the debt assume that he is in a position to redeliver the goods on payment of the debt, and if by denying the pledge or otherwise, he was put himself in a position whereby he is not able to redeliver the goods, he cannot obtain a decree41. In Balkrishan Gupta again a judgment of this Court had considered a question that arose under the Companies Act, 1956 and the effect and consequence of appointment of a receiver in respect of certain shares of a company42. In Chowringhee Sales Bureau (P) Ltd. this Court, on the peculiar facts of that case, found that there was a close and direct connection between an auctioneer and the transaction ofin that case. On the basis of the peculiar facts, this Court also found that the auctioneer had collected sales tax on theof the goods but had not passed on the same to the Revenue. In such circumstances, this Court held that the auctioneer was liable to pay sales tax under the West Bengal Act43. None of the cases cited by the learned counsel for the appellants had any bearing on the facts of the cases on hand. On the other hand, the decisions cited in the judgments under appeal and cited in this judgment in support of the conclusions are directly on point44. We have already stated that we are in agreement with the conclusions reached by the learned Judges in the judgments under appeal and we have dealt with only the principal reasons sufficient for approving the judgments under appeal
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State of Odisha & Ors Vs. Ganesh Chandra Sahoo
|
medical certificate (dated 21.9.1998), issued by Dr. G.C. Kar, who was the then Professor & HoD of Psychiatric Department, SCB, Medical College and Hospital, Cuttack. But interestingly, the certifying Doctor does not categorically mention that the respondent was under his treatment since 1991. Most unusually, the certificate reflects that on reference by the local MLA, the respondent reported before the specialist Doctor on 21.1.1998. Therefore the respondents was not a referral case by a Doctor, who might have been treating the respondent during 1991 to 1998. If the respondent was a patient under Dr. Kar, there would have no need for the MLAs reference and the Doctor could have issued the certificate based on his own line of treatment and medication. It is for such logical fallacy, the Tribunal doubted the veracity of the medical certificate, which reported on the respondents purported mental incapacity, between 1991 and 1998. 17. In granting relief to the respondent in his writ petition, the High Court should have considered that the respondent was absent from duty for seven long years and he was aware of the discharge order passed against him on 30.12.1993. As regards the plea of mental illness which might have incapacitated the respondent from either reporting for duty or to participate in the disciplinary proceeding, the Court should have borne in mind the failure of the respondent to make himself available before the CDMO to crosscheck his pleaded medical condition This was in defiance of the repeated communications addressed to the absentee-employee by the Commandant of the Battalion. It is also of significance that neither the Tribunal nor the High Court found any infirmity with the disciplinary proceeding which led to the issuance of the discharge order against the delinquent on 30.12.1993. 18. In the above circumstances, when factual finding was recorded by the Tribunal on fairness of the disciplinary proceeding with due opportunity to the delinquent, the substitution of the penalty of discharge, was not warranted. This is more so as the High Court found support for their decision from Rajinder Kumar (supra) where the concerned constable was unauthorizedly absent for 37 days whereas the respondent herein had failed to report back for duty for long 7 years, from 1991 to 1998. 19. If the respondent had actually suffered from cerebral malaria since 3.06.1991 and was subjected to frequent cyclic attack of Maniac Depression Psychosis, as claimed, necessary proof of such suffering from the concerned Doctor/Hospital who were providing him the treatment, ought to have been produced. Moreover, he never allowed for cross verification of his pleaded medical condition by presenting himself before the CDMO in 1991 or thereafter. Instead, the respondent only produced the 21.1.1998 certificate of the HoD, Psychiatry who may have had no role in the treatment of the respondent. It therefore appears to be a case of certificate of convenience on the purported symptoms and mental ailment of the respondent from 1991 to 1998, without support of any contemporaneous medical records. Most curiously, the Doctor had issued the certificate on the basis of reference made by the local MLA but not on the basis of referral by Doctor/Hospital which might have been involved with the respondents treatment during 1991 to 1998. 20. In the present case, we are inclined to think that the respondent by remaining away from duty since 1991 to 1998 without producing contemporaneous medical record has not only been irresponsible and indisciplined but tried to get away with it by producing the certificate of a specialist Doctor who may not have treated the respondent. Significantly, although the respondent produced a certificate of a psychiatric specialist, he never claimed that he received treatment from any psychiatric Doctor. In such backdrop, the High Court should not have invoked the self serving medical certificate. The Court wrongfully relied on Rajinder Kumar (supra) where this Courts intervention was in entirely different circumstances. Besides the doctrine of proportionality is not attracted in the present facts. 21. There is another aspect which will require our consideration. Before the Tribunal, the counsel for the respondent submitted that for an employee suffering from mental ailment, his situation should be treated as an exceptional case under Rule 72 of the Orissa Code which deals with leave for Government servant remaining absent for over five years. Under Rule 72, no leave of any kind is admissible for period exceeding five years unless the Government determines the case to be one of exceptional circumstances. The Rule 72 is quoted below for ready reference: 72. (1) No Government servant shall be granted leave of any kind for a continuous period exceeding five years. (2) Where a Government servant does not resume duty after remaining on leave for a continuous period of five years, or where a Government servant after the expiry of his leave remains absent from duty otherwise than on foreign service or on account of suspension, for any period which together with the period of the leave granted to him exceeds five years, he shall, unless Government in view of the exceptional circumstances of the case otherwise determine, be removed from service after following the procedure laid down in the Orissa Civil Services (Classifications, Control and Appeal) Rules, 1962. On careful reading of the above provision we are quite sure that the situation here is not one of exceptional circumstances. In fact the veracity of the self-serving medical certificate to justify the seven years absence, was correctly doubted by the Tribunal. 22. In the above circumstances, the High Court should not have granted relief to the respondent solely on the basis of the medical certificate of the specialist Doctor who may not have personally treated the patient. In the absence of relevant and contemporaneous medical records, the High Court should not have interfered with the disciplinary action and ordered for a lesser penalty. The gravity of the misconduct of the respondent was overlooked and unmerited intervention was made with the Tribunals rightful decision to decline relief in the O.A.1459(C)/2003 filed by the respondent.
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1[ds]14. In order to decide on the applicability of the ratio in Rajinder Kumar (supra), we must advert to the facts in this case. Here the respondent after availing leave for nine days (from 25.5.1991 to 4.6.1991), did not report back to his Battalion until 1998. But long before that, the respondent having not presented himself before the CDMO, for his medical examination, was proceeded departmentally and was discharged from service on 30.12.1993. Therefore, unlike in the case of Rajinder Kumar (supra) where the concerned delinquent was absent only for 37 days, the respondent herein did not report back for duties for about seven years. Significantly, he thwarted his medical examination by disregarding the direction of the Commandant to present himself before the CDMO, Cuttack. In the cited case where delinquent was absent for 37 days, the punishment of discharge was found to be disproportionate and it was altered to compulsory retirement. But in the present case, the respondent failed to report back for duty for about seven years after availing leave for 9 days. Therefore, the nature and degree of misconduct in the two cases are not of the same category and hence the two cases with different facts could not have been decided, in our opinion, with the same judicial standard15. It is also significant that the High Court failed to notice that the respondent did not present himself for the official verification of his medical status by the CDMO and thereby prevented confirmation of his pleaded medical condition. In this manner, the respondent not only defied the Commandants direction but remained absent without authorization, for about seven years. Later, he tried to justify his long absence without producing any contemporaneous medical recordsTherefore the respondents was not a referral case by a Doctor, who might have been treating the respondent during 1991 to 1998. If the respondent was a patient under Dr. Kar, there would have no need for the MLAs reference and the Doctor could have issued the certificate based on his own line of treatment and medication. It is for such logical fallacy, the Tribunal doubted the veracity of the medical certificate, which reported on the respondents purported mental incapacity, between 1991 and 199817. In granting relief to the respondent in his writ petition, the High Court should have considered that the respondent was absent from duty for seven long years and he was aware of the discharge order passed against him on 30.12.1993. As regards the plea of mental illness which might have incapacitated the respondent from either reporting for duty or to participate in the disciplinary proceeding, the Court should have borne in mind the failure of the respondent to make himself available before the CDMO to crosscheck his pleaded medical condition This was in defiance of the repeated communications addressed to the absentee-employee by the Commandant of the Battalion. It is also of significance that neither the Tribunal nor the High Court found any infirmity with the disciplinary proceeding which led to the issuance of the discharge order against the delinquent on 30.12.199318. In the above circumstances, when factual finding was recorded by the Tribunal on fairness of the disciplinary proceeding with due opportunity to the delinquent, the substitution of the penalty of discharge, was not warranted. This is more so as the High Court found support for their decision from Rajinder Kumar (supra) where the concerned constable was unauthorizedly absent for 37 days whereas the respondent herein had failed to report back for duty for long 7 years, from 1991 to 1998. It therefore appears to be a case of certificate of convenience on the purported symptoms and mental ailment of the respondent from 1991 to 1998, without support of any contemporaneous medical records. Most curiously, the Doctor had issued the certificate on the basis of reference made by the local MLA but not on the basis of referral by Doctor/Hospital which might have been involved with the respondents treatment during 1991 to 199820. In the present case, we are inclined to think that the respondent by remaining away from duty since 1991 to 1998 without producing contemporaneous medical record has not only been irresponsible and indisciplined but tried to get away with it by producing the certificate of a specialist Doctor who may not have treated the respondent. Significantly, although the respondent produced a certificate of a psychiatric specialist, he never claimed that he received treatment from any psychiatric Doctor. In such backdrop, the High Court should not have invoked the self serving medical certificate. The Court wrongfully relied on Rajinder Kumar (supra) where this Courts intervention was in entirely different circumstances. Besides the doctrine of proportionality is not attracted in the present factsOn careful reading of the above provision we are quite sure that the situation here is not one of exceptional circumstances. In fact the veracity of the self-serving medical certificate to justify the seven years absence, was correctly doubted by the Tribunal22. In the above circumstances, the High Court should not have granted relief to the respondent solely on the basis of the medical certificate of the specialist Doctor who may not have personally treated the patient. In the absence of relevant and contemporaneous medical records, the High Court should not have interfered with the disciplinary action and ordered for a lesser penalty. The gravity of the misconduct of the respondent was overlooked and unmerited intervention was made with the Tribunals rightful decision to decline relief in the O.A.1459(C)/2003 filed by the respondentBefore the Tribunal, the counsel for the respondent submitted that for an employee suffering from mental ailment, his situation should be treated as an exceptional case under Rule 72 of the Orissa Code which deals with leave for Government servant remaining absent for over five years. Under Rule 72, no leave of any kind is admissible for period exceeding five years unless the Government determines the case to be one of exceptional circumstances.
| 1 | 3,128 | 1,076 |
### 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:
medical certificate (dated 21.9.1998), issued by Dr. G.C. Kar, who was the then Professor & HoD of Psychiatric Department, SCB, Medical College and Hospital, Cuttack. But interestingly, the certifying Doctor does not categorically mention that the respondent was under his treatment since 1991. Most unusually, the certificate reflects that on reference by the local MLA, the respondent reported before the specialist Doctor on 21.1.1998. Therefore the respondents was not a referral case by a Doctor, who might have been treating the respondent during 1991 to 1998. If the respondent was a patient under Dr. Kar, there would have no need for the MLAs reference and the Doctor could have issued the certificate based on his own line of treatment and medication. It is for such logical fallacy, the Tribunal doubted the veracity of the medical certificate, which reported on the respondents purported mental incapacity, between 1991 and 1998. 17. In granting relief to the respondent in his writ petition, the High Court should have considered that the respondent was absent from duty for seven long years and he was aware of the discharge order passed against him on 30.12.1993. As regards the plea of mental illness which might have incapacitated the respondent from either reporting for duty or to participate in the disciplinary proceeding, the Court should have borne in mind the failure of the respondent to make himself available before the CDMO to crosscheck his pleaded medical condition This was in defiance of the repeated communications addressed to the absentee-employee by the Commandant of the Battalion. It is also of significance that neither the Tribunal nor the High Court found any infirmity with the disciplinary proceeding which led to the issuance of the discharge order against the delinquent on 30.12.1993. 18. In the above circumstances, when factual finding was recorded by the Tribunal on fairness of the disciplinary proceeding with due opportunity to the delinquent, the substitution of the penalty of discharge, was not warranted. This is more so as the High Court found support for their decision from Rajinder Kumar (supra) where the concerned constable was unauthorizedly absent for 37 days whereas the respondent herein had failed to report back for duty for long 7 years, from 1991 to 1998. 19. If the respondent had actually suffered from cerebral malaria since 3.06.1991 and was subjected to frequent cyclic attack of Maniac Depression Psychosis, as claimed, necessary proof of such suffering from the concerned Doctor/Hospital who were providing him the treatment, ought to have been produced. Moreover, he never allowed for cross verification of his pleaded medical condition by presenting himself before the CDMO in 1991 or thereafter. Instead, the respondent only produced the 21.1.1998 certificate of the HoD, Psychiatry who may have had no role in the treatment of the respondent. It therefore appears to be a case of certificate of convenience on the purported symptoms and mental ailment of the respondent from 1991 to 1998, without support of any contemporaneous medical records. Most curiously, the Doctor had issued the certificate on the basis of reference made by the local MLA but not on the basis of referral by Doctor/Hospital which might have been involved with the respondents treatment during 1991 to 1998. 20. In the present case, we are inclined to think that the respondent by remaining away from duty since 1991 to 1998 without producing contemporaneous medical record has not only been irresponsible and indisciplined but tried to get away with it by producing the certificate of a specialist Doctor who may not have treated the respondent. Significantly, although the respondent produced a certificate of a psychiatric specialist, he never claimed that he received treatment from any psychiatric Doctor. In such backdrop, the High Court should not have invoked the self serving medical certificate. The Court wrongfully relied on Rajinder Kumar (supra) where this Courts intervention was in entirely different circumstances. Besides the doctrine of proportionality is not attracted in the present facts. 21. There is another aspect which will require our consideration. Before the Tribunal, the counsel for the respondent submitted that for an employee suffering from mental ailment, his situation should be treated as an exceptional case under Rule 72 of the Orissa Code which deals with leave for Government servant remaining absent for over five years. Under Rule 72, no leave of any kind is admissible for period exceeding five years unless the Government determines the case to be one of exceptional circumstances. The Rule 72 is quoted below for ready reference: 72. (1) No Government servant shall be granted leave of any kind for a continuous period exceeding five years. (2) Where a Government servant does not resume duty after remaining on leave for a continuous period of five years, or where a Government servant after the expiry of his leave remains absent from duty otherwise than on foreign service or on account of suspension, for any period which together with the period of the leave granted to him exceeds five years, he shall, unless Government in view of the exceptional circumstances of the case otherwise determine, be removed from service after following the procedure laid down in the Orissa Civil Services (Classifications, Control and Appeal) Rules, 1962. On careful reading of the above provision we are quite sure that the situation here is not one of exceptional circumstances. In fact the veracity of the self-serving medical certificate to justify the seven years absence, was correctly doubted by the Tribunal. 22. In the above circumstances, the High Court should not have granted relief to the respondent solely on the basis of the medical certificate of the specialist Doctor who may not have personally treated the patient. In the absence of relevant and contemporaneous medical records, the High Court should not have interfered with the disciplinary action and ordered for a lesser penalty. The gravity of the misconduct of the respondent was overlooked and unmerited intervention was made with the Tribunals rightful decision to decline relief in the O.A.1459(C)/2003 filed by the respondent.
### Response:
1
### Explanation:
14. In order to decide on the applicability of the ratio in Rajinder Kumar (supra), we must advert to the facts in this case. Here the respondent after availing leave for nine days (from 25.5.1991 to 4.6.1991), did not report back to his Battalion until 1998. But long before that, the respondent having not presented himself before the CDMO, for his medical examination, was proceeded departmentally and was discharged from service on 30.12.1993. Therefore, unlike in the case of Rajinder Kumar (supra) where the concerned delinquent was absent only for 37 days, the respondent herein did not report back for duties for about seven years. Significantly, he thwarted his medical examination by disregarding the direction of the Commandant to present himself before the CDMO, Cuttack. In the cited case where delinquent was absent for 37 days, the punishment of discharge was found to be disproportionate and it was altered to compulsory retirement. But in the present case, the respondent failed to report back for duty for about seven years after availing leave for 9 days. Therefore, the nature and degree of misconduct in the two cases are not of the same category and hence the two cases with different facts could not have been decided, in our opinion, with the same judicial standard15. It is also significant that the High Court failed to notice that the respondent did not present himself for the official verification of his medical status by the CDMO and thereby prevented confirmation of his pleaded medical condition. In this manner, the respondent not only defied the Commandants direction but remained absent without authorization, for about seven years. Later, he tried to justify his long absence without producing any contemporaneous medical recordsTherefore the respondents was not a referral case by a Doctor, who might have been treating the respondent during 1991 to 1998. If the respondent was a patient under Dr. Kar, there would have no need for the MLAs reference and the Doctor could have issued the certificate based on his own line of treatment and medication. It is for such logical fallacy, the Tribunal doubted the veracity of the medical certificate, which reported on the respondents purported mental incapacity, between 1991 and 199817. In granting relief to the respondent in his writ petition, the High Court should have considered that the respondent was absent from duty for seven long years and he was aware of the discharge order passed against him on 30.12.1993. As regards the plea of mental illness which might have incapacitated the respondent from either reporting for duty or to participate in the disciplinary proceeding, the Court should have borne in mind the failure of the respondent to make himself available before the CDMO to crosscheck his pleaded medical condition This was in defiance of the repeated communications addressed to the absentee-employee by the Commandant of the Battalion. It is also of significance that neither the Tribunal nor the High Court found any infirmity with the disciplinary proceeding which led to the issuance of the discharge order against the delinquent on 30.12.199318. In the above circumstances, when factual finding was recorded by the Tribunal on fairness of the disciplinary proceeding with due opportunity to the delinquent, the substitution of the penalty of discharge, was not warranted. This is more so as the High Court found support for their decision from Rajinder Kumar (supra) where the concerned constable was unauthorizedly absent for 37 days whereas the respondent herein had failed to report back for duty for long 7 years, from 1991 to 1998. It therefore appears to be a case of certificate of convenience on the purported symptoms and mental ailment of the respondent from 1991 to 1998, without support of any contemporaneous medical records. Most curiously, the Doctor had issued the certificate on the basis of reference made by the local MLA but not on the basis of referral by Doctor/Hospital which might have been involved with the respondents treatment during 1991 to 199820. In the present case, we are inclined to think that the respondent by remaining away from duty since 1991 to 1998 without producing contemporaneous medical record has not only been irresponsible and indisciplined but tried to get away with it by producing the certificate of a specialist Doctor who may not have treated the respondent. Significantly, although the respondent produced a certificate of a psychiatric specialist, he never claimed that he received treatment from any psychiatric Doctor. In such backdrop, the High Court should not have invoked the self serving medical certificate. The Court wrongfully relied on Rajinder Kumar (supra) where this Courts intervention was in entirely different circumstances. Besides the doctrine of proportionality is not attracted in the present factsOn careful reading of the above provision we are quite sure that the situation here is not one of exceptional circumstances. In fact the veracity of the self-serving medical certificate to justify the seven years absence, was correctly doubted by the Tribunal22. In the above circumstances, the High Court should not have granted relief to the respondent solely on the basis of the medical certificate of the specialist Doctor who may not have personally treated the patient. In the absence of relevant and contemporaneous medical records, the High Court should not have interfered with the disciplinary action and ordered for a lesser penalty. The gravity of the misconduct of the respondent was overlooked and unmerited intervention was made with the Tribunals rightful decision to decline relief in the O.A.1459(C)/2003 filed by the respondentBefore the Tribunal, the counsel for the respondent submitted that for an employee suffering from mental ailment, his situation should be treated as an exceptional case under Rule 72 of the Orissa Code which deals with leave for Government servant remaining absent for over five years. Under Rule 72, no leave of any kind is admissible for period exceeding five years unless the Government determines the case to be one of exceptional circumstances.
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Allarakhabhai Yakubbhai and Others Vs. The State of Maharashtra and Others
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has been arrived at between the parties by way of executing a deed of undertaking on 14th July, 2015, whereby it has been agreed by the applicants that they will stop using the name "Sagar" for their product of salt, being supplied to the purchasers and the informant has been paid a compensation of Rs. 1 Lac by the applicants. Therefore, learned counsel appearing for the applicants submits that, there exists no dispute between the informant and applicants.4. Learned counsel appearing for the applicants submits that, even if the allegations in the first information report are taken as it is, no ingredients of offence punishable under sections 420 and 491 of the Indian Penal Code are attracted as against the applicants as no business transactions whatsoever had taken place between the informant and the applicants. Learned counsel submits that, the applicants have applied for registration of trade mark and thereafter they started their business of transporting the goods to various purchasers. Learned counsel further submits that, if the informant is having any grievance about using the name "Sagar" by the applicants, he has to approach the Registrar of Trade Marks under the provisions of the Trade Marks Act, and the alleged acts of the applicants cannot be said to be criminal in nature, and therefore, the present complaint is not sustainable and maintainable. Learned counsel appearing for the applicants therefore, relying upon the pleadings in the application, grounds taken therein and the annexures thereto, submits that, the present application deserves to be allowed.5. Learned counsel appearing for respondent no.3 submits that, the applicants are illegally marketing the salt in the trade name of the informant company. The applicants have admitted their guilt and accordingly they have assured that, henceforth they will not use the word SAGAR and/or SAGAR SHUDH SAGAR PLUS or any other type or form of intellectual property, trademarks and copyrights of the informant in any manner. So also the applicants have given undertaking and agreed to pay Rs.1 Lac to the informant towards damages for violation of the intellectual property rights of the informant, however, till this date, the applicants have not paid the said amount and they have not acted upon the terms and conditions of the said deed of undertaking. As on today, the present applicants indulged in the same illegal activities by using the trade mark of the informant. In spite of deed of undertaking given by the applicants, the applicants in violation of the same, have continued with their malafide practices and trying to register their trade mark by providing false information. Therefore, respondent no.3 has moved an application to the Registrar of Trade Marks on 8th December, 2016 for removal of the Trade Mark SAGAR SHUDH. Learned counsel appearing for respondent no.3, therefore, submits that, there is direct evidence against the applicants so as to connect them with the offence in question, initially by using the trade mark of the informant, the applicants have cheated respondent no.3 and subsequently committing the breach of written undertaking and by not paying the amount of damages, the applicants have for the second time cheated the informant. Therefore it is submitted that, the application may be rejected.6. The learned A.P.P. appearing for respondent/State submits that, the Investigating Officer has investigated into the matter and found that, the allegations are true. It is submitted that, the applicants have admitted the allegations in the first information report and even agreed to pay Rs. 1 Lac towards compensation to the informant and also have given an undertaking that, they will henceforth not indulge in the alleged activities of selling the salt.7. We have given careful consideration to the submissions of learned counsel appearing for the applicants, learned A.P.P. appearing for the respondent/State and learned counsel appearing for respondent no.3 at length. With their able assistance, we have perused the grounds taken in the application, reply filed by respondent no.3 and the allegations in the first information report. We find considerable force in the argument of learned A.P.P. appearing for the respondent/State and learned counsel appearing for respondent no.2 that, the applicants have accepted the allegations in the first information report and assured and promised the informant in writing by way of deed of undertaking that, henceforth they will not use the word SAGAR and/or SAGAR SHUDH SAGAR PLUS or any other type or form of intellectual property, trademarks and copyrights of the informant in any manner, name of the company/trading style/trade name, logo, colour, combination, style, trade description, artistic work or any other intellectual property of informant in respect of and in relation of Salt and or for any other goods services of allied and cognate nature. Not only this, but the petitioners have also agreed to pay total Rs.1 Lac to the informant towards damages for violation of the intellectual property rights of the complainant.8. Be that as it may, on careful perusal of the allegations in the first information report, we are of the prima facie opinion that, the alleged offences have been disclosed and those needs further investigation. It is a matter of serious concern that the applicants have not placed anything on record to show that, even their establishment is registered. While issuing notices to the respondents on 18th November, 2015, the statement was made by learned counsel appearing for the applicants that, the applicants are also granted copy right. After noticing that the respondent also possesses the copy right of similar nature, the applicants have given undertaking and also paid compensation of Rs.1 Lac to respondent no.3. As a matter of fact nothing is placed on record to show that, the applicants were granted copy right as on 18th November, 2015. On pointed query to learned counsel appearing for the applicants, that, whether there is any documents showing that, the applicants are granted copy right or any documents showing the registration of their establishment, learned counsel appearing for the applicants has not brought any document to the notice of this Court to that effect.
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0[ds]7. We have given careful consideration to the submissions of learned counsel appearing for the applicants, learned A.P.P. appearing for the respondent/State and learned counsel appearing for respondent no.3 at length. With their able assistance, we have perused the grounds taken in the application, reply filed by respondent no.3 and the allegations in the first information report. We find considerable force in the argument of learned A.P.P. appearing for the respondent/State and learned counsel appearing for respondent no.2 that, the applicants have accepted the allegations in the first information report and assured and promised the informant in writing by way of deed of undertaking that, henceforth they will not use the word SAGAR and/or SAGAR SHUDH SAGAR PLUS or any other type or form of intellectual property, trademarks and copyrights of the informant in any manner, name of the company/trading style/trade name, logo, colour, combination, style, trade description, artistic work or any other intellectual property of informant in respect of and in relation of Salt and or for any other goods services of allied and cognate nature. Not only this, but the petitioners have also agreed to pay total Rs.1 Lac to the informant towards damages for violation of the intellectual property rights of the complainant.8. Be that as it may, on careful perusal of the allegations in the first information report, we are of the prima facie opinion that, the alleged offences have been disclosed and those needs further investigation. It is a matter of serious concern that the applicants have not placed anything on record to show that, even their establishment is registered. While issuing notices to the respondents on 18th November, 2015, the statement was made by learned counsel appearing for the applicants that, the applicants are also granted copy right. After noticing that the respondent also possesses the copy right of similar nature, the applicants have given undertaking and also paid compensation of Rs.1 Lac to respondent no.3. As a matter of fact nothing is placed on record to show that, the applicants were granted copy right as on 18th November, 2015. On pointed query to learned counsel appearing for the applicants, that, whether there is any documents showing that, the applicants are granted copy right or any documents showing the registration of their establishment, learned counsel appearing for the applicants has not brought any document to the notice of this Court to that effect.
| 0 | 1,410 | 444 |
### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
has been arrived at between the parties by way of executing a deed of undertaking on 14th July, 2015, whereby it has been agreed by the applicants that they will stop using the name "Sagar" for their product of salt, being supplied to the purchasers and the informant has been paid a compensation of Rs. 1 Lac by the applicants. Therefore, learned counsel appearing for the applicants submits that, there exists no dispute between the informant and applicants.4. Learned counsel appearing for the applicants submits that, even if the allegations in the first information report are taken as it is, no ingredients of offence punishable under sections 420 and 491 of the Indian Penal Code are attracted as against the applicants as no business transactions whatsoever had taken place between the informant and the applicants. Learned counsel submits that, the applicants have applied for registration of trade mark and thereafter they started their business of transporting the goods to various purchasers. Learned counsel further submits that, if the informant is having any grievance about using the name "Sagar" by the applicants, he has to approach the Registrar of Trade Marks under the provisions of the Trade Marks Act, and the alleged acts of the applicants cannot be said to be criminal in nature, and therefore, the present complaint is not sustainable and maintainable. Learned counsel appearing for the applicants therefore, relying upon the pleadings in the application, grounds taken therein and the annexures thereto, submits that, the present application deserves to be allowed.5. Learned counsel appearing for respondent no.3 submits that, the applicants are illegally marketing the salt in the trade name of the informant company. The applicants have admitted their guilt and accordingly they have assured that, henceforth they will not use the word SAGAR and/or SAGAR SHUDH SAGAR PLUS or any other type or form of intellectual property, trademarks and copyrights of the informant in any manner. So also the applicants have given undertaking and agreed to pay Rs.1 Lac to the informant towards damages for violation of the intellectual property rights of the informant, however, till this date, the applicants have not paid the said amount and they have not acted upon the terms and conditions of the said deed of undertaking. As on today, the present applicants indulged in the same illegal activities by using the trade mark of the informant. In spite of deed of undertaking given by the applicants, the applicants in violation of the same, have continued with their malafide practices and trying to register their trade mark by providing false information. Therefore, respondent no.3 has moved an application to the Registrar of Trade Marks on 8th December, 2016 for removal of the Trade Mark SAGAR SHUDH. Learned counsel appearing for respondent no.3, therefore, submits that, there is direct evidence against the applicants so as to connect them with the offence in question, initially by using the trade mark of the informant, the applicants have cheated respondent no.3 and subsequently committing the breach of written undertaking and by not paying the amount of damages, the applicants have for the second time cheated the informant. Therefore it is submitted that, the application may be rejected.6. The learned A.P.P. appearing for respondent/State submits that, the Investigating Officer has investigated into the matter and found that, the allegations are true. It is submitted that, the applicants have admitted the allegations in the first information report and even agreed to pay Rs. 1 Lac towards compensation to the informant and also have given an undertaking that, they will henceforth not indulge in the alleged activities of selling the salt.7. We have given careful consideration to the submissions of learned counsel appearing for the applicants, learned A.P.P. appearing for the respondent/State and learned counsel appearing for respondent no.3 at length. With their able assistance, we have perused the grounds taken in the application, reply filed by respondent no.3 and the allegations in the first information report. We find considerable force in the argument of learned A.P.P. appearing for the respondent/State and learned counsel appearing for respondent no.2 that, the applicants have accepted the allegations in the first information report and assured and promised the informant in writing by way of deed of undertaking that, henceforth they will not use the word SAGAR and/or SAGAR SHUDH SAGAR PLUS or any other type or form of intellectual property, trademarks and copyrights of the informant in any manner, name of the company/trading style/trade name, logo, colour, combination, style, trade description, artistic work or any other intellectual property of informant in respect of and in relation of Salt and or for any other goods services of allied and cognate nature. Not only this, but the petitioners have also agreed to pay total Rs.1 Lac to the informant towards damages for violation of the intellectual property rights of the complainant.8. Be that as it may, on careful perusal of the allegations in the first information report, we are of the prima facie opinion that, the alleged offences have been disclosed and those needs further investigation. It is a matter of serious concern that the applicants have not placed anything on record to show that, even their establishment is registered. While issuing notices to the respondents on 18th November, 2015, the statement was made by learned counsel appearing for the applicants that, the applicants are also granted copy right. After noticing that the respondent also possesses the copy right of similar nature, the applicants have given undertaking and also paid compensation of Rs.1 Lac to respondent no.3. As a matter of fact nothing is placed on record to show that, the applicants were granted copy right as on 18th November, 2015. On pointed query to learned counsel appearing for the applicants, that, whether there is any documents showing that, the applicants are granted copy right or any documents showing the registration of their establishment, learned counsel appearing for the applicants has not brought any document to the notice of this Court to that effect.
### Response:
0
### Explanation:
7. We have given careful consideration to the submissions of learned counsel appearing for the applicants, learned A.P.P. appearing for the respondent/State and learned counsel appearing for respondent no.3 at length. With their able assistance, we have perused the grounds taken in the application, reply filed by respondent no.3 and the allegations in the first information report. We find considerable force in the argument of learned A.P.P. appearing for the respondent/State and learned counsel appearing for respondent no.2 that, the applicants have accepted the allegations in the first information report and assured and promised the informant in writing by way of deed of undertaking that, henceforth they will not use the word SAGAR and/or SAGAR SHUDH SAGAR PLUS or any other type or form of intellectual property, trademarks and copyrights of the informant in any manner, name of the company/trading style/trade name, logo, colour, combination, style, trade description, artistic work or any other intellectual property of informant in respect of and in relation of Salt and or for any other goods services of allied and cognate nature. Not only this, but the petitioners have also agreed to pay total Rs.1 Lac to the informant towards damages for violation of the intellectual property rights of the complainant.8. Be that as it may, on careful perusal of the allegations in the first information report, we are of the prima facie opinion that, the alleged offences have been disclosed and those needs further investigation. It is a matter of serious concern that the applicants have not placed anything on record to show that, even their establishment is registered. While issuing notices to the respondents on 18th November, 2015, the statement was made by learned counsel appearing for the applicants that, the applicants are also granted copy right. After noticing that the respondent also possesses the copy right of similar nature, the applicants have given undertaking and also paid compensation of Rs.1 Lac to respondent no.3. As a matter of fact nothing is placed on record to show that, the applicants were granted copy right as on 18th November, 2015. On pointed query to learned counsel appearing for the applicants, that, whether there is any documents showing that, the applicants are granted copy right or any documents showing the registration of their establishment, learned counsel appearing for the applicants has not brought any document to the notice of this Court to that effect.
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H.K.K. BAIL AND ANOTHER Vs. CYMA EXPORTS PVT. LTD. AND ANOTHER
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1. Heard learned Counsel for the parties. 2. This Appeal has been filed against the impugned judgment and order dated 07th April, 2005 passed by the High Court of Karnataka at Bangalore in C.R.P. No. 1470 of 2002. 3. The facts giving rise to this appeal are that the Appellants filed a complaint petition before the Karnataka State Consumer Disputes Redressal Commission, Bangalore, which was allowed by the State Commission by its order dated 16th December, 1993., copy of which is Annexure P-4 to this appeal. Admittedly, no appeal was filed against that order and the same became final. The relief sought in the complaint was to the following effect: To issue a decree in the nature of direction directing the opposite party to complete the construction of flat No. 3 on the 3rd floor of the Rajanigandha Building at No. 21, Grant Road, Bangalore, in terms of the agreement dated 21.4.1980 and 23.4.1983 and handover the same to the complainants at the cost of ` 3,60,000/- and further directing the opposite parties to pay sum of Rs. 3,60,000/- as compensation for the negligence and failure of the opposite party to render prompt service to the complainant, loss of interest, mental agony, inconvenience together with interest thereon at market rates from the date of filing of this complaint until the realisation of the amount. To award costs of this complaint. 4. The State Commission allowed the complaint and passed the following order: In the result, therefore, this complaint is allowed. The opposite party is directed to pay interest to the complainant at the rate of 18% p.a. on the sum of Rs. 2,11,363.79 from 1.1.1987 till the date of delivery of the possession of the flat to the complainant in a condition fit to occupy the same with all necessary amenities by collecting the balance consideration amount of Rs. 1,48,636.21 from the complainant. The opposite party shall also pay a sum of Rs. 2,500/- (Rupees Two Thousand and five hundred only) to the complainant towards costs of the proceedings. 5. Since, the aforesaid order of the State Commission has attained finality, obviously, the same had to be executed. 6. Thereafter, the Appellants filed an execution petition before the Additional City Civil Judge, Bangalore to execute the order of the State Commission dated 16th December, 1993. Respondents filed objections therein and the main objection taken is that the Civil Court has no power to execute an order passed by the Consumer Forum on the ground that this was not the decree passed by the Civil Court. This objection was turned down by the said Court relying upon a decision of the Karnataka High Court rendered in Vhshvabharathi House Building Cooperative Society Ltd. v. Union of India reported in AIR 1999 (210) in which it was held that the Civil Court has jurisdiction to enforce the decree under execution. Accordingly, the execution petition was allowed. 7. Learned Counsel for the Respondents submitted that subsequently the Additional City Civil Judge, Bangalore by order dated 20th February, 2002 dismissed the execution petition on the ground that it has no jurisdiction. We have gone through the said order. The Additional City Civil Judge, Bangalore has dismissed the execution petition by observing as follows: ...In the present case, the order is obtained against the registered company. In the complaint, the office of the Registered Company is situated at No. 21, Grant Road, Bangalore-1. Therefore, this Court had jurisdiction to execute the decree as against the Judgment-debtors, but unfortunately, the Decree-Holder has not filed the present execution petition against the said office of the company. On the other hand, the execution petition is filed against the Judgment-debtor who has got their registered office at Mumbai. Consequently, by virtue of Section 25(a) of the Consumer Protection Act, 1986, this Court has no power to execute the decree against the company which has got its registered office in Mumbai. 8. The aforesaid order was challenged by the Appellants herein by filing a revision petition before the High Court which has been dismissed by the impugned order. 9. Having heard learned Counsel for the parties and having carefully perused the record, we are of the opinion that once the order of the State Commission dated 16th December, 1993 has attained finality, the same has to be executed and hyper-technicality should not come in the way of executing the said order. It is because of these hyper-technicalities that the judiciary in India is getting a bad name. All sorts of objections are raised to linger on the matter as much as possible. There is a first inning in which the dispute often comes up to this Court to secure a final order. Then, the second inning starts to execute the said order in which again all kinds of objections are raised to linger on the matter as much as possible and to avoid execution of the decree. Now the time has come when people of India are fed up and are not going to tolerate such delaying tactics to subvert the operation of the judicial orders.
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1[ds]9. Having heard learned Counsel for the parties and having carefully perused the record, we are of the opinion that once the order of the State Commission dated 16th December, 1993 has attained finality, the same has to be executed and hyper-technicality should not come in the way of executing the said order. It is because of these hyper-technicalities that the judiciary in India is getting a bad name. All sorts of objections are raised to linger on the matter as much as possible. There is a first inning in which the dispute often comes up to this Court to secure a final order. Then, the second inning starts to execute the said order in which again all kinds of objections are raised to linger on the matter as much as possible and to avoid execution of the decree. Now the time has come when people of India are fed up and are not going to tolerate such delaying tactics to subvert the operation of the judicial orders.
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### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
1. Heard learned Counsel for the parties. 2. This Appeal has been filed against the impugned judgment and order dated 07th April, 2005 passed by the High Court of Karnataka at Bangalore in C.R.P. No. 1470 of 2002. 3. The facts giving rise to this appeal are that the Appellants filed a complaint petition before the Karnataka State Consumer Disputes Redressal Commission, Bangalore, which was allowed by the State Commission by its order dated 16th December, 1993., copy of which is Annexure P-4 to this appeal. Admittedly, no appeal was filed against that order and the same became final. The relief sought in the complaint was to the following effect: To issue a decree in the nature of direction directing the opposite party to complete the construction of flat No. 3 on the 3rd floor of the Rajanigandha Building at No. 21, Grant Road, Bangalore, in terms of the agreement dated 21.4.1980 and 23.4.1983 and handover the same to the complainants at the cost of ` 3,60,000/- and further directing the opposite parties to pay sum of Rs. 3,60,000/- as compensation for the negligence and failure of the opposite party to render prompt service to the complainant, loss of interest, mental agony, inconvenience together with interest thereon at market rates from the date of filing of this complaint until the realisation of the amount. To award costs of this complaint. 4. The State Commission allowed the complaint and passed the following order: In the result, therefore, this complaint is allowed. The opposite party is directed to pay interest to the complainant at the rate of 18% p.a. on the sum of Rs. 2,11,363.79 from 1.1.1987 till the date of delivery of the possession of the flat to the complainant in a condition fit to occupy the same with all necessary amenities by collecting the balance consideration amount of Rs. 1,48,636.21 from the complainant. The opposite party shall also pay a sum of Rs. 2,500/- (Rupees Two Thousand and five hundred only) to the complainant towards costs of the proceedings. 5. Since, the aforesaid order of the State Commission has attained finality, obviously, the same had to be executed. 6. Thereafter, the Appellants filed an execution petition before the Additional City Civil Judge, Bangalore to execute the order of the State Commission dated 16th December, 1993. Respondents filed objections therein and the main objection taken is that the Civil Court has no power to execute an order passed by the Consumer Forum on the ground that this was not the decree passed by the Civil Court. This objection was turned down by the said Court relying upon a decision of the Karnataka High Court rendered in Vhshvabharathi House Building Cooperative Society Ltd. v. Union of India reported in AIR 1999 (210) in which it was held that the Civil Court has jurisdiction to enforce the decree under execution. Accordingly, the execution petition was allowed. 7. Learned Counsel for the Respondents submitted that subsequently the Additional City Civil Judge, Bangalore by order dated 20th February, 2002 dismissed the execution petition on the ground that it has no jurisdiction. We have gone through the said order. The Additional City Civil Judge, Bangalore has dismissed the execution petition by observing as follows: ...In the present case, the order is obtained against the registered company. In the complaint, the office of the Registered Company is situated at No. 21, Grant Road, Bangalore-1. Therefore, this Court had jurisdiction to execute the decree as against the Judgment-debtors, but unfortunately, the Decree-Holder has not filed the present execution petition against the said office of the company. On the other hand, the execution petition is filed against the Judgment-debtor who has got their registered office at Mumbai. Consequently, by virtue of Section 25(a) of the Consumer Protection Act, 1986, this Court has no power to execute the decree against the company which has got its registered office in Mumbai. 8. The aforesaid order was challenged by the Appellants herein by filing a revision petition before the High Court which has been dismissed by the impugned order. 9. Having heard learned Counsel for the parties and having carefully perused the record, we are of the opinion that once the order of the State Commission dated 16th December, 1993 has attained finality, the same has to be executed and hyper-technicality should not come in the way of executing the said order. It is because of these hyper-technicalities that the judiciary in India is getting a bad name. All sorts of objections are raised to linger on the matter as much as possible. There is a first inning in which the dispute often comes up to this Court to secure a final order. Then, the second inning starts to execute the said order in which again all kinds of objections are raised to linger on the matter as much as possible and to avoid execution of the decree. Now the time has come when people of India are fed up and are not going to tolerate such delaying tactics to subvert the operation of the judicial orders.
### Response:
1
### Explanation:
9. Having heard learned Counsel for the parties and having carefully perused the record, we are of the opinion that once the order of the State Commission dated 16th December, 1993 has attained finality, the same has to be executed and hyper-technicality should not come in the way of executing the said order. It is because of these hyper-technicalities that the judiciary in India is getting a bad name. All sorts of objections are raised to linger on the matter as much as possible. There is a first inning in which the dispute often comes up to this Court to secure a final order. Then, the second inning starts to execute the said order in which again all kinds of objections are raised to linger on the matter as much as possible and to avoid execution of the decree. Now the time has come when people of India are fed up and are not going to tolerate such delaying tactics to subvert the operation of the judicial orders.
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Consolidated Coffee Limited and Another Etc Vs. Coffee Board, Bangalore Etc
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of price, weighment and setting apart of the coffee for delivery to the buyer, it will be difficult to accept the petitioners contention that passing of the property in such Coffee is further postponed till actual shipment by reason of Cl. 31 of the Auction Conditions, for, if the title has already passed it cannot pass again, Counsel for the petitioners contended that in view of cl. 31 a reservation of the right of disposal over the goods in favour of the Coffee Board within the meaning of s. 25 of the Sale of Goods Act is made. It is difficult to accept this contention. Section 25(1) which deals with the reservation of the right of disposal provides that where there is a contract for sale of specific goods or where goods are subsequently appropriated to the contract, the seller may by terms of the contract or appropriation, reserve the right of disposal of the goods until certain conditions are fulfilled and if he does so, the legal consequence mentioned in the section flows, namely, that in such case notwithstanding the delivery of goods to a buyer or to a carrier or bailee for transaction to the buyer, the property in the goods does not pass to the buyer until the conditions imposed by the seller are fulfilled. In the instant case it is true that Cl. 26 declares that it is an essential condition of the auction that the coffee sold thereat shall be exported to stipulated destinations or to any other foreign country outside India as may be approved by the Chief Coffee Marketing officer within 3 months or within the extended period but such essential condition is applied to the coffee which has already become the property of the buyer under Cls. 19 and 20 of the Auction Conditions and all that Cl. 31 provides is that if default is made by Buyer in ex porting coffee within the prescribed time or extended time it shall be lawful for the Coffee Board without reference to the buyer to seize the unexported coffee and take possession thereof and deal with it as if it were the part and parcel of the Board s Coffee held by them in their Pool Stock. Far from amounting to a reservation of the right of disposal over the unexported coffee to the Coffee Board, Cl. 31 is in the nature of a defeasance clause in the sense that what is vested in the buyer under the earlier conditions, the same shall revert back to the Coffee Board if the buyer commits a default in fulfilling the essential condition. Such a reading of Cl. 31 would be consistent with a further provision which is to be found in the latter portion of that clause. The latter part of Cl. 31 provides that after the coffee is seized and it becomes part and parcel of Boards coffee held by it in its pool stock, the Board shall re-sell the same but after such re-sale the Chief Coffee Marketing officer shall pay to the defaulting buyer only the balance of the sale proceeds after deducting godown charges, insurance premium, selling commission payable to agents and all other expenses of sale together with the penalty due under Cl. 30. But under the proviso it is provided thus:"Provided, however, that if such balance is in excess of the sale price paid by the buyer, the payment shall be limited to the actual sale price." 47. In other words the proviso clearly suggests that the seized coffee becomes Coffee Boards property and is re-sold as such, otherwise the surplus should go to the buyer (Registered Exporter). The fact that the payment to the defaulting buyer is limited to the actual sale price paid by him and that the surplus if any reverts to the Coffee Board clearly shows that under Cl. 31 upon seizure the property reverts back to the Coffee Board. In our view, Cl. 31 properly read amounts to a defeasance clause and nothing more, especially when it is clear that property in the coffee sold at auction passes to the buyer under Cls. 19 and 20 immediately upon payment of price, weighment and setting apart of the coffee for delivery to the buyer. Once the property has passed there would be no question of reserving any right of disposal over the same to the Coffee Board within the meaning of s. 25(1) of the Sale of Goods Act. 48. It will be noticed that though on the question of the passing of the property factual material in the form of affidavit of the Chief Coffee Marketing Officer (on the point whether the lots exposed at the auctions are specific and ascertained goods or not) and several documents executed by the Registered Exporters in favour of their bankers to obtain packing and other credit facilities was placed before us we have not gone into the factual aspects at all and we have reached our conclusion on the point purely on the basis of construction of the relevant Auction Conditions from which primarily the intention of the parties is to be gathered. It is only when a clear intention in that behalf is not deducible from the terms and conditions that other factors such as the course of dealings and the conduct of the parties assume relevance.Having regard to the above discussion it is clear to us that in the penultimate sales (sales of coffee effected to Registered Exporters at export auctions conducted by the Coffee Board) the property in the Coffee sold thereat passes to the buyer immediately upon payment of full price, weighment and setting apart of coffee for delivery to the buyer under Cls. 19 and 20 of the Auction Conditions and it would be at this stage i.e. just before t his stage is reached that the agreement with or order from a foreign buyer must be available or produced in order to attract s. 5(3) of the Central Sales Tax Act, 1956.49.
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1[ds]The aforesaid provision was examined by this Court in two leading cases, namely, Coffee Board Bangalore v. Joint Commercial Tax Officer, Madras &Anr. and Mohd. Serajuddin etc. v. State of Orissa and a certain interpretation had been accorded by this Court to the expression "in the course of export" and according to these decisions the last sale, immediately preceding the sale occasioning the export of goods out of India (hereinafter called the "penultimate sale"), however closely related to the final export, was held not to be the course of export but only for exp ort and hence liable to tax and according to the petitioners it was with a view to remove the difficulties caused by these and other similar decisions that the Parliament enacted the newsubs.(3) of s.5 and added a proviso to s.6(1) by the Amen ding Act (103 of 1976)It seems that since retrospective effect was given to the amendments introduced by Act 103 of 1976 the Coffee Board collected and the petitioners paid sales tax on these export auctions during the period of the retrospectivity and for few months more and thereafter the Coffee Board has, in terms of the said Circular, obtained from the petitioners ban k guarantees to secure payment of sales tax which but for the enactment ofsubs.(3) of s. 5 might have been payable on each such sale. To obtain appropriate reliefs in this behalf in two of the three writ petitions, the petitioners therein have also impleaded the concerned States, namely, State of Karnataka, State of Tamil Nadu and the State of Kerala as party respondents to their petitions. The petitioners have sought appropriate orders or directions against these State Governments directing them to make refunds to the Coffee Board of the amounts collected by them from the Coffee Board as and by way of sales tax and further restraining them from collecting or threatening to collect from the Coffee Board any amount as an d by way of sales tax on the transactions in question or subjecting such transactions to sales tax. The petitioners have also sought the consequential reliefs of directing the Coffee Board to pay over to the petitioners the refunds which it ma y receive from the State Governments pursuant to the Courts order and further directing the Coffee Board to release the bank guarantees or contingency deposits obtained by it under the impugned CircularWe may, however, state that during the course of the hearing the learned Attorney General appearing on behalf of the Coffee Board fairly stated that since the question of proper construction of s. 5(3) would affect a large number of dealers in export trade, including the Coffee Board (which was concerned with export trade in coffee), the Board was interested in having an authoritative decision of this Court on the point, that such authoritative decision would also facilitate the issuance of a proper Circular in regard to its future transactions and, therefore, he was not pressing the preliminary objection t o the maintainability of the writ petitions against the Coffee Board. We would, therefore, deal with the remaining three questions one after the otherWe pointed out that prior to the Constitution (Sixth Amendment) Act 1956 this Court in its decisions while interpreting the expression "sale in the course of export" occurring in Art. 286 (1) (b) laid down two principles as to when a sale could be said to be a sale in the course of export and it held that two types of sales, viz. (a) sale which occasions the export and (b) sale which is effected by a transfer of documents of title to the goods after the goods have crossed customs frontiers of India, would be sales in the course of export. Section 5(1) which was enacted in Central Sales Tax Act 1956 pursuant to the power conferred on Parliament by Art. 286(2) which was introduced by the Constitution (Sixth Amendment) Act 1956 merely gave legislative recognition to the aforesaid two principles which had been formulated by this Court while interpreting Art. 286(2) (b) but while addingsubs.(3) to s. 5 of the Act Parliament had created a legal fiction to the effect that a penultimate sale satisfying certain specified conditions shall also be deemed to be a sale in the course of export when in truth and reality it is not.According to him, creation of such fiction is not formulation of any principle and as such the provision is beyond the power or authority conferred on Parliament by Art. 286(2)It is not possible to accept the aforesaid contention for the reasons we shall presently indicate. It is true that the word "deemed" has been used in s. 5(3) but the same word has been used not merely in s.5(1) but also in the other two sections 3 and 4 of Chapter II of the Central Sales Tax Act which has the heading "Formulations of Principles for determining when a sale or purchase of goods takes place in the course oft e trade or commerce or outside a State or in the course of export or import", the heading of Chapter II on the face of it suggests that what is done under ss. 3, 4 and 5 includingsubs(3) is formulation of principles. Secondly, the word "deemed" is used a great deal in modern legislation, different senses and it is not that a deeming provision is every time made for the purpose of creating a fiction. A deeming provision might be made to include what is obvious or what is uncertain o r to impose for the purpose of a statute an artificial construction of a word or phrase that would not otherwise prevail, but in each case it would be a question as to with what object the Legislature has made such a deeming provisionLooked at from this angle it will be clear that. (3) of s. 5 formulates a principle inasmuch as it lays down a general guiding rule applicable to all penultimate sales that satisfy the two conditions specified therein and not any specific direction governing any particular or specific transaction of a penultimate sale. In other words the content of the provision shows that it lays down a principle. In fact, while addressing arguments on proper construction of the s. 5(3) counsel for the three States strenuously contended that the said provision should not be construed as being applicable only to the export auctions conducted by the Coffee Board and the terms and conditions governing them because it applies to variety of parties including the small manufacturers who seek a foreign market for their goods through private export houses or canalised agencies like State Trading Corporation. It is thus clear to us that s. 5(3) formulates a principle of general applicability in regard to all penultimate sales provided they satisfy the specified conditions mentioned therein and there is no question of the said provision creating a legal fiction as has been contended for by counsel. The contention, therefore, that s. 5(3) is beyond the power or authority of Art. 286(2) and, therefore, ultra vires, must be rejectedSection 5(3), quoted above in extenso, has obviously been enacted to extend the exemption from tax liability under the Act not to any kind of penultimate sale but only to such penultimate sale as satisfies the two conditions specified therein, namely, (a) that such penultimate sale must take place (i. e. become complete) after the agreement or order under which the goods are to be exported and (b) it must be for the purpose of complying with such agreement or order and it is only then that such penultimate sale is deemed to be a sale in the course of exportIt is true that the language employed in s.5 (3) is a little ambiguous or equivocal and there is no indication in express terms whether the "agreement" mentioned therein necessarily refers to the agreement with a foreign buyer or would include any binding or enforceable agreement to export with a local party and that is why counsel on either side have heavily relied upon the Statement of Objects and Reasons appended to the relevant Bill to show what was the legal position under s. 5(1) as interpreted by this Court in the Coffee Boards case and Mohd. Serajuddins case (supra) before the proposed amendment and what was the lacuna or mischief that was sought to be remedied as also the object with which this provision came to be enacted. However, before applying the mischief rule initially enunciated in Heydons case for arriving at the true construction we propose to examine the new provision rather closely with a view to see whether by implication any indication one way or the other is available from the language thereof. The material words which prescribe the two conditions on satisfying which the penultimate sale is to be regarded as a sale in the course of export are: "If such last sale or purchase (mea ning the penultimate sale or purchase) took place after, and was for the purpose of complying with, the agreement or order for or in relation to such export." It is true that Parliament has not said "the agreement or order for or in relation to such sale occasioning the export", but has used the phrase "the agreement or order for or in relation to such export." But in our view two aspects emerge very clearly on a close scrutiny of this phrase which by implication show that the "agreement" spoken of there refers to the agreement with a foreign buyer and not an agreement with a local party containing a covenant to exportIn the first place the concerned phrase speaks of two things in disjunctive: agreement or order. The word order which appears in a statute dealing with sales tax must be understood in a commercial sense, that is, in the sense in which traders and commercial men will understand it. In commercial sense an order means a firm request for supply of definite goods emanating from a buyer, an indent placed by a purchaser and, therefore, an order for or in relation to export would mean an indent from a foreign buyer. It is not possible to accept the contention urged by counsel for the petitioners that the word order in this phrase can mean or refer to an order, direction, mandate, command or authorisation to export that may be issued by a statutory body like the Coffee Board for two reasons; first, occurring in a sales tax statute the word must be given its commercial meaning and, secondly, while enacting the provision Parliament could not be said to have only statutory bodies like Coffee Board or S. T. C. in mind. If, therefore, an order for export in the concern ed phrase means an indent from a foreign buyer, the preceding word "agreement" in the phrase would take colour from the word "order" and would on the principle of noscitur a sociis mean an agreement with a foreign buyer. In Maxwell on the Interpretation of Statutes (at p. 289 12th Edn.) the rule of noscitur a sociis is explained thus: "where two or more words, which are susceptible of analogous meaning, are coupled together they are understood to be used in their cognate sense. They take, as it were, their colour from each other, the meaning of the more general being restricted to a sense analogous to that of the less general." Applying this rule of construction it becomes clear that "the agreement" occurring in the phrase must mean the agreement with a foreign buyer and not the agreement with a local party containing a covenant to export. Secondly and more importantly, the user of the definite article "the" before the word "agreement" is, in o ur view, very significant. Parliament has not said an agreement or any agreement for or in relation to such export and in the context the expression "the agreement" would refer to that agreement which is implicit in the sale occasioning the export. Between the two sales (the penultimate and the final) spoken of in the earlier part of then ordinarily it is the final sale that would be connected with the export, and, therefore, the expression "the agreement" for export must refer to that agreement which is implicit in the sale that occasions the export. The user of the definite article "the", therefore, clearly suggests that the agreement spoken of must be the agreement with a foreign buyer. As a matter of pur e construction it appears to us clear, therefore, that by necessary implication the expression "the agreement" occurring in the relevant phrase means or refers to the agreement with a foreign buyer and not an agreement or any agreement with a local party containing the covenant to exportTwo things become clear from this Statement; first, Mohd. Serajuddins decision (supra) is specifically referred to as necessitating the amendment and secondly, penultimate sales made by small and medium scale manufacturers to an export canalising agency or private export house to enable the latter to export those goods in compliance with existing contracts or orders are regarded as inextricably connected with the export of the goods and henced for conferral of the benefit of the exemption. But here again, existing contract with whom is not clarified. In other words, on this crucial point the Statement is silent and does not throw light on whether the existing contract should be with a foreign buyer or will include any agreement with a local party containing a covenant to export. Therefore, the question will again depend upon proper construction and, as we have said above, in the matter of construction the two aspects discussed earlier show that by necessary implication the agreement spoken of by s. 5(3) refers to the agreement with a foreign buyerIt is true that the benefit of the exemption was intended to be extended to small and medium scale manufacturers desirous of exporting their goods but the requirement of th e new provision is not that they must procure or have with them a foreign buyers contract but the requirement is that before they complete the sale of their goods to the canalising agency of the private export house there must be in existence a foreign buyers contract to implement which they should have sold their goods to such agency or export house. In the nature of things such manufacturers who have no expertise of export trade are not expected to have a foreign buyers contract with them and it would be sufficient compliance of the provision if the canalising agency or the export house has with it the foreign buyers contract. It would, therefore, be incorrect to say that the benefit of the exemption depends upon the fortuitous circumstance of a foreign buyers contract being available with such manufacturer when he sells his product to the agency or the export house. No hardship as is sought to be suggested is involved and we do not agree that by the construction which we are inclined to place on the expression the agreement occurring in s. 5(3) the small or medium scale manufacturers would be deprived of the benefit of the exemption. In fact, the construction which we are inclined to accept would be in consonance with the trade practice obtaining in export trade, namely, that normally the export activity commences with securing or obtaining an export contract or a firm order from a foreign buyer as the first step towards the ultimate export [vide: observations of this Court in State of Mysore v. The Mysore Spg. and Mfg. Co. Ltd. where obtaining a firm order from overseas buyer is described the first out of nine steps enumerated in the entire procedure for export]. As regards the other aspect it is clear to us that two public interests are involved; promotion of the exports of the country is one public interest while augmentation of the States revenues through sales tax is the other and it is obvious that if the liberal construction, as suggested by the counsel for the petitioner, is accepted the former public interest will undoubtedly be served while the latter will greatly suffer and if the narrow construction is accepted the latter public interest will be served and the former will suffer. It is difficult to say that the Parliament intended to prefer one and sacrifice the other. In fact the granting of exemption to penultimate sales was obviously with a view to promote the exports but limiting the exemption to certain types of penultimate sales that satisfy the two specified conditions displays an anxiety not to diminish the States revenues beyond a certain limit. The section in any case gives no indication that one public interest is to be preferred to the other and therefore, in our view, the matter must again depend upon the proper construction of the language employed. On construction we are of the view that by implication the expression the agreement occurring in s. 5(3) refers to the agreement with a foreign buyerIn our view, the observations (quoted in extenso in the earlier part of the judgment) will have to be read in the context of the facts which obtained in that case. It has a case of only one sale which had resulted in the export and the question was whether transactions of sale of tea chests by the manufacturer at public auctions held at Port Cochin to the local agents of foreign buyers were exempt from levy of sales tax under Art. 286(1)(b) and though it was common ground that the purchases by the local agents of foreign buyers were with a view to export the goods to their principals abroad and that the goods were in fact exported out of India this Court found nothing in the transactions from which a bond or obligation could be said to spring between the sale and the intended export linking them as part of the same transaction and though the seller (manufacturer) could be said to have knowledge that the tea sold to the local agents of foreign buyers was meant for the export and would be exported, the seller had no concern with the export, that the sale imposed or involved no obligation to export and there was possibility that the goods might be diverted f or internal consumption. It was in that context that Shah, J., observed in that case that there must be an intention on the part of both the buyer and the seller to export, that there must be obligation to export, and that there must be an actual export, and further that the obligation may arise by reason of statute, contract between the parties, or mutual understanding or agreement between them or even from the nature of the transaction which links the sale to export. In other words, even in the case of a single sale which ultimately resulted in the export it was held that the sale was not in the course of export because there was no obligation to export which afforded the inextricable link between the sale and the export. It is true that if the obligation to export affording the inextricable link between the sale and the export is necessary in the case of a single sale even though it results in export, then all the more such obligation will be necessary in the case of a penultimate sale if such penultimate sale is to constitute a sale "in the course of export" but even if Ben Gorm Nilgiri Plantations Companys case (supra) is regarded as laying down a general proposition that w hat is required is an obligation which inextricably connects the sale with the export and that such obligation may, in the absence of legislative guidance, arise by reason of statute, contract, mutual understanding, or the nature of trans action which links the sale to export, still the question would be what type of obligation and arising from what circumstances would be necessary or enough in the case of a penultimate sale must depend upon the language of the statute concerned and , therefore, the question will again be what type of obligation and arising from what circumstances has been prescribed by the Parliament by enacting s.5 (3) and that would depend upon the proper construction of the phrase "the agreement or order for or in relation to such export" occurring therein and, as we have said above, since on proper construction the expression "the agreement or order" means the agreement with or an order from a foreign buyer it must be held that the Parliament intended to prescribe that the obligation to export arising only from such agreement or order that would afford the inextricable link so as to constitute the penultimate sale a sale in the course of exportIt is not possible to accept this contention for more than one reason. In the first place the definitions of sale and "agreement to sell in the Sale of Goods Act 1930 would not apply to the expression sale occurring in the Central Sales Tax Act, 1 956 wherein the expression sale has been defined in s. 2(g) for the purpose of that Act and under s. 2 (g) of the Central Sales Tax Act sale means "any transfer of property in goods by one person to another for cash or for deferred payment or for any other valuable consideration, and includes a transfer of goods on the hirepurchase or other system of payment by instalments, but does not include a mortgage or hypothecation of or a charge or pledge on goods." In other words, wherever the w ord sale occurs inthe Central Sales Tax Act, 1956 it is this definition given in s. 2(g) that will be applicable and therefore the word sale in s. 5(3) must mean transfer of the goods by one person to another for cash or for deferred payment or for any other valuable considerations; it cannot mean "agreement to sell"Moreover, there is nothing in the context of s. 5(3) to suggest that the word sale occurring therein should be understood differentlyThe contention urged by counsel must, therefore, be rejectedIt is true that) says that "the sale is complete" when the auctioneer announces its completion by the fall of hammer or in other customary manner, but, the next following provision which says: "and until such announcement is ma de any bidder may retract his bid" suggests that what is complete at the fall of the hammer or the announcement of closure in other customary manner is that the contract for sale is complete. It is well known that our Sale of Goods Act 1930 is based upon and is largely a reproduction of the English Sale of Goods Act 1893 and in principle as well as in most details the law of sale of goods in both the countries is now the same and, therefore, English authorities on interpretation of different sections, although not technically binding in India, would have great persuasive value. It will be pertinent to observe that our s. 64 is based upon s. 58 of the English Act, though it is somewhat differently arranged; but. (2) of s. 64 is particularly in identical terms as s. 58(2) of the English ActIt will thus appear clear that because the auction sale w as unconditional and it related to specific goods that it was held that the property in the car had passed to King at the completion of the contract which occurred at the fall of the hammer under s. 58(2) but the property had passed under s. 18(1). This case also shows that to an auction sale normally governed by s. 58 the implied rule pertaining to the passing of property contained in s. 18(1) applied; if so, it stands to reason that the auctioneer could incorporate an express term pertaining to t he passing of property, different from the implied rule, in his auction conditions and if he were to do so it will be operativeTwo things appear very clear from what we have stated above. At an auction sale all that happens at the fall of hammer or at the announcement of the closure of the sale in other customary manner is that a contract of sale comes into existence and parties get into the relationship of a promisor and a promisee in an executory contract. Secondly, auction sales could be conditional or unconditional and if it is latter then by virtue of the goods being specific and in a deliverable state the property in the goods knocked down passes at the fall of hammer by reason of the concerned provision relating to the passing of the propertySection 64(2) of our Sale of Goods Act, being in pari materia with s. 58(2) of the English Sale of Goods Act 1893, will have to be interpreted in the same manner and we are therefore, of the view that it does not deal with the question of passing of the property at auction sale but merely deals with completion of the contract of sale which takes place at the fall of the hammer or at the announcement of the close of the sale in other customary manner by the auctioneer. It would also be correct to say that if the auction sale of chattels is unconditional and is in respect of specific ascertained goods and nothing remains to be done to the goods for putting them in a condition ready for delivery, the property in the goods would pass to the purchaser upon the acceptance of the bid but that would not be because of s. 64(2) but because of s. 20 and such would not be the case if the goods sold thereat arec or unascertained goods or the auction sale is conditional. In this context it will be useful to refer to a decision of this Court in A.V. Thomas &Co. Ltd. v. Deputy Commissioner of Agricultural Income Tax where this Court recognised a distinction between auction sales pertaining to specific or identifiable goods and auction sales in regard to unascertained goods and held that in regard to the former the property in the goods passed when the contract was accepted at the fall of hammer and not in the latter case. That was a case where the tea s were stored in the godowns in the Willingdon Island which was in the State of Travancore Cochin and samples of those teas were taken to Fort Cochin which at the relevant time was in the State of Madras. At Fort Cochin by the samples the teas we re sold by public auction in lots, some of the lots were purchased in their entirety and others in parts and after the consideration money was paid at Fort Cochin delivery orders were given to the buyers addressed to the godown keepers at Willingdon Islands and actual delivery of tea was taken there. These teas were then sent out from willingdon Island in Travancore Cochin for consumption either in other parts of India or were exported out of India. The taxability of the sales of teas in the manner mentioned above under the Travancore Cochin General Sales Tax Act depended upon whether the sales could be held to have taken place at Willingdon Island. i.e., within the territory of Travancore Cochin State and were liable to sales tax under the Act or whether the sales were outside sales and, therefore, not subject to sales tax in the State of Travancore Cochin in view of Article 286(1) (a) read with the Explanation. This Court after referring to s. 64(2) and th e definition of specific goods in s. 2(14) of our Sale of Goods Act, took the view that on the fall of the hammer the offer would get accepted and if the goods were specific goods the title would pass to the buyer. The distinction that was made by the Sales Tax Appellate Tribunal between goods which were sold in "full lots" and those which were sold "in portions" and its view that in regard to the former title had passed as soon as the hammer fall and not in regard to the latter was ref erred to by this Court with approvalApproving the distinction this Court ultimately held that the sales of full lots being outside sales were not liable to the levy of sales tax. Thus s. 64(2) has nothing to do with the aspect of the passing of the property at an auction sale and it is by virtue of goods being specific and in a deliverable state that under s. 20 the property in such goods passes to the buyer at the completion of the contract at the fall of hammer at such saleOn the other question there is no difficulty in coming to the conclusion that s. 64 is subject to a contract to the contrary, especially in light of the above discussion. In the first place s. 64 occurs in Chapter VII which contains "Miscellaneous" provisions and s. 62 which occurs in the same Chapter clearly provides that where any right, duty or liability would arise under a contract of sale by implication of law, it may be negatived or varied by express agreement or by the course of dealing between the parties or by usage, if the usage is such as to bind both the parties to the contract. Ordinarily, the rights, duties and liabilities arising under a contract of sale by implication of law spoken of in s. 62 refer to the rights, duties and obligations referred to in Chapter III containing provisions which lay down rules as to transfer of property as between seller and buyer and transfer of title but there is no reason why s. 62 should not apply to rights, duties and obligations arising under s. 64 in regard to auction sales. In other words, s. 64 would be subject to s. 62. Moreover, there is intrinsic material in s. 64 itself which shows that the provisions thereof could be subject to a contract to the contrary. For instance,. (1) thereof provides that where goods are put up for sale in lots than each lot is prima facie deemed to be the subject of a separate contract for sale, which means terms between the parties may provide to the contrary or circumstances may indicate to the contrary. Again,. (5) provides that the sale may be notified to be subject to a reserved or up set price which means that the auctioneer may not fix a reserved price; further, it is well settled that if such a reserved price has been fixed than not withstanding the fact that the highest bid has been accepted by the auctioneer and that the sale relates to specific or identifiable goods no concluded contract comes into existence if the highest, bid so accepted falls short of the reserve pr ice and the property in the goods will not pass.. (3) and (4), if carefully scrutinised, also indicate that there could be a contract to the contrary. Moreover, once it is accepted that auction sales to which s. 64 applies could be unconditional or conditional and that the auctioneer can prescribe his own terms and conditions on the basis of which the property is exposed to sale by auction it must be held that the acceptance of any bid as well as the passing of the property in the goods sold thereat would be governed by those terms and conditionsHaving clarified the legal position as above we shall now deal with the export auctions of coffee conducted by the Coffee Board in the instant case. Such auction sales a re admittedly conducted by the Coffee Board on terms and conditions prescribed by it called Auction Conditions. Further, there is no suggestion in the case that a statutory body like the Coffee Board while prescribing the Auction Condition s has acted not in good faith or that the said terms and conditions do not truly govern the rights and obligations of the parties thereto. It will, therefore, be clear that the question at what point of time the property in the coffee sold thereat passes to the auction purchaser (Registered Exporter) must depend upon the intention of the parties to be derived from the aforesaid terms and conditions. The contention that the property in coffee sold thereat passes to the buyer at t he fall of the hammer under s. 64(2) of our Sale of Goods Act has simply to be rejected, for, as we have indicated above, all that happens at the fall of the hammer is that a completed contract of sale comes into existence creating a relationship of promisor and promisee between the parties in an executory contractThe aforesaid clause suggests that the parties to the auction sale also understood s. 64(2) of the Sale of Goods Act in the manner in which we have interpreted it. On the question of the passing of the property the specific provision is to be found in Cl. 19 of the Auction Conditions. As stated earlier Cl. 19 principally deals with aspects of delivery, weighment and payment of price and towards the end it contains anoverriding provisionto the effect that notwithstanding anything contained in these conditions, the property in the coffee sold shall not pass to the buyer until after he has paid the full price and the coffee sold to him is weighed and set apart for delivery to him. In other words, it is clear that parties intended that the passing of the property shall not take place till the full price is paid and the coffee sold is weighed and set apart for delivery. Now there is nothing in any of the other provisions o f these Auction Conditions which indicates that the property in coffee sold should pass either at the fall of the hammer or at any point of time prior to the payment of price and weighment and setting apart of coffee for delivery to the buyer. Therefore, the observations of Lord Chancellor Herschell in Mc Entire And Another v. Crossley Bros. Ltd. (supra) relied upon by counsel of three States cannot avail them. Further, it is true that theoverriding provisioncontained at the end of Cl. 19 is negative in character, that is to say, the parties are agreed that the property shall not pass to the buyer until after the payment of the price, weighment and setting apart of the coffee for delivery to the buyer. But, does it positively follow that upon payment of price and weighment and setting apart the coffee sold for delivery to the buyer, the property passes to the buyer? On this aspect, in our view, there are two provisions contained in Cl. 20(d) and (f) which show that positively the property in the coffee sold passes to the buyer at that point of time. Under Cl. 19 after the payment of full price the buyer has to apply for and take delivery within a certain time but in case he fails to take delivery what shall happen to the coffee sold is provided for in Cl. 20. On the buyers failure to take delivery, the coffee is first stored by the Pool Agent in the Pool Warehouse pending its exportation by the buyer by the 15th May and if it is not exported by that date the Curer or Depot Manager removes it from the West Coast to inland centres for safe storage during the monsoon season but at the risk and cost of the buyer. Clause 20(d) provides: "During the interval the coffee so remains with the Board or the Pool Agent, it shall be held at the risk and on account of the Buyer" and Cl. 20(e) provides: "Gain or loss in weight of Coffee, as the case may be, during the period when the coffee (sold, weighed and paid for) remains in the godown of the Pool Agent as above, shall be to the benefit of detriment of the Buyer himself and he shall be at liberty to export the quantity gained in weight." The aforesaid provisions contained in Cl. 20 clearly go to show that after price i s fully paid and the coffee sold is weighed and set apart for delivery to the buyer the same lies with the Coffee Board at the risk of the buyer and if during the interval if there be any gain or loss in weight the same will be credited and debited to his account. This provision clearly indicates in positive terms that the property in coffee sold at the export auction passes to the buyer not before payment of full price, weighment and setting apart thereof for delivery to the buyer but immediately after such payment, weighment and setting apart for delivery. We might refer to another clause, namely, Cl. 23 which contains another specialoverriding provisionproviding fory of the Coffee Board in case damage to the coffee sold or to the warehouse wherein the coffee was stored occurs by fire, flood, strike, riot, civil commotion, etc. etc. and it is provided that notwithstanding anything contained in the Auction Conditions in regard to the payment of prices , insurance/warehouse charges, delivery or other conditions and notwithstanding the provisions of the Sale of Goods Act in regard to passing of property, the Board or its Agents shall not be liable to deliver the coffee in specie, in the event of loss or damage caused to the coffee sold by any of the aforesaid causes. But this clause has no bearing on the question of passing of the property. Having regard to Cls. 19 and 20 of the Auction Conditions, therefore, it is clear to us that in these penultimate sales (i.e. sales of coffee at the export auctions conducted by the Coffee Board) the property in coffee sold there at passes to the buyer upon payment of price, weighment and setting apart of the coffee sold for delivery to the buyerIf once it is held that the property in coffee sold at such export auctions passes under Cls. 19 and 20 of the Auction Conditions immediately upon payment of price, weighment and setting apart of the coffee for delivery to the buyer, it will be difficult to accept the petitioners contention that passing of the property in such Coffee is further postponed till actual shipment by reason of Cl. 31 of the Auction Conditions, for, if the title has already passed it cannot pass againIt is difficult to accept this contention. Section 25(1) which deals with the reservation of the right of disposal provides that where there is a contract for sale of specific goods or where goods arey appropriated to the contract, the seller may by terms of the contract or appropriation, reserve the right of disposal of the goods until certain conditions are fulfilled and if he does so, the legal consequence mentioned in the section flows, namely, that in such case notwithstanding the delivery of goods to a buyer or to a carrier or bailee for transaction to the buyer, the property in the goods does not pass to the buyer until the conditions imposed by the seller are fulfilled. In the instant case it is true that Cl. 26 declares that it is an essential condition of the auction that the coffee sold thereat shall be exported to stipulated destinations or to any other foreign country outside India as may be approved by the Chief Coffee Marketing officer within 3 months or within the extended period but such essential condition is applied to the coffee which has already become the property of the buyer under Cls. 19 and 20 of the Auction Conditions and all that Cl. 31 provides is that if default is made by Buyer in ex porting coffee within the prescribed time or extended time it shall be lawful for the Coffee Board without reference to the buyer to seize the unexported coffee and take possession thereof and deal with it as if it were the part and parcel of the Board s Coffee held by them in their Pool Stock. Far from amounting to a reservation of the right of disposal over the unexported coffee to the Coffee Board, Cl. 31 is in the nature of a defeasance clause in the sense that what is vested in the buyer under the earlier conditions, the same shall revert back to the Coffee Board if the buyer commits a default in fulfilling the essential condition. Such a reading of Cl. 31 would be consistent with a further provision which is to be found in the latter portion of that clause. The latter part of Cl. 31 provides that after the coffee is seized and it becomes part and parcel of Boards coffee held by it in its pool stock, the Board shalll the same but after suche the Chief Coffee Marketing officer shall pay to the defaulting buyer only the balance of the sale proceeds after deducting godown charges, insurance premium, selling commission payable to agents and all other expenses of sale together with the penalty due under Cl. 30In other words the proviso clearly suggests that the seized coffee becomes Coffee Boards property and isd as such, otherwise the surplus should go to the buyer (Registered Exporter). The fact that the payment to the defaulting buyer is limited to the actual sale price paid by him and that the surplus if any reverts to the Coffee Board clearly shows that under Cl. 31 upon seizure the property reverts back to the Coffee Board. In our view, Cl. 31 properly read amounts to a defeasance clause and nothing more, especially when it is clear that property in the coffee sold at auction passes to the buyer under Cls. 19 and 20 immediately upon payment of price, weighment and setting apart of the coffee for delivery to the buyer. Once the property has passed there would be no question of reserving any right of disposal over the same to the Coffee Board within the meaning of s. 25(1) of the Sale of Goods ActIt will be noticed that though on the question of the passing of the property factual material in the form of affidavit of the Chief Coffee Marketing Officer (on the point whether the lots exposed at the auctions are specific and ascertained goods or not) and several documents executed by the Registered Exporters in favour of their bankers to obtain packing and other credit facilities was placed before us we have not gone into the factual aspects at all and we have reached our conclusion on the point purely on the basis of construction of the relevant Auction Conditions from which primarily the intention of the parties is to be gathered. It is only when a clear intention in that behalf is not deducible from the terms and conditions that other factors such as the course of dealings and the conduct of the parties assume relevance.Having regard to the above discussion it is clear to us that in the penultimate sales (sales of coffee effected to Registered Exporters at export auctions conducted by the Coffee Board) the property in the Coffee sold thereat passes to the buyer immediately upon payment of full price, weighment and setting apart of coffee for delivery to the buyer under Cls. 19 and 20 of the Auction Conditions and it would be at this stage i.e. just before t his stage is reached that the agreement with or order from a foreign buyer must be available or produced in order to attract s. 5(3) ofthe Central Sales Tax Act, 1956.
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of price, weighment and setting apart of the coffee for delivery to the buyer, it will be difficult to accept the petitioners contention that passing of the property in such Coffee is further postponed till actual shipment by reason of Cl. 31 of the Auction Conditions, for, if the title has already passed it cannot pass again, Counsel for the petitioners contended that in view of cl. 31 a reservation of the right of disposal over the goods in favour of the Coffee Board within the meaning of s. 25 of the Sale of Goods Act is made. It is difficult to accept this contention. Section 25(1) which deals with the reservation of the right of disposal provides that where there is a contract for sale of specific goods or where goods are subsequently appropriated to the contract, the seller may by terms of the contract or appropriation, reserve the right of disposal of the goods until certain conditions are fulfilled and if he does so, the legal consequence mentioned in the section flows, namely, that in such case notwithstanding the delivery of goods to a buyer or to a carrier or bailee for transaction to the buyer, the property in the goods does not pass to the buyer until the conditions imposed by the seller are fulfilled. In the instant case it is true that Cl. 26 declares that it is an essential condition of the auction that the coffee sold thereat shall be exported to stipulated destinations or to any other foreign country outside India as may be approved by the Chief Coffee Marketing officer within 3 months or within the extended period but such essential condition is applied to the coffee which has already become the property of the buyer under Cls. 19 and 20 of the Auction Conditions and all that Cl. 31 provides is that if default is made by Buyer in ex porting coffee within the prescribed time or extended time it shall be lawful for the Coffee Board without reference to the buyer to seize the unexported coffee and take possession thereof and deal with it as if it were the part and parcel of the Board s Coffee held by them in their Pool Stock. Far from amounting to a reservation of the right of disposal over the unexported coffee to the Coffee Board, Cl. 31 is in the nature of a defeasance clause in the sense that what is vested in the buyer under the earlier conditions, the same shall revert back to the Coffee Board if the buyer commits a default in fulfilling the essential condition. Such a reading of Cl. 31 would be consistent with a further provision which is to be found in the latter portion of that clause. The latter part of Cl. 31 provides that after the coffee is seized and it becomes part and parcel of Boards coffee held by it in its pool stock, the Board shall re-sell the same but after such re-sale the Chief Coffee Marketing officer shall pay to the defaulting buyer only the balance of the sale proceeds after deducting godown charges, insurance premium, selling commission payable to agents and all other expenses of sale together with the penalty due under Cl. 30. But under the proviso it is provided thus:"Provided, however, that if such balance is in excess of the sale price paid by the buyer, the payment shall be limited to the actual sale price." 47. In other words the proviso clearly suggests that the seized coffee becomes Coffee Boards property and is re-sold as such, otherwise the surplus should go to the buyer (Registered Exporter). The fact that the payment to the defaulting buyer is limited to the actual sale price paid by him and that the surplus if any reverts to the Coffee Board clearly shows that under Cl. 31 upon seizure the property reverts back to the Coffee Board. In our view, Cl. 31 properly read amounts to a defeasance clause and nothing more, especially when it is clear that property in the coffee sold at auction passes to the buyer under Cls. 19 and 20 immediately upon payment of price, weighment and setting apart of the coffee for delivery to the buyer. Once the property has passed there would be no question of reserving any right of disposal over the same to the Coffee Board within the meaning of s. 25(1) of the Sale of Goods Act. 48. It will be noticed that though on the question of the passing of the property factual material in the form of affidavit of the Chief Coffee Marketing Officer (on the point whether the lots exposed at the auctions are specific and ascertained goods or not) and several documents executed by the Registered Exporters in favour of their bankers to obtain packing and other credit facilities was placed before us we have not gone into the factual aspects at all and we have reached our conclusion on the point purely on the basis of construction of the relevant Auction Conditions from which primarily the intention of the parties is to be gathered. It is only when a clear intention in that behalf is not deducible from the terms and conditions that other factors such as the course of dealings and the conduct of the parties assume relevance.Having regard to the above discussion it is clear to us that in the penultimate sales (sales of coffee effected to Registered Exporters at export auctions conducted by the Coffee Board) the property in the Coffee sold thereat passes to the buyer immediately upon payment of full price, weighment and setting apart of coffee for delivery to the buyer under Cls. 19 and 20 of the Auction Conditions and it would be at this stage i.e. just before t his stage is reached that the agreement with or order from a foreign buyer must be available or produced in order to attract s. 5(3) of the Central Sales Tax Act, 1956.49.
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and 20 of the Auction Conditions, therefore, it is clear to us that in these penultimate sales (i.e. sales of coffee at the export auctions conducted by the Coffee Board) the property in coffee sold there at passes to the buyer upon payment of price, weighment and setting apart of the coffee sold for delivery to the buyerIf once it is held that the property in coffee sold at such export auctions passes under Cls. 19 and 20 of the Auction Conditions immediately upon payment of price, weighment and setting apart of the coffee for delivery to the buyer, it will be difficult to accept the petitioners contention that passing of the property in such Coffee is further postponed till actual shipment by reason of Cl. 31 of the Auction Conditions, for, if the title has already passed it cannot pass againIt is difficult to accept this contention. Section 25(1) which deals with the reservation of the right of disposal provides that where there is a contract for sale of specific goods or where goods arey appropriated to the contract, the seller may by terms of the contract or appropriation, reserve the right of disposal of the goods until certain conditions are fulfilled and if he does so, the legal consequence mentioned in the section flows, namely, that in such case notwithstanding the delivery of goods to a buyer or to a carrier or bailee for transaction to the buyer, the property in the goods does not pass to the buyer until the conditions imposed by the seller are fulfilled. In the instant case it is true that Cl. 26 declares that it is an essential condition of the auction that the coffee sold thereat shall be exported to stipulated destinations or to any other foreign country outside India as may be approved by the Chief Coffee Marketing officer within 3 months or within the extended period but such essential condition is applied to the coffee which has already become the property of the buyer under Cls. 19 and 20 of the Auction Conditions and all that Cl. 31 provides is that if default is made by Buyer in ex porting coffee within the prescribed time or extended time it shall be lawful for the Coffee Board without reference to the buyer to seize the unexported coffee and take possession thereof and deal with it as if it were the part and parcel of the Board s Coffee held by them in their Pool Stock. Far from amounting to a reservation of the right of disposal over the unexported coffee to the Coffee Board, Cl. 31 is in the nature of a defeasance clause in the sense that what is vested in the buyer under the earlier conditions, the same shall revert back to the Coffee Board if the buyer commits a default in fulfilling the essential condition. Such a reading of Cl. 31 would be consistent with a further provision which is to be found in the latter portion of that clause. The latter part of Cl. 31 provides that after the coffee is seized and it becomes part and parcel of Boards coffee held by it in its pool stock, the Board shalll the same but after suche the Chief Coffee Marketing officer shall pay to the defaulting buyer only the balance of the sale proceeds after deducting godown charges, insurance premium, selling commission payable to agents and all other expenses of sale together with the penalty due under Cl. 30In other words the proviso clearly suggests that the seized coffee becomes Coffee Boards property and isd as such, otherwise the surplus should go to the buyer (Registered Exporter). The fact that the payment to the defaulting buyer is limited to the actual sale price paid by him and that the surplus if any reverts to the Coffee Board clearly shows that under Cl. 31 upon seizure the property reverts back to the Coffee Board. In our view, Cl. 31 properly read amounts to a defeasance clause and nothing more, especially when it is clear that property in the coffee sold at auction passes to the buyer under Cls. 19 and 20 immediately upon payment of price, weighment and setting apart of the coffee for delivery to the buyer. Once the property has passed there would be no question of reserving any right of disposal over the same to the Coffee Board within the meaning of s. 25(1) of the Sale of Goods ActIt will be noticed that though on the question of the passing of the property factual material in the form of affidavit of the Chief Coffee Marketing Officer (on the point whether the lots exposed at the auctions are specific and ascertained goods or not) and several documents executed by the Registered Exporters in favour of their bankers to obtain packing and other credit facilities was placed before us we have not gone into the factual aspects at all and we have reached our conclusion on the point purely on the basis of construction of the relevant Auction Conditions from which primarily the intention of the parties is to be gathered. It is only when a clear intention in that behalf is not deducible from the terms and conditions that other factors such as the course of dealings and the conduct of the parties assume relevance.Having regard to the above discussion it is clear to us that in the penultimate sales (sales of coffee effected to Registered Exporters at export auctions conducted by the Coffee Board) the property in the Coffee sold thereat passes to the buyer immediately upon payment of full price, weighment and setting apart of coffee for delivery to the buyer under Cls. 19 and 20 of the Auction Conditions and it would be at this stage i.e. just before t his stage is reached that the agreement with or order from a foreign buyer must be available or produced in order to attract s. 5(3) ofthe Central Sales Tax Act, 1956.
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Commissioner of Income Tax Vs. Park Hotel Private Limited
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by the Tribunal. For the assessment years in question, i.e., 1975-76 to 1979- 80, the ITO sought to include the rental income received by M/s Surrendra Overseas in the assessment of the assessee. The assessee objected to the same contending that inasmuch as it has transferred a portion of its leasehold interest in favour of M/s Surrendra Overseas, the income received from the properties so transferred to M/s Surrendra Overseas Ltd. cannot be included in its total income. The ITO rejected the objection relying upon Sri Ganesh Properties Ltd. vs. CIT (Cal), Sakarchand Chhaganlal vs. CED (Guj) and Bengal Jute Mills Co. Ltd. vs. CIT (Cal) 4. The assessee appealed to the CIT(A) who recorded a finding that "the income from the leasehold property should be assessed under the head business". He did not give any specific direction with respect to the quantum of income. Pursuant to the appellate order, the ITO passed an order under s. 251 of the Act giving effect to the appellate order. He assessed the income from leasehold property as income from business Against the order of the CIT(A) aforesaid (dt. 5th Oct., 1982) the Revenue filed an appeal before the Tribunal contending that the CIT(A) was not justified in directing the income from leasehold property to be assessed as income from business. According to Revenue, it was liable to be assessed as income from house property. The Tribunal dismissed this appeal The assessee preferred an appeal against the aforesaid orders of the ITO passed under s. 251 of the Act. The CIT(A) while affirming his earlier order that the said income should be assessed as income from business, held that the income received by M/s Surrendra Overseas Ltd. from the properties sub-leased to it, should not be included in the total income of the assessee. Against this order, the Revenue preferred an appeal to the Tribunal. The Tribunal referred to its aforementioned orders in the appeal preferred by M/s Surrendra Overseas Ltd. and held that in the absence of a registered deed of sub-lease, the assessee continued to be liable to tax on the income received from the said property. It rejected the contention of the assessee that the said income was only a notional one and not actual or real income. The Tribunal directed that (i) the income from leasehold property should be assessed as income from business and (ii) that the income which has to be assessed as income from business from leasehold interest, should be the income as received by M/s Surrendra Overseas Ltd. The assessee thereupon applied for and obtained the reference of the above question for the opinion of the High Court 5. We must pause here and mention a fact to clear the ground. While setting out the facts in its judgment, the High Court has stated a new fact which we are not able to find either in the order of the Tribunal or in the order of the CIT(A). The High Court has observed that "a multi-storeyed building had been constructed in the said portion under sub-lease and M/s Surrendra Overseas Ltd., had let out the same to various tenants and has been collecting rent from such tenants". In the context in which the said observation occurs, it gives an impression as if the High Court was saying that the multi-storeyed building was constructed by M/s Surrendra Overseas Ltd. in the premises sub-leased to it, though not so stated specifically. We are, however, of the opinion that in the absence of any specific statement to that effect, it would not be proper to read the said observation as stating that the multi-storeyed complex was constructed by M/s Surrendra Overseas. None of the orders of the authorities under the Act say that Surrendra Overseas had constructed a multi-storeyed structure in the premises subleased to it by the assessee. We shall, therefore proceed on the footing that the multi-storeyed building referred to by the High Court was constructed by the assessee itself and that the sub-lease in favour of M/s Surrendra Overseas Ltd. was of certain premises including the said multi-storeyed building. We are saying so also because in a reference under s. 256(1), no new facts can be introduced by the High Court. Now coming to the merits, we are of the opinion that the matter must go back to the High Court for more than one reason. Firstly, it is not clear to us whether the question referred pertains only to one issue, viz., whether the income received by Surrendra Overseas should be included in the total income of the assessee or does it also comprehend the other issue, viz., whether the said income should be assessed under the head "income from house property" or under the head "profits and gains of business or profession". The question as framed is capable of being construed both ways. In this connection, a fact to be noted is that on an earlier occasion the Tribunal had opined that the said income should be assessed as income from business. Whether that issue got concluded then itself or was it also in issue in the present proceedings ? If it was not in issue in the present proceedings, then why did the High Court refer to the decision in S. G. Mercantile Corpn. Pvt. Ltd. vs. CIT (SC) which deals with this issue only ? This matter requires to be clarified. Secondly, we find that the High Court has not addressed itself to the main issue upon which the Tribunal had allowed the Revenues appeal, viz., inasmuch as the sub-lease was not effected under a registered document, interest in the property does not pass and, therefore, the income in question continues to be the income of the assessee. It has also not dealt with the reasoning of the Tribunal that by accepting the assessees plea, the income in question would go untaxed altogether inasmuch as the said income has been held not taxable in the hands of M/s Surrendra Overseas Ltd
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1[ds]5. We must pause here and mention a fact to clear the ground. While setting out the facts in its judgment, the High Court has stated a new fact which we are not able to find either in the order of the Tribunal or in the order of the CIT(A). The High Court has observed that "ad building had been constructed in the said portion undersubleaseand M/s Surrendra Overseas Ltd., had let out the same to various tenants and has been collecting rent from such tenants". In the context in which the said observation occurs, it gives an impression as if the High Court was saying that thed building was constructed by M/s Surrendra Overseas Ltd. in the premisesd to it, though not so stated specifically. We are, however, of the opinion that in the absence of any specific statement to that effect, it would not be proper to read the said observation as stating that thed complex was constructed by M/s Surrendra Overseas. None of the orders of the authorities under the Act say that Surrendra Overseas had constructed ad structure in the premisesd to it by the assessee. We shall, therefore proceed on the footing that thed building referred to by the High Court was constructed by the assessee itself and that thesubleasein favour of M/s Surrendra Overseas Ltd. was of certain premises including the saidd building. We are saying so also because in a reference under s. 256(1), no new facts can be introduced by the High Court. Now coming to the merits, we are of the opinion that the matter must go back to the High Court for more than one reason. Firstly, it is not clear to us whether the question referred pertains only to one issue, viz., whether the income received by Surrendra Overseas should be included in the total income of the assessee or does it also comprehend the other issue, viz., whether the said income should be assessed under the head "income from house property" or under the head "profits and gains of business or profession". The question as framed is capable of being construed both ways. In this connection, a fact to be noted is that on an earlier occasion the Tribunal had opined that the said income should be assessed as income from business. Whether that issue got concluded then itself or was it also in issue in the present proceedings ? If it was not in issue in the present proceedings, then why did the High Court refer to the decision in S. G. Mercantile Corpn. Pvt. Ltd. vs. CIT (SC) which deals with this issue only ? This matter requires to be clarified. Secondly, we find that the High Court has not addressed itself to the main issue upon which the Tribunal had allowed the Revenues appeal, viz., inasmuch as thesubleasewas not effected under a registered document, interest in the property does not pass and, therefore, the income in question continues to be the income of the assessee. It has also not dealt with the reasoning of the Tribunal that by accepting the assessees plea, the income in question would go untaxed altogether inasmuch as the said income has been held not taxable in the hands of M/s Surrendra Overseas Ltd
| 1 | 1,506 | 602 |
### 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 Tribunal. For the assessment years in question, i.e., 1975-76 to 1979- 80, the ITO sought to include the rental income received by M/s Surrendra Overseas in the assessment of the assessee. The assessee objected to the same contending that inasmuch as it has transferred a portion of its leasehold interest in favour of M/s Surrendra Overseas, the income received from the properties so transferred to M/s Surrendra Overseas Ltd. cannot be included in its total income. The ITO rejected the objection relying upon Sri Ganesh Properties Ltd. vs. CIT (Cal), Sakarchand Chhaganlal vs. CED (Guj) and Bengal Jute Mills Co. Ltd. vs. CIT (Cal) 4. The assessee appealed to the CIT(A) who recorded a finding that "the income from the leasehold property should be assessed under the head business". He did not give any specific direction with respect to the quantum of income. Pursuant to the appellate order, the ITO passed an order under s. 251 of the Act giving effect to the appellate order. He assessed the income from leasehold property as income from business Against the order of the CIT(A) aforesaid (dt. 5th Oct., 1982) the Revenue filed an appeal before the Tribunal contending that the CIT(A) was not justified in directing the income from leasehold property to be assessed as income from business. According to Revenue, it was liable to be assessed as income from house property. The Tribunal dismissed this appeal The assessee preferred an appeal against the aforesaid orders of the ITO passed under s. 251 of the Act. The CIT(A) while affirming his earlier order that the said income should be assessed as income from business, held that the income received by M/s Surrendra Overseas Ltd. from the properties sub-leased to it, should not be included in the total income of the assessee. Against this order, the Revenue preferred an appeal to the Tribunal. The Tribunal referred to its aforementioned orders in the appeal preferred by M/s Surrendra Overseas Ltd. and held that in the absence of a registered deed of sub-lease, the assessee continued to be liable to tax on the income received from the said property. It rejected the contention of the assessee that the said income was only a notional one and not actual or real income. The Tribunal directed that (i) the income from leasehold property should be assessed as income from business and (ii) that the income which has to be assessed as income from business from leasehold interest, should be the income as received by M/s Surrendra Overseas Ltd. The assessee thereupon applied for and obtained the reference of the above question for the opinion of the High Court 5. We must pause here and mention a fact to clear the ground. While setting out the facts in its judgment, the High Court has stated a new fact which we are not able to find either in the order of the Tribunal or in the order of the CIT(A). The High Court has observed that "a multi-storeyed building had been constructed in the said portion under sub-lease and M/s Surrendra Overseas Ltd., had let out the same to various tenants and has been collecting rent from such tenants". In the context in which the said observation occurs, it gives an impression as if the High Court was saying that the multi-storeyed building was constructed by M/s Surrendra Overseas Ltd. in the premises sub-leased to it, though not so stated specifically. We are, however, of the opinion that in the absence of any specific statement to that effect, it would not be proper to read the said observation as stating that the multi-storeyed complex was constructed by M/s Surrendra Overseas. None of the orders of the authorities under the Act say that Surrendra Overseas had constructed a multi-storeyed structure in the premises subleased to it by the assessee. We shall, therefore proceed on the footing that the multi-storeyed building referred to by the High Court was constructed by the assessee itself and that the sub-lease in favour of M/s Surrendra Overseas Ltd. was of certain premises including the said multi-storeyed building. We are saying so also because in a reference under s. 256(1), no new facts can be introduced by the High Court. Now coming to the merits, we are of the opinion that the matter must go back to the High Court for more than one reason. Firstly, it is not clear to us whether the question referred pertains only to one issue, viz., whether the income received by Surrendra Overseas should be included in the total income of the assessee or does it also comprehend the other issue, viz., whether the said income should be assessed under the head "income from house property" or under the head "profits and gains of business or profession". The question as framed is capable of being construed both ways. In this connection, a fact to be noted is that on an earlier occasion the Tribunal had opined that the said income should be assessed as income from business. Whether that issue got concluded then itself or was it also in issue in the present proceedings ? If it was not in issue in the present proceedings, then why did the High Court refer to the decision in S. G. Mercantile Corpn. Pvt. Ltd. vs. CIT (SC) which deals with this issue only ? This matter requires to be clarified. Secondly, we find that the High Court has not addressed itself to the main issue upon which the Tribunal had allowed the Revenues appeal, viz., inasmuch as the sub-lease was not effected under a registered document, interest in the property does not pass and, therefore, the income in question continues to be the income of the assessee. It has also not dealt with the reasoning of the Tribunal that by accepting the assessees plea, the income in question would go untaxed altogether inasmuch as the said income has been held not taxable in the hands of M/s Surrendra Overseas Ltd
### Response:
1
### Explanation:
5. We must pause here and mention a fact to clear the ground. While setting out the facts in its judgment, the High Court has stated a new fact which we are not able to find either in the order of the Tribunal or in the order of the CIT(A). The High Court has observed that "ad building had been constructed in the said portion undersubleaseand M/s Surrendra Overseas Ltd., had let out the same to various tenants and has been collecting rent from such tenants". In the context in which the said observation occurs, it gives an impression as if the High Court was saying that thed building was constructed by M/s Surrendra Overseas Ltd. in the premisesd to it, though not so stated specifically. We are, however, of the opinion that in the absence of any specific statement to that effect, it would not be proper to read the said observation as stating that thed complex was constructed by M/s Surrendra Overseas. None of the orders of the authorities under the Act say that Surrendra Overseas had constructed ad structure in the premisesd to it by the assessee. We shall, therefore proceed on the footing that thed building referred to by the High Court was constructed by the assessee itself and that thesubleasein favour of M/s Surrendra Overseas Ltd. was of certain premises including the saidd building. We are saying so also because in a reference under s. 256(1), no new facts can be introduced by the High Court. Now coming to the merits, we are of the opinion that the matter must go back to the High Court for more than one reason. Firstly, it is not clear to us whether the question referred pertains only to one issue, viz., whether the income received by Surrendra Overseas should be included in the total income of the assessee or does it also comprehend the other issue, viz., whether the said income should be assessed under the head "income from house property" or under the head "profits and gains of business or profession". The question as framed is capable of being construed both ways. In this connection, a fact to be noted is that on an earlier occasion the Tribunal had opined that the said income should be assessed as income from business. Whether that issue got concluded then itself or was it also in issue in the present proceedings ? If it was not in issue in the present proceedings, then why did the High Court refer to the decision in S. G. Mercantile Corpn. Pvt. Ltd. vs. CIT (SC) which deals with this issue only ? This matter requires to be clarified. Secondly, we find that the High Court has not addressed itself to the main issue upon which the Tribunal had allowed the Revenues appeal, viz., inasmuch as thesubleasewas not effected under a registered document, interest in the property does not pass and, therefore, the income in question continues to be the income of the assessee. It has also not dealt with the reasoning of the Tribunal that by accepting the assessees plea, the income in question would go untaxed altogether inasmuch as the said income has been held not taxable in the hands of M/s Surrendra Overseas Ltd
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Firm Seth Radha Kishan (Deceased)Represented By Hari Kisha Vs. The Administrator, Municipalcommittee, Ludhiana
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the decision of the Commissioner final can only mean this that that decision is final only so far as the proceedings under the Act are concerned. But when an order is made which is outside that Act, then the provisions of S. 225 can have no application to such an order which itself is outside the Act........................................ In short the Bench laid down that in two kinds of cases s. 225 was no bar to the jurisdiction of a civil court in examining the order of the municipal committee passed under s. 193 (2), Punjab Municipal Act. The first case is where a committee acts ultra vires and the second case is where it acts arbitrarily or capriciously. In other words, where it abuses its statutory powers."11. The learned judge concluded thus, at p. 85 "The remedies given to the subject by a statute are for relief against the exercise of power conferred by a statute but those remedies are not contemplated for usurpation of power under cover of the provisions of the statute. The civil Courts are the proper tribunals in those kinds of cases and their jurisdiction cannot be held barred by reason of statutory remedies provided for grievances arising in exercise of statutory powers. To cases of this kind the rule that where a statute creates a right and provides at the same time a remedy, that remedy and no other is available, has no application.Further citation is unnecessary. The law on the subject may be briefly stated thus : Under s. 9 of the Code of Civil Procedure the Court shall have jurisdiction to try all suits of civil nature excepting suits of which cognizance is either expressly or impliedly barred. A statute, therefore, expressly or by necessary implication, can bar the jurisdiction of civil Courts in respect of a particular matter. The mere conferment of special jurisdiction on a tribunal in respect of the said matter does not in itself exclude the jurisdiction of civil courts. The statute may specifically provide for ousting the jurisdiction of civil Courts ; even if there was no such specific exclusion, if it creates a liability not existing before and gives a special and Particular remedy for the aggrieved party, the remedy provided by it must be followed. The same principle would apply if the statute had provided for the particular forum in which the said remedy could be had. Even in such cases, the Civil Courts jurisdiction is not completely ousted. A suit in a civil Court will always lie to question the order of a tribunal created by a statute, even if its order is, expressly or by necessary implication, made final, if the said tribunal abuses its power or does not act under the Act but in violation of its provisions.12. Let us now apply the said principles to the facts of the present case. The liability to pay terminal tax is created by the Act and remedy is given to a party aggrieved in the enforcement of that liability. As has been already indicated, against the order of the municipal committee levying terminal tax an appeal lies to the Deputy Commis- sioner and a reference to the High Court. Applying one of the principles stated supra, the party aggrieved can only pursue the remedy provided by the Act and he cannnot file a suit in a civil Court in that regard. Provisions of ss. 84 and 86 of the Act exclude the jurisdiction of the civil Court in respect of the tax levied or the assessment made under the Act.But the learned counsel for the Appellants contends that the impugned levy was not made under the Act but in derogation of the provisions thereof. There is no force in this contention. Section 61 (2) of the Act specifically empowers the Municipal Committee to levy any tax other than those specified therein with the previous sanction of the State Government. The levy of terminal tax was sanctioned by the Punjab Government by Notification No. 26463 dated July 21, 1932, at the rates shown in column 3 of the Schedule to the said Notification. Under the said Notification, read with s. 61 of the Act, the Municipal Committee is empowered to levy terminal tax on salt whether it is common salt or not. The Committee has, therefore, ample power under the Act and the Notification issued by the State Government to impose the said tax. The only dispute was as regards the rate of tax payable in respect of the salt brought by the appellant into the limits of the Municipal Committee. The rate depended upon the character of the salt. The ascertainment of the said fact is a necessary step for fixing the rate and it is not possible to say that in ascertaining the said fact the authorities concerned travelled outside the provisions of the Act. The learned counsel contends that if a municipal committee levies terminal tax on an article not liable to tax under the Act, a suit would lie and, therefore, the same legal position should apply even to a case where the municipal committee levies the tax in respect of an article under an entry not applicable to if. We do not see any analogy between these two illustrations : in the former, the municipal committee does not act under the Act, but in the latter it only commits a mistake or an error in fixing the rate of tax payable in respect of a particular commodity ; one is outside the Act and the other is under the Act ; one raises the question of jurisdiction and the other raises an objection to a Matter of detail. We, therefore, hold that in the present case the mistake, if any, committed in imposing the terminal tax can only be corrected in the manner prescribed by the Act. The appellants have misconceived their remedy in filing the suit in the civil Court. The conclusion arrived at by the High Court is correct.
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0[ds]The liability to pay terminal tax is created by the Act and remedy is given to a party aggrieved in the enforcement of that liability. As has been already indicated, against the order of the municipal committee levying terminal tax an appeal lies to the Deputy Commis- sioner and a reference to the High Court. Applying one of the principles stated supra, the party aggrieved can only pursue the remedy provided by the Act and he cannnot file a suit in a civil Court in that regard. Provisions of ss. 84 and 86 of the Act exclude the jurisdiction of the civil Court in respect of the tax levied or the assessment made under the Act.But the learned counsel for the Appellants contends that the impugned levy was not made under the Act but in derogation of the provisions thereof. There is no force in this contention. Section 61 (2) of the Act specifically empowers the Municipal Committee to levy any tax other than those specified therein with the previous sanction of the State Government. The levy of terminal tax was sanctioned by the Punjab Government by Notification No. 26463 dated July 21, 1932, at the rates shown in column 3 of the Schedule to the said Notification. Under the said Notification, read with s. 61 of the Act, the Municipal Committee is empowered to levy terminal tax on salt whether it is common salt or not. The Committee has, therefore, ample power under the Act and the Notification issued by the State Government to impose the said tax. The only dispute was as regards the rate of tax payable in respect of the salt brought by the appellant into the limits of the Municipal Committee. The rate depended upon the character of the salt. The ascertainment of the said fact is a necessary step for fixing the rate and it is not possible to say that in ascertaining the said fact the authorities concerned travelled outside the provisions of the Act. The learned counsel contends that if a municipal committee levies terminal tax on an article not liable to tax under the Act, a suit would lie and, therefore, the same legal position should apply even to a case where the municipal committee levies the tax in respect of an article under an entry not applicable to if. We do not see any analogy between these two illustrations : in the former, the municipal committee does not act under the Act, but in the latter it only commits a mistake or an error in fixing the rate of tax payable in respect of a particular commodity ; one is outside the Act and the other is under the Act ; one raises the question of jurisdiction and the other raises an objection to a Matter of detail. We, therefore, hold that in the present case the mistake, if any, committed in imposing the terminal tax can only be corrected in the manner prescribed by the Act. The appellants have misconceived their remedy in filing the suit in the civil Court. The conclusion arrived at by the High Court is correct.
| 0 | 3,780 | 563 |
### 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:
the decision of the Commissioner final can only mean this that that decision is final only so far as the proceedings under the Act are concerned. But when an order is made which is outside that Act, then the provisions of S. 225 can have no application to such an order which itself is outside the Act........................................ In short the Bench laid down that in two kinds of cases s. 225 was no bar to the jurisdiction of a civil court in examining the order of the municipal committee passed under s. 193 (2), Punjab Municipal Act. The first case is where a committee acts ultra vires and the second case is where it acts arbitrarily or capriciously. In other words, where it abuses its statutory powers."11. The learned judge concluded thus, at p. 85 "The remedies given to the subject by a statute are for relief against the exercise of power conferred by a statute but those remedies are not contemplated for usurpation of power under cover of the provisions of the statute. The civil Courts are the proper tribunals in those kinds of cases and their jurisdiction cannot be held barred by reason of statutory remedies provided for grievances arising in exercise of statutory powers. To cases of this kind the rule that where a statute creates a right and provides at the same time a remedy, that remedy and no other is available, has no application.Further citation is unnecessary. The law on the subject may be briefly stated thus : Under s. 9 of the Code of Civil Procedure the Court shall have jurisdiction to try all suits of civil nature excepting suits of which cognizance is either expressly or impliedly barred. A statute, therefore, expressly or by necessary implication, can bar the jurisdiction of civil Courts in respect of a particular matter. The mere conferment of special jurisdiction on a tribunal in respect of the said matter does not in itself exclude the jurisdiction of civil courts. The statute may specifically provide for ousting the jurisdiction of civil Courts ; even if there was no such specific exclusion, if it creates a liability not existing before and gives a special and Particular remedy for the aggrieved party, the remedy provided by it must be followed. The same principle would apply if the statute had provided for the particular forum in which the said remedy could be had. Even in such cases, the Civil Courts jurisdiction is not completely ousted. A suit in a civil Court will always lie to question the order of a tribunal created by a statute, even if its order is, expressly or by necessary implication, made final, if the said tribunal abuses its power or does not act under the Act but in violation of its provisions.12. Let us now apply the said principles to the facts of the present case. The liability to pay terminal tax is created by the Act and remedy is given to a party aggrieved in the enforcement of that liability. As has been already indicated, against the order of the municipal committee levying terminal tax an appeal lies to the Deputy Commis- sioner and a reference to the High Court. Applying one of the principles stated supra, the party aggrieved can only pursue the remedy provided by the Act and he cannnot file a suit in a civil Court in that regard. Provisions of ss. 84 and 86 of the Act exclude the jurisdiction of the civil Court in respect of the tax levied or the assessment made under the Act.But the learned counsel for the Appellants contends that the impugned levy was not made under the Act but in derogation of the provisions thereof. There is no force in this contention. Section 61 (2) of the Act specifically empowers the Municipal Committee to levy any tax other than those specified therein with the previous sanction of the State Government. The levy of terminal tax was sanctioned by the Punjab Government by Notification No. 26463 dated July 21, 1932, at the rates shown in column 3 of the Schedule to the said Notification. Under the said Notification, read with s. 61 of the Act, the Municipal Committee is empowered to levy terminal tax on salt whether it is common salt or not. The Committee has, therefore, ample power under the Act and the Notification issued by the State Government to impose the said tax. The only dispute was as regards the rate of tax payable in respect of the salt brought by the appellant into the limits of the Municipal Committee. The rate depended upon the character of the salt. The ascertainment of the said fact is a necessary step for fixing the rate and it is not possible to say that in ascertaining the said fact the authorities concerned travelled outside the provisions of the Act. The learned counsel contends that if a municipal committee levies terminal tax on an article not liable to tax under the Act, a suit would lie and, therefore, the same legal position should apply even to a case where the municipal committee levies the tax in respect of an article under an entry not applicable to if. We do not see any analogy between these two illustrations : in the former, the municipal committee does not act under the Act, but in the latter it only commits a mistake or an error in fixing the rate of tax payable in respect of a particular commodity ; one is outside the Act and the other is under the Act ; one raises the question of jurisdiction and the other raises an objection to a Matter of detail. We, therefore, hold that in the present case the mistake, if any, committed in imposing the terminal tax can only be corrected in the manner prescribed by the Act. The appellants have misconceived their remedy in filing the suit in the civil Court. The conclusion arrived at by the High Court is correct.
### Response:
0
### Explanation:
The liability to pay terminal tax is created by the Act and remedy is given to a party aggrieved in the enforcement of that liability. As has been already indicated, against the order of the municipal committee levying terminal tax an appeal lies to the Deputy Commis- sioner and a reference to the High Court. Applying one of the principles stated supra, the party aggrieved can only pursue the remedy provided by the Act and he cannnot file a suit in a civil Court in that regard. Provisions of ss. 84 and 86 of the Act exclude the jurisdiction of the civil Court in respect of the tax levied or the assessment made under the Act.But the learned counsel for the Appellants contends that the impugned levy was not made under the Act but in derogation of the provisions thereof. There is no force in this contention. Section 61 (2) of the Act specifically empowers the Municipal Committee to levy any tax other than those specified therein with the previous sanction of the State Government. The levy of terminal tax was sanctioned by the Punjab Government by Notification No. 26463 dated July 21, 1932, at the rates shown in column 3 of the Schedule to the said Notification. Under the said Notification, read with s. 61 of the Act, the Municipal Committee is empowered to levy terminal tax on salt whether it is common salt or not. The Committee has, therefore, ample power under the Act and the Notification issued by the State Government to impose the said tax. The only dispute was as regards the rate of tax payable in respect of the salt brought by the appellant into the limits of the Municipal Committee. The rate depended upon the character of the salt. The ascertainment of the said fact is a necessary step for fixing the rate and it is not possible to say that in ascertaining the said fact the authorities concerned travelled outside the provisions of the Act. The learned counsel contends that if a municipal committee levies terminal tax on an article not liable to tax under the Act, a suit would lie and, therefore, the same legal position should apply even to a case where the municipal committee levies the tax in respect of an article under an entry not applicable to if. We do not see any analogy between these two illustrations : in the former, the municipal committee does not act under the Act, but in the latter it only commits a mistake or an error in fixing the rate of tax payable in respect of a particular commodity ; one is outside the Act and the other is under the Act ; one raises the question of jurisdiction and the other raises an objection to a Matter of detail. We, therefore, hold that in the present case the mistake, if any, committed in imposing the terminal tax can only be corrected in the manner prescribed by the Act. The appellants have misconceived their remedy in filing the suit in the civil Court. The conclusion arrived at by the High Court is correct.
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State Of Orissa And Ors Vs. Arakhita Bisoi
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that the order of the Revenue Officer shall be final subject to the result of an appeal under section 44(2) while no such finality is mentioned in the case of an appeal under section 58. But this cannot conclude the matter for the powers of revision conferred under section 59 are very wide and empowers the Collector or the Board of Revenue to revise any order passed under this Act and sub-section (2) empowers the Collector and the Board of Revenue to set aside any irregularity in respect of any proceedings under this Act. As the power of revision is not restricted we are unable to accept the contention of the learned counsel that because of the wording of section 44(2) providing. that the order of the Revenue Officer subject to the result of the appeal would .be final, bars the revisionary jurisdiction of the Collector and the Board of Revenue as provided under section 59. We do not find any conflict between the two sections and the provision as to finality under section 44(2) is provided for so that in the absence of the aggrieved party proc eeding further in the matter the consequences of the vesting of surplus lands under section 45, the preparation of the Compensation Assessment Roll, the settlement of surplus lands etc. can be proceeded with.7. The learned counsel drew our attention to the amendment to the Orissa Act by Act 29 of 1976. The Orissa Land Reforms (2nd Amendment) Act, 1975, and submitted that the amendments introduced to section 44, 45 and 59 would make it dear that the legislature understood that the sections as they stood before the amendment did not enable the Collector to exercise revisional jurisdiction over orders passed by the appellate authority under se ction 44(2) of the Act. By the amending Act. section 44, sub-sections (2) and (3) are amended. Sub-section (2) of section 44 as it originally stood provided that subject to the result of such appeal, if any, the orders of the Revenue Officer shall be final and sub-section (3) provided that the draft statement as confirmed or as modified in appeal shall be final and conclusive. By the amendment sub-section (2) is recast and sub-section (3) provides that the draft statement as confirmed or as modified in appeal on revision shall be final and conclusive. The amendment specifically provides for a revision. The amended sub-section (1) of section 59 provides that on an application by party aggrieved by any order passed in an appeal under any provision of this Act filed within the prescribed period, the prescribed authority may revise such order. Though the amendment to section 44(3) makes it clear that a right to revision is provided for orders passed under section 44(2), we do not think that this could mean that section 44(2) as it originally stood did not provide for power of revision to the Collector under section 59. In our opinion, amendment does not make any difference.The learned counsel for the appellant submitted that section 44(3) is in the nature of a special provision and should be construed as an exception to section 59 on the principle of harmonious construction. In support of this plea the learned counsel referred to the decision in The J.K. Cotton Spinning &Weaving Mills Co. Ltd. v. State of U.P. &Ors. (1). In construing the provisions of clause 5(a) and clause 23 of the G.O. concerned, this Court held that the rule of harmonious construction should be applied and in applying the rule the court will have to remember that to harmonise is not to destroy and that in interpreting the statutes the court always presumes that the legislature inserted every part thereof for a purpose and the legisla- tive intention is that every part of the statute should have effect, and a construction which defeats the intention of the rule-making authority must be avoided. This decision does not help the appellant for in our view in applying the rule of harmonious construction with a view to give effect to the intention o(the legislature the court will not be justified in putting a construction which would restrict the revisionary jurisdiction of the Collector and the Board of Revenue. It may be noted that the Act is of exproprietory nature and the determination of the excess lands is done by the Revenue Officer and on appeal by the Revenue Divisional Officer. In such circumstances, it is only 13roper to presume that the legislature intended that any error or irregularity should. be rectified by higher authorities like the Collector and the Board of Revenue. In our view it will be in conformity with the intention of the legislature to hold that section 59 confers a power of revision of an order passed under section 44(2) of the Act. The learned counsel next referred to a decision of this Court in The Bengal Immunity Company Limited v. The State of Bihar and Others.(2) The rule of construction is stated at p. 791 in the following terms by Venkatarama Ayyar , J. speaking for the Court:--"It is a cardinal rule of construction that when there are in a Statute two provi sions which are in conflict with each other such that both of them cannot stand, they should, if possible. be so interpreted that effect can be given to both, and that a con struction which renders either of them inoperative and useless should not be adopted except in the last resort. This is what is known as the rule of harmonious construction. One application of this rule is that when there is a law generally dealing with a subject and another dealing particularly with one of the topics comprised therein, the general law is to be construed as yielding to the special in respect of the matters comprised therein."8. Construing section 59 as conferring a power of revision against an order passed under section 44(2) is not in any way contrary to the principle laid down in the above decision.9.
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0[ds]There is no doubt that section 44(1) provides that the order of the Revenue Officer shall be final subject to the result of an appeal under section 44(2) while no such finality is mentioned in the case of an appeal under section 58. But this cannot conclude the matter for the powers of revision conferred under section 59 are very wide and empowers the Collector or the Board of Revenue to revise any order passed under this Act and sub-section (2) empowers the Collector and the Board of Revenue to set aside any irregularity in respect of any proceedings under this Act. As the power of revision is not restricted we are unable to accept the contention of the learned counsel that because of the wording of section 44(2) providing. that the order of the Revenue Officer subject to the result of the appeal would .be final, bars the revisionary jurisdiction of the Collector and the Board of Revenue as provided under section 59. We do not find any conflict between the two sections and the provision as to finality under section 44(2) is provided for so that in the absence of the aggrieved party proc eeding further in the matter the consequences of the vesting of surplus lands under section 45, the preparation of the Compensation Assessment Roll, the settlement of surplus lands etc. can be proceededconstruing the provisions of clause 5(a) and clause 23 of the G.O. concerned, this Court held that the rule of harmonious construction should be applied and in applying the rule the court will have to remember that to harmonise is not to destroy and that in interpreting the statutes the court always presumes that the legislature inserted every part thereof for a purpose and the legisla- tive intention is that every part of the statute should have effect, and a construction which defeats the intention of the rule-making authority must be avoided. This decision does not help the appellant for in our view in applying the rule of harmonious construction with a view to give effect to the intention o(the legislature the court will not be justified in putting a construction which would restrict the revisionary jurisdiction of the Collector and the Board of Revenue. It may be noted that the Act is of exproprietory nature and the determination of the excess lands is done by the Revenue Officer and on appeal by the Revenue Divisional Officer. In such circumstances, it is only 13roper to presume that the legislature intended that any error or irregularity should. be rectified by higher authorities like the Collector and the Board of Revenue. In our view it will be in conformity with the intention of the legislature to hold that section 59 confers a power of revision of an order passed under section 44(2) of the Act. The learned counsel next referred to a decision of this Court in The Bengal Immunity Company Limited v. The State of Bihar and Others.(2) The rule of construction is stated at p. 791 in the following terms by Venkatarama Ayyar , J. speaking for the Court:--"It is a cardinal rule of construction that when there are in a Statute two provi sions which are in conflict with each other such that both of them cannot stand, they should, if possible. be so interpreted that effect can be given to both, and that a con struction which renders either of them inoperative and useless should not be adopted except in the last resort. This is what is known as the rule of harmonious construction. One application of this rule is that when there is a law generally dealing with a subject and another dealing particularly with one of the topics comprised therein, the general law is to be construed as yielding to the special in respect of the matters comprisedsection 59 as conferring a power of revision against an order passed under section 44(2) is not in any way contrary to the principle laid down in the aboveis no doubt that section 44(1) provides that the order of the Revenue Officer shall be final subject to the result of an appeal under section 44(2) while no such finality is mentioned in the case of an appeal under section 58. But this cannot conclude the matter for the powers of revision conferred under section 59 are very wide and empowers the Collector or the Board of Revenue to revise any order passed under this Act and(2) empowers the Collector and the Board of Revenue to set aside any irregularity in respect of any proceedings under this Act. As the power of revision is not restricted we are unable to accept the contention of the learned counsel that because of the wording of section 44(2) providing. that the order of the Revenue Officer subject to the result of the appeal would .be final, bars the revisionary jurisdiction of the Collector and the Board of Revenue as provided under section 59. We do not find any conflict between the two sections and the provision as to finality under section 44(2) is provided for so that in the absence of the aggrieved party proc eeding further in the matter the consequences of the vesting of surplus lands under section 45, the preparation of the Compensation Assessment Roll, the settlement of surplus lands etc. can be proceeded
| 0 | 2,264 | 979 |
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that the order of the Revenue Officer shall be final subject to the result of an appeal under section 44(2) while no such finality is mentioned in the case of an appeal under section 58. But this cannot conclude the matter for the powers of revision conferred under section 59 are very wide and empowers the Collector or the Board of Revenue to revise any order passed under this Act and sub-section (2) empowers the Collector and the Board of Revenue to set aside any irregularity in respect of any proceedings under this Act. As the power of revision is not restricted we are unable to accept the contention of the learned counsel that because of the wording of section 44(2) providing. that the order of the Revenue Officer subject to the result of the appeal would .be final, bars the revisionary jurisdiction of the Collector and the Board of Revenue as provided under section 59. We do not find any conflict between the two sections and the provision as to finality under section 44(2) is provided for so that in the absence of the aggrieved party proc eeding further in the matter the consequences of the vesting of surplus lands under section 45, the preparation of the Compensation Assessment Roll, the settlement of surplus lands etc. can be proceeded with.7. The learned counsel drew our attention to the amendment to the Orissa Act by Act 29 of 1976. The Orissa Land Reforms (2nd Amendment) Act, 1975, and submitted that the amendments introduced to section 44, 45 and 59 would make it dear that the legislature understood that the sections as they stood before the amendment did not enable the Collector to exercise revisional jurisdiction over orders passed by the appellate authority under se ction 44(2) of the Act. By the amending Act. section 44, sub-sections (2) and (3) are amended. Sub-section (2) of section 44 as it originally stood provided that subject to the result of such appeal, if any, the orders of the Revenue Officer shall be final and sub-section (3) provided that the draft statement as confirmed or as modified in appeal shall be final and conclusive. By the amendment sub-section (2) is recast and sub-section (3) provides that the draft statement as confirmed or as modified in appeal on revision shall be final and conclusive. The amendment specifically provides for a revision. The amended sub-section (1) of section 59 provides that on an application by party aggrieved by any order passed in an appeal under any provision of this Act filed within the prescribed period, the prescribed authority may revise such order. Though the amendment to section 44(3) makes it clear that a right to revision is provided for orders passed under section 44(2), we do not think that this could mean that section 44(2) as it originally stood did not provide for power of revision to the Collector under section 59. In our opinion, amendment does not make any difference.The learned counsel for the appellant submitted that section 44(3) is in the nature of a special provision and should be construed as an exception to section 59 on the principle of harmonious construction. In support of this plea the learned counsel referred to the decision in The J.K. Cotton Spinning &Weaving Mills Co. Ltd. v. State of U.P. &Ors. (1). In construing the provisions of clause 5(a) and clause 23 of the G.O. concerned, this Court held that the rule of harmonious construction should be applied and in applying the rule the court will have to remember that to harmonise is not to destroy and that in interpreting the statutes the court always presumes that the legislature inserted every part thereof for a purpose and the legisla- tive intention is that every part of the statute should have effect, and a construction which defeats the intention of the rule-making authority must be avoided. This decision does not help the appellant for in our view in applying the rule of harmonious construction with a view to give effect to the intention o(the legislature the court will not be justified in putting a construction which would restrict the revisionary jurisdiction of the Collector and the Board of Revenue. It may be noted that the Act is of exproprietory nature and the determination of the excess lands is done by the Revenue Officer and on appeal by the Revenue Divisional Officer. In such circumstances, it is only 13roper to presume that the legislature intended that any error or irregularity should. be rectified by higher authorities like the Collector and the Board of Revenue. In our view it will be in conformity with the intention of the legislature to hold that section 59 confers a power of revision of an order passed under section 44(2) of the Act. The learned counsel next referred to a decision of this Court in The Bengal Immunity Company Limited v. The State of Bihar and Others.(2) The rule of construction is stated at p. 791 in the following terms by Venkatarama Ayyar , J. speaking for the Court:--"It is a cardinal rule of construction that when there are in a Statute two provi sions which are in conflict with each other such that both of them cannot stand, they should, if possible. be so interpreted that effect can be given to both, and that a con struction which renders either of them inoperative and useless should not be adopted except in the last resort. This is what is known as the rule of harmonious construction. One application of this rule is that when there is a law generally dealing with a subject and another dealing particularly with one of the topics comprised therein, the general law is to be construed as yielding to the special in respect of the matters comprised therein."8. Construing section 59 as conferring a power of revision against an order passed under section 44(2) is not in any way contrary to the principle laid down in the above decision.9.
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There is no doubt that section 44(1) provides that the order of the Revenue Officer shall be final subject to the result of an appeal under section 44(2) while no such finality is mentioned in the case of an appeal under section 58. But this cannot conclude the matter for the powers of revision conferred under section 59 are very wide and empowers the Collector or the Board of Revenue to revise any order passed under this Act and sub-section (2) empowers the Collector and the Board of Revenue to set aside any irregularity in respect of any proceedings under this Act. As the power of revision is not restricted we are unable to accept the contention of the learned counsel that because of the wording of section 44(2) providing. that the order of the Revenue Officer subject to the result of the appeal would .be final, bars the revisionary jurisdiction of the Collector and the Board of Revenue as provided under section 59. We do not find any conflict between the two sections and the provision as to finality under section 44(2) is provided for so that in the absence of the aggrieved party proc eeding further in the matter the consequences of the vesting of surplus lands under section 45, the preparation of the Compensation Assessment Roll, the settlement of surplus lands etc. can be proceededconstruing the provisions of clause 5(a) and clause 23 of the G.O. concerned, this Court held that the rule of harmonious construction should be applied and in applying the rule the court will have to remember that to harmonise is not to destroy and that in interpreting the statutes the court always presumes that the legislature inserted every part thereof for a purpose and the legisla- tive intention is that every part of the statute should have effect, and a construction which defeats the intention of the rule-making authority must be avoided. This decision does not help the appellant for in our view in applying the rule of harmonious construction with a view to give effect to the intention o(the legislature the court will not be justified in putting a construction which would restrict the revisionary jurisdiction of the Collector and the Board of Revenue. It may be noted that the Act is of exproprietory nature and the determination of the excess lands is done by the Revenue Officer and on appeal by the Revenue Divisional Officer. In such circumstances, it is only 13roper to presume that the legislature intended that any error or irregularity should. be rectified by higher authorities like the Collector and the Board of Revenue. In our view it will be in conformity with the intention of the legislature to hold that section 59 confers a power of revision of an order passed under section 44(2) of the Act. The learned counsel next referred to a decision of this Court in The Bengal Immunity Company Limited v. The State of Bihar and Others.(2) The rule of construction is stated at p. 791 in the following terms by Venkatarama Ayyar , J. speaking for the Court:--"It is a cardinal rule of construction that when there are in a Statute two provi sions which are in conflict with each other such that both of them cannot stand, they should, if possible. be so interpreted that effect can be given to both, and that a con struction which renders either of them inoperative and useless should not be adopted except in the last resort. This is what is known as the rule of harmonious construction. One application of this rule is that when there is a law generally dealing with a subject and another dealing particularly with one of the topics comprised therein, the general law is to be construed as yielding to the special in respect of the matters comprisedsection 59 as conferring a power of revision against an order passed under section 44(2) is not in any way contrary to the principle laid down in the aboveis no doubt that section 44(1) provides that the order of the Revenue Officer shall be final subject to the result of an appeal under section 44(2) while no such finality is mentioned in the case of an appeal under section 58. But this cannot conclude the matter for the powers of revision conferred under section 59 are very wide and empowers the Collector or the Board of Revenue to revise any order passed under this Act and(2) empowers the Collector and the Board of Revenue to set aside any irregularity in respect of any proceedings under this Act. As the power of revision is not restricted we are unable to accept the contention of the learned counsel that because of the wording of section 44(2) providing. that the order of the Revenue Officer subject to the result of the appeal would .be final, bars the revisionary jurisdiction of the Collector and the Board of Revenue as provided under section 59. We do not find any conflict between the two sections and the provision as to finality under section 44(2) is provided for so that in the absence of the aggrieved party proc eeding further in the matter the consequences of the vesting of surplus lands under section 45, the preparation of the Compensation Assessment Roll, the settlement of surplus lands etc. can be proceeded
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Munshi Singh & Others Etc. Etc Vs. Union Of India Etc. Etc
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sought to be produced were either relevant or were required to enable this Court to pronounce judgment. 9. Learned counsel for the State next contended that the proposed acquisition was in pursuance of the activity under the Regulation Act. Moreover planned development is one of the public purposes as defined in S. 3 (f) as amended by the U. P. Amending Act 1954. Mere mention of such a public purpose was sufficient to satisfy the requirements of law. Reliance has been placed on a decision of this Court in Arnold Rodricks v. State of Maharashtra, (1966) 3 SCR 885 = (AIR 1966 SC 1788 ) in which in the notification under S. 4 it was stated that the land was needed "for a public purpose, viz. for development and utilisation of the said lands as an industrial and residential area". It was said that the purpose specified was a public purpose within the Acquisition Act. The points which arose for determination in that case were entirely different. At any rate, the public purpose was stated with sufficient particularity, namely, for development and utilisation of the land as an industrial and residential area. Once it was stated that the land will be utilised for the aforesaid purpose the persons interested could certainly object effectively. But the mere words, as are to be found in the notifications here "planned development of the area" were wholly insufficient and conveyed no idea as to the specific purpose for which the lands were to be utilised. It must be remembered that the Acquisition Act is silent as to the nature of objections that could be raised. In some of the States executive instructions have been issued or rules have been framed which indicate the classes of objections which are contemplated. In Madras the classes of objections that the Collectors inquiry should specifically deal with are the following : (a) that the purpose for which the land is acquired is not a public purpose; (b) that the land notified is not the best adapted to the purpose intended or that its area is greater than is actually required for the purpose, and c) that the acquisition of the land or any land in the locality is not desirable or expedient. In Babu Barkya Thakur v. The State of Bombay, (1961) 1 SCR 128 = (AIR 1960 SC 1203 ) it was stated in the notification under S. 4 (1) that the land was likely to be needed for purposes of a company which was named. A challenge was made against the validity of that notification on the ground that it was not stated that the land was required for a public purpose. It was laid down that where the land was required for a company the requirement of the law would be sufficiently met if the appropriate Government was satisfied on a report under Section 5A (2) or by an inquiry under Section 40 that the purpose of the acquisition was the same as contemplated by Section 40 of the Act. This Court said that the purpose of the notification under Section 4 was to carry out a preliminary investigation with a view to find out after the necessary survey and taking of levels and, if necessary, digging or boring into the sub-soil whether the land was adapted for the purposes for which it was sought to be acquired. It was only under Section 6 that a firm declaration had to be made by the Government that land with proper description and area was needed for a public purpose or a company. Hence it was not correct to say that any defect in the notification under Section 4 was fatal to the validity of the proceedings particularly when the acquisition was for a company. We are unable to accede to the suggestion on behalf of the State that the observations made in this decision can be of any avail to it in the present cases. The question which we are called upon to decide is of an entirely different nature. It relates to the notification under Section 4 in the light of S. 5A with a view to giving full effect to that section and not simply wiping it out. We need only point out that the Acquisition Act did not originally provide for filing or hearing of objections to the proposed acquisition. It was only by the Amending Act 38 of 1923 which came into force on January 1, 1924 that S. 5A was inserted in the Acquisition Act. Up to that time the view was that the wishes of the owners of the land were wholly irrelevant but after the insertion of Section 5A the position has completely changed and it cannot be said that the owners wishes are not relevant and that he does not need an opportunity to file his objections. To take such a view would render S. 5A otios. If it has any purpose and if it has to be given its full effect the person interested in the land proposed to be acquired must have an opportunity to submit his objections and that he can only if the notification under S. 4 (1) while mentioning the public purpose gives some definite indication or particulars of the said purpose which would enable the persons concerned to object effectively if so desired. In the absence of such specific or particular purpose being stated the objector cannot file any proper or cogent objections under S. 5A which he has a right to do under that provision. We would accordingly hold that owing to the vagueness and indefiniteness of the public purpose stated in the notifications under S. 4 (1) and in the absence of any proof that the appellants were either aware of or were shown the scheme or the Master Plan in respect of the planned development of the area in question the appellants were wholly unable to object effectively and exercise their right under S. 5A of the Acquisition Act.
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1[ds]In Babu Barkya Thakur v. The State of Bombay, (1961) 1 SCR 128 = (AIR 1960 SC 1203 ) it was stated in the notification under S. 4 (1) that the land was likely to be needed for purposes of a company which was named. A challenge was made against the validity of that notification on the ground that it was not stated that the land was required for a public purpose. It was laid down that where the land was required for a company the requirement of the law would be sufficiently met if the appropriate Government was satisfied on a report under Section 5A (2) or by an inquiry under Section 40 that the purpose of the acquisition was the same as contemplated by Section 40 of the Act. This Court said that the purpose of the notification under Section 4 was to carry out a preliminary investigation with a view to find out after the necessary survey and taking of levels and, if necessary, digging or boring into the sub-soil whether the land was adapted for the purposes for which it was sought to be acquired. It was only under Section 6 that a firm declaration had to be made by the Government that land with proper description and area was needed for a public purpose or a company. Hence it was not correct to say that any defect in the notification under Section 4 was fatal to the validity of the proceedings particularly when the acquisition was for a company. We are unable to accede to the suggestion on behalf of the State that the observations made in this decision can be of any avail to it in the present cases. The question which we are called upon to decide is of an entirely different nature. It relates to the notification under Section 4 in the light of S. 5A with a view to giving full effect to that section and not simply wiping it out. We need only point out that the Acquisition Act did not originally provide for filing or hearing of objections to the proposed acquisition. It was only by the Amending Act 38 of 1923 which came into force on January 1, 1924 that S. 5A was inserted in the Acquisition Act. Up to that time the view was that the wishes of the owners of the land were wholly irrelevant but after the insertion of Section 5A the position has completely changed and it cannot be said that the owners wishes are not relevant and that he does not need an opportunity to file his objections. To take such a view would render S. 5A otios. If it has any purpose and if it has to be given its full effect the person interested in the land proposed to be acquired must have an opportunity to submit his objections and that he can only if the notification under S. 4 (1) while mentioning the public purpose gives some definite indication or particulars of the said purpose which would enable the persons concerned to object effectively if so desired. In the absence of such specific or particular purpose being stated the objector cannot file any proper or cogent objections under S. 5A which he has a right to do under that provision. We would accordingly hold that owing to the vagueness and indefiniteness of the public purpose stated in the notifications under S. 4 (1) and in the absence of any proof that the appellants were either aware of or were shown the scheme or the Master Plan in respect of the planned development of the area in question the appellants were wholly unable to object effectively and exercise their right under S. 5A of the Acquisition Act.
| 1 | 4,253 | 663 |
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sought to be produced were either relevant or were required to enable this Court to pronounce judgment. 9. Learned counsel for the State next contended that the proposed acquisition was in pursuance of the activity under the Regulation Act. Moreover planned development is one of the public purposes as defined in S. 3 (f) as amended by the U. P. Amending Act 1954. Mere mention of such a public purpose was sufficient to satisfy the requirements of law. Reliance has been placed on a decision of this Court in Arnold Rodricks v. State of Maharashtra, (1966) 3 SCR 885 = (AIR 1966 SC 1788 ) in which in the notification under S. 4 it was stated that the land was needed "for a public purpose, viz. for development and utilisation of the said lands as an industrial and residential area". It was said that the purpose specified was a public purpose within the Acquisition Act. The points which arose for determination in that case were entirely different. At any rate, the public purpose was stated with sufficient particularity, namely, for development and utilisation of the land as an industrial and residential area. Once it was stated that the land will be utilised for the aforesaid purpose the persons interested could certainly object effectively. But the mere words, as are to be found in the notifications here "planned development of the area" were wholly insufficient and conveyed no idea as to the specific purpose for which the lands were to be utilised. It must be remembered that the Acquisition Act is silent as to the nature of objections that could be raised. In some of the States executive instructions have been issued or rules have been framed which indicate the classes of objections which are contemplated. In Madras the classes of objections that the Collectors inquiry should specifically deal with are the following : (a) that the purpose for which the land is acquired is not a public purpose; (b) that the land notified is not the best adapted to the purpose intended or that its area is greater than is actually required for the purpose, and c) that the acquisition of the land or any land in the locality is not desirable or expedient. In Babu Barkya Thakur v. The State of Bombay, (1961) 1 SCR 128 = (AIR 1960 SC 1203 ) it was stated in the notification under S. 4 (1) that the land was likely to be needed for purposes of a company which was named. A challenge was made against the validity of that notification on the ground that it was not stated that the land was required for a public purpose. It was laid down that where the land was required for a company the requirement of the law would be sufficiently met if the appropriate Government was satisfied on a report under Section 5A (2) or by an inquiry under Section 40 that the purpose of the acquisition was the same as contemplated by Section 40 of the Act. This Court said that the purpose of the notification under Section 4 was to carry out a preliminary investigation with a view to find out after the necessary survey and taking of levels and, if necessary, digging or boring into the sub-soil whether the land was adapted for the purposes for which it was sought to be acquired. It was only under Section 6 that a firm declaration had to be made by the Government that land with proper description and area was needed for a public purpose or a company. Hence it was not correct to say that any defect in the notification under Section 4 was fatal to the validity of the proceedings particularly when the acquisition was for a company. We are unable to accede to the suggestion on behalf of the State that the observations made in this decision can be of any avail to it in the present cases. The question which we are called upon to decide is of an entirely different nature. It relates to the notification under Section 4 in the light of S. 5A with a view to giving full effect to that section and not simply wiping it out. We need only point out that the Acquisition Act did not originally provide for filing or hearing of objections to the proposed acquisition. It was only by the Amending Act 38 of 1923 which came into force on January 1, 1924 that S. 5A was inserted in the Acquisition Act. Up to that time the view was that the wishes of the owners of the land were wholly irrelevant but after the insertion of Section 5A the position has completely changed and it cannot be said that the owners wishes are not relevant and that he does not need an opportunity to file his objections. To take such a view would render S. 5A otios. If it has any purpose and if it has to be given its full effect the person interested in the land proposed to be acquired must have an opportunity to submit his objections and that he can only if the notification under S. 4 (1) while mentioning the public purpose gives some definite indication or particulars of the said purpose which would enable the persons concerned to object effectively if so desired. In the absence of such specific or particular purpose being stated the objector cannot file any proper or cogent objections under S. 5A which he has a right to do under that provision. We would accordingly hold that owing to the vagueness and indefiniteness of the public purpose stated in the notifications under S. 4 (1) and in the absence of any proof that the appellants were either aware of or were shown the scheme or the Master Plan in respect of the planned development of the area in question the appellants were wholly unable to object effectively and exercise their right under S. 5A of the Acquisition Act.
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1
### Explanation:
In Babu Barkya Thakur v. The State of Bombay, (1961) 1 SCR 128 = (AIR 1960 SC 1203 ) it was stated in the notification under S. 4 (1) that the land was likely to be needed for purposes of a company which was named. A challenge was made against the validity of that notification on the ground that it was not stated that the land was required for a public purpose. It was laid down that where the land was required for a company the requirement of the law would be sufficiently met if the appropriate Government was satisfied on a report under Section 5A (2) or by an inquiry under Section 40 that the purpose of the acquisition was the same as contemplated by Section 40 of the Act. This Court said that the purpose of the notification under Section 4 was to carry out a preliminary investigation with a view to find out after the necessary survey and taking of levels and, if necessary, digging or boring into the sub-soil whether the land was adapted for the purposes for which it was sought to be acquired. It was only under Section 6 that a firm declaration had to be made by the Government that land with proper description and area was needed for a public purpose or a company. Hence it was not correct to say that any defect in the notification under Section 4 was fatal to the validity of the proceedings particularly when the acquisition was for a company. We are unable to accede to the suggestion on behalf of the State that the observations made in this decision can be of any avail to it in the present cases. The question which we are called upon to decide is of an entirely different nature. It relates to the notification under Section 4 in the light of S. 5A with a view to giving full effect to that section and not simply wiping it out. We need only point out that the Acquisition Act did not originally provide for filing or hearing of objections to the proposed acquisition. It was only by the Amending Act 38 of 1923 which came into force on January 1, 1924 that S. 5A was inserted in the Acquisition Act. Up to that time the view was that the wishes of the owners of the land were wholly irrelevant but after the insertion of Section 5A the position has completely changed and it cannot be said that the owners wishes are not relevant and that he does not need an opportunity to file his objections. To take such a view would render S. 5A otios. If it has any purpose and if it has to be given its full effect the person interested in the land proposed to be acquired must have an opportunity to submit his objections and that he can only if the notification under S. 4 (1) while mentioning the public purpose gives some definite indication or particulars of the said purpose which would enable the persons concerned to object effectively if so desired. In the absence of such specific or particular purpose being stated the objector cannot file any proper or cogent objections under S. 5A which he has a right to do under that provision. We would accordingly hold that owing to the vagueness and indefiniteness of the public purpose stated in the notifications under S. 4 (1) and in the absence of any proof that the appellants were either aware of or were shown the scheme or the Master Plan in respect of the planned development of the area in question the appellants were wholly unable to object effectively and exercise their right under S. 5A of the Acquisition Act.
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VIKRAM JOHAR Vs. THE STATE OF UTTAR PRADESH
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or to commit any other offence. The intentional insult must be of such a degree that should provoke a person to break the public peace or to commit any other offence. The person who intentionally insults intending or knowing it to be likely that it will give provocation to any other person and such provocation will cause to break the public peace or to commit any other offence, in such a situation, the ingredients of Section 504 are satisfied. One of the essential elements constituting the offence is that there should have been an act or conduct amounting to intentional insult and the mere fact that the accused abused the complainant, as such, is not sufficient by itself to warrant a conviction under Section 504 IPC.? 24. In another judgment, i.e., Manik Taneja and Another Vs. State of Karnataka and Another, (2015) 7 SCC 423 , this Court has again occasion to examine the ingredients of Sections 503 and 506. In the above case also, case was registered for the offence under Sections 353 and 506 I.P.C. After noticing Section 503, which defines criminal intimidation, this Court laid down following in paragraph Nos. 11 and 12:- "11. Xxxxxxxxxxxxx A reading of the definition of ?criminal intimidation? would indicate that there must be an act of threatening to another person, of causing an injury to the person, reputation, or property of the person threatened, or to the person in whom the threatened person is interested and the threat must be with the intent to cause alarm to the person threatened or it must be to do any act which he is not legally bound to do or omit to do an act which he is legally entitled to do. 12. In the instant case, the allegation is that the appellants have abused the complainant and obstructed the second respondent from discharging his public duties and spoiled the integrity of the second respondent. It is the intention of the accused that has to be considered in deciding as to whether what he has stated comes within the meaning of ?criminal intimidation?. The threat must be with intention to cause alarm to the complainant to cause that person to do or omit to do any work. Mere expression of any words without any intention to cause alarm would not be sufficient to bring in the application of this section. But material has to be placed on record to show that the intention is to cause alarm to the complainant. From the facts and circumstances of the case, it appears that there was no intention on the part of the appellants to cause alarm in the mind of the second respondent causing obstruction in discharge of his duty. As far as the comments posted on Facebook are concerned, it appears that it is a public forum meant for helping the public and the act of the appellants posting a comment on Facebook may not attract ingredients of criminal intimidation in Section 503 IPC.? 25. In the above case, allegation was that appellant had abused the complainant. The Court held that the mere fact that the allegation that accused had abused the complainant does not satisfy the ingredients of Section 506. 26. Now, we revert back to the allegations in the complaint against the appellant. The allegation is that appellant with two or three other unknown persons, one of whom was holding a revolver, came to the complainant?s house and abused him in filthy language and attempted to assault him and when some neighbours arrived there the appellant and the other persons accompanying him fled the spot. The above allegation taking on its face value does not satisfy the ingredients of Sections 504 and 506 as has been enumerated by this Court in the above two judgments. The intentional insult must be of such a degree that should provoke a person to break the public peace or to commit any other offence. The mere allegation that appellant came and abused the complainant does not satisfy the ingredients as laid down in paragraph No.13 of the judgment of this Court in Fiona Shrikhande (supra). 27. Now, reverting back to Section 506, which is offence of criminal intimidation, the principles laid down by Fiona Shrikhande (supra) has also to be applied when question of finding out as to whether the ingredients of offence are made or not. Here, the only allegation is that the appellant abused the complainant. For proving an offence under Section 506 IPC, what are ingredients which have to be proved by the prosecution? Ratanlal & Dhirajlal on Law of Crimes, 27 th Edition with regard to proof of offence states following: - ?…The prosecution must prove: (i) That the accused threatened some person. (ii) That such threat consisted of some injury to his person, reputation or property; or to the person, reputation or property of some one in whom he was interested; (iii) That he did so with intent to cause alarm to that person; or to cause that person to do any act which he was not legally bound to do, or omit to do any act which he was legally entitled to do as a means of avoiding the execution of such threat.? A plain reading of the allegations in the complaint does not satisfy all the ingredients as noticed above. 28. On the principles as enumerated by this Court in Fiona Shrikhande (supra) and Manik Taneja (supra), we are satisfied that ingredients of Sections 504 and 506 are not made out from the complaint filed by the complainant. When the complaint filed under Section 156(3) Cr.P.C., which has been treated as a complaint case, does not contain ingredients of Sections 504 and 506, we are of the view that Courts below committed error in rejecting the application of discharge filed by the appellant. In the facts of the present case, we are of the view that appellant was entitled to be discharged for the offence under Sections 504 and 506.
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1[ds]10. From the facts noticed above, it is clear that appellant?s role was only of a surveyor appointed by insurance company to survey and submit report on the fire insurance claim alleged by the complainant with regard to incident dated 18.12.2010, which took place in his factory premises at Kosikala, District Mathura.It is, thus, clear that while considering the discharge application, the Court is to exercise its judicial mind to determine whether a case for trial has been made out or not. It is true that in such proceedings, the Court is not to hold the mini trial by marshalling the evidence.After noticing the nature of jurisdiction to be exercised by the Court at the time of discharge, we now revert back to the facts of the present case, where taking an allegation of complaint as correct on the face of it, whether offences under Sections 504 and 506 is made out, is a question to be answered.In the above case, allegation was that appellant had abused the complainant. The Court held that the mere fact that the allegation that accused had abused the complainant does not satisfy the ingredients of Section 506.Now, we revert back to the allegations in the complaint against the appellant. The allegation is that appellant with two or three other unknown persons, one of whom was holding a revolver, came to the complainant?s house and abused him in filthy language and attempted to assault him and when some neighbours arrived there the appellant and the other persons accompanying him fled the spot. The above allegation taking on its face value does not satisfy the ingredients of Sections 504 and 506 as has been enumerated by this Court in the above two judgments. The intentional insult must be of such a degree that should provoke a person to break the public peace or to commit any other offence. The mere allegation that appellant came and abused the complainant does not satisfy the ingredients as laid down in paragraph No.13 of the judgment of this Court in Fiona Shrikhande (supra).Now, reverting back to Section 506, which is offence of criminal intimidation, the principles laid down by Fiona Shrikhande (supra) has also to be applied when question of finding out as to whether the ingredients of offence are made or not. Here, the only allegation is that the appellant abused the complainant. For proving an offence under Section 506 IPC, what are ingredients which have to be proved by the prosecution? Ratanlal & Dhirajlal on Law of Crimes, 27 th Edition with regard to proof of offence states following:(i) That the accused threatened someThat such threat consisted of some injury to his person, reputation or property; or to the person, reputation or property of some one in whom he wasThat he did so with intent to cause alarm to that person; or to cause that person to do any act which he was not legally bound to do, or omit to do any act which he was legally entitled to do as a means of avoiding the execution of suchplain reading of the allegations in the complaint does not satisfy all the ingredients as noticed above.On the principles as enumerated by this Court in Fiona Shrikhande (supra) and Manik Taneja (supra), we are satisfied that ingredients of Sections 504 and 506 are not made out from the complaint filed by the complainant. When the complaint filed under Section 156(3) Cr.P.C., which has been treated as a complaint case, does not contain ingredients of Sections 504 and 506, we are of the view that Courts below committed error in rejecting the application of discharge filed by the appellant. In the facts of the present case, we are of the view that appellant was entitled to be discharged for the offence under Sections 504 and 506.
| 1 | 5,569 | 704 |
### 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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or to commit any other offence. The intentional insult must be of such a degree that should provoke a person to break the public peace or to commit any other offence. The person who intentionally insults intending or knowing it to be likely that it will give provocation to any other person and such provocation will cause to break the public peace or to commit any other offence, in such a situation, the ingredients of Section 504 are satisfied. One of the essential elements constituting the offence is that there should have been an act or conduct amounting to intentional insult and the mere fact that the accused abused the complainant, as such, is not sufficient by itself to warrant a conviction under Section 504 IPC.? 24. In another judgment, i.e., Manik Taneja and Another Vs. State of Karnataka and Another, (2015) 7 SCC 423 , this Court has again occasion to examine the ingredients of Sections 503 and 506. In the above case also, case was registered for the offence under Sections 353 and 506 I.P.C. After noticing Section 503, which defines criminal intimidation, this Court laid down following in paragraph Nos. 11 and 12:- "11. Xxxxxxxxxxxxx A reading of the definition of ?criminal intimidation? would indicate that there must be an act of threatening to another person, of causing an injury to the person, reputation, or property of the person threatened, or to the person in whom the threatened person is interested and the threat must be with the intent to cause alarm to the person threatened or it must be to do any act which he is not legally bound to do or omit to do an act which he is legally entitled to do. 12. In the instant case, the allegation is that the appellants have abused the complainant and obstructed the second respondent from discharging his public duties and spoiled the integrity of the second respondent. It is the intention of the accused that has to be considered in deciding as to whether what he has stated comes within the meaning of ?criminal intimidation?. The threat must be with intention to cause alarm to the complainant to cause that person to do or omit to do any work. Mere expression of any words without any intention to cause alarm would not be sufficient to bring in the application of this section. But material has to be placed on record to show that the intention is to cause alarm to the complainant. From the facts and circumstances of the case, it appears that there was no intention on the part of the appellants to cause alarm in the mind of the second respondent causing obstruction in discharge of his duty. As far as the comments posted on Facebook are concerned, it appears that it is a public forum meant for helping the public and the act of the appellants posting a comment on Facebook may not attract ingredients of criminal intimidation in Section 503 IPC.? 25. In the above case, allegation was that appellant had abused the complainant. The Court held that the mere fact that the allegation that accused had abused the complainant does not satisfy the ingredients of Section 506. 26. Now, we revert back to the allegations in the complaint against the appellant. The allegation is that appellant with two or three other unknown persons, one of whom was holding a revolver, came to the complainant?s house and abused him in filthy language and attempted to assault him and when some neighbours arrived there the appellant and the other persons accompanying him fled the spot. The above allegation taking on its face value does not satisfy the ingredients of Sections 504 and 506 as has been enumerated by this Court in the above two judgments. The intentional insult must be of such a degree that should provoke a person to break the public peace or to commit any other offence. The mere allegation that appellant came and abused the complainant does not satisfy the ingredients as laid down in paragraph No.13 of the judgment of this Court in Fiona Shrikhande (supra). 27. Now, reverting back to Section 506, which is offence of criminal intimidation, the principles laid down by Fiona Shrikhande (supra) has also to be applied when question of finding out as to whether the ingredients of offence are made or not. Here, the only allegation is that the appellant abused the complainant. For proving an offence under Section 506 IPC, what are ingredients which have to be proved by the prosecution? Ratanlal & Dhirajlal on Law of Crimes, 27 th Edition with regard to proof of offence states following: - ?…The prosecution must prove: (i) That the accused threatened some person. (ii) That such threat consisted of some injury to his person, reputation or property; or to the person, reputation or property of some one in whom he was interested; (iii) That he did so with intent to cause alarm to that person; or to cause that person to do any act which he was not legally bound to do, or omit to do any act which he was legally entitled to do as a means of avoiding the execution of such threat.? A plain reading of the allegations in the complaint does not satisfy all the ingredients as noticed above. 28. On the principles as enumerated by this Court in Fiona Shrikhande (supra) and Manik Taneja (supra), we are satisfied that ingredients of Sections 504 and 506 are not made out from the complaint filed by the complainant. When the complaint filed under Section 156(3) Cr.P.C., which has been treated as a complaint case, does not contain ingredients of Sections 504 and 506, we are of the view that Courts below committed error in rejecting the application of discharge filed by the appellant. In the facts of the present case, we are of the view that appellant was entitled to be discharged for the offence under Sections 504 and 506.
### Response:
1
### Explanation:
10. From the facts noticed above, it is clear that appellant?s role was only of a surveyor appointed by insurance company to survey and submit report on the fire insurance claim alleged by the complainant with regard to incident dated 18.12.2010, which took place in his factory premises at Kosikala, District Mathura.It is, thus, clear that while considering the discharge application, the Court is to exercise its judicial mind to determine whether a case for trial has been made out or not. It is true that in such proceedings, the Court is not to hold the mini trial by marshalling the evidence.After noticing the nature of jurisdiction to be exercised by the Court at the time of discharge, we now revert back to the facts of the present case, where taking an allegation of complaint as correct on the face of it, whether offences under Sections 504 and 506 is made out, is a question to be answered.In the above case, allegation was that appellant had abused the complainant. The Court held that the mere fact that the allegation that accused had abused the complainant does not satisfy the ingredients of Section 506.Now, we revert back to the allegations in the complaint against the appellant. The allegation is that appellant with two or three other unknown persons, one of whom was holding a revolver, came to the complainant?s house and abused him in filthy language and attempted to assault him and when some neighbours arrived there the appellant and the other persons accompanying him fled the spot. The above allegation taking on its face value does not satisfy the ingredients of Sections 504 and 506 as has been enumerated by this Court in the above two judgments. The intentional insult must be of such a degree that should provoke a person to break the public peace or to commit any other offence. The mere allegation that appellant came and abused the complainant does not satisfy the ingredients as laid down in paragraph No.13 of the judgment of this Court in Fiona Shrikhande (supra).Now, reverting back to Section 506, which is offence of criminal intimidation, the principles laid down by Fiona Shrikhande (supra) has also to be applied when question of finding out as to whether the ingredients of offence are made or not. Here, the only allegation is that the appellant abused the complainant. For proving an offence under Section 506 IPC, what are ingredients which have to be proved by the prosecution? Ratanlal & Dhirajlal on Law of Crimes, 27 th Edition with regard to proof of offence states following:(i) That the accused threatened someThat such threat consisted of some injury to his person, reputation or property; or to the person, reputation or property of some one in whom he wasThat he did so with intent to cause alarm to that person; or to cause that person to do any act which he was not legally bound to do, or omit to do any act which he was legally entitled to do as a means of avoiding the execution of suchplain reading of the allegations in the complaint does not satisfy all the ingredients as noticed above.On the principles as enumerated by this Court in Fiona Shrikhande (supra) and Manik Taneja (supra), we are satisfied that ingredients of Sections 504 and 506 are not made out from the complaint filed by the complainant. When the complaint filed under Section 156(3) Cr.P.C., which has been treated as a complaint case, does not contain ingredients of Sections 504 and 506, we are of the view that Courts below committed error in rejecting the application of discharge filed by the appellant. In the facts of the present case, we are of the view that appellant was entitled to be discharged for the offence under Sections 504 and 506.
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Gandhi Sardar Vs. Union of India & Others
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Bhagwati, J.1. The petitioner challenges an order of detention made by the District Magistrate, 24-Parganas under sub-section (1) read with sub-section (2) of S.3 of the Maintenance of Internal Security Act,1971. The order of detention was made on 29th December, 1973 on the ground that it was necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. The grounds on which the order of detention was based referred only to one incident and that was described in the following terms:"On the night of 25/26-6-1973 at about 00.01 hrs. you along with your associates being armed with lethal weapons including fire arms raided the house of Ananta Kayal of Naltala under Diamond Harbour P.S. and looted away cash, ornaments, etc. At the time of operation you fired from your fire arms indiscriminately disregarding human lives and their safety. As a result the house owner Ananta Kaya1 and his close neighbour Ajit Kayal sustained serious gun shot injuries on their persons. Subsequently both of them expired in Diamond Harbour Hospital. You also brutally assaulted some of the inmates of the house of occurrence. Your action created such panic in the locality and the local people felt a sense of insecurity. Thus you acted in a manner prejudicial to the maintenance of public order."2. The petitioner contended that this was a solitary incident which could not possibly sustain the inference that the petitioner was acting in a manner prejudicial to the maintenance of public order and with a view to preventing him from so acting it was necessary to detain him and the satisfaction of the District Magistrate in this behalf was, therefore, not real and genuine and could not support the making of the order of detention. This contention is, however, without force. It stands concluded by a recent decision of this Court in Gora v. State of West Bengal, W. P. No. 379 of 1974, D/- 11-12-1974 = (reported in AIR 1975 SC 473 ).It appears from the facts of that case that the same incident which was relied upon in the present case for the purpose of making the order of detention also formed the basis of the making of the order of detention in that case. The petitioner in the present case and Gora who was the detenu in that case were associates who participated together in this incident. Gora challenged the validity of the order of detention made against him on the basis of this incident on the self-same ground on which the validity of the order of detention is assailed in the present case and that ground was negatived by this Court. Having regard to that decision, we must reject the challenge in the present case as well and sustain the order of detention.
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0[ds]This contention is, however, without force. It stands concluded by a recent decision of this Court in Gora v. State of West Bengal, W. P. No. 379 of 1974, D/= (reported in AIR 1975 SC 473 ).It appears from the facts of that case that the same incident which was relied upon in the present case for the purpose of making the order of detention also formed the basis of the making of the order of detention in that case. The petitioner in the present case and Gora who was the detenu in that case were associates who participated together in this incident. Gora challenged the validity of the order of detention made against him on the basis of this incident on theground on which the validity of the order of detention is assailed in the present case and that ground was negatived by this Court. Having regard to that decision, we must reject the challenge in the present case as well and sustain the order of detention.
| 0 | 512 | 185 |
### 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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Bhagwati, J.1. The petitioner challenges an order of detention made by the District Magistrate, 24-Parganas under sub-section (1) read with sub-section (2) of S.3 of the Maintenance of Internal Security Act,1971. The order of detention was made on 29th December, 1973 on the ground that it was necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. The grounds on which the order of detention was based referred only to one incident and that was described in the following terms:"On the night of 25/26-6-1973 at about 00.01 hrs. you along with your associates being armed with lethal weapons including fire arms raided the house of Ananta Kayal of Naltala under Diamond Harbour P.S. and looted away cash, ornaments, etc. At the time of operation you fired from your fire arms indiscriminately disregarding human lives and their safety. As a result the house owner Ananta Kaya1 and his close neighbour Ajit Kayal sustained serious gun shot injuries on their persons. Subsequently both of them expired in Diamond Harbour Hospital. You also brutally assaulted some of the inmates of the house of occurrence. Your action created such panic in the locality and the local people felt a sense of insecurity. Thus you acted in a manner prejudicial to the maintenance of public order."2. The petitioner contended that this was a solitary incident which could not possibly sustain the inference that the petitioner was acting in a manner prejudicial to the maintenance of public order and with a view to preventing him from so acting it was necessary to detain him and the satisfaction of the District Magistrate in this behalf was, therefore, not real and genuine and could not support the making of the order of detention. This contention is, however, without force. It stands concluded by a recent decision of this Court in Gora v. State of West Bengal, W. P. No. 379 of 1974, D/- 11-12-1974 = (reported in AIR 1975 SC 473 ).It appears from the facts of that case that the same incident which was relied upon in the present case for the purpose of making the order of detention also formed the basis of the making of the order of detention in that case. The petitioner in the present case and Gora who was the detenu in that case were associates who participated together in this incident. Gora challenged the validity of the order of detention made against him on the basis of this incident on the self-same ground on which the validity of the order of detention is assailed in the present case and that ground was negatived by this Court. Having regard to that decision, we must reject the challenge in the present case as well and sustain the order of detention.
### Response:
0
### Explanation:
This contention is, however, without force. It stands concluded by a recent decision of this Court in Gora v. State of West Bengal, W. P. No. 379 of 1974, D/= (reported in AIR 1975 SC 473 ).It appears from the facts of that case that the same incident which was relied upon in the present case for the purpose of making the order of detention also formed the basis of the making of the order of detention in that case. The petitioner in the present case and Gora who was the detenu in that case were associates who participated together in this incident. Gora challenged the validity of the order of detention made against him on the basis of this incident on theground on which the validity of the order of detention is assailed in the present case and that ground was negatived by this Court. Having regard to that decision, we must reject the challenge in the present case as well and sustain the order of detention.
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Kalva Suryanarayana Vs. Income Tax Officer, A-3 Ward, Hyderabad
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may be applied to any such assessment" 4. In support of this appeal, the argument was addressed that the appellant who was an individual assessee under Section 23 (5) could not be held liable for payment of the tax due from the ex partners of the partnership and there was no joint and several liability imposed under the provisions of the Act in such a case. In our opinion, the argument put forward on behalf of the appellant is well founded and must be accepted as correct. Under the scheme of the Act a partnership is a unit of assessment and the income of the partnership is computed as that of the unit irrespective of whether the partnership is registered or unregistered. After the income of the partnership is computed in a case where the partnership is registered under Section 26 A the share of each partner in the income of the partnership is determined and is added to his other income and the total income so computed is brought to tax. If the partnership is unregistered, the tax payable by the partnership is, except when the Income-tax Officer otherwise directs in the interests of revenue, determined as in the case of any other entity, and the demand for tax is made on the partnership itself.The result is that, if the partnership is registered, tax is collected from the partners individually and there is no levy of tax against the partnership. If the partnership is unregistered, the tax may, unless otherwise directed, be levied against the partnership. In either case, the machinery set up by Section 23 (5) is for assessment of tax payable on the income of the partnership. The income of the partnership is computed, but tax is assessed on that income on the partners or the partnership, according as the income is of a partnership registered or unregistered.In Income Tax Officer, Agra v. Radha Krishan, (1967) 66 ITR 590 = (AIR 1968 SC 46 ) it was argued that in the case of assessment made under Section 23 (5) (a) of the Act the tax liability was joint and several and the Income Tax Officer could recover from other partners the share of the tax attributable to one partner which cannot be recovered from him. The argument was rejected by this Court and it was pointed out that under the scheme of the Act tax is assessed individually against each partner and no tax is made payable by the partnership and therefore the principle of joint and several liability has no application. It was also held in that case that there is nothing in S. 44 of the Act which supports the contention that for payment of tax assessed against a partner of a registered partnership under Section 28 (5) (a) another partner becomes liable jointly and severally with the first partner to pay tax. In our opinion, the principle of this decision governs the present case also. It is true that in the present case we are dealing with the assessment of a partnership after its dissolution and S.44 of the Act is directly applicable but this circumstance makes no difference to the application of the principle laid down in (1967) 66 ITR 590 =(AIR 1968 SC 46). The object of enacting S. 44 is to prevent evasion of tax by discontinuance of the business of a firm or dissolution of an association of persons. On discontinuance of the business of a firm or disolution of the association of persons, it is declared that every person who was at the time of such discontinuance or dissolution, a partner of such firm or a member of such association shall, in respect of the income, profits and gains of the partnership or association be jointly an severally liable to assessment and for the amount of tax payable.There is, however, nothing in the section which supports the argument of the respondent that for payment of tax assessed against the partners of a registered partnership individually under S. 23 (5) (a) of the Act another partner becomes liable jointly and severally with that first partner to pay tax. The entire scheme of taxing the income of a registered partnership in the hands of individual partners is inconsistent with any argument that for payment of tax assessed against a partner, other partners are liable. It should be noticed that the tax assessed against a partner of a registered partnership is assessed on his total income inclusive of the share in the income of the partnership and the rate applicable is determined by the quantum of the total income of the partner. Section 44 on the contrary contemplates cases of joint and several assessment of income of the business of a partnership which is discontinued. When such assessment is made, each member of the partnership may be liable to pay jointly and severally tax payable by the partnership. But when under the scheme of the Act tax is assessed individually against each partner, and no tax is made payable by the partnership, the principle of joint and, several liability under Section 44 cannot be invoked. It is true that under the Partnership Law the contractual obligations of a partnership are enforceable jointly and severally against the partners. But the liability to pay income-tax is statutory and does not arise out of any contract and its incidence will be determined by the provisions of the statute. If the statute which imposes liability has not made it enforceable jointly and severally against the partners no such implication can be drawn merely because the contractual liabilities of a partnership may be jointly and severally enforced against the partners.5. For these reasons we hold that the respondent had no jurisdiction to issue the impugned notice dated June 22, 1961 under Section 45 of the Act and the proceedings taken against the appellant in pursuance of that notice should be quashed by grant of a writ in the nature of certiorari under Article 226 of the Constitution.
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1[ds]4. In support of this appeal, the argument was addressed that the appellant who was an individual assessee under Section 23 (5) could not be held liable for payment of the tax due from the ex partners of the partnership and there was no joint and several liability imposed under the provisions of the Act in such a case.In our opinion, the argument put forward on behalf of the appellant is well founded and must be accepted asIncome Tax Officer, Agra v. Radha Krishan, (1967) 66 ITR 590 = (AIR 1968 SC 46 ) it was argued that in the case of assessment made under Section 23 (5) (a) of the Act the tax liability was joint and several and the Income Tax Officer could recover from other partners the share of the tax attributable to one partner which cannot be recovered from him. The argument was rejected by this Court and it was pointed out that under the scheme of the Act tax is assessed individually against each partner and no tax is made payable by the partnership and therefore the principle of joint and several liability has no application. It was also held in that case that there is nothing in S. 44 of the Act which supports the contention that for payment of tax assessed against a partner of a registered partnership under Section 28 (5) (a) another partner becomes liable jointly and severally with the first partner to pay tax. In our opinion, the principle of this decision governs the present case also. It is true that in the present case we are dealing with the assessment of a partnership after its dissolution and S.44 of the Act is directly applicable but this circumstance makes no difference to the application of the principle laid down in (1967) 66 ITR 590 =(AIR 1968 SCis, however, nothing in the section which supports the argument of the respondent that for payment of tax assessed against the partners of a registered partnership individually under S. 23 (5) (a) of the Act another partner becomes liable jointly and severally with that first partner to pay tax. The entire scheme of taxing the income of a registered partnership in the hands of individual partners is inconsistent with any argument that for payment of tax assessed against a partner, other partners are liable.5. For these reasons we hold that the respondent had no jurisdiction to issue the impugned notice dated June 22, 1961 under Section 45 of the Act and the proceedings taken against the appellant in pursuance of that notice should be quashed by grant of a writ in the nature of certiorari under Article 226 of the Constitution.
| 1 | 1,777 | 490 |
### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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may be applied to any such assessment" 4. In support of this appeal, the argument was addressed that the appellant who was an individual assessee under Section 23 (5) could not be held liable for payment of the tax due from the ex partners of the partnership and there was no joint and several liability imposed under the provisions of the Act in such a case. In our opinion, the argument put forward on behalf of the appellant is well founded and must be accepted as correct. Under the scheme of the Act a partnership is a unit of assessment and the income of the partnership is computed as that of the unit irrespective of whether the partnership is registered or unregistered. After the income of the partnership is computed in a case where the partnership is registered under Section 26 A the share of each partner in the income of the partnership is determined and is added to his other income and the total income so computed is brought to tax. If the partnership is unregistered, the tax payable by the partnership is, except when the Income-tax Officer otherwise directs in the interests of revenue, determined as in the case of any other entity, and the demand for tax is made on the partnership itself.The result is that, if the partnership is registered, tax is collected from the partners individually and there is no levy of tax against the partnership. If the partnership is unregistered, the tax may, unless otherwise directed, be levied against the partnership. In either case, the machinery set up by Section 23 (5) is for assessment of tax payable on the income of the partnership. The income of the partnership is computed, but tax is assessed on that income on the partners or the partnership, according as the income is of a partnership registered or unregistered.In Income Tax Officer, Agra v. Radha Krishan, (1967) 66 ITR 590 = (AIR 1968 SC 46 ) it was argued that in the case of assessment made under Section 23 (5) (a) of the Act the tax liability was joint and several and the Income Tax Officer could recover from other partners the share of the tax attributable to one partner which cannot be recovered from him. The argument was rejected by this Court and it was pointed out that under the scheme of the Act tax is assessed individually against each partner and no tax is made payable by the partnership and therefore the principle of joint and several liability has no application. It was also held in that case that there is nothing in S. 44 of the Act which supports the contention that for payment of tax assessed against a partner of a registered partnership under Section 28 (5) (a) another partner becomes liable jointly and severally with the first partner to pay tax. In our opinion, the principle of this decision governs the present case also. It is true that in the present case we are dealing with the assessment of a partnership after its dissolution and S.44 of the Act is directly applicable but this circumstance makes no difference to the application of the principle laid down in (1967) 66 ITR 590 =(AIR 1968 SC 46). The object of enacting S. 44 is to prevent evasion of tax by discontinuance of the business of a firm or dissolution of an association of persons. On discontinuance of the business of a firm or disolution of the association of persons, it is declared that every person who was at the time of such discontinuance or dissolution, a partner of such firm or a member of such association shall, in respect of the income, profits and gains of the partnership or association be jointly an severally liable to assessment and for the amount of tax payable.There is, however, nothing in the section which supports the argument of the respondent that for payment of tax assessed against the partners of a registered partnership individually under S. 23 (5) (a) of the Act another partner becomes liable jointly and severally with that first partner to pay tax. The entire scheme of taxing the income of a registered partnership in the hands of individual partners is inconsistent with any argument that for payment of tax assessed against a partner, other partners are liable. It should be noticed that the tax assessed against a partner of a registered partnership is assessed on his total income inclusive of the share in the income of the partnership and the rate applicable is determined by the quantum of the total income of the partner. Section 44 on the contrary contemplates cases of joint and several assessment of income of the business of a partnership which is discontinued. When such assessment is made, each member of the partnership may be liable to pay jointly and severally tax payable by the partnership. But when under the scheme of the Act tax is assessed individually against each partner, and no tax is made payable by the partnership, the principle of joint and, several liability under Section 44 cannot be invoked. It is true that under the Partnership Law the contractual obligations of a partnership are enforceable jointly and severally against the partners. But the liability to pay income-tax is statutory and does not arise out of any contract and its incidence will be determined by the provisions of the statute. If the statute which imposes liability has not made it enforceable jointly and severally against the partners no such implication can be drawn merely because the contractual liabilities of a partnership may be jointly and severally enforced against the partners.5. For these reasons we hold that the respondent had no jurisdiction to issue the impugned notice dated June 22, 1961 under Section 45 of the Act and the proceedings taken against the appellant in pursuance of that notice should be quashed by grant of a writ in the nature of certiorari under Article 226 of the Constitution.
### Response:
1
### Explanation:
4. In support of this appeal, the argument was addressed that the appellant who was an individual assessee under Section 23 (5) could not be held liable for payment of the tax due from the ex partners of the partnership and there was no joint and several liability imposed under the provisions of the Act in such a case.In our opinion, the argument put forward on behalf of the appellant is well founded and must be accepted asIncome Tax Officer, Agra v. Radha Krishan, (1967) 66 ITR 590 = (AIR 1968 SC 46 ) it was argued that in the case of assessment made under Section 23 (5) (a) of the Act the tax liability was joint and several and the Income Tax Officer could recover from other partners the share of the tax attributable to one partner which cannot be recovered from him. The argument was rejected by this Court and it was pointed out that under the scheme of the Act tax is assessed individually against each partner and no tax is made payable by the partnership and therefore the principle of joint and several liability has no application. It was also held in that case that there is nothing in S. 44 of the Act which supports the contention that for payment of tax assessed against a partner of a registered partnership under Section 28 (5) (a) another partner becomes liable jointly and severally with the first partner to pay tax. In our opinion, the principle of this decision governs the present case also. It is true that in the present case we are dealing with the assessment of a partnership after its dissolution and S.44 of the Act is directly applicable but this circumstance makes no difference to the application of the principle laid down in (1967) 66 ITR 590 =(AIR 1968 SCis, however, nothing in the section which supports the argument of the respondent that for payment of tax assessed against the partners of a registered partnership individually under S. 23 (5) (a) of the Act another partner becomes liable jointly and severally with that first partner to pay tax. The entire scheme of taxing the income of a registered partnership in the hands of individual partners is inconsistent with any argument that for payment of tax assessed against a partner, other partners are liable.5. For these reasons we hold that the respondent had no jurisdiction to issue the impugned notice dated June 22, 1961 under Section 45 of the Act and the proceedings taken against the appellant in pursuance of that notice should be quashed by grant of a writ in the nature of certiorari under Article 226 of the Constitution.
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Netherlands Steam Navigation Company Ltd Vs. The Commissioner Of Income-Tax, West Bengal
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method, it was common ground, was properly applicable to the determination of taxable income of the assessee. That method requires as a first step, determination of the total profits of the business of the assessee in accordance with the provisions of the Indian Income-tax Act, the next step is to determine the proportion between the receipts accruing or arising within the taxable territories and the total receipts of the business; and the third step is to determine the income, profits or gains by the application of the proportion for the purpose of assessment to income-tax.This method ordains that the fraction which the total profits bear to the total world receipts is to be applied to the Indian receipts for determining the taxable profits. The income so determined will be the taxable income without any further allowances, because the permissible allowance will all enter the computation of the world income and income taxable under the Income-tax Act is also a fraction thereof.11. Apparently the Income-tax Officer did not apply the second method under Rule 33 in computing the taxable income of the assessee, for under that method in determining the taxable income the receipts accrued or arising in India had to be multiplied by the proportion between the total profits of the business and the total receipts of the world business.12. Counsel for the assessee asked us to assume that the profits computed by the Income-tax Officer according to the formula adopted by him are profits determined by the second method in Rule 33, and claimed on that footing that besides normal depreciation, additional depreciation ought also to have been taken into account and the taxable profits of the assessee determined on that basis. But that assumption cannot be made. One of the essential conditions of the applicability of the second method in Rule 33 is the determination of the total world profits of the assessee under the Indian Income-tax Act, and reduction of the Indian taxable profits by the application of the appropriate fraction. The assessee has not produced its books of account of its world trade to enable the Income-tax Officer to determine its total taxable profits arising from its world business.13. There was apparently no clear appreciation of the true import of the second method under Rule 33 before the Departmental Authorities and the Tribunal. Counsel for the assessee suggested that his client may be willing to produce before the Income-tax Officer the books of account of the relevant years for computing the total world profits according to the Indian Income-tax Act, 1922, and the benefit of additional depreciation may then be allowed to the assessee in computing the total profits under the Indian Income-tax Act. Counsel for the Commissioner expressed his willingness to the adoption of that course. Counsel requested us to adjourn the hearing to enable them to obtain instructions from their respective clients, and the hearing was accordingly adjourned for three weeks. But ultimately counsel for the assessee informed us that his client may not be able to bring before the Income-tax Officer the books of account of their world trade.14. The Income-tax Officer has evolved a special formula for determining the profits which is not the second method in Rule 33 of the Income-tax Rules. The assessee has not challenged the correctness of that method, nor has the Department. In the application of that formula, normal depreciation and trade expenses are deducted from the total gross earning in the Indian trade, but not the additional depreciation.15. Clearly the Income-tax Officer did not in computing the taxable income resort to the second method in Rule 33 of the Income-tax Rules. We are exercising in these appeals advisory jurisdiction, and are only called upon to answer the question referred by the Tribunal. We are incompetent to decide whether computation of the taxable income by the Income-tax Officer by the application of the formula evolved by him is correct; that question is not before us. We are only concerned to determine the validity of the claim for admitting additional depreciation in the computation of the taxable income of the assessee by the method adopted by the Income-tax Officer. Additional depreciation is a statutory allowance in the determination of taxable profits under Section 10 of the Act, andin the case of a non-resident where actual income cannot be determined, and resort is had to Rule 33, not when an empirical method is adopted for computation of the taxable income.16. We are however unable to agree with the observations of the High Court that "no relief in any shape or form can be enjoyed by any assessee under the Indian Income-tax Act in respect of a source of income, unless the income from that source is taken into consideration for the purpose of that Act. In the reference before us the income in question was outside the purview of assessment under the Indian Income-tax Act." That was not the plea of the Commissioner. The source of the income of the assessee charged to tax was business; it was not income from any other source. The Commissioner and the assessee were ad idem on that matter. The only dispute was whether additional depreciation was admissible in the computation of the taxable income, when the taxable business profits were determined by the Income-tax Officer by the method evolved by him.17. It was common ground that the appropriate method for determining the profits was the second method in Rule 33. But that method was never applied; if it was applied in the computation of the world profits of the assessee, it would have been necessary to allow the various depreciation allowances. The assessee could not, while accepting determination of taxable profits in a manner not warranted by the second method under Rule 33, claim that additional depreciation should be allowed. The answer to the question therefore is that additional depreciation is not admissible as an allowance in the computation of the taxable income by the special formula adopted by the Income-tax Officer.
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0[ds]The assessee is a non-resident Company. It maintains a Branch Office in Calcutta; but on that account the Indian business of the assessee cannot be regarded as business distinct from its world business. It was not so treated by the Income-tax Officer, or by the Appellate Assistant Commissioner. In computing profits or gains of business carried on by an assessee, normal depreciation under Section 10 (2) (vi) and additional depreciation under Section 10 (2) (vi-a) are undoubtedly admissible in the conditions and to the extent allowed under the two clauses.The second method, it was common ground, was properly applicable to the determination of taxable income of the assessee. That method requires as a first step, determination of the total profits of the business of the assessee in accordance with the provisions of the Indian Income-tax Act, the next step is to determine the proportion between the receipts accruing or arising within the taxable territories and the total receipts of the business; and the third step is to determine the income, profits or gains by the application of the proportion for the purpose of assessment to income-tax.This method ordains that the fraction which the total profits bear to the total world receipts is to be applied to the Indian receipts for determining the taxable profits. The income so determined will be the taxable income without any further allowances, because the permissible allowance will all enter the computation of the world income and income taxable under the Income-tax Act is also a fraction thereof.11. Apparently the Income-tax Officer did not apply the second method under Rule 33 in computing the taxable income of the assessee, for under that method in determining the taxable income the receipts accrued or arising in India had to be multiplied by the proportion between the total profits of the business and the total receipts of the worldthat assumption cannot be made. One of the essential conditions of the applicability of the second method in Rule 33 is the determination of the total world profits of the assessee under the Indian Income-tax Act, and reduction of the Indian taxable profits by the application of the appropriate fraction. The assessee has not produced its books of account of its world trade to enable the Income-tax Officer to determine its total taxable profits arising from its world business.The Income-tax Officer has evolved a special formula for determining the profits which is not the second method in Rule 33 of the Income-tax Rules. The assessee has not challenged the correctness of that method, nor has the Department. In the application of that formula, normal depreciation and trade expenses are deducted from the total gross earning in the Indian trade, but not the additional depreciation.15. Clearly the Income-tax Officer did not in computing the taxable income resort to the second method in Rule 33 of the Income-tax Rules. We are exercising in these appeals advisory jurisdiction, and are only called upon to answer the question referred by the Tribunal. We are incompetent to decide whether computation of the taxable income by the Income-tax Officer by the application of the formula evolved by him is correct; that question is not before us. We are only concerned to determine the validity of the claim for admitting additional depreciation in the computation of the taxable income of the assessee by the method adopted by the Income-tax Officer. Additional depreciation is a statutory allowance in the determination of taxable profits under Section 10 of the Act, andin the case of a non-resident where actual income cannot be determined, and resort is had to Rule 33, not when an empirical method is adopted for computation of the taxable income.16. We are however unable to agree with the observations of the High Court that "no relief in any shape or form can be enjoyed by any assessee under the Indian Income-tax Act in respect of a source of income, unless the income from that source is taken into consideration for the purpose of that Act. In the reference before us the income in question was outside the purview of assessment under the Indian Income-tax Act." That was not the plea of the Commissioner. The source of the income of the assessee charged to tax was business; it was not income from any other source. The Commissioner and the assessee were ad idem on that matter. The only dispute was whether additional depreciation was admissible in the computation of the taxable income, when the taxable business profits were determined by the Income-tax Officer by the method evolved by him.17. It was common ground that the appropriate method for determining the profits was the second method in Rule 33. But that method was never applied; if it was applied in the computation of the world profits of the assessee, it would have been necessary to allow the various depreciation allowances. The assessee could not, while accepting determination of taxable profits in a manner not warranted by the second method under Rule 33, claim that additional depreciation should be allowed. The answer to the question therefore is that additional depreciation is not admissible as an allowance in the computation of the taxable income by the special formula adopted by the Income-taxt assumption cannot be made. One of the essential conditions of the applicability of the second method in Rule 33 is the determination of the total world profits of the assessee under the IndianAct, and reduction of the Indian taxable profits by the application of the appropriate fraction. The assessee has not produced its books of account of its world trade to enable theOfficer to determine its total taxable profits arising from its world business.
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### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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method, it was common ground, was properly applicable to the determination of taxable income of the assessee. That method requires as a first step, determination of the total profits of the business of the assessee in accordance with the provisions of the Indian Income-tax Act, the next step is to determine the proportion between the receipts accruing or arising within the taxable territories and the total receipts of the business; and the third step is to determine the income, profits or gains by the application of the proportion for the purpose of assessment to income-tax.This method ordains that the fraction which the total profits bear to the total world receipts is to be applied to the Indian receipts for determining the taxable profits. The income so determined will be the taxable income without any further allowances, because the permissible allowance will all enter the computation of the world income and income taxable under the Income-tax Act is also a fraction thereof.11. Apparently the Income-tax Officer did not apply the second method under Rule 33 in computing the taxable income of the assessee, for under that method in determining the taxable income the receipts accrued or arising in India had to be multiplied by the proportion between the total profits of the business and the total receipts of the world business.12. Counsel for the assessee asked us to assume that the profits computed by the Income-tax Officer according to the formula adopted by him are profits determined by the second method in Rule 33, and claimed on that footing that besides normal depreciation, additional depreciation ought also to have been taken into account and the taxable profits of the assessee determined on that basis. But that assumption cannot be made. One of the essential conditions of the applicability of the second method in Rule 33 is the determination of the total world profits of the assessee under the Indian Income-tax Act, and reduction of the Indian taxable profits by the application of the appropriate fraction. The assessee has not produced its books of account of its world trade to enable the Income-tax Officer to determine its total taxable profits arising from its world business.13. There was apparently no clear appreciation of the true import of the second method under Rule 33 before the Departmental Authorities and the Tribunal. Counsel for the assessee suggested that his client may be willing to produce before the Income-tax Officer the books of account of the relevant years for computing the total world profits according to the Indian Income-tax Act, 1922, and the benefit of additional depreciation may then be allowed to the assessee in computing the total profits under the Indian Income-tax Act. Counsel for the Commissioner expressed his willingness to the adoption of that course. Counsel requested us to adjourn the hearing to enable them to obtain instructions from their respective clients, and the hearing was accordingly adjourned for three weeks. But ultimately counsel for the assessee informed us that his client may not be able to bring before the Income-tax Officer the books of account of their world trade.14. The Income-tax Officer has evolved a special formula for determining the profits which is not the second method in Rule 33 of the Income-tax Rules. The assessee has not challenged the correctness of that method, nor has the Department. In the application of that formula, normal depreciation and trade expenses are deducted from the total gross earning in the Indian trade, but not the additional depreciation.15. Clearly the Income-tax Officer did not in computing the taxable income resort to the second method in Rule 33 of the Income-tax Rules. We are exercising in these appeals advisory jurisdiction, and are only called upon to answer the question referred by the Tribunal. We are incompetent to decide whether computation of the taxable income by the Income-tax Officer by the application of the formula evolved by him is correct; that question is not before us. We are only concerned to determine the validity of the claim for admitting additional depreciation in the computation of the taxable income of the assessee by the method adopted by the Income-tax Officer. Additional depreciation is a statutory allowance in the determination of taxable profits under Section 10 of the Act, andin the case of a non-resident where actual income cannot be determined, and resort is had to Rule 33, not when an empirical method is adopted for computation of the taxable income.16. We are however unable to agree with the observations of the High Court that "no relief in any shape or form can be enjoyed by any assessee under the Indian Income-tax Act in respect of a source of income, unless the income from that source is taken into consideration for the purpose of that Act. In the reference before us the income in question was outside the purview of assessment under the Indian Income-tax Act." That was not the plea of the Commissioner. The source of the income of the assessee charged to tax was business; it was not income from any other source. The Commissioner and the assessee were ad idem on that matter. The only dispute was whether additional depreciation was admissible in the computation of the taxable income, when the taxable business profits were determined by the Income-tax Officer by the method evolved by him.17. It was common ground that the appropriate method for determining the profits was the second method in Rule 33. But that method was never applied; if it was applied in the computation of the world profits of the assessee, it would have been necessary to allow the various depreciation allowances. The assessee could not, while accepting determination of taxable profits in a manner not warranted by the second method under Rule 33, claim that additional depreciation should be allowed. The answer to the question therefore is that additional depreciation is not admissible as an allowance in the computation of the taxable income by the special formula adopted by the Income-tax Officer.
### Response:
0
### Explanation:
The assessee is a non-resident Company. It maintains a Branch Office in Calcutta; but on that account the Indian business of the assessee cannot be regarded as business distinct from its world business. It was not so treated by the Income-tax Officer, or by the Appellate Assistant Commissioner. In computing profits or gains of business carried on by an assessee, normal depreciation under Section 10 (2) (vi) and additional depreciation under Section 10 (2) (vi-a) are undoubtedly admissible in the conditions and to the extent allowed under the two clauses.The second method, it was common ground, was properly applicable to the determination of taxable income of the assessee. That method requires as a first step, determination of the total profits of the business of the assessee in accordance with the provisions of the Indian Income-tax Act, the next step is to determine the proportion between the receipts accruing or arising within the taxable territories and the total receipts of the business; and the third step is to determine the income, profits or gains by the application of the proportion for the purpose of assessment to income-tax.This method ordains that the fraction which the total profits bear to the total world receipts is to be applied to the Indian receipts for determining the taxable profits. The income so determined will be the taxable income without any further allowances, because the permissible allowance will all enter the computation of the world income and income taxable under the Income-tax Act is also a fraction thereof.11. Apparently the Income-tax Officer did not apply the second method under Rule 33 in computing the taxable income of the assessee, for under that method in determining the taxable income the receipts accrued or arising in India had to be multiplied by the proportion between the total profits of the business and the total receipts of the worldthat assumption cannot be made. One of the essential conditions of the applicability of the second method in Rule 33 is the determination of the total world profits of the assessee under the Indian Income-tax Act, and reduction of the Indian taxable profits by the application of the appropriate fraction. The assessee has not produced its books of account of its world trade to enable the Income-tax Officer to determine its total taxable profits arising from its world business.The Income-tax Officer has evolved a special formula for determining the profits which is not the second method in Rule 33 of the Income-tax Rules. The assessee has not challenged the correctness of that method, nor has the Department. In the application of that formula, normal depreciation and trade expenses are deducted from the total gross earning in the Indian trade, but not the additional depreciation.15. Clearly the Income-tax Officer did not in computing the taxable income resort to the second method in Rule 33 of the Income-tax Rules. We are exercising in these appeals advisory jurisdiction, and are only called upon to answer the question referred by the Tribunal. We are incompetent to decide whether computation of the taxable income by the Income-tax Officer by the application of the formula evolved by him is correct; that question is not before us. We are only concerned to determine the validity of the claim for admitting additional depreciation in the computation of the taxable income of the assessee by the method adopted by the Income-tax Officer. Additional depreciation is a statutory allowance in the determination of taxable profits under Section 10 of the Act, andin the case of a non-resident where actual income cannot be determined, and resort is had to Rule 33, not when an empirical method is adopted for computation of the taxable income.16. We are however unable to agree with the observations of the High Court that "no relief in any shape or form can be enjoyed by any assessee under the Indian Income-tax Act in respect of a source of income, unless the income from that source is taken into consideration for the purpose of that Act. In the reference before us the income in question was outside the purview of assessment under the Indian Income-tax Act." That was not the plea of the Commissioner. The source of the income of the assessee charged to tax was business; it was not income from any other source. The Commissioner and the assessee were ad idem on that matter. The only dispute was whether additional depreciation was admissible in the computation of the taxable income, when the taxable business profits were determined by the Income-tax Officer by the method evolved by him.17. It was common ground that the appropriate method for determining the profits was the second method in Rule 33. But that method was never applied; if it was applied in the computation of the world profits of the assessee, it would have been necessary to allow the various depreciation allowances. The assessee could not, while accepting determination of taxable profits in a manner not warranted by the second method under Rule 33, claim that additional depreciation should be allowed. The answer to the question therefore is that additional depreciation is not admissible as an allowance in the computation of the taxable income by the special formula adopted by the Income-taxt assumption cannot be made. One of the essential conditions of the applicability of the second method in Rule 33 is the determination of the total world profits of the assessee under the IndianAct, and reduction of the Indian taxable profits by the application of the appropriate fraction. The assessee has not produced its books of account of its world trade to enable theOfficer to determine its total taxable profits arising from its world business.
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Commssioner Of Income-Tax, Bombay,South Poona Vs. Murlidhar Jhawar & Purna Ginning Andpressing Factory, Dhar
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On the terms of the Section the tax can be levied on either of the said two entities according to the provisions of the Act."The same principle would apply to the case of assessment of partners individually of an unregistered firm. The partners may be assessed individually or they may be assessed collectively in the status of an unregistered firm: the Income-tax Officer cannot however seek to assess the one income-twice once in the hands of the partners and again in the hands of the unregistered firm.4. Mr. Viswanatha Sastri for the Department contends that the Income-tax Officer making the first assessment of the three parties to the joint venture was not informed that the three parties constituted an unregistered firm and therefore the Income-tax Officer was in law competent to assess the entity which was in truth liable to be assessed to tax, and in making the earlier order of assessment he cannot be deemed to have exercised an option which precluded him from assessing the income of the three parties as an unregistered firm. It is true as pointed out by this Court in a recent judgment: Income-tax Officer, A-Ward, Lucknow v. Bachulal Kapoor, C. A. No. 638 of 1961, dated 14-12-1965: (AIR 1966 SC 1148 ) that in dealing with a claim made by the Income-tax Officer to assess income into the hands of a Hindu undivided family, after assessing it in the hands of the members on the footing that the family was severed the "exercise of the option to do one or other of the two alternatives open to an officer assumes knowledge on his part of the existence of two alternatives". But on the materials before the Court we are unable to accept the plea that the Income-tax Officer was not in possession of information relying on which, if he desired, he could have assessed the three parties collectively as an unregistered firm. There is no warrant for the assumption which counsel for the Department asks us to make, that information about the true state of affairs was not with the Income-tax Officer when the first assessment was made by him.5. The transactions in various commodities were carried on by Pannalal and Govindbai who were partners of Messrs. Purna Ginning and Pressing Factory and by Murlidhar. The Income-tax Officer had assessed the income of the three parties separately and added to the individual income of each party his or her share in the profits of the joint venture. The Income-tax Officer had information that the three parties, two of whom were members of a registered trading firm, had effected transactions in groundnut, cotton and cotton-seed. Apparently returns in respect of these trading transactions were separately made and a third share was included in the individual assessment of each of the three parties. Apart from an association of individuals or a firm, the Income-tax Act does not recognize a collection of individuals as an entity capable of being assessed to tax. The three parties were not a registered firm, and they could be assessed to tax collectively as an association of individuals or as an unregistered firm if the relation between them was of partners. When Income-tax Officer assessed the three parties separately he unquestionably exercised an option knowing that they had entered into a trading transaction in which they were jointly interested. The departmental authorities have not chosen to place before the Court the returns made by the three parties. and even the orders of assessment individually made against the three parties by the Income-tax Officer are not before this Court. Only the final order of the Income-tax Officer which directs:"Add : Joint venture income with Messrs. Purna Ginning and Pressing Factory taken provisionally subject to rectification after the assessment of the joint venture,"is incorporated in the order of the Appellate Assistant Commissioner.6. It is common ground that the assessment made by the Income-tax Officer was not a "provisional assessment" within the meaning of S. 23B. It would be reasonable to hold that the income of three parties was assessed under S. 23 (3) of the Income-tax Act for the income was earned in commercial transactions in different commodities. The Income-tax Officer in assessing the income of the joint venture could not have proceeded without scrutinizing the accounts and other relevant documentary evidence and without determining the shares of the three parties to the joint venture. In determining the shares of the three parties, he had also to determine the contractual relation which gave rise to the right to a share in the profit. Again the order of the Income-tax Officer clearly indicates that he was cognizant of the fact that the income of the joint venture was taxable collectively, but he thought that he could in law in the first instance make an "assessment provisionally" of the three parties separately and then rectify the assessment later. In so holding the Income-tax Officer may have committed an error of law, but he does not appear to have laboured under an ignorance of facts. A survey of the contention raised before the departmental authorities, the Tribunal and the High Court makes that inference irresistible. The Income-tax Officer who made the assessment under challenge did not state that when the first assessment was made, the facts which had a bearing on the true relationship between the three parties were not placed, and it was not even argued before the Appellate Assistant Commissioner and the Tribunal that those facts were not placed before the Income-tax Officer. That Tribunal held, relying upon J. C. Thakkar v. Commr. of Income-tax, (1955) 27 ITR 658 : (S) AIR 1955 Bom 34) and Joti Prasad Agarwal v. Income-tax Officer, B-Ward, Mathura, (1959) 87 ITR 107 (AIR 1959 All 456) , that once the option is exercised for assessing the individual partner and including his share of profits in the firm in his assessment, it is not open to the Department to assess the same income as income of the unregistered firm.7.
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0[ds]But on the materials before the Court we are unable to accept the plea that the Income-tax Officer was not in possession of information relying on which, if he desired, he could have assessed the three parties collectively as an unregistered firm. There is no warrant for the assumption which counsel for the Department asks us to make, that information about the true state of affairs was not with the Income-tax Officer when the first assessment was made bysame principle would apply to the case of assessment of partners individually of an unregistered firm. The partners may be assessed individually or they may be assessed collectively in the status of an unregistered firm: the Income-tax Officer cannot however seek to assess the one income-twice once in the hands of the partners and again in the hands of the unregisteredfrom an association of individuals or a firm, the Income-tax Act does not recognize a collection of individuals as an entity capable of being assessed to tax. The three parties were not a registered firm, and they could be assessed to tax collectively as an association of individuals or as an unregistered firm if the relation between them was of partners.It is common ground that the assessment made by theOfficer was not a "provisional assessment" within the meaning of S. 23B. It would be reasonable to hold that the income of three parties was assessed under S. 23 (3) of theAct for the income was earned in commercial transactions in different commodities. TheOfficer in assessing the income of the joint venture could not have proceeded without scrutinizing the accounts and other relevant documentary evidence and without determining the shares of the three parties to the joint venture. In determining the shares of the three parties, he had also to determine the contractual relation which gave rise to the right to a share in the profit. Again the order of theOfficer clearly indicates that he was cognizant of the fact that the income of the joint venture was taxable collectively, but he thought that he could in law in the first instance make an "assessment provisionally" of the three parties separately and then rectify the assessment later. In so holding theOfficer may have committed an error of law, but he does not appear to have laboured under an ignorance of facts. A survey of the contention raised before the departmental authorities, the Tribunal and the High Court makes that inference irresistible. TheOfficer who made the assessment under challenge did not state that when the first assessment was made, the facts which had a bearing on the true relationship between the three parties were not placed, and it was not even argued before the Appellate Assistant Commissioner and the Tribunal that those facts were not placed before theOfficer. That Tribunal held, relying upon J. C. Thakkar v. Commr. of(1955) 27 ITR 658 : (S) AIR 1955 Bom 34) and Joti Prasad Agarwal v.d, Mathura, (1959) 87 ITR 107 (AIR 1959 All 456) , that once the option is exercised for assessing the individual partner and including his share of profits in the firm in his assessment, it is not open to the Department to assess the same income as income of the unregistered firm.
| 0 | 1,618 | 590 |
### 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:
On the terms of the Section the tax can be levied on either of the said two entities according to the provisions of the Act."The same principle would apply to the case of assessment of partners individually of an unregistered firm. The partners may be assessed individually or they may be assessed collectively in the status of an unregistered firm: the Income-tax Officer cannot however seek to assess the one income-twice once in the hands of the partners and again in the hands of the unregistered firm.4. Mr. Viswanatha Sastri for the Department contends that the Income-tax Officer making the first assessment of the three parties to the joint venture was not informed that the three parties constituted an unregistered firm and therefore the Income-tax Officer was in law competent to assess the entity which was in truth liable to be assessed to tax, and in making the earlier order of assessment he cannot be deemed to have exercised an option which precluded him from assessing the income of the three parties as an unregistered firm. It is true as pointed out by this Court in a recent judgment: Income-tax Officer, A-Ward, Lucknow v. Bachulal Kapoor, C. A. No. 638 of 1961, dated 14-12-1965: (AIR 1966 SC 1148 ) that in dealing with a claim made by the Income-tax Officer to assess income into the hands of a Hindu undivided family, after assessing it in the hands of the members on the footing that the family was severed the "exercise of the option to do one or other of the two alternatives open to an officer assumes knowledge on his part of the existence of two alternatives". But on the materials before the Court we are unable to accept the plea that the Income-tax Officer was not in possession of information relying on which, if he desired, he could have assessed the three parties collectively as an unregistered firm. There is no warrant for the assumption which counsel for the Department asks us to make, that information about the true state of affairs was not with the Income-tax Officer when the first assessment was made by him.5. The transactions in various commodities were carried on by Pannalal and Govindbai who were partners of Messrs. Purna Ginning and Pressing Factory and by Murlidhar. The Income-tax Officer had assessed the income of the three parties separately and added to the individual income of each party his or her share in the profits of the joint venture. The Income-tax Officer had information that the three parties, two of whom were members of a registered trading firm, had effected transactions in groundnut, cotton and cotton-seed. Apparently returns in respect of these trading transactions were separately made and a third share was included in the individual assessment of each of the three parties. Apart from an association of individuals or a firm, the Income-tax Act does not recognize a collection of individuals as an entity capable of being assessed to tax. The three parties were not a registered firm, and they could be assessed to tax collectively as an association of individuals or as an unregistered firm if the relation between them was of partners. When Income-tax Officer assessed the three parties separately he unquestionably exercised an option knowing that they had entered into a trading transaction in which they were jointly interested. The departmental authorities have not chosen to place before the Court the returns made by the three parties. and even the orders of assessment individually made against the three parties by the Income-tax Officer are not before this Court. Only the final order of the Income-tax Officer which directs:"Add : Joint venture income with Messrs. Purna Ginning and Pressing Factory taken provisionally subject to rectification after the assessment of the joint venture,"is incorporated in the order of the Appellate Assistant Commissioner.6. It is common ground that the assessment made by the Income-tax Officer was not a "provisional assessment" within the meaning of S. 23B. It would be reasonable to hold that the income of three parties was assessed under S. 23 (3) of the Income-tax Act for the income was earned in commercial transactions in different commodities. The Income-tax Officer in assessing the income of the joint venture could not have proceeded without scrutinizing the accounts and other relevant documentary evidence and without determining the shares of the three parties to the joint venture. In determining the shares of the three parties, he had also to determine the contractual relation which gave rise to the right to a share in the profit. Again the order of the Income-tax Officer clearly indicates that he was cognizant of the fact that the income of the joint venture was taxable collectively, but he thought that he could in law in the first instance make an "assessment provisionally" of the three parties separately and then rectify the assessment later. In so holding the Income-tax Officer may have committed an error of law, but he does not appear to have laboured under an ignorance of facts. A survey of the contention raised before the departmental authorities, the Tribunal and the High Court makes that inference irresistible. The Income-tax Officer who made the assessment under challenge did not state that when the first assessment was made, the facts which had a bearing on the true relationship between the three parties were not placed, and it was not even argued before the Appellate Assistant Commissioner and the Tribunal that those facts were not placed before the Income-tax Officer. That Tribunal held, relying upon J. C. Thakkar v. Commr. of Income-tax, (1955) 27 ITR 658 : (S) AIR 1955 Bom 34) and Joti Prasad Agarwal v. Income-tax Officer, B-Ward, Mathura, (1959) 87 ITR 107 (AIR 1959 All 456) , that once the option is exercised for assessing the individual partner and including his share of profits in the firm in his assessment, it is not open to the Department to assess the same income as income of the unregistered firm.7.
### Response:
0
### Explanation:
But on the materials before the Court we are unable to accept the plea that the Income-tax Officer was not in possession of information relying on which, if he desired, he could have assessed the three parties collectively as an unregistered firm. There is no warrant for the assumption which counsel for the Department asks us to make, that information about the true state of affairs was not with the Income-tax Officer when the first assessment was made bysame principle would apply to the case of assessment of partners individually of an unregistered firm. The partners may be assessed individually or they may be assessed collectively in the status of an unregistered firm: the Income-tax Officer cannot however seek to assess the one income-twice once in the hands of the partners and again in the hands of the unregisteredfrom an association of individuals or a firm, the Income-tax Act does not recognize a collection of individuals as an entity capable of being assessed to tax. The three parties were not a registered firm, and they could be assessed to tax collectively as an association of individuals or as an unregistered firm if the relation between them was of partners.It is common ground that the assessment made by theOfficer was not a "provisional assessment" within the meaning of S. 23B. It would be reasonable to hold that the income of three parties was assessed under S. 23 (3) of theAct for the income was earned in commercial transactions in different commodities. TheOfficer in assessing the income of the joint venture could not have proceeded without scrutinizing the accounts and other relevant documentary evidence and without determining the shares of the three parties to the joint venture. In determining the shares of the three parties, he had also to determine the contractual relation which gave rise to the right to a share in the profit. Again the order of theOfficer clearly indicates that he was cognizant of the fact that the income of the joint venture was taxable collectively, but he thought that he could in law in the first instance make an "assessment provisionally" of the three parties separately and then rectify the assessment later. In so holding theOfficer may have committed an error of law, but he does not appear to have laboured under an ignorance of facts. A survey of the contention raised before the departmental authorities, the Tribunal and the High Court makes that inference irresistible. TheOfficer who made the assessment under challenge did not state that when the first assessment was made, the facts which had a bearing on the true relationship between the three parties were not placed, and it was not even argued before the Appellate Assistant Commissioner and the Tribunal that those facts were not placed before theOfficer. That Tribunal held, relying upon J. C. Thakkar v. Commr. of(1955) 27 ITR 658 : (S) AIR 1955 Bom 34) and Joti Prasad Agarwal v.d, Mathura, (1959) 87 ITR 107 (AIR 1959 All 456) , that once the option is exercised for assessing the individual partner and including his share of profits in the firm in his assessment, it is not open to the Department to assess the same income as income of the unregistered firm.
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M/S.Hyderabad Asbestos Cement Vs. Union Of India
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may from time to time be prescribed by the Central Government, permit a manufacture of any excisable goods specified under sub-rule (1) to receive, material or component parts or finished product (like asbestos cement), on which the duty of exercise or the additional duty under Section 2A of the Indian Tariff Act, 1934 (32 of 1934), (hereinafter referred to as the countervailing duty), has been paid, in his factory for the manufacture of these goods or for the more convenient distribution of finished product and allow a credit of the duty already paid on such material or component parts or finished product, as the case may be;Provided that no credit of duty shall be allowed in respect of any material or component parts used in the manufacture of finished excisable goods -(i) if such finished excisable goods produced by the manufacturer are exempted from the whole of the duty of excise leviable thereon or are chargeable to nil rate of duty, and(ii) unless -(a) duty has been paid for such material or component parts under the same item or sub-item as the finished excisable goods; or(b) remission or adjustment of duty paid for such material or component parts has been specifically sanctioned by the Central Government;Provided further that if the duty paid on such material or component parts (of which credit has been allowed under this sub-rule) be varied subsequently due to any reason, resulting in payment of refund to, or recovery of more duty from, the manufacturer or importer, as the case may be, of such material or component parts, the credit allowed shall be varied accordingly by adjustment in the credit account maintained under sub-rule (3) or in the account-current maintained under sub-rule (3) or Rule 9 or Rule 178(1) or, if such adjustment be not possible for any reason, by cash recovery from or, as the case may be, refund to the manufacturer availing of the procedure contained in this rule." 4. Subsequently with effect from 1.8.1983 the rule has undergone further which are not relevant for our purpose. 5. A bare reading of the rule shows that the Central Government has been empowered by sub-rule (1) to specify by notification in the official gazette such excisable goods in respect of which the benefit of proforma credit as provided by sub-rule (2) can be taken. The excisable goods referred to in sub-rule (1) are finished products. In order to claim the benefit of the rule the conditions to be satisfied are : (i) the finished product should be specified by the Central Government by notification in the official gazette as the excisable goods in respect of which the procedure laid down in sub-rule (2) shall apply; (ii) an application must be made by the assessee to the Collector in this behalf; (iii) the material, component parts or finished products, the duty or additional duty paid whereon may be availed for the purpose of taking proforma credit, must not be used in the manufacture of such finished excisable goods as are exempt form the whole of the duty of excise leviable thereon or re chargeable to nil rate of duty; and (iv) (a) the duty as has been paid for such material or component parts must have been so paid under the same item or sub item as the finished excisable goods, or (b) if the raw material or component parts are not excisable under the same item or sub-item as the finished excisable goods, or in other words if such material or component parts are excisable under an item or sub-item other than the one under which the finished goods are excisable then the Central Government should have specifically sanctioned remission or adjustment of duty paid for such material or component parts. 6. The controversy centres around the interpretation and scope of proviso (ii) (b) of Rule 56A. The appellants plea is that once the Central Government has notified the excisable goods under sub-rule (1) the benefit of proforma credit shall be available to the appellants without regard to the fact whether or not the raw material or the component parts are excisable under the same item or sub-item of Tariff. The effect of benefit extended by the main part of the Rule cannot be nullified or taken away by a proviso, submitted the learned counsel for the appellants. The plea so raised has not appealed to the High Court. We also find no merit in the plea though it has been forcefully reiterated before us.7. The language of the rule is plain and simple. It does not admit of any doubt in interpretation. Proviso (i) and (ii) are separated by use of conjunction and. They have to be read conjointly. The requirement of both the proviso has to be satisfied to avail the benefit. Clauses (a) and (b) of proviso (ii) are separated by the use of an `or and there the availability of one of the two alternative would suffice. Inasmuch as cement and asbestos fiber used by the appellants in the manufacture of their finished excisable goods are liable to duty under different tariff items, the benefit of proforma credit extended by Rule 56A cannot be availed of by the appellants and has been rightly denied by the authorities of the Department.8. We are in no doubt that to avail the benefit of proforma credit under Rule 56A the inputs which go to manufacture the specified finished excisable goods must be eligible to payment of duty under the same tariff item or sub item; or else, if such inputs are eligible to tax under different tariff items or sub-items then they must be covered by the specific sanction of the Central Government granting remission or adjustment of duty on those inputs as provided by proviso (ii) (b). Admittedly there is no such specific sanction. The raw materials consumed being excisable under Tariff items different from the one under which the finished products are excisable the appellants have been rightly denied benefit of proforma credit.
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0[ds]6. The controversy centres around the interpretation and scope of proviso (ii) (b) of Rule 56A. The appellants plea is that once the Central Government has notified the excisable goods under sub-rule (1) the benefit of proforma credit shall be available to the appellants without regard to the fact whether or not the raw material or the component parts are excisable under the same item or sub-item of Tariff. The effect of benefit extended by the main part of the Rule cannot be nullified or taken away by a proviso, submitted the learned counsel for the appellants. The plea so raised has not appealed to the High Court. We also find no merit in the plea though it has been forcefully reiterated before us.7. The language of the rule is plain and simple. It does not admit of any doubt in interpretation. Proviso (i) and (ii) are separated by use of conjunction and. They have to be read conjointly. The requirement of both the proviso has to be satisfied to avail the benefit. Clauses (a) and (b) of proviso (ii) are separated by the use of an `or and there the availability of one of the two alternative would suffice. Inasmuch as cement and asbestos fiber used by the appellants in the manufacture of their finished excisable goods are liable to duty under different tariff items, the benefit of proforma credit extended by Rule 56A cannot be availed of by the appellants and has been rightly denied by the authorities of the Department.8. We are in no doubt that to avail the benefit of proforma credit under Rule 56A the inputs which go to manufacture the specified finished excisable goods must be eligible to payment of duty under the same tariff item or sub item; or else, if such inputs are eligible to tax under different tariff items or sub-items then they must be covered by the specific sanction of the Central Government granting remission or adjustment of duty on those inputs as provided by proviso (ii) (b). Admittedly there is no such specific sanction. The raw materials consumed being excisable under Tariff items different from the one under which the finished products are excisable the appellants have been rightly denied benefit of proforma credit.
| 0 | 1,733 | 422 |
### 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:
may from time to time be prescribed by the Central Government, permit a manufacture of any excisable goods specified under sub-rule (1) to receive, material or component parts or finished product (like asbestos cement), on which the duty of exercise or the additional duty under Section 2A of the Indian Tariff Act, 1934 (32 of 1934), (hereinafter referred to as the countervailing duty), has been paid, in his factory for the manufacture of these goods or for the more convenient distribution of finished product and allow a credit of the duty already paid on such material or component parts or finished product, as the case may be;Provided that no credit of duty shall be allowed in respect of any material or component parts used in the manufacture of finished excisable goods -(i) if such finished excisable goods produced by the manufacturer are exempted from the whole of the duty of excise leviable thereon or are chargeable to nil rate of duty, and(ii) unless -(a) duty has been paid for such material or component parts under the same item or sub-item as the finished excisable goods; or(b) remission or adjustment of duty paid for such material or component parts has been specifically sanctioned by the Central Government;Provided further that if the duty paid on such material or component parts (of which credit has been allowed under this sub-rule) be varied subsequently due to any reason, resulting in payment of refund to, or recovery of more duty from, the manufacturer or importer, as the case may be, of such material or component parts, the credit allowed shall be varied accordingly by adjustment in the credit account maintained under sub-rule (3) or in the account-current maintained under sub-rule (3) or Rule 9 or Rule 178(1) or, if such adjustment be not possible for any reason, by cash recovery from or, as the case may be, refund to the manufacturer availing of the procedure contained in this rule." 4. Subsequently with effect from 1.8.1983 the rule has undergone further which are not relevant for our purpose. 5. A bare reading of the rule shows that the Central Government has been empowered by sub-rule (1) to specify by notification in the official gazette such excisable goods in respect of which the benefit of proforma credit as provided by sub-rule (2) can be taken. The excisable goods referred to in sub-rule (1) are finished products. In order to claim the benefit of the rule the conditions to be satisfied are : (i) the finished product should be specified by the Central Government by notification in the official gazette as the excisable goods in respect of which the procedure laid down in sub-rule (2) shall apply; (ii) an application must be made by the assessee to the Collector in this behalf; (iii) the material, component parts or finished products, the duty or additional duty paid whereon may be availed for the purpose of taking proforma credit, must not be used in the manufacture of such finished excisable goods as are exempt form the whole of the duty of excise leviable thereon or re chargeable to nil rate of duty; and (iv) (a) the duty as has been paid for such material or component parts must have been so paid under the same item or sub item as the finished excisable goods, or (b) if the raw material or component parts are not excisable under the same item or sub-item as the finished excisable goods, or in other words if such material or component parts are excisable under an item or sub-item other than the one under which the finished goods are excisable then the Central Government should have specifically sanctioned remission or adjustment of duty paid for such material or component parts. 6. The controversy centres around the interpretation and scope of proviso (ii) (b) of Rule 56A. The appellants plea is that once the Central Government has notified the excisable goods under sub-rule (1) the benefit of proforma credit shall be available to the appellants without regard to the fact whether or not the raw material or the component parts are excisable under the same item or sub-item of Tariff. The effect of benefit extended by the main part of the Rule cannot be nullified or taken away by a proviso, submitted the learned counsel for the appellants. The plea so raised has not appealed to the High Court. We also find no merit in the plea though it has been forcefully reiterated before us.7. The language of the rule is plain and simple. It does not admit of any doubt in interpretation. Proviso (i) and (ii) are separated by use of conjunction and. They have to be read conjointly. The requirement of both the proviso has to be satisfied to avail the benefit. Clauses (a) and (b) of proviso (ii) are separated by the use of an `or and there the availability of one of the two alternative would suffice. Inasmuch as cement and asbestos fiber used by the appellants in the manufacture of their finished excisable goods are liable to duty under different tariff items, the benefit of proforma credit extended by Rule 56A cannot be availed of by the appellants and has been rightly denied by the authorities of the Department.8. We are in no doubt that to avail the benefit of proforma credit under Rule 56A the inputs which go to manufacture the specified finished excisable goods must be eligible to payment of duty under the same tariff item or sub item; or else, if such inputs are eligible to tax under different tariff items or sub-items then they must be covered by the specific sanction of the Central Government granting remission or adjustment of duty on those inputs as provided by proviso (ii) (b). Admittedly there is no such specific sanction. The raw materials consumed being excisable under Tariff items different from the one under which the finished products are excisable the appellants have been rightly denied benefit of proforma credit.
### Response:
0
### Explanation:
6. The controversy centres around the interpretation and scope of proviso (ii) (b) of Rule 56A. The appellants plea is that once the Central Government has notified the excisable goods under sub-rule (1) the benefit of proforma credit shall be available to the appellants without regard to the fact whether or not the raw material or the component parts are excisable under the same item or sub-item of Tariff. The effect of benefit extended by the main part of the Rule cannot be nullified or taken away by a proviso, submitted the learned counsel for the appellants. The plea so raised has not appealed to the High Court. We also find no merit in the plea though it has been forcefully reiterated before us.7. The language of the rule is plain and simple. It does not admit of any doubt in interpretation. Proviso (i) and (ii) are separated by use of conjunction and. They have to be read conjointly. The requirement of both the proviso has to be satisfied to avail the benefit. Clauses (a) and (b) of proviso (ii) are separated by the use of an `or and there the availability of one of the two alternative would suffice. Inasmuch as cement and asbestos fiber used by the appellants in the manufacture of their finished excisable goods are liable to duty under different tariff items, the benefit of proforma credit extended by Rule 56A cannot be availed of by the appellants and has been rightly denied by the authorities of the Department.8. We are in no doubt that to avail the benefit of proforma credit under Rule 56A the inputs which go to manufacture the specified finished excisable goods must be eligible to payment of duty under the same tariff item or sub item; or else, if such inputs are eligible to tax under different tariff items or sub-items then they must be covered by the specific sanction of the Central Government granting remission or adjustment of duty on those inputs as provided by proviso (ii) (b). Admittedly there is no such specific sanction. The raw materials consumed being excisable under Tariff items different from the one under which the finished products are excisable the appellants have been rightly denied benefit of proforma credit.
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International Airports Authority of India Now Known As Airports Authority of India Vs. Hotel Leela Venture Limited
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the respondent had contributed land of 3219.50 sq.mtrs. for construction of the hotel. 27. However, there is serious dispute about further contribution by the respondent. It is the case of the respondent that it had taken 4305.50 sq.mtrs. land on lease from the promoter company and it was used for the purpose of F.S.I., cooling towers, which is a part of the air condition establishments, laundry, etc. However, the learned Arbitrator rightly found that out of this 4305.5 sq.mtrs. land, 2304.50 sq.mtrs. was used for the bungalow of the Chairman and the Managing Director and that land could not be treated as the land with the hotel. The learned Arbitrator found that 2001 sq.mtrs. land out of the same was actually used for the hotel. However, record reveals that on the said land there was a building consisting of ground plus 3 floors and only ground floor was used as laundry and for other purposes of the hotel. Record reveals and the learned Single Judge noted that remaining three floors were used for the purpose of a factory, which had not concern with the hotel. It is true that the laundry is essential for the hotel but if only ground floor of that premises are used for the hotel and three upper floors are used for the factory unconnected with the hotel, the respondent could be entitled to count only 1-4th of that land as the land under use of the hotel. By no stretch of imagination whole of 2001 sq.mtrs. land can be counted as the part of the hotel. Therefore, we find that out of the said 2001 sq.mtrs. land, only 500.25 sq.mtrs. land could be treated as contribution of the respondent towards the hotel. This much land was taken and was used for the hotel from 1st July, 1989. 28. According to the respondent, it had taken further 2102.82 sq.mtrs. land from the Anmol properties on 29th December, 1989 and it was used for parking cars and has been treated as area of the hotel. The learned Arbitrator treated this as contribution with effect from 1st January, 1990. Serious objection was taken to this on the ground that sufficient land of the petitioner was available for the purpose of car parking and, therefore, there was no need to purchase this land and to treat the same as land under the hotel. It is also contended that 11,000 sq.mtrs. land of the petitioner under licence is being used for the purpose of garden, squash court, golf course, swimming pools and other recreational facilities, which are also very essential for five star hotel but that land is not being counted as contribution of the petitioner. It is further contended that this addition of the land was to reduce the share of the petitioner out of the gross turnover of the hotel and, therefore, this could be taken only with consent or approval of the petitioner, who is major contributor of the land on which hotel is constructed. It is contended that the respondent had not taken any such consent. We find substance in this contention. There is no record to show that this land was taken by the respondent with consent of the petitioner. It is true that parking space is necessary for five star hotel but it can not be said that other facilities like Golf Course, Squash Court, Swimming Pool and other recreational facilities are unnecessary. They are also equally contributing to the attraction of the hotel and its business. Even though the matter was referred to the Arbitrator for the first time in the year 1992, the respondent had made a request to refer the dispute to the Arbitrator on 3rd April, 1989. After that request, the respondent was not expected to make any substantial changes without consent of the respondent. In our considered opinion, this addition could not be taken into consideration particularly when it was made without consent of the petitioner and that too after the respondent had made request to the petitioner to refer the dispute to the Arbitrator. This logic and reason could also be applied to the contribution of the land taken for the purpose of laundry but in our considered opinion the laundry is to be treated as part of the building of the hotel without which five star hotel can not be run. Therefore, while that contribution will have to be counted, the above 2102.28 sq.mtrs. land purchased from Anmol properties on 29th December, 1989 for car parking can not be counted to reduce the proportion of the petitioner in the gross turnover of the hotel.29. In view of the above observations, we find that the total area of the hotel was as follows:(a). Upto 30th June, 1989, 21,219.50 sq.mtrs. (b). From 1st July, 1989, 21,719.75 sq.mtrs.30. In view of the total land of the hotel and the I.A.A.I. (Petitioners) land being 18,000 sq.mtrs., the proportion of the petitioners land will be as follows: a). Upto 30th June, 1989, 18,000/21,219.50 equal to 85%.b). From 1st July, 1989 onwards, 18,000/21,719.75 sq.mtrs. equal to 82.87%.Therefore, in terms of the Clause 3A(b) of the lease agreements read with the agreement by the respondent by their letters, the petitioner will be entitled to get share out of the 4% gross turnover of total as follows:(a). Upto 30th June, 1989, 85% of 4% of the gross turnover equivalent to 3.4% of the total turnover. (b). From 1st July, 1989 onwards, 82.87% of 4% of the gross turnover equal to 3.31% of the total turnover. 31. After careful perusal of record, We find that the learned Arbitrator did not consider the vital documentary evidence and facts before passing the award. In our opinion it has resulted in miscarriage of justice and if we do not interfere it would result in perpetuation of injustice. The learned Single Judge also did not consider the relevant documents before dismissing the petition challenging the award. Therefore, we find it necessary to set aside the impugned judgment and the award.
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1[ds]17. It is contended on behalf of the respondents that this was only offer to pay 4% of the gross turnover on condition of conversion of licence to lease in respect of the remaining land. The learned Arbitrator accepted this contention and held that as the petitioner had not accepted the proposal of conversion, the respondent is also not liable to pay 4% of the gross turnover. The learned Arbitrator observed that the matter was referred to him only for the purpose of interpretation of the Clause 3A(b) of the contract and on the basis of language of the said Clause, the petitioner could not claim 4% of the gross turnover. The learned Arbitrator observed that the Clause 3A(b) in both the agreements being similar, the petitioner could claim only that part of the 2% of the gross turnover of the hotel which the I.A.A.I. (Petitioners) land area bears to the total area of the hotel. In view of this language, the learned Arbitrator came to conclusion that with the increase in land proportion will also tilt in favour of the petitioner but the total gross turnover for sharing the profit on the basis of contribution of the land could not be more than 2% of the grossview of the facts, circumstances and the unconditional and unambiguous admission made by the respondent in the aforesaid three letters, there remains no doubt that the respondent had agreed to pay fee to the petitioner on the basis of 4% of the gross turnover of the hotel.In view of the above observations, we find that the total area of the hotel was as follows:(a). Upto 30th June, 1989, 21,219.50 sq.mtrs.From 1st July, 1989, 21,719.75 sq.mtrs.30. In view of the total land of the hotel and the I.A.A.I. (Petitioners) land being 18,000 sq.mtrs., the proportion of the petitioners land will be asUpto 30th June, 1989, 18,000/21,219.50 equal to 85%.b). From 1st July, 1989 onwards, 18,000/21,719.75 sq.mtrs. equal to 82.87%.Therefore, in terms of the Clause 3A(b) of the lease agreements read with the agreement by the respondent by their letters, the petitioner will be entitled to get share out of the 4% gross turnover of total as follows:(a). Upto 30th June, 1989, 85% of 4% of the gross turnover equivalent to 3.4% of the total turnover.From 1st July, 1989 onwards, 82.87% of 4% of the gross turnover equal to 3.31% of the total turnover.After careful perusal of record, We find that the learned Arbitrator did not consider the vital documentary evidence and facts before passing the award. In our opinion it has resulted in miscarriage of justice and if we do not interfere it would result in perpetuation of injustice. The learned Single Judge also did not consider the relevant documents before dismissing the petition challenging the award. Therefore, we find it necessary to set aside the impugned judgment and the award.
| 1 | 8,961 | 560 |
### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
the respondent had contributed land of 3219.50 sq.mtrs. for construction of the hotel. 27. However, there is serious dispute about further contribution by the respondent. It is the case of the respondent that it had taken 4305.50 sq.mtrs. land on lease from the promoter company and it was used for the purpose of F.S.I., cooling towers, which is a part of the air condition establishments, laundry, etc. However, the learned Arbitrator rightly found that out of this 4305.5 sq.mtrs. land, 2304.50 sq.mtrs. was used for the bungalow of the Chairman and the Managing Director and that land could not be treated as the land with the hotel. The learned Arbitrator found that 2001 sq.mtrs. land out of the same was actually used for the hotel. However, record reveals that on the said land there was a building consisting of ground plus 3 floors and only ground floor was used as laundry and for other purposes of the hotel. Record reveals and the learned Single Judge noted that remaining three floors were used for the purpose of a factory, which had not concern with the hotel. It is true that the laundry is essential for the hotel but if only ground floor of that premises are used for the hotel and three upper floors are used for the factory unconnected with the hotel, the respondent could be entitled to count only 1-4th of that land as the land under use of the hotel. By no stretch of imagination whole of 2001 sq.mtrs. land can be counted as the part of the hotel. Therefore, we find that out of the said 2001 sq.mtrs. land, only 500.25 sq.mtrs. land could be treated as contribution of the respondent towards the hotel. This much land was taken and was used for the hotel from 1st July, 1989. 28. According to the respondent, it had taken further 2102.82 sq.mtrs. land from the Anmol properties on 29th December, 1989 and it was used for parking cars and has been treated as area of the hotel. The learned Arbitrator treated this as contribution with effect from 1st January, 1990. Serious objection was taken to this on the ground that sufficient land of the petitioner was available for the purpose of car parking and, therefore, there was no need to purchase this land and to treat the same as land under the hotel. It is also contended that 11,000 sq.mtrs. land of the petitioner under licence is being used for the purpose of garden, squash court, golf course, swimming pools and other recreational facilities, which are also very essential for five star hotel but that land is not being counted as contribution of the petitioner. It is further contended that this addition of the land was to reduce the share of the petitioner out of the gross turnover of the hotel and, therefore, this could be taken only with consent or approval of the petitioner, who is major contributor of the land on which hotel is constructed. It is contended that the respondent had not taken any such consent. We find substance in this contention. There is no record to show that this land was taken by the respondent with consent of the petitioner. It is true that parking space is necessary for five star hotel but it can not be said that other facilities like Golf Course, Squash Court, Swimming Pool and other recreational facilities are unnecessary. They are also equally contributing to the attraction of the hotel and its business. Even though the matter was referred to the Arbitrator for the first time in the year 1992, the respondent had made a request to refer the dispute to the Arbitrator on 3rd April, 1989. After that request, the respondent was not expected to make any substantial changes without consent of the respondent. In our considered opinion, this addition could not be taken into consideration particularly when it was made without consent of the petitioner and that too after the respondent had made request to the petitioner to refer the dispute to the Arbitrator. This logic and reason could also be applied to the contribution of the land taken for the purpose of laundry but in our considered opinion the laundry is to be treated as part of the building of the hotel without which five star hotel can not be run. Therefore, while that contribution will have to be counted, the above 2102.28 sq.mtrs. land purchased from Anmol properties on 29th December, 1989 for car parking can not be counted to reduce the proportion of the petitioner in the gross turnover of the hotel.29. In view of the above observations, we find that the total area of the hotel was as follows:(a). Upto 30th June, 1989, 21,219.50 sq.mtrs. (b). From 1st July, 1989, 21,719.75 sq.mtrs.30. In view of the total land of the hotel and the I.A.A.I. (Petitioners) land being 18,000 sq.mtrs., the proportion of the petitioners land will be as follows: a). Upto 30th June, 1989, 18,000/21,219.50 equal to 85%.b). From 1st July, 1989 onwards, 18,000/21,719.75 sq.mtrs. equal to 82.87%.Therefore, in terms of the Clause 3A(b) of the lease agreements read with the agreement by the respondent by their letters, the petitioner will be entitled to get share out of the 4% gross turnover of total as follows:(a). Upto 30th June, 1989, 85% of 4% of the gross turnover equivalent to 3.4% of the total turnover. (b). From 1st July, 1989 onwards, 82.87% of 4% of the gross turnover equal to 3.31% of the total turnover. 31. After careful perusal of record, We find that the learned Arbitrator did not consider the vital documentary evidence and facts before passing the award. In our opinion it has resulted in miscarriage of justice and if we do not interfere it would result in perpetuation of injustice. The learned Single Judge also did not consider the relevant documents before dismissing the petition challenging the award. Therefore, we find it necessary to set aside the impugned judgment and the award.
### Response:
1
### Explanation:
17. It is contended on behalf of the respondents that this was only offer to pay 4% of the gross turnover on condition of conversion of licence to lease in respect of the remaining land. The learned Arbitrator accepted this contention and held that as the petitioner had not accepted the proposal of conversion, the respondent is also not liable to pay 4% of the gross turnover. The learned Arbitrator observed that the matter was referred to him only for the purpose of interpretation of the Clause 3A(b) of the contract and on the basis of language of the said Clause, the petitioner could not claim 4% of the gross turnover. The learned Arbitrator observed that the Clause 3A(b) in both the agreements being similar, the petitioner could claim only that part of the 2% of the gross turnover of the hotel which the I.A.A.I. (Petitioners) land area bears to the total area of the hotel. In view of this language, the learned Arbitrator came to conclusion that with the increase in land proportion will also tilt in favour of the petitioner but the total gross turnover for sharing the profit on the basis of contribution of the land could not be more than 2% of the grossview of the facts, circumstances and the unconditional and unambiguous admission made by the respondent in the aforesaid three letters, there remains no doubt that the respondent had agreed to pay fee to the petitioner on the basis of 4% of the gross turnover of the hotel.In view of the above observations, we find that the total area of the hotel was as follows:(a). Upto 30th June, 1989, 21,219.50 sq.mtrs.From 1st July, 1989, 21,719.75 sq.mtrs.30. In view of the total land of the hotel and the I.A.A.I. (Petitioners) land being 18,000 sq.mtrs., the proportion of the petitioners land will be asUpto 30th June, 1989, 18,000/21,219.50 equal to 85%.b). From 1st July, 1989 onwards, 18,000/21,719.75 sq.mtrs. equal to 82.87%.Therefore, in terms of the Clause 3A(b) of the lease agreements read with the agreement by the respondent by their letters, the petitioner will be entitled to get share out of the 4% gross turnover of total as follows:(a). Upto 30th June, 1989, 85% of 4% of the gross turnover equivalent to 3.4% of the total turnover.From 1st July, 1989 onwards, 82.87% of 4% of the gross turnover equal to 3.31% of the total turnover.After careful perusal of record, We find that the learned Arbitrator did not consider the vital documentary evidence and facts before passing the award. In our opinion it has resulted in miscarriage of justice and if we do not interfere it would result in perpetuation of injustice. The learned Single Judge also did not consider the relevant documents before dismissing the petition challenging the award. Therefore, we find it necessary to set aside the impugned judgment and the award.
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State of Punjab Vs. Messrs Dial Chand Gian Chand and Company
|
The number of liquor and intoxicating drug shops which may be licensed in any local area, shall be subject to the orders of the State Government.4. Shops may be licensed for the sale of liquor and intoxicating drugs in only such villages and in such wards or quarters of towns as the Financial Commissioner shall, subject to the control of the State Government, from time to time, direct.5. No licence for the sale of liquor or drugs may be given unless either there is an ascertained demand for such liquor or drugs in the locality concerned, or it is granted to counteract the illicit supply of liquor or drugs in that locality, nor in the cases of liquor licenses for no consumption without the inquiry prescribed by Orders 8 to 15 of these Orders.Interpreting paragraph 3, the High Court held that as paragraph 3 is couched in negative language, it appears to be mandatory and therefore, no new country liquor vend can be opened without the sanction of the State Government. The High Court then proceeded to observe that no document was placed on record to show that the State Government had sanctioned opening of a vend at Gulwati. The High Court, in this connection, referred to Annexure B/1 issued by respondent 5 Excise and Taxation Officer, Patiala giving public notice of the auction to be held on March 26, 1969 for 15 liquor vends at various places in Patiala district and observed that Gulwati does not find place in this list. It is difficult to appreciate the approach of the High Court in this cases. Rule 4 of the 1956 Order shows that the Financial Commissioner had the power to open licensed shops for sale of liquor and intoxicating drugs and this power could be exercised subject to the control of the State Government. It appears that the Punjab Government had empowered in the month of February 1969 the Excise and Taxation Commissioner to exercise powers of Financial Commissioner, that changes in excise arrangement regarding the opening and closing etc. of the vends may be made by the Excise and Taxation Commissioner, if felt necessary by him under intimation to Government in respect thereof. Mr. H. S. Gill, Deputy Excise and Taxation Commissioner has stated in the return filed by him that the Excise Department considering the overall demand of liquor in the relevant area and the trends of the sales, came to the conclusion that the vend at Gulwati may be opened. If the State Government had empowered the concerned officer and if in exercise of the power a vend was directed to be opened, we fail to see how such opening of the vends at Gulwati could be said to be not in accordance with law. The assertion of Mr. Gill could not be lightly brushed aside on the specious plea that no order or communication of the Punjab Government issued in February 1969 was produced before the High Court. Assuming that the High Court is right ins holding that the delegate the functions enjoined on it by clauses (a) of Rule 3 of 1956 Order, the High Court ought to have examined the various provisions power of general superintendence and administration on the Financial Commissioner in matters relating to excise, subject to restrictions therein mentioned. And Mr. Gill asserts in the return that the Excise Commissioner was authorised to exercises powers of Financial Commissioner. This was not controverted and it cannot be rejected in a cavalier manner. We are therefore unable to accept the conclusion recorded by the High Court that the opening of a country liquor vend at Gulwati was not in accordance with law.8. The High Court approached the matter from a slightly different angle and held that there is not material to show that Rule 5 of 1956 Order was complied with. The High Court overlooked the fact that there is a presumption, undoubtedly rebuttable that official acts are presumed to be done in proper manner.9. The High Court also did not appreciate that writ petition was filed by a licensee who participated in the auction with eyes wide open and on untenable plea wanted to wriggle out of the bargain. In this connection, one can advantageously refer to decision of the Constitution Bench of this Court in Har Shankar v. Dy. Excise and Taxation Commissioner wherein it has been held that the writ jurisdiction of the High Courts under Article 226 of the Constitution is not intended to facilitate avoidance of obligations voluntarily incurred. It was also held that by attempting to exploit the licences without the burden of licence fees subject to which the licence fees subject to which the licence was granted, the licensee are seeking to work the licences on such terms as they find convenient.10. Lastly, Mr. Sharma urged that the High Court granted a prayer not sought by the respondent in the High Court and the prayer is as if damages were awarded for some wrongful act on the part of the officers of the Excise Department. The High Court having held that a direction for closing down the liquor vend at Gulwati cannot be issued, it was not open to the High Court to work out for itself and rewrite the contract between the parties. The respondent was under an obligation to pay the amount of the bids. The High Court gives remission to the respondent on an untenable grounds that presumably the opening of the liquor trade of the respondent. The proportion of remission is worked out on the basis that the bid for Gulwati vend would be directly proportionate to the loss presumably suffered by the respondent. This assumption is wholly untenable. There is no material for reaching this conclusion. The High Court could not have converted writ petition into a suit for recovery of damages ands that too without recording a finding that there was any breach of contract. We are satisfied that the High Court was in error in granting the relief.
|
1[ds]Interpreting paragraph 3, the High Court held that as paragraph 3 is couched in negative language, it appears to be mandatory and therefore, no new country liquor vend can be opened without the sanction of the State Government. The High Court then proceeded to observe that no document was placed on record to show that the State Government had sanctioned opening of a vend at Gulwati. The High Court, in this connection, referred to Annexure B/1 issued by respondent 5 Excise and Taxation Officer, Patiala giving public notice of the auction to be held on March 26, 1969 for 15 liquor vends at various places in Patiala district and observed that Gulwati does not find place in this list. It is difficult to appreciate the approach of the High Court in this cases. Rule 4 of the 1956 Order shows that the Financial Commissioner had the power to open licensed shops for sale of liquor and intoxicating drugs and this power could be exercised subject to the control of the State Government. It appears that the Punjab Government had empowered in the month of February 1969 the Excise and Taxation Commissioner to exercise powers of Financial Commissioner, that changes in excise arrangement regarding the opening and closing etc. of the vends may be made by the Excise and Taxation Commissioner, if felt necessary by him under intimation to Government in respect thereof. Mr. H. S. Gill, Deputy Excise and Taxation Commissioner has stated in the return filed by him that the Excise Department considering the overall demand of liquor in the relevant area and the trends of the sales, came to the conclusion that the vend at Gulwati may be opened. If the State Government had empowered the concerned officer and if in exercise of the power a vend was directed to be opened, we fail to see how such opening of the vends at Gulwati could be said to be not in accordance with law. The assertion of Mr. Gill could not be lightly brushed aside on the specious plea that no order or communication of the Punjab Government issued in February 1969 was produced before the High Court. Assuming that the High Court is right ins holding that the delegate the functions enjoined on it by clauses (a) of Rule 3 of 1956 Order, the High Court ought to have examined the various provisions power of general superintendence and administration on the Financial Commissioner in matters relating to excise, subject to restrictions therein mentioned. And Mr. Gill asserts in the return that the Excise Commissioner was authorised to exercises powers of Financial Commissioner. This was not controverted and it cannot be rejected in a cavalier manner. We are therefore unable to accept the conclusion recorded by the High Court that the opening of a country liquor vend at Gulwati was not in accordance with law.8. The High Court approached the matter from a slightly different angle and held that there is not material to show that Rule 5 of 1956 Order was complied with. The High Court overlooked the fact that there is a presumption, undoubtedly rebuttable that official acts are presumed to be done in proper manner.9. The High Court also did not appreciate that writ petition was filed by a licensee who participated in the auction with eyes wide open and on untenable plea wanted to wriggle out of the bargain. In this connection, one can advantageously refer to decision of the Constitution Bench of this Court in Har Shankar v. Dy. Excise and Taxation Commissioner wherein it has been held that the writ jurisdiction of the High Courts under Article 226 of the Constitution is not intended to facilitate avoidance of obligations voluntarily incurred. It was also held that by attempting to exploit the licences without the burden of licence fees subject to which the licence fees subject to which the licence was granted, the licensee are seeking to work the licences on such terms as they find convenient.10. Lastly, Mr. Sharma urged that the High Court granted a prayer not sought by the respondent in the High Court and the prayer is as if damages were awarded for some wrongful act on the part of the officers of the Excise Department. The High Court having held that a direction for closing down the liquor vend at Gulwati cannot be issued, it was not open to the High Court to work out for itself and rewrite the contract between the parties. The respondent was under an obligation to pay the amount of the bids. The High Court gives remission to the respondent on an untenable grounds that presumably the opening of the liquor trade of the respondent. The proportion of remission is worked out on the basis that the bid for Gulwati vend would be directly proportionate to the loss presumably suffered by the respondent. This assumption is wholly untenable. There is no material for reaching this conclusion. The High Court could not have converted writ petition into a suit for recovery of damages ands that too without recording a finding that there was any breach of contract. We are satisfied that the High Court was in error in granting the relief.
| 1 | 2,557 | 923 |
### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
The number of liquor and intoxicating drug shops which may be licensed in any local area, shall be subject to the orders of the State Government.4. Shops may be licensed for the sale of liquor and intoxicating drugs in only such villages and in such wards or quarters of towns as the Financial Commissioner shall, subject to the control of the State Government, from time to time, direct.5. No licence for the sale of liquor or drugs may be given unless either there is an ascertained demand for such liquor or drugs in the locality concerned, or it is granted to counteract the illicit supply of liquor or drugs in that locality, nor in the cases of liquor licenses for no consumption without the inquiry prescribed by Orders 8 to 15 of these Orders.Interpreting paragraph 3, the High Court held that as paragraph 3 is couched in negative language, it appears to be mandatory and therefore, no new country liquor vend can be opened without the sanction of the State Government. The High Court then proceeded to observe that no document was placed on record to show that the State Government had sanctioned opening of a vend at Gulwati. The High Court, in this connection, referred to Annexure B/1 issued by respondent 5 Excise and Taxation Officer, Patiala giving public notice of the auction to be held on March 26, 1969 for 15 liquor vends at various places in Patiala district and observed that Gulwati does not find place in this list. It is difficult to appreciate the approach of the High Court in this cases. Rule 4 of the 1956 Order shows that the Financial Commissioner had the power to open licensed shops for sale of liquor and intoxicating drugs and this power could be exercised subject to the control of the State Government. It appears that the Punjab Government had empowered in the month of February 1969 the Excise and Taxation Commissioner to exercise powers of Financial Commissioner, that changes in excise arrangement regarding the opening and closing etc. of the vends may be made by the Excise and Taxation Commissioner, if felt necessary by him under intimation to Government in respect thereof. Mr. H. S. Gill, Deputy Excise and Taxation Commissioner has stated in the return filed by him that the Excise Department considering the overall demand of liquor in the relevant area and the trends of the sales, came to the conclusion that the vend at Gulwati may be opened. If the State Government had empowered the concerned officer and if in exercise of the power a vend was directed to be opened, we fail to see how such opening of the vends at Gulwati could be said to be not in accordance with law. The assertion of Mr. Gill could not be lightly brushed aside on the specious plea that no order or communication of the Punjab Government issued in February 1969 was produced before the High Court. Assuming that the High Court is right ins holding that the delegate the functions enjoined on it by clauses (a) of Rule 3 of 1956 Order, the High Court ought to have examined the various provisions power of general superintendence and administration on the Financial Commissioner in matters relating to excise, subject to restrictions therein mentioned. And Mr. Gill asserts in the return that the Excise Commissioner was authorised to exercises powers of Financial Commissioner. This was not controverted and it cannot be rejected in a cavalier manner. We are therefore unable to accept the conclusion recorded by the High Court that the opening of a country liquor vend at Gulwati was not in accordance with law.8. The High Court approached the matter from a slightly different angle and held that there is not material to show that Rule 5 of 1956 Order was complied with. The High Court overlooked the fact that there is a presumption, undoubtedly rebuttable that official acts are presumed to be done in proper manner.9. The High Court also did not appreciate that writ petition was filed by a licensee who participated in the auction with eyes wide open and on untenable plea wanted to wriggle out of the bargain. In this connection, one can advantageously refer to decision of the Constitution Bench of this Court in Har Shankar v. Dy. Excise and Taxation Commissioner wherein it has been held that the writ jurisdiction of the High Courts under Article 226 of the Constitution is not intended to facilitate avoidance of obligations voluntarily incurred. It was also held that by attempting to exploit the licences without the burden of licence fees subject to which the licence fees subject to which the licence was granted, the licensee are seeking to work the licences on such terms as they find convenient.10. Lastly, Mr. Sharma urged that the High Court granted a prayer not sought by the respondent in the High Court and the prayer is as if damages were awarded for some wrongful act on the part of the officers of the Excise Department. The High Court having held that a direction for closing down the liquor vend at Gulwati cannot be issued, it was not open to the High Court to work out for itself and rewrite the contract between the parties. The respondent was under an obligation to pay the amount of the bids. The High Court gives remission to the respondent on an untenable grounds that presumably the opening of the liquor trade of the respondent. The proportion of remission is worked out on the basis that the bid for Gulwati vend would be directly proportionate to the loss presumably suffered by the respondent. This assumption is wholly untenable. There is no material for reaching this conclusion. The High Court could not have converted writ petition into a suit for recovery of damages ands that too without recording a finding that there was any breach of contract. We are satisfied that the High Court was in error in granting the relief.
### Response:
1
### Explanation:
Interpreting paragraph 3, the High Court held that as paragraph 3 is couched in negative language, it appears to be mandatory and therefore, no new country liquor vend can be opened without the sanction of the State Government. The High Court then proceeded to observe that no document was placed on record to show that the State Government had sanctioned opening of a vend at Gulwati. The High Court, in this connection, referred to Annexure B/1 issued by respondent 5 Excise and Taxation Officer, Patiala giving public notice of the auction to be held on March 26, 1969 for 15 liquor vends at various places in Patiala district and observed that Gulwati does not find place in this list. It is difficult to appreciate the approach of the High Court in this cases. Rule 4 of the 1956 Order shows that the Financial Commissioner had the power to open licensed shops for sale of liquor and intoxicating drugs and this power could be exercised subject to the control of the State Government. It appears that the Punjab Government had empowered in the month of February 1969 the Excise and Taxation Commissioner to exercise powers of Financial Commissioner, that changes in excise arrangement regarding the opening and closing etc. of the vends may be made by the Excise and Taxation Commissioner, if felt necessary by him under intimation to Government in respect thereof. Mr. H. S. Gill, Deputy Excise and Taxation Commissioner has stated in the return filed by him that the Excise Department considering the overall demand of liquor in the relevant area and the trends of the sales, came to the conclusion that the vend at Gulwati may be opened. If the State Government had empowered the concerned officer and if in exercise of the power a vend was directed to be opened, we fail to see how such opening of the vends at Gulwati could be said to be not in accordance with law. The assertion of Mr. Gill could not be lightly brushed aside on the specious plea that no order or communication of the Punjab Government issued in February 1969 was produced before the High Court. Assuming that the High Court is right ins holding that the delegate the functions enjoined on it by clauses (a) of Rule 3 of 1956 Order, the High Court ought to have examined the various provisions power of general superintendence and administration on the Financial Commissioner in matters relating to excise, subject to restrictions therein mentioned. And Mr. Gill asserts in the return that the Excise Commissioner was authorised to exercises powers of Financial Commissioner. This was not controverted and it cannot be rejected in a cavalier manner. We are therefore unable to accept the conclusion recorded by the High Court that the opening of a country liquor vend at Gulwati was not in accordance with law.8. The High Court approached the matter from a slightly different angle and held that there is not material to show that Rule 5 of 1956 Order was complied with. The High Court overlooked the fact that there is a presumption, undoubtedly rebuttable that official acts are presumed to be done in proper manner.9. The High Court also did not appreciate that writ petition was filed by a licensee who participated in the auction with eyes wide open and on untenable plea wanted to wriggle out of the bargain. In this connection, one can advantageously refer to decision of the Constitution Bench of this Court in Har Shankar v. Dy. Excise and Taxation Commissioner wherein it has been held that the writ jurisdiction of the High Courts under Article 226 of the Constitution is not intended to facilitate avoidance of obligations voluntarily incurred. It was also held that by attempting to exploit the licences without the burden of licence fees subject to which the licence fees subject to which the licence was granted, the licensee are seeking to work the licences on such terms as they find convenient.10. Lastly, Mr. Sharma urged that the High Court granted a prayer not sought by the respondent in the High Court and the prayer is as if damages were awarded for some wrongful act on the part of the officers of the Excise Department. The High Court having held that a direction for closing down the liquor vend at Gulwati cannot be issued, it was not open to the High Court to work out for itself and rewrite the contract between the parties. The respondent was under an obligation to pay the amount of the bids. The High Court gives remission to the respondent on an untenable grounds that presumably the opening of the liquor trade of the respondent. The proportion of remission is worked out on the basis that the bid for Gulwati vend would be directly proportionate to the loss presumably suffered by the respondent. This assumption is wholly untenable. There is no material for reaching this conclusion. The High Court could not have converted writ petition into a suit for recovery of damages ands that too without recording a finding that there was any breach of contract. We are satisfied that the High Court was in error in granting the relief.
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Healthways Dairy Products Co Vs. Union Of India
|
several authorities of this Court that for the purpose of levy of excise duty or any other similar tax the description of goods as popularly and commonly understood has to be taken as the description of the same goods in the relevant provisions of the statute or the Rules. In this case there are materials to show that condensed milk and condensed skimmed milk are two different items of milk preparations. In common parlance milk means the full cream milk as milched from the cattle. It becomes skimmed milk when cream i.e., fat is extracted from milk. Thereafter the skimmed milk which also can be called a form of preparation of milk is known as such. It becomes easy to digest and is used in preparation of other milk products which are different from the milk products prepared from full cream milk. In the Hand Book on Self Removal Procedure under the Central Excise Rules, 1944, 3rd edition published in June, 1972 by the Central Board of Excise and Customs is to be found Instruction 8(b) to say : Every assessee is also required to maintain a daily account of important raw materials in Form IV (Annexure II) and also to submit a quarterly return in form RT 5 (Annexure III) under Rule 55 of Central Excise Rules, 1944. One or two important raw materials, which have been prescribed for most of the excisable goods under self Removal Procedure, are shown in Annexure IV. The assessee may maintain daily account and submit quarterly RT 5 return only in respect of these specified raw materials. 3. In Annexure IV are to be found Items 13 and 14 respectively in this terms : "13. Milk powder but excluding such powder specially prepared for feeding of infants. "14. Condensed milk whether sweetened or not." 4. In column 4, under the heading "names of important raw materials against item No. 13 is mentioned "whole fresh milk/skimmed milk as the case may be" and against Item 14 are found the words "fresh milk/and sugar". It would be noticed that the description in Items 13 and 14 of Annexure IV is identical to that of Items 12 and 13 in the list of excluded items from the Exemption Notification. Yet in item milk powder in Annexure IV as against the names of important raw materials both "whole fresh milk" and "skimmed milk" are mentioned. But as against condensed milk only "fresh milk" is mentioned. Such a handling of the description of the milk products and preparations does indicate that the Central Government when it mentioned condensed milk in Item 13 of the notification dated the 1st March, 1970 it meant to exclude from exemption only condensed milk of full cream milk and not the condensed skimmed milk prepared from skimmed milk. The milk preparation condensed skimmed milk prepared from skimmed milk fell within the Exemption Notification and not within excluded Item 13.3.Some support, although a feeble one, can be lent to the above view with reference to Rule 42 of the Prevention of Food Adulteration Rules, 1955. In clause (6) of the said Rules are mentioned the forms of label to be put on condensed milk and the four types of labels are : "(1) Condensed Full Cream Milk (unsweetened). (2) Condensed Full Cream Milk (sweetened). (3) Condensed Machine-Skimmed Milk or Condensed Skimmed Milk (unsweetened). (4) Condensed Machine-Skimmed Milk or Condensed Skimmed Milk (sweetened). In Item 13 of the notification when the Government added the words "whether sweetened or not" it did mean to classify the condensed milk of sweetened or unsweetened variety but did not intended to include in Item 13 condensed skimmed milk whether sweetened or unsweetened. 5. Learned counsel for the respondents pointed out that the petitioner had obtained a licence for manufacture of condensed milk only under the Excise Act. It did not obtain a licence for manufacture of condensed skimmed milk. Counsel, therefore, submitted that for the purpose of the levy of the excise duty both would be on the same footing. Learned counsel for the appellant submitted in reply that if excise duty was not leviable on condensed skimmed milk then no licence was required for its manufacture. The position of law seems to be this under Section 6 of the Excise Act no person can engage in the production or manufacture of any specified goods included in the First Schedule of the Act except under the authority and in accordance with the terms and conditions of a licence granted under the Act. It will have been seen therefore, that since skimmed milk or condensed skimmed milk will be a milk preparation within the meaning of Item 1B of the First Schedule, a licence to manufacture such milk would be required. If any goods specified in the First Schedule are exempted from the levy of excise duty by the Central Government in exercise of their power under Rule 8(1) of the Central Excise Rules, that cannot affect the manufacture of the said goods. But in this case we are not concerned to find out whether the petitioner was manufacturing condensed skimmed milk without a licence and if so, whether it was commiting any offence. But even assuming that the petitioner had a manufacturing licence under Section 6 of the Act only for manufacture of condensed milk that by itself will not take condensed skimmed milk out of the Exemption Notification and include it in the excluded Item 13. For the purpose of levy of excise duty, therefore, condensed skimmed milk remains included in the Exemption Notification. 6. Learned counsel also drew our attention to the form of price list of the petitioner showing separate prices for "Condensed milk (full cream)" and "Condensed milk (skimmed)". That again is of no help for the determination of the point at issue. Unless and until skimmed milk is included in Item 13 of the Exemption Notification of the 1st March, 1970 it remains an Item of goods exempted from levy of excise duty. 7.
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1[ds]t is well-established by several authorities of this Court that for the purpose of levy of excise duty or any other similar tax the description of goods as popularly and commonly understood has to be taken as the description of the same goods in the relevant provisions of the statute or the Rules. In this case there are materials to show that condensed milk and condensed skimmed milk are two different items of milk preparationsThe position of law seems to be this under Section 6 of the Excise Act no person can engage in the production or manufacture of any specified goods included in the First Schedule of the Act except under the authority and in accordance with the terms and conditions of a licence granted under the Act. It will have been seen therefore, that since skimmed milk or condensed skimmed milk will be a milk preparation within the meaning of Item 1B of the First Schedule, a licence to manufacture such milk would be required. If any goods specified in the First Schedule are exempted from the levy of excise duty by the Central Government in exercise of their power under Rule 8(1) of the Central Excise Rules, that cannot affect the manufacture of the said goods. But in this case we are not concerned to find out whether the petitioner was manufacturing condensed skimmed milk without a licence and if so, whether it was commiting any offence. But even assuming that the petitioner had a manufacturing licence under Section 6 of the Act only for manufacture of condensed milk that by itself will not take condensed skimmed milk out of the Exemption Notification and include it in the excluded Item 13. For the purpose of levy of excise duty, therefore, condensed skimmed milk remains included in the Exemption NotificationThat again is of no help for the determination of the point at issue. Unless and until skimmed milk is included in Item 13 of the Exemption Notification of the 1st March, 1970 it remains an Item of goods exempted from levy of excise duty.
| 1 | 1,601 | 369 |
### Instruction:
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### Input:
several authorities of this Court that for the purpose of levy of excise duty or any other similar tax the description of goods as popularly and commonly understood has to be taken as the description of the same goods in the relevant provisions of the statute or the Rules. In this case there are materials to show that condensed milk and condensed skimmed milk are two different items of milk preparations. In common parlance milk means the full cream milk as milched from the cattle. It becomes skimmed milk when cream i.e., fat is extracted from milk. Thereafter the skimmed milk which also can be called a form of preparation of milk is known as such. It becomes easy to digest and is used in preparation of other milk products which are different from the milk products prepared from full cream milk. In the Hand Book on Self Removal Procedure under the Central Excise Rules, 1944, 3rd edition published in June, 1972 by the Central Board of Excise and Customs is to be found Instruction 8(b) to say : Every assessee is also required to maintain a daily account of important raw materials in Form IV (Annexure II) and also to submit a quarterly return in form RT 5 (Annexure III) under Rule 55 of Central Excise Rules, 1944. One or two important raw materials, which have been prescribed for most of the excisable goods under self Removal Procedure, are shown in Annexure IV. The assessee may maintain daily account and submit quarterly RT 5 return only in respect of these specified raw materials. 3. In Annexure IV are to be found Items 13 and 14 respectively in this terms : "13. Milk powder but excluding such powder specially prepared for feeding of infants. "14. Condensed milk whether sweetened or not." 4. In column 4, under the heading "names of important raw materials against item No. 13 is mentioned "whole fresh milk/skimmed milk as the case may be" and against Item 14 are found the words "fresh milk/and sugar". It would be noticed that the description in Items 13 and 14 of Annexure IV is identical to that of Items 12 and 13 in the list of excluded items from the Exemption Notification. Yet in item milk powder in Annexure IV as against the names of important raw materials both "whole fresh milk" and "skimmed milk" are mentioned. But as against condensed milk only "fresh milk" is mentioned. Such a handling of the description of the milk products and preparations does indicate that the Central Government when it mentioned condensed milk in Item 13 of the notification dated the 1st March, 1970 it meant to exclude from exemption only condensed milk of full cream milk and not the condensed skimmed milk prepared from skimmed milk. The milk preparation condensed skimmed milk prepared from skimmed milk fell within the Exemption Notification and not within excluded Item 13.3.Some support, although a feeble one, can be lent to the above view with reference to Rule 42 of the Prevention of Food Adulteration Rules, 1955. In clause (6) of the said Rules are mentioned the forms of label to be put on condensed milk and the four types of labels are : "(1) Condensed Full Cream Milk (unsweetened). (2) Condensed Full Cream Milk (sweetened). (3) Condensed Machine-Skimmed Milk or Condensed Skimmed Milk (unsweetened). (4) Condensed Machine-Skimmed Milk or Condensed Skimmed Milk (sweetened). In Item 13 of the notification when the Government added the words "whether sweetened or not" it did mean to classify the condensed milk of sweetened or unsweetened variety but did not intended to include in Item 13 condensed skimmed milk whether sweetened or unsweetened. 5. Learned counsel for the respondents pointed out that the petitioner had obtained a licence for manufacture of condensed milk only under the Excise Act. It did not obtain a licence for manufacture of condensed skimmed milk. Counsel, therefore, submitted that for the purpose of the levy of the excise duty both would be on the same footing. Learned counsel for the appellant submitted in reply that if excise duty was not leviable on condensed skimmed milk then no licence was required for its manufacture. The position of law seems to be this under Section 6 of the Excise Act no person can engage in the production or manufacture of any specified goods included in the First Schedule of the Act except under the authority and in accordance with the terms and conditions of a licence granted under the Act. It will have been seen therefore, that since skimmed milk or condensed skimmed milk will be a milk preparation within the meaning of Item 1B of the First Schedule, a licence to manufacture such milk would be required. If any goods specified in the First Schedule are exempted from the levy of excise duty by the Central Government in exercise of their power under Rule 8(1) of the Central Excise Rules, that cannot affect the manufacture of the said goods. But in this case we are not concerned to find out whether the petitioner was manufacturing condensed skimmed milk without a licence and if so, whether it was commiting any offence. But even assuming that the petitioner had a manufacturing licence under Section 6 of the Act only for manufacture of condensed milk that by itself will not take condensed skimmed milk out of the Exemption Notification and include it in the excluded Item 13. For the purpose of levy of excise duty, therefore, condensed skimmed milk remains included in the Exemption Notification. 6. Learned counsel also drew our attention to the form of price list of the petitioner showing separate prices for "Condensed milk (full cream)" and "Condensed milk (skimmed)". That again is of no help for the determination of the point at issue. Unless and until skimmed milk is included in Item 13 of the Exemption Notification of the 1st March, 1970 it remains an Item of goods exempted from levy of excise duty. 7.
### Response:
1
### Explanation:
t is well-established by several authorities of this Court that for the purpose of levy of excise duty or any other similar tax the description of goods as popularly and commonly understood has to be taken as the description of the same goods in the relevant provisions of the statute or the Rules. In this case there are materials to show that condensed milk and condensed skimmed milk are two different items of milk preparationsThe position of law seems to be this under Section 6 of the Excise Act no person can engage in the production or manufacture of any specified goods included in the First Schedule of the Act except under the authority and in accordance with the terms and conditions of a licence granted under the Act. It will have been seen therefore, that since skimmed milk or condensed skimmed milk will be a milk preparation within the meaning of Item 1B of the First Schedule, a licence to manufacture such milk would be required. If any goods specified in the First Schedule are exempted from the levy of excise duty by the Central Government in exercise of their power under Rule 8(1) of the Central Excise Rules, that cannot affect the manufacture of the said goods. But in this case we are not concerned to find out whether the petitioner was manufacturing condensed skimmed milk without a licence and if so, whether it was commiting any offence. But even assuming that the petitioner had a manufacturing licence under Section 6 of the Act only for manufacture of condensed milk that by itself will not take condensed skimmed milk out of the Exemption Notification and include it in the excluded Item 13. For the purpose of levy of excise duty, therefore, condensed skimmed milk remains included in the Exemption NotificationThat again is of no help for the determination of the point at issue. Unless and until skimmed milk is included in Item 13 of the Exemption Notification of the 1st March, 1970 it remains an Item of goods exempted from levy of excise duty.
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Oswal Woollen Mills Ltd Vs. Punjab State Electricity Board
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it to persons other than the licensees. While exercising the said power the Board would be governed by the general terms which may be issued by the State in terms of Section 79 of the Act. Surcharge by way of additional rate or penalty can be levied only in terms of a tariff notification. Such a power, therefore, can be exercised by the Board only in exercise of its statutory power and not by reason of an executive power. In terms of a circular letter issued by the Board, therefore, neither any surcharge nor any penalty could be levied. 11. In the year 1991, indisputably, the said circular letter dated 21.01.1991 was followed by the tariff notification issued in terms of Sections 46 and 49 of the Act. The subsequent circular letter dated 03.05.1991 was, however, not followed by any notification making the tariff applicable with retrospective effect. 12. We have noticed hereinbefore that the tariff notification dated 26.07.1991 speaks of levy of such surcharge inter alia on Arc furnaces. Similar is the position in regard to the notification dated 01.02.1994. The Board, therefore, could levy surcharge only in terms of the notification and not by reason of any circular letter. As in the notification, it has clearly been stated that 17 =% surcharge on the above tariff should be leviable for all the Arc furnace load consumers which were being given the supply at 11 KV, the High Court clearly fell in error in arriving at the finding that by reason of the said notification, the circular letters dated 21.01.1991 and 03.05.1991 were not superseded. The Board being a statutory authority, its power to issue bills for consumption of the electricity would be governed solely by the tariff notification. It being a statutory authority must act within the four-corners of the statute. 13. The High Court, therefore, in our opinion was clearly wrong in arriving at the finding that the earlier notifications dated 21.01.1991 and 03.05.1991 were not superseded. The High Court failed to pose unto itself the correct question, namely, as to whether after issuance of the tariff notification, the Board could levy any surcharge @ 17 =% on the tariff on those consumers who did not have Arc furnace. The High Court, therefore, misdirected itself in law in passing the impugned order. 14. The question which falls for consideration is from which date the period of one year could have started. Although on the basis of the aforementioned finding, the Company could have contended that from 13.05.1991, no surcharge could have been levied, but it did not raise such a contention before the High Court. We have seen that herein also a limited notice was issued. 15. It is not in dispute that for the purpose of giving effect to the offer made by the Board in terms of its letter dated 30.05.1991, no surcharge could have been levied immediately. A Division Bench of the High Court, as noticed hereinbefore, by an order dated 29.01.1992 clearly stated that the period of one year would start from the date when the feasible point is pointed out. The observation of the High Court in the earlier writ petition was in the nature of a direction. 16. The submission of Mr. Ranjit Kumar, the learned Senior Counsel appearing on behalf of the Board, in this behalf, cannot be accepted. Normally the period should be counted from the date of issuance of the notification and not from the date of the High Courts judgment. The High Court, however, made observations, whereupon both the parties acted. The said observations were made in terms of the affidavit affirmed on behalf of the Board itself. The High Courts direction leads only to one conclusion that the cut-off date would be considered to be one in futuro, i.e., a date after 29.01.1992 alone was required to be fixed. Once the final notice by the Board had been issued, the negligence on the part of the consumer to point out the actual site had not been condoned by the courts. 17. The High Courts observations might be incorrect; but then the same was accepted. As indicated hereinbefore, the parties acted thereupon. The period of one year in terms of the judgment of the High Court, therefore, was to start from the date when the feasible point for installation of Sub Station at the factory premises by the Board was pointed out. Selection of a site for the purpose of drawing 33 KV line was not an empty formality. Several factors including the convenience of the Board were required to be taken into consideration. In some cases probably compensation for acquisition of land was required to be paid. 18. All the courts had arrived at a finding of fact, having regard to the Boards letter dated 03.12.1992 that the final notice in terms of the said circular had been given only on 13.05.1992. The company had contended that actual feasibility was found out on 28.05.1994, but as noticed hereinbefore, the court did not accept its plea that even the date of the said notice could not have been considered to be the date for the purpose of the starting point of the period of one year. 19. For the reasons aforementioned, although Mr. R.K. Jain, the learned Senior Counsel appearing for the company, may be right in his submission that the Board has no jurisdiction to levy surcharge after 29.01.1992, but as the said contention had not been raised and furthermore as notice was issued by the court on a limited question, we are of the opinion that the company is liable to pay the surcharge with effect from 13.05.1992. We may furthermore notice that the actual amount of surcharge payable from that date has already been paid by the company to the Board. However, in view of our findings aforementioned, there cannot be any doubt that the surcharge @ 17 =% was not required to be paid in terms of the tariff notification dated 01.02.1994. 20.
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1[ds]The High Court, therefore, in our opinion was clearly wrong in arriving at the finding that the earlier notifications dated 21.01.1991 and 03.05.1991 were not superseded. The High Court failed to pose unto itself the correct question, namely, as to whether after issuance of the tariff notification, the Board could levy any surcharge @ 17 =% on the tariff on those consumers who did not have Arc furnace. The High Court, therefore, misdirected itself in law in passing the impugned orderThe High Courts observations might be incorrect; but then the same was accepted. As indicated hereinbefore, the parties acted thereupon. The period of one year in terms of the judgment of the High Court, therefore, was to start from the date when the feasible point for installation of Sub Station at the factory premises by the Board was pointed out. Selection of a site for the purpose of drawing 33 KV line was not an empty formality. Several factors including the convenience of the Board were required to be taken into consideration. In some cases probably compensation for acquisition of land was required to be paidAll the courts had arrived at a finding of fact, having regard to the Boards letter dated 03.12.1992 that the final notice in terms of the said circular had been given only on 13.05.1992. The company had contended that actual feasibility was found out on 28.05.1994, but as noticed hereinbefore, the court did not accept its plea that even the date of the said notice could not have been considered to be the date for the purpose of the starting point of the period of one yearFor the reasons aforementioned, although Mr. R.K. Jain, the learned Senior Counsel appearing for the company, may be right in his submission that the Board has no jurisdiction to levy surcharge after 29.01.1992, but as the said contention had not been raised and furthermore as notice was issued by the court on a limited question, we are of the opinion that the company is liable to pay the surcharge with effect from 13.05.1992. We may furthermore notice that the actual amount of surcharge payable from that date has already been paid by the company to the Board. However, in view of our findings aforementioned, there cannot be any doubt that the surcharge @ 17 =% was not required to be paid in terms of the tariff notification dated 01.02.1994.
| 1 | 3,041 | 439 |
### Instruction:
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### Input:
it to persons other than the licensees. While exercising the said power the Board would be governed by the general terms which may be issued by the State in terms of Section 79 of the Act. Surcharge by way of additional rate or penalty can be levied only in terms of a tariff notification. Such a power, therefore, can be exercised by the Board only in exercise of its statutory power and not by reason of an executive power. In terms of a circular letter issued by the Board, therefore, neither any surcharge nor any penalty could be levied. 11. In the year 1991, indisputably, the said circular letter dated 21.01.1991 was followed by the tariff notification issued in terms of Sections 46 and 49 of the Act. The subsequent circular letter dated 03.05.1991 was, however, not followed by any notification making the tariff applicable with retrospective effect. 12. We have noticed hereinbefore that the tariff notification dated 26.07.1991 speaks of levy of such surcharge inter alia on Arc furnaces. Similar is the position in regard to the notification dated 01.02.1994. The Board, therefore, could levy surcharge only in terms of the notification and not by reason of any circular letter. As in the notification, it has clearly been stated that 17 =% surcharge on the above tariff should be leviable for all the Arc furnace load consumers which were being given the supply at 11 KV, the High Court clearly fell in error in arriving at the finding that by reason of the said notification, the circular letters dated 21.01.1991 and 03.05.1991 were not superseded. The Board being a statutory authority, its power to issue bills for consumption of the electricity would be governed solely by the tariff notification. It being a statutory authority must act within the four-corners of the statute. 13. The High Court, therefore, in our opinion was clearly wrong in arriving at the finding that the earlier notifications dated 21.01.1991 and 03.05.1991 were not superseded. The High Court failed to pose unto itself the correct question, namely, as to whether after issuance of the tariff notification, the Board could levy any surcharge @ 17 =% on the tariff on those consumers who did not have Arc furnace. The High Court, therefore, misdirected itself in law in passing the impugned order. 14. The question which falls for consideration is from which date the period of one year could have started. Although on the basis of the aforementioned finding, the Company could have contended that from 13.05.1991, no surcharge could have been levied, but it did not raise such a contention before the High Court. We have seen that herein also a limited notice was issued. 15. It is not in dispute that for the purpose of giving effect to the offer made by the Board in terms of its letter dated 30.05.1991, no surcharge could have been levied immediately. A Division Bench of the High Court, as noticed hereinbefore, by an order dated 29.01.1992 clearly stated that the period of one year would start from the date when the feasible point is pointed out. The observation of the High Court in the earlier writ petition was in the nature of a direction. 16. The submission of Mr. Ranjit Kumar, the learned Senior Counsel appearing on behalf of the Board, in this behalf, cannot be accepted. Normally the period should be counted from the date of issuance of the notification and not from the date of the High Courts judgment. The High Court, however, made observations, whereupon both the parties acted. The said observations were made in terms of the affidavit affirmed on behalf of the Board itself. The High Courts direction leads only to one conclusion that the cut-off date would be considered to be one in futuro, i.e., a date after 29.01.1992 alone was required to be fixed. Once the final notice by the Board had been issued, the negligence on the part of the consumer to point out the actual site had not been condoned by the courts. 17. The High Courts observations might be incorrect; but then the same was accepted. As indicated hereinbefore, the parties acted thereupon. The period of one year in terms of the judgment of the High Court, therefore, was to start from the date when the feasible point for installation of Sub Station at the factory premises by the Board was pointed out. Selection of a site for the purpose of drawing 33 KV line was not an empty formality. Several factors including the convenience of the Board were required to be taken into consideration. In some cases probably compensation for acquisition of land was required to be paid. 18. All the courts had arrived at a finding of fact, having regard to the Boards letter dated 03.12.1992 that the final notice in terms of the said circular had been given only on 13.05.1992. The company had contended that actual feasibility was found out on 28.05.1994, but as noticed hereinbefore, the court did not accept its plea that even the date of the said notice could not have been considered to be the date for the purpose of the starting point of the period of one year. 19. For the reasons aforementioned, although Mr. R.K. Jain, the learned Senior Counsel appearing for the company, may be right in his submission that the Board has no jurisdiction to levy surcharge after 29.01.1992, but as the said contention had not been raised and furthermore as notice was issued by the court on a limited question, we are of the opinion that the company is liable to pay the surcharge with effect from 13.05.1992. We may furthermore notice that the actual amount of surcharge payable from that date has already been paid by the company to the Board. However, in view of our findings aforementioned, there cannot be any doubt that the surcharge @ 17 =% was not required to be paid in terms of the tariff notification dated 01.02.1994. 20.
### Response:
1
### Explanation:
The High Court, therefore, in our opinion was clearly wrong in arriving at the finding that the earlier notifications dated 21.01.1991 and 03.05.1991 were not superseded. The High Court failed to pose unto itself the correct question, namely, as to whether after issuance of the tariff notification, the Board could levy any surcharge @ 17 =% on the tariff on those consumers who did not have Arc furnace. The High Court, therefore, misdirected itself in law in passing the impugned orderThe High Courts observations might be incorrect; but then the same was accepted. As indicated hereinbefore, the parties acted thereupon. The period of one year in terms of the judgment of the High Court, therefore, was to start from the date when the feasible point for installation of Sub Station at the factory premises by the Board was pointed out. Selection of a site for the purpose of drawing 33 KV line was not an empty formality. Several factors including the convenience of the Board were required to be taken into consideration. In some cases probably compensation for acquisition of land was required to be paidAll the courts had arrived at a finding of fact, having regard to the Boards letter dated 03.12.1992 that the final notice in terms of the said circular had been given only on 13.05.1992. The company had contended that actual feasibility was found out on 28.05.1994, but as noticed hereinbefore, the court did not accept its plea that even the date of the said notice could not have been considered to be the date for the purpose of the starting point of the period of one yearFor the reasons aforementioned, although Mr. R.K. Jain, the learned Senior Counsel appearing for the company, may be right in his submission that the Board has no jurisdiction to levy surcharge after 29.01.1992, but as the said contention had not been raised and furthermore as notice was issued by the court on a limited question, we are of the opinion that the company is liable to pay the surcharge with effect from 13.05.1992. We may furthermore notice that the actual amount of surcharge payable from that date has already been paid by the company to the Board. However, in view of our findings aforementioned, there cannot be any doubt that the surcharge @ 17 =% was not required to be paid in terms of the tariff notification dated 01.02.1994.
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Prem Kaliaandas Daryanani & Others Vs. Natvarlal C. Modi & Others
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the Plaintiff and the defendants. The Plaintiff who filed the suit against the defendant was entitled to seek relief and proceed against all persons claiming under the defendants as may be likely to be legally affected by the decree that may be passed in favour of the Plaintiff in the pending suit. It is duty of the learned trial judge to vigilantly observe the requisite procedure to frame all the relevant issues, meet all the points in controversy before him, and record findings in respect of them to decide the suit on merits and according to law as would be necessary to enable it to effectually and completely adjudicate upon and settle all the questions involved in the suit. In a suit for specific performance of a contract for sale, the issue to be decided is the enforceability of the contract entered into between the appellant (Plaintiff) and Respondents (Ori. Defendants) who agreed to sell the suit property to the Plaintiff . The main issues as to whether contract was executed by the appellant and Respondents for sale of the suit property-contracted property-, whether the plaintiff was ready and willing to perform his part of the contract and whether the appellant-Plaintiff is entitled to a decree for specific performance of a contract for sale against Respondents-vendor and persons claiming under vendor. Such a suit in our opinion, can not be thrown out merely because of the unscrupulous litigant invented a trick or two of filing pursis in this case informing about transfer to third party to defeat the suit claim by creating third party interest during pendency of the dispute so as to affect enforceability of the suit agreement to Sell. The subsequent transferee, if any, may in such case be added as proper party, even if considered as not necessary party, for to ensure that proper and effective decree is passed pursuant to final adjudication on merits in respect of the real controversy between the parties, in presence of all the persons interested in the result of the suit controversy. Subsequent Transferee of the suit property would be subject to the decree that may be passed in the suit for specific performance of the agreement to sell/Contract an his presence before the trial court would be proper. At the same time trial judge must note that issue as to enforceability of the agreement to sell/ Contract is real controversy to be decided in such suit for specific performance of the Contract and the issues arising in such suit cannot not be widened beyond it by unnecessarily importing in suit the complicated questions of title raised by any third party to the Contract. Suffice it to state that such complicated issues of title claimed or raised by third party to the suit agreement/Contract can be decided by independent suit or proceeding according to law. For deciding the question as to who is a proper party in the suit for specific performance the guiding principle is that the presence of such a party is necessary to adjudicate the controversies involved in the suit for specific performance of the contract for sale. Thus, the question in the civil suit is to be decided keeping in mind the real scope of the suit. The question that is to be decided in a suit for specific performance of the contract for sale is primarily the enforceability of the contract /agreement entered into between the parties to the contract. True it is that, if every third person seeking addition as defendant is added in such a suit, the scope of the suit for specific performance would be widened and it would be practically converted into a suit for title. Therefore, for effective adjudication of the controversies involved in the suit to decide whether the agreement to sell is enforceable according to law, presence of such third parties may not be necessary. But in the facts and circumstances of the case impleadment of third party claiming under the vendor may be proper when the court finds that there was a ploy on the part of the trickster defendant to defeat the suit claim by effecting transfers subsequent to the execution of the suit agreement and third party took the transfer with express or implied knowledge or notice of the suit agreement, then it becomes duty of the trial court to decide the suit finally, effectively and completely so as to adjudicate the real controversy in the pending suit. The very existence of the court is to do justice between the parties and it is always in the interest of public policy and justice to avoid the multiplicity of judicial proceedings requiring the court to decide again in respect of the same subject matter. Equity will enforce specific performance of the contract for sale against the vendor himself and against all persons claiming under him by a title arising subsequently to the contract except a bonafide purchaser for valuable consideration who have paid their money and taken a conveyance without notice of the original contract. The statement of the law in equity is exactly what is meant by the first two clauses of S.27, Specific Relief Act. Thus, when the defendant has committed breach of the contract and can be blamed for it, the plaintiff has choice to pray for the relief of recission of any contract/conveyance executed subsequent to the suit contract, which is voidable at his option because it is unlawful for causes not apparent on its face but for execution of which the defendant is to be blamed for his dishonest act.11. Having regard to the law discussed hereinabove and in the facts and circumstances of the case and also for the ends of justice the subsequent transferees or persons claiming under them ought to be added as proper party-defendants in the suit though issue for decision in the pending special civil suit need not be enlarged beyond the scope of the decision as to enforceability of the suit agreement according to law .
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1[ds]7. The answer in our opinion is in the affirmative for following reasons:Regarding addition of Party the ruling by Honble Supreme Court in Civil Appeal No. 1518 of 201, arising out of Special Leave Petition (Civil) No. 24159 of 2009) Thomson Press (India) Ltd. Vs. Nanak BuildersOrs. (AIR 2013 SC 2389 ), need to be referred here for the proposition that any subsequent transferee with notice/knowledge of earlier agreement can be added as proper party to the suit.Having regard to the law discussed hereinabove and in the facts and circumstances of the case and also for the ends of justice the subsequent transferees or persons claiming under them ought to be added as properin the suit though issue for decision in the pending special civil suit need not be enlarged beyond the scope of the decision as to enforceability of the suit agreement according to law .
| 1 | 3,226 | 166 |
### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
the Plaintiff and the defendants. The Plaintiff who filed the suit against the defendant was entitled to seek relief and proceed against all persons claiming under the defendants as may be likely to be legally affected by the decree that may be passed in favour of the Plaintiff in the pending suit. It is duty of the learned trial judge to vigilantly observe the requisite procedure to frame all the relevant issues, meet all the points in controversy before him, and record findings in respect of them to decide the suit on merits and according to law as would be necessary to enable it to effectually and completely adjudicate upon and settle all the questions involved in the suit. In a suit for specific performance of a contract for sale, the issue to be decided is the enforceability of the contract entered into between the appellant (Plaintiff) and Respondents (Ori. Defendants) who agreed to sell the suit property to the Plaintiff . The main issues as to whether contract was executed by the appellant and Respondents for sale of the suit property-contracted property-, whether the plaintiff was ready and willing to perform his part of the contract and whether the appellant-Plaintiff is entitled to a decree for specific performance of a contract for sale against Respondents-vendor and persons claiming under vendor. Such a suit in our opinion, can not be thrown out merely because of the unscrupulous litigant invented a trick or two of filing pursis in this case informing about transfer to third party to defeat the suit claim by creating third party interest during pendency of the dispute so as to affect enforceability of the suit agreement to Sell. The subsequent transferee, if any, may in such case be added as proper party, even if considered as not necessary party, for to ensure that proper and effective decree is passed pursuant to final adjudication on merits in respect of the real controversy between the parties, in presence of all the persons interested in the result of the suit controversy. Subsequent Transferee of the suit property would be subject to the decree that may be passed in the suit for specific performance of the agreement to sell/Contract an his presence before the trial court would be proper. At the same time trial judge must note that issue as to enforceability of the agreement to sell/ Contract is real controversy to be decided in such suit for specific performance of the Contract and the issues arising in such suit cannot not be widened beyond it by unnecessarily importing in suit the complicated questions of title raised by any third party to the Contract. Suffice it to state that such complicated issues of title claimed or raised by third party to the suit agreement/Contract can be decided by independent suit or proceeding according to law. For deciding the question as to who is a proper party in the suit for specific performance the guiding principle is that the presence of such a party is necessary to adjudicate the controversies involved in the suit for specific performance of the contract for sale. Thus, the question in the civil suit is to be decided keeping in mind the real scope of the suit. The question that is to be decided in a suit for specific performance of the contract for sale is primarily the enforceability of the contract /agreement entered into between the parties to the contract. True it is that, if every third person seeking addition as defendant is added in such a suit, the scope of the suit for specific performance would be widened and it would be practically converted into a suit for title. Therefore, for effective adjudication of the controversies involved in the suit to decide whether the agreement to sell is enforceable according to law, presence of such third parties may not be necessary. But in the facts and circumstances of the case impleadment of third party claiming under the vendor may be proper when the court finds that there was a ploy on the part of the trickster defendant to defeat the suit claim by effecting transfers subsequent to the execution of the suit agreement and third party took the transfer with express or implied knowledge or notice of the suit agreement, then it becomes duty of the trial court to decide the suit finally, effectively and completely so as to adjudicate the real controversy in the pending suit. The very existence of the court is to do justice between the parties and it is always in the interest of public policy and justice to avoid the multiplicity of judicial proceedings requiring the court to decide again in respect of the same subject matter. Equity will enforce specific performance of the contract for sale against the vendor himself and against all persons claiming under him by a title arising subsequently to the contract except a bonafide purchaser for valuable consideration who have paid their money and taken a conveyance without notice of the original contract. The statement of the law in equity is exactly what is meant by the first two clauses of S.27, Specific Relief Act. Thus, when the defendant has committed breach of the contract and can be blamed for it, the plaintiff has choice to pray for the relief of recission of any contract/conveyance executed subsequent to the suit contract, which is voidable at his option because it is unlawful for causes not apparent on its face but for execution of which the defendant is to be blamed for his dishonest act.11. Having regard to the law discussed hereinabove and in the facts and circumstances of the case and also for the ends of justice the subsequent transferees or persons claiming under them ought to be added as proper party-defendants in the suit though issue for decision in the pending special civil suit need not be enlarged beyond the scope of the decision as to enforceability of the suit agreement according to law .
### Response:
1
### Explanation:
7. The answer in our opinion is in the affirmative for following reasons:Regarding addition of Party the ruling by Honble Supreme Court in Civil Appeal No. 1518 of 201, arising out of Special Leave Petition (Civil) No. 24159 of 2009) Thomson Press (India) Ltd. Vs. Nanak BuildersOrs. (AIR 2013 SC 2389 ), need to be referred here for the proposition that any subsequent transferee with notice/knowledge of earlier agreement can be added as proper party to the suit.Having regard to the law discussed hereinabove and in the facts and circumstances of the case and also for the ends of justice the subsequent transferees or persons claiming under them ought to be added as properin the suit though issue for decision in the pending special civil suit need not be enlarged beyond the scope of the decision as to enforceability of the suit agreement according to law .
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M.D.,Bhoruka Textiles Limited Vs. M/S Kashmiri Rice Industries
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required to make a reference within 60 days from the date of the duly audited accounts of the company for the financial year as at the end of which the Company has become a sick industrial company. Such reference is made for determination of the measures which may be adopted with respect to the company. The proviso appended thereto, however, entitles the Board of Directors to make a reference within 60 days from the date of formation of the opinion that the Company had become a sick industrial company before the audited accounts of the financial year in question are finalized. Section 16 of the Act empowers the Board to make such enquiry as it may deem fit for determining whether any Industrial Company has become a sick industrial company, inter alia, upon receipt of a reference with respect to such company under Section 15. Sub-section (1) of Section 22 of the Act reads as under : "22. Suspension of legal proceedings, contracts, etc.--(1) Where in respect of an industrial company, an inquiry under section 16 is pending or any scheme referred to under section 17 is under preparation or consideration or a sanctioned scheme is under implementation or where an appeal under section 25 relating to an industrial company is pending, then, notwithstanding anything contained in the Companies Act, 1956 (1 of 1956), or any other law or the memorandum and articles of association of the industrial company or any other instrument having effect under the said Act or other law, no proceedings for the winding up of the industrial company or for execution, distress or the like against any of the properties of the industrial company or for the appointment of a receiver in respect thereof and no suit for the recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company shall lie or be proceeded with further, except with the consent of the Board or, as the case may be, the Appellate Authority." A plain reading of the aforementioned provision would clearly go to show that a suit is barred when an enquiry under Section 16 is pending. It is also not in dispute that prior to institution of the suit, respondent did not obtain consent of the Board. 9. The provisions of the Act and, in particular, Chapter III thereof, provides for a complete code. The Board has a wide power in terms of the provisions of the Act, although it is not a Court. Sub-section (4) of Section 20 as also Section 32 of the Act provides for non-obstante clauses. It envisages speedy disposal of the enquiry and preferably within the time framed provided for thereafter. Section 17 empowers the Court to make suitable orders on the completion of enquiry. Preparation and sanction of the scheme is also contemplated under the Act. 10. Section 22 of the Act must be interpreted giving a plain meaning to its contents. An enquiry in terms of Section 16 of the Act by the Board is permissible upon receipt of a reference. Thus, reference having been made on 27.12.2001 and the suit having been filed on 17.12.2002, the receipt of a reference must be held to be the starting period for proceeding with the enquiry. The effect of the provisions of the Act has been considered by a Three Judge Bench decision of this Court in Tata Motors Ltd. v. Pharmaceutical Products of India Ltd. & Anr. [(2008) 7 SCC 619] , wherein it, in no uncertain terms, held that SICA is a special statute and, thus, overrides other acts like Companies Act, 1956, stating : "31. SICA furthermore was enacted to secure the principles specified in Article 39 of the Constitution of India. It seeks to give effect to the larger public interest. It should be given primacy because of its higher public purpose. Section 26 of SICA bars the jurisdiction of the civil courts.32. What scheme should be prepared by the operating agency for revival and rehabilitation of the sick industrial company is within the domain of BIFR. Section 26 not only covers orders passed under SICA but also any matter which BIFR is empowered to determine.33. The jurisdiction of the civil court is, thus, barred in respect of any matter for which the Appellate Authority or the Board is empowered. The High Court may not be a civil court but its jurisdiction in a case of this nature is limited." If the civil courts jurisdiction was ousted in terms of the provisions of Section 22 of the Act, any judgment rendered by it would be coram non judis. It is a well settled principle of law that a judgment and decree passed by a court or tribunal lacking inherent jurisdiction would be a nullity. In Kiran Singh & Ors. v. Chaman Paswan & Ors. [(AIR 1954 SC 340 ], this Court held : "... It is a fundamental principle well-established that a decree passed by a Court without jurisdiction is a nullity & that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties." [See also Chief Engineer, Hydel Project v. Ravinder Nath [(2008) 2 SCC 350] In Mantoo Sarkar v. Oriental Insurance Company Ltd. & Ors. [(2009) 2 SCC 244] , we must place on record, that a distinction has been made between a jurisdiction with regard to the subject matter of the suit and that of the territorial and pecuniary jurisdiction. It was laid down that a case falling within the former category would make a judgment a nullity.
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1[ds]The learned Trial Judge, therefore, committed a manifest error in opining that the transaction in question was subsequent to the reference. It is also apparent from the record that respondent was aware of the fact that the appellant had made reference to the BIFR in terms of the provisions16 of the Act empowers the Board to make such enquiry as it may deem fit for determining whether any Industrial Company has become a sick industrial company, inter alia, upon receipt of a reference with respect to such company under Section 15.The Act was enacted to make, in the public interest, special provisions with a view to securing the timely detection of sick and potentially sick companies owning industrial undertakings, the speedy determination by a Board of experts of the preventive, ameliorative, remedial and other measures which need to be taken with respect to such companies and the expeditious enforcement of the measures so determined and for matters connected therewith or incidental thereto.Indisputably, thus, appellant is an industrial undertaking. Chapter III of the Act provides for reference, enquiries and schemes. Section 15 of the Act provides for reference to the Board in terms whereof the Board of Directors of the Company is required to make a reference within 60 days from the date of the duly audited accounts of the company for the financial year as at the end of which the Company has become a sick industrial company. Such reference is made for determination of the measures which may be adopted with respect to the company. The proviso appended thereto, however, entitles the Board of Directors to make a reference within 60 days from the date of formation of the opinion that the Company had become a sick industrial company before the audited accounts of the financial year in question are finalized.
| 1 | 1,879 | 326 |
### 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:
required to make a reference within 60 days from the date of the duly audited accounts of the company for the financial year as at the end of which the Company has become a sick industrial company. Such reference is made for determination of the measures which may be adopted with respect to the company. The proviso appended thereto, however, entitles the Board of Directors to make a reference within 60 days from the date of formation of the opinion that the Company had become a sick industrial company before the audited accounts of the financial year in question are finalized. Section 16 of the Act empowers the Board to make such enquiry as it may deem fit for determining whether any Industrial Company has become a sick industrial company, inter alia, upon receipt of a reference with respect to such company under Section 15. Sub-section (1) of Section 22 of the Act reads as under : "22. Suspension of legal proceedings, contracts, etc.--(1) Where in respect of an industrial company, an inquiry under section 16 is pending or any scheme referred to under section 17 is under preparation or consideration or a sanctioned scheme is under implementation or where an appeal under section 25 relating to an industrial company is pending, then, notwithstanding anything contained in the Companies Act, 1956 (1 of 1956), or any other law or the memorandum and articles of association of the industrial company or any other instrument having effect under the said Act or other law, no proceedings for the winding up of the industrial company or for execution, distress or the like against any of the properties of the industrial company or for the appointment of a receiver in respect thereof and no suit for the recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company shall lie or be proceeded with further, except with the consent of the Board or, as the case may be, the Appellate Authority." A plain reading of the aforementioned provision would clearly go to show that a suit is barred when an enquiry under Section 16 is pending. It is also not in dispute that prior to institution of the suit, respondent did not obtain consent of the Board. 9. The provisions of the Act and, in particular, Chapter III thereof, provides for a complete code. The Board has a wide power in terms of the provisions of the Act, although it is not a Court. Sub-section (4) of Section 20 as also Section 32 of the Act provides for non-obstante clauses. It envisages speedy disposal of the enquiry and preferably within the time framed provided for thereafter. Section 17 empowers the Court to make suitable orders on the completion of enquiry. Preparation and sanction of the scheme is also contemplated under the Act. 10. Section 22 of the Act must be interpreted giving a plain meaning to its contents. An enquiry in terms of Section 16 of the Act by the Board is permissible upon receipt of a reference. Thus, reference having been made on 27.12.2001 and the suit having been filed on 17.12.2002, the receipt of a reference must be held to be the starting period for proceeding with the enquiry. The effect of the provisions of the Act has been considered by a Three Judge Bench decision of this Court in Tata Motors Ltd. v. Pharmaceutical Products of India Ltd. & Anr. [(2008) 7 SCC 619] , wherein it, in no uncertain terms, held that SICA is a special statute and, thus, overrides other acts like Companies Act, 1956, stating : "31. SICA furthermore was enacted to secure the principles specified in Article 39 of the Constitution of India. It seeks to give effect to the larger public interest. It should be given primacy because of its higher public purpose. Section 26 of SICA bars the jurisdiction of the civil courts.32. What scheme should be prepared by the operating agency for revival and rehabilitation of the sick industrial company is within the domain of BIFR. Section 26 not only covers orders passed under SICA but also any matter which BIFR is empowered to determine.33. The jurisdiction of the civil court is, thus, barred in respect of any matter for which the Appellate Authority or the Board is empowered. The High Court may not be a civil court but its jurisdiction in a case of this nature is limited." If the civil courts jurisdiction was ousted in terms of the provisions of Section 22 of the Act, any judgment rendered by it would be coram non judis. It is a well settled principle of law that a judgment and decree passed by a court or tribunal lacking inherent jurisdiction would be a nullity. In Kiran Singh & Ors. v. Chaman Paswan & Ors. [(AIR 1954 SC 340 ], this Court held : "... It is a fundamental principle well-established that a decree passed by a Court without jurisdiction is a nullity & that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties." [See also Chief Engineer, Hydel Project v. Ravinder Nath [(2008) 2 SCC 350] In Mantoo Sarkar v. Oriental Insurance Company Ltd. & Ors. [(2009) 2 SCC 244] , we must place on record, that a distinction has been made between a jurisdiction with regard to the subject matter of the suit and that of the territorial and pecuniary jurisdiction. It was laid down that a case falling within the former category would make a judgment a nullity.
### Response:
1
### Explanation:
The learned Trial Judge, therefore, committed a manifest error in opining that the transaction in question was subsequent to the reference. It is also apparent from the record that respondent was aware of the fact that the appellant had made reference to the BIFR in terms of the provisions16 of the Act empowers the Board to make such enquiry as it may deem fit for determining whether any Industrial Company has become a sick industrial company, inter alia, upon receipt of a reference with respect to such company under Section 15.The Act was enacted to make, in the public interest, special provisions with a view to securing the timely detection of sick and potentially sick companies owning industrial undertakings, the speedy determination by a Board of experts of the preventive, ameliorative, remedial and other measures which need to be taken with respect to such companies and the expeditious enforcement of the measures so determined and for matters connected therewith or incidental thereto.Indisputably, thus, appellant is an industrial undertaking. Chapter III of the Act provides for reference, enquiries and schemes. Section 15 of the Act provides for reference to the Board in terms whereof the Board of Directors of the Company is required to make a reference within 60 days from the date of the duly audited accounts of the company for the financial year as at the end of which the Company has become a sick industrial company. Such reference is made for determination of the measures which may be adopted with respect to the company. The proviso appended thereto, however, entitles the Board of Directors to make a reference within 60 days from the date of formation of the opinion that the Company had become a sick industrial company before the audited accounts of the financial year in question are finalized.
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Deepa E.V Vs. Union Of India
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such rules, they are immediately suitably modified or deleted.4. These instructions shall take immediate effect in respect of direct recruitment made hereafter. These will also apply to selections where though the recruitment process has started, the result have not yet been announced unless in the Examination/Recruitment Rules or in the advertisement notified earlier there is a specific provision to the contrary and the manner in which the SC/ST vacancies could be filled has been indicated.Clarification:- The instructions contained in the above OM apply in all types of direct recruitment whether by written test alone or written test followed by the interview alone.2. The above OM and the O.M. No.36012/2/96-Estt.(Res.), dated 2.7.1997 provide that in cases of direct recruitment, the SC/ST/OBC candidates who are selected on their own merit will not be adjusted against reserved vacancies.3. In this connection, it is clarified that only such SC/ST/OBC candidates who are selected on the same standards as applied to general candidates shall not be adjusted against reserved vacancies. In other words, when a relaxed standard is applied in selecting an SC/ST/OBC candidates, for example in the age-limit, experience, qualification, permitted number of chances in written examination, extended zone of consideration larger than what is provided for general category candidates, etc., the SC/ST/OBC candidates are to be counted against reserved vacancies. Such candidates would be deemed as unavailable for consideration against unreserved vacancies.”(Underlining added)7. On a combined reading of Rule 9 of the Export Inspection Agency (Recruitment) Rules, 1980 and also the proceedings dated 1.7.1998, we find that there is an express bar for the candidates belonging to SC/ST/OBC who have availed relaxation for being considered for General Category candidates.8. Learned counsel for the appellant mainly relied upon the judgment of this Court in Jitendra Kumar Singh and Another v. State of Uttar Pradesh and Others, reported in (2010) 3 SCC 119 , which deals with the U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 and Government order dated 25.3.1994. On a perusal of the above judgment, we find that there is no express bar in the said U.P. Act for the candidates of SC/ST/OBC being considered for the posts under General Category. In such facts and circumstances of the said case, this Court has taken the view that the relaxation granted to the reserved category candidates will operate a level playing field. In the light of the express bar provided under the proceedings dated 1.7.1998 the principle laid down in Jitendra Kumar Singh (supra) cannot be applied to the case in hand.9. Learned senior counsel appearing for the respondents has also drawn our attention to paragraph Nos.65 and 72 in Jitendra Kumar Singh (supra) to contend that principle in Jitendra Kumar Singh (supra) are in the context of interpretation of U.P. Act 1994 and in the particular factual situation of the said case. Paragraphs 65 and 72, read as under:-“65. In any event the entire issue in the present appeals need not be decided on the general principles of law laid down in various judgments as noticed above. In these matters, we are concerned with the interpretation of the 1994 Act, the Instructions dated 25.3.1994 and the G.O. dated 26.2.1999. The controversy herein centres around the limited issue as to whether an OBC who has applied exercising his option as a reserved category candidate, thus becoming eligible to be considered against a reserved vacancy, can also be considered against an unreserved vacancy if he/she secures more marks than the last candidate in the general category.72. Soon after the enforcement of the 1994 Act the Government issued instructions dated 25.3.1994 on the subject of reservation for Scheduled Castes, Scheduled Tribes and other backward groups in the Uttar Pradesh Public Services. These instructions, inter alia, provide as under:-"4. If any person belonging to reserved categories is selected on the basis of merits in open competition along with general category candidates, then he will not be adjusted towards reserved category, that is, he shall be deemed to have been adjusted against the unreserved vacancies. It shall be immaterial that he has availed any facility or relaxation (like relaxation in age limit) available to reserved category."From the above it becomes quite apparent that the relaxation in age limit is merely to enable the reserved category candidate to compete with the general category candidate, all other things being equal. The State has not treated the relaxation in age and fee as relaxation in the standard for selection, based on the merit of the candidate in the selection test i.e. Main Written Test followed by Interview. Therefore, such relaxations cannot deprive a reserved category candidate of the right to be considered as a general category candidate on the basis of merit in the competitive examination. Sub-section (2) of Section 8 further provides that Government Orders in force on the commencement of the Act in respect of the concessions and relaxations including relaxation in upper age limit which are not inconsistent with the Act continue to be applicable till they are modified or revoked.”10. Having regard to the observations in paragraphs 65 and 72, in our view, the principles laid down in Jitendra Kumar Singh (supra) cannot be applied to the case in hand. As rightly pointed out by the High Court that judgment in Jitendra Kumar Singh (supra) was based on the statutory interpretation of the U.P. Act, 1994 and Government order dated 25.3.1994 which provides for entirely a different scheme.11. Be it noted, in the instant case, the appellant has not challenged the constitutional validity of the proceedings dated 1.7.1998 read with Rule 9 of the Export Inspection Agency (Recruitment) Rules, 1980. On a perusal of the prayer made in the writ petition we find that the appellant has only sought for a declaration that Exhibit P5 (proceedings dated 1.7.1998) is not binding on the appellant. No argument was canvassed challenging the constitutional validity of the proceedings before the learned Single Judge or before the Division Bench of the High Court.
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0[ds]7. On a combined reading of Rule 9 of the Export Inspection Agency (Recruitment) Rules, 1980 and also the proceedings dated 1.7.1998, we find that there is an express bar for the candidates belonging to SC/ST/OBC who have availed relaxation for being considered for General Category candidates.Having regard to the observations in paragraphs 65 and 72, in our view, the principles laid down in Jitendra Kumar Singh (supra) cannot be applied to the case in hand. As rightly pointed out by the High Court that judgment in Jitendra Kumar Singh (supra) was based on the statutory interpretation of the U.P. Act, 1994 and Government order dated 25.3.1994 which provides for entirely a different scheme.11. Be it noted, in the instant case, the appellant has not challenged the constitutional validity of the proceedings dated 1.7.1998 read with Rule 9 of the Export Inspection Agency (Recruitment) Rules, 1980. On a perusal of the prayer made in the writ petition we find that the appellant has only sought for a declaration that Exhibit P5 (proceedings dated 1.7.1998) is not binding on the appellant. No argument was canvassed challenging the constitutional validity of the proceedings before the learned Single Judge or before the Division Bench of the High Court.
| 0 | 1,932 | 235 |
### 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:
such rules, they are immediately suitably modified or deleted.4. These instructions shall take immediate effect in respect of direct recruitment made hereafter. These will also apply to selections where though the recruitment process has started, the result have not yet been announced unless in the Examination/Recruitment Rules or in the advertisement notified earlier there is a specific provision to the contrary and the manner in which the SC/ST vacancies could be filled has been indicated.Clarification:- The instructions contained in the above OM apply in all types of direct recruitment whether by written test alone or written test followed by the interview alone.2. The above OM and the O.M. No.36012/2/96-Estt.(Res.), dated 2.7.1997 provide that in cases of direct recruitment, the SC/ST/OBC candidates who are selected on their own merit will not be adjusted against reserved vacancies.3. In this connection, it is clarified that only such SC/ST/OBC candidates who are selected on the same standards as applied to general candidates shall not be adjusted against reserved vacancies. In other words, when a relaxed standard is applied in selecting an SC/ST/OBC candidates, for example in the age-limit, experience, qualification, permitted number of chances in written examination, extended zone of consideration larger than what is provided for general category candidates, etc., the SC/ST/OBC candidates are to be counted against reserved vacancies. Such candidates would be deemed as unavailable for consideration against unreserved vacancies.”(Underlining added)7. On a combined reading of Rule 9 of the Export Inspection Agency (Recruitment) Rules, 1980 and also the proceedings dated 1.7.1998, we find that there is an express bar for the candidates belonging to SC/ST/OBC who have availed relaxation for being considered for General Category candidates.8. Learned counsel for the appellant mainly relied upon the judgment of this Court in Jitendra Kumar Singh and Another v. State of Uttar Pradesh and Others, reported in (2010) 3 SCC 119 , which deals with the U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 and Government order dated 25.3.1994. On a perusal of the above judgment, we find that there is no express bar in the said U.P. Act for the candidates of SC/ST/OBC being considered for the posts under General Category. In such facts and circumstances of the said case, this Court has taken the view that the relaxation granted to the reserved category candidates will operate a level playing field. In the light of the express bar provided under the proceedings dated 1.7.1998 the principle laid down in Jitendra Kumar Singh (supra) cannot be applied to the case in hand.9. Learned senior counsel appearing for the respondents has also drawn our attention to paragraph Nos.65 and 72 in Jitendra Kumar Singh (supra) to contend that principle in Jitendra Kumar Singh (supra) are in the context of interpretation of U.P. Act 1994 and in the particular factual situation of the said case. Paragraphs 65 and 72, read as under:-“65. In any event the entire issue in the present appeals need not be decided on the general principles of law laid down in various judgments as noticed above. In these matters, we are concerned with the interpretation of the 1994 Act, the Instructions dated 25.3.1994 and the G.O. dated 26.2.1999. The controversy herein centres around the limited issue as to whether an OBC who has applied exercising his option as a reserved category candidate, thus becoming eligible to be considered against a reserved vacancy, can also be considered against an unreserved vacancy if he/she secures more marks than the last candidate in the general category.72. Soon after the enforcement of the 1994 Act the Government issued instructions dated 25.3.1994 on the subject of reservation for Scheduled Castes, Scheduled Tribes and other backward groups in the Uttar Pradesh Public Services. These instructions, inter alia, provide as under:-"4. If any person belonging to reserved categories is selected on the basis of merits in open competition along with general category candidates, then he will not be adjusted towards reserved category, that is, he shall be deemed to have been adjusted against the unreserved vacancies. It shall be immaterial that he has availed any facility or relaxation (like relaxation in age limit) available to reserved category."From the above it becomes quite apparent that the relaxation in age limit is merely to enable the reserved category candidate to compete with the general category candidate, all other things being equal. The State has not treated the relaxation in age and fee as relaxation in the standard for selection, based on the merit of the candidate in the selection test i.e. Main Written Test followed by Interview. Therefore, such relaxations cannot deprive a reserved category candidate of the right to be considered as a general category candidate on the basis of merit in the competitive examination. Sub-section (2) of Section 8 further provides that Government Orders in force on the commencement of the Act in respect of the concessions and relaxations including relaxation in upper age limit which are not inconsistent with the Act continue to be applicable till they are modified or revoked.”10. Having regard to the observations in paragraphs 65 and 72, in our view, the principles laid down in Jitendra Kumar Singh (supra) cannot be applied to the case in hand. As rightly pointed out by the High Court that judgment in Jitendra Kumar Singh (supra) was based on the statutory interpretation of the U.P. Act, 1994 and Government order dated 25.3.1994 which provides for entirely a different scheme.11. Be it noted, in the instant case, the appellant has not challenged the constitutional validity of the proceedings dated 1.7.1998 read with Rule 9 of the Export Inspection Agency (Recruitment) Rules, 1980. On a perusal of the prayer made in the writ petition we find that the appellant has only sought for a declaration that Exhibit P5 (proceedings dated 1.7.1998) is not binding on the appellant. No argument was canvassed challenging the constitutional validity of the proceedings before the learned Single Judge or before the Division Bench of the High Court.
### Response:
0
### Explanation:
7. On a combined reading of Rule 9 of the Export Inspection Agency (Recruitment) Rules, 1980 and also the proceedings dated 1.7.1998, we find that there is an express bar for the candidates belonging to SC/ST/OBC who have availed relaxation for being considered for General Category candidates.Having regard to the observations in paragraphs 65 and 72, in our view, the principles laid down in Jitendra Kumar Singh (supra) cannot be applied to the case in hand. As rightly pointed out by the High Court that judgment in Jitendra Kumar Singh (supra) was based on the statutory interpretation of the U.P. Act, 1994 and Government order dated 25.3.1994 which provides for entirely a different scheme.11. Be it noted, in the instant case, the appellant has not challenged the constitutional validity of the proceedings dated 1.7.1998 read with Rule 9 of the Export Inspection Agency (Recruitment) Rules, 1980. On a perusal of the prayer made in the writ petition we find that the appellant has only sought for a declaration that Exhibit P5 (proceedings dated 1.7.1998) is not binding on the appellant. No argument was canvassed challenging the constitutional validity of the proceedings before the learned Single Judge or before the Division Bench of the High Court.
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Air India Ltd Vs. M. Yogeshwar Raj
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was submitted on 29.4.1999. The Inquiry Committee came to the conclusion that the cast certificate dated 4th February, 1998 had turned out to be a bogus certificate. It was however noted that the original caste certificate submitted by the respondent in 1976 had been affirmed by a certificate issued from the office of the Collector, Hyderabad on 11.3.1999. The Inquiry Committee was of the View : "Merely securing a wrong or false certificate, by itself does not amount to a misconduct. The certificate may be false due to ignorance or incompetence and therefore a wrong or false certificate does not necessarily create delinquency on vary of the person who produces it." Accordingly, the inquiry committee found the respondent not guilty of the charges framed. 6. It was in this background that the show cause notice impugned by the respondent before the High Court was issued by the Disciplinary Authority. In substance, the notice staged that the caste certificate dated 4.2.1998 had been found to be forged. As far as the caste certificate dated 11.3.1999 was concerned it was stated that the address mentioned in the Collectors certificate had not been mentioned as the respondents place of residence in any of his records with the appellant. It was also stated that the Collectors letter did not refer to the caste certificate dated 4.2.1998 and that if the 1976 certificate was genuine, it was to be explained why the bogus caste certificate dated 4.2.1998 was produced. According to the notice, the Inquiry Committee had not dealt with these details in its report. The Disciplinary Authority concluded by saying : "In view of the above prima facie I am of the view that acts of misconduct levelled against you vide chargesheet referred to above has been established and tend to hold you guilty of the acts of misconduct and however before coming to such conclusions, I hereby give you an opportunity to submitting your say as to why you should not be held guilty of the above charges within 3 days of communicating of this letter to you. In case you fail to submit any satisfactory explanation within the stipulated period of time. I propose to award you the punishment of dismissal from the services of the Company without retirement benefits in full as per Clause No. 20(i) of the Certified Standing Orders applicable to you." 7. Clearly, the Disciplinary Authority was yet to make up his mind as to the guilt of the respondent. 8. According to the appellants, the challenge to the proceedings was premature and the High Court should not have entertained the writ application as disputed questions of fact were involved. However, we do not wish to deal with this aspect of the matter as the High Court by the order under appeal has issued a Rule Nisi and it will be open to the appellants to raise this and other contentions in their answer to the Rule. We are not aware as to the reason why the High Court was persuaded to issue a Rule Nisi, but in its further observations, "Prima facie, we are satisfied that the petitioner belongs to the Schedule CasteSchedule Tribe" and also grant of an interim or order staying the proceedings before the Disciplinary Authority were erroneous. 9. It appears from a copy of the writ petition that the respondent has not questioned the jurisdiction of the Disciplinary Authority to issue the impugned Show Cause Notice. The two issues of the respondents caste and whether he had adequately explained the production of the bogus certificate of 4.10.98 are yet to be decided by the Disciplinary Authority. Both the issues are primarily issue of fact. The High Court should not have preempted a factual decision of the disciplinary authority on the issues. Nor should the High Court have stayed the proceedings on a prima facie finding on the subject matter of enquiry particularly when the competence of the Disciplinary Authority was not in doubt. 10. The respondents reliance on the decision of Sur Enamel and Stamping Works (P) Ltd. v. Their Workmen 1964(3) SCR 616 and State of Haryana v. Om Prakash, Constable 1990 (Supp) SCC 282 is misplaced. In both cases, orders of dismissal had already been passed. Furthermore the orders of dismissal had been passed on proceedings which were not the subject matter of the charge and of which the employee had not been put on notice. In the case before us, apart from the fact that no final order has been passed by the Disciplinary Authority, the substance of the impugned notice in no way differs from that of the first notice. 11. The third decision noted by the respondent viz. State of Madhya Pradesh v. Bani Singh, 1990 (Supp) SCC 738 is also inappropriate. The decision (sic) to disciplinary proceedings initiated in respect of incidents which had taken place 12 years earlier. It was said: "...... The irregularities which were the subject matter of the enquiry is said to have taken place between the years 1975-77. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April 1977, there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 year to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage." 12. Here the disciplinary proceedings were initiated against the respondent because of the production of a bogus certificate dated 4.10.1998. The disciplinary proceedings were initiated on 29.12.98. There was no delay. Besides the respondent participated in the enquiry without protest. 13. We, therefore,
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1[ds]Here the disciplinary proceedings were initiated against the respondent because of the production of a bogus certificate dated 4.10.1998. The disciplinary proceedings were initiated on 29.12.98. There was no delay. Besides the respondent participated in the enquiry without protest.
| 1 | 1,604 | 47 |
### 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:
was submitted on 29.4.1999. The Inquiry Committee came to the conclusion that the cast certificate dated 4th February, 1998 had turned out to be a bogus certificate. It was however noted that the original caste certificate submitted by the respondent in 1976 had been affirmed by a certificate issued from the office of the Collector, Hyderabad on 11.3.1999. The Inquiry Committee was of the View : "Merely securing a wrong or false certificate, by itself does not amount to a misconduct. The certificate may be false due to ignorance or incompetence and therefore a wrong or false certificate does not necessarily create delinquency on vary of the person who produces it." Accordingly, the inquiry committee found the respondent not guilty of the charges framed. 6. It was in this background that the show cause notice impugned by the respondent before the High Court was issued by the Disciplinary Authority. In substance, the notice staged that the caste certificate dated 4.2.1998 had been found to be forged. As far as the caste certificate dated 11.3.1999 was concerned it was stated that the address mentioned in the Collectors certificate had not been mentioned as the respondents place of residence in any of his records with the appellant. It was also stated that the Collectors letter did not refer to the caste certificate dated 4.2.1998 and that if the 1976 certificate was genuine, it was to be explained why the bogus caste certificate dated 4.2.1998 was produced. According to the notice, the Inquiry Committee had not dealt with these details in its report. The Disciplinary Authority concluded by saying : "In view of the above prima facie I am of the view that acts of misconduct levelled against you vide chargesheet referred to above has been established and tend to hold you guilty of the acts of misconduct and however before coming to such conclusions, I hereby give you an opportunity to submitting your say as to why you should not be held guilty of the above charges within 3 days of communicating of this letter to you. In case you fail to submit any satisfactory explanation within the stipulated period of time. I propose to award you the punishment of dismissal from the services of the Company without retirement benefits in full as per Clause No. 20(i) of the Certified Standing Orders applicable to you." 7. Clearly, the Disciplinary Authority was yet to make up his mind as to the guilt of the respondent. 8. According to the appellants, the challenge to the proceedings was premature and the High Court should not have entertained the writ application as disputed questions of fact were involved. However, we do not wish to deal with this aspect of the matter as the High Court by the order under appeal has issued a Rule Nisi and it will be open to the appellants to raise this and other contentions in their answer to the Rule. We are not aware as to the reason why the High Court was persuaded to issue a Rule Nisi, but in its further observations, "Prima facie, we are satisfied that the petitioner belongs to the Schedule CasteSchedule Tribe" and also grant of an interim or order staying the proceedings before the Disciplinary Authority were erroneous. 9. It appears from a copy of the writ petition that the respondent has not questioned the jurisdiction of the Disciplinary Authority to issue the impugned Show Cause Notice. The two issues of the respondents caste and whether he had adequately explained the production of the bogus certificate of 4.10.98 are yet to be decided by the Disciplinary Authority. Both the issues are primarily issue of fact. The High Court should not have preempted a factual decision of the disciplinary authority on the issues. Nor should the High Court have stayed the proceedings on a prima facie finding on the subject matter of enquiry particularly when the competence of the Disciplinary Authority was not in doubt. 10. The respondents reliance on the decision of Sur Enamel and Stamping Works (P) Ltd. v. Their Workmen 1964(3) SCR 616 and State of Haryana v. Om Prakash, Constable 1990 (Supp) SCC 282 is misplaced. In both cases, orders of dismissal had already been passed. Furthermore the orders of dismissal had been passed on proceedings which were not the subject matter of the charge and of which the employee had not been put on notice. In the case before us, apart from the fact that no final order has been passed by the Disciplinary Authority, the substance of the impugned notice in no way differs from that of the first notice. 11. The third decision noted by the respondent viz. State of Madhya Pradesh v. Bani Singh, 1990 (Supp) SCC 738 is also inappropriate. The decision (sic) to disciplinary proceedings initiated in respect of incidents which had taken place 12 years earlier. It was said: "...... The irregularities which were the subject matter of the enquiry is said to have taken place between the years 1975-77. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April 1977, there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 year to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage." 12. Here the disciplinary proceedings were initiated against the respondent because of the production of a bogus certificate dated 4.10.1998. The disciplinary proceedings were initiated on 29.12.98. There was no delay. Besides the respondent participated in the enquiry without protest. 13. We, therefore,
### Response:
1
### Explanation:
Here the disciplinary proceedings were initiated against the respondent because of the production of a bogus certificate dated 4.10.1998. The disciplinary proceedings were initiated on 29.12.98. There was no delay. Besides the respondent participated in the enquiry without protest.
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Prafulla Kumar Malik Vs. Commissioner of Income Tax, Bihar and Orissa
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BHARGAVA J.1. This appeal on certificate granted by the High Court of Orissa under section 66A(2) of the Indian Income-tax Act, 1922, arises under the following circumstances During the calendar year 1954, which was the previous year relating to the assessment year 1955-56, the appellant worked as a paddy procuring agent under the Government of Orissa on the basis of an agreement entered into by the appellant and the Government of Orissa. Under that agreement, the appellant was required to supply paddy and rice of a certain standard quality known as "fair average quality". The criterion for the "fair average quality" was defined. There was a clause in the agreement that the quality of foodgrains supplied must conform to the "fair average quality" standard and that the Collector may, subject to the approval of the Government, levy such penalty as he may deem fit for supply of foodgrains not conforming to the "fair average quality", and such penalty shall be deducted from, the amount or amounts due to the agent on pending or future bills submitted in accordance with another clause of the agreement. In exercise of this power, during the course of the accounting year in question, penalties amounting to Rs. 25, 700 were imposed on the appellant and were realised by deduction from the bills. The appellant claimed deduction of this amount from the assessable income under section 10(1) of the Income-tax Act. The claim was negatived by the Income-tax Officer and the Appellate Assistant Commissioner, but was accepted by the Income-tax Appellate Tribunal. The Tribunal held that this amount of Rs. 25, 700 deducted by the Government from the bills of the appellant could not be brought to tax in view of section 10(1) of the Income-tax Act. Thereupon, the Commissioner of Income-tax asked for a reference to the High Court, and the Tribunal under section 66(1) of the Income-tax Act referred the following question for the opinion of the High Court"Whether, on the facts and in the circumstances of the case, the amount of Rs. 25, 700 paid by the assessee by way of penalty to the Government of Orissa shall be an admissible deduction under section 10(1) of the Income-tax Act, 1922 ?"2. The High Court, in dealing with this question, considered the provisions of section 10(2)(xv) of the Act and held that the deduction claimed by the appellant was not admissible as it amounted to a penalty imposed on the appellant for his dishonest action in supplying sub-standard quality goods, and that such penalty could not be said to be an expenditure incurred wholly and exclusively for the purpose of the business. It is quite obvious that the High Court, in answering the question on this basis, misdirected itself and totally misunderstood the question that was referred to it for opinion by the Tribunal. The appellant had at no stage contended that the Tribunal had wrongly held that this sum of Rs. 25, 700 was not deductible under section 10(2)(xv) of the Act as expenditure wholly and exclusively laid out for the purpose of the business, nor was this proposition the subject-matter of the question which was referred by the Tribunal for opinion to the High Court. In answering the question on this basis, therefore, the High Court did what it was not at all called upon to do and, thus, committed a clear error3. The High Court was actually required to answer the question whether this sum of Rs. 25, 700 which was paid by the assessee, by way of penalty to the Government of Orissa was an admissible deduction under section 10(1) of the Income-tax Act. The question was, no doubt, framed in rather unfortunate language, because section 10(1) of the Income-tax Act does not refer to any deduction. Section 10(1) lays down that the tax shall be payable by an assessee under the head " profits and gains of business, profession or vocation " in respect of the profits or gains of any business, profession or vocation carried on by him. In these circumstances, what the appellant had claimed was that, in the computation of profits and gains of business, profession or vocation under section 10(1) of the Act, this amount should be deducted, which was intended to mean that this amount should not be included in the computation of the profits and gains of the business. The word " deduction " appears to have been used by the appellant as well as by the Tribunal only because the dispute related to a sum which had been deducted by the Government of Orissa as a penalty from the amount due to the appellant for the supplies made by him in pursuance of the agreement. The High Court, therefore, in answering the question referred to it, should not have gone into the question of the applicability of section 10(2)(xv) of the Act at all, and should have confined itself to deciding whether this amount deducted from the claims of the assessee by the Government of Orissa was liable to be excluded when computing the income under section 10(1) of the Act.
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1[ds]2. The High Court, in dealing with this question, considered the provisions of section 10(2)(xv) of the Act and held that the deduction claimed by the appellant was not admissible as it amounted to a penalty imposed on the appellant for his dishonest action in supplyingquality goods, and that such penalty could not be said to be an expenditure incurred wholly and exclusively for the purpose of the business. It is quite obvious that the High Court, in answering the question on this basis, misdirected itself and totally misunderstood the question that was referred to it for opinion by the Tribunal. The appellant had at no stage contended that the Tribunal had wrongly held that this sum of Rs. 25, 700 was not deductible under section 10(2)(xv) of the Act as expenditure wholly and exclusively laid out for the purpose of the business, nor was this proposition theof the question which was referred by the Tribunal for opinion to the High Court. In answering the question on this basis, therefore, the High Court did what it was not at all called upon to do and, thus, committed a clear error3. The High Court was actually required to answer the question whether this sum of Rs. 25, 700 which was paid by the assessee, by way of penalty to the Government of Orissa was an admissible deduction under section 10(1) of theAct. The question was, no doubt, framed in rather unfortunate language, because section 10(1) of theAct does not refer to any deduction. Section 10(1) lays down that the tax shall be payable by an assessee under the head " profits and gains of business, profession or vocation " in respect of the profits or gains of any business, profession or vocation carried on by him. In these circumstances, what the appellant had claimed was that, in the computation of profits and gains of business, profession or vocation under section 10(1) of the Act, this amount should be deducted, which was intended to mean that this amount should not be included in the computation of the profits and gains of the business. The word " deduction " appears to have been used by the appellant as well as by the Tribunal only because the dispute related to a sum which had been deducted by the Government of Orissa as a penalty from the amount due to the appellant for the supplies made by him in pursuance of the agreement. The High Court, therefore, in answering the question referred to it, should not have gone into the question of the applicability of section 10(2)(xv) of the Act at all, and should have confined itself to deciding whether this amount deducted from the claims of the assessee by the Government of Orissa was liable to be excluded when computing the income under section 10(1) of the Act.
| 1 | 981 | 551 |
### 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:
BHARGAVA J.1. This appeal on certificate granted by the High Court of Orissa under section 66A(2) of the Indian Income-tax Act, 1922, arises under the following circumstances During the calendar year 1954, which was the previous year relating to the assessment year 1955-56, the appellant worked as a paddy procuring agent under the Government of Orissa on the basis of an agreement entered into by the appellant and the Government of Orissa. Under that agreement, the appellant was required to supply paddy and rice of a certain standard quality known as "fair average quality". The criterion for the "fair average quality" was defined. There was a clause in the agreement that the quality of foodgrains supplied must conform to the "fair average quality" standard and that the Collector may, subject to the approval of the Government, levy such penalty as he may deem fit for supply of foodgrains not conforming to the "fair average quality", and such penalty shall be deducted from, the amount or amounts due to the agent on pending or future bills submitted in accordance with another clause of the agreement. In exercise of this power, during the course of the accounting year in question, penalties amounting to Rs. 25, 700 were imposed on the appellant and were realised by deduction from the bills. The appellant claimed deduction of this amount from the assessable income under section 10(1) of the Income-tax Act. The claim was negatived by the Income-tax Officer and the Appellate Assistant Commissioner, but was accepted by the Income-tax Appellate Tribunal. The Tribunal held that this amount of Rs. 25, 700 deducted by the Government from the bills of the appellant could not be brought to tax in view of section 10(1) of the Income-tax Act. Thereupon, the Commissioner of Income-tax asked for a reference to the High Court, and the Tribunal under section 66(1) of the Income-tax Act referred the following question for the opinion of the High Court"Whether, on the facts and in the circumstances of the case, the amount of Rs. 25, 700 paid by the assessee by way of penalty to the Government of Orissa shall be an admissible deduction under section 10(1) of the Income-tax Act, 1922 ?"2. The High Court, in dealing with this question, considered the provisions of section 10(2)(xv) of the Act and held that the deduction claimed by the appellant was not admissible as it amounted to a penalty imposed on the appellant for his dishonest action in supplying sub-standard quality goods, and that such penalty could not be said to be an expenditure incurred wholly and exclusively for the purpose of the business. It is quite obvious that the High Court, in answering the question on this basis, misdirected itself and totally misunderstood the question that was referred to it for opinion by the Tribunal. The appellant had at no stage contended that the Tribunal had wrongly held that this sum of Rs. 25, 700 was not deductible under section 10(2)(xv) of the Act as expenditure wholly and exclusively laid out for the purpose of the business, nor was this proposition the subject-matter of the question which was referred by the Tribunal for opinion to the High Court. In answering the question on this basis, therefore, the High Court did what it was not at all called upon to do and, thus, committed a clear error3. The High Court was actually required to answer the question whether this sum of Rs. 25, 700 which was paid by the assessee, by way of penalty to the Government of Orissa was an admissible deduction under section 10(1) of the Income-tax Act. The question was, no doubt, framed in rather unfortunate language, because section 10(1) of the Income-tax Act does not refer to any deduction. Section 10(1) lays down that the tax shall be payable by an assessee under the head " profits and gains of business, profession or vocation " in respect of the profits or gains of any business, profession or vocation carried on by him. In these circumstances, what the appellant had claimed was that, in the computation of profits and gains of business, profession or vocation under section 10(1) of the Act, this amount should be deducted, which was intended to mean that this amount should not be included in the computation of the profits and gains of the business. The word " deduction " appears to have been used by the appellant as well as by the Tribunal only because the dispute related to a sum which had been deducted by the Government of Orissa as a penalty from the amount due to the appellant for the supplies made by him in pursuance of the agreement. The High Court, therefore, in answering the question referred to it, should not have gone into the question of the applicability of section 10(2)(xv) of the Act at all, and should have confined itself to deciding whether this amount deducted from the claims of the assessee by the Government of Orissa was liable to be excluded when computing the income under section 10(1) of the Act.
### Response:
1
### Explanation:
2. The High Court, in dealing with this question, considered the provisions of section 10(2)(xv) of the Act and held that the deduction claimed by the appellant was not admissible as it amounted to a penalty imposed on the appellant for his dishonest action in supplyingquality goods, and that such penalty could not be said to be an expenditure incurred wholly and exclusively for the purpose of the business. It is quite obvious that the High Court, in answering the question on this basis, misdirected itself and totally misunderstood the question that was referred to it for opinion by the Tribunal. The appellant had at no stage contended that the Tribunal had wrongly held that this sum of Rs. 25, 700 was not deductible under section 10(2)(xv) of the Act as expenditure wholly and exclusively laid out for the purpose of the business, nor was this proposition theof the question which was referred by the Tribunal for opinion to the High Court. In answering the question on this basis, therefore, the High Court did what it was not at all called upon to do and, thus, committed a clear error3. The High Court was actually required to answer the question whether this sum of Rs. 25, 700 which was paid by the assessee, by way of penalty to the Government of Orissa was an admissible deduction under section 10(1) of theAct. The question was, no doubt, framed in rather unfortunate language, because section 10(1) of theAct does not refer to any deduction. Section 10(1) lays down that the tax shall be payable by an assessee under the head " profits and gains of business, profession or vocation " in respect of the profits or gains of any business, profession or vocation carried on by him. In these circumstances, what the appellant had claimed was that, in the computation of profits and gains of business, profession or vocation under section 10(1) of the Act, this amount should be deducted, which was intended to mean that this amount should not be included in the computation of the profits and gains of the business. The word " deduction " appears to have been used by the appellant as well as by the Tribunal only because the dispute related to a sum which had been deducted by the Government of Orissa as a penalty from the amount due to the appellant for the supplies made by him in pursuance of the agreement. The High Court, therefore, in answering the question referred to it, should not have gone into the question of the applicability of section 10(2)(xv) of the Act at all, and should have confined itself to deciding whether this amount deducted from the claims of the assessee by the Government of Orissa was liable to be excluded when computing the income under section 10(1) of the Act.
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Rajvi Amar Singh Vs. The State Of Rajasthan
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311 of the Constitution was violated. If this contention is sound, it will follow that the fresh appointment as Civil Judge after the High Courts order will also be bad for the same reasons.15. Now it is well established that when one State is absorbed in another whether by accession, conquest, merger or integration, all contracts of service between the prior Government and its servants automatically terminate and thereafter those who elect to serve in the new State, and are taken on by it, serve on such terms and conditions as the new State may choose to impose. This is nothing more, (though on a more exalted scale), than an application of the principle that underlies the law of Master and Servant when there is a change of masters. So far as this Court is concerned, the law is settled by the decision in State of Madras v. K. M. Rajagoplan, 1955-2 SCR 541 at p. 562:( (S) AIR 1955 SC 817 at p 830)(A), which follows the decisions of the Privy council and the House of Lords in Reilly v. The King, 1934 A. C. 176 (B), and Nokes v. Doncaster Amalgamated Collieries Ltd. 1940 A. C. 1014 (C). The distinction between rights to properly and contractual rights when there is a change of sovereignty was pointed out in Virendra Singh v. State of Uttar Pradesh 1955-1 SCR 415 at p. 427: (AIR 1954 Sc 447 at p. 451)(D).16. The appellant founds on Art. XVI (1) of the Covenant. It was contended that he cannot rely on this because he was not a party to it but we need not decide this because, even if this be assumed to be the law of the new State settling the conditions of service of those who continue in service, all that it says is that the conditions of their service will not be less advantageous than those on which they were serving on 1-11-1948. We have shown above that this condition is fulfilled.17. But that apart, Article XVI (1) indicates that the old contracts terminate just as they did in 1955-2 SCR at p. 562: ((S) AIR 1955 SC 817 ) (A). In the first place, there were three options:(1) continuance in service(2) payment of reasonable compensation, and(3) retirement on proportionate Pension.That shows that the old contracts terminated and that those who continued in service did so on the basis of fresh contracts, the conditions of which had yet to be determined. The only guarantee (assuming that the appellant can avail himself of it) was that the new conditions were not to be less advantageous than those on which the appellant was serving on 1-11-1948. There was no guarantee that they would be the same or better.18. This was emphasised in the Rajasthan Gazette Extraordinary dated 4-6-1949. It first referred to the broad outlines of the programme of integration that had already been published and then outlined the procedure and principles to be observed in carrying it out. Paragraph 6 is as follows:"After final orders have been passed by the Government on the Departmental reorganisation schemes and cadres and strength for different kinds of establishments in each department are fixed, the heads of departments will prepare gradation lists according to prescribed rules and put up proposals fixation of each individual Government servant in the posts on permanent, officiating or deputation basis.They will also determined the revised rates of pay admissible to each Gazetted and non-Gazetted officer under the new scales etc."And then paragraph 15-"It is not the intention of Government to throw any Government servant out of employ as far as practicable. If necessary, services of efficient and deserving staff will be retained temporarily on supernumerary basis in the prospect of finding work for them in connection with new development schemes."19. The order of 9-12-1949, on which the appellant relies, transferring him as District and Sessions Judge to the District Court at Ganganagar, must be read subject to the above and, if Article XVI (1) of the Covenant applies, then subject to that as well. An order of transfer cannot be equated to an order of appointment; and in any case, the new cadres had not been established and the new Courts under the proposed scheme of re-organisation had not been constituted, so anything done at that stage could only have been part and parcel of the temporary transitional arrangements pending the final settlement by the new State of the schemes and conditions of service.20. The next set of orders published in the Gazette of 25-2-1950, brings this out clearly,. We have already set out its terms.21. The order of 25-3-1950 and 31-7-1950, sanctioning the increment do not help the appellant, He is described thereas"Shri Rajvi Amar Singh, District and Sessions Judge in Bikaner Division."This is merely descriptive as the endorsement on the letter indicates. It runs-"Copy forwarded to-(1) Shri Amar Singh, Civil and Addl. Sessions Judge, Jhunjhunu."No determination to post the appellant permanently in a particular cadre and post can be spelled out of these accidental descriptions in orders dealing with a different matter. Postings to a cadre and engagements of service are not made in this incidental way.22. The substantive appointment gazetted on 23-4-1951, after the new cadres and Courts had been fixed, was struck down by the High Court, and the Government of Rajasthan was directed to treat that as an ad hoc appointment. According to the respondent in its statement of the case, the matter was regularised after the High Courts decision and he appellant was again appointed a Civil Judge. If that is so, then this must be regarded as his first substantive appointment in the new State.But whether this is first substantive appointment after the integration, or the one of 23-4-1951, no question of reduction in rank can arise and so Art, 311 is not attracted. All his previous posting in the new State were purely transitional and temporary; and so far as Art. XVI(1) of the Covenant is concerned, its guarantee has been fulfilled.23.
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0[ds]it is well established that when one State is absorbed in another whether by accession, conquest, merger or integration, all contracts of service between the prior Government and its servants automatically terminate and thereafter those who elect to serve in the new State, and are taken on by it, serve on such terms and conditions as the new State may choose to impose. This is nothing more, (though on a more exalted scale), than an application of the principle that underlies the law of Master and Servant when there is a change ofthe first place, there were three options:(1) continuance in service(2) payment of reasonable compensation, and(3) retirement on proportionate Pension.That shows that the old contracts terminated and that those who continued in service did so on the basis of fresh contracts, the conditions of which had yet to be determined. The only guarantee (assuming that the appellant can avail himself of it) was that the new conditions were not to be less advantageous than those on which the appellant was serving on 1-11-1948. There was no guarantee that they would be the same ororder of transfer cannot be equated to an order of appointment; and in any case, the new cadres had not been established and the new Courts under the proposed scheme of re-organisation had not been constituted, so anything done at that stage could only have been part and parcel of the temporary transitional arrangements pending the final settlement by the new State of the schemes and conditions ofsubstantive appointment gazetted on 23-4-1951, after the new cadres and Courts had been fixed, was struck down by the High Court, and the Government of Rajasthan was directed to treat that as an ad hoc appointment. According to the respondent in its statement of the case, the matter was regularised after the High Courts decision and he appellant was again appointed a Civil Judge. If that is so, then this must be regarded as his first substantive appointment in the new State.But whether this is first substantive appointment after the integration, or the one of 23-4-1951, no question of reduction in rank can arise and so Art, 311 is not attracted. All his previous posting in the new State were purely transitional and temporary; and so far as Art. XVI(1) of the Covenant is concerned, its guarantee has been fulfilled.
| 0 | 2,481 | 444 |
### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
311 of the Constitution was violated. If this contention is sound, it will follow that the fresh appointment as Civil Judge after the High Courts order will also be bad for the same reasons.15. Now it is well established that when one State is absorbed in another whether by accession, conquest, merger or integration, all contracts of service between the prior Government and its servants automatically terminate and thereafter those who elect to serve in the new State, and are taken on by it, serve on such terms and conditions as the new State may choose to impose. This is nothing more, (though on a more exalted scale), than an application of the principle that underlies the law of Master and Servant when there is a change of masters. So far as this Court is concerned, the law is settled by the decision in State of Madras v. K. M. Rajagoplan, 1955-2 SCR 541 at p. 562:( (S) AIR 1955 SC 817 at p 830)(A), which follows the decisions of the Privy council and the House of Lords in Reilly v. The King, 1934 A. C. 176 (B), and Nokes v. Doncaster Amalgamated Collieries Ltd. 1940 A. C. 1014 (C). The distinction between rights to properly and contractual rights when there is a change of sovereignty was pointed out in Virendra Singh v. State of Uttar Pradesh 1955-1 SCR 415 at p. 427: (AIR 1954 Sc 447 at p. 451)(D).16. The appellant founds on Art. XVI (1) of the Covenant. It was contended that he cannot rely on this because he was not a party to it but we need not decide this because, even if this be assumed to be the law of the new State settling the conditions of service of those who continue in service, all that it says is that the conditions of their service will not be less advantageous than those on which they were serving on 1-11-1948. We have shown above that this condition is fulfilled.17. But that apart, Article XVI (1) indicates that the old contracts terminate just as they did in 1955-2 SCR at p. 562: ((S) AIR 1955 SC 817 ) (A). In the first place, there were three options:(1) continuance in service(2) payment of reasonable compensation, and(3) retirement on proportionate Pension.That shows that the old contracts terminated and that those who continued in service did so on the basis of fresh contracts, the conditions of which had yet to be determined. The only guarantee (assuming that the appellant can avail himself of it) was that the new conditions were not to be less advantageous than those on which the appellant was serving on 1-11-1948. There was no guarantee that they would be the same or better.18. This was emphasised in the Rajasthan Gazette Extraordinary dated 4-6-1949. It first referred to the broad outlines of the programme of integration that had already been published and then outlined the procedure and principles to be observed in carrying it out. Paragraph 6 is as follows:"After final orders have been passed by the Government on the Departmental reorganisation schemes and cadres and strength for different kinds of establishments in each department are fixed, the heads of departments will prepare gradation lists according to prescribed rules and put up proposals fixation of each individual Government servant in the posts on permanent, officiating or deputation basis.They will also determined the revised rates of pay admissible to each Gazetted and non-Gazetted officer under the new scales etc."And then paragraph 15-"It is not the intention of Government to throw any Government servant out of employ as far as practicable. If necessary, services of efficient and deserving staff will be retained temporarily on supernumerary basis in the prospect of finding work for them in connection with new development schemes."19. The order of 9-12-1949, on which the appellant relies, transferring him as District and Sessions Judge to the District Court at Ganganagar, must be read subject to the above and, if Article XVI (1) of the Covenant applies, then subject to that as well. An order of transfer cannot be equated to an order of appointment; and in any case, the new cadres had not been established and the new Courts under the proposed scheme of re-organisation had not been constituted, so anything done at that stage could only have been part and parcel of the temporary transitional arrangements pending the final settlement by the new State of the schemes and conditions of service.20. The next set of orders published in the Gazette of 25-2-1950, brings this out clearly,. We have already set out its terms.21. The order of 25-3-1950 and 31-7-1950, sanctioning the increment do not help the appellant, He is described thereas"Shri Rajvi Amar Singh, District and Sessions Judge in Bikaner Division."This is merely descriptive as the endorsement on the letter indicates. It runs-"Copy forwarded to-(1) Shri Amar Singh, Civil and Addl. Sessions Judge, Jhunjhunu."No determination to post the appellant permanently in a particular cadre and post can be spelled out of these accidental descriptions in orders dealing with a different matter. Postings to a cadre and engagements of service are not made in this incidental way.22. The substantive appointment gazetted on 23-4-1951, after the new cadres and Courts had been fixed, was struck down by the High Court, and the Government of Rajasthan was directed to treat that as an ad hoc appointment. According to the respondent in its statement of the case, the matter was regularised after the High Courts decision and he appellant was again appointed a Civil Judge. If that is so, then this must be regarded as his first substantive appointment in the new State.But whether this is first substantive appointment after the integration, or the one of 23-4-1951, no question of reduction in rank can arise and so Art, 311 is not attracted. All his previous posting in the new State were purely transitional and temporary; and so far as Art. XVI(1) of the Covenant is concerned, its guarantee has been fulfilled.23.
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it is well established that when one State is absorbed in another whether by accession, conquest, merger or integration, all contracts of service between the prior Government and its servants automatically terminate and thereafter those who elect to serve in the new State, and are taken on by it, serve on such terms and conditions as the new State may choose to impose. This is nothing more, (though on a more exalted scale), than an application of the principle that underlies the law of Master and Servant when there is a change ofthe first place, there were three options:(1) continuance in service(2) payment of reasonable compensation, and(3) retirement on proportionate Pension.That shows that the old contracts terminated and that those who continued in service did so on the basis of fresh contracts, the conditions of which had yet to be determined. The only guarantee (assuming that the appellant can avail himself of it) was that the new conditions were not to be less advantageous than those on which the appellant was serving on 1-11-1948. There was no guarantee that they would be the same ororder of transfer cannot be equated to an order of appointment; and in any case, the new cadres had not been established and the new Courts under the proposed scheme of re-organisation had not been constituted, so anything done at that stage could only have been part and parcel of the temporary transitional arrangements pending the final settlement by the new State of the schemes and conditions ofsubstantive appointment gazetted on 23-4-1951, after the new cadres and Courts had been fixed, was struck down by the High Court, and the Government of Rajasthan was directed to treat that as an ad hoc appointment. According to the respondent in its statement of the case, the matter was regularised after the High Courts decision and he appellant was again appointed a Civil Judge. If that is so, then this must be regarded as his first substantive appointment in the new State.But whether this is first substantive appointment after the integration, or the one of 23-4-1951, no question of reduction in rank can arise and so Art, 311 is not attracted. All his previous posting in the new State were purely transitional and temporary; and so far as Art. XVI(1) of the Covenant is concerned, its guarantee has been fulfilled.
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Oramba Sundari Dasi Vs. Ishwar Gopal Jieu & Others
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with the provisions of the Act. Obviously, this new decree is to be passed in favour of the original decree-holder and only the calculations upon which the old decree was based would be changed by substituting the statutory method of accounting in place of what rested upon the contract between the parties. Clause (b) and (c) contemplate cases where properties have been sold in execution of the original decree.5. If the purchaser is the decree-holder himself and he is in possession of the property when the decree is reopened, it is incumbent upon the court to order restoration of these properties to the judgment-debtor under Cl. (c). If, on the other hand, the properties had been acquired by strangers either by purchase at the execution sale or from the decree-holder purchaser, their interests would be protected if they have acquired these rights bona fide as contemplated by Cl. (b).Under Cl. (d), the Court has to order the payment of the decretal amount in such installments as it thinks proper, and Cl. (e) further imposes a duty on the Court to give a direction in such cases that if there is default in the payment of any one of the instalments, the properties restored to the judgment-debtor under Cl. (c) would be put back into the possession of the decree-holder.6. It is true that the object of restoring possession of the properties sold in execution of the decree to the judgment-debtor is to enable the latter to pay off the decretal dues, but it is to be remembered that the sale itself is not annulled, and in case of default in payment of any one of the instalments, the properties restored to the judgment-debtor under Cl. (c) would be put back into the possession of the decree-holder.7. It is true that the object of restoring possession of the properties sold in execution of the decree to the judgment-debtor is to enable the latter to pay off the decretal dues, but it is to be remembered that the sale itself is not annulled, and in case of default in payment of any of the instalments, the properties are returned to the decree-holder purchaser.8. We agree that if the purchaser is a mere benamidar for the decree-holder, Cl. (b), sub-s. (2) of the Section would not afford protection to him in any way. He could not be regarded as a person other than the decree-holder acquiring rights bona fide as contemplated by that clause. For the purpose of giving effect to Cls. (b) and (c), therefore, the Court has not only the right but is under a duty to make an enquiry as to whether the ostensible purchaser at the execution sale, or the person who purports to have acquired an interest therein under a subsequent transfer from the decree-holder purchaser, has bona fide acquired such rights within the meaning of clause (b).9. But we do not agree with the learned Judges of the High Court that in making a new decree under Cl. (a) of S. 36(2) and giving the judgment-debtor consequential relief under Cl. (c) of the sub-Section, the Court can at all enter into the question as to whether the decree-holder on record is himself a benamidar for another person in respect of the decree. Such enquiry, it seems to us, is altogether outside the purview of the different clauses of S. 36(2), Bengal Money-Lenders Act.10. These provisions do not recognise any other decree-holder than the one in whose favour the original decree was passed. It is between him and the judgment-debtor that the rights are to be adjusted in accordance with the provisions of the Act; to him would the instalments have to be paid under the new decree, and he alone would be compelled to restore the properties which he has purchased in execution proceedings. None but the decree-holder on record can give a valid discharge or record satisfaction of the decree.11. This being the position, it is altogether immaterial, in our opinion, that it was Aghore, the husband of the appellant, who really advanced the money upon which the decrees were obtained. We must treat the Charabortys and the Chakrabortys alone as the decree-holders and see to what extent the provisions of the Act could be applied against them in the circumstances of the present case. So far as the properties described in Schedules Kaa and Kha are concerned, it is not disputed that they were purchased by the decree-holders themselves.12. No price was actually paid by the decree-holders, but the sale proceeds were set off against the decretal dues. The decree-holders, therefore, must be deemed to be the purchasers of these properties within the meaning of Cl. (c) of S. 36(2); and as the subsequent conveyance of these properties, in favour of Oramba Sundari, the appellant, has been held by both the Courts below to be a fictitious transaction, we must hold that Oramba Sundari did not bona fide acquire any right which could be protected under Cl. (b) of S. 36(2).13. With regard to these properties, therefore, the order for restoration of possession made by both the Courts below should stand. As regards Ga Schedule properties, however, Oramba Sundari was the purchaser at the execution sale and whether or not the money for such purchase was paid by her husband becomes immaterial. This was not the property purchased by the decree holders and there is no proof of the decree-holders being in possession of the same either by themselves or through Oramba Sundari.14. In these circumstances, Cl. (c) of S. 36(2) cannot be attracted in favour of judgment debtors so far as this property is concerned and the possession of it must remain with the appellant. We, therefore, allow the appeal in part and set aside the order for restoration of possession made by the Court below in respect to the Ga Schedule property. The rest of the decision of the High Court will stand. We make no order as to costs of these appeals.15.
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1[ds]If the purchaser is the decree-holder himself and he is in possession of the property when the decree is reopened, it is incumbent upon the court to order restoration of these properties to the judgment-debtor under Cl. (c). If, on the other hand, the properties had been acquired by strangers either by purchase at the execution sale or from the decree-holder purchaser, their interests would be protected if they have acquired these rights bona fide as contemplated by Cl.Cl. (d), the Court has to order the payment of the decretal amount in such installments as it thinks proper, and Cl. (e) further imposes a duty on the Court to give a direction in such cases that if there is default in the payment of any one of the instalments, the properties restored to the judgment-debtor under Cl. (c) would be put back into the possession of theis true that the object of restoring possession of the properties sold in execution of the decree to the judgment-debtor is to enable the latter to pay off the decretal dues, but it is to be remembered that the sale itself is not annulled, and in case of default in payment of any one of the instalments, the properties restored to the judgment-debtor under Cl. (c) would be put back into the possession of theis true that the object of restoring possession of the properties sold in execution of the decree to the judgment-debtor is to enable the latter to pay off the decretal dues, but it is to be remembered that the sale itself is not annulled, and in case of default in payment of any of the instalments, the properties are returned to the decree-holderagree that if the purchaser is a mere benamidar for the decree-holder, Cl. (b), sub-s. (2) of the Section would not afford protection to him in any way. He could not be regarded as a person other than the decree-holder acquiring rights bona fide as contemplated by that clause. For the purpose of giving effect to Cls. (b) and (c), therefore, the Court has not only the right but is under a duty to make an enquiry as to whether the ostensible purchaser at the execution sale, or the person who purports to have acquired an interest therein under a subsequent transfer from the decree-holder purchaser, has bona fide acquired such rights within the meaning of clausewe do not agree with the learned Judges of the High Court that in making a new decree under Cl. (a) of S. 36(2) and giving the judgment-debtor consequential relief under Cl. (c) of the sub-Section, the Court can at all enter into the question as to whether the decree-holder on record is himself a benamidar for another person in respect of the decree. Such enquiry, it seems to us, is altogether outside the purview of the different clauses of S. 36(2), Bengal Money-Lendersprovisions do not recognise any other decree-holder than the one in whose favour the original decree was passed. It is between him and the judgment-debtor that the rights are to be adjusted in accordance with the provisions of the Act; to him would the instalments have to be paid under the new decree, and he alone would be compelled to restore the properties which he has purchased in execution proceedings. None but the decree-holder on record can give a valid discharge or record satisfaction of thebeing the position, it is altogether immaterial, in our opinion, that it was Aghore, the husband of the appellant, who really advanced the money upon which the decrees were obtained. We must treat the Charabortys and the Chakrabortys alone as the decree-holders and see to what extent the provisions of the Act could be applied against them in the circumstances of the present case. So far as the properties described in Schedules Kaa and Kha are concerned, it is not disputed that they were purchased by the decree-holdersprice was actually paid by the decree-holders, but the sale proceeds were set off against the decretal dues. The decree-holders, therefore, must be deemed to be the purchasers of these properties within the meaning of Cl. (c) of S. 36(2); and as the subsequent conveyance of these properties, in favour of Oramba Sundari, the appellant, has been held by both the Courts below to be a fictitious transaction, we must hold that Oramba Sundari did not bona fide acquire any right which could be protected under Cl. (b) of S.regard to these properties, therefore, the order for restoration of possession made by both the Courts below should stand. As regards Ga Schedule properties, however, Oramba Sundari was the purchaser at the execution sale and whether or not the money for such purchase was paid by her husband becomes immaterial. This was not the property purchased by the decree holders and there is no proof of the decree-holders being in possession of the same either by themselves or through Orambathese circumstances, Cl. (c) of S. 36(2) cannot be attracted in favour of judgment debtors so far as this property is concerned and the possession of it must remain with the appellant. We, therefore, allow the appeal in part and set aside the order for restoration of possession made by the Court below in respect to the Ga Schedule property. The rest of the decision of the High Court will stand.
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### 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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with the provisions of the Act. Obviously, this new decree is to be passed in favour of the original decree-holder and only the calculations upon which the old decree was based would be changed by substituting the statutory method of accounting in place of what rested upon the contract between the parties. Clause (b) and (c) contemplate cases where properties have been sold in execution of the original decree.5. If the purchaser is the decree-holder himself and he is in possession of the property when the decree is reopened, it is incumbent upon the court to order restoration of these properties to the judgment-debtor under Cl. (c). If, on the other hand, the properties had been acquired by strangers either by purchase at the execution sale or from the decree-holder purchaser, their interests would be protected if they have acquired these rights bona fide as contemplated by Cl. (b).Under Cl. (d), the Court has to order the payment of the decretal amount in such installments as it thinks proper, and Cl. (e) further imposes a duty on the Court to give a direction in such cases that if there is default in the payment of any one of the instalments, the properties restored to the judgment-debtor under Cl. (c) would be put back into the possession of the decree-holder.6. It is true that the object of restoring possession of the properties sold in execution of the decree to the judgment-debtor is to enable the latter to pay off the decretal dues, but it is to be remembered that the sale itself is not annulled, and in case of default in payment of any one of the instalments, the properties restored to the judgment-debtor under Cl. (c) would be put back into the possession of the decree-holder.7. It is true that the object of restoring possession of the properties sold in execution of the decree to the judgment-debtor is to enable the latter to pay off the decretal dues, but it is to be remembered that the sale itself is not annulled, and in case of default in payment of any of the instalments, the properties are returned to the decree-holder purchaser.8. We agree that if the purchaser is a mere benamidar for the decree-holder, Cl. (b), sub-s. (2) of the Section would not afford protection to him in any way. He could not be regarded as a person other than the decree-holder acquiring rights bona fide as contemplated by that clause. For the purpose of giving effect to Cls. (b) and (c), therefore, the Court has not only the right but is under a duty to make an enquiry as to whether the ostensible purchaser at the execution sale, or the person who purports to have acquired an interest therein under a subsequent transfer from the decree-holder purchaser, has bona fide acquired such rights within the meaning of clause (b).9. But we do not agree with the learned Judges of the High Court that in making a new decree under Cl. (a) of S. 36(2) and giving the judgment-debtor consequential relief under Cl. (c) of the sub-Section, the Court can at all enter into the question as to whether the decree-holder on record is himself a benamidar for another person in respect of the decree. Such enquiry, it seems to us, is altogether outside the purview of the different clauses of S. 36(2), Bengal Money-Lenders Act.10. These provisions do not recognise any other decree-holder than the one in whose favour the original decree was passed. It is between him and the judgment-debtor that the rights are to be adjusted in accordance with the provisions of the Act; to him would the instalments have to be paid under the new decree, and he alone would be compelled to restore the properties which he has purchased in execution proceedings. None but the decree-holder on record can give a valid discharge or record satisfaction of the decree.11. This being the position, it is altogether immaterial, in our opinion, that it was Aghore, the husband of the appellant, who really advanced the money upon which the decrees were obtained. We must treat the Charabortys and the Chakrabortys alone as the decree-holders and see to what extent the provisions of the Act could be applied against them in the circumstances of the present case. So far as the properties described in Schedules Kaa and Kha are concerned, it is not disputed that they were purchased by the decree-holders themselves.12. No price was actually paid by the decree-holders, but the sale proceeds were set off against the decretal dues. The decree-holders, therefore, must be deemed to be the purchasers of these properties within the meaning of Cl. (c) of S. 36(2); and as the subsequent conveyance of these properties, in favour of Oramba Sundari, the appellant, has been held by both the Courts below to be a fictitious transaction, we must hold that Oramba Sundari did not bona fide acquire any right which could be protected under Cl. (b) of S. 36(2).13. With regard to these properties, therefore, the order for restoration of possession made by both the Courts below should stand. As regards Ga Schedule properties, however, Oramba Sundari was the purchaser at the execution sale and whether or not the money for such purchase was paid by her husband becomes immaterial. This was not the property purchased by the decree holders and there is no proof of the decree-holders being in possession of the same either by themselves or through Oramba Sundari.14. In these circumstances, Cl. (c) of S. 36(2) cannot be attracted in favour of judgment debtors so far as this property is concerned and the possession of it must remain with the appellant. We, therefore, allow the appeal in part and set aside the order for restoration of possession made by the Court below in respect to the Ga Schedule property. The rest of the decision of the High Court will stand. We make no order as to costs of these appeals.15.
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### Explanation:
If the purchaser is the decree-holder himself and he is in possession of the property when the decree is reopened, it is incumbent upon the court to order restoration of these properties to the judgment-debtor under Cl. (c). If, on the other hand, the properties had been acquired by strangers either by purchase at the execution sale or from the decree-holder purchaser, their interests would be protected if they have acquired these rights bona fide as contemplated by Cl.Cl. (d), the Court has to order the payment of the decretal amount in such installments as it thinks proper, and Cl. (e) further imposes a duty on the Court to give a direction in such cases that if there is default in the payment of any one of the instalments, the properties restored to the judgment-debtor under Cl. (c) would be put back into the possession of theis true that the object of restoring possession of the properties sold in execution of the decree to the judgment-debtor is to enable the latter to pay off the decretal dues, but it is to be remembered that the sale itself is not annulled, and in case of default in payment of any one of the instalments, the properties restored to the judgment-debtor under Cl. (c) would be put back into the possession of theis true that the object of restoring possession of the properties sold in execution of the decree to the judgment-debtor is to enable the latter to pay off the decretal dues, but it is to be remembered that the sale itself is not annulled, and in case of default in payment of any of the instalments, the properties are returned to the decree-holderagree that if the purchaser is a mere benamidar for the decree-holder, Cl. (b), sub-s. (2) of the Section would not afford protection to him in any way. He could not be regarded as a person other than the decree-holder acquiring rights bona fide as contemplated by that clause. For the purpose of giving effect to Cls. (b) and (c), therefore, the Court has not only the right but is under a duty to make an enquiry as to whether the ostensible purchaser at the execution sale, or the person who purports to have acquired an interest therein under a subsequent transfer from the decree-holder purchaser, has bona fide acquired such rights within the meaning of clausewe do not agree with the learned Judges of the High Court that in making a new decree under Cl. (a) of S. 36(2) and giving the judgment-debtor consequential relief under Cl. (c) of the sub-Section, the Court can at all enter into the question as to whether the decree-holder on record is himself a benamidar for another person in respect of the decree. Such enquiry, it seems to us, is altogether outside the purview of the different clauses of S. 36(2), Bengal Money-Lendersprovisions do not recognise any other decree-holder than the one in whose favour the original decree was passed. It is between him and the judgment-debtor that the rights are to be adjusted in accordance with the provisions of the Act; to him would the instalments have to be paid under the new decree, and he alone would be compelled to restore the properties which he has purchased in execution proceedings. None but the decree-holder on record can give a valid discharge or record satisfaction of thebeing the position, it is altogether immaterial, in our opinion, that it was Aghore, the husband of the appellant, who really advanced the money upon which the decrees were obtained. We must treat the Charabortys and the Chakrabortys alone as the decree-holders and see to what extent the provisions of the Act could be applied against them in the circumstances of the present case. So far as the properties described in Schedules Kaa and Kha are concerned, it is not disputed that they were purchased by the decree-holdersprice was actually paid by the decree-holders, but the sale proceeds were set off against the decretal dues. The decree-holders, therefore, must be deemed to be the purchasers of these properties within the meaning of Cl. (c) of S. 36(2); and as the subsequent conveyance of these properties, in favour of Oramba Sundari, the appellant, has been held by both the Courts below to be a fictitious transaction, we must hold that Oramba Sundari did not bona fide acquire any right which could be protected under Cl. (b) of S.regard to these properties, therefore, the order for restoration of possession made by both the Courts below should stand. As regards Ga Schedule properties, however, Oramba Sundari was the purchaser at the execution sale and whether or not the money for such purchase was paid by her husband becomes immaterial. This was not the property purchased by the decree holders and there is no proof of the decree-holders being in possession of the same either by themselves or through Orambathese circumstances, Cl. (c) of S. 36(2) cannot be attracted in favour of judgment debtors so far as this property is concerned and the possession of it must remain with the appellant. We, therefore, allow the appeal in part and set aside the order for restoration of possession made by the Court below in respect to the Ga Schedule property. The rest of the decision of the High Court will stand.
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M/s Daddy’s Builders Pvt. Ltd. & Another Vs. Manisha Bhargava and Another
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of the Constitution Bench of this Court in the case of New India Assurance company Limited v. Hilli Multipurpose Cold Storage Private Limited, reported in (2020) 5 SCC 757 , the District Forum has no power to extend the time to file the response to the complaint beyond the period of 15 days in addition to 30 days as is envisaged under Section 13 of the Act. It is submitted that however as observed in paragraph 63, the said judgment shall be applicable prospectively only. Therefore, it is the case on behalf of the petitioners that the aforesaid decision shall not be applicable retrospectively, and more particularly to the complaints filed before the said decision. It is submitted that in the present case the application for condition of delay came up for consideration before the State Commission on 26.09.2018 and on that date there was a judgment of this Court in the case of Reliance General Insurance Co. Ltd. v. M/s Mampee Timbers & Hardwares Pvt. Ltd. (Diary No. 2365 of 2017 decided on 10.02.2017) directing the consumer fora to accept the written statement beyond the stipulated time of 45 days in an appropriate case, on suitable terms, including the payment of costs and to proceed with the matter, keeping in view the fact that the judgment of this Court in the case of New India Assurance Company Limited v. Hilli Multipurpose Cold Storage Private Limited, reported in (2015) 16 SCC 20 has been referred to a larger Bench. Therefore, it is the case on behalf of the petitioners that the State Commission ought to have condoned the delay in filing the written statement/written version to the consumer complaint. 4. Having heard learned counsel appearing on behalf of the petitioners and so far as the question whether the date on which the State Commission passed the order, then on that date, whether the State Commission has the power to condone the delay beyond 45 days for filing the written statement under Section 13 of the Act is concerned, as such, the said issue whether the State Commission has the power to condone the delay beyond 45 days is now not resintegra in view of the Constitution Bench decision of this Court in the case of New India Assurance Company Limited v. Hilli Multipurpose Cold Storage Pvt. Ltd. reported in (2020) 5 SCC 757. However, it is submitted by the learned counsel appearing on behalf of the petitioners that as in paragraph 63 it is observed that the said judgment shall be applicable prospectively and therefore the said decision shall not be applicable to the complaint which was filed prior to the said judgment and/or the said decision shall not be applicable to the application for condonation of delay filed before the said decision. However, the aforesaid cannot be accepted. It is required to be noted that as per the decision of this Court in the case of J.J. Merchant v. Shrinath Chaturvedi, reported in (2002) 6 SCC 635 , which was a three Judge Bench decision, consumer fora has no power to extend the time for filing a reply/written statement beyond the period prescribed under the Act. However, thereafter, despite the above three Judge Bench decision, a contrary view was taken by a two Judge Bench and therefore the matter was referred to the five Judge Bench and the Constitution Bench has reiterated the view taken in the case of J.J.Merchant (supra) and has again reiterated that the consumer fora has no power and/or jurisdiction to accept the written statement beyond the statutory period prescribed under the Act, i.e., 45 days in all. However, it was found that in view of the order passed by this Court in Reliance General Insurance Co. Ltd. (supra) dated 10.02.2017, pending the decision of the larger Bench, in some of the cases, the State Commission might have condoned the delay in filing the written statement filed beyond the stipulated time of 45 days and all those orders condoning the delay and accepting the written statements shall not be affected, this Court observed in paragraph 63 that the decision of the Constitution Bench shall be applicable prospectively. We say so because one of us was a party to the said decision of the Constitution Bench. 5. Now so far as the reliance placed upon the order passed by this Court dated 10.02.2017 in the case of Reliance General Insurance Co. Ltd. (supra) is concerned, the same has been dealt with in detail by the National Commission by the impugned order while deciding the first appeal. As rightly observed by the National Commission, there was no mandate that in all the cases where the written statement was submitted beyond the stipulated period of 45 days, the delay must be condoned and the written statement must be taken on record. In order dated 10.02.2017, it is specifically mentioned that it will be open to the concerned fora to accept the written statement filed beyond the stipulated period of 45 days in an appropriate case, on suitable terms, including the payment of costs and to proceed with the matter. Therefore, ultimately, it was left to the concerned fora to accept the written statement beyond the stipulated period of 45 days in an appropriate case. As observed by the National Commission that despite sufficient time granted the written statement was not filed within the prescribed period of limitation. Therefore, the National Commission has considered the aspect of condonation of delay on merits also. In any case, in view of the earlier decision of this Court in the case of J.J. Merchant (supra) and the subsequent authoritative decision of the Constitution Bench of this Court in the case of New India Assurance Company Limited v. Hilli Multipurpose Cold Storage Pvt. Ltd. (2020) 5 SCC 757 , consumer fora has no jurisdiction and/or power to accept the written statement beyond the period of 45 days, we see no reason to interfere with the impugned order passed by the learned National Commission.
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0[ds]the said issue whether the State Commission has the power to condone the delay beyond 45 days is now not resintegra in view of the Constitution Bench decision of this Court in the case of New India Assurance Company Limited v. Hilli Multipurpose Cold Storage Pvt. Ltd. reported in (2020) 5 SCC 757. However, the aforesaid cannot be accepted. It is required to be noted that as per the decision of this Court in the case of J.J. Merchant v. Shrinath Chaturvedi, reported in (2002) 6 SCC 635 , which was a three Judge Bench decision, consumer fora has no power to extend the time for filing a reply/written statement beyond the period prescribed under the Act. However, thereafter, despite the above three Judge Bench decision, a contrary view was taken by a two Judge Bench and therefore the matter was referred to the five Judge Bench and the Constitution Bench has reiterated the view taken in the case of J.J.Merchant (supra) and has again reiterated that the consumer fora has no power and/or jurisdiction to accept the written statement beyond the statutory period prescribed under the Act, i.e., 45 days in all. However, it was found that in view of the order passed by this Court in Reliance General Insurance Co. Ltd. (supra) dated 10.02.2017, pending the decision of the larger Bench, in some of the cases, the State Commission might have condoned the delay in filing the written statement filed beyond the stipulated time of 45 days and all those orders condoning the delay and accepting the written statements shall not be affected, this Court observed in paragraph 63 that the decision of the Constitution Bench shall be applicable prospectively. We say so because one of us was a party to the said decision of the Constitution Bench.5. Now so far as the reliance placed upon the order passed by this Court dated 10.02.2017 in the case of Reliance General Insurance Co. Ltd. (supra) is concerned, the same has been dealt with in detail by the National Commission by the impugned order while deciding the first appeal. As rightly observed by the National Commission, there was no mandate that in all the cases where the written statement was submitted beyond the stipulated period of 45 days, the delay must be condoned and the written statement must be taken on record. In order dated 10.02.2017, it is specifically mentioned that it will be open to the concerned fora to accept the written statement filed beyond the stipulated period of 45 days in an appropriate case, on suitable terms, including the payment of costs and to proceed with the matter. Therefore, ultimately, it was left to the concerned fora to accept the written statement beyond the stipulated period of 45 days in an appropriate case. As observed by the National Commission that despite sufficient time granted the written statement was not filed within the prescribed period of limitation. Therefore, the National Commission has considered the aspect of condonation of delay on merits also. In any case, in view of the earlier decision of this Court in the case of J.J. Merchant (supra) and the subsequent authoritative decision of the Constitution Bench of this Court in the case of New India Assurance Company Limited v. Hilli Multipurpose Cold Storage Pvt. Ltd. (2020) 5 SCC 757 , consumer fora has no jurisdiction and/or power to accept the written statement beyond the period of 45 days, we see no reason to interfere with the impugned order passed by the learned National Commission.
| 0 | 1,370 | 649 |
### 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:
of the Constitution Bench of this Court in the case of New India Assurance company Limited v. Hilli Multipurpose Cold Storage Private Limited, reported in (2020) 5 SCC 757 , the District Forum has no power to extend the time to file the response to the complaint beyond the period of 15 days in addition to 30 days as is envisaged under Section 13 of the Act. It is submitted that however as observed in paragraph 63, the said judgment shall be applicable prospectively only. Therefore, it is the case on behalf of the petitioners that the aforesaid decision shall not be applicable retrospectively, and more particularly to the complaints filed before the said decision. It is submitted that in the present case the application for condition of delay came up for consideration before the State Commission on 26.09.2018 and on that date there was a judgment of this Court in the case of Reliance General Insurance Co. Ltd. v. M/s Mampee Timbers & Hardwares Pvt. Ltd. (Diary No. 2365 of 2017 decided on 10.02.2017) directing the consumer fora to accept the written statement beyond the stipulated time of 45 days in an appropriate case, on suitable terms, including the payment of costs and to proceed with the matter, keeping in view the fact that the judgment of this Court in the case of New India Assurance Company Limited v. Hilli Multipurpose Cold Storage Private Limited, reported in (2015) 16 SCC 20 has been referred to a larger Bench. Therefore, it is the case on behalf of the petitioners that the State Commission ought to have condoned the delay in filing the written statement/written version to the consumer complaint. 4. Having heard learned counsel appearing on behalf of the petitioners and so far as the question whether the date on which the State Commission passed the order, then on that date, whether the State Commission has the power to condone the delay beyond 45 days for filing the written statement under Section 13 of the Act is concerned, as such, the said issue whether the State Commission has the power to condone the delay beyond 45 days is now not resintegra in view of the Constitution Bench decision of this Court in the case of New India Assurance Company Limited v. Hilli Multipurpose Cold Storage Pvt. Ltd. reported in (2020) 5 SCC 757. However, it is submitted by the learned counsel appearing on behalf of the petitioners that as in paragraph 63 it is observed that the said judgment shall be applicable prospectively and therefore the said decision shall not be applicable to the complaint which was filed prior to the said judgment and/or the said decision shall not be applicable to the application for condonation of delay filed before the said decision. However, the aforesaid cannot be accepted. It is required to be noted that as per the decision of this Court in the case of J.J. Merchant v. Shrinath Chaturvedi, reported in (2002) 6 SCC 635 , which was a three Judge Bench decision, consumer fora has no power to extend the time for filing a reply/written statement beyond the period prescribed under the Act. However, thereafter, despite the above three Judge Bench decision, a contrary view was taken by a two Judge Bench and therefore the matter was referred to the five Judge Bench and the Constitution Bench has reiterated the view taken in the case of J.J.Merchant (supra) and has again reiterated that the consumer fora has no power and/or jurisdiction to accept the written statement beyond the statutory period prescribed under the Act, i.e., 45 days in all. However, it was found that in view of the order passed by this Court in Reliance General Insurance Co. Ltd. (supra) dated 10.02.2017, pending the decision of the larger Bench, in some of the cases, the State Commission might have condoned the delay in filing the written statement filed beyond the stipulated time of 45 days and all those orders condoning the delay and accepting the written statements shall not be affected, this Court observed in paragraph 63 that the decision of the Constitution Bench shall be applicable prospectively. We say so because one of us was a party to the said decision of the Constitution Bench. 5. Now so far as the reliance placed upon the order passed by this Court dated 10.02.2017 in the case of Reliance General Insurance Co. Ltd. (supra) is concerned, the same has been dealt with in detail by the National Commission by the impugned order while deciding the first appeal. As rightly observed by the National Commission, there was no mandate that in all the cases where the written statement was submitted beyond the stipulated period of 45 days, the delay must be condoned and the written statement must be taken on record. In order dated 10.02.2017, it is specifically mentioned that it will be open to the concerned fora to accept the written statement filed beyond the stipulated period of 45 days in an appropriate case, on suitable terms, including the payment of costs and to proceed with the matter. Therefore, ultimately, it was left to the concerned fora to accept the written statement beyond the stipulated period of 45 days in an appropriate case. As observed by the National Commission that despite sufficient time granted the written statement was not filed within the prescribed period of limitation. Therefore, the National Commission has considered the aspect of condonation of delay on merits also. In any case, in view of the earlier decision of this Court in the case of J.J. Merchant (supra) and the subsequent authoritative decision of the Constitution Bench of this Court in the case of New India Assurance Company Limited v. Hilli Multipurpose Cold Storage Pvt. Ltd. (2020) 5 SCC 757 , consumer fora has no jurisdiction and/or power to accept the written statement beyond the period of 45 days, we see no reason to interfere with the impugned order passed by the learned National Commission.
### Response:
0
### Explanation:
the said issue whether the State Commission has the power to condone the delay beyond 45 days is now not resintegra in view of the Constitution Bench decision of this Court in the case of New India Assurance Company Limited v. Hilli Multipurpose Cold Storage Pvt. Ltd. reported in (2020) 5 SCC 757. However, the aforesaid cannot be accepted. It is required to be noted that as per the decision of this Court in the case of J.J. Merchant v. Shrinath Chaturvedi, reported in (2002) 6 SCC 635 , which was a three Judge Bench decision, consumer fora has no power to extend the time for filing a reply/written statement beyond the period prescribed under the Act. However, thereafter, despite the above three Judge Bench decision, a contrary view was taken by a two Judge Bench and therefore the matter was referred to the five Judge Bench and the Constitution Bench has reiterated the view taken in the case of J.J.Merchant (supra) and has again reiterated that the consumer fora has no power and/or jurisdiction to accept the written statement beyond the statutory period prescribed under the Act, i.e., 45 days in all. However, it was found that in view of the order passed by this Court in Reliance General Insurance Co. Ltd. (supra) dated 10.02.2017, pending the decision of the larger Bench, in some of the cases, the State Commission might have condoned the delay in filing the written statement filed beyond the stipulated time of 45 days and all those orders condoning the delay and accepting the written statements shall not be affected, this Court observed in paragraph 63 that the decision of the Constitution Bench shall be applicable prospectively. We say so because one of us was a party to the said decision of the Constitution Bench.5. Now so far as the reliance placed upon the order passed by this Court dated 10.02.2017 in the case of Reliance General Insurance Co. Ltd. (supra) is concerned, the same has been dealt with in detail by the National Commission by the impugned order while deciding the first appeal. As rightly observed by the National Commission, there was no mandate that in all the cases where the written statement was submitted beyond the stipulated period of 45 days, the delay must be condoned and the written statement must be taken on record. In order dated 10.02.2017, it is specifically mentioned that it will be open to the concerned fora to accept the written statement filed beyond the stipulated period of 45 days in an appropriate case, on suitable terms, including the payment of costs and to proceed with the matter. Therefore, ultimately, it was left to the concerned fora to accept the written statement beyond the stipulated period of 45 days in an appropriate case. As observed by the National Commission that despite sufficient time granted the written statement was not filed within the prescribed period of limitation. Therefore, the National Commission has considered the aspect of condonation of delay on merits also. In any case, in view of the earlier decision of this Court in the case of J.J. Merchant (supra) and the subsequent authoritative decision of the Constitution Bench of this Court in the case of New India Assurance Company Limited v. Hilli Multipurpose Cold Storage Pvt. Ltd. (2020) 5 SCC 757 , consumer fora has no jurisdiction and/or power to accept the written statement beyond the period of 45 days, we see no reason to interfere with the impugned order passed by the learned National Commission.
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M/S. SOUTH EASTERN COALFIELDS LTD Vs. COMMNR. OF CENTRAL EXCISE,TRICHY/MADURAI
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months] shall not apply where any duty has been paid under protest.(2) If, on receipt of any such application, the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] is satisfied that the whole or any part of the duty of excise paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund :Provided that the amount of duty of excise as determined by the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to –(a)…..(b)….(c)….(d)….(e) the duty of excise borne by the buyer, if he had not passed on the incidence of such duty to any other person;(f)….(3) ….(4) …(5) For the removal of any notification issued under clause (f) of doubts, it is hereby declared that the first proviso to sub-section (2), including any such notification approved or modified under sub-section (4), may be rescinded by the Central Government at any time by notification in the Official Gazette.][Explanation. — For the purposes of this section, -(A) ….(B) ?relevant date? means, -(a) …(i) …(ii) …(iii) ….(b) ….(c) ….(d)….(e) in the case of a person, other than the manufacturer, the date of purchase of the goods by such person;] in the case of goods which are exempt from payment of duty(eb) ….(ec) ….(f) ….?11. It is not disputed that the excise duty was paid by the manufacturer(M/s. Fenner (India) Ltd.) under protest to the department and the dispute with regard to the classification of the product finally came to be decided by this Court in M/s. Fenner India?s case(supra) and the manufacturer M/s. Fenner (India) Ltd. never moved any application for refund of the excise duty at any given point of time. The appellant herein is the buyer and purchased conveyor beltings from the manufacturer M/s. Fenner (India) Ltd. during the period 20 th July, 1988 to 15 th January, 1994 indicated in Civil Appeal No. 7625 of 2005. The period for which the refund of excise duty has been claimed differs but in all the cases, applications have been filed by the appellant(buyer) much after the period of limitation which was six months from the date of purchase of goods at the time of filing of the application to claim refund under Section 11B of the Act.12. Section 11B deals with the claim of refund of duty as paid on his own accord by any person for refund of such duty to the competent authority before the expiry of six months from the relevant date as prescribed but where the duty was paid under protest in terms of the 2 nd proviso to Section 11B(1), the period of limitation may not apply. Although the buyer can also apply for refund provided the duty of excise is borne by the buyer and he had not passed on the incidence of such duty to any other person as referred to under Section 11B(2)(e) and the application has been moved within the period of six months from the relevant date of purchase of the goods by such person in terms of Section 11B(5)(B)(e) of the Act. The scheme of Section 11B makes a distinction between right of the manufacturer to claim refund from right of the buyer to claim refund treating them separate and distinct for making an application for refund exercising their right under Section 11B of the Act and it has been examined by the three-Judge Bench of this Court in Commissioner of Central Excise, Mumbai-II Vs. Allied Photographics India Ltd. case(supra) as under:-"Therefore, Section 11-B(3) stated that no refund shall be made except in terms of Section 11-B(2). Section 11-B(2)( e ) conferred a right on the buyer to claim refund in cases where he proved that he had not passed on the duty to any other person. The entire scheme of Section 11-B showed the difference between the rights of a manufacturer to claim refund and the right of the buyer to claim refund as separate and distinct. Moreover, under Section 4 of the said Act, every payment by the manufacturer whether under protest or under provisional assessment was on his own account. The accounts of the manufacturer are different from the accounts of a buyer(distributor). Consequently, there is no merit in the argument advanced on behalf of the respondent that the distributor was entitled to claim refund of ?on-account? payment made under protest by the manufacturer without complying with Section 11-B of the Act.?It was further held as under:-?Having come to the conclusion that the respondent was bound to comply with Section 11B of the Act and having come to the conclusion that the refund application dated 11-2-1997 was time-barred in terms of Section 11B of the Act, we are not required to go into the merits of the claim for refund by the respondent who has alleged that it has not passed on the burden of duty to its dealers.?13. It may be appropriate to notice that the view earlier expressed by the two-Judge Bench of this Court in National Winder Vs. Commissioner of Central Excise, Allahabad 2003(11) SCC 361 was held to be per incuriam in Commissioner of Central Excise, Mumbai-II Vs. Allied Photographics India Ltd. case(supra).14. In the instant case, indisputedly the application was filed by the appellant as a buyer of the goods(conveyor belts) from M/s. Fenner (India) Ltd. who paid the duty under protest much after a period of limitation(six months) as prescribed under the mandate of law disentitles the claim of refund to the appellant as prayed for in view of the judgment of this Court in Commissoiner of Central Excise, Mumbai-II Vs. Allied Photographics India Ltd. case(supra) holding that the purchaser of the goods was not entitled to claim refund of duty made under protest by the manufacturer without complying the mandate of Section 11B of the Act, 1944.
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0[ds]11. It is not disputed that the excise duty was paid by the manufacturer(M/s. Fenner (India) Ltd.) under protest to the department and the dispute with regard to the classification of the product finally came to be decided by this Court in M/s. Fenner India?s case(supra) and the manufacturer M/s. Fenner (India) Ltd. never moved any application for refund of the excise duty at any given point of time. The appellant herein is the buyer and purchased conveyor beltings from the manufacturer M/s. Fenner (India) Ltd. during the period 20 th July, 1988 to 15 th January, 1994 indicated in Civil Appeal No. 7625 of 2005. The period for which the refund of excise duty has been claimed differs but in all the cases, applications have been filed by the appellant(buyer) much after the period of limitation which was six months from the date of purchase of goods at the time of filing of the application to claim refund under Section 11B of the Act.It may be appropriate to notice that the view earlier expressed by the two-Judge Bench of this Court in National Winder Vs. Commissioner of Central Excise, Allahabad 2003(11) SCC 361 was held to be per incuriam in Commissioner of Central Excise, Mumbai-II Vs. Allied Photographics India Ltd. case(supra).14. In the instant case, indisputedly the application was filed by the appellant as a buyer of the goods(conveyor belts) from M/s. Fenner (India) Ltd. who paid the duty under protest much after a period of limitation(six months) as prescribed under the mandate of law disentitles the claim of refund to the appellant as prayed for in view of the judgment of this Court in Commissoiner of Central Excise, Mumbai-II Vs. Allied Photographics India Ltd. case(supra) holding that the purchaser of the goods was not entitled to claim refund of duty made under protest by the manufacturer without complying the mandate of Section 11B of the Act, 1944.
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### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
months] shall not apply where any duty has been paid under protest.(2) If, on receipt of any such application, the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] is satisfied that the whole or any part of the duty of excise paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund :Provided that the amount of duty of excise as determined by the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] under the foregoing provisions of this sub-section shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to –(a)…..(b)….(c)….(d)….(e) the duty of excise borne by the buyer, if he had not passed on the incidence of such duty to any other person;(f)….(3) ….(4) …(5) For the removal of any notification issued under clause (f) of doubts, it is hereby declared that the first proviso to sub-section (2), including any such notification approved or modified under sub-section (4), may be rescinded by the Central Government at any time by notification in the Official Gazette.][Explanation. — For the purposes of this section, -(A) ….(B) ?relevant date? means, -(a) …(i) …(ii) …(iii) ….(b) ….(c) ….(d)….(e) in the case of a person, other than the manufacturer, the date of purchase of the goods by such person;] in the case of goods which are exempt from payment of duty(eb) ….(ec) ….(f) ….?11. It is not disputed that the excise duty was paid by the manufacturer(M/s. Fenner (India) Ltd.) under protest to the department and the dispute with regard to the classification of the product finally came to be decided by this Court in M/s. Fenner India?s case(supra) and the manufacturer M/s. Fenner (India) Ltd. never moved any application for refund of the excise duty at any given point of time. The appellant herein is the buyer and purchased conveyor beltings from the manufacturer M/s. Fenner (India) Ltd. during the period 20 th July, 1988 to 15 th January, 1994 indicated in Civil Appeal No. 7625 of 2005. The period for which the refund of excise duty has been claimed differs but in all the cases, applications have been filed by the appellant(buyer) much after the period of limitation which was six months from the date of purchase of goods at the time of filing of the application to claim refund under Section 11B of the Act.12. Section 11B deals with the claim of refund of duty as paid on his own accord by any person for refund of such duty to the competent authority before the expiry of six months from the relevant date as prescribed but where the duty was paid under protest in terms of the 2 nd proviso to Section 11B(1), the period of limitation may not apply. Although the buyer can also apply for refund provided the duty of excise is borne by the buyer and he had not passed on the incidence of such duty to any other person as referred to under Section 11B(2)(e) and the application has been moved within the period of six months from the relevant date of purchase of the goods by such person in terms of Section 11B(5)(B)(e) of the Act. The scheme of Section 11B makes a distinction between right of the manufacturer to claim refund from right of the buyer to claim refund treating them separate and distinct for making an application for refund exercising their right under Section 11B of the Act and it has been examined by the three-Judge Bench of this Court in Commissioner of Central Excise, Mumbai-II Vs. Allied Photographics India Ltd. case(supra) as under:-"Therefore, Section 11-B(3) stated that no refund shall be made except in terms of Section 11-B(2). Section 11-B(2)( e ) conferred a right on the buyer to claim refund in cases where he proved that he had not passed on the duty to any other person. The entire scheme of Section 11-B showed the difference between the rights of a manufacturer to claim refund and the right of the buyer to claim refund as separate and distinct. Moreover, under Section 4 of the said Act, every payment by the manufacturer whether under protest or under provisional assessment was on his own account. The accounts of the manufacturer are different from the accounts of a buyer(distributor). Consequently, there is no merit in the argument advanced on behalf of the respondent that the distributor was entitled to claim refund of ?on-account? payment made under protest by the manufacturer without complying with Section 11-B of the Act.?It was further held as under:-?Having come to the conclusion that the respondent was bound to comply with Section 11B of the Act and having come to the conclusion that the refund application dated 11-2-1997 was time-barred in terms of Section 11B of the Act, we are not required to go into the merits of the claim for refund by the respondent who has alleged that it has not passed on the burden of duty to its dealers.?13. It may be appropriate to notice that the view earlier expressed by the two-Judge Bench of this Court in National Winder Vs. Commissioner of Central Excise, Allahabad 2003(11) SCC 361 was held to be per incuriam in Commissioner of Central Excise, Mumbai-II Vs. Allied Photographics India Ltd. case(supra).14. In the instant case, indisputedly the application was filed by the appellant as a buyer of the goods(conveyor belts) from M/s. Fenner (India) Ltd. who paid the duty under protest much after a period of limitation(six months) as prescribed under the mandate of law disentitles the claim of refund to the appellant as prayed for in view of the judgment of this Court in Commissoiner of Central Excise, Mumbai-II Vs. Allied Photographics India Ltd. case(supra) holding that the purchaser of the goods was not entitled to claim refund of duty made under protest by the manufacturer without complying the mandate of Section 11B of the Act, 1944.
### Response:
0
### Explanation:
11. It is not disputed that the excise duty was paid by the manufacturer(M/s. Fenner (India) Ltd.) under protest to the department and the dispute with regard to the classification of the product finally came to be decided by this Court in M/s. Fenner India?s case(supra) and the manufacturer M/s. Fenner (India) Ltd. never moved any application for refund of the excise duty at any given point of time. The appellant herein is the buyer and purchased conveyor beltings from the manufacturer M/s. Fenner (India) Ltd. during the period 20 th July, 1988 to 15 th January, 1994 indicated in Civil Appeal No. 7625 of 2005. The period for which the refund of excise duty has been claimed differs but in all the cases, applications have been filed by the appellant(buyer) much after the period of limitation which was six months from the date of purchase of goods at the time of filing of the application to claim refund under Section 11B of the Act.It may be appropriate to notice that the view earlier expressed by the two-Judge Bench of this Court in National Winder Vs. Commissioner of Central Excise, Allahabad 2003(11) SCC 361 was held to be per incuriam in Commissioner of Central Excise, Mumbai-II Vs. Allied Photographics India Ltd. case(supra).14. In the instant case, indisputedly the application was filed by the appellant as a buyer of the goods(conveyor belts) from M/s. Fenner (India) Ltd. who paid the duty under protest much after a period of limitation(six months) as prescribed under the mandate of law disentitles the claim of refund to the appellant as prayed for in view of the judgment of this Court in Commissoiner of Central Excise, Mumbai-II Vs. Allied Photographics India Ltd. case(supra) holding that the purchaser of the goods was not entitled to claim refund of duty made under protest by the manufacturer without complying the mandate of Section 11B of the Act, 1944.
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Infosys Technologies Ltd Vs. Jupiter Infosys Ltd.
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injured if the trade mark is allowed to stand; and by ‘possible’ I mean possible in a practical sense, and not merely in a fantastic view.... All cases of this kind, where the original registration is not illegal or improper, ought to be considered as questions of common sense, to a certain extent, at any rate; and I think the applicants ought to show something approaching a sufficient or proper reason for applying to have the trade mark expunged. It certainly is not sufficient reason that they are at loggerheads with the respondents or desire in some way to injure them.’34. Addisons’ application was one under Section 46 and the test to determine whether the applicant was a ‘person aggrieved’ within the meaning of that section should have been the one laid down by Romer, J. in Wright case and not the one propounded by the House of Lords in the matter of Powell’s Trade Mark. The High Court and the Joint Registrar fell into error in not drawing this distinction. However, it is not necessary to dilate on this aspect of the matter as the appellant has really argued on the second and third aspects of Section 46 viz. the alleged non-use of the trade marks by Hardie and special circumstances”. 29. In the case of Hardie Trading Ltd., (supra) this Court approved the test applied by Romer, J. in The Royal Baking Powder Company v. Wright, Crossley, and Co., (1898) 15 RPC 677 which has been reproduced in para 33 of the report. We respectfully agree. 30. Hardie Trading Ltd. (supra) has been followed by this Court in a recent decision in the case of Kabushiki Kaisha Toshiba, This Court stated that Section 46 speaks for private interest while Section 56 speaks of a public interest.31. It is true that the appellant in opposition to the applications for removal/rectification of trade mark did not specifically challenge in its counter affidavits the locus standi of the first respondent to be heard as a person aggrieved. Obviously, in the absence of any specific objection by the appellant to that effect, no specific issue was framed by the High Court whether the applicant was an aggrieved person. The applications having been transferred to the IPAB in terms of Section 100 of the 1999 Act, the IPAB examined the matter in light of the issues that were framed by the High Court although in the written submissions before it, the objection was raised that the first respondent has ceased to have locus standi in view of the subsequent events, particularly change of the name of the first respondent from Jupiter Infosys Ltd. to Jupiter International Ltd. The question is, whether in these circumstances it was incumbent upon the IPAB to consider and satisfy itself about the locus standi of the first respondent to be heard as a person aggrieved. In our considered view, it was. In the first place, when the first respondent applied for rectification/removal in respect of three registrations in Classes 7, 9 and 16, it must have shown in respect of each of them that it is a ‘person aggrieved’ and the IPAB must have separately considered in respect of each registration the locus standi of the first respondent as the considerations for each entry might not have been common. Secondly, and more importantly, during the pendency of the applications, certain events had taken place which had some bearing on the question of locus standi of the first respondent insofar as invocation of Section 46(1) of the 1958 Act is concerned. In the affidavit filed by the first respondent on July 14, 2004 before the Court of Additional District Judge, Delhi an unequivocal and categorical statement has been made that now there is no dispute between the plaintiff (appellant herein) and defendant (first respondent herein) under the trade mark and that defendant has already changed the trade mark namely “Jupiter International Ltd.” in place of “Jupiter Infosys Ltd.” 32. In terms of Section 46(1), not only that the applicant has to show that he is an aggrieved person as his interest is being affected but the IPAB must also be satisfied, before it directs the removal of registered trade mark, that the applicant is an aggrieved person before it invokes the power in directing the removal of the registered trade mark. This is so because the pre-requisite for exercise of power under Section 46(1) is that the applicant is a person aggrieved. 33. The question then arises, whether it is sufficient for the applicant to show that he is a person aggrieved when he makes his application or he must continue to remain a person aggrieved until such time as the rectification/removal application is finally decided. In our view, the grievance of the applicant when he invokes Section 46(1) must not only be taken to have existed on the date of making application but must continue to exist when such application is decided. If during the pendency of such application, the applicant’s cause of complaint does not survive or his grievance does not subsist due to his own action or the applicant has waived his right or he has lost his interest for any other reason, there may not be any justification for rectification as the registered trade mark cannot be said to operate prejudicially to his interest. In Re: Apollinaris Company’s Trade-Marks, (1891) 2 Ch.D 186 while dealing with this aspect, Kekemich, J. stated: “.....because that is a remedy given to the person aggrieved through the interposition of the Court for the benefit of the applicant, and if at the date of the trial he has no cause of complaint it seems to be monstrous to suppose that the Court will rectify the register at his instance when it can do him no good to rectify, and when the retention on the register can do him no harm merely because at the date of his application he may have had some grievance.” We concur with the above statement.
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1[ds]30. Hardie Trading Ltd. (supra) has been followed by this Court in a recent decision in the case of Kabushiki Kaisha Toshiba, This Court stated that Section 46 speaks for private interest while Section 56 speaks of a public interest.31. It is true that the appellant in opposition to the applications for removal/rectification of trade mark did not specifically challenge in its counter affidavits the locus standi of the first respondent to be heard as a person aggrieved. Obviously, in the absence of any specific objection by the appellant to that effect, no specific issue was framed by the High Court whether the applicant was an aggrieved person. The applications having been transferred to the IPAB in terms of Section 100 of the 1999 Act, the IPAB examined the matter in light of the issues that were framed by the High Court although in the written submissions before it, the objection was raised that the first respondent has ceased to have locus standi in view of the subsequent events, particularly change of the name of the first respondent from Jupiter Infosys Ltd. to Jupiter International Ltd. The question is, whether in these circumstances it was incumbent upon the IPAB to consider and satisfy itself about the locus standi of the first respondent to be heard as a person aggrieved. In our considered view, it was. In the first place, when the first respondent applied for rectification/removal in respect of three registrations in Classes 7, 9 and 16, it must have shown in respect of each of them that it is a ‘personand the IPAB must have separately considered in respect of each registration the locus standi of the first respondent as the considerations for each entry might not have been common. Secondly, and more importantly, during the pendency of the applications, certain events had taken place which had some bearing on the question of locus standi of the first respondent insofar as invocation of Section 46(1) of the 1958 Act is concerned. In the affidavit filed by the first respondent on July 14, 2004 before the Court of Additional District Judge, Delhi an unequivocal and categorical statement has been made that now there is no dispute between the plaintiff (appellant herein) and defendant (first respondent herein) under the trade mark and that defendant has already changed the trade mark namelyin place of2. In terms of Section 46(1), not only that the applicant has to show that he is an aggrieved person as his interest is being affected but the IPAB must also be satisfied, before it directs the removal of registered trade mark, that the applicant is an aggrieved person before it invokes the power in directing the removal of the registered trade mark. This is so because thefor exercise of power under Section 46(1) is that the applicant is a personour view, the grievance of the applicant when he invokes Section 46(1) must not only be taken to have existed on the date of making application but must continue to exist when such application is decided. If during the pendency of such application, thecause of complaint does not survive or his grievance does not subsist due to his own action or the applicant has waived his right or he has lost his interest for any other reason, there may not be any justification for rectification as the registered trade mark cannot be said to operate prejudicially to his interest. In Re: Apollinaris, (1891) 2 Ch.D 186while dealing with this aspect, Kekemich, J.that is a remedy given to the person aggrieved through the interposition of the Court for the benefit of the applicant, and if at the date of the trial he has no cause of complaint it seems to be monstrous to suppose that the Court will rectify the register at his instance when it can do him no good to rectify, and when the retention on the register can do him no harm merely because at the date of his application he may have had someconcur with the above statement.
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Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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injured if the trade mark is allowed to stand; and by ‘possible’ I mean possible in a practical sense, and not merely in a fantastic view.... All cases of this kind, where the original registration is not illegal or improper, ought to be considered as questions of common sense, to a certain extent, at any rate; and I think the applicants ought to show something approaching a sufficient or proper reason for applying to have the trade mark expunged. It certainly is not sufficient reason that they are at loggerheads with the respondents or desire in some way to injure them.’34. Addisons’ application was one under Section 46 and the test to determine whether the applicant was a ‘person aggrieved’ within the meaning of that section should have been the one laid down by Romer, J. in Wright case and not the one propounded by the House of Lords in the matter of Powell’s Trade Mark. The High Court and the Joint Registrar fell into error in not drawing this distinction. However, it is not necessary to dilate on this aspect of the matter as the appellant has really argued on the second and third aspects of Section 46 viz. the alleged non-use of the trade marks by Hardie and special circumstances”. 29. In the case of Hardie Trading Ltd., (supra) this Court approved the test applied by Romer, J. in The Royal Baking Powder Company v. Wright, Crossley, and Co., (1898) 15 RPC 677 which has been reproduced in para 33 of the report. We respectfully agree. 30. Hardie Trading Ltd. (supra) has been followed by this Court in a recent decision in the case of Kabushiki Kaisha Toshiba, This Court stated that Section 46 speaks for private interest while Section 56 speaks of a public interest.31. It is true that the appellant in opposition to the applications for removal/rectification of trade mark did not specifically challenge in its counter affidavits the locus standi of the first respondent to be heard as a person aggrieved. Obviously, in the absence of any specific objection by the appellant to that effect, no specific issue was framed by the High Court whether the applicant was an aggrieved person. The applications having been transferred to the IPAB in terms of Section 100 of the 1999 Act, the IPAB examined the matter in light of the issues that were framed by the High Court although in the written submissions before it, the objection was raised that the first respondent has ceased to have locus standi in view of the subsequent events, particularly change of the name of the first respondent from Jupiter Infosys Ltd. to Jupiter International Ltd. The question is, whether in these circumstances it was incumbent upon the IPAB to consider and satisfy itself about the locus standi of the first respondent to be heard as a person aggrieved. In our considered view, it was. In the first place, when the first respondent applied for rectification/removal in respect of three registrations in Classes 7, 9 and 16, it must have shown in respect of each of them that it is a ‘person aggrieved’ and the IPAB must have separately considered in respect of each registration the locus standi of the first respondent as the considerations for each entry might not have been common. Secondly, and more importantly, during the pendency of the applications, certain events had taken place which had some bearing on the question of locus standi of the first respondent insofar as invocation of Section 46(1) of the 1958 Act is concerned. In the affidavit filed by the first respondent on July 14, 2004 before the Court of Additional District Judge, Delhi an unequivocal and categorical statement has been made that now there is no dispute between the plaintiff (appellant herein) and defendant (first respondent herein) under the trade mark and that defendant has already changed the trade mark namely “Jupiter International Ltd.” in place of “Jupiter Infosys Ltd.” 32. In terms of Section 46(1), not only that the applicant has to show that he is an aggrieved person as his interest is being affected but the IPAB must also be satisfied, before it directs the removal of registered trade mark, that the applicant is an aggrieved person before it invokes the power in directing the removal of the registered trade mark. This is so because the pre-requisite for exercise of power under Section 46(1) is that the applicant is a person aggrieved. 33. The question then arises, whether it is sufficient for the applicant to show that he is a person aggrieved when he makes his application or he must continue to remain a person aggrieved until such time as the rectification/removal application is finally decided. In our view, the grievance of the applicant when he invokes Section 46(1) must not only be taken to have existed on the date of making application but must continue to exist when such application is decided. If during the pendency of such application, the applicant’s cause of complaint does not survive or his grievance does not subsist due to his own action or the applicant has waived his right or he has lost his interest for any other reason, there may not be any justification for rectification as the registered trade mark cannot be said to operate prejudicially to his interest. In Re: Apollinaris Company’s Trade-Marks, (1891) 2 Ch.D 186 while dealing with this aspect, Kekemich, J. stated: “.....because that is a remedy given to the person aggrieved through the interposition of the Court for the benefit of the applicant, and if at the date of the trial he has no cause of complaint it seems to be monstrous to suppose that the Court will rectify the register at his instance when it can do him no good to rectify, and when the retention on the register can do him no harm merely because at the date of his application he may have had some grievance.” We concur with the above statement.
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30. Hardie Trading Ltd. (supra) has been followed by this Court in a recent decision in the case of Kabushiki Kaisha Toshiba, This Court stated that Section 46 speaks for private interest while Section 56 speaks of a public interest.31. It is true that the appellant in opposition to the applications for removal/rectification of trade mark did not specifically challenge in its counter affidavits the locus standi of the first respondent to be heard as a person aggrieved. Obviously, in the absence of any specific objection by the appellant to that effect, no specific issue was framed by the High Court whether the applicant was an aggrieved person. The applications having been transferred to the IPAB in terms of Section 100 of the 1999 Act, the IPAB examined the matter in light of the issues that were framed by the High Court although in the written submissions before it, the objection was raised that the first respondent has ceased to have locus standi in view of the subsequent events, particularly change of the name of the first respondent from Jupiter Infosys Ltd. to Jupiter International Ltd. The question is, whether in these circumstances it was incumbent upon the IPAB to consider and satisfy itself about the locus standi of the first respondent to be heard as a person aggrieved. In our considered view, it was. In the first place, when the first respondent applied for rectification/removal in respect of three registrations in Classes 7, 9 and 16, it must have shown in respect of each of them that it is a ‘personand the IPAB must have separately considered in respect of each registration the locus standi of the first respondent as the considerations for each entry might not have been common. Secondly, and more importantly, during the pendency of the applications, certain events had taken place which had some bearing on the question of locus standi of the first respondent insofar as invocation of Section 46(1) of the 1958 Act is concerned. In the affidavit filed by the first respondent on July 14, 2004 before the Court of Additional District Judge, Delhi an unequivocal and categorical statement has been made that now there is no dispute between the plaintiff (appellant herein) and defendant (first respondent herein) under the trade mark and that defendant has already changed the trade mark namelyin place of2. In terms of Section 46(1), not only that the applicant has to show that he is an aggrieved person as his interest is being affected but the IPAB must also be satisfied, before it directs the removal of registered trade mark, that the applicant is an aggrieved person before it invokes the power in directing the removal of the registered trade mark. This is so because thefor exercise of power under Section 46(1) is that the applicant is a personour view, the grievance of the applicant when he invokes Section 46(1) must not only be taken to have existed on the date of making application but must continue to exist when such application is decided. If during the pendency of such application, thecause of complaint does not survive or his grievance does not subsist due to his own action or the applicant has waived his right or he has lost his interest for any other reason, there may not be any justification for rectification as the registered trade mark cannot be said to operate prejudicially to his interest. In Re: Apollinaris, (1891) 2 Ch.D 186while dealing with this aspect, Kekemich, J.that is a remedy given to the person aggrieved through the interposition of the Court for the benefit of the applicant, and if at the date of the trial he has no cause of complaint it seems to be monstrous to suppose that the Court will rectify the register at his instance when it can do him no good to rectify, and when the retention on the register can do him no harm merely because at the date of his application he may have had someconcur with the above statement.
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UNION OF INDIA & ORS Vs. M/S EXIDE INDUSTRIES LIMITED & ANR
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the legislature over the power of the judiciary. A courts directive must always bind unless the conditions on which it is based are so fundamentally altered that under altered circumstances such decisions could not have been given. This will include removal of the defect in a statute pointed out in the judgment in question, as well as alteration or substitution of provisions of the enactment on which such judgment is based, with retrospective effect. In Indian Aluminium Co. (supra), the Court relied upon a set of authorities and extended its approval to the above stated position of law thus: 41. … A Constitution Bench of this Court had held that the distinction between legislative act and judicial act is well-known. The adjudication of the rights of the parties is a judicial function. The legislature has to lay down the law prescribing the norms or conduct which will govern the parties and transactions to require the court to give effect to that law. Validating legislation which removes the norms of invalidity of action or providing remedy is not an encroachment on judicial power. Statutory rule made under the proviso to Article 309 was upheld. The legislature cannot by a bare declaration without anything more, directly overrule, reverse or override a judicial decision at any time in exercise of the plenary power conferred on the legislature by Articles 245 and 246 of the Constitution. It can render a judicial decision ineffective by enacting a valid law on a topic within its legislative field, fundamentally altering or changing with retrospective, curative or nullifying effect, the conditions on which such a decision is based. In Hari Singh and Ors. v. The Military Estate Officer, (1973) 1 SCR 515 , prior to 1958 two alternative modes of eviction under Public Premises Act were available. When the eviction was sought of an unauthorised occupant by summary procedure the constitutionality thereof was challenged and upheld. The Act was subsequently amended in 1958 with retrospective operation from September 16, 1958. Thereunder only one procedure for eviction was available. It was contended to be a legislative encroachment of judicial power. A Bench of three Judges held that the legislature possessed competence over the subject matter and the Validation Act could remove the defect which the court had found in the previous case. It was not the legislative encroachment of judicial power but one of removing the defect which the court had pointed out with a deeming date. (emphasis supplied) 39. Reverting to the true effect of the reported judgment under consideration, it was rendered in light of general dispensation of autonomy of the assessee to follow cash or mercantile system of accounting prevailing at the relevant time, in absence of an express statutory provision to do so differently. It is an authority on the nature of the liability of leave encashment in terms of the earlier dispensation. In absence of any such provision, the sole operative provision was Section 145(1) of the 1961 Act that allowed complete autonomy to the assessee to follow the mercantile system. Now a limited change has been brought about by the insertion of clause (f) in Section 43B and nothing more. It applies prospectively. Merely because a liability has been held to be a present liability qualifying for instant deduction in terms of the applicable provisions at the relevant time does not ipso facto signify that deduction against such liability cannot be regulated by a law made by Parliament prospectively. In matter of statutory deductions, it is open to the legislature to withdraw the same prospectively. In other words, once the Finance Act, 2001 was duly passed by the Parliament inserting clause (f) in Section 43B with prospective effect, the deduction against the liability of leave encashment stood regulated in the manner so prescribed. Be it noted that the amendment does not reverse the nature of the liability nor has it taken away the deduction as such. The liability of leave encashment continues to be a present liability as per the mercantile system of accounting. Further, the insertion of clause (f) has not extinguished the autonomy of the assessee to follow the mercantile system. It merely defers the benefit of deduction to be availed by the assessee for the purpose of computing his taxable income and links it to the date of actual payment thereof to the employee concerned. Thus, the only effect of the insertion of clause (f) is to regulate the stated deduction by putting it in a special provision. 40. Notably, this regulatory measure is in sync with other deductions specified in Section 43B, which are also present and accrued liabilities. To wit, the liability in lieu of tax, duty, cess, bonus, commission etc. also arise in the present as per the mercantile system, but assessees used to defer payment thereof despite claiming deductions thereagainst under the guise of mercantile system of accounting. Resultantly, irrespective of the category of liability, such deductions were regulated by law under the aegis of Section 43B, keeping in mind the peculiar exigencies of fiscal affairs and underlying concerns of public revenue. A priori, merely because a certain liability has been declared to be a present liability by the Court as per the prevailing enactment, it does not follow that legislature is denuded of its power to correct the mischief with prospective effect, including to create a new liability, exempt an existing liability, create a deduction or subject an existing deduction to new regulatory measures. Strictly speaking, the Court cannot venture into hypothetical spheres while adjudging constitutionality of a duly enacted provision and unfounded limitations cannot be read into the process of judicial review. A priori, the plea that clause (f) has been enacted with the sole purpose to defeat the judgment of this Court is misconceived. 41. The position of law discussed above leaves no manner of doubt as regards the legitimacy of enacting clause (f). The respondents have neither made a case of non-existence of competence nor demonstrated any constitutional infirmity in clause (f).
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1[ds]Constitutional validity of clause (f)13. In the present case, the legislative power of the Parliament to enact clause (f) in the light of Article 245 is not doubted at all.It is no more res integra that the examination of the Court begins with a presumption in favour of constitutionality. This presumption is not just borne out of judicial discipline and prudence, but also out of the basic scheme of the Constitution wherein the power to legislate is the exclusive domain of the Legislature/Parliament. This power is clothed with power to decide when to legislate, what to legislate and how much to legislate. Thus, to decide the timing, content and extent of legislation is a function primarily entrusted to the legislature and in exercise of judicial review, the Court starts with a basic presumption in favour of the proper exercise of such powerWith the passage of time, the legislature inserted more deductions to Section 43B including cess, bonus or commission payable by employer, interest on loans payable to financial institutions, scheduled banks etc., payment in lieu of leave encashment by the employer and repayment of dues to the railways. Thus understood, there is no oneness or uniformity in the nature of deductions included in Section 43B. It holds no merit to urge that this section only provides for deductions concerning statutory liabilities. Section 43B is a mix bag and new and dissimilar entries have been inserted therein from time to time to cater to different fiscal scenarios, which are best determined by the government of the day. It is not unusual or abnormal for the legislature to create a new liability, exempt an existing liability, create a deduction or subject an existing deduction to override regulations or conditions19. The leave encashment scheme envisages the payment of a certain amount to the employees in lieu of their unused paid leaves in a year. The nature of this payment is beneficial and pro- employee. However, it is not in the form of a bounty and forms a part of the conditions of service of the employee. An employer seeking deduction from tax liability in advance, in the name of discharging the liability of leave encashment, without actually extending such payment to the employee as and when the time for payment arises may lead to abhorrent consequences. When time for such payment arises upon retirement (or otherwise) of the employee, an employer may simply refuse to pay. Consequently, the innocent employee will be entangled in litigation in the evening of his/her life for claiming a hard-earned right without any fault on his part. Concomitantly, it would entail in double benefit to the employer – advance deduction from tax liability without any burden of actual payment and refusal to pay as and when occasion arises. It is this mischief clause (f) seeks to subjugate20. The argument advanced by the respondents that the nature of leave encashment liability is such that it is impossible to make the actual payment in the same year, adds no weight to the claim of invalidity of the clause. We say so because the thrust of the provision is not to control the timing of payment, rather, it is strictly targeted to control the timing of claiming deduction in the name of such liability. The mischief sought to be remedied by this clause, as discussed above, clarifies the position21. Be it noted that the interpretation of a statute cannot be unrelated to the nature of the statute. In line with other clauses under Section 43B, clause (f) was enacted to remedy a particular mischief and the concerns of public good, employees welfare and prevention of fraud upon revenue is writ large in the said clause. In our view, such statutes are to be viewed through the prism of the mischief they seek to suppress, that is, the Heydons case (1584) 3 Co Rep 7 principle. In CRAWFORD, Statutory Construction CRAWFORD, Statutory Construction p. 508 , it has been gainfully delineated that an enactment designed to prevent fraud upon the revenue is more properly a statute against fraud rather than a taxing statute, and hence should receive a liberal construction in the governments favourNon-disclosure of objects and reasons24. The objects and reasons behind the enactment of a statute signify the intention of the legislature behind the enactment of a statutory provision. Indubitably, the purpose or underlying aim of a law can be discerned when interpreted in the light of stated objects and reasons. Inasmuch as, the settled canon of interpretation is to deduce the true intent of the legislature, as the will of the people is constitutionally bestowed in the legislature. It is true that an express objects and reasons would be useful in understanding the import of an enacted provision as and when the Court is called upon to interpret the same28. The Division Bench of the High Court, in the present case, plainly glossed over the fundamental presumption of constitutionality in favour of clause (f) and based its judgment upon the absence of objects and reasons as striking at the root of its validity. In our view, this approach is flawed for at least three reasons. First, it steers clear from the necessary attempt to discover any constitutional infirmities in the enacted provision. Second, it makes no attempt to dissect the text of the provision so as to display the need to go beyond the text. Third, it goes into the background of the enactment and ventures into a sphere which is out of bounds for the Court as long as the need for interpretation borne out of any ambiguity arises29. The process of testing validity is not to sneak into the prudence or proprieties of the legislature in enacting the impugned provision. Nor, is it to examine the culpable conduct of the legislature as an appellate authority over the legislature. The only examination of the Court is restricted to the finding of a constitutional infirmity in the provision, as is placed before the Court. Thus, the non-disclosure of objects and reasons per se would not impinge upon the constitutionality of a provision unless the provision is ambiguous and the possible interpretation violate Part III of the Constitution. In the absence of any finding of any constitutional infirmity in a provision, the Court is not empowered to invalidate a provision30. To hold a provision as violative of the Constitution on account of failure of the legislature to state the objects and reasons would amount to an indirect scrutiny of the motives of the legislature behind the enactment. Such a course of action, in our view, is unwarranted. The raison detre behind this self- imposed restriction is because of the fundamental reason that different organs of the State do not scrutinise each others wisdom in the exercise of their duties. In other words, the time- tested principle of checks and balances does not empower the Court to question the motives or wisdom of the legislature, except in circumstances when the same is demonstrated from the enacted lawWe have noted that the High Court has characterised clause (f) as arbitrary and unconscionable while imputing it with unconstitutionality. It is pertinent to note that the High Court reaches this conclusion without undertaking an actual examination of clause (f). Instead, the declaration is preceded by an enquiry into the circumstances leading upto the enactment. As discussed above, the constitutional power of judicial review contemplates a review of the provision, as it stands, and not a review of the circumstances in which the enactment was made. Be it noted that merely holding an enacted provision as unconscionable or arbitrary is not sufficient to hold it as unconstitutional unless such infirmities are sufficiently shown to exist in the form, substance or functioning of the impugned provision. No such infirmity has been exhibited and adverted to in the impugned judgmentInconsistency of clause (f) and absence of nexus with Section 43B31. The High Court has supported its finding of invalidity by recording two observations vis-a-vis the previously existing (unamended) clauses of Section 43B – first, that clause (f) is inconsistent with other clauses and nature of deduction targeted in clause (f) is distinct from other deductions. Second, that clause (f) has no nexus with the objects and reasons behind the enactment of original Section 43B and therefore, the objects and reasons attributed to Section 43B cannot be used to deduce the object and purpose of clause (f)32. At the outset, we observe that both the grounds are ill- founded. In the basic scheme of Section 43B, there is no direct or indirect limitation upon the power of legislature to include only particular type of deductions in the ambit of Section 43B. To say that Section 43B is restricted to deductions of a statutory nature would be nothing short of reading the provision in a purely imaginative manner. As already discussed above, from 1983 onwards, Section 43B had taken within its fold diverse nature of deductions, ranging from tax, duty to bonus, commission, railway fee, interest on loans and general provisions for welfare of employees. An external examination of this journey of Section 43B reveals that the legislature never restricted it to a particular category of deduction and that intent cannot be read into the main Section by the Court, while sitting in judicial review. Concededly, it is a provision to attach conditionality on deductions otherwise allowable under the Act in respect of specified heads, in that previous year in which the sum is actually paid irrespective of method of accounting33. Further, it be noted that the broad objective of enacting Section 43B concerning specified deductions referred to therein was to protect larger public interest primarily of revenue including welfare of the employees. Clause (f) fits into that scheme and shares sufficient nexus with the broad objective, as already discussed hitherto34. Before stepping into the next ground, we are inclined to observe that the approach of constitutional courts ought to be different while dealing with fiscal statutes. It is trite that the legislature is the best forum to weigh different problems in the fiscal domain and form policies to address the same including to create a new liability, exempt an existing liability, create a deduction or subject an existing deduction to new regulatory measures. In the very nature of taxing statutes, legislature holds the power to frame laws to plug in specific leakages. Such laws are always pin-pointed in nature and are only meant to target a specific avenue of taxability depending upon the experiences of tax evasion and tax avoidance at the ground level. The general principles of exclusion and inclusion do not apply to taxing statutes with the same vigour unless the law reeks of constitutional infirmities. No doubt, fiscal statutes must comply with the tenets of Article 14. However, a larger discretion is given to the legislature in taxing statutes than in other spheres. In Anant Mills Co. Ltd. vs. State of Gujarat & Ors. (1975) 2 SCC 175 , this Court noted thus:25. ...But, in the application of the principles, the courts, in view of the inherent complexity of fiscal adjustment of diverse elements, permit a larger discretion to the Legislature in the matter of classification so long as it adheres to the fundamental principles underlying the said doctrine. The power of the Legislature to classify is of wide range and flexibility so that it can adjust its system of taxation in all proper and reasonable waysViewed thus, the reason weighed with the Division Bench of the High Court in the impugned judgment is untenableDefeating the dictum in Bharat Earth Movers case35. We shall now examine clause (f) on the ground that it defeats the judgment of this Court in Bharat Earth Movers (supra). We have carefully analysed the decision in Bharat Earth Movers (supra) and note that the Court was sitting in appeal over the nature of liability under the leave encashment scheme and held such liability to be a present liability. Resultantly, it became deductible from the profit and loss account of the assessee in the same accounting year in which provision against the same is made37. It is no doubt true that the legislature cannot sit over a judgment of this Court or so to speak overrule it. There cannot be any declaration of invalidating a judgment of the Court without altering the legal basis of the judgment - as a judgment is delivered with strict regard to the enactment as applicable at the relevant time. However, once the enactment itself stands corrected, the basic cause of adjudication stands altered and necessary effect follows the same. A legislative body is not supposed to be in possession of a heavenly wisdom so as to contemplate all possible exigencies of their enactment. As and when the legislature decides to solve a problem, it has multiple solutions on the table. At this stage, the Parliament exercises its legislative wisdom to shortlist the most desirable solution and enacts a law to that effect. It is in the nature of a trial and error exercise and we must note that a law-making body, particularly in statutes of fiscal nature, is duly empowered to undertake such an exercise as long as the concern of legislative competence does not come into doubt. Upon the law coming into force, it becomes operative in the public domain and opens itself to any review under Part III as and when it is found to be plagued with infirmities. Upon being invalidated by the Court, the legislature is free to diagnose such law and alter the invalid elements thereof. In doing so, the legislature is not declaring the opinion of the Court to be invalid39. Reverting to the true effect of the reported judgment under consideration, it was rendered in light of general dispensation of autonomy of the assessee to follow cash or mercantile system of accounting prevailing at the relevant time, in absence of an express statutory provision to do so differently. It is an authority on the nature of the liability of leave encashment in terms of the earlier dispensation. In absence of any such provision, the sole operative provision was Section 145(1) of the 1961 Act that allowed complete autonomy to the assessee to follow the mercantile system. Now a limited change has been brought about by the insertion of clause (f) in Section 43B and nothing more. It applies prospectively. Merely because a liability has been held to be a present liability qualifying for instant deduction in terms of the applicable provisions at the relevant time does not ipso facto signify that deduction against such liability cannot be regulated by a law made by Parliament prospectively. In matter of statutory deductions, it is open to the legislature to withdraw the same prospectively. In other words, once the Finance Act, 2001 was duly passed by the Parliament inserting clause (f) in Section 43B with prospective effect, the deduction against the liability of leave encashment stood regulated in the manner so prescribed. Be it noted that the amendment does not reverse the nature of the liability nor has it taken away the deduction as such. The liability of leave encashment continues to be a present liability as per the mercantile system of accounting. Further, the insertion of clause (f) has not extinguished the autonomy of the assessee to follow the mercantile system. It merely defers the benefit of deduction to be availed by the assessee for the purpose of computing his taxable income and links it to the date of actual payment thereof to the employee concerned. Thus, the only effect of the insertion of clause (f) is to regulate the stated deduction by putting it in a special provision40. Notably, this regulatory measure is in sync with other deductions specified in Section 43B, which are also present and accrued liabilities. To wit, the liability in lieu of tax, duty, cess, bonus, commission etc. also arise in the present as per the mercantile system, but assessees used to defer payment thereof despite claiming deductions thereagainst under the guise of mercantile system of accounting. Resultantly, irrespective of the category of liability, such deductions were regulated by law under the aegis of Section 43B, keeping in mind the peculiar exigencies of fiscal affairs and underlying concerns of public revenue. A priori, merely because a certain liability has been declared to be a present liability by the Court as per the prevailing enactment, it does not follow that legislature is denuded of its power to correct the mischief with prospective effect, including to create a new liability, exempt an existing liability, create a deduction or subject an existing deduction to new regulatory measures. Strictly speaking, the Court cannot venture into hypothetical spheres while adjudging constitutionality of a duly enacted provision and unfounded limitations cannot be read into the process of judicial review. A priori, the plea that clause (f) has been enacted with the sole purpose to defeat the judgment of this Court is misconceived41. The position of law discussed above leaves no manner of doubt as regards the legitimacy of enacting clause (f). The respondents have neither made a case of non-existence of competence nor demonstrated any constitutional infirmity in clause (f).
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### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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the legislature over the power of the judiciary. A courts directive must always bind unless the conditions on which it is based are so fundamentally altered that under altered circumstances such decisions could not have been given. This will include removal of the defect in a statute pointed out in the judgment in question, as well as alteration or substitution of provisions of the enactment on which such judgment is based, with retrospective effect. In Indian Aluminium Co. (supra), the Court relied upon a set of authorities and extended its approval to the above stated position of law thus: 41. … A Constitution Bench of this Court had held that the distinction between legislative act and judicial act is well-known. The adjudication of the rights of the parties is a judicial function. The legislature has to lay down the law prescribing the norms or conduct which will govern the parties and transactions to require the court to give effect to that law. Validating legislation which removes the norms of invalidity of action or providing remedy is not an encroachment on judicial power. Statutory rule made under the proviso to Article 309 was upheld. The legislature cannot by a bare declaration without anything more, directly overrule, reverse or override a judicial decision at any time in exercise of the plenary power conferred on the legislature by Articles 245 and 246 of the Constitution. It can render a judicial decision ineffective by enacting a valid law on a topic within its legislative field, fundamentally altering or changing with retrospective, curative or nullifying effect, the conditions on which such a decision is based. In Hari Singh and Ors. v. The Military Estate Officer, (1973) 1 SCR 515 , prior to 1958 two alternative modes of eviction under Public Premises Act were available. When the eviction was sought of an unauthorised occupant by summary procedure the constitutionality thereof was challenged and upheld. The Act was subsequently amended in 1958 with retrospective operation from September 16, 1958. Thereunder only one procedure for eviction was available. It was contended to be a legislative encroachment of judicial power. A Bench of three Judges held that the legislature possessed competence over the subject matter and the Validation Act could remove the defect which the court had found in the previous case. It was not the legislative encroachment of judicial power but one of removing the defect which the court had pointed out with a deeming date. (emphasis supplied) 39. Reverting to the true effect of the reported judgment under consideration, it was rendered in light of general dispensation of autonomy of the assessee to follow cash or mercantile system of accounting prevailing at the relevant time, in absence of an express statutory provision to do so differently. It is an authority on the nature of the liability of leave encashment in terms of the earlier dispensation. In absence of any such provision, the sole operative provision was Section 145(1) of the 1961 Act that allowed complete autonomy to the assessee to follow the mercantile system. Now a limited change has been brought about by the insertion of clause (f) in Section 43B and nothing more. It applies prospectively. Merely because a liability has been held to be a present liability qualifying for instant deduction in terms of the applicable provisions at the relevant time does not ipso facto signify that deduction against such liability cannot be regulated by a law made by Parliament prospectively. In matter of statutory deductions, it is open to the legislature to withdraw the same prospectively. In other words, once the Finance Act, 2001 was duly passed by the Parliament inserting clause (f) in Section 43B with prospective effect, the deduction against the liability of leave encashment stood regulated in the manner so prescribed. Be it noted that the amendment does not reverse the nature of the liability nor has it taken away the deduction as such. The liability of leave encashment continues to be a present liability as per the mercantile system of accounting. Further, the insertion of clause (f) has not extinguished the autonomy of the assessee to follow the mercantile system. It merely defers the benefit of deduction to be availed by the assessee for the purpose of computing his taxable income and links it to the date of actual payment thereof to the employee concerned. Thus, the only effect of the insertion of clause (f) is to regulate the stated deduction by putting it in a special provision. 40. Notably, this regulatory measure is in sync with other deductions specified in Section 43B, which are also present and accrued liabilities. To wit, the liability in lieu of tax, duty, cess, bonus, commission etc. also arise in the present as per the mercantile system, but assessees used to defer payment thereof despite claiming deductions thereagainst under the guise of mercantile system of accounting. Resultantly, irrespective of the category of liability, such deductions were regulated by law under the aegis of Section 43B, keeping in mind the peculiar exigencies of fiscal affairs and underlying concerns of public revenue. A priori, merely because a certain liability has been declared to be a present liability by the Court as per the prevailing enactment, it does not follow that legislature is denuded of its power to correct the mischief with prospective effect, including to create a new liability, exempt an existing liability, create a deduction or subject an existing deduction to new regulatory measures. Strictly speaking, the Court cannot venture into hypothetical spheres while adjudging constitutionality of a duly enacted provision and unfounded limitations cannot be read into the process of judicial review. A priori, the plea that clause (f) has been enacted with the sole purpose to defeat the judgment of this Court is misconceived. 41. The position of law discussed above leaves no manner of doubt as regards the legitimacy of enacting clause (f). The respondents have neither made a case of non-existence of competence nor demonstrated any constitutional infirmity in clause (f).
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of classification so long as it adheres to the fundamental principles underlying the said doctrine. The power of the Legislature to classify is of wide range and flexibility so that it can adjust its system of taxation in all proper and reasonable waysViewed thus, the reason weighed with the Division Bench of the High Court in the impugned judgment is untenableDefeating the dictum in Bharat Earth Movers case35. We shall now examine clause (f) on the ground that it defeats the judgment of this Court in Bharat Earth Movers (supra). We have carefully analysed the decision in Bharat Earth Movers (supra) and note that the Court was sitting in appeal over the nature of liability under the leave encashment scheme and held such liability to be a present liability. Resultantly, it became deductible from the profit and loss account of the assessee in the same accounting year in which provision against the same is made37. It is no doubt true that the legislature cannot sit over a judgment of this Court or so to speak overrule it. There cannot be any declaration of invalidating a judgment of the Court without altering the legal basis of the judgment - as a judgment is delivered with strict regard to the enactment as applicable at the relevant time. However, once the enactment itself stands corrected, the basic cause of adjudication stands altered and necessary effect follows the same. A legislative body is not supposed to be in possession of a heavenly wisdom so as to contemplate all possible exigencies of their enactment. As and when the legislature decides to solve a problem, it has multiple solutions on the table. At this stage, the Parliament exercises its legislative wisdom to shortlist the most desirable solution and enacts a law to that effect. It is in the nature of a trial and error exercise and we must note that a law-making body, particularly in statutes of fiscal nature, is duly empowered to undertake such an exercise as long as the concern of legislative competence does not come into doubt. Upon the law coming into force, it becomes operative in the public domain and opens itself to any review under Part III as and when it is found to be plagued with infirmities. Upon being invalidated by the Court, the legislature is free to diagnose such law and alter the invalid elements thereof. In doing so, the legislature is not declaring the opinion of the Court to be invalid39. Reverting to the true effect of the reported judgment under consideration, it was rendered in light of general dispensation of autonomy of the assessee to follow cash or mercantile system of accounting prevailing at the relevant time, in absence of an express statutory provision to do so differently. It is an authority on the nature of the liability of leave encashment in terms of the earlier dispensation. In absence of any such provision, the sole operative provision was Section 145(1) of the 1961 Act that allowed complete autonomy to the assessee to follow the mercantile system. Now a limited change has been brought about by the insertion of clause (f) in Section 43B and nothing more. It applies prospectively. Merely because a liability has been held to be a present liability qualifying for instant deduction in terms of the applicable provisions at the relevant time does not ipso facto signify that deduction against such liability cannot be regulated by a law made by Parliament prospectively. In matter of statutory deductions, it is open to the legislature to withdraw the same prospectively. In other words, once the Finance Act, 2001 was duly passed by the Parliament inserting clause (f) in Section 43B with prospective effect, the deduction against the liability of leave encashment stood regulated in the manner so prescribed. Be it noted that the amendment does not reverse the nature of the liability nor has it taken away the deduction as such. The liability of leave encashment continues to be a present liability as per the mercantile system of accounting. Further, the insertion of clause (f) has not extinguished the autonomy of the assessee to follow the mercantile system. It merely defers the benefit of deduction to be availed by the assessee for the purpose of computing his taxable income and links it to the date of actual payment thereof to the employee concerned. Thus, the only effect of the insertion of clause (f) is to regulate the stated deduction by putting it in a special provision40. Notably, this regulatory measure is in sync with other deductions specified in Section 43B, which are also present and accrued liabilities. To wit, the liability in lieu of tax, duty, cess, bonus, commission etc. also arise in the present as per the mercantile system, but assessees used to defer payment thereof despite claiming deductions thereagainst under the guise of mercantile system of accounting. Resultantly, irrespective of the category of liability, such deductions were regulated by law under the aegis of Section 43B, keeping in mind the peculiar exigencies of fiscal affairs and underlying concerns of public revenue. A priori, merely because a certain liability has been declared to be a present liability by the Court as per the prevailing enactment, it does not follow that legislature is denuded of its power to correct the mischief with prospective effect, including to create a new liability, exempt an existing liability, create a deduction or subject an existing deduction to new regulatory measures. Strictly speaking, the Court cannot venture into hypothetical spheres while adjudging constitutionality of a duly enacted provision and unfounded limitations cannot be read into the process of judicial review. A priori, the plea that clause (f) has been enacted with the sole purpose to defeat the judgment of this Court is misconceived41. The position of law discussed above leaves no manner of doubt as regards the legitimacy of enacting clause (f). The respondents have neither made a case of non-existence of competence nor demonstrated any constitutional infirmity in clause (f).
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