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Kuriakose Vs. State of Kerala | very close relations. The High Court has further held that the existence of pathway used by villagers along the bund cannot be accepted in view of the clear evidence given on behalf of the prosecution. In this connection, the High Court has referred to the evidence of PW 4. Although PW 4 was declared hostile, the said PW 4 stated that there was no pathway along the cultivated area and there was only a ridge. So far as the recovery of knives with which the injuries were inflicted is concerned, the High Court has indicated that there was no sugg estion in the cross-examination of the Sub- Inspector, PW 10, about non-recovery of said knives. The High Court has also come to the finding that almost immediately after the occurrence, statement was made by PW 2 and the prosecution had also produced the first information report before the Court and the said first information report was also filed in the Magistrates Court. The High Court has held that Ext. P-1 is a genuine document and the circumstances under which it was recorded were properly explained with reference to the documentary and oral evidence. 9. Coming to the conclusion of right to private defence of the accused, the High Court has observed that in the statement under Section 313 Criminal Procedure Code, no plea of right to private defence had been taken by any of the accused. The High Court has held that there was no mischief committed by either of the deceased for which there was any occasion to exercise right of private defence and as there was no customary right of pathway which might amount to mischief such plea of self-defence was not at all acceptable. The High Court has further held that even if there was any customary right of pathway, there was no occasi on to inflict knife injuries on vital pans of the body to cause instantaneous death of both the deceased for an alleged interference with a right of pathway, when admittedly, the deceased Varkey and Chacko had no weapons with them. In the aforesaid facts, there was no occasion for any threat to the person or to the property justifying stabbing the deceased to death. The High Court has, therefore, held that the judgment of the learned Sessions Judge was completely against t he weight of the evidence and was perverse. Accordingly, the High Court set aside the said judgment and convicted both the accused under Section 302 IPC and passed sentence to undergo rigorous imprisonment for life against both of them. 10. The learned counsel for the appellant has reiterated the arguments which were advanced at the hearing of the appeal before the High Court. It has been sought to be contended that not only the right of pathway was obstructed by the deceased and their associates but they also assaulted both the accused. It was only on such assault that there was retaliation by the accused for which the said two persons had died. It has been contended that in exercise of right to self defence if knives were used to save the lives of the accused no exception should be taken. It was riot possible to weigh in golden scales the exact force which was required to be applied by way of right of self-defence. If in such a case, the deceased had suffered injuries on vital parts which were not intended, the accused cannot be held to be guilty for an offence under Section 302 IPC. It has been contended that in any event in such a case, the conviction under Section 302 was not warranted and at best if the accused had exceeded the right of private defence, the conviction under Section 304 IPC could have been awarded. The learned counsel has, therefore, submitted that the decision of the High Court is not proper particularly when some features in the case of the prosecution were not accepted fully by the learned Sessions Judge by indicating cogent reasons. The learned counsel has submitted that although the judgment passed by the learned Sessions Judge may not be a well-written judgment for which criticism had been advanced at the hearing of the appeal, it cannot be held that the points indicated by the learned Sessions Judge could not and did not warrant an order of acquittal11. After giving our anxious consideration to the facts and circumstances of the case and the materials and evidences adduced in the case, it appears to us that there are clinching evidences to establish the prosecution case. In our view, the High Court has given very cog ent reasons as to why the evidences of PWs 1, 2 and 3 should be accepted. PW 2 is an injured witness who made statement at the hospital shortly after the incident when he was taken for treatment. His evidence gets corroborated by the evidences given b y the other witnesses. The reasons advanced by the learned Sessions Judge for discarding those evidences do not stand scrutiny as rightly held by the High Court. It is not necessary to consider about the incidents happening on the previous night. If the murderous assault by the accused is established by clear and clinching evidences of the eyewitnesses, it will not be necessary to investigate the motive behind such commission of offence. In our view, the High Court is wholly justified in holding that the case of right to self-defence cannot be accepted. The accused did not plead any right to self-defence. On the contrary, they simply stated that they were assaulted and out of fear for life they escaped from the place of occurrence. That apart, both the deceased were unarmed and serious injuries were inflicted with knives on the vital parts of the bodies of the deceased by the accused persons. The nature of such injuries negatives any just plea for right to self-defence. Accordingly existence of customary right of way need not be considered in the facts of the case. | 0[ds]6. From the facts and circumstances of the case and the evidences adduced, it transpires that accused 1 had agricultural property to the north of the property of the deceased Varkey and Chacko. There is a bund running from south to north along the agricultural field in question and such bund is used by cultivators. At the time of the incident, Pappu, nephew of Varkey, was also present near the house of Varkey. PW 2 is Varkeys son and Chacko, the brother of Varkey had also come to the house of Varkey and proceeded to the fields although he had a separate residence of his own. The learned Sessions Judge inter alia held that the kni ves which were used for the murder of the deceased, (MO 2 and 3) stated to have been recovered by the police did not contain any bloodstain on chemical examination. It was held by the learned Sessions Judge that the first information statemen t was shrouded in suspicion and the said information report was not the one which had been given by PW 2 at about 9.00 a.m. in the Medical College Hospital. The learned Sessions Judge had indicated that the failure to account for further developme nts on the basis of the intimation given by the Medical Officer PW 5 who examined the injured witness PW 2 was unusual. It was further observed that the conduct of the Sub Inspector who although got the information about the murder, proceeded to the hospital and not to the scene of occurrence was also unusual. According to the learned Sessions Judge, the evidence of PW 1, a resident of Trichur and stated to be present at the place of occurrence, also did not ins pire confidence. According to the learned Sessions Judge, the evidence of PW 3 was unsatisfactory because he had omitted to mention before the police about PW 2 falling down on the eastern side of bund and having been stabbed on the left side of the chest. According to the learned Sessions Judge, PW 2 was an interested witness. In that view of the matter, the learned Sessions Judge was of the view that the prosecution case was not established and he acquitted both the accused7.It w as contended on behalf of the accused that accused 1 admittedly had bananaplantation beyond the field of Varkey. He had therefore occasion to proceedtowardshis cultivated land. It was contended that the existence of bund was beyond any dispute. Such bund was being used by the cultivators as a passage to go to their respective fields and the people as of right used to go along the bund. The deceased had no right to obstruct such movement along the bund. It was sought to be contended o n behalf of the accused that conspiracy was hatched on the previous night against the accused and Varkey obstructed accused 1 from going to his field. On such obstruction, accused 1 tried to assert the customary right of way which led to a scuffle and then his son, accused 2, had rushed to the spot. If due to such scuffle, the said two accused persons had exercised the right ofe and both the deceased had died as a result of such exercise of right of, no conviction was warranted against the accused persons. It was also contended that there was no reason for both the deceased Varkey and Chacko to go to the field early morning to see to the watering of the field because the key of the pump house had not been found near the area of scuffle. It was also contended that it was not natural for ther of the police to go to the hospital instead of going to the place of occurrence when he had received the information of murder. I t was further contended that there had not been proper investigation of the case and a different first information report had been substituted. Hence, the learned Sessions Judge was justified in acquitting the accused persons and there was no occasion to interfere in the appeal9. Coming to the conclusion of right to private defence of the accused, the High Court has observed that in the statement under Section 313 Criminal Procedure Code, no plea of right to private defence had been taken by any of the accused. The High Court has held that there was no mischief committed by either of the deceased for which there was any occasion to exercise right of private defence and as there was no customary right of pathway which might amount to mischief such plea ofe was not at all acceptable. The High Court has further held that even if there was any customary right of pathway, there was no occasi on to inflict knife injuries on vital pans of the body to cause instantaneous death of both the deceased for an alleged interference with a right of pathway, when admittedly, the deceased Varkey and Chacko had no weapons with them. In the aforesaid facts, there was no occasion for any threat to the person or to the property justifying stabbing the deceased to death. The High Court has, therefore, held that the judgment of the learned Sessions Judge was completely against t he weight of the evidence and was perverse. Accordingly, the High Court set aside the said judgment and convicted both the accused under Section 302 IPC and passed sentence to undergo rigorous imprisonment for life against both of them11. After giving our anxious consideration to the facts and circumstances of the case and the materials and evidences adduced in the case, it appears to us that there are clinching evidences to establish the prosecution case. In our view, the High Court has given very cog ent reasons as to why the evidences of PWs 1, 2 and 3 should be accepted. PW 2 is an injured witness who made statement at the hospital shortly after the incident when he was taken for treatment. His evidence gets corroborated by the evidences given b y the other witnesses. The reasons advanced by the learned Sessions Judge for discarding those evidences do not stand scrutiny as rightly held by the High Court. It is not necessary to consider about the incidents happening on the previous night. If the murderous assault by the accused is established by clear and clinching evidences of the eyewitnesses, it will not be necessary to investigate the motive behind such commission of offence. In our view, the High Court is wholly justified in holding that the case of right toe cannot be accepted. The accused did not plead any right to. On the contrary, they simply stated that they were assaulted and out of fear for life they escaped from the place of occurrence. That apart, both the deceased were unarmed and serious injuries were inflicted with knives on the vital parts of the bodies of the deceased by the accused persons. The nature of such injuries negatives any just plea for right to. Accordingly existence of customary right of way need not be considered in the facts of the case. We, therefore, find no justification to interfere with the conviction and sentence passed by the High Court. | 0 | 3,971 | 1,292 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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very close relations. The High Court has further held that the existence of pathway used by villagers along the bund cannot be accepted in view of the clear evidence given on behalf of the prosecution. In this connection, the High Court has referred to the evidence of PW 4. Although PW 4 was declared hostile, the said PW 4 stated that there was no pathway along the cultivated area and there was only a ridge. So far as the recovery of knives with which the injuries were inflicted is concerned, the High Court has indicated that there was no sugg estion in the cross-examination of the Sub- Inspector, PW 10, about non-recovery of said knives. The High Court has also come to the finding that almost immediately after the occurrence, statement was made by PW 2 and the prosecution had also produced the first information report before the Court and the said first information report was also filed in the Magistrates Court. The High Court has held that Ext. P-1 is a genuine document and the circumstances under which it was recorded were properly explained with reference to the documentary and oral evidence. 9. Coming to the conclusion of right to private defence of the accused, the High Court has observed that in the statement under Section 313 Criminal Procedure Code, no plea of right to private defence had been taken by any of the accused. The High Court has held that there was no mischief committed by either of the deceased for which there was any occasion to exercise right of private defence and as there was no customary right of pathway which might amount to mischief such plea of self-defence was not at all acceptable. The High Court has further held that even if there was any customary right of pathway, there was no occasi on to inflict knife injuries on vital pans of the body to cause instantaneous death of both the deceased for an alleged interference with a right of pathway, when admittedly, the deceased Varkey and Chacko had no weapons with them. In the aforesaid facts, there was no occasion for any threat to the person or to the property justifying stabbing the deceased to death. The High Court has, therefore, held that the judgment of the learned Sessions Judge was completely against t he weight of the evidence and was perverse. Accordingly, the High Court set aside the said judgment and convicted both the accused under Section 302 IPC and passed sentence to undergo rigorous imprisonment for life against both of them. 10. The learned counsel for the appellant has reiterated the arguments which were advanced at the hearing of the appeal before the High Court. It has been sought to be contended that not only the right of pathway was obstructed by the deceased and their associates but they also assaulted both the accused. It was only on such assault that there was retaliation by the accused for which the said two persons had died. It has been contended that in exercise of right to self defence if knives were used to save the lives of the accused no exception should be taken. It was riot possible to weigh in golden scales the exact force which was required to be applied by way of right of self-defence. If in such a case, the deceased had suffered injuries on vital parts which were not intended, the accused cannot be held to be guilty for an offence under Section 302 IPC. It has been contended that in any event in such a case, the conviction under Section 302 was not warranted and at best if the accused had exceeded the right of private defence, the conviction under Section 304 IPC could have been awarded. The learned counsel has, therefore, submitted that the decision of the High Court is not proper particularly when some features in the case of the prosecution were not accepted fully by the learned Sessions Judge by indicating cogent reasons. The learned counsel has submitted that although the judgment passed by the learned Sessions Judge may not be a well-written judgment for which criticism had been advanced at the hearing of the appeal, it cannot be held that the points indicated by the learned Sessions Judge could not and did not warrant an order of acquittal11. After giving our anxious consideration to the facts and circumstances of the case and the materials and evidences adduced in the case, it appears to us that there are clinching evidences to establish the prosecution case. In our view, the High Court has given very cog ent reasons as to why the evidences of PWs 1, 2 and 3 should be accepted. PW 2 is an injured witness who made statement at the hospital shortly after the incident when he was taken for treatment. His evidence gets corroborated by the evidences given b y the other witnesses. The reasons advanced by the learned Sessions Judge for discarding those evidences do not stand scrutiny as rightly held by the High Court. It is not necessary to consider about the incidents happening on the previous night. If the murderous assault by the accused is established by clear and clinching evidences of the eyewitnesses, it will not be necessary to investigate the motive behind such commission of offence. In our view, the High Court is wholly justified in holding that the case of right to self-defence cannot be accepted. The accused did not plead any right to self-defence. On the contrary, they simply stated that they were assaulted and out of fear for life they escaped from the place of occurrence. That apart, both the deceased were unarmed and serious injuries were inflicted with knives on the vital parts of the bodies of the deceased by the accused persons. The nature of such injuries negatives any just plea for right to self-defence. Accordingly existence of customary right of way need not be considered in the facts of the case.
### Response:
0
### Explanation:
on the basis of the intimation given by the Medical Officer PW 5 who examined the injured witness PW 2 was unusual. It was further observed that the conduct of the Sub Inspector who although got the information about the murder, proceeded to the hospital and not to the scene of occurrence was also unusual. According to the learned Sessions Judge, the evidence of PW 1, a resident of Trichur and stated to be present at the place of occurrence, also did not ins pire confidence. According to the learned Sessions Judge, the evidence of PW 3 was unsatisfactory because he had omitted to mention before the police about PW 2 falling down on the eastern side of bund and having been stabbed on the left side of the chest. According to the learned Sessions Judge, PW 2 was an interested witness. In that view of the matter, the learned Sessions Judge was of the view that the prosecution case was not established and he acquitted both the accused7.It w as contended on behalf of the accused that accused 1 admittedly had bananaplantation beyond the field of Varkey. He had therefore occasion to proceedtowardshis cultivated land. It was contended that the existence of bund was beyond any dispute. Such bund was being used by the cultivators as a passage to go to their respective fields and the people as of right used to go along the bund. The deceased had no right to obstruct such movement along the bund. It was sought to be contended o n behalf of the accused that conspiracy was hatched on the previous night against the accused and Varkey obstructed accused 1 from going to his field. On such obstruction, accused 1 tried to assert the customary right of way which led to a scuffle and then his son, accused 2, had rushed to the spot. If due to such scuffle, the said two accused persons had exercised the right ofe and both the deceased had died as a result of such exercise of right of, no conviction was warranted against the accused persons. It was also contended that there was no reason for both the deceased Varkey and Chacko to go to the field early morning to see to the watering of the field because the key of the pump house had not been found near the area of scuffle. It was also contended that it was not natural for ther of the police to go to the hospital instead of going to the place of occurrence when he had received the information of murder. I t was further contended that there had not been proper investigation of the case and a different first information report had been substituted. Hence, the learned Sessions Judge was justified in acquitting the accused persons and there was no occasion to interfere in the appeal9. Coming to the conclusion of right to private defence of the accused, the High Court has observed that in the statement under Section 313 Criminal Procedure Code, no plea of right to private defence had been taken by any of the accused. The High Court has held that there was no mischief committed by either of the deceased for which there was any occasion to exercise right of private defence and as there was no customary right of pathway which might amount to mischief such plea ofe was not at all acceptable. The High Court has further held that even if there was any customary right of pathway, there was no occasi on to inflict knife injuries on vital pans of the body to cause instantaneous death of both the deceased for an alleged interference with a right of pathway, when admittedly, the deceased Varkey and Chacko had no weapons with them. In the aforesaid facts, there was no occasion for any threat to the person or to the property justifying stabbing the deceased to death. The High Court has, therefore, held that the judgment of the learned Sessions Judge was completely against t he weight of the evidence and was perverse. Accordingly, the High Court set aside the said judgment and convicted both the accused under Section 302 IPC and passed sentence to undergo rigorous imprisonment for life against both of them11. After giving our anxious consideration to the facts and circumstances of the case and the materials and evidences adduced in the case, it appears to us that there are clinching evidences to establish the prosecution case. In our view, the High Court has given very cog ent reasons as to why the evidences of PWs 1, 2 and 3 should be accepted. PW 2 is an injured witness who made statement at the hospital shortly after the incident when he was taken for treatment. His evidence gets corroborated by the evidences given b y the other witnesses. The reasons advanced by the learned Sessions Judge for discarding those evidences do not stand scrutiny as rightly held by the High Court. It is not necessary to consider about the incidents happening on the previous night. If the murderous assault by the accused is established by clear and clinching evidences of the eyewitnesses, it will not be necessary to investigate the motive behind such commission of offence. In our view, the High Court is wholly justified in holding that the case of right toe cannot be accepted. The accused did not plead any right to. On the contrary, they simply stated that they were assaulted and out of fear for life they escaped from the place of occurrence. That apart, both the deceased were unarmed and serious injuries were inflicted with knives on the vital parts of the bodies of the deceased by the accused persons. The nature of such injuries negatives any just plea for right to. Accordingly existence of customary right of way need not be considered in the facts of the case. We, therefore, find no justification to interfere with the conviction and sentence passed by the High Court.
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Dit (International Taxation), Mumbai Vs. M/S. Morgan Stanley & Co | from determining the profits to be taxed by such an apportionment as may be customary; the method of apportionment adopted shall, however, be such that the result shall be in accordance with the principles contained in this article.5. For the purposes of the preceding paragraphs, the profits to be attributed to the permanent establishment shall be determined by the same method year-by-year unless there is good and sufficient reason to the contrary.6. Where profits include items of income which are dealt with separately in other articles of this Convention, then the provisions of those articles shall not be affected by the provisions of this article.Note: The question of whether profits should be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods and merchandise for the enterprise was not resolved. It should therefore be settled in bilateral negotiations." 31. Article 7 of the U.N. Model Convention inter alia provides that only that portion of business profits is taxable in the source country which is attributable to the PE. It specifies how such business profits should be ascertained. Under the said Article, a PE is treated as if it is an independent enterprise (profit centre) dehors the head office and which deals with the head office at arms length. Therefore, its profits are determined on the basis as if it is an independent enterprise. The profits of the PE are determined on the basis of what an independent enterprise under similar circumstances might be expected to derive on its own. Article 7(2) of the U.N. Model Convention advocates the arms length approach for attribution of profits to a PE. 32. The object behind enactment of transfer pricing regulations is to prevent shifting of profits outside India. Under Article 7(2) not all profits of MSCo would be taxable in India but only those which have economic nexus with PE in India. A foreign enterprise is liable to be taxed in India on so much of its business profit as is attributable to the PE in India. The quantum of taxable income is to be determined in accordance with the provisions of I.T. Act. All provisions of I.T. Act are applicable, including provisions relating to depreciation, investment losses, deductible expenses, carry-forward and set-off losses etc. However, deviations are made by DTAA in cases of royalty, interest etc. Such deviations are also made under the I.T. Act (for example: Sections 44BB, 44BBA etc.). Under the impugned ruling delivered by the AAR, remuneration to MSAS was justified by a transfer pricing analysis and, therefore, no further income could be attributed to the PE (MSAS). In other words, the said ruling equates an arms length analysis (ALA) with attribution of profits. It holds that once a transfer pricing analysis is undertaken; there is no further need to attribute profits to a PE. The impugned ruling is correct in principle insofar as an associated enterprise, that also constitutes a PE, has been remunerated on an arms length basis taking into account all the risk-taking functions of the enterprise. In such cases nothing further would be left to be attributed to the PE. The situation would be different if transfer pricing analysis does not adequately reflect the functions performed and the risks assumed by the enterprise. In such a situation, there would be a need to attribute profits to the PE for those functions/risks that have not been considered. Therefore, in each case the data placed by the taxpayer has to be examined as to whether the transfer pricing analysis placed by the taxpayer is exhaustive of attribution of profits and that would depend on the functional and factual analysis to be undertaken in each case. Lastly, it may be added that taxing corporates on the basis of the concept of Economic Nexus is an important feature of Attributable Profits (profits attributable to the PE). Conclusion: 33. To conclude, we hold that the AAR was right in ruling that MSAS would be a Service PE in India under Article 5(2)(l), though only on account of the services to be performed by the deputationists deployed by MSCo and not on account of stewardship activities. As regards income attributable to the PE (MSAS) we hold that the Transactional Net Margin Method was the appropriate method for determination of the arms length price in respect of transaction between MSCo and MSAS. We accept as correct the computation of the remuneration based on cost plus mark-up worked out at 29% on the operating costs of MSAS. This position is also accepted by the Assessing Officer in his order dated 29.12.06 (after the impugned ruling) and also by the transfer pricing officer vide order dated 22.9.06. As regards attribution of further profits to the PE of MSCo where the transaction between the two are held to be at arms length, we hold that the ruling is correct in principle provided that an associated enterprise (that also constitutes a PE) is remunerated on arms length basis taking into account all the risk-taking functions of the multinational enterprise. In such a case nothing further would be left to attribute to the PE. The situation would be different if the transfer pricing analysis does not adequately reflect the functions performed and the risks assumed by the enterprise. In such a case, there would be need to attribute profits to the PE for those functions/risks that have not been considered. The entire exercise ultimately is to ascertain whether the service charges payable or paid to the service provider (MSAS in this case) fully represents the value of the profit attributable to his service. In this connection, the Department has also to examine whether the PE has obtained services from the multinational enterprise at lower than the arms length cost? Therefore, the Department has to determine income, expense or cost allocations having regard to arms length prices to decide the applicability of the transfer pricing regulations. 34. Economic nexus is an important aspect of the principle of Attribution of Profits. 35. | 1[ds]As regards the question of deputation, we are of the view that an employee of MSCo when deputed to MSAS does not become an employee of MSAS. A deputationist has a lien on his employment with MSCo. As long as the lien remains with the MSCo the said company retains control over the deputationists terms and employment. The concept of a service PE finds place in the U.N. Convention. It is constituted if the multinational enterprise renders services through its employees in India provided the services are rendered for a specified period. In this case, it extends to two years on the request of MSAS. It is important to note that where the activities of the multinational enterprise entails it being responsible for the work of deputationists and the employees continue to be on the payroll of the multinational enterprise or they continue to have their lien on their jobs with the multinational enterprise, a service PE can emerge. Applying the above tests to the facts of this case we find that on request/requisition from MSAS the applicant deputes its staff. The request comes from MSAS depending upon its requirement. Generally, occasions do arise when MSAS needs the expertise of the staff of MSCo. In such circumstances, generally, MSAS makes a request to MSCo. A deputationist under such circumstances is expected to be experienced in banking and finance. On completion of his tenure he is repatriated to his parent job. He retains his lien when he comes to India. He lends his experience to MSAS in India as an employee of MSCo as he retains his lien and in that sense there is a service PE (MSAS) under Article 5(2)(l). We find no infirmity in the ruling of the ARR on this aspect. In the above situation, MSCo is rendering services through its employees to MSAS. Therefore, the Department is right in its contention that under the above situation there exists a Service PE in India (MSAS). Accordingly, the civil appeal filed by the Department stands partly allowed. | 1 | 11,339 | 380 | ### 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:
from determining the profits to be taxed by such an apportionment as may be customary; the method of apportionment adopted shall, however, be such that the result shall be in accordance with the principles contained in this article.5. For the purposes of the preceding paragraphs, the profits to be attributed to the permanent establishment shall be determined by the same method year-by-year unless there is good and sufficient reason to the contrary.6. Where profits include items of income which are dealt with separately in other articles of this Convention, then the provisions of those articles shall not be affected by the provisions of this article.Note: The question of whether profits should be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods and merchandise for the enterprise was not resolved. It should therefore be settled in bilateral negotiations." 31. Article 7 of the U.N. Model Convention inter alia provides that only that portion of business profits is taxable in the source country which is attributable to the PE. It specifies how such business profits should be ascertained. Under the said Article, a PE is treated as if it is an independent enterprise (profit centre) dehors the head office and which deals with the head office at arms length. Therefore, its profits are determined on the basis as if it is an independent enterprise. The profits of the PE are determined on the basis of what an independent enterprise under similar circumstances might be expected to derive on its own. Article 7(2) of the U.N. Model Convention advocates the arms length approach for attribution of profits to a PE. 32. The object behind enactment of transfer pricing regulations is to prevent shifting of profits outside India. Under Article 7(2) not all profits of MSCo would be taxable in India but only those which have economic nexus with PE in India. A foreign enterprise is liable to be taxed in India on so much of its business profit as is attributable to the PE in India. The quantum of taxable income is to be determined in accordance with the provisions of I.T. Act. All provisions of I.T. Act are applicable, including provisions relating to depreciation, investment losses, deductible expenses, carry-forward and set-off losses etc. However, deviations are made by DTAA in cases of royalty, interest etc. Such deviations are also made under the I.T. Act (for example: Sections 44BB, 44BBA etc.). Under the impugned ruling delivered by the AAR, remuneration to MSAS was justified by a transfer pricing analysis and, therefore, no further income could be attributed to the PE (MSAS). In other words, the said ruling equates an arms length analysis (ALA) with attribution of profits. It holds that once a transfer pricing analysis is undertaken; there is no further need to attribute profits to a PE. The impugned ruling is correct in principle insofar as an associated enterprise, that also constitutes a PE, has been remunerated on an arms length basis taking into account all the risk-taking functions of the enterprise. In such cases nothing further would be left to be attributed to the PE. The situation would be different if transfer pricing analysis does not adequately reflect the functions performed and the risks assumed by the enterprise. In such a situation, there would be a need to attribute profits to the PE for those functions/risks that have not been considered. Therefore, in each case the data placed by the taxpayer has to be examined as to whether the transfer pricing analysis placed by the taxpayer is exhaustive of attribution of profits and that would depend on the functional and factual analysis to be undertaken in each case. Lastly, it may be added that taxing corporates on the basis of the concept of Economic Nexus is an important feature of Attributable Profits (profits attributable to the PE). Conclusion: 33. To conclude, we hold that the AAR was right in ruling that MSAS would be a Service PE in India under Article 5(2)(l), though only on account of the services to be performed by the deputationists deployed by MSCo and not on account of stewardship activities. As regards income attributable to the PE (MSAS) we hold that the Transactional Net Margin Method was the appropriate method for determination of the arms length price in respect of transaction between MSCo and MSAS. We accept as correct the computation of the remuneration based on cost plus mark-up worked out at 29% on the operating costs of MSAS. This position is also accepted by the Assessing Officer in his order dated 29.12.06 (after the impugned ruling) and also by the transfer pricing officer vide order dated 22.9.06. As regards attribution of further profits to the PE of MSCo where the transaction between the two are held to be at arms length, we hold that the ruling is correct in principle provided that an associated enterprise (that also constitutes a PE) is remunerated on arms length basis taking into account all the risk-taking functions of the multinational enterprise. In such a case nothing further would be left to attribute to the PE. The situation would be different if the transfer pricing analysis does not adequately reflect the functions performed and the risks assumed by the enterprise. In such a case, there would be need to attribute profits to the PE for those functions/risks that have not been considered. The entire exercise ultimately is to ascertain whether the service charges payable or paid to the service provider (MSAS in this case) fully represents the value of the profit attributable to his service. In this connection, the Department has also to examine whether the PE has obtained services from the multinational enterprise at lower than the arms length cost? Therefore, the Department has to determine income, expense or cost allocations having regard to arms length prices to decide the applicability of the transfer pricing regulations. 34. Economic nexus is an important aspect of the principle of Attribution of Profits. 35.
### Response:
1
### Explanation:
As regards the question of deputation, we are of the view that an employee of MSCo when deputed to MSAS does not become an employee of MSAS. A deputationist has a lien on his employment with MSCo. As long as the lien remains with the MSCo the said company retains control over the deputationists terms and employment. The concept of a service PE finds place in the U.N. Convention. It is constituted if the multinational enterprise renders services through its employees in India provided the services are rendered for a specified period. In this case, it extends to two years on the request of MSAS. It is important to note that where the activities of the multinational enterprise entails it being responsible for the work of deputationists and the employees continue to be on the payroll of the multinational enterprise or they continue to have their lien on their jobs with the multinational enterprise, a service PE can emerge. Applying the above tests to the facts of this case we find that on request/requisition from MSAS the applicant deputes its staff. The request comes from MSAS depending upon its requirement. Generally, occasions do arise when MSAS needs the expertise of the staff of MSCo. In such circumstances, generally, MSAS makes a request to MSCo. A deputationist under such circumstances is expected to be experienced in banking and finance. On completion of his tenure he is repatriated to his parent job. He retains his lien when he comes to India. He lends his experience to MSAS in India as an employee of MSCo as he retains his lien and in that sense there is a service PE (MSAS) under Article 5(2)(l). We find no infirmity in the ruling of the ARR on this aspect. In the above situation, MSCo is rendering services through its employees to MSAS. Therefore, the Department is right in its contention that under the above situation there exists a Service PE in India (MSAS). Accordingly, the civil appeal filed by the Department stands partly allowed.
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RAMNATH AND CO Vs. THE COMMISSIONER OF INCOME TAX | which were rendered from India. Therefore, the findings of the Appellate Authority and ITAT, being based on irrelevant considerations while ignoring the relevant aspects, were neither of binding nature nor could have been decisive of the matter. Hence, neither anything turns upon the submissions made on behalf of the appellant with reference to the decision in K. Ravindranathan Nair (supra) nor this aspect requires any further discussion. 37. In our view, the High Court has rightly analysed the entire matter with reference to the relevant questions and has rightly proceeded on the law applicable to the case. The impugned judgment calls for no interference. The appellant M/s Laxmi Agencies - the appeal arising out of SLP (Civil) No.23699 of 2016 . 38. This appeal involves similar claim of the other assessee firm M/s Laxmi Agencies, said to be engaged in similar business of rendering services to foreign buyers of Indian marine products. For the assessment year 1997-98, this assessee firm, while declaring total income of Rs. 31,81,180/-, claimed deduction under Section 80-O to the tune of Rs.21,84,302/-, being 50% of the net income of Rs. 43,68,604/- towards the service charges received from such foreign buyers. 38.1. In the assessment order dated 31.01.2000, the AO noted the explanation of this appellant regarding the services rendered in the following: …..As per the detailed letter dated 22.11.1999 filed by the assessee the services rendered by it to the foreign enterprises are by way of : 1. To impact commercial and technical knowledge, experience and skill in the field of Frozen Food/Marine products to enable them to formulate their policies and take decision for import thereof from India; 2. To locate reliable sources of quality and assured supply of Frozen Seafood/Marine products and communicate the assessees expert opinion and advise to them to enable them to take decisions for import from India; 3. To keep close liaison with agencies such as EIA/Llyods/ SGS especially for organoleptic/bacteriological analysis and communicate the results of inspection along with assessees expert comments and advice. This also enables the foreign enterprises to take decisions for import from various sources from several countries available to them. 4. Making available full and detailed analysis of the seafood situation and prices for the above purpose. 5. To advise and keep informed the foreign buyers of the latest trends/process applications in manufacturing and all valuable commercial and economic information which will directly and indirectly assist them to organize, develop, control on regulate their import business from India. 6. To assist foreign buyers in negotiating and finalizing prices for Indian marine products and advise them of all rules and regulations and other related information for such import. In the case of this appellant, again, the AO was of the view that the services were rendered in India and the service charges received from the foreign enterprises in respect of such services did not qualify for deduction under Section 80-O. 38.2. In the case of this appellant, the Appellate Authority examined the terms of agreements with the foreign enterprises in detail and noted the contents thereof in the following paragraphs:- 2.The appellant had entered into agreement with various foreign enterprises for render the following services. Article 2 of the agreement entered into with Neptune Fisheries Ind. USA reads as under:- (a) Locating reliable source of quality and assured supply of frozen sea-foods/marine products for the purpose of import by NEPTUNE and communicate its expert opinion and advice to the NEPTUNE; (b) In addition to the above services rendered by Laxmi it will also keep a close liason with agencies such as ELA/LLOYDS/SGS especially for organolotic/acteriological analysis and communicate the result of the inspection along with its expert comments and advice. (c) Making available full and detailed analysis of the sea food supply situation and prices; (d) To advise NEPTUNE and keep them informed of the latest trends/processes applications in manufacturing and of all valuable commercial and economic information about the markets, Government Policies, exchange fluctuations, banking laws which will directly or indirectly assist NEPTUNE to organize, develop control or regulate their import business from India. (e) To negotiate and finalise the prices for India Exporters of frozen marine products and to communicate such and other related information to NEPTUNE. Article 4 of the agreement states: LAXMI shall also do everything that is required to ensure highest standards of quality hygiene and freshness of products including supervision at various stages. 3. The agreement made with other principles (sic- principals) are also on similar lines. 38.3. In this case, of course, the Appellate Authority took note of various activities of the appellant with and for the buyer concerned and, while disallowing 20% of the service charges received from foreign enterprises towards the services rendered in India, allowed deduction under Section 80-O to the extent of the net income arising out of 80% of such charges received from foreign enterprises. 38.4. The order so passed by the Appellate Authority was challenged both by the appellant and by the revenue before ITAT in ITA No. 580/Coch/2004 and ITA No. 618/Coch/2004 respectively. The ITAT referred to its earlier decision in the case of the other assessee Ramnath & Co. (as referred to hereinabove) and following the same, allowed the appeal of the appellant and dismissed that of the revenue and thereby, allowed the claim of appellant for deduction in toto. 38.5. Although, from the fact sheet of this case, it does not appear if the agreements of this appellant also carried the default clauses as we have noticed in the lead case but, on all other major features, the agreements had been of the same nature and again, this appellant has also failed to bring any material on record to show if it had received any specific consideration referable to the activities envisaged by Section 80-O of the Act. In the given set of facts and circumstances, this appellant also turns out to be only a procuring agent and not beyond. Hence, this appeal also deserves to be dismissed. Conclusion | 0[ds]14.2. The aspect germane to the present case is that forerunner to the provision relating to deduction of tax on royalties etc., received from certain foreign companies, was Section 85-C in the Act of 1961, that was inserted by Act No.13 of 1966 w.e.f. 01.04.1966 and was placed in Chapter VII. The said Section 85-C and several other provisions of Chapter VII were omitted by Section 33, read with Third Schedule, item 14, of the Finance (No.2) Act, 1967. The reason for omission of the said Section 85-C was that similar provision, with revised requirements, came to be introduced by way of Section 80-O in the new Chapter VI-A - .14.3. Section 80-O as introduced in Chapter VI-A got several modifications/alterations in regard to the entities eligible to claim such deductions as also the extent (that is percentage) of admissible deduction, but the core of object remained that of encouraging the export of Indian technical know-how and augmentation of the foreign exchange reserves of the country. While the relief was originally admitted in Section 80-O for dealing with a foreign company only, but later on, dealing with a foreign Government or foreign enterprise was included and thereby, the scope of coverage and activities was substantially expanded. However, as noticed from the erstwhile Section 85-C and the originally inserted Section 80-O, any such agreement with the foreign entity required the approval of Central Government and this requirement was later on altered to that of the approval of CBDT. Various other features and aspects related with the development and operation of Section 80-O, as then existing, were dealt with by the two circulars referred to on behalf of the revenue that is, Circular No. 187 dated 23.12.1975 and Circular No. 253 dated 30.04.1979.14.4 There had been several other modifications of Section 80-O from time to time. The relevant aspects noticeable for the present purpose are that the extent of deduction under Section 80-O was also altered from time to time and it even came to be allowed 100 per cent. but, by the Finance Act, 1984, it was reduced to 50 per cent. of the referred income. Then, the requirement of approval by CBDT was substituted by Finance Act, 1988 to the approval by Chief Commissioner or Director General. However, by Finance (No. 2) Act of 1991, even that requirement was deleted. In fact, the Finance (No. 2) Act of 1991 brought about a sea of changes in Section 80- O whereby, first and second provisos were omitted and the above- mentioned clause (iii) of Explanation was inserted. The words or a person (other than a company) who is resident in India were also inserted by this very Finance (No. 2) Act of 1991 expanding the reach of Section 80-O even to non-corporate tax payers. Moreover, the earlier expressions technical services were also altered to technical or professional services. There is no gainsaying the fact that Finance (No. 2) Act of 1991 led to a considerable recasting of Section 80-O of the Act of 1961 with substantial expansion of its ambit and area of coverage. These amendments were made applicable from the assessment year 1992-93 onwards and obviously, this had been the reason that the assessees like the appellant, who had earlier been taking the benefit of deduction under Section 80HHC with reference to their earning of foreign exchange, attempted to shift, for the purpose of deduction, to this provision of Section 80-O.14.6 In summation of what has been noticed hereinabove, it turns out that with the objectives of giving impetus to the functioning of Indian industries to provide intellectual property or information concerning industrial, commercial or scientific knowledge to the foreign countries so as to augment the foreign exchange earnings of our country and at the same time, earning a goodwill of the Indian technical know-how in the foreign countries, the provisions like Section 85-C earlier and Section 80-O later were inserted to the Act of 1961. Noteworthy it is that from time to time, the ambit and sphere of Section 80-O were expanded and even the dealings with foreign Government or foreign enterprise were included in place of foreign company as initially provided. The requirement of approval by the Central Government of any such arrangement was also modified and was ultimately done away with. Significantly, while initially the benefit of Section 80-O was envisaged only for an Indian company but later on, it was also extended to a person other than a company, who is resident of India. The extent of deduction had also varied from time to time.14.7. Broadly speaking, a few major and important factors related with Section 80-O of the Act of 1961, with reference to its background and its development, make it clear that the tax incentive for imparting technical know-how and akin specialities from our country to the foreign countries ultimately took the shape in the manner that earning of foreign exchange, by way of imparting intellectual property, or furnishing the information concerning industrial, commercial, scientific knowledge, or rendering of technical or professional services to the foreign Government or foreign enterprise, was made eligible for deduction in computation of total income, to the tune of 50 per cent. of the income so received. The finer details like those occurring in Explanation (iii) of Section 80-O were also taken care of by providing that the services envisaged by Section 80-O ought to be rendered outside India but they may be rendered from India, while making it clear that the services which are rendered in India would not qualify for such a deduction.15.1. So far the decision in the case of B. Suresh (supra) is concerned, it does not appear necessary to dilate on the same because the question involved therein was entirely different that is, as to whether the foreign exchange earned by transferring the right of exploitation of films outside India by way of lease was admissible for deduction under Section 80HHC of the Act, where the department attempted to contend that movies/films were not goods. However, having regard to the submissions made, we may look at the ratio from the other cited decisions in requisite details.17.3. In view of above and with reference to several other decisions, in Dilip Kumar & Co., the Constitution Bench summed up the principles as follows:-66. To sum up, we answer the reference holding as under:66.1. Exemption notification should be interpreted strictly; the burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification66.2. When there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the subject/assessee and it must be interpreted in favour of the Revenue66.3. The ratio in Sun Export case is not correct and all the decisions which took similar view as in Sun Export case stand overruled.(emphasis in bold supplied)17.4. Obviously, the generalised, rather sweeping, proposition stated in the case of Sun Export Corporation (supra) as also in other cases that in the matters of taxation, when two views are possible, the one favourable to assessee has to be preferred, stands specifically disapproved by the Constitution Bench in Dilip Kumar & Co. (supra). It has been laid down by the Constitution Bench in no uncertain terms that exemption notification has to be interpreted strictly; the burden of proving its applicability is on the assessee; and in case of any ambiguity, the benefit thereof cannot be claimed by the subject/assessee, rather it would be interpreted in favour of the revenue.In this regard, we may observe that deductions, exemptions, rebates et cetera are the different species of incentives extended by the Act of 1961 . In other words, incentive is a generic term and deduction is one of its species; exemption is another. Furthermore, Section 80-O is only one of the provisions in the Act of 1961 dealing with incentive; and even as regards the incentive for earning or saving foreign exchange, there are other provisions in the Act, including Section 80HHC, whereunder the appellant was indeed taking benefit before the assessment year 1993–94.19. Without expanding unnecessarily on variegated provisions dealing with different incentives, suffice would be to notice that the proposition that incentive provisions must receive liberal interpretation or to say, leaning in favour of grant of relief to the assessee is not an approach countenanced by this Court. The law declared by the Constitution Bench in relation to exemption notification, proprio vigore, would apply to the interpretation and application of any akin proposition in the taxing statutes for exemption, deduction, rebate et al., which all are essentially the form of tax incentives given by the Government to incite or encourage or support any particular activity.20. The principles laid down by the Constitution Bench, when applied to incentive provisions like those for deduction, would also be that the burden lies on the assessee to prove its applicability to his case; and if there be any ambiguity in the deduction clause, the same is subject to strict interpretation with the result that the benefit of such ambiguity cannot be claimed by the assessee, rather it would be interpreted in favour of the revenue. In view of the Constitution Bench decision in Dilip Kumar & Co. (supra), the generalised observations in Baby Marine Exports (supra) with reference to a few other decisions, that a tax incentive provision must receive liberal interpretation, cannot be considered to be a sound statement of law; rather the applicable principles would be those enunciated in Wood Papers Ltd. (supra), which have been precisely approved by the Constitution Bench. Thus, at and until the stage of finding out eligibility to claim deduction, the ambit and scope of the provision for the purpose of its applicability cannot be expanded or widened and remains subject to strict interpretation but, once eligibility is decided in favour of the person claiming such deduction, it could be construed liberally in regard to other requirements, which may be formal or directory in nature.21. As noticed, Section 80-O of the Act has a unique purpose and hence, peculiarities of its own. Applying the aforesaid principles to an enquiry for the purpose of a claim of deduction under Section 80-O of the Act as applicable to the present case, evident it is that for the purpose of eligibility, the service or activity has to precisely conform to what has been envisaged by the provision read with its explanation; and the other requirements of receiving convertible foreign exchange etc., are also to be fulfilled. It is only after that stage is crossed and a particular activity falls within the ambit of Section 80-O, this provision will apply with full force and may be given liberal application. The basic question, therefore, would remain as to whether the suggested activity of appellant had been of rendering such service from India to its principals in foreign country which answers to the description provided by the provision. As regards this enquiry, nothing of any liberal approach is envisaged. The activity must strictly conform to the requirements of Section 80-O of the Act.In our view, this part of criticism on behalf of the appellant on the approach of the High Court is entirely inapt and rather unnecessary. The referred observations in the majority view in Abhiram Singhs case occurred in relation to the interpretation of Section 123(3) of the Representation of People Act, 1951, which is aimed at curbing the unwarranted tendencies of communalism during election campaign and operates in entirely different fields of social welfare and ethos of democracy.22.2. In the setup of the present case, for a proper comprehension of the contents and text of the relevant provision of Section 80-O and Explanation (iii), which are carrying even the minute distinction of the expressions from India and in India, recourse to lexical semantics has been inevitable. However, in all fairness, the High Court has not only discussed semantics and dictionary meanings but, has equally looked at the object and purpose of Section 80-O of the Act. Hence, without further expanding on this issue, suffice it to say for the present purpose that the submissions against the approach of High Court with reference to the decision in Abhiram Singh (supra) does not advance the cause of the appellant.24.3. Though it has been painstakingly contended on behalf of the appellant that the decision in J.B. Boda & Co. should be decisive of the matter because even the brokerage of a reinsurance broker was held eligible for deduction under Section 80-O of the Act but, we are afraid, the said decision has no relevance whatsoever to the question at hand. The eligibility of the concerned services of reinsurance broker for the purpose of Section 80-O was not even a question involved therein. Needless to observe that the business of insurance carries its own peculiarities where the factor of risk involved is of unique significance; and any information and assessment of risk involved is itself a specialised task related with the business of insurance. In the fact sheet of the case in J.B. Boda & Co., in the every opening paragraph of judgment, it has been distinctively recorded that in respect of the insurance risk covered by Indian or foreign insurance companies, the appellant had been arranging for the reinsurance of a portion of risk with various reinsurance companies either directly or through foreign brokers. As regards, the services of the appellant with a broker in London, the Court noted, inter alia, that the appellant furnished all the details about the risk involved, the premium payable, the period of coverage and the portion of the risk which is sought to be reinsured. Without entering into further details of the activities of the said assessee, suffice it to say for the present purpose that the submissions on behalf of the appellant, as if the task of a broker of reinsurance is not technical in nature, could only be rejected as being not in conformity with the peculiarities of insurance business. In any case, as observed hereinbefore, this aspect does not require further elaboration because of entirely different question involved and decided by this Court in J.B. Boda & Co.25.4 The decision in E.P.W. Da Costa, again, does not make out any case in favour of the appellant.26.3. The case of B.L. Passi (supra) had not been a matter where nothing at all was on record. Indeed the letters exchanged by the assessee with the principal were on record, but the core of information that was allegedly supplied by the assessee to the foreign company, was not furnished, nor it was shown as to how that information was utilized by the foreign company and further, it was also not shown as to how the service charges payable to the assessee were computed when it was to get the payment on the basis of sale to be made by the foreign company. These crucial facts and factors directly co-relate with the requirements of Section 80-O of the Act; and upon the assessee failing to meet with such requirements, the claim for deduction under Section 80-O failed.28. As noticed, in the present case, in the very first place, the Assessing Officer, while dealing with the assessment in question, raised the queries and sought clarifications from the appellant with reference to the enunciations in the decision of this Court in the case of Continental Construction (supra). Then, the High Court has also noticed in its impugned judgment that this was one of the decisions relied upon by the learned counsel for the assessee. A comment has been made in the reply submissions on behalf of the revenue before us that the appellant has given up reliance on this decision for the reasons that the ratio essentially operates against the appellant. The response on behalf of the appellant has been that reference to this decision by revenue was entirely unnecessary for the same not being relied upon. Needless to observe that it being a decision of this Court, the ratio and the principle emanating therefrom cannot be ignored, whether relied upon by the appellant or not. Moreover, the said decision has been rendered by a 3-Judge Bench of this Court and has the force of a binding precedent. Having regard to the submissions made and the questions raised, reference to the decision of this Court in the case of Continental Construction (supra) is indispensable.28.4. A few aspects at once emerge from the said decision in Continental Construction that even under the provisions of Section 80-O of the Act as then existing, whereunder prior approval of CBDT was required to claim deduction, this Court underscored that deduction would be available only in relation to the consideration attributable to the information and services envisaged by Section 80-O and deduction would be granted to the extent of such consideration; and all these aspects were to be examined by the Assessing Officer while making the assessment.29. In the impugned judgment, the decision of High Court of Madras in the case of Khursheed Anwar (supra) has also been taken note of. Therein too, the claim for deduction under Section 80-O of the Act was declined for want of necessary material while observing that the benefit of Section 80-O cannot be claimed by merely asking for the same; it has to be substantiated with the requisite record. In the said case, on the query of the Assessing Officer, the assessee had submitted its reply but could not furnish the material so as to bring the case within the four corners of Section 80-O of the Act. The High Court, inter alia, observed as under (at p. 474 of ITR):Having regard to the above discussions, in our view, as the assessee has not established his claim for deduction by producing the relevant records, the Tribunal has erred in reversing the finding of the Commissioner of Income-tax (Appeals) rendered on the basis that the assessee was not entitled to the benefit in view of the fact that the commission received by the assessee was not for any of the activities mentioned in paragraph 4.1 of the order of the Commissioner of Income-tax (Appeals). There is absolutely no reason adduced by the Tribunal to reverse the said finding. We must also mention here that during the course of arguments, as we found that there were no supporting materials for the claim, we directed the assessees counsel to produce the materials, if any, available for our perusal. The learned counsel for the assessee, though had produced the explanation of the assessee dated March 28, 1998, he was unable to produce any materials to sustain any of the contentions made in the said letter. In the absence of any materials to show that what was passed on to the foreign enterprise was the information concerning with commercial or technical or scientific aid, merely because an agreement is entered into between the assessee and the foreign enterprise, we are not inclined to accept the claim of deduction under section 80-O of the Act. Accordingly, the second substantial question of law is answered in favour of the revenue and against the assessee. The tax case appeal is allowed in part. No costs.. From the decisions aforesaid, it could be immediately culled out that for bringing any particular foreign exchange receipt within the ambit of Section 80-O for deduction, it must be a consideration attributable to information and service contemplated by Section 80-O; and in case of a contract involving multiple or manifold activities and obligations, every consideration received therein in foreign exchange will not ipso facto fall within the ambit of Section 80-O. It has to be attributable to the information or service contemplated by the provision and only that part of foreign exchange receipt, which is so attributable to the activity contemplated by Section 80-O, would qualify for claiming deduction. Such enquiry is required to be made by the Assessing Officer; and for the purpose of this imperative enquiry, requisite material ought to be placed by the assessee to co-relate the foreign exchange receipt with information/service referable to Section 80-O. Evidently, such an enquiry by the Assessing Officer could be made only if concrete material is placed on record to show the requisite co- relation.31. Coming to the facts of the present case, the agreements of the appellant with the foreign entities primarily show that the appellant was to locate the source of supply of the referred merchandise and inform the principals; to keep liaison with the agencies carrying out organoleptic/bacteriological analysis and communicate the result of inspection; to make available to the foreign principals the analysis of seafood supply situation and prices; and to keep the foreign principals informed of the latest trends in the market and also to negotiate and finalise the prices. As per the agreements, in lieu of such services, the appellant was to receive the agreed commission on the invoice amounts.32. In contrast to what has been observed in the cases of J.B. Boda & Co. (advising on the risk factor related to the proposed insurance/reinsurance) and E.P.W. Da Costa (dealing with statistical analysis of data collected), what turns out as regards the activities/services of the appellant is that the appellant was essentially to ensure supply of enough quantity of good quality merchandise in proper packing and at competitive prices to the satisfaction of the principals. This has essentially been the job of a procuring agent. Though the expressions expert information and advice, analysis, technical guidance etc., have been used in the agreements but, these expressions cannot be read out of context and de hors the purpose of the agreement. All the clauses of the agreements read together make it absolutely clear that the appellant was merely a procuring agent and it was his responsibility to ensure that proper goods are supplied in proper packing to the satisfaction of the principal. All other services or activities mentioned in the agreements were only incidental to its main functioning as agent. Significantly, the payment to the appellant, whatever label it might have carried, was only on the basis of the amount of invoice pertaining to the goods. There had not been any provision for any specific payment referable to the so-called analysis or technical guidance or advice. Viewed from any angle, the services of the appellant were nothing but of an agent, who was procuring the merchandise for its principals; and such services by the appellant, as agent, were rendered in India. Even if certain information was sent by the assessee to the principals, the information did not fall in the category of such professional services or information which could justify its claim for deduction under Section 80-O of the Act. In other words, in the holistic view of the terms of the agreements, we have not an iota of doubt that the appellant was only a procuring agent, as rightly described by the High Court.33.1. In both the agreements, the default clauses make it more than clear that if the quality of goods was found to be unsatisfactory to the principals after inspection in their respective countries, they shall have no responsibility to pay the agents fees. If at all it had been a matter of the appellant furnishing some technical or material information which served the foreign enterprises in making the decision for procurement, in the ordinary circumstances, after completion of such service and its utilization by the foreign enterprises, the appellant was likely to receive the professional service charges for furnishing such information but, contrary and converse to it, the agreements provide for no payment to the appellant in case of principal being dissatisfied with goods. These default clauses effectively demolish the case of the appellant and fortify the submissions of the revenue that the appellant was merely a procuring agent and nothing more.34. The matter can be viewed from yet another angle, as indicated by the High Court in the last paragraph of its judgment. If at all it be assumed that out of various tasks mentioned in the agreements, some of them involved such services which answered to the requirements of Section 80- O, it was definitely required of the appellant to establish as to what had been such information of special nature or of expertise that was given by it and how the same was utilised, if at all, by the foreign enterprises; and how much of the foreign exchange receipt was attributable to such special service. Obviously, the appellant did not supply such particulars. As noticed, the High Court posed a pointed query to the learned counsel appearing for the appellant as to whether all the services mentioned in the agreement would come within the purview of Section 80-O. The cryptic response to this query on behalf to the appellant had been that if the recipient of services is situated outside, all the services rendered by the assessee in terms of the agreement come within the sweep of the provision. It was specifically contended on behalf of the appellant that establishing which of its services qualifies for the deduction is of no consequence, rather unnecessary. In our view, this response was not in conformity with the requirements of Section 80-O of the Act, as explained and applied by this Court in Continental Construction and in B. L. Passi (supra) as also as applied by Madras High Court in Khursheed Anwar (supra). Rather, this stand, in our view, puts the final curtain on the appellants case because most of the services in the agreements in question were those of an agent ensuring supply; and if any part of the services co-related with Section 80-O, the particulars were of utmost significance and were fundamentally necessary which the appellant had never supplied. Merely for having a contract with a foreign enterprise and mere earning foreign exchange does not ipso facto lead to the application of Section 80-O of the Act.35. The effect of Circular No.700 dated 23.03.1995 is only to the extent that once the service is rendered from India, even if its ultimate use by the foreign enterprise occurs in India, the matter may not go out of Section 80- O of the Act. This clarification is in tune with the nature of this provision meant for extending incentive but it does not do away with the basic requirements that to qualify for deduction under Section 80-O, the service must be rendered from India to foreign enterprise and the nature of service ought to be as delineated in Section 80-O. Ultimate use of the service could be in India, as illustrated by the case of E.P.W. Da Costa (supra) and by the cases of Li & Fung and Chakiath Agencies (supra) that were cited before the High Court. However, the claim of the appellant fails at the threshold for the reasons foregoing. Circular No.700 dated 23.03.1995 is neither of any application to this case nor of any assistance to the appellant. The appellant is not entitled to claim deduction under Section 80-O of the Act.36. For what we have discussed hereinabove, it is also apparent that the Appellate Authority as also the ITAT had viewed the present case from an altogether wrong angle. As noticed, the Appellate Authority even did not comprehend the observations in E.P.W. Da Costa (supra) and assumed that every information is scientific knowledge. On facts, the Appellate Authority observed that even if acting as agent of the foreign enterprises, the appellant was locating the sources of frozen seafoods, bringing the foreign enterprises in contact with the manufacturers or processors of seafood, and negotiating with the local packers; and these activities, though carried out in India, had been on behalf of the foreign enterprises. The ITAT, though took note of different services contemplated by the agreements in question and even observed that the clauses like those requiring the appellant to settle the claim with manufacturers might be the services rendered in India but then, proceeded to assume, without any cogent material on record, that other services were rendered from India and on that basis, the foreign party took its decision. Even in this regard, the questions relevant and germane to the enquiry were not even gone into inasmuch as, it was not examined as to what and which part of the consideration was attributable to the services envisaged by Section 80-O of the Act, which were rendered from India. Therefore, the findings of the Appellate Authority and ITAT, being based on irrelevant considerations while ignoring the relevant aspects, were neither of binding nature nor could have been decisive of the matter. Hence, neither anything turns upon the submissions made on behalf of the appellant with reference to the decision in K. Ravindranathan Nair (supra) nor this aspect requires any further discussion.37. In our view, the High Court has rightly analysed the entire matter with reference to the relevant questions and has rightly proceeded on the law applicable to the case. The impugned judgment calls for no interference.The appellant M/s Laxmi Agencies - the appeal arising out of SLP (Civil) No.23699 of 2016 .38.5. Although, from the fact sheet of this case, it does not appear if the agreements of this appellant also carried the default clauses as we have noticed in the lead case but, on all other major features, the agreements had been of the same nature and again, this appellant has also failed to bring any material on record to show if it had received any specific consideration referable to the activities envisaged by Section 80-O of the Act. In the given set of facts and circumstances, this appellant also turns out to be only a procuring agent and not beyond. Hence, this appeal also deserves to be dismissed. | 0 | 31,483 | 5,449 | ### Instruction:
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which were rendered from India. Therefore, the findings of the Appellate Authority and ITAT, being based on irrelevant considerations while ignoring the relevant aspects, were neither of binding nature nor could have been decisive of the matter. Hence, neither anything turns upon the submissions made on behalf of the appellant with reference to the decision in K. Ravindranathan Nair (supra) nor this aspect requires any further discussion. 37. In our view, the High Court has rightly analysed the entire matter with reference to the relevant questions and has rightly proceeded on the law applicable to the case. The impugned judgment calls for no interference. The appellant M/s Laxmi Agencies - the appeal arising out of SLP (Civil) No.23699 of 2016 . 38. This appeal involves similar claim of the other assessee firm M/s Laxmi Agencies, said to be engaged in similar business of rendering services to foreign buyers of Indian marine products. For the assessment year 1997-98, this assessee firm, while declaring total income of Rs. 31,81,180/-, claimed deduction under Section 80-O to the tune of Rs.21,84,302/-, being 50% of the net income of Rs. 43,68,604/- towards the service charges received from such foreign buyers. 38.1. In the assessment order dated 31.01.2000, the AO noted the explanation of this appellant regarding the services rendered in the following: …..As per the detailed letter dated 22.11.1999 filed by the assessee the services rendered by it to the foreign enterprises are by way of : 1. To impact commercial and technical knowledge, experience and skill in the field of Frozen Food/Marine products to enable them to formulate their policies and take decision for import thereof from India; 2. To locate reliable sources of quality and assured supply of Frozen Seafood/Marine products and communicate the assessees expert opinion and advise to them to enable them to take decisions for import from India; 3. To keep close liaison with agencies such as EIA/Llyods/ SGS especially for organoleptic/bacteriological analysis and communicate the results of inspection along with assessees expert comments and advice. This also enables the foreign enterprises to take decisions for import from various sources from several countries available to them. 4. Making available full and detailed analysis of the seafood situation and prices for the above purpose. 5. To advise and keep informed the foreign buyers of the latest trends/process applications in manufacturing and all valuable commercial and economic information which will directly and indirectly assist them to organize, develop, control on regulate their import business from India. 6. To assist foreign buyers in negotiating and finalizing prices for Indian marine products and advise them of all rules and regulations and other related information for such import. In the case of this appellant, again, the AO was of the view that the services were rendered in India and the service charges received from the foreign enterprises in respect of such services did not qualify for deduction under Section 80-O. 38.2. In the case of this appellant, the Appellate Authority examined the terms of agreements with the foreign enterprises in detail and noted the contents thereof in the following paragraphs:- 2.The appellant had entered into agreement with various foreign enterprises for render the following services. Article 2 of the agreement entered into with Neptune Fisheries Ind. USA reads as under:- (a) Locating reliable source of quality and assured supply of frozen sea-foods/marine products for the purpose of import by NEPTUNE and communicate its expert opinion and advice to the NEPTUNE; (b) In addition to the above services rendered by Laxmi it will also keep a close liason with agencies such as ELA/LLOYDS/SGS especially for organolotic/acteriological analysis and communicate the result of the inspection along with its expert comments and advice. (c) Making available full and detailed analysis of the sea food supply situation and prices; (d) To advise NEPTUNE and keep them informed of the latest trends/processes applications in manufacturing and of all valuable commercial and economic information about the markets, Government Policies, exchange fluctuations, banking laws which will directly or indirectly assist NEPTUNE to organize, develop control or regulate their import business from India. (e) To negotiate and finalise the prices for India Exporters of frozen marine products and to communicate such and other related information to NEPTUNE. Article 4 of the agreement states: LAXMI shall also do everything that is required to ensure highest standards of quality hygiene and freshness of products including supervision at various stages. 3. The agreement made with other principles (sic- principals) are also on similar lines. 38.3. In this case, of course, the Appellate Authority took note of various activities of the appellant with and for the buyer concerned and, while disallowing 20% of the service charges received from foreign enterprises towards the services rendered in India, allowed deduction under Section 80-O to the extent of the net income arising out of 80% of such charges received from foreign enterprises. 38.4. The order so passed by the Appellate Authority was challenged both by the appellant and by the revenue before ITAT in ITA No. 580/Coch/2004 and ITA No. 618/Coch/2004 respectively. The ITAT referred to its earlier decision in the case of the other assessee Ramnath & Co. (as referred to hereinabove) and following the same, allowed the appeal of the appellant and dismissed that of the revenue and thereby, allowed the claim of appellant for deduction in toto. 38.5. Although, from the fact sheet of this case, it does not appear if the agreements of this appellant also carried the default clauses as we have noticed in the lead case but, on all other major features, the agreements had been of the same nature and again, this appellant has also failed to bring any material on record to show if it had received any specific consideration referable to the activities envisaged by Section 80-O of the Act. In the given set of facts and circumstances, this appellant also turns out to be only a procuring agent and not beyond. Hence, this appeal also deserves to be dismissed. Conclusion
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and fortify the submissions of the revenue that the appellant was merely a procuring agent and nothing more.34. The matter can be viewed from yet another angle, as indicated by the High Court in the last paragraph of its judgment. If at all it be assumed that out of various tasks mentioned in the agreements, some of them involved such services which answered to the requirements of Section 80- O, it was definitely required of the appellant to establish as to what had been such information of special nature or of expertise that was given by it and how the same was utilised, if at all, by the foreign enterprises; and how much of the foreign exchange receipt was attributable to such special service. Obviously, the appellant did not supply such particulars. As noticed, the High Court posed a pointed query to the learned counsel appearing for the appellant as to whether all the services mentioned in the agreement would come within the purview of Section 80-O. The cryptic response to this query on behalf to the appellant had been that if the recipient of services is situated outside, all the services rendered by the assessee in terms of the agreement come within the sweep of the provision. It was specifically contended on behalf of the appellant that establishing which of its services qualifies for the deduction is of no consequence, rather unnecessary. In our view, this response was not in conformity with the requirements of Section 80-O of the Act, as explained and applied by this Court in Continental Construction and in B. L. Passi (supra) as also as applied by Madras High Court in Khursheed Anwar (supra). Rather, this stand, in our view, puts the final curtain on the appellants case because most of the services in the agreements in question were those of an agent ensuring supply; and if any part of the services co-related with Section 80-O, the particulars were of utmost significance and were fundamentally necessary which the appellant had never supplied. Merely for having a contract with a foreign enterprise and mere earning foreign exchange does not ipso facto lead to the application of Section 80-O of the Act.35. The effect of Circular No.700 dated 23.03.1995 is only to the extent that once the service is rendered from India, even if its ultimate use by the foreign enterprise occurs in India, the matter may not go out of Section 80- O of the Act. This clarification is in tune with the nature of this provision meant for extending incentive but it does not do away with the basic requirements that to qualify for deduction under Section 80-O, the service must be rendered from India to foreign enterprise and the nature of service ought to be as delineated in Section 80-O. Ultimate use of the service could be in India, as illustrated by the case of E.P.W. Da Costa (supra) and by the cases of Li & Fung and Chakiath Agencies (supra) that were cited before the High Court. However, the claim of the appellant fails at the threshold for the reasons foregoing. Circular No.700 dated 23.03.1995 is neither of any application to this case nor of any assistance to the appellant. The appellant is not entitled to claim deduction under Section 80-O of the Act.36. For what we have discussed hereinabove, it is also apparent that the Appellate Authority as also the ITAT had viewed the present case from an altogether wrong angle. As noticed, the Appellate Authority even did not comprehend the observations in E.P.W. Da Costa (supra) and assumed that every information is scientific knowledge. On facts, the Appellate Authority observed that even if acting as agent of the foreign enterprises, the appellant was locating the sources of frozen seafoods, bringing the foreign enterprises in contact with the manufacturers or processors of seafood, and negotiating with the local packers; and these activities, though carried out in India, had been on behalf of the foreign enterprises. The ITAT, though took note of different services contemplated by the agreements in question and even observed that the clauses like those requiring the appellant to settle the claim with manufacturers might be the services rendered in India but then, proceeded to assume, without any cogent material on record, that other services were rendered from India and on that basis, the foreign party took its decision. Even in this regard, the questions relevant and germane to the enquiry were not even gone into inasmuch as, it was not examined as to what and which part of the consideration was attributable to the services envisaged by Section 80-O of the Act, which were rendered from India. Therefore, the findings of the Appellate Authority and ITAT, being based on irrelevant considerations while ignoring the relevant aspects, were neither of binding nature nor could have been decisive of the matter. Hence, neither anything turns upon the submissions made on behalf of the appellant with reference to the decision in K. Ravindranathan Nair (supra) nor this aspect requires any further discussion.37. In our view, the High Court has rightly analysed the entire matter with reference to the relevant questions and has rightly proceeded on the law applicable to the case. The impugned judgment calls for no interference.The appellant M/s Laxmi Agencies - the appeal arising out of SLP (Civil) No.23699 of 2016 .38.5. Although, from the fact sheet of this case, it does not appear if the agreements of this appellant also carried the default clauses as we have noticed in the lead case but, on all other major features, the agreements had been of the same nature and again, this appellant has also failed to bring any material on record to show if it had received any specific consideration referable to the activities envisaged by Section 80-O of the Act. In the given set of facts and circumstances, this appellant also turns out to be only a procuring agent and not beyond. Hence, this appeal also deserves to be dismissed.
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S.A. Sundararajan Vs. A.P.V. Rajendran | date of auction, the tax payable in respect of Lot No. 1 and the revenue assessment in respect of Lot No. 2. It was also alleged that the reduction of the upset price from Rs. 80, 000/- to Rs. 40, 000/- for Lot No. 1 was improper and that as the appellant was an agriculturist entitled to the benefit of Act No. IV of 1938 he was not liable to pay interest prior to 1st February, 1972 and consequently the amount mentioned in the sale proclamation as due from him was incorrect. The application was resisted by the respondent, principally on the ground that it was not maintainable under s.47.The executing Court found substance in the complaint of the appellant and holding that the sale proclamation was vitiated by material irregularities it set aside the sale. The respondent filed an appeal, C.M.A. No. 386 of 1975, in the High Court against that order. Two other appeals were also filed in the High Court, C.M.A. Nos. 2 and 3 of 1976. They arose out of the dismissal of two applications, one for restoration of an application for possession and the other for removal of obstruction. The two applications have been dismissed as infructuous consequentially to the setting aside of the sale.3. All the three appeals by the appellant were considered together by the High Court and, in the circumstances, the appeal against the order setting aside the sale was taken as the main appeal. The principal question determined by the High Court was whether the objection to the sale could properly form the subject of a proceeding under s. 47 or under rule 90 of Order XXI. After examining a large number of cases on the point, the High Court held that the application for setting aside the sale lay under rule 90 of Order XXI and not under s. 47, and therefore remitted the appeals to the executing Court for fresh consideration.4. It seems to us that the High Court is right. It is plain that the errors complained of by the appellant amount to mere irregularities committed in settling the sale proclamation. They cannot be described as errors which render the sale void. The difference between an error which makes the proceeding void and one which makes it merely irregular has been pointed out by this Court in Dhirendra Nath Gorai and Subal Chandra Shaw and Others v. Sudhir Chandra Ghosh and Others. The requirements which were not complied with in this case when settling the sale proclamation were intended for the benefit of the appellant and could be waived by him. They were not matters which went to the root of the courts jurisdiction and constituted the foundation or authority for the proceeding or where public interest was involved. Clearly, they were mere irregularities. Consequently, they fall within the scope of rule 90 of Order XXI.It may be pointed out that when r ule 90 of Order XXI employs the expression "in publishing or conducting the sale", it envisages the proceeding commencing after the order for sale made under rule 64 of Order XXI. The provisions after rule 64 are provisions relating to publishing and conducting the sale. Settling the proclamation of sale is part of the proceedings for publishing the sale. Rule 65 of Order XXI declares that every sale in execution of a decree shall be conducted by an officer of the court or a person nominated by the court, and shall be made by public auction in the manner prescribed. How the sale will be published relates to the manner in which the sale is made. Rule 66 of Order XXI is the first step in that behalf. It provides for a proclamation of sale. When drawing up a sale proclamation, sub-rule (2) of rule 66 requires that the several matters specified therein be taken into account. Other particulars relating to the sale are prescribed in the succeeding rules of Order XXI. In our view, the settling of the sale proclamation is part of the integral process of publishing the sale, and irregularities committed in the process of settling the sale proclamation are irregularities which fall within the amplitude of rule 90 of Order XXI. It may be observed that in Dhirendra Nath Gorais case (supra) the question which this Court was called upon to consider was whether non-compliance with s. 35 of the Bengal Money Lenders Act, 1940 when drawing up the sale proclamation was a mere irregularity. Having held that it was, the Court then considered it in the light of rule 90 of Order XXI.5. Our attention has been invited by the appellant to the Madras amendment made in 1952 in rule 66 of Order XXI where by a new sub-rule (2) has been substituted for the original provision. It has not been shown to us, however, that the substituted provision makes any material difference so far as the point under consideration is concerned. It i s urged that an opportunity has been provided under the substituted provision to a judgment-debtor to participate in the drawing up of the sale proclamation, and therefore there is no further right to complain against the sale proclamation under rule 90 of Order XXI. But that right was also available in somewhat similar terms under the original provision. Whether or not a judgment-debtor, to whom notice has been issued under rule 66 of Order XXI to participate in the proceeding and who does not do so, should be permitted thereafter to challenge the sale under rule 90 of Order XXI, is a matter to be determined by other considerations. It is sufficient to point out that the application for setting aside the sale on the grounds taken by the appellant is referable to rule 90 of Order XXI, and, therefore, not to s. 47.Some argument has been addressed before us in regard to the period of limitation but that, in our opinion, has been properly left by the High Court to the executing Court for determination.6. | 0[ds]It seems to us that the High Court is right. It is plain that the errors complained of by the appellant amount to mere irregularities committed in settling the sale proclamation. They cannot be described as errors which render the sale void. The difference between an error which makes the proceeding void and one which makes it merely irregular has been pointed out by this Court in Dhirendra Nath Gorai and Subal Chandra Shaw and Others v. Sudhir Chandra Ghosh and Others. The requirements which were not complied with in this case when settling the sale proclamation were intended for the benefit of the appellant and could be waived by him. They were not matters which went to the root of the courts jurisdiction and constituted the foundation or authority for the proceeding or where public interest was involved. Clearly, they were mere irregularities. Consequently, they fall within the scope of rule 90 of Order XXI.It may be pointed out that when r ule 90 of Order XXI employs the expression "in publishing or conducting the sale", it envisages the proceeding commencing after the order for sale made under rule 64 of Order XXI. The provisions after rule 64 are provisions relating to publishing and conducting the sale. Settling the proclamation of sale is part of the proceedings for publishing the sale. Rule 65 of Order XXI declares that every sale in execution of a decree shall be conducted by an officer of the court or a person nominated by the court, and shall be made by public auction in the manner prescribed. How the sale will be published relates to the manner in which the sale is made. Rule 66 of Order XXI is the first step in that behalf. It provides for a proclamation of sale. When drawing up a sale proclamation, sub-rule (2) of rule 66 requires that the several matters specified therein be taken into account. Other particulars relating to the sale are prescribed in the succeeding rules of Order XXI. In our view, the settling of the sale proclamation is part of the integral process of publishing the sale, and irregularities committed in the process of settling the sale proclamation are irregularities which fall within the amplitude of rule 90 of Order XXI. It may be observed that in Dhirendra Nath Gorais case (supra) the question which this Court was called upon to consider was whether non-compliance with s. 35 of the Bengal Money Lenders Act, 1940 when drawing up the sale proclamation was a mere irregularity. Having held that it was, the Court then considered it in the light of rule 90 of Orderattention has been invited by the appellant to the Madras amendment made in 1952 in rule 66 of Order XXI where by a new sub-rule (2) has been substituted for the original provision. It has not been shown to us, however, that the substituted provision makes any material difference so far as the point under consideration is concerned. It i s urged that an opportunity has been provided under the substituted provision to a judgment-debtor to participate in the drawing up of the sale proclamation, and therefore there is no further right to complain against the sale proclamation under rule 90 of Order XXI. But that right was also available in somewhat similar terms under the original provision. Whether or not a judgment-debtor, to whom notice has been issued under rule 66 of Order XXI to participate in the proceeding and who does not do so, should be permitted thereafter to challenge the sale under rule 90 of Order XXI, is a matter to be determined by other considerations. It is sufficient to point out that the application for setting aside the sale on the grounds taken by the appellant is referable to rule 90 of Order XXI, and, therefore, not to s. 47.Some argument has been addressed before us in regard to the period of limitation but that, in our opinion, has been properly left by the High Court to the executing Court for determination. | 0 | 1,372 | 732 | ### 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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date of auction, the tax payable in respect of Lot No. 1 and the revenue assessment in respect of Lot No. 2. It was also alleged that the reduction of the upset price from Rs. 80, 000/- to Rs. 40, 000/- for Lot No. 1 was improper and that as the appellant was an agriculturist entitled to the benefit of Act No. IV of 1938 he was not liable to pay interest prior to 1st February, 1972 and consequently the amount mentioned in the sale proclamation as due from him was incorrect. The application was resisted by the respondent, principally on the ground that it was not maintainable under s.47.The executing Court found substance in the complaint of the appellant and holding that the sale proclamation was vitiated by material irregularities it set aside the sale. The respondent filed an appeal, C.M.A. No. 386 of 1975, in the High Court against that order. Two other appeals were also filed in the High Court, C.M.A. Nos. 2 and 3 of 1976. They arose out of the dismissal of two applications, one for restoration of an application for possession and the other for removal of obstruction. The two applications have been dismissed as infructuous consequentially to the setting aside of the sale.3. All the three appeals by the appellant were considered together by the High Court and, in the circumstances, the appeal against the order setting aside the sale was taken as the main appeal. The principal question determined by the High Court was whether the objection to the sale could properly form the subject of a proceeding under s. 47 or under rule 90 of Order XXI. After examining a large number of cases on the point, the High Court held that the application for setting aside the sale lay under rule 90 of Order XXI and not under s. 47, and therefore remitted the appeals to the executing Court for fresh consideration.4. It seems to us that the High Court is right. It is plain that the errors complained of by the appellant amount to mere irregularities committed in settling the sale proclamation. They cannot be described as errors which render the sale void. The difference between an error which makes the proceeding void and one which makes it merely irregular has been pointed out by this Court in Dhirendra Nath Gorai and Subal Chandra Shaw and Others v. Sudhir Chandra Ghosh and Others. The requirements which were not complied with in this case when settling the sale proclamation were intended for the benefit of the appellant and could be waived by him. They were not matters which went to the root of the courts jurisdiction and constituted the foundation or authority for the proceeding or where public interest was involved. Clearly, they were mere irregularities. Consequently, they fall within the scope of rule 90 of Order XXI.It may be pointed out that when r ule 90 of Order XXI employs the expression "in publishing or conducting the sale", it envisages the proceeding commencing after the order for sale made under rule 64 of Order XXI. The provisions after rule 64 are provisions relating to publishing and conducting the sale. Settling the proclamation of sale is part of the proceedings for publishing the sale. Rule 65 of Order XXI declares that every sale in execution of a decree shall be conducted by an officer of the court or a person nominated by the court, and shall be made by public auction in the manner prescribed. How the sale will be published relates to the manner in which the sale is made. Rule 66 of Order XXI is the first step in that behalf. It provides for a proclamation of sale. When drawing up a sale proclamation, sub-rule (2) of rule 66 requires that the several matters specified therein be taken into account. Other particulars relating to the sale are prescribed in the succeeding rules of Order XXI. In our view, the settling of the sale proclamation is part of the integral process of publishing the sale, and irregularities committed in the process of settling the sale proclamation are irregularities which fall within the amplitude of rule 90 of Order XXI. It may be observed that in Dhirendra Nath Gorais case (supra) the question which this Court was called upon to consider was whether non-compliance with s. 35 of the Bengal Money Lenders Act, 1940 when drawing up the sale proclamation was a mere irregularity. Having held that it was, the Court then considered it in the light of rule 90 of Order XXI.5. Our attention has been invited by the appellant to the Madras amendment made in 1952 in rule 66 of Order XXI where by a new sub-rule (2) has been substituted for the original provision. It has not been shown to us, however, that the substituted provision makes any material difference so far as the point under consideration is concerned. It i s urged that an opportunity has been provided under the substituted provision to a judgment-debtor to participate in the drawing up of the sale proclamation, and therefore there is no further right to complain against the sale proclamation under rule 90 of Order XXI. But that right was also available in somewhat similar terms under the original provision. Whether or not a judgment-debtor, to whom notice has been issued under rule 66 of Order XXI to participate in the proceeding and who does not do so, should be permitted thereafter to challenge the sale under rule 90 of Order XXI, is a matter to be determined by other considerations. It is sufficient to point out that the application for setting aside the sale on the grounds taken by the appellant is referable to rule 90 of Order XXI, and, therefore, not to s. 47.Some argument has been addressed before us in regard to the period of limitation but that, in our opinion, has been properly left by the High Court to the executing Court for determination.6.
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It seems to us that the High Court is right. It is plain that the errors complained of by the appellant amount to mere irregularities committed in settling the sale proclamation. They cannot be described as errors which render the sale void. The difference between an error which makes the proceeding void and one which makes it merely irregular has been pointed out by this Court in Dhirendra Nath Gorai and Subal Chandra Shaw and Others v. Sudhir Chandra Ghosh and Others. The requirements which were not complied with in this case when settling the sale proclamation were intended for the benefit of the appellant and could be waived by him. They were not matters which went to the root of the courts jurisdiction and constituted the foundation or authority for the proceeding or where public interest was involved. Clearly, they were mere irregularities. Consequently, they fall within the scope of rule 90 of Order XXI.It may be pointed out that when r ule 90 of Order XXI employs the expression "in publishing or conducting the sale", it envisages the proceeding commencing after the order for sale made under rule 64 of Order XXI. The provisions after rule 64 are provisions relating to publishing and conducting the sale. Settling the proclamation of sale is part of the proceedings for publishing the sale. Rule 65 of Order XXI declares that every sale in execution of a decree shall be conducted by an officer of the court or a person nominated by the court, and shall be made by public auction in the manner prescribed. How the sale will be published relates to the manner in which the sale is made. Rule 66 of Order XXI is the first step in that behalf. It provides for a proclamation of sale. When drawing up a sale proclamation, sub-rule (2) of rule 66 requires that the several matters specified therein be taken into account. Other particulars relating to the sale are prescribed in the succeeding rules of Order XXI. In our view, the settling of the sale proclamation is part of the integral process of publishing the sale, and irregularities committed in the process of settling the sale proclamation are irregularities which fall within the amplitude of rule 90 of Order XXI. It may be observed that in Dhirendra Nath Gorais case (supra) the question which this Court was called upon to consider was whether non-compliance with s. 35 of the Bengal Money Lenders Act, 1940 when drawing up the sale proclamation was a mere irregularity. Having held that it was, the Court then considered it in the light of rule 90 of Orderattention has been invited by the appellant to the Madras amendment made in 1952 in rule 66 of Order XXI where by a new sub-rule (2) has been substituted for the original provision. It has not been shown to us, however, that the substituted provision makes any material difference so far as the point under consideration is concerned. It i s urged that an opportunity has been provided under the substituted provision to a judgment-debtor to participate in the drawing up of the sale proclamation, and therefore there is no further right to complain against the sale proclamation under rule 90 of Order XXI. But that right was also available in somewhat similar terms under the original provision. Whether or not a judgment-debtor, to whom notice has been issued under rule 66 of Order XXI to participate in the proceeding and who does not do so, should be permitted thereafter to challenge the sale under rule 90 of Order XXI, is a matter to be determined by other considerations. It is sufficient to point out that the application for setting aside the sale on the grounds taken by the appellant is referable to rule 90 of Order XXI, and, therefore, not to s. 47.Some argument has been addressed before us in regard to the period of limitation but that, in our opinion, has been properly left by the High Court to the executing Court for determination.
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Vijay Mills Company Limited and Others Vs. State of Gujarat and Others | the relief vested in the assessee, stands on footing entirely different from the footing which may necessitate the passing of a Validating Act seeking to validate any statutory provision declared unconstitutional. When Parliament passes an amendment validating any provisions which might have been declared invalid for some defect or lacuna, the Parliament seeks to enforce its intention which was already there by removing the defect or lacuna. The Parliament indeed seeks to remedy the situation created as a result of the statutory provisions being declared invalid......." 29. It would thus be apparent that these observation made on the facts of the case have no relevance to the present facts. On the other hand they support the action of the Legislature in the present case inasmuch as the Validating Act in the present case has made clear what the Legislature wanted to do, viz., to validate the rate of assessment which was levied for the first time after the long lapse of time. The rate of assessment was enhanced with due notice to the assesses of its prospective impact. After examining the objection the rate was in fact reduced with retrospective effect. We are also not impressed by the fact that because the rate of assessment has been increased by five times the rate prevalent prior to September 1, 1976, the rate should be held to be either excessive or unreasonable. Considering the time lag the reduction in the purchasing power of the rupee, the increase in the cost of providing services and also considering the user of the land the rate of 10 paise per square metre cannot be said to be excessive. 30. Coming to the their contention it proceeds on the footing that the concept of land revenue is restricted to the assessment on the basis of the income from the soil of the land. The very basis of the contention is incorrect. As has been explained in Bomanji Ardeshir Wadia v., Secretary of State 1929 AIR(PC) 34) the basis of assessment of non-agricultural land is the return or the income from the user of such land to the land owner. Where the non-agricultural land is not actually put to any use, assessment can also be made on the basis of the potential income form such land. Section 48 of the Land Revenue Code purports to impose revenue on the basis of the return to the land owner. This is clear from the provisions of the said section which read as follows. "48. Manner of assessment and alteration of assessment - Prohibition of use of land of certain purpose - (1) The land revenue leviable on any land under the provision of this Act shall be assessed or shall be deemed to have been assessed, as the case may be with reference to the use of the land -(a) for the purpose of agriculture(b) for the purpose of building, and(c) for a purpose others than agriculture or building(2) Where land assessed for use for any purpose in used for any other purpose, the assessment fixed under the provisions of this Act upon such land shall notwithstanding that the term for which such assessment may have been fixed has not expired, be liable to be altered and fixed at a different rate by such authority and subject to such rules as the State Government may prescribe in this behalf(3) Where land held free of assessment or condition of being used for any purpose is used at any time for any other purpose, it shall be liable to assessment(4) The Collector or a survey officer may subject to any rules made in this behalf under Section 214, prohibit the sue of certain purpose of any unalienated land liable to the payment of the land revenue, and may summarily evict any holder who sues or attempt to use the same for any such prohibited purpose." * 31. The Section itself contemplates different rates of assessment depending upon the different purpose for which the land is used. The returns or the income form the different uses of the land is bound to be varied and therefore, under the said section it is permissible to levy different rates depending upon the income or the return from the sue to which the land is put. This proposition is not disputed by Shri Nariman. However his attack is directed against the further classification of the user based on the location of the land. According to him since the assessment is based on the sue of the land, the return or income from such use would not vary form location to location and hence the different rates of assessment fixed on the basis of the location of the industrial use is ultra vires Section 48 of the Act. We are afraid that the basic fallacy underlies the premise on which the argument is built. The land revenue is not lived on the income form the use of the land. That would amount to a tax on income. The assessment is graded on the basis of the income or the return from the land to owner thereof. In other words it is graded on the basis of the rental which the lad will fetch to the land owner. The rental will certainly different for use to sue to which the lad is put as well as with the location of the land. The land in a city or town like Ahmedabad and available for industrial use is bound to fetch more rental than the land put to the same use in a village. In fact, if irrespective of their location. Such assessment will fall foul of Article 14 of the Constitution. The assessment so made has o relation to the actual rental derived by the land owner. The rental derived have relation only to the gradations of the land made and the assessment levied on the basis of such gradations into low income and high income yielding lands. We are, therefore, unable to appreciate this argument either. | 0[ds]18. From the above, it is clear that there are different modes of validating the provisions of the Act retrospectively, depending upon the intention of the legislature in that behalf. Where the Legislature intends that the provisions of the Act themselves should be deemed to have been in existence from a particular date in the past and thus to validate the actions taken in the past as if the provisions concerned were in existence from the earlier date, the Legislature makes the said intention clear by the specific language of the validating Act. It is open for the Legislature to change the very basis of the provisions retrospectively and to validate the actions on the changed basis. This is exactly what has been done in the present case as is apparent from the provisions of clauses (3) and (5) of the Amending Ordinance corresponding to Sections 2 and 4 of the Amending Act No. 2 of 1981. We have already referred to the effect of Sections 2 and 4 of the amending Act. The effect of the two provisions therefore, is not only to validate with retrospective effect the rules already made but also to amend the provisions of Section 214 itself to read as if the power to make rules with retrospective effect were always available under Section 214 since the said section stood amended to give such power from the time the retroactive rules were made. The Legislature had thus taken care to amend the provisions of the Act itself both to give the Government the power to make the rules retrospectively as well as to validate the rules which were alreadyThe contentions that the Validating Act cannot validate rules made or acts done prior to the date it was enacted if accepted will strike at the very root of the concept of retrospective validation. Law is an instrument which is forged to regulate the affairs of the society. Society can mould it to meet the needs felt from time to time. Society cannot be a salve of the instrument. The device of validating a state is forged precisely to adopt the law to meet the exigencies of the situations. The validations therefore, may be done in the manner required by the needs of the time. All that is required is that the agency which validates the statute must have the power to do it. The manner and method of doing it so to be left to the authority. If the intentions are clear the validations was to be interpreted according to the intentions. The courts have in fact upheld such validations regarding it to be an important weapon in the armory of legislative devices. It is to emphasize this aspect that we have endeavored to summarize the law on validations as above at the cost of lengthening theWe, therefore find no substance in Shri Narimans contentions that since the Amending Act came into force only on February 24, 1981 Section 214 of the Code as amended cannot be said to have been substituted from the original sections with retrospective effect. The law on the subject makes it clear that to give retrospective effect to the amended provisions it is enough if the Amending Act states that the said provisions will always be deemed to have been incorporated in the original provision with retrospective effect from a particulate date. This is exactly what has been done in the present case. Hence the first contention of the appellants mustComing to the second contention as the facts narrated earlier show for a long time the rate of assessment of the revenue of theland was not revised. It was after a long interval that a draft notification was issued on July 27, 1976 making the rules in question under which the assessment was revised. These rules were made final on July 31, 1976 and brought into force from August 1, 1976. Since the same were challenged among other things on the ground that no sufficient time was given for raising objections to the draft rules the notification dated July 31, 1976 making the rules final was withdrawn by a subsequent notification of June 28, 1977 and objections were invited to the original draft rules issued on July 21, 1976 with on 30 days from June 28, 1978 which were brought into force form September 1, 1976. Subsequently Section 214 itself was amended on December 10, 1980 to enable the Government to make rules with retrospect effect by issuing an ordinance for the purpose and the ordinance became the Act w.e.f. February 24,What is further so far as the industrial use of the land in towns and cities like Ahmedabad was concerned the original rate of assessment prescribed under the draft rules of July 21, 1976 viz., 15 paise per square metre was reduce to 10 paise per square metre under the impugned rules published on January 24, 1978 which rules were brought into force w.e.f. September 1,These facts will show that rights from July 21, 1976 the assesses were aware of the fact that the rate of assessment was sought to be enhanced. They were also give two opportunities to raise their objections to the enhanced assessment. Whatever may be the merit with regard to the first opportunity the second opportunity was admittedly fair. After considering the objections the rate of assessment was in fact reduced. As has been stated earlier even this rate of assessment was fixed after a long lapse of time during which incomes prices of products levels of profits rentals of the lands, inflations and the cost of maintenance and providing services had gone up enormously. It is therefore, not possible to accept the contention that either the enhancement in assessment was made without following the principles of the natural justice or that it was arbitrary or unreasonable. This part of the contention must, thereforeIt would thus be apparent that these observation made on the facts of the case have no relevance to the present facts. On the other hand they support the action of the Legislature in the present case inasmuch as the Validating Act in the present case has made clear what the Legislature wanted to do, viz., to validate the rate of assessment which was levied for the first time after the long lapse of time. The rate of assessment was enhanced with due notice to the assesses of its prospective impact. After examining the objection the rate was in fact reduced with retrospective effect. We are also not impressed by the fact that because the rate of assessment has been increased by five times the rate prevalent prior to September 1, 1976, the rate should be held to be either excessive or unreasonable. Considering the time lag the reduction in the purchasing power of the rupee, the increase in the cost of providing services and also considering the user of the land the rate of 10 paise per square metre cannot be said to beComing to the their contention it proceeds on the footing that the concept of land revenue is restricted to the assessment on the basis of the income from the soil of the land. The very basis of the contention is incorrect. As has been explained in Bomanji Ardeshir Wadia v., Secretary of State 1929 AIR(PC) 34) the basis of assessment ofland is the return or the income from the user of such land to the land owner. Where theland is not actually put to any use, assessment can also be made on the basis of the potential income form such land. Section 48 of the Land Revenue Code purports to impose revenue on the basis of the return to the land owner. This is clear from the provisions of the said section which read asManner of assessment and alteration of assessmentProhibition of use of land of certain purpose(1) The land revenue leviable on any land under the provision of this Act shall be assessed or shall be deemed to have been assessed, as the case may be with reference to the use of thefor the purpose of agriculture(b) for the purpose of building, and(c) for a purpose others than agriculture or building(2) Where land assessed for use for any purpose in used for any other purpose, the assessment fixed under the provisions of this Act upon such land shall notwithstanding that the term for which such assessment may have been fixed has not expired, be liable to be altered and fixed at a different rate by such authority and subject to such rules as the State Government may prescribe in this behalf(3) Where land held free of assessment or condition of being used for any purpose is used at any time for any other purpose, it shall be liable to assessment(4) The Collector or a survey officer may subject to any rules made in this behalf under Section 214, prohibit the sue of certain purpose of any unalienated land liable to the payment of the land revenue, and may summarily evict any holder who sues or attempt to use the same for any such prohibited purpose."The Section itself contemplates different rates of assessment depending upon the different purpose for which the land is used. The returns or the income form the different uses of the land is bound to be varied and therefore, under the said section it is permissible to levy different rates depending upon the income or the return from the sue to which the land is put. This proposition is not disputed by Shri Nariman. However his attack is directed against the further classification of the user based on the location of the land. According to him since the assessment is based on the sue of the land, the return or income from such use would not vary form location to location and hence the different rates of assessment fixed on the basis of the location of the industrial use is ultra vires Section 48 of the Act. We are afraid that the basic fallacy underlies the premise on which the argument is built. The land revenue is not lived on the income form the use of the land. That would amount to a tax on income. The assessment is graded on the basis of the income or the return from the land to owner thereof. In other words it is graded on the basis of the rental which the lad will fetch to the land owner. The rental will certainly different for use to sue to which the lad is put as well as with the location of the land. The land in a city or town like Ahmedabad and available for industrial use is bound to fetch more rental than the land put to the same use in a village. In fact, if irrespective of their location. Such assessment will fall foul of Article 14 of the Constitution. The assessment so made has o relation to the actual rental derived by the land owner. The rental derived have relation only to the gradations of the land made and the assessment levied on the basis of such gradations into low income and high income yielding lands. We are, therefore, unable to appreciate this argument either | 0 | 9,058 | 2,012 | ### Instruction:
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the relief vested in the assessee, stands on footing entirely different from the footing which may necessitate the passing of a Validating Act seeking to validate any statutory provision declared unconstitutional. When Parliament passes an amendment validating any provisions which might have been declared invalid for some defect or lacuna, the Parliament seeks to enforce its intention which was already there by removing the defect or lacuna. The Parliament indeed seeks to remedy the situation created as a result of the statutory provisions being declared invalid......." 29. It would thus be apparent that these observation made on the facts of the case have no relevance to the present facts. On the other hand they support the action of the Legislature in the present case inasmuch as the Validating Act in the present case has made clear what the Legislature wanted to do, viz., to validate the rate of assessment which was levied for the first time after the long lapse of time. The rate of assessment was enhanced with due notice to the assesses of its prospective impact. After examining the objection the rate was in fact reduced with retrospective effect. We are also not impressed by the fact that because the rate of assessment has been increased by five times the rate prevalent prior to September 1, 1976, the rate should be held to be either excessive or unreasonable. Considering the time lag the reduction in the purchasing power of the rupee, the increase in the cost of providing services and also considering the user of the land the rate of 10 paise per square metre cannot be said to be excessive. 30. Coming to the their contention it proceeds on the footing that the concept of land revenue is restricted to the assessment on the basis of the income from the soil of the land. The very basis of the contention is incorrect. As has been explained in Bomanji Ardeshir Wadia v., Secretary of State 1929 AIR(PC) 34) the basis of assessment of non-agricultural land is the return or the income from the user of such land to the land owner. Where the non-agricultural land is not actually put to any use, assessment can also be made on the basis of the potential income form such land. Section 48 of the Land Revenue Code purports to impose revenue on the basis of the return to the land owner. This is clear from the provisions of the said section which read as follows. "48. Manner of assessment and alteration of assessment - Prohibition of use of land of certain purpose - (1) The land revenue leviable on any land under the provision of this Act shall be assessed or shall be deemed to have been assessed, as the case may be with reference to the use of the land -(a) for the purpose of agriculture(b) for the purpose of building, and(c) for a purpose others than agriculture or building(2) Where land assessed for use for any purpose in used for any other purpose, the assessment fixed under the provisions of this Act upon such land shall notwithstanding that the term for which such assessment may have been fixed has not expired, be liable to be altered and fixed at a different rate by such authority and subject to such rules as the State Government may prescribe in this behalf(3) Where land held free of assessment or condition of being used for any purpose is used at any time for any other purpose, it shall be liable to assessment(4) The Collector or a survey officer may subject to any rules made in this behalf under Section 214, prohibit the sue of certain purpose of any unalienated land liable to the payment of the land revenue, and may summarily evict any holder who sues or attempt to use the same for any such prohibited purpose." * 31. The Section itself contemplates different rates of assessment depending upon the different purpose for which the land is used. The returns or the income form the different uses of the land is bound to be varied and therefore, under the said section it is permissible to levy different rates depending upon the income or the return from the sue to which the land is put. This proposition is not disputed by Shri Nariman. However his attack is directed against the further classification of the user based on the location of the land. According to him since the assessment is based on the sue of the land, the return or income from such use would not vary form location to location and hence the different rates of assessment fixed on the basis of the location of the industrial use is ultra vires Section 48 of the Act. We are afraid that the basic fallacy underlies the premise on which the argument is built. The land revenue is not lived on the income form the use of the land. That would amount to a tax on income. The assessment is graded on the basis of the income or the return from the land to owner thereof. In other words it is graded on the basis of the rental which the lad will fetch to the land owner. The rental will certainly different for use to sue to which the lad is put as well as with the location of the land. The land in a city or town like Ahmedabad and available for industrial use is bound to fetch more rental than the land put to the same use in a village. In fact, if irrespective of their location. Such assessment will fall foul of Article 14 of the Constitution. The assessment so made has o relation to the actual rental derived by the land owner. The rental derived have relation only to the gradations of the land made and the assessment levied on the basis of such gradations into low income and high income yielding lands. We are, therefore, unable to appreciate this argument either.
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merit with regard to the first opportunity the second opportunity was admittedly fair. After considering the objections the rate of assessment was in fact reduced. As has been stated earlier even this rate of assessment was fixed after a long lapse of time during which incomes prices of products levels of profits rentals of the lands, inflations and the cost of maintenance and providing services had gone up enormously. It is therefore, not possible to accept the contention that either the enhancement in assessment was made without following the principles of the natural justice or that it was arbitrary or unreasonable. This part of the contention must, thereforeIt would thus be apparent that these observation made on the facts of the case have no relevance to the present facts. On the other hand they support the action of the Legislature in the present case inasmuch as the Validating Act in the present case has made clear what the Legislature wanted to do, viz., to validate the rate of assessment which was levied for the first time after the long lapse of time. The rate of assessment was enhanced with due notice to the assesses of its prospective impact. After examining the objection the rate was in fact reduced with retrospective effect. We are also not impressed by the fact that because the rate of assessment has been increased by five times the rate prevalent prior to September 1, 1976, the rate should be held to be either excessive or unreasonable. Considering the time lag the reduction in the purchasing power of the rupee, the increase in the cost of providing services and also considering the user of the land the rate of 10 paise per square metre cannot be said to beComing to the their contention it proceeds on the footing that the concept of land revenue is restricted to the assessment on the basis of the income from the soil of the land. The very basis of the contention is incorrect. As has been explained in Bomanji Ardeshir Wadia v., Secretary of State 1929 AIR(PC) 34) the basis of assessment ofland is the return or the income from the user of such land to the land owner. Where theland is not actually put to any use, assessment can also be made on the basis of the potential income form such land. Section 48 of the Land Revenue Code purports to impose revenue on the basis of the return to the land owner. This is clear from the provisions of the said section which read asManner of assessment and alteration of assessmentProhibition of use of land of certain purpose(1) The land revenue leviable on any land under the provision of this Act shall be assessed or shall be deemed to have been assessed, as the case may be with reference to the use of thefor the purpose of agriculture(b) for the purpose of building, and(c) for a purpose others than agriculture or building(2) Where land assessed for use for any purpose in used for any other purpose, the assessment fixed under the provisions of this Act upon such land shall notwithstanding that the term for which such assessment may have been fixed has not expired, be liable to be altered and fixed at a different rate by such authority and subject to such rules as the State Government may prescribe in this behalf(3) Where land held free of assessment or condition of being used for any purpose is used at any time for any other purpose, it shall be liable to assessment(4) The Collector or a survey officer may subject to any rules made in this behalf under Section 214, prohibit the sue of certain purpose of any unalienated land liable to the payment of the land revenue, and may summarily evict any holder who sues or attempt to use the same for any such prohibited purpose."The Section itself contemplates different rates of assessment depending upon the different purpose for which the land is used. The returns or the income form the different uses of the land is bound to be varied and therefore, under the said section it is permissible to levy different rates depending upon the income or the return from the sue to which the land is put. This proposition is not disputed by Shri Nariman. However his attack is directed against the further classification of the user based on the location of the land. According to him since the assessment is based on the sue of the land, the return or income from such use would not vary form location to location and hence the different rates of assessment fixed on the basis of the location of the industrial use is ultra vires Section 48 of the Act. We are afraid that the basic fallacy underlies the premise on which the argument is built. The land revenue is not lived on the income form the use of the land. That would amount to a tax on income. The assessment is graded on the basis of the income or the return from the land to owner thereof. In other words it is graded on the basis of the rental which the lad will fetch to the land owner. The rental will certainly different for use to sue to which the lad is put as well as with the location of the land. The land in a city or town like Ahmedabad and available for industrial use is bound to fetch more rental than the land put to the same use in a village. In fact, if irrespective of their location. Such assessment will fall foul of Article 14 of the Constitution. The assessment so made has o relation to the actual rental derived by the land owner. The rental derived have relation only to the gradations of the land made and the assessment levied on the basis of such gradations into low income and high income yielding lands. We are, therefore, unable to appreciate this argument either
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M/S FAIR COMMUNICATION AND CONSULTANT Vs. SURENDER KARDILE | is held for the immediate or future benefit, direct or indirect, of the person who has provided the consideration.Benami transactions are forbidden by reason of Section 3; no action lies, nor can any defense in a suit be taken, based on any benami transaction: in terms of Section 4 of the Act. 18. In the opinion of this court, the argument that the plaintiffs plea regarding the real consideration being barred, has no merit. The plaintiff did not claim return of any amount from the buyer; the suit is not based on any plea involving examination of a benami transaction. Besides, the plaintiff is not asserting any claim as benami owner, nor urging a defense that any property or the amount claimed by him is a benami transaction. Therefore, the defendant appellants argument is clearly insubstantial. 19. The relevant provisions of law, i.e. Sections 3 and 4 of the Benami Act, read as follows: Prohibition of benami transactions. 3. (1) No person shall enter into any benami transaction. (2)Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both. (3) Whoever enters into any benami transaction on and after the date of commencement of the Benami Transactions (Prohibition) Amendment Act, 2016, shall, notwithstanding anything contained in sub-section (2), be punishable in accordance with the provisions contained in Chapter VII.] (4) [***] Prohibition of the right to recover property held benami. 4. (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. (2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property… 20. In Valliammal (D.) by L.Rs v Subramaniam & Ors. (2004) 7 SCC 233 , this Court held that the onus of establishing that a transaction is benami is upon one who asserts it: 13. This Court in a number of judgments has held that it is well established that burden of proving that a particular sale is benami lies on the person who alleges the transaction to be a benami. The essence of a benami transaction is the intention of the party or parties concerned and often, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him, nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. Refer to Jaydayal Poddar v. Bibi Hazra, Krishnanand Agnihotri v. State of M. P ., Thakur Bhim Singh v. Thakur Kan Singh, Pratap Singh v. Sarojini Devi and Heirs of Vrajlal J. Ganatra v. Heirs of Parshottam S. Shah. It has been held in the judgments referred to above that the question whether a particular sale is a benami or not, is largely one of fact, and for determining the question no absolute formulas or acid test, uniformly applicable in all situations can be laid. After saying so, this Court spelt out the following six circumstances which can be taken as a guide to determine the nature of the transaction : (1) the source from which the purchase money came ; (2) the nature and possession of the property, after the purchase ; (3) motive, if any, for giving the transaction a benami colour ; (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar ; (5) the custody of the title deeds after the sale ; and (6) the conduct of the parties concerned in dealing with the property after the sale. (Jaydayal Poddar v. Bibi Hazra1, SCC p 7, para 6). 14. The above indicia are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless, the source from where the purchase money came and the motive why the property was purchased benami are by far the most important tests for determining whether the sale standing in the name of one person, is in reality for the benefit of another. We would examine the present transaction on the touchstone of the above two indicia. *** *** *** 18. It is well-settled that intention of the parties is the essence of the benami transaction and the money must have been provided by the party invoking the doctrine of benami. The evidence shows clearly that the original Plaintiff did not have any justification for purchasing the property in the name of Ramayee Ammal. The reason given by him is not at all acceptable. The source of money is not at all traceable to the Plaintiff. No person named in the plaint or anyone else was examined as a witness. The failure of the Plaintiff to examine the relevant witnesses completely demolishes his case. These observations were reiterated in Binapani Paul vs. Pratima Ghosh & Ors. 2007 (6) SCC 100. 21. In the present case, the appellants did not prove that the transaction (to which they were not parties) was benami; on the contrary, the appellants argument was merely that the transaction could not be said to be for a consideration in excess of Rs 1,30,000/-: in the context of a defense in a suit for money decree. The defendant/appellants never said that the plaintiff or someone other than the purchaser was the real owner; nor was the interest in the property, the subject matter of the recovery suit. Therefore, in the opinion of this court, the conclusions and the findings in the impugned judgment are justified. | 0[ds]14. What can be gleaned from the above narrative and submissions is that the plaintiff wished to dispose of his property at Indore, where the second defendant, nephew resided and carried on business. Since the parties were related, the plaintiff relied on the defendant and constituted him as his attorney. An agreement to sell was entered into for the sale of the said property (a flat) on 03.07.1989: this fact is not disputed; equally, it is undisputed that the consideration for the flat in terms of this agreement was Rs 2,30,000/-. This was admitted by Sanjay, the defendant in his deposition. It is also not disputed that the original agreement with the purchaser (who ultimately finalized the transaction), is dated i.e. 03.07.1989. A second agreement was entered into on 30.11.1989. However, this showed a lesser consideration of Rs 1,30,000/-. It is also not disputed that Sanjay, the second appellant received Rs 50,000/- from the buyer and handed over that amount to Surendra. Furthermore, on 29.01.1990, Surendra went to Indore at Sanjays behest to conclude the transaction directly with the purchaser, Niranjan Singh Nagra. He also received the amount agreed. Also, there is no dispute that Sanjay wanted Rs 80,000/- and was given it, by his uncle, the plaintiff, Surendra, for the purpose of expansion of his business. This is where the version of the two parties diverges: Sanjay alleged that the amount was returned the next day and that Surendra did not return the post dated cheques issued by him; Surendra alleges that Sanjay in fact never returned the amount. The trial court was persuaded by arguments on behalf of Sanjay and the circumstance that the sum of Rs 80,000/- was deposited in Surendras account on the same day. The High Court, however, took note of the plaintiffs stand, with respect to the real consideration, which was Rs 2,30,000/- as against what was shown in the document, to say that the amount deposited in Surendras account had nothing to do with the money lent to Sanjay15. The defendant/appellants arguments are two-fold: one, that the document on which the High Court returned its findings was a photocopy and was therefore, inadmissible; and two, that the question whether thesale consideration was Rs 2,30,000/- or Rs 1,30,000/- could not have been gone into, since that argument was based on a prohibited transaction, outlawed by the Benami Act16. As far as the first question goes, this court notices that the plaintiff had put the matter, during the course of cross examination, to the appellant/defendant. The latter, unsurprisingly, admitted the document, despite the fact that it was a photocopy. The plaintiff had argued that the original of that document was with the purchaser: this was not denied. Once these were admitted, the plaintiff could not be faulted for seeking a consequential amendment, that was purely formal, to back his argument that there was sufficient money, after lending Rs 80,000/- to the defendant, which was deposited in his account. The appellants argument, in the opinion of this court, is insubstantial: the impugned judgment cannot be faulted on this aspect17. Now as to the second argument by the appellant, which is that the plaintiffs plea that the real consideration for the sale was Rs 2,30,000/- entails returning findings that would uphold a plea based on a benami transaction, this court is of the opinion that the argument is unmerited. Benami is defined by the Act as a transaction(a) where a property is transferred to, or is held by, a person, and the consideration for such property has been provided, or paid by, another person; and(b) the property is held for the immediate or future benefit, direct or indirect, of the person who has provided the considerationBenami transactions are forbidden by reason of Section 3; no action lies, nor can any defense in a suit be taken, based on any benami transaction: in terms of Section 4 of the Act18. In the opinion of this court, the argument that the plaintiffs plea regarding the real consideration being barred, has no merit. The plaintiff did not claim return of any amount from the buyer; the suit is not based on any plea involving examination of a benami transaction. Besides, the plaintiff is not asserting any claim as benami owner, nor urging a defense that any property or the amount claimed by him is a benami transaction. Therefore, the defendant appellants argument is clearly insubstantial21. In the present case, the appellants did not prove that the transaction (to which they were not parties) was benami; on the contrary, the appellants argument was merely that the transaction could not be said to be for a consideration in excess of Rs 1,30,000/-: in the context of a defense in a suit for money decree. The defendant/appellants never said that the plaintiff or someone other than the purchaser was the real owner; nor was the interest in the property, the subject matter of the recovery suit. Therefore, in the opinion of this court, the conclusions and the findings in the impugned judgment are justified. | 0 | 4,116 | 964 | ### Instruction:
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is held for the immediate or future benefit, direct or indirect, of the person who has provided the consideration.Benami transactions are forbidden by reason of Section 3; no action lies, nor can any defense in a suit be taken, based on any benami transaction: in terms of Section 4 of the Act. 18. In the opinion of this court, the argument that the plaintiffs plea regarding the real consideration being barred, has no merit. The plaintiff did not claim return of any amount from the buyer; the suit is not based on any plea involving examination of a benami transaction. Besides, the plaintiff is not asserting any claim as benami owner, nor urging a defense that any property or the amount claimed by him is a benami transaction. Therefore, the defendant appellants argument is clearly insubstantial. 19. The relevant provisions of law, i.e. Sections 3 and 4 of the Benami Act, read as follows: Prohibition of benami transactions. 3. (1) No person shall enter into any benami transaction. (2)Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both. (3) Whoever enters into any benami transaction on and after the date of commencement of the Benami Transactions (Prohibition) Amendment Act, 2016, shall, notwithstanding anything contained in sub-section (2), be punishable in accordance with the provisions contained in Chapter VII.] (4) [***] Prohibition of the right to recover property held benami. 4. (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. (2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property… 20. In Valliammal (D.) by L.Rs v Subramaniam & Ors. (2004) 7 SCC 233 , this Court held that the onus of establishing that a transaction is benami is upon one who asserts it: 13. This Court in a number of judgments has held that it is well established that burden of proving that a particular sale is benami lies on the person who alleges the transaction to be a benami. The essence of a benami transaction is the intention of the party or parties concerned and often, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him, nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. Refer to Jaydayal Poddar v. Bibi Hazra, Krishnanand Agnihotri v. State of M. P ., Thakur Bhim Singh v. Thakur Kan Singh, Pratap Singh v. Sarojini Devi and Heirs of Vrajlal J. Ganatra v. Heirs of Parshottam S. Shah. It has been held in the judgments referred to above that the question whether a particular sale is a benami or not, is largely one of fact, and for determining the question no absolute formulas or acid test, uniformly applicable in all situations can be laid. After saying so, this Court spelt out the following six circumstances which can be taken as a guide to determine the nature of the transaction : (1) the source from which the purchase money came ; (2) the nature and possession of the property, after the purchase ; (3) motive, if any, for giving the transaction a benami colour ; (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar ; (5) the custody of the title deeds after the sale ; and (6) the conduct of the parties concerned in dealing with the property after the sale. (Jaydayal Poddar v. Bibi Hazra1, SCC p 7, para 6). 14. The above indicia are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless, the source from where the purchase money came and the motive why the property was purchased benami are by far the most important tests for determining whether the sale standing in the name of one person, is in reality for the benefit of another. We would examine the present transaction on the touchstone of the above two indicia. *** *** *** 18. It is well-settled that intention of the parties is the essence of the benami transaction and the money must have been provided by the party invoking the doctrine of benami. The evidence shows clearly that the original Plaintiff did not have any justification for purchasing the property in the name of Ramayee Ammal. The reason given by him is not at all acceptable. The source of money is not at all traceable to the Plaintiff. No person named in the plaint or anyone else was examined as a witness. The failure of the Plaintiff to examine the relevant witnesses completely demolishes his case. These observations were reiterated in Binapani Paul vs. Pratima Ghosh & Ors. 2007 (6) SCC 100. 21. In the present case, the appellants did not prove that the transaction (to which they were not parties) was benami; on the contrary, the appellants argument was merely that the transaction could not be said to be for a consideration in excess of Rs 1,30,000/-: in the context of a defense in a suit for money decree. The defendant/appellants never said that the plaintiff or someone other than the purchaser was the real owner; nor was the interest in the property, the subject matter of the recovery suit. Therefore, in the opinion of this court, the conclusions and the findings in the impugned judgment are justified.
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14. What can be gleaned from the above narrative and submissions is that the plaintiff wished to dispose of his property at Indore, where the second defendant, nephew resided and carried on business. Since the parties were related, the plaintiff relied on the defendant and constituted him as his attorney. An agreement to sell was entered into for the sale of the said property (a flat) on 03.07.1989: this fact is not disputed; equally, it is undisputed that the consideration for the flat in terms of this agreement was Rs 2,30,000/-. This was admitted by Sanjay, the defendant in his deposition. It is also not disputed that the original agreement with the purchaser (who ultimately finalized the transaction), is dated i.e. 03.07.1989. A second agreement was entered into on 30.11.1989. However, this showed a lesser consideration of Rs 1,30,000/-. It is also not disputed that Sanjay, the second appellant received Rs 50,000/- from the buyer and handed over that amount to Surendra. Furthermore, on 29.01.1990, Surendra went to Indore at Sanjays behest to conclude the transaction directly with the purchaser, Niranjan Singh Nagra. He also received the amount agreed. Also, there is no dispute that Sanjay wanted Rs 80,000/- and was given it, by his uncle, the plaintiff, Surendra, for the purpose of expansion of his business. This is where the version of the two parties diverges: Sanjay alleged that the amount was returned the next day and that Surendra did not return the post dated cheques issued by him; Surendra alleges that Sanjay in fact never returned the amount. The trial court was persuaded by arguments on behalf of Sanjay and the circumstance that the sum of Rs 80,000/- was deposited in Surendras account on the same day. The High Court, however, took note of the plaintiffs stand, with respect to the real consideration, which was Rs 2,30,000/- as against what was shown in the document, to say that the amount deposited in Surendras account had nothing to do with the money lent to Sanjay15. The defendant/appellants arguments are two-fold: one, that the document on which the High Court returned its findings was a photocopy and was therefore, inadmissible; and two, that the question whether thesale consideration was Rs 2,30,000/- or Rs 1,30,000/- could not have been gone into, since that argument was based on a prohibited transaction, outlawed by the Benami Act16. As far as the first question goes, this court notices that the plaintiff had put the matter, during the course of cross examination, to the appellant/defendant. The latter, unsurprisingly, admitted the document, despite the fact that it was a photocopy. The plaintiff had argued that the original of that document was with the purchaser: this was not denied. Once these were admitted, the plaintiff could not be faulted for seeking a consequential amendment, that was purely formal, to back his argument that there was sufficient money, after lending Rs 80,000/- to the defendant, which was deposited in his account. The appellants argument, in the opinion of this court, is insubstantial: the impugned judgment cannot be faulted on this aspect17. Now as to the second argument by the appellant, which is that the plaintiffs plea that the real consideration for the sale was Rs 2,30,000/- entails returning findings that would uphold a plea based on a benami transaction, this court is of the opinion that the argument is unmerited. Benami is defined by the Act as a transaction(a) where a property is transferred to, or is held by, a person, and the consideration for such property has been provided, or paid by, another person; and(b) the property is held for the immediate or future benefit, direct or indirect, of the person who has provided the considerationBenami transactions are forbidden by reason of Section 3; no action lies, nor can any defense in a suit be taken, based on any benami transaction: in terms of Section 4 of the Act18. In the opinion of this court, the argument that the plaintiffs plea regarding the real consideration being barred, has no merit. The plaintiff did not claim return of any amount from the buyer; the suit is not based on any plea involving examination of a benami transaction. Besides, the plaintiff is not asserting any claim as benami owner, nor urging a defense that any property or the amount claimed by him is a benami transaction. Therefore, the defendant appellants argument is clearly insubstantial21. In the present case, the appellants did not prove that the transaction (to which they were not parties) was benami; on the contrary, the appellants argument was merely that the transaction could not be said to be for a consideration in excess of Rs 1,30,000/-: in the context of a defense in a suit for money decree. The defendant/appellants never said that the plaintiff or someone other than the purchaser was the real owner; nor was the interest in the property, the subject matter of the recovery suit. Therefore, in the opinion of this court, the conclusions and the findings in the impugned judgment are justified.
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KASSIM KUNJU POOKUNJU Vs. RAMAKRISHNA PILLAI | 1. This is an appeal by special leave from the judgment of the Kerala High Court. The appellants were accused of offences under S.7(1) and 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954 (Act XXXVII of 1954), hereinafter called the "Act. The trial court imposed a sentence of fine of Rs. 500/-on each of the appellants. The learned Sessions Judge upheld the conviction and the sentence. The appellants filed a petition for revision in the High Court. When that came up for hearing the High Court issued a notice to the appellants to show cause why the sentence awarded to them should not be enhanced. Ultimately the High Court enhanced the sentence to one of simple imprisonment for six months and a fine of Rs. 1,000/-; in default the appellants were to undergo simple imprisonment for a further period of two months.2. Briefly stated the facts are that appellant No.1 is the owner of the shop from where the Food Inspector purchased an article of food (compounded as afoetida) for analysis on September 22, 1965. The first appellant was not there at that time but his brother, the second appellant, was present and it was from him that the article in question was purchased. The Food Inspector is stated to have divided the article taken into three parts. He put each part into a paper packet, fastened them with labels and affixed seals thereto. He gave one part to the second appellant and produced the second part in court. The third part was forwarded to the Public Analyst along with the memorandum in Form VII and a specimen impression of the seal used. The part of the sample which was to be sent to the Public Analyst and the memorandum and the specimen impression of the seal were entrusted according to the evidence of the Food Inspector, to the Panchayat Officer who sent them by registered post. The report of the Public Analyst showed that the sample sent to him contained coal-tar dye and was adulterated.3. The only point of any substance which has been pressed before us by the learned counsel for the appellants is that the Rules framed under the Act had not been complied with in as much as it has not been proved that the specimen impression of the seal used had been sent to the Public Analyst. R.18 of the Prevention of Food Adulteration Rules, 1955 provides that a copy of the memorandum and a specimen impression of the seal used to seal the packet shall be sent to the Public Analyst separately by post. The High Court was not at all impressed with the contention based on R.18. It relied on the report of the Public Analyst Ext. P-9 which was in Form III as prescribed by the Rules in which it was stated, interalia, that the Public Analyst had received from the Food Inspector a sample of compounded rnisky asafoetida marked No. C. 2/65 for analysis, properly sealed and packed and that he had found the seal intact and unbroken. The contention which was pressed and which has been reiterated before us is that it is nowhere stated in Ext P-9 that the Public Analyst had compared the specimen impression of the seal with the seal on the packet of the sample. The High Court relied on the principle that official acts must be presumed to have been regularly performed. Under R.7 the Public Analyst has to compare the seal on the container and the outer cover with the specimen impression received separately on receipt of the packet containing the sample for the analysis. The High Court considered that it must be presumed that the Public Analyst acted in accordance with the Rules and he must have compared the specimen impression received by him with the seal on the container.4. We do not find any error in the decision of the High Court on the above point. The evidence of the Food Inspector together with the report of the Public Analyst showed that all the requirements of the Rules had been satisfied. At any rate, the question was one of accepting the evidence furnished by the prosecution on the point and the High Court having found on that evidence that the requirements of the Rules had been satisfied there will be hardly any ground left on which this court can interfere. | 0[ds]4. We do not find any error in the decision of the High Court on the above point. The evidence of the Food Inspector together with the report of the Public Analyst showed that all the requirements of the Rules had been satisfied. At any rate, the question was one of accepting the evidence furnished by the prosecution on the point and the High Court having found on that evidence that the requirements of the Rules had been satisfied there will be hardly any ground left on which this court can interfere. | 0 | 790 | 101 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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1. This is an appeal by special leave from the judgment of the Kerala High Court. The appellants were accused of offences under S.7(1) and 16 (1) (a) (i) of the Prevention of Food Adulteration Act, 1954 (Act XXXVII of 1954), hereinafter called the "Act. The trial court imposed a sentence of fine of Rs. 500/-on each of the appellants. The learned Sessions Judge upheld the conviction and the sentence. The appellants filed a petition for revision in the High Court. When that came up for hearing the High Court issued a notice to the appellants to show cause why the sentence awarded to them should not be enhanced. Ultimately the High Court enhanced the sentence to one of simple imprisonment for six months and a fine of Rs. 1,000/-; in default the appellants were to undergo simple imprisonment for a further period of two months.2. Briefly stated the facts are that appellant No.1 is the owner of the shop from where the Food Inspector purchased an article of food (compounded as afoetida) for analysis on September 22, 1965. The first appellant was not there at that time but his brother, the second appellant, was present and it was from him that the article in question was purchased. The Food Inspector is stated to have divided the article taken into three parts. He put each part into a paper packet, fastened them with labels and affixed seals thereto. He gave one part to the second appellant and produced the second part in court. The third part was forwarded to the Public Analyst along with the memorandum in Form VII and a specimen impression of the seal used. The part of the sample which was to be sent to the Public Analyst and the memorandum and the specimen impression of the seal were entrusted according to the evidence of the Food Inspector, to the Panchayat Officer who sent them by registered post. The report of the Public Analyst showed that the sample sent to him contained coal-tar dye and was adulterated.3. The only point of any substance which has been pressed before us by the learned counsel for the appellants is that the Rules framed under the Act had not been complied with in as much as it has not been proved that the specimen impression of the seal used had been sent to the Public Analyst. R.18 of the Prevention of Food Adulteration Rules, 1955 provides that a copy of the memorandum and a specimen impression of the seal used to seal the packet shall be sent to the Public Analyst separately by post. The High Court was not at all impressed with the contention based on R.18. It relied on the report of the Public Analyst Ext. P-9 which was in Form III as prescribed by the Rules in which it was stated, interalia, that the Public Analyst had received from the Food Inspector a sample of compounded rnisky asafoetida marked No. C. 2/65 for analysis, properly sealed and packed and that he had found the seal intact and unbroken. The contention which was pressed and which has been reiterated before us is that it is nowhere stated in Ext P-9 that the Public Analyst had compared the specimen impression of the seal with the seal on the packet of the sample. The High Court relied on the principle that official acts must be presumed to have been regularly performed. Under R.7 the Public Analyst has to compare the seal on the container and the outer cover with the specimen impression received separately on receipt of the packet containing the sample for the analysis. The High Court considered that it must be presumed that the Public Analyst acted in accordance with the Rules and he must have compared the specimen impression received by him with the seal on the container.4. We do not find any error in the decision of the High Court on the above point. The evidence of the Food Inspector together with the report of the Public Analyst showed that all the requirements of the Rules had been satisfied. At any rate, the question was one of accepting the evidence furnished by the prosecution on the point and the High Court having found on that evidence that the requirements of the Rules had been satisfied there will be hardly any ground left on which this court can interfere.
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4. We do not find any error in the decision of the High Court on the above point. The evidence of the Food Inspector together with the report of the Public Analyst showed that all the requirements of the Rules had been satisfied. At any rate, the question was one of accepting the evidence furnished by the prosecution on the point and the High Court having found on that evidence that the requirements of the Rules had been satisfied there will be hardly any ground left on which this court can interfere.
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Sakkubai and others Vs. State of Karnataka & Ors. | and not obstruct it. 22. In the present case, since it is established that the structures erected by the Appellants were in violation of the 1961 Act, given the common thread underlying the 1961 Act and the Hampi Act, it cannot be said that such illegality ceased to exist when the Hampi Act came into force. Thus, the HWHAMA was, and is entitled to proceed against the development raised by the Appellants, which had been rendered illegal under the prior legislation. 23. It may also be useful to appreciate the background in which the HWHAMA had proceeded to take action against the Appellants. As mentioned supra, the Hampi World Heritage properties had been included in the in danger list by UNESCO in 1999. However, owing to serious efforts by the State Government and the HWHAMA, this classification was dropped in 2006. The threat to the various monuments and the integrity of the landscape of Hampi, however, continued. This is well reflected in the resolution of the 33rd meeting of the World Heritage Committee of UNESCO in 2009, wherein rampant illegal constructions in the village of Virupapura Gaddi, found a specific mention: …The World Heritage Committee, 1. xxx 2. xxx 3. xxx 4. xxx 5. xxx 6. xxx 7. Expresses its concern over illegal constructions and other developments, such as social housing projects, within the extended boundaries which are being considered for the possible extension of the property, particularly in Virupapura Gada island and Hampi villlages, which appear to have a negative impact on the integrity of the landscape…. Similar concerns were also raised at the 34th meeting of the UNESCO World Heritage Committee in 2010. 24. It was in the context of these developments that the HWHAMA had directed the local authorities to not renew the trade licenses issued to the Appellants, and later proceeded to issue notices for demolishing the constructions raised by the Appellants. In view of the broad ranging functions envisaged for the HWHAMA under Section 11 of the Hampi Act, we find that its actions were lawful, as it was incumbent upon the authority to act and not turn a blind eye to the illegality being perpetrated by the Appellants. 25. Finally, we advert to the claim of the Appellants that the lack of a notification under Section 14(1) of the Hampi Act fettered the powers of the HWHAMA to take action against them. It may be useful to refer to Section 14 in this regard: Section 14: No other authority or person to undertake development without permission of the Authority.- (1) Notwithstanding anything contained in any law for the time being in force, except with the previous permission of the Authority, no other authority or person shall undertake any development within the Heritage Area, of the types as the Authority may from time to time specify by notification published in the Official Gazette. (2) No local authority shall grant permission for any development referred to in sub-section (1), within the Heritage Area, unless the Authority has granted permission for such development. (3) Any authority or person desiring to undertake development referred to in sub-section (1) shall apply in writing to the Authority for permission to undertake such development. (4) The Authority may, after making such inquiry as it deems necessary grant such permission without or with such conditions, as it may deem fit, to impose or refuse to grant such permission. (5) Any authority or person aggrieved by the decision of the Authority under sub-section (4) may, within thirty days from the date of the decision appeal against such decision to the State Government, whose decision thereon shall be final: Provided that, where the aggrieved authority submitting such appeal is under the administrative control of the Central Government, the appeal shall be decided by the State Government, after consultation with the Central Government. (6) In case any person or authority does anything contrary to the decision given under sub-section (4) as modified in sub-section (5), the Authority shall have power to pull down, demolish or remove any development under taken contrary to such decision and recover the cost of such pulling down, demolition or removal from the person or authority concerned. Evidently, under Section 14(1), the HWHAMA is made the sole authority for undertaking development in the heritage area of such types as it may specify by a notification. 25.1 Though the Appellants have contended that such a notification under Section 14(1) is a pre-condition for the HWHAMA to exercise its powers to order demolition under Section 14(6), we are not inclined to accept such an argument. In view of the co-terminus legislative scheme of the 1961 Act and the Hampi Act, we find that Section 14 of the Hampi Act acts as an overarching provision that enables the issuance of a further notification to control development in the Hampi heritage area. This, however, does not mean that the lack of a notification under Section 14(1) renders a prior notification intended for the same purpose unenforceable, as is the case with the 1988 notification here. 25.2 In any case, we find that the notification dated 10.07.2008 regarding the implementation of the Master Plan 2021 and the Zonal Regulations fulfils the requirement of Section 14(1) in the present case, as they clearly specify the restrictions as to land use and the prohibited types of development. Thus, the Appellants cannot use the absence of regulation of Virupapura Gaddi as a ground to justify the illegal construction on their land. 26. In light of the foregoing discussion, we conclude that the construction of rooms, thatched roof huts, temporary structures, and buildings by the Appellants to carry on the business of hotels, restaurants, or guesthouses in Virupapura Gaddi was in violation of the 1961 Act. Further, it is held that the HWHAMA had the authority to proceed with the demolition of such illegal constructions. Thus, we do not find any reason to interfere with the impugned final judgment and order dated 27.04.2015 passed by the High Court of Karnataka. | 0[ds]10.2 From the above, it is clear that though the petition challenging the Hampi Act was filed in the year 2011, the same has not been pursued by the Appellant before the High Court. Be that as it may, nothing has been placed on record by the Appellants to show that operation of the 1988 notification or the Hampi Act has been stayed. In the absence of any such interim order staying the operation of the said notification or the Hampi Act, it is not open for the Appellants to use the same to argue for a deferral of the hearing of the instant appeals till the disposal of W.P. Nos. 65940-65949 of 2011 by the High Court. Accordingly, we reject the prayer made by the Appellants for deferring the matter till the disposal of the writ petitions pending before the High Court13. In the instant case, exercising its powers under Section 19(3) of the 1961 Act, the State Government issued the 1988 notification declaring certain areas specified in the Schedule thereto as protected areas. From a perusal of this Schedule, it is amply clear that Virupapura Gaddi had been indicated in Column 5 as a covered area. Further, Map A which is annexed to this Schedule also makes it evident that the entire village of Virupapura Gaddi was included within the boundaries of the protected areas. In fact, the specific Survey Nos. of lands where the Appellants are carrying on their restaurants and guesthouses are also mentioned in this Map. Thus, there is no doubt that the 1988 notification clearly indicates the entire village of Virupapura Gaddi as a protected zone14. As to whether the entire village could be declared as protected area by the 1988 notification, we do not find merit in the Appellants argument that a notification under Section 19 of the 1961 Act only contemplates protection for archaeological site and remains that are linked to the existence of monuments14.1 In our opinion, the 1961 Act makes two distinct categories for protected monuments (see Sections 3 to 18) and protected areas (see Section 19 onwards). While the former relates to ancient monuments, the latter relates to archaeological site and remains. Upon a close reading of the 1961 Act, we find that there is nothing in the definitions under Sections 2(1) and 2(3) or otherwise under the scheme of the 1961 Act, that indicates a link between the existence of archaeological site and remains and ancient monuments. It cannot be said that the protection ascribed to archaeological site and remains must necessarily depend on the existence of a monument. It is possible for certain areas to be protected independent of the existence of monuments, if there is a reasonable belief that they contain ruins or relics of historical or archaeological importance [see Section 2(3) supra]14.2 In light of this, when we look to the village of Virupapura Gaddi specifically, there appears to be sufficient material to establish its archaeological significance14.3 From these observations by the ASI, a specialized body responsible for archaeological research and conservation of cultural monuments in India, there remains little doubt as to the historical importance of Virupapura Gaddi. It appears that the Government had considered the comprehensive geographical entity of the area, including attributes like its landscape, prehistoric vestiges and water systems. Thus, the 1988 notification issued under Section 19(3) of the 1961 Act declaring Virupapura Gaddi as a protected area cannot be said to be without basis. Further, Section 19(4) of the 1961 Act clarifies that the notification issued under Section 19(3) conclusively establishes the status of Virupapura Gaddi as protected area under the said ActFrom a reading of sub-section (1) of Section 20, it is evident that owners/occupiers of protected areas cannot construct any building or utilize such areas in any manner other than cultivation, without the permission of the State Government16. Here, since the entire area comprising Virupapura Gaddi had been declared as protected area vide the 1988 notification, it follows that the land owned by the Appellants could have only been used for the purpose of cultivation after the issuance of such notification. However, as mentioned supra, the Appellants had constructed huts and buildings on their lands for the commercial purpose of running hotels, restaurants, and guest houses. Clearly then, these constructions were in violation of Section 20(1) of the 1961 Act17. Furthermore, the permissions/licenses obtained by the Appellants from the local panchayat were issued without any authority, as Section 20(1) of the 1961 Act makes the State Government the appropriate authority for granting permissions for non-cultivable use of protected areas. Thus, the licenses issued by the panchayat cannot but be said to be illegal18. In view of the foregoing discussion, we find that by virtue of the 1988 notification declaring the entire village of Virupapura Gaddi as a protected area, the restrictions on construction and use under Section 20(1) came into operation with effect from 22.10.1988 itself. Thus, the construction carried out by the Appellants on their lands at Virupapura Gaddi for commercial purposes was in violation of the 1961 ActFrom the above, it is evident that the recognition of Hampi as a World Heritage site was a testament to its immense historical importance. It was also a crucial milestone in the efforts to preserve and protect the Hampi monuments, as it paved way for India to access the annual World Heritage Fund of US$ 4 million earmarked by the UNESCO for the upkeep of World Heritage sites20.3 Soon after such recognition, as the number of tourists visiting Hampi increased, concerns began being raised about uncontrolled construction, haphazard development, and other illegal activities carried out in the garb of catering to tourists. In light of these developments, the UNESCO classified the Hampi World Heritage properties as being in danger in 1999. This classification was significant inasmuch as it reflected the deteriorating condition of the area. Notably, the Hampi World Heritage properties continued to be classified as such till 200620.6 A close reading of the Preamble to the Hampi Act reveals an underlying common object between the 1961 Act and the Hampi Act– providing for the preservation of the respective monuments and areas protected under these legislations. The difference is that the 1961 Act was enacted as a broader legislation covering the entire State of Karnataka, while the Hampi Act was enacted with a specific focus on the heritage site of Hampi, keeping in mind the international recognition that had been accorded to it20.7 In addition to such common object, certain other provisions of the Hampi Act also indicate a continuity between the legal regimes of the 1961 Act and the Hampi Act. For instance, the Hampi Act directly incorporates the 1988 notification issued under Section 19(3) of the 1961 Act, while demarcating the Hampi heritage area in its ScheduleParts A, B, and C of Schedule I to the Hampi Act respectively indicate the extent of the core area zone, buffer zone and peripheral zone forming part of the Hampi heritage area. Under Part A, which indicates the extent of the core area zone, there is a clear reference to the area of 41.80 sq kms declared to be protected area under the 1988 notification20.8 Furthermore, even the applicable restrictions under the Master Plan 2021 prepared under the Hampi Act are similar to those imposed by virtue of the 1988 notification, inasmuch as no development of Virupapura Gaddi is permissible. The Master Plan 2021 came into force on 10.07.2008. It stipulates the formation of development schemes for towns and villages included within the Hampi local planning area. Though it did not provide for a specific development plan for Virupapura Gaddi, it provides Zonal Regulations for areas under special control, which include river islands, tank beds et alIn light of this, given that Virupapura Gaddi is a river island, it is evident that no development is permissible there even per the Master Plan 2021 prepared under the Hampi Act. When juxtaposed with the restrictions under Section 20(1) of the 1961 Act, this also indicates a continuity between the 1961 Act and the Hampi Act21. In view of the foregoing factors, we do not find merit in the Appellants argument that the Hampi Act is purely prospective in nature and that the HWHAMA, which has been established under such Act, cannot enforce prior notifications. In our considered opinion, the 1961 Act and the Hampi Act cannot be viewed as separate, watertight compartments that operate independent of each other. Such an understanding would not only defeat their underlying common objective, but also belie the events leading up to the enactment of the Hampi Act, all of which clearly reflect that the Hampi Act was a culmination of continuing attempts by the State Government to preserve and protect the cultural heritage of Hampi. Therefore, the 1961 Act and the Hampi Act must not be construed as isolated silos. Since they both seek to fulfill a common object, they must be interpreted in a manner that seeks to further such objective, and not obstruct it22. In the present case, since it is established that the structures erected by the Appellants were in violation of the 1961 Act, given the common thread underlying the 1961 Act and the Hampi Act, it cannot be said that such illegality ceased to exist when the Hampi Act came into force. Thus, the HWHAMA was, and is entitled to proceed against the development raised by the Appellants, which had been rendered illegal under the prior legislationAs mentioned supra, the Hampi World Heritage properties had been included in the in danger list by UNESCO in 1999. However, owing to serious efforts by the State Government and the HWHAMA, this classification was dropped in 2006. The threat to the various monuments and the integrity of the landscape of Hampi, however, continued. This is well reflected in the resolution of the 33rd meeting of the World Heritage Committee of UNESCO in 2009,In view of the broad ranging functions envisaged for the HWHAMA under Section 11 of the Hampi Act, we find that its actions were lawful, as it was incumbent upon the authority to act and not turn a blind eye to the illegality being perpetrated by the AppellantsEvidently, under Section 14(1), the HWHAMA is made the sole authority for undertaking development in the heritage area of such types as it may specify by a notification25.1 Though the Appellants have contended that such a notification under Section 14(1) is a pre-condition for the HWHAMA to exercise its powers to order demolition under Section 14(6), we are not inclined to accept such an argument. In view of the co-terminus legislative scheme of the 1961 Act and the Hampi Act, we find that Section 14 of the Hampi Act acts as an overarching provision that enables the issuance of a further notification to control development in the Hampi heritage area. This, however, does not mean that the lack of a notification under Section 14(1) renders a prior notification intended for the same purpose unenforceable, as is the case with the 1988 notification here25.2 In any case, we find that the notification dated 10.07.2008 regarding the implementation of the Master Plan 2021 and the Zonal Regulations fulfils the requirement of Section 14(1) in the present case, as they clearly specify the restrictions as to land use and the prohibited types of development. Thus, the Appellants cannot use the absence of regulation of Virupapura Gaddi as a ground to justify the illegal construction on their land26. In light of the foregoing discussion, we conclude that the construction of rooms, thatched roof huts, temporary structures, and buildings by the Appellants to carry on the business of hotels, restaurants, or guesthouses in Virupapura Gaddi was in violation of the 1961 Act. Further, it is held that the HWHAMA had the authority to proceed with the demolition of such illegal constructions. Thus, we do not find any reason to interfere with the impugned final judgment and order dated 27.04.2015 passed by the High Court of Karnataka. | 0 | 8,122 | 2,232 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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and not obstruct it. 22. In the present case, since it is established that the structures erected by the Appellants were in violation of the 1961 Act, given the common thread underlying the 1961 Act and the Hampi Act, it cannot be said that such illegality ceased to exist when the Hampi Act came into force. Thus, the HWHAMA was, and is entitled to proceed against the development raised by the Appellants, which had been rendered illegal under the prior legislation. 23. It may also be useful to appreciate the background in which the HWHAMA had proceeded to take action against the Appellants. As mentioned supra, the Hampi World Heritage properties had been included in the in danger list by UNESCO in 1999. However, owing to serious efforts by the State Government and the HWHAMA, this classification was dropped in 2006. The threat to the various monuments and the integrity of the landscape of Hampi, however, continued. This is well reflected in the resolution of the 33rd meeting of the World Heritage Committee of UNESCO in 2009, wherein rampant illegal constructions in the village of Virupapura Gaddi, found a specific mention: …The World Heritage Committee, 1. xxx 2. xxx 3. xxx 4. xxx 5. xxx 6. xxx 7. Expresses its concern over illegal constructions and other developments, such as social housing projects, within the extended boundaries which are being considered for the possible extension of the property, particularly in Virupapura Gada island and Hampi villlages, which appear to have a negative impact on the integrity of the landscape…. Similar concerns were also raised at the 34th meeting of the UNESCO World Heritage Committee in 2010. 24. It was in the context of these developments that the HWHAMA had directed the local authorities to not renew the trade licenses issued to the Appellants, and later proceeded to issue notices for demolishing the constructions raised by the Appellants. In view of the broad ranging functions envisaged for the HWHAMA under Section 11 of the Hampi Act, we find that its actions were lawful, as it was incumbent upon the authority to act and not turn a blind eye to the illegality being perpetrated by the Appellants. 25. Finally, we advert to the claim of the Appellants that the lack of a notification under Section 14(1) of the Hampi Act fettered the powers of the HWHAMA to take action against them. It may be useful to refer to Section 14 in this regard: Section 14: No other authority or person to undertake development without permission of the Authority.- (1) Notwithstanding anything contained in any law for the time being in force, except with the previous permission of the Authority, no other authority or person shall undertake any development within the Heritage Area, of the types as the Authority may from time to time specify by notification published in the Official Gazette. (2) No local authority shall grant permission for any development referred to in sub-section (1), within the Heritage Area, unless the Authority has granted permission for such development. (3) Any authority or person desiring to undertake development referred to in sub-section (1) shall apply in writing to the Authority for permission to undertake such development. (4) The Authority may, after making such inquiry as it deems necessary grant such permission without or with such conditions, as it may deem fit, to impose or refuse to grant such permission. (5) Any authority or person aggrieved by the decision of the Authority under sub-section (4) may, within thirty days from the date of the decision appeal against such decision to the State Government, whose decision thereon shall be final: Provided that, where the aggrieved authority submitting such appeal is under the administrative control of the Central Government, the appeal shall be decided by the State Government, after consultation with the Central Government. (6) In case any person or authority does anything contrary to the decision given under sub-section (4) as modified in sub-section (5), the Authority shall have power to pull down, demolish or remove any development under taken contrary to such decision and recover the cost of such pulling down, demolition or removal from the person or authority concerned. Evidently, under Section 14(1), the HWHAMA is made the sole authority for undertaking development in the heritage area of such types as it may specify by a notification. 25.1 Though the Appellants have contended that such a notification under Section 14(1) is a pre-condition for the HWHAMA to exercise its powers to order demolition under Section 14(6), we are not inclined to accept such an argument. In view of the co-terminus legislative scheme of the 1961 Act and the Hampi Act, we find that Section 14 of the Hampi Act acts as an overarching provision that enables the issuance of a further notification to control development in the Hampi heritage area. This, however, does not mean that the lack of a notification under Section 14(1) renders a prior notification intended for the same purpose unenforceable, as is the case with the 1988 notification here. 25.2 In any case, we find that the notification dated 10.07.2008 regarding the implementation of the Master Plan 2021 and the Zonal Regulations fulfils the requirement of Section 14(1) in the present case, as they clearly specify the restrictions as to land use and the prohibited types of development. Thus, the Appellants cannot use the absence of regulation of Virupapura Gaddi as a ground to justify the illegal construction on their land. 26. In light of the foregoing discussion, we conclude that the construction of rooms, thatched roof huts, temporary structures, and buildings by the Appellants to carry on the business of hotels, restaurants, or guesthouses in Virupapura Gaddi was in violation of the 1961 Act. Further, it is held that the HWHAMA had the authority to proceed with the demolition of such illegal constructions. Thus, we do not find any reason to interfere with the impugned final judgment and order dated 27.04.2015 passed by the High Court of Karnataka.
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to the Hampi Act reveals an underlying common object between the 1961 Act and the Hampi Act– providing for the preservation of the respective monuments and areas protected under these legislations. The difference is that the 1961 Act was enacted as a broader legislation covering the entire State of Karnataka, while the Hampi Act was enacted with a specific focus on the heritage site of Hampi, keeping in mind the international recognition that had been accorded to it20.7 In addition to such common object, certain other provisions of the Hampi Act also indicate a continuity between the legal regimes of the 1961 Act and the Hampi Act. For instance, the Hampi Act directly incorporates the 1988 notification issued under Section 19(3) of the 1961 Act, while demarcating the Hampi heritage area in its ScheduleParts A, B, and C of Schedule I to the Hampi Act respectively indicate the extent of the core area zone, buffer zone and peripheral zone forming part of the Hampi heritage area. Under Part A, which indicates the extent of the core area zone, there is a clear reference to the area of 41.80 sq kms declared to be protected area under the 1988 notification20.8 Furthermore, even the applicable restrictions under the Master Plan 2021 prepared under the Hampi Act are similar to those imposed by virtue of the 1988 notification, inasmuch as no development of Virupapura Gaddi is permissible. The Master Plan 2021 came into force on 10.07.2008. It stipulates the formation of development schemes for towns and villages included within the Hampi local planning area. Though it did not provide for a specific development plan for Virupapura Gaddi, it provides Zonal Regulations for areas under special control, which include river islands, tank beds et alIn light of this, given that Virupapura Gaddi is a river island, it is evident that no development is permissible there even per the Master Plan 2021 prepared under the Hampi Act. When juxtaposed with the restrictions under Section 20(1) of the 1961 Act, this also indicates a continuity between the 1961 Act and the Hampi Act21. In view of the foregoing factors, we do not find merit in the Appellants argument that the Hampi Act is purely prospective in nature and that the HWHAMA, which has been established under such Act, cannot enforce prior notifications. In our considered opinion, the 1961 Act and the Hampi Act cannot be viewed as separate, watertight compartments that operate independent of each other. Such an understanding would not only defeat their underlying common objective, but also belie the events leading up to the enactment of the Hampi Act, all of which clearly reflect that the Hampi Act was a culmination of continuing attempts by the State Government to preserve and protect the cultural heritage of Hampi. Therefore, the 1961 Act and the Hampi Act must not be construed as isolated silos. Since they both seek to fulfill a common object, they must be interpreted in a manner that seeks to further such objective, and not obstruct it22. In the present case, since it is established that the structures erected by the Appellants were in violation of the 1961 Act, given the common thread underlying the 1961 Act and the Hampi Act, it cannot be said that such illegality ceased to exist when the Hampi Act came into force. Thus, the HWHAMA was, and is entitled to proceed against the development raised by the Appellants, which had been rendered illegal under the prior legislationAs mentioned supra, the Hampi World Heritage properties had been included in the in danger list by UNESCO in 1999. However, owing to serious efforts by the State Government and the HWHAMA, this classification was dropped in 2006. The threat to the various monuments and the integrity of the landscape of Hampi, however, continued. This is well reflected in the resolution of the 33rd meeting of the World Heritage Committee of UNESCO in 2009,In view of the broad ranging functions envisaged for the HWHAMA under Section 11 of the Hampi Act, we find that its actions were lawful, as it was incumbent upon the authority to act and not turn a blind eye to the illegality being perpetrated by the AppellantsEvidently, under Section 14(1), the HWHAMA is made the sole authority for undertaking development in the heritage area of such types as it may specify by a notification25.1 Though the Appellants have contended that such a notification under Section 14(1) is a pre-condition for the HWHAMA to exercise its powers to order demolition under Section 14(6), we are not inclined to accept such an argument. In view of the co-terminus legislative scheme of the 1961 Act and the Hampi Act, we find that Section 14 of the Hampi Act acts as an overarching provision that enables the issuance of a further notification to control development in the Hampi heritage area. This, however, does not mean that the lack of a notification under Section 14(1) renders a prior notification intended for the same purpose unenforceable, as is the case with the 1988 notification here25.2 In any case, we find that the notification dated 10.07.2008 regarding the implementation of the Master Plan 2021 and the Zonal Regulations fulfils the requirement of Section 14(1) in the present case, as they clearly specify the restrictions as to land use and the prohibited types of development. Thus, the Appellants cannot use the absence of regulation of Virupapura Gaddi as a ground to justify the illegal construction on their land26. In light of the foregoing discussion, we conclude that the construction of rooms, thatched roof huts, temporary structures, and buildings by the Appellants to carry on the business of hotels, restaurants, or guesthouses in Virupapura Gaddi was in violation of the 1961 Act. Further, it is held that the HWHAMA had the authority to proceed with the demolition of such illegal constructions. Thus, we do not find any reason to interfere with the impugned final judgment and order dated 27.04.2015 passed by the High Court of Karnataka.
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STATE OF UTTARAKHAND Vs. UNION OF INDIA | 1. This order will dispose of an application (I.A. No. 3/2014) preferred by second defendant (hereafter ?State of U.P.?) to recall an order made by this Court on 16.12.2013 setting it down ex parte. The State of Uttarakhand has filed the present Suit under Article 131 of the Constitution for various reliefs, including a declaration that the allocation of 25% shareholding in the Tehri Hydro Development Corporation (hereafter ?THDC?) in favour of the State of U.P. consequent to the enactment and coming into force of the U.P. Reorganisation Act, 2000, is void with effect from 09.11.2000 and a further declaration that the plaintiff/State of Uttarakhand, is the rightful owner of the said shareholding and consequently, decree of mandatory and permanent injunction to allocate the said shareholding of THDC in its favour and also allocate the dividends from 09.11.2000 till disposal of the suit, to it. 2. This court entertained the suit by proceeding dated 06.12.2012 and by order dated 12.12.2012 dismissed the application for interim relief. On 02.09.2013, it was noticed that chamber summons had been filed and the Registry was directed to take further steps. On 07.10.2013, notice was directed to be served upon the Chief Secretary, State of U.P. as well as the Standing Counsel for the State of U.P. These notices were served – as evident from the order dated 10.11.2013. In spite of service of notice, State of U.P. was not represented on 16.12.2013 and was set down ex parte. 3. I.A. No. 3/2014 was filed by State of U.P. on 09.04.2014, seeking recall of the order dated 16.12.2013. The application states that notice of the suit was received by the State of U.P. on 23.10.2013 and the matter was referred to the concerned department. Apparently, THDC was notified of the pendency of the proceedings and evidently upon receipt of information with respect to the order (setting it down ex parte on 16.12.2013), further steps were taken, which included a Joint Meeting of various Departments on 03.02.2014; the appointment of the concerned counsel on 11.03.2014 and instructions being furnished to him to file an application to recall the order setting the State of U.P. ex parte. The record also indicates that the plaintiff resisted the application and filed a reply dated 08.06.2016, and further sought decree in terms of Order VIII Rule 1 of the Code of Civil Procedure, 1908. 4. It is apparent from the record that the application for recall of the order of 16.12.2013 was listed for hearing on 07.09.2015 and thereafter, again on several dates, i.e. 16.10.2015, 23.02.2016 and 10.03.2016. No steps were taken, nor was the notice of this court brought to the application. It was only on 06.04.2016 that this court issued notice on the application and listed it again on 27.09.2016, at the request of the counsel for the parties. On 06.02.2017, learned Senior Counsel appeared for the State of U.P. and requested that the application may be allowed subject to payment of costs. On 06.05.2019, matter was again listed and the plaintiff?s counsel sought an adjournment. 5. From the above facts, it is evident that, the State of U.P., no doubt, defaulted in entering appearance and was set down ex parte by order dated 16.12.2013. Thereafter, I.A. No. 3/2014 was listed and notice issued for the first time on 07.09.2015. The State of Uttarakhand resisted this application. The State of Uttarakhand has, through a separate affidavit, indicated that it incurred a total expenditure or Rs. 57,48,791/- (Rupees Fifty Seven Lacs Forty Eight Thousand Seven Hundred Ninety One only) as legal costs towards payment of counsel?s fee towards 11 hearings. 6. This court is of the opinion that though the State of U.P. was tardy and could not ensure timely appearance, yet, when the concerned officials were made aware of the pendency of the present suit and order dated 16.12.2013, prompt steps were taken. 7. At least, after filing of the application- on 09.04.2014, the State of U.P. cannot be accused of negligence; notice of the application was issued only on 09.04.2016. Furthermore, the plaintiff sought an adjournment at least on two occasions, i.e. 27.09.2016 and 06.05.2019. In these circumstances, it cannot be said that the entire blame for the delay in dealing with the application and the costs thereof are to be borne by the State of U.P. | 1[ds]5. From the above facts, it is evident that, the State of U.P., no doubt, defaulted in entering appearance and was set down ex parte by order dated 16.12.2013. Thereafter, I.A. No. 3/2014 was listed and notice issued for the first time on 07.09.2015. The State of Uttarakhand resisted this application. The State of Uttarakhand has, through a separate affidavit, indicated that it incurred a total expenditure or Rs. 57,48,791/- (Rupees Fifty Seven Lacs Forty Eight Thousand Seven Hundred Ninety One only) as legal costs towards payment of counsel?s fee towards 11 hearings.This court is of the opinion that though the State of U.P. was tardy and could not ensure timely appearance, yet, when the concerned officials were made aware of the pendency of the present suit and order dated 16.12.2013, prompt steps were taken.At least, after filing of the application- on 09.04.2014, the State of U.P. cannot be accused of negligence; notice of the application was issued only on 09.04.2016. Furthermore, the plaintiff sought an adjournment at least on two occasions, i.e. 27.09.2016 and 06.05.2019. In these circumstances, it cannot be said that the entire blame for the delay in dealing with the application and the costs thereof are to be borne by the State of U.P. | 1 | 831 | 247 | ### 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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1. This order will dispose of an application (I.A. No. 3/2014) preferred by second defendant (hereafter ?State of U.P.?) to recall an order made by this Court on 16.12.2013 setting it down ex parte. The State of Uttarakhand has filed the present Suit under Article 131 of the Constitution for various reliefs, including a declaration that the allocation of 25% shareholding in the Tehri Hydro Development Corporation (hereafter ?THDC?) in favour of the State of U.P. consequent to the enactment and coming into force of the U.P. Reorganisation Act, 2000, is void with effect from 09.11.2000 and a further declaration that the plaintiff/State of Uttarakhand, is the rightful owner of the said shareholding and consequently, decree of mandatory and permanent injunction to allocate the said shareholding of THDC in its favour and also allocate the dividends from 09.11.2000 till disposal of the suit, to it. 2. This court entertained the suit by proceeding dated 06.12.2012 and by order dated 12.12.2012 dismissed the application for interim relief. On 02.09.2013, it was noticed that chamber summons had been filed and the Registry was directed to take further steps. On 07.10.2013, notice was directed to be served upon the Chief Secretary, State of U.P. as well as the Standing Counsel for the State of U.P. These notices were served – as evident from the order dated 10.11.2013. In spite of service of notice, State of U.P. was not represented on 16.12.2013 and was set down ex parte. 3. I.A. No. 3/2014 was filed by State of U.P. on 09.04.2014, seeking recall of the order dated 16.12.2013. The application states that notice of the suit was received by the State of U.P. on 23.10.2013 and the matter was referred to the concerned department. Apparently, THDC was notified of the pendency of the proceedings and evidently upon receipt of information with respect to the order (setting it down ex parte on 16.12.2013), further steps were taken, which included a Joint Meeting of various Departments on 03.02.2014; the appointment of the concerned counsel on 11.03.2014 and instructions being furnished to him to file an application to recall the order setting the State of U.P. ex parte. The record also indicates that the plaintiff resisted the application and filed a reply dated 08.06.2016, and further sought decree in terms of Order VIII Rule 1 of the Code of Civil Procedure, 1908. 4. It is apparent from the record that the application for recall of the order of 16.12.2013 was listed for hearing on 07.09.2015 and thereafter, again on several dates, i.e. 16.10.2015, 23.02.2016 and 10.03.2016. No steps were taken, nor was the notice of this court brought to the application. It was only on 06.04.2016 that this court issued notice on the application and listed it again on 27.09.2016, at the request of the counsel for the parties. On 06.02.2017, learned Senior Counsel appeared for the State of U.P. and requested that the application may be allowed subject to payment of costs. On 06.05.2019, matter was again listed and the plaintiff?s counsel sought an adjournment. 5. From the above facts, it is evident that, the State of U.P., no doubt, defaulted in entering appearance and was set down ex parte by order dated 16.12.2013. Thereafter, I.A. No. 3/2014 was listed and notice issued for the first time on 07.09.2015. The State of Uttarakhand resisted this application. The State of Uttarakhand has, through a separate affidavit, indicated that it incurred a total expenditure or Rs. 57,48,791/- (Rupees Fifty Seven Lacs Forty Eight Thousand Seven Hundred Ninety One only) as legal costs towards payment of counsel?s fee towards 11 hearings. 6. This court is of the opinion that though the State of U.P. was tardy and could not ensure timely appearance, yet, when the concerned officials were made aware of the pendency of the present suit and order dated 16.12.2013, prompt steps were taken. 7. At least, after filing of the application- on 09.04.2014, the State of U.P. cannot be accused of negligence; notice of the application was issued only on 09.04.2016. Furthermore, the plaintiff sought an adjournment at least on two occasions, i.e. 27.09.2016 and 06.05.2019. In these circumstances, it cannot be said that the entire blame for the delay in dealing with the application and the costs thereof are to be borne by the State of U.P.
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### Explanation:
5. From the above facts, it is evident that, the State of U.P., no doubt, defaulted in entering appearance and was set down ex parte by order dated 16.12.2013. Thereafter, I.A. No. 3/2014 was listed and notice issued for the first time on 07.09.2015. The State of Uttarakhand resisted this application. The State of Uttarakhand has, through a separate affidavit, indicated that it incurred a total expenditure or Rs. 57,48,791/- (Rupees Fifty Seven Lacs Forty Eight Thousand Seven Hundred Ninety One only) as legal costs towards payment of counsel?s fee towards 11 hearings.This court is of the opinion that though the State of U.P. was tardy and could not ensure timely appearance, yet, when the concerned officials were made aware of the pendency of the present suit and order dated 16.12.2013, prompt steps were taken.At least, after filing of the application- on 09.04.2014, the State of U.P. cannot be accused of negligence; notice of the application was issued only on 09.04.2016. Furthermore, the plaintiff sought an adjournment at least on two occasions, i.e. 27.09.2016 and 06.05.2019. In these circumstances, it cannot be said that the entire blame for the delay in dealing with the application and the costs thereof are to be borne by the State of U.P.
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Dagadabai (Dead) by L.Rs Vs. Abbas @ Gulab Rustum Pinjari | first appellate Court affirmed the judgment and decree of the Trial Court and dismissed the appeal.10) Felt aggrieved, the defendant carried the matter in Second Appeal before the High Court. The High Court admitted the appeal on the following substantial question of law:“Whether in the facts and circumstances of the present case, the defendant (appellant herein) perfected his title to the suit land on account of adverse possession and the alternative plea ought to have been allowed by the Courts below, particularly, when there were disputes regarding the mutation proceedings after the death of Rustum Pinjari and the intention of the defendant to get his name mutated was writ large to show his hostile attitude.”11) By impugned order, the learned Single Judge of the High Court allowed the appeal and while setting aside the judgment/decree of the two courts below dismissed the suit giving rise to filing of this appeal by special leave by the plaintiff before this Court. The leave was granted.12) Heard Mr. Anshuman Animesh, learned counsel for the appellants and Mr. Nishant Ramakantrao Katneshwarkar, learned counsel for the respondent.13) Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside of the impugned order restore that of the Trial Court and the first Appellate Court.14) In our considered opinion, the High Court erred in admitting the second appeal in the first instance and then further erred in allowing it by answering the question framed in defendant’s favour. This we say for more than one reason as detailed below.15) First, when the Trial Court and the First Appellate Court concurrently decreed the plaintiffs suit by recording all the findings of facts against the defendant enumerated above, then, in our opinion, such findings of facts were binding on the High Court.16) It is also for additional reasons that the findings were neither against the pleadings nor evidence and nor against any provisions of law. They were also not perverse on facts to the extent that no average judicial person could ever record. In this view of the matter, we are of the opinion that the second appeal did not involve any question of law much less substantial question of law within the meaning of Section 100 of the Code to enable the High Court to admit the appeal on any such question much less answer it in favour of the defendant.17) Second, the question which was formulated by the High Court did not involve any question of law much less substantial question of law within the meaning of Section 100 of the Code requiring interference in the first Appellate Court’s judgment.18) Third, the plea of adverse possession being essentially a plea based on facts, it was required to be proved by the party raising it on the basis of proper pleadings and evidence. The burden to prove such plea was, therefore, on the defendant who had raised it. It was, therefore, necessary for him to have discharged the burden that laid on him in accordance with law.19) When both the Courts below held and, in our view, rightly that the defendant has failed to prove the plea of adverse possession in relation to the suit land then such concurrent findings of fact was unimpeachable and binding on the High Court.20) Fourth, the High Court erred fundamentally in observing in Para 7 that, "it was not necessary for him (defendant) to first admit the ownership of the plaintiff before raising such a plea".21) In our considered opinion, these observations of the High Court are against the law of adverse possession. It is a settled principle of law of adverse possession that the person, who claims title over the property on the strength of adverse possession and thereby wants the Court to divest the true owner of his ownership rights over such property, is required to prove his case only against the true owner of the property. It is equally well-settled that such person must necessarily first admit the ownership of the true owner over the property to the knowledge of the true owner and secondly, the true owner has to be made a party to the suit to enable the Court to decide the plea of adverse possession between the two rival claimants.22) It is only thereafter and subject to proving other material conditions with the aid of adequate evidence on the issue of actual, peaceful, and uninterrupted continuous possession of the person over the suit property for more than 12 years to the exclusion of true owner with the element of hostility in asserting the rights of ownership to the knowledge of the true owner, a case of adverse possession can be held to be made out which, in turn, results in depriving the true owner of his ownership rights in the property and vests ownership rights of the property in the person who claims it.23) In this case, we find that the defendant did not admit the plaintiffs ownership over the suit land and, therefore, the issue of adverse possession, in our opinion, could not have been tried successfully at the instance of the defendant as against the plaintiff. That apart, the defendant having claimed the ownership over the suit land by inheritance as an adopted son of Rustum and having failed to prove this ground, he was not entitled to claim the title by adverse possession against the plaintiff.24) In the light of this settled legal position, the plea taken by the defendant about the adoption for proving his ownership over the suit land as an heir of Rustum was rightly held against him.25) Fifth, the defendant having failed to prove that he was the adopted son of Rustum, had no option but to suffer the decree of dispossession from the suit land. It is a settled principle of Mohammadan Law that Mohammadan Law does not recognize adoption (see-Section 347 of Mulla Principles of Mahomedan Law, 20th Edition page 430). | 1[ds]13) Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside of the impugned order restore that of the Trial Court and the first Appellate Court.14) In our considered opinion, the High Court erred in admitting the second appeal in the first instance and then further erred in allowing it by answering the question framed infavour. This we say for more than one reason as detailed below.15) First, when the Trial Court and the First Appellate Court concurrently decreed the plaintiffs suit by recording all the findings of facts against the defendant enumerated above, then, in our opinion, such findings of facts were binding on the High Court.16) It is also for additional reasons that the findings were neither against the pleadings nor evidence and nor against any provisions of law. They were also not perverse on facts to the extent that no average judicial person could ever record. In this view of the matter, we are of the opinion that the second appeal did not involve any question of law much less substantial question of law within the meaning of Section 100 of the Code to enable the High Court to admit the appeal on any such question much less answer it in favour of the defendant.17) Second, the question which was formulated by the High Court did not involve any question of law much less substantial question of law within the meaning of Section 100 of the Code requiring interference in the first Appellatejudgment.18) Third, the plea of adverse possession being essentially a plea based on facts, it was required to be proved by the party raising it on the basis of proper pleadings and evidence. The burden to prove such plea was, therefore, on the defendant who had raised it. It was, therefore, necessary for him to have discharged the burden that laid on him in accordance with law.19) When both the Courts below held and, in our view, rightly that the defendant has failed to prove the plea of adverse possession in relation to the suit land then such concurrent findings of fact was unimpeachable and binding on the High Court.20) Fourth, the High Court erred fundamentally in observing in Para 7 that, "it was not necessary for him (defendant) to first admit the ownership of the plaintiff before raising such a plea".21) In our considered opinion, these observations of the High Court are against the law of adverse possession. It is a settled principle of law of adverse possession that the person, who claims title over the property on the strength of adverse possession and thereby wants the Court to divest the true owner of his ownership rights over such property, is required to prove his case only against the true owner of the property. It is equally well-settled that such person must necessarily first admit the ownership of the true owner over the property to the knowledge of the true owner and secondly, the true owner has to be made a party to the suit to enable the Court to decide the plea of adverse possession between the two rival claimants.22) It is only thereafter and subject to proving other material conditions with the aid of adequate evidence on the issue of actual, peaceful, and uninterrupted continuous possession of the person over the suit property for more than 12 years to the exclusion of true owner with the element of hostility in asserting the rights of ownership to the knowledge of the true owner, a case of adverse possession can be held to be made out which, in turn, results in depriving the true owner of his ownership rights in the property and vests ownership rights of the property in the person who claims it.23) In this case, we find that the defendant did not admit the plaintiffs ownership over the suit land and, therefore, the issue of adverse possession, in our opinion, could not have been tried successfully at the instance of the defendant as against the plaintiff. That apart, the defendant having claimed the ownership over the suit land by inheritance as an adopted son of Rustum and having failed to prove this ground, he was not entitled to claim the title by adverse possession against the plaintiff.24) In the light of this settled legal position, the plea taken by the defendant about the adoption for proving his ownership over the suit land as an heir of Rustum was rightly held against him.25) Fifth, the defendant having failed to prove that he was the adopted son of Rustum, had no option but to suffer the decree of dispossession from the suit land. | 1 | 1,792 | 856 | ### 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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first appellate Court affirmed the judgment and decree of the Trial Court and dismissed the appeal.10) Felt aggrieved, the defendant carried the matter in Second Appeal before the High Court. The High Court admitted the appeal on the following substantial question of law:“Whether in the facts and circumstances of the present case, the defendant (appellant herein) perfected his title to the suit land on account of adverse possession and the alternative plea ought to have been allowed by the Courts below, particularly, when there were disputes regarding the mutation proceedings after the death of Rustum Pinjari and the intention of the defendant to get his name mutated was writ large to show his hostile attitude.”11) By impugned order, the learned Single Judge of the High Court allowed the appeal and while setting aside the judgment/decree of the two courts below dismissed the suit giving rise to filing of this appeal by special leave by the plaintiff before this Court. The leave was granted.12) Heard Mr. Anshuman Animesh, learned counsel for the appellants and Mr. Nishant Ramakantrao Katneshwarkar, learned counsel for the respondent.13) Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside of the impugned order restore that of the Trial Court and the first Appellate Court.14) In our considered opinion, the High Court erred in admitting the second appeal in the first instance and then further erred in allowing it by answering the question framed in defendant’s favour. This we say for more than one reason as detailed below.15) First, when the Trial Court and the First Appellate Court concurrently decreed the plaintiffs suit by recording all the findings of facts against the defendant enumerated above, then, in our opinion, such findings of facts were binding on the High Court.16) It is also for additional reasons that the findings were neither against the pleadings nor evidence and nor against any provisions of law. They were also not perverse on facts to the extent that no average judicial person could ever record. In this view of the matter, we are of the opinion that the second appeal did not involve any question of law much less substantial question of law within the meaning of Section 100 of the Code to enable the High Court to admit the appeal on any such question much less answer it in favour of the defendant.17) Second, the question which was formulated by the High Court did not involve any question of law much less substantial question of law within the meaning of Section 100 of the Code requiring interference in the first Appellate Court’s judgment.18) Third, the plea of adverse possession being essentially a plea based on facts, it was required to be proved by the party raising it on the basis of proper pleadings and evidence. The burden to prove such plea was, therefore, on the defendant who had raised it. It was, therefore, necessary for him to have discharged the burden that laid on him in accordance with law.19) When both the Courts below held and, in our view, rightly that the defendant has failed to prove the plea of adverse possession in relation to the suit land then such concurrent findings of fact was unimpeachable and binding on the High Court.20) Fourth, the High Court erred fundamentally in observing in Para 7 that, "it was not necessary for him (defendant) to first admit the ownership of the plaintiff before raising such a plea".21) In our considered opinion, these observations of the High Court are against the law of adverse possession. It is a settled principle of law of adverse possession that the person, who claims title over the property on the strength of adverse possession and thereby wants the Court to divest the true owner of his ownership rights over such property, is required to prove his case only against the true owner of the property. It is equally well-settled that such person must necessarily first admit the ownership of the true owner over the property to the knowledge of the true owner and secondly, the true owner has to be made a party to the suit to enable the Court to decide the plea of adverse possession between the two rival claimants.22) It is only thereafter and subject to proving other material conditions with the aid of adequate evidence on the issue of actual, peaceful, and uninterrupted continuous possession of the person over the suit property for more than 12 years to the exclusion of true owner with the element of hostility in asserting the rights of ownership to the knowledge of the true owner, a case of adverse possession can be held to be made out which, in turn, results in depriving the true owner of his ownership rights in the property and vests ownership rights of the property in the person who claims it.23) In this case, we find that the defendant did not admit the plaintiffs ownership over the suit land and, therefore, the issue of adverse possession, in our opinion, could not have been tried successfully at the instance of the defendant as against the plaintiff. That apart, the defendant having claimed the ownership over the suit land by inheritance as an adopted son of Rustum and having failed to prove this ground, he was not entitled to claim the title by adverse possession against the plaintiff.24) In the light of this settled legal position, the plea taken by the defendant about the adoption for proving his ownership over the suit land as an heir of Rustum was rightly held against him.25) Fifth, the defendant having failed to prove that he was the adopted son of Rustum, had no option but to suffer the decree of dispossession from the suit land. It is a settled principle of Mohammadan Law that Mohammadan Law does not recognize adoption (see-Section 347 of Mulla Principles of Mahomedan Law, 20th Edition page 430).
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13) Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside of the impugned order restore that of the Trial Court and the first Appellate Court.14) In our considered opinion, the High Court erred in admitting the second appeal in the first instance and then further erred in allowing it by answering the question framed infavour. This we say for more than one reason as detailed below.15) First, when the Trial Court and the First Appellate Court concurrently decreed the plaintiffs suit by recording all the findings of facts against the defendant enumerated above, then, in our opinion, such findings of facts were binding on the High Court.16) It is also for additional reasons that the findings were neither against the pleadings nor evidence and nor against any provisions of law. They were also not perverse on facts to the extent that no average judicial person could ever record. In this view of the matter, we are of the opinion that the second appeal did not involve any question of law much less substantial question of law within the meaning of Section 100 of the Code to enable the High Court to admit the appeal on any such question much less answer it in favour of the defendant.17) Second, the question which was formulated by the High Court did not involve any question of law much less substantial question of law within the meaning of Section 100 of the Code requiring interference in the first Appellatejudgment.18) Third, the plea of adverse possession being essentially a plea based on facts, it was required to be proved by the party raising it on the basis of proper pleadings and evidence. The burden to prove such plea was, therefore, on the defendant who had raised it. It was, therefore, necessary for him to have discharged the burden that laid on him in accordance with law.19) When both the Courts below held and, in our view, rightly that the defendant has failed to prove the plea of adverse possession in relation to the suit land then such concurrent findings of fact was unimpeachable and binding on the High Court.20) Fourth, the High Court erred fundamentally in observing in Para 7 that, "it was not necessary for him (defendant) to first admit the ownership of the plaintiff before raising such a plea".21) In our considered opinion, these observations of the High Court are against the law of adverse possession. It is a settled principle of law of adverse possession that the person, who claims title over the property on the strength of adverse possession and thereby wants the Court to divest the true owner of his ownership rights over such property, is required to prove his case only against the true owner of the property. It is equally well-settled that such person must necessarily first admit the ownership of the true owner over the property to the knowledge of the true owner and secondly, the true owner has to be made a party to the suit to enable the Court to decide the plea of adverse possession between the two rival claimants.22) It is only thereafter and subject to proving other material conditions with the aid of adequate evidence on the issue of actual, peaceful, and uninterrupted continuous possession of the person over the suit property for more than 12 years to the exclusion of true owner with the element of hostility in asserting the rights of ownership to the knowledge of the true owner, a case of adverse possession can be held to be made out which, in turn, results in depriving the true owner of his ownership rights in the property and vests ownership rights of the property in the person who claims it.23) In this case, we find that the defendant did not admit the plaintiffs ownership over the suit land and, therefore, the issue of adverse possession, in our opinion, could not have been tried successfully at the instance of the defendant as against the plaintiff. That apart, the defendant having claimed the ownership over the suit land by inheritance as an adopted son of Rustum and having failed to prove this ground, he was not entitled to claim the title by adverse possession against the plaintiff.24) In the light of this settled legal position, the plea taken by the defendant about the adoption for proving his ownership over the suit land as an heir of Rustum was rightly held against him.25) Fifth, the defendant having failed to prove that he was the adopted son of Rustum, had no option but to suffer the decree of dispossession from the suit land.
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Prahlad Singh Vs. Union Of India | Verma v. State of Andhra Pradesh (supra) and Nahar Singh v. State of U.P. (1996) 1 SCC 434 , this Court laid down the following principles: "i) No hard and fast rule can be laid down as to what act would constitute taking of possession of the acquired land.ii) If the acquired land is vacant, the act of the concerned State authority to go to the spot and prepare a panchnama will ordinarily be treated as sufficient to constitute taking of possession.iii) If crop is standing on the acquired on the acquired land or building/structure exists, mere going on the spot by the concerned authority will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the concerned authority will have to give notice to the occupier of the building/structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchnama. Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken.iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document.v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3A) and substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the Court may reasonably presume that possession of the acquired land has been taken." 16. If the present case is examined in the light of the facts which have been brought on record and the principles laid down in the judgment in Banda Development Authoritys case, it is not possible to sustain the finding and conclusion recorded by the High Court that the acquired land had vested in the State Government because the actual and physical possession of the acquired land always remained with the appellants and no evidence has been produced by the respondents to show that possession was taken by preparing a panchnama in the presence of independent witnesses and their signatures were obtained on the panchnama. 17. A reading of the Khasra Girdawari and Jamabandis, copies of which have been placed on record, shows that actual and physical possession of the acquired land is still with the appellants. Jamabandis relate to the year 2005-2006. Copies of notice dated 10/11.2.2011 issued by Uttar Haryana Bijli Vitran Nigam Ltd. relates to appellant No.1 - Prahlad Singh and this, prima facie, supports the appellants assertion that physical possession of the land is still with them. Respondent Nos. 3 to 6 have not placed any document before this Court to show that actual possession of the acquired land was taken on the particular date. Therefore, the High Court was not right in recording a finding that the acquired land will be deemed to have vested in the State Government. 18. The judgments, which have been referred to in the impugned order really do not have any bearing on the case in hand because in all those cases, the Court had found that possession of the acquired land had been taken. 19. In Municipal Corporation of Greater Bombay v. Industrial Development and Investment Company (P) Ltd. (supra), this Court declined to interfere with the acquisition proceedings on the ground of delay. The facts of that case were that after preparation of the draft development plan for G Ward of the Bombay Municipal Corporation, notification dated 6.7.1972 was issued under Section 126(2) of the Maharashtra Regional and Town Planning Act, 1966 for the acquisition of land needed for implementing the development plan. Respondent Nos.1 and 2, who were in possession of the land as tenants, filed claim for compensation. They were heard by the competent authority in 1979. In the meanwhile, the Bombay Metropolitan Region Development Authority Act, 1974 was enacted by the State Legislature and notifications were issued under that Act. In 1979, City Survey No.503 was de-reserved from the earlier public purpose of locating the extension of Dharavi Sewage Purification Plant and the entire land was to be utilized for residential, commercial, para-commercial and social facilities by the local residents of the area. After the award was made by the Collector, possession of the acquired land was taken. The respondents filed writ petition after lapse of four years from the date of taking possession. The learned Single Judge dismissed the writ petition but the Division Bench allowed the appeal. This Court held that once the award was passed and possession was taken, the High Court should not have exercised its power to quash the award. 20. In C. Padma v. Deputy Secretary to the Government of Tamil Nadu (supra), the Court held that once the acquired land vested in the State Government and compensation was paid after taking possession, the appellant was not entitled to question the acquisition proceedings. 21. In Municipal Council, Ahmednagar v. Shah Hyder Beig (supra), this Court reversed the judgment of the Bombay High Court on the ground that they had moved the court after 21 years of the issue of notifications under Section 6 and 16 years from the date of making an award and taking of possession. 22. The same view was reiterated in Swaika Properties (P) Ltd. v. State of Rajasthan (supra). In that case, the writ petition was filed in 1989 after the award was passed and possession of the acquired land was taken. 23. In Sawaran Lata v. State of Haryana (supra), the landowners were denied relief because they had approached the High Court after 8 years of the notification issued under Section 4(1) and about 5 years of the passing of award and taking of possession. 24. | 1[ds]We have given our serious thought to the entire matter and carefully examined the records. Section 16 lays down that once the Collector has made an award under Section 11, he can take possession of the acquired land. Simultaneously, the section declares that upon taking possession by the Collector, the acquired land shall vest absolutely in the Government free from all encumbrances. In terms of the plain language of this section, vesting of the acquired land in the Government takes place as soon as possession is taken by the Collector after passing an award under Section 11. To put it differently, the vesting of land under Section 16 of the Act presupposes actual taking of possession and till that is done, legal presumption of vesting enshrined in Section 16 cannot be raised in favour of the acquiringthe Act does not prescribes the mode and manner of taking possession of the acquired land by the Collector, it will be useful to notice some of the judgments in which this issue has beenreading of the Khasra Girdawari and Jamabandis, copies of which have been placed on record, shows that actual and physical possession of the acquired land is still with the appellants. Jamabandis relate to the year 2005-2006. Copies of notice dated 10/11.2.2011 issued by Uttar Haryana Bijli Vitran Nigam Ltd. relates to appellant No.1 - Prahlad Singh and this, prima facie, supports the appellants assertion that physical possession of the land is still with them. Respondent Nos. 3 to 6 have not placed any document before this Court to show that actual possession of the acquired land was taken on the particular date. Therefore, the High Court was not right in recording a finding that the acquired land will be deemed to have vested in the Statejudgments, which have been referred to in the impugned order really do not have any bearing on the case in hand because in all those cases, the Court had found that possession of the acquired land had been taken. | 1 | 3,554 | 363 | ### 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:
Verma v. State of Andhra Pradesh (supra) and Nahar Singh v. State of U.P. (1996) 1 SCC 434 , this Court laid down the following principles: "i) No hard and fast rule can be laid down as to what act would constitute taking of possession of the acquired land.ii) If the acquired land is vacant, the act of the concerned State authority to go to the spot and prepare a panchnama will ordinarily be treated as sufficient to constitute taking of possession.iii) If crop is standing on the acquired on the acquired land or building/structure exists, mere going on the spot by the concerned authority will, by itself, be not sufficient for taking possession. Ordinarily, in such cases, the concerned authority will have to give notice to the occupier of the building/structure or the person who has cultivated the land and take possession in the presence of independent witnesses and get their signatures on the panchnama. Of course, refusal of the owner of the land or building/structure may not lead to an inference that the possession of the acquired land has not been taken.iv) If the acquisition is of a large tract of land, it may not be possible for the acquiring/designated authority to take physical possession of each and every parcel of the land and it will be sufficient that symbolic possession is taken by preparing appropriate document in the presence of independent witnesses and getting their signatures on such document.v) If beneficiary of the acquisition is an agency/instrumentality of the State and 80% of the total compensation is deposited in terms of Section 17(3A) and substantial portion of the acquired land has been utilised in furtherance of the particular public purpose, then the Court may reasonably presume that possession of the acquired land has been taken." 16. If the present case is examined in the light of the facts which have been brought on record and the principles laid down in the judgment in Banda Development Authoritys case, it is not possible to sustain the finding and conclusion recorded by the High Court that the acquired land had vested in the State Government because the actual and physical possession of the acquired land always remained with the appellants and no evidence has been produced by the respondents to show that possession was taken by preparing a panchnama in the presence of independent witnesses and their signatures were obtained on the panchnama. 17. A reading of the Khasra Girdawari and Jamabandis, copies of which have been placed on record, shows that actual and physical possession of the acquired land is still with the appellants. Jamabandis relate to the year 2005-2006. Copies of notice dated 10/11.2.2011 issued by Uttar Haryana Bijli Vitran Nigam Ltd. relates to appellant No.1 - Prahlad Singh and this, prima facie, supports the appellants assertion that physical possession of the land is still with them. Respondent Nos. 3 to 6 have not placed any document before this Court to show that actual possession of the acquired land was taken on the particular date. Therefore, the High Court was not right in recording a finding that the acquired land will be deemed to have vested in the State Government. 18. The judgments, which have been referred to in the impugned order really do not have any bearing on the case in hand because in all those cases, the Court had found that possession of the acquired land had been taken. 19. In Municipal Corporation of Greater Bombay v. Industrial Development and Investment Company (P) Ltd. (supra), this Court declined to interfere with the acquisition proceedings on the ground of delay. The facts of that case were that after preparation of the draft development plan for G Ward of the Bombay Municipal Corporation, notification dated 6.7.1972 was issued under Section 126(2) of the Maharashtra Regional and Town Planning Act, 1966 for the acquisition of land needed for implementing the development plan. Respondent Nos.1 and 2, who were in possession of the land as tenants, filed claim for compensation. They were heard by the competent authority in 1979. In the meanwhile, the Bombay Metropolitan Region Development Authority Act, 1974 was enacted by the State Legislature and notifications were issued under that Act. In 1979, City Survey No.503 was de-reserved from the earlier public purpose of locating the extension of Dharavi Sewage Purification Plant and the entire land was to be utilized for residential, commercial, para-commercial and social facilities by the local residents of the area. After the award was made by the Collector, possession of the acquired land was taken. The respondents filed writ petition after lapse of four years from the date of taking possession. The learned Single Judge dismissed the writ petition but the Division Bench allowed the appeal. This Court held that once the award was passed and possession was taken, the High Court should not have exercised its power to quash the award. 20. In C. Padma v. Deputy Secretary to the Government of Tamil Nadu (supra), the Court held that once the acquired land vested in the State Government and compensation was paid after taking possession, the appellant was not entitled to question the acquisition proceedings. 21. In Municipal Council, Ahmednagar v. Shah Hyder Beig (supra), this Court reversed the judgment of the Bombay High Court on the ground that they had moved the court after 21 years of the issue of notifications under Section 6 and 16 years from the date of making an award and taking of possession. 22. The same view was reiterated in Swaika Properties (P) Ltd. v. State of Rajasthan (supra). In that case, the writ petition was filed in 1989 after the award was passed and possession of the acquired land was taken. 23. In Sawaran Lata v. State of Haryana (supra), the landowners were denied relief because they had approached the High Court after 8 years of the notification issued under Section 4(1) and about 5 years of the passing of award and taking of possession. 24.
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### Explanation:
We have given our serious thought to the entire matter and carefully examined the records. Section 16 lays down that once the Collector has made an award under Section 11, he can take possession of the acquired land. Simultaneously, the section declares that upon taking possession by the Collector, the acquired land shall vest absolutely in the Government free from all encumbrances. In terms of the plain language of this section, vesting of the acquired land in the Government takes place as soon as possession is taken by the Collector after passing an award under Section 11. To put it differently, the vesting of land under Section 16 of the Act presupposes actual taking of possession and till that is done, legal presumption of vesting enshrined in Section 16 cannot be raised in favour of the acquiringthe Act does not prescribes the mode and manner of taking possession of the acquired land by the Collector, it will be useful to notice some of the judgments in which this issue has beenreading of the Khasra Girdawari and Jamabandis, copies of which have been placed on record, shows that actual and physical possession of the acquired land is still with the appellants. Jamabandis relate to the year 2005-2006. Copies of notice dated 10/11.2.2011 issued by Uttar Haryana Bijli Vitran Nigam Ltd. relates to appellant No.1 - Prahlad Singh and this, prima facie, supports the appellants assertion that physical possession of the land is still with them. Respondent Nos. 3 to 6 have not placed any document before this Court to show that actual possession of the acquired land was taken on the particular date. Therefore, the High Court was not right in recording a finding that the acquired land will be deemed to have vested in the Statejudgments, which have been referred to in the impugned order really do not have any bearing on the case in hand because in all those cases, the Court had found that possession of the acquired land had been taken.
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Gramophone Company, Limited Vs. Its Workmen | these differences in detail in the matter of accumulation we do not think that any interference is called for in the order of the tribunal in the matter of privilege leave.Now we come to the appeal of the workmen. Their main contention is that the wage-structure framed by the tribunal is low and should be further increased. The tribunal has fixed new grades which are higher than the old grades after comparison with other concerns in the region. The grades fixed by the tribunal are what may be called intermediate grades; they are lower than the highest and higher than the lowest grades in the region. No cogent reasons have been put forward on behalf of the workmen to induce us to interfere with the wage-structure fixed by the tribunal after full consideration of the wage-structure prevalent in that region. Next it is urged that the tribunal should have given more adjustment as demanded by the workmen. The workmen demanded one to four increments depending upon the length of service. The tribunal has however ordered that the workers should be fixed in the awarded scale according to their present pay, and if it does not coincide with any stage of the new scale, they should be stopped up to the nearest higher stage. Thereafter the workmen who have completed three years service should be given one increment and those who have completed six years of service or more, two increments. Considering the fact that some grades were in force in this company before, we see no reason to interfere with the provision made by the tribunal in the matter of adjustment.12. The next contention is with respect to special allowance for sepoys, who are entrusted with the work of carrying money from the bank and who do duplicating and filing work. The tribunal has refused this demand. It has pointed out that the office of the company is situate in the heart of the city and not a long distance from the bank, and the sepoys carrying money do not run any risk. It has also pointed out that the duty of bringing money from the bank is not more strenuous than any other duty usually allotted to sepoys. Further it has pointed out that duplicating and filing work is not of such a nature as to call for any special allowance. In view of these circumstances we see no reason to interfere with the order of the tribunal rejecting special allowance for sepoys who do this work.The next point is about increasing the rate of gratuity. Learned counsel for the workmen however did not press this in view of the provident fund scheme in force in the company.13. Next the workmen contended that certain musicians should be made permanent and given grade wage-scales. The companys contention is that musicians only work part-time. Whenever there is a song to be recorded, and have thus been treated as temporary workmen and have never been treated as permanent. The first group consists of Nenkare. Nand Ram, Ebrahim and M. R. Joshi, So far as these four are concerned, the tribunal held that no evidence had been led on behalf of the workmen to show that the work of these musicians was constant and regular in the same manner as the work of clerks and sepoys. It therefore rejected the demand in respect of these four musicians. We see no reason to interfere with this finding of the tribunal.14. The other four musicians are : Kersi Mistry, Vaze, Alimohamad and Mangeshkar. In their case the demand was that they should be Permitted to join the provident fund. In their case the tribunal has stated that there was no evidence from which it can be judged that the nature of their work was constant or regular like the work of clerks and subordinate staff. The tribunal therefore rejected this demand. Learned counsel for the workmen relies in this connexion on the fact that these four have been given increments in the last few years. He also relies on a letter addressed to one of them in which it was said they they were not temporary musicians. But in the same letter the company said that the musicians were treated as belonging to a separate category and could not be considered permanent in the same sense as members of the clerical staff. This four was said as far back as 1950, and if it was the case of the workmen that these musicians also worked constantly and regularly like the clerical staff, evidence should have been led in that connexion. Prima facie, it is hardly likely that a musician will work for all the working hours on all working days. They are required only when there is recording of songs and evidence should have been led to show that recording of songs was going on during all the working hours for all the working days. In the absence of such evidence.15. We see no reason to interfere with the award of the tribunal in this connexion. The fact that they were given some increments for some years would in our opinion make no difference in this position.The last contention on behalf of the workmen was with respect to Reva Gopal, sweeper. The tribunals finding in that connexion was that Reva Gopals, father used to work as sweeper in the company. As that man was getting old, Reva Gopal was allowed to work with him in order to learn work so that he could be appointed in his place when the father retired. The tribunal therefore rejected the demand that Reva Gopal had been working since 1947 as a regular member of the staff. It, however, recommended that the company should put him in the proper grade after the retirement of the father, when he was the only sweeper working for the company. In view of the recommendation of the tribunal we see no reason to interfere with the order of the tribunal in this behalf. | 0[ds]It is howevernow that the existence of a provident fund scheme is not a bar to the grant of a second retrial benefit in the shape of a gratuity scheme, provided the employer is able to bear the burden of two retrial benefits. That naturally depends on the financial capacity of the employer which we shall consider later. But the mere existence of a provident fund scheme is not by itself a reason for refusing a gratuity scheme, particularly when a good part of the services of the existing workmen was not covered by the provident fund scheme.The next fact which was not noticed by the tribunal was that the West Bengal industrial tribunal had turned down the demand of the Dum Dum employees of the company for a gratuity scheme at the end of 1955 on the ground of lack of financial capacity. That also is no reason for refusing the introduction of a gratuity scheme for the Bombay workmen, if the financial capacity of the Company has in the meantime improved, and it is able to bear the burden of such a scheme. It may be mentioned that the West Bengal tribunal looked at the position of the company as it was up to 1954. Since then seven years had passed when the present tribunal came to make its award, and it is the financial position of these seven years which was not before the West Bengal tribunal that will have to be considered in deciding whether the company is able to bear the burden now of a gratuity scheme for the workmen in Bombay. The omission therefore of the tribunal to consider the existence of the provident fund scheme and to take into account the fact that the West Bengal tribunal had turned down the demand for the introduction of a gratuity scheme in 1955 will not matter if we find on a review of the financial capacity of the company that it is in a position to bear the burden of a gratuity scheme for the Bombay workmen.4. The last point which the tribunal omitted to consider was the impact of the introduction of the gratuity scheme for the Bombay workmen who number only 72 on the financial capacity of the company with respect to about 1, 700 employees in Dumis some force in this contention of the company, and its financial capacity has to be judged on the basis of theposition for it may not be able to resist the demand, for the introduction of a gratuity scheme in Dum Dum, if it has to introduce a gratuity scheme for the Bombayappears from what counsel for the parties have told us that since the award under appeal contribution to the provident fund made by the company has been increased from 6 1/4 per cent to 8 per cent in the case of the factory employees in Dumis only theworkers who are a small percentage of the total number of employees in Dum Dum who may not be covered by the increase of the provident fund contribution who have to be taken into account in according what further burden would he thrown on the company by having to introduce a similar scheme for such employees as are not covered by the increased provident fund contribution. It is not in dispute that in Bombay the provident fund contribution has remained at 6 1/4 per centum as before as the Bombay workmen are not factory workers to whom only the increase applies. There is in our opinion force in this contention on behalf of the workmen and the impact of the scheme in view of this fresh development with respect to factory employees in Dum Dum would not be much with respect to a small percentage of its employees not covered by the increase in the provident fund contribution by the company in Dum Dum. We shall however bear in mind the impact of this small majority of employees in Dum Dum in judging the financial capacity of the company to bear the burden of this gratuity scheme for the Bombay workmen.We turn now to a consideration of the financial capacity of the company. In this connexion the company gave an estimate of the initial fund required for a gratuity scheme, which, according to it, works out to about between Rs. 33 and Rs. 34 lakhs on the basis of the demand of the workmen. This figure will be roughly halved, for the workmen had demanded one months consolidated salary as gratuity for each year of service without any limit while the tribunal has awarded half a months basic salary for each year subject to a maximum of fifteen months. Even so the figure would be in the region of Rs. 16 to Rs. 17 lakhs. If this was the real burden thrown on the company, at once a question may arise whether it will be able to bear this burden or not.so we think calculating in the practical way the burden will not be more than Rs. 1 1/2 lakhs per year for the entire 1, 700 employees or so. Further if we exclude from this calculation the large number of factory workers at Dum Dum in whose case the provident fund contribution has been increased from 6 1/4 to 8 per centum, the total burden per year would be very much lessWe are of opinion that this is not the correct way of judging the financial capacity of an employer, assuming that the figures in the balance sheets are all accepted as they are. When an industrial tribunal is considering the question ofand gratuity which in our opinion stands more or less on the same footing asit has to look at the profits made without considering provision for taxation in the shape of incometax and for reserves. The provision for incometax and for reserves must in our opinion take second place as compared to provision forand gratuity, which stands on the same footing as provident fund which is also a retrial benefit. Payment towards provident fund and gratuity is expense to be met by an employer like any other expense including wages and if the financial position shows that the burden of payment of gratuity and provident fund can be met without undue strain on the financial position of the employer, that burden must be borne by the employer. It will certainly result in some reduction in profits; but if the industry is in a stable condition and the burden of provident fund and gratuity does not result in loss to the employer, that burden will have to be borne by the employer like the burden ofin the interest of social justice. While on the one hand casting of this burden reduces the margin of profit, on the other hand it will result in the reduction of taxation in the shape of income tax.7. Thus, if the rate of tax is about 60 per cent as in the present case, the burden on the employer will be reduced to the extent of 60 per cent by being passed on in the shape of reduction of taxation and the real burden will only be to the extent of 40 per cent of the entire burden. We cannot therefore accept the contention on behalf of the company that provision for taxation and provision for reserves should take precedence over provision for gratuity. Further, an we have indicated, the practical burden on the company in the present case even taking all the employees into account would be in the neighbourhood of Rs. 1, 50, 000 per year of which 63 per cent would be met by reduction in taxation. It so, the real burden of gratuity scheme like the present on the company would be about Rs. 60, 000 per year. We do not think on a consideration of the profits made by the company in the five years already indicated that the company is not in a position to bear this burden. The actual burden may be even less, if we leave out of account the factory employees at Dum Dum in whose case there has been an increase in the provident fund contribution from 6 1/4 to 8 per cent, and who therefore stand on a separate footing. Therefore, as we see the financial position of the company in the five years ending 30 June 1961, we do not think that it is such that it cannot bear the burden of the gratuity scheme as awarded by the tribunal.It has however been contended that the future of the company is not very bright and this should be taken into account in casting a further burden of a permanent nature like a gratuityis no doubt that compared tothe sale of records has fallen in number. While it was over 38 lakhs inin the five years from1, it has been about 25 lakhs. Though in one year it was over 27 lakhs. Even so for all these five years the figure has remained steady and therefore it cannot be said that the future is gloomy. It is true that the company has not been able to increase the price sincefor its experiment in that direction betweenshowed that with the increase in price the sales fell in numbers. But we find that there was a small increase in price in62 without seriously affecting the sale of records in numbers. We cannot therefore accept that there is any case for gloom about the future. It may be mentioned that the company is practically a monopolist in the matter of manufacture of gramophone records in this country and that is also a factor which will be in favour of the Company so far as the future is concerned. In this connexion it is urged on behalf of the workmen that we must not merely look at the number of records sold, we must also consider the value of the records sold and this shows that there has not been much variationin the five years from1957 to 1961. In 1957 the value of total sales of all kinds of records, etc., was Rs. 148 lakhs; in 1958, Rs. 158 lakhs; in 1959, Rs. 141 lakhs, in 1960, Rs. 148 lakhs and in 1961, Rs. 166 lakhs. This again shows that business for the last five years before the award was more or less steady and there is therefore no reason to suppose that it will go down in the foreseeable future.Then our attention was drawn to the fact that exports had fallen since57 the number of records exported was 9.19 lakhs while it had gone down to 5.77 lakhs inIt appears that there are two kinds of records which are made by the company. There are firstly what are called 78 r.p.m. records which are cheaper and secondly 45 r.p.m. records which cost almost three times as much. It appears further that though the unit sales went down to a large extent the total value of the sales did not go down as much. In 1957 the total value was Rs. 13.04 lakhs while in 1961 it was Rs. 11.78 lakhs. The companys contention therefore that its business is going down cannot beto that, the position seems to be that the company has no capital of its own, as it is a branch of the English company. It further appears that its working capital is provided in two ways : (firstly) the working capital is provided by the head office and other branches of the English company, and (secondly) the company borrows money in India for its working capital. Thus inthe head office and the Singapore branch had provided Rs. 37 lakhs as working capital and therefore the company had to borrow about Rs. 4 lakhs in India in that year. Inthe head office and the Singapore branch only provided Rs. 23 lakhs towards capital and therefore the company had to borrow about Rs. 16 lakhs in India that year. It seems therefore that the increase in borrowed money depends upon how much working capital to provided by the parent company. When such working capital is reduced by the parent company capital borrowing in India goes up. The fact that borrowing in India has gone up in the last few years therefore is not necessarily an indication that the financial position of the company has deteriorated.On a careful consideration of all the factors as disclosed in the balance sheets of the company we are of opinion thatmay have been the position before 1955, the company has been making profits sinceand its financial position appears stable and it is in a position to bear the burden of the gratuity scheme awarded by the tribunal to the Bombay workmen. Even if we take into account the workmen in Dum Dum (excluding the factory workers in whose case the provident fund contribution has been increased from 6 1/4 per cent to 8 per cent and who therefore stand on a different footing) we see no reason to interfere with the order of the tribunal introducing the gratuity scheme for the companys workmen in Bombay.It does appear that the total of privilege leave and casual leave as now provided by the award is higher than in the case of other concerns. But some of these concerns allow accumulation of privilege leave for more than 42 days, in some concerns it is 56 days, and in others 63 days. In some concerns privilege leave is allowed for 28 days per year. If we leave out of account sick leave, it is in our opinion impossible to interfere with award of the tribunal in view of the varying patterns that are prevalent in the comparable firms cited on behalf of the company. Further if we take sick leave into account we find that though the appellant does not allow any accumulation of it, in many concerns accumulation of sick leave up to 60 days or even 90 days is allowed.11. In view of these differences in detail in the matter of accumulation we do not think that any interference is called for in the order of the tribunal in the matter of privilege leave.Now we come to the appeal of the workmen. Their main contention is that theframed by the tribunal is low and should be further increased. The tribunal has fixed new grades which are higher than the old grades after comparison with other concerns in the region. The grades fixed by the tribunal are what may be called intermediate grades; they are lower than the highest and higher than the lowest grades in the region. No cogent reasons have been put forward on behalf of the workmen to induce us to interfere with thefixed by the tribunal after full consideration of theprevalent in that region. Next it is urged that the tribunal should have given more adjustment as demanded by the workmen. The workmen demanded one to four increments depending upon the length of service. The tribunal has however ordered that the workers should be fixed in the awarded scale according to their present pay, and if it does not coincide with any stage of the new scale, they should be stopped up to the nearest higher stage. Thereafter the workmen who have completed three years service should be given one increment and those who have completed six years of service or more, two increments. Considering the fact that some grades were in force in this company before, we see no reason to interfere with the provision made by the tribunal in the matter ofsee no reason to interfere with this finding of thein the same letter the company said that the musicians were treated as belonging to a separate category and could not be considered permanent in the same sense as members of the clerical staff. This four was said as far back as 1950, and if it was the case of the workmen that these musicians also worked constantly and regularly like the clerical staff, evidence should have been led in that connexion. Prima facie, it is hardly likely that a musician will work for all the working hours on all working days. They are required only when there is recording of songs and evidence should have been led to show that recording of songs was going on during all the working hours for all the working days. In the absence of such evidence.15. We see no reason to interfere with the award of the tribunal in this connexion. The fact that they were given some increments for some years would in our opinion make no difference in this position.The last contention on behalf of the workmen was with respect to Reva Gopal, sweeper. The tribunals finding in that connexion was that Reva Gopals, father used to work as sweeper in the company. As that man was getting old, Reva Gopal was allowed to work with him in order to learn work so that he could be appointed in his place when the father retired. The tribunal therefore rejected the demand that Reva Gopal had been working since 1947 as a regular member of the staff. It, however, recommended that the company should put him in the proper grade after the retirement of the father, when he was the only sweeper working for the company. In view of the recommendation of the tribunal we see no reason to interfere with the order of the tribunal in this behalf. | 0 | 5,314 | 3,089 | ### Instruction:
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these differences in detail in the matter of accumulation we do not think that any interference is called for in the order of the tribunal in the matter of privilege leave.Now we come to the appeal of the workmen. Their main contention is that the wage-structure framed by the tribunal is low and should be further increased. The tribunal has fixed new grades which are higher than the old grades after comparison with other concerns in the region. The grades fixed by the tribunal are what may be called intermediate grades; they are lower than the highest and higher than the lowest grades in the region. No cogent reasons have been put forward on behalf of the workmen to induce us to interfere with the wage-structure fixed by the tribunal after full consideration of the wage-structure prevalent in that region. Next it is urged that the tribunal should have given more adjustment as demanded by the workmen. The workmen demanded one to four increments depending upon the length of service. The tribunal has however ordered that the workers should be fixed in the awarded scale according to their present pay, and if it does not coincide with any stage of the new scale, they should be stopped up to the nearest higher stage. Thereafter the workmen who have completed three years service should be given one increment and those who have completed six years of service or more, two increments. Considering the fact that some grades were in force in this company before, we see no reason to interfere with the provision made by the tribunal in the matter of adjustment.12. The next contention is with respect to special allowance for sepoys, who are entrusted with the work of carrying money from the bank and who do duplicating and filing work. The tribunal has refused this demand. It has pointed out that the office of the company is situate in the heart of the city and not a long distance from the bank, and the sepoys carrying money do not run any risk. It has also pointed out that the duty of bringing money from the bank is not more strenuous than any other duty usually allotted to sepoys. Further it has pointed out that duplicating and filing work is not of such a nature as to call for any special allowance. In view of these circumstances we see no reason to interfere with the order of the tribunal rejecting special allowance for sepoys who do this work.The next point is about increasing the rate of gratuity. Learned counsel for the workmen however did not press this in view of the provident fund scheme in force in the company.13. Next the workmen contended that certain musicians should be made permanent and given grade wage-scales. The companys contention is that musicians only work part-time. Whenever there is a song to be recorded, and have thus been treated as temporary workmen and have never been treated as permanent. The first group consists of Nenkare. Nand Ram, Ebrahim and M. R. Joshi, So far as these four are concerned, the tribunal held that no evidence had been led on behalf of the workmen to show that the work of these musicians was constant and regular in the same manner as the work of clerks and sepoys. It therefore rejected the demand in respect of these four musicians. We see no reason to interfere with this finding of the tribunal.14. The other four musicians are : Kersi Mistry, Vaze, Alimohamad and Mangeshkar. In their case the demand was that they should be Permitted to join the provident fund. In their case the tribunal has stated that there was no evidence from which it can be judged that the nature of their work was constant or regular like the work of clerks and subordinate staff. The tribunal therefore rejected this demand. Learned counsel for the workmen relies in this connexion on the fact that these four have been given increments in the last few years. He also relies on a letter addressed to one of them in which it was said they they were not temporary musicians. But in the same letter the company said that the musicians were treated as belonging to a separate category and could not be considered permanent in the same sense as members of the clerical staff. This four was said as far back as 1950, and if it was the case of the workmen that these musicians also worked constantly and regularly like the clerical staff, evidence should have been led in that connexion. Prima facie, it is hardly likely that a musician will work for all the working hours on all working days. They are required only when there is recording of songs and evidence should have been led to show that recording of songs was going on during all the working hours for all the working days. In the absence of such evidence.15. We see no reason to interfere with the award of the tribunal in this connexion. The fact that they were given some increments for some years would in our opinion make no difference in this position.The last contention on behalf of the workmen was with respect to Reva Gopal, sweeper. The tribunals finding in that connexion was that Reva Gopals, father used to work as sweeper in the company. As that man was getting old, Reva Gopal was allowed to work with him in order to learn work so that he could be appointed in his place when the father retired. The tribunal therefore rejected the demand that Reva Gopal had been working since 1947 as a regular member of the staff. It, however, recommended that the company should put him in the proper grade after the retirement of the father, when he was the only sweeper working for the company. In view of the recommendation of the tribunal we see no reason to interfere with the order of the tribunal in this behalf.
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by the head office and other branches of the English company, and (secondly) the company borrows money in India for its working capital. Thus inthe head office and the Singapore branch had provided Rs. 37 lakhs as working capital and therefore the company had to borrow about Rs. 4 lakhs in India in that year. Inthe head office and the Singapore branch only provided Rs. 23 lakhs towards capital and therefore the company had to borrow about Rs. 16 lakhs in India that year. It seems therefore that the increase in borrowed money depends upon how much working capital to provided by the parent company. When such working capital is reduced by the parent company capital borrowing in India goes up. The fact that borrowing in India has gone up in the last few years therefore is not necessarily an indication that the financial position of the company has deteriorated.On a careful consideration of all the factors as disclosed in the balance sheets of the company we are of opinion thatmay have been the position before 1955, the company has been making profits sinceand its financial position appears stable and it is in a position to bear the burden of the gratuity scheme awarded by the tribunal to the Bombay workmen. Even if we take into account the workmen in Dum Dum (excluding the factory workers in whose case the provident fund contribution has been increased from 6 1/4 per cent to 8 per cent and who therefore stand on a different footing) we see no reason to interfere with the order of the tribunal introducing the gratuity scheme for the companys workmen in Bombay.It does appear that the total of privilege leave and casual leave as now provided by the award is higher than in the case of other concerns. But some of these concerns allow accumulation of privilege leave for more than 42 days, in some concerns it is 56 days, and in others 63 days. In some concerns privilege leave is allowed for 28 days per year. If we leave out of account sick leave, it is in our opinion impossible to interfere with award of the tribunal in view of the varying patterns that are prevalent in the comparable firms cited on behalf of the company. Further if we take sick leave into account we find that though the appellant does not allow any accumulation of it, in many concerns accumulation of sick leave up to 60 days or even 90 days is allowed.11. In view of these differences in detail in the matter of accumulation we do not think that any interference is called for in the order of the tribunal in the matter of privilege leave.Now we come to the appeal of the workmen. Their main contention is that theframed by the tribunal is low and should be further increased. The tribunal has fixed new grades which are higher than the old grades after comparison with other concerns in the region. The grades fixed by the tribunal are what may be called intermediate grades; they are lower than the highest and higher than the lowest grades in the region. No cogent reasons have been put forward on behalf of the workmen to induce us to interfere with thefixed by the tribunal after full consideration of theprevalent in that region. Next it is urged that the tribunal should have given more adjustment as demanded by the workmen. The workmen demanded one to four increments depending upon the length of service. The tribunal has however ordered that the workers should be fixed in the awarded scale according to their present pay, and if it does not coincide with any stage of the new scale, they should be stopped up to the nearest higher stage. Thereafter the workmen who have completed three years service should be given one increment and those who have completed six years of service or more, two increments. Considering the fact that some grades were in force in this company before, we see no reason to interfere with the provision made by the tribunal in the matter ofsee no reason to interfere with this finding of thein the same letter the company said that the musicians were treated as belonging to a separate category and could not be considered permanent in the same sense as members of the clerical staff. This four was said as far back as 1950, and if it was the case of the workmen that these musicians also worked constantly and regularly like the clerical staff, evidence should have been led in that connexion. Prima facie, it is hardly likely that a musician will work for all the working hours on all working days. They are required only when there is recording of songs and evidence should have been led to show that recording of songs was going on during all the working hours for all the working days. In the absence of such evidence.15. We see no reason to interfere with the award of the tribunal in this connexion. The fact that they were given some increments for some years would in our opinion make no difference in this position.The last contention on behalf of the workmen was with respect to Reva Gopal, sweeper. The tribunals finding in that connexion was that Reva Gopals, father used to work as sweeper in the company. As that man was getting old, Reva Gopal was allowed to work with him in order to learn work so that he could be appointed in his place when the father retired. The tribunal therefore rejected the demand that Reva Gopal had been working since 1947 as a regular member of the staff. It, however, recommended that the company should put him in the proper grade after the retirement of the father, when he was the only sweeper working for the company. In view of the recommendation of the tribunal we see no reason to interfere with the order of the tribunal in this behalf.
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Univ.Of Rajasthan Vs. Prem Lata Agarwal | authority and some non-compliance with the procedure or the manner which does not go to the root of the appointment. 33. We have already analysed the scheme of Section 3 and stated that there could not have been continuance of the service after the fixed duration as provided under Section 3(3) of the Act and such continuance is to be treated as null and void. That is how the Act operates in the field. That apart, regular selection was required to be made by a High Powered Committee as provided under Section 4. It is also pertinent to state that the Act lays down the procedure of the selection committee not leaving it to any authority to provide the same by rules or regulations. 34. In view of the aforesaid, the irresistible conclusion is that the continuance after the fixed duration goes to the root of the matter. That apart, the teachers were allowed to continue under certain compelling circumstances and by interdiction by courts. Quite apart from the above, this Court had categorically declined to accede to the prayer for regularization. In such a situation, we are afraid that the reliance placed by the High Court on paragraph 53 of the pronouncement in Uma Devi (supra) can be said to be justified. In this regard, another aspect, though an ancillary one, may be worth noting. Prem Lata Agarwal and B.K. Joshi had retired on 31.3.2001 and 31.1.2002, and by no stretch of imagination, Uma Devi (supra) lays down that the cases of any category of appointees who had retired could be regularized. We may repeat at the cost of repetition that the protection carved out in paragraph 53 in Uma Devi (supra) could not be extended to the respondents basically for three reasons, namely, (i) that the continuance of appointment after the fixed duration was null and void by operation of law; (ii) that the respondent continued in the post by intervention of the court; and (iii) that this Court had declined to regularize their services in 1998. 35. Though we have dealt with the statutory scheme, yet as the High Court has heavily relied on various regulations to extend the benefit, we think it seemly to advert to the approach of the High Court to find out whether it has appositely appreciated the purpose and purport of the regulations. The High Court, as is manifest from the orders, has made a distinction between a permanent employee and purely temporary appointee and observed that the services of the respondent could not be termed to be purely temporary or daily wages. In that context, it has referred to Regulation 22 which uses the words “regularly appointed employee”. We may reproduce the said part of the ratiocination:- “Regulation 2(ii) is applicable to all existing employees except the persons appointed on contract or part time basis; persons on deputation; purely temporary and daily wages staff; and re- employed pensioners. The case of the petitioners is not covered under any of the aforesaid four categories. Even otherwise, it cannot be said that appointments of the petitioners were made as stop gap arrangements. They have continued for more than two decades and therefore, they cannot in any manner be termed as “purely temporary”. Also the word “purely temporary” contained in regulation 2(ii)(c) is used in company with daily wages staff and there is distinction in concept of purely temporary and temporary as provided in regulation 2 and 22 of the pension scheme purely temporary is not covered whereas temporary or officiating appointment is covered under the purview of the pension regulation.” 36. The aforesaid analysis, according to us, is not correct inasmuch as the regulations do not take in their sweep an employee who is not regularly appointed. The distinction between temporary and purely temporary, as made by the High Court, does not commend acceptance as there is an inherent fallacy in the same inasmuch as Regulation 2(i) clearly provides “regularly appointed to the service of the University” which has been reiterated in Regulation 22. In fact, as we perceive, the High Court has proceeded on the basis that their services have to be treated as regular. Once it is not regular service, the infrastructure collapses as a consequence of which the superstructure is bound to founder and, hence, the distinction made by the High Court is flawed. 37. The High Court, as has been stated earlier, has pressed into service Regulation 23 and relying on the same, it has held that the services of the respondents shall be deemed to have been confirmed as in the instant cases the University has never opined that their services were not satisfactory. The language of Regulation 23 is couched in a different manner. It fundamentally deals with the computation of the period of service of an employee. That apart, Regulation 23(b) uses the words “if he is confirmed”. It is a conditional one and it relates to officiating services. Both the concepts have their own significance in service jurisprudence. The respondents were not in the officiating service and by no stretch of imagination, they could have been treated to be confirmed because the words “if he is confirmed” required an affirmative fact to be done by the University. The High Court, as we find, has applied the doctrine of deemed confirmation to the case at hand which is impermissible. In this context, we may, with profit, refer to the decision in Head Master, Lawrence School, Lovedale v. Jayanthi Raghu and another [(2012) 4 SCC 793] wherein it has been ruled thus: - “A confirmation, as is demonstrable from the language employed in the Rule, does not occur with efflux of time. As it is hedged by a condition, an affirmative or positive act is the requisite by the employer. In our considered opinion, an order of confirmation is required to be passed.” Thus analyzed, the conclusion of the High Court which also rests on the interpretation of the regulations does not commend acceptation. 38. Consequently, the | 1[ds]We have already analysed the scheme of Section 3 and stated that there could not have been continuance of the service after the fixed duration as provided under Section 3(3) of the Act and such continuance is to be treated as null and void. That is how the Act operates in the field. That apart, regular selection was required to be made by a High Powered Committee as provided under Section 4. It is also pertinent to state that the Act lays down the procedure of the selection committee not leaving it to any authority to provide the same by rules orirresistible conclusion is that the continuance after the fixed duration goes to the root of the matter. That apart, the teachers were allowed to continue under certain compelling circumstances and by interdiction by courts. Quite apart from the above, this Court had categorically declined to accede to the prayer for regularization. In such a situation, we are afraid that the reliance placed by the High Court on paragraph 53 of the pronouncement in Uma Devi (supra) can be said to be justified. In this regard, another aspect, though an ancillary one, may be worth noting. Prem Lata Agarwal and B.K. Joshi had retired on 31.3.2001 and 31.1.2002, and by no stretch of imagination, Uma Devi (supra) lays down that the cases of any category of appointees who had retired could be regularized. We may repeat at the cost of repetition that the protection carved out in paragraph 53 in Uma Devi (supra) could not be extended to the respondents basically for three reasons, namely, (i) that the continuance of appointment after the fixed duration was null and void by operation of law; (ii) that the respondent continued in the post by intervention of the court; and (iii) that this Court had declined to regularize their services inwe have dealt with the statutory scheme, yet as the High Court has heavily relied on various regulations to extend the benefit, we think it seemly to advert to the approach of the High Court to find out whether it has appositely appreciated the purpose and purport of the regulations. The High Court, as is manifest from the orders, has made a distinction between a permanent employee and purely temporary appointee and observed that the services of the respondent could not be termed to be purely temporary or daily wages. In that context, it has referred to Regulation 22 which uses the wordshe aforesaid analysis, according to us, is not correct inasmuch as the regulations do not take in their sweep an employee who is not regularly appointed. The distinction between temporary and purely temporary, as made by the High Court, does not commend acceptance as there is an inherent fallacy in the same inasmuch as Regulation 2(i) clearly providesappointed to the service of thewhich has been reiterated in Regulation 22. In fact, as we perceive, the High Court has proceeded on the basis that their services have to be treated as regular. Once it is not regular service, the infrastructure collapses as a consequence of which the superstructure is bound to founder and, hence, the distinction made by the High Court isHigh Court, as has been stated earlier, has pressed into service Regulation 23 and relying on the same, it has held that the services of the respondents shall be deemed to have been confirmed as in the instant cases the University has never opined that their services were not satisfactory. The language of Regulation 23 is couched in a different manner. It fundamentally deals with the computation of the period of service of an employee. That apart, Regulation 23(b) uses the wordsIt is a conditional one and it relates to officiating services. Both the concepts have their own significance in service jurisprudence. The respondents were not in the officiating service and by no stretch of imagination, they could have been treated to be confirmed because the wordsrequired an affirmative fact to be done by the University. The High Court, as we find, has applied the doctrine of deemed confirmation to the case at hand which is impermissible | 1 | 6,992 | 766 | ### Instruction:
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authority and some non-compliance with the procedure or the manner which does not go to the root of the appointment. 33. We have already analysed the scheme of Section 3 and stated that there could not have been continuance of the service after the fixed duration as provided under Section 3(3) of the Act and such continuance is to be treated as null and void. That is how the Act operates in the field. That apart, regular selection was required to be made by a High Powered Committee as provided under Section 4. It is also pertinent to state that the Act lays down the procedure of the selection committee not leaving it to any authority to provide the same by rules or regulations. 34. In view of the aforesaid, the irresistible conclusion is that the continuance after the fixed duration goes to the root of the matter. That apart, the teachers were allowed to continue under certain compelling circumstances and by interdiction by courts. Quite apart from the above, this Court had categorically declined to accede to the prayer for regularization. In such a situation, we are afraid that the reliance placed by the High Court on paragraph 53 of the pronouncement in Uma Devi (supra) can be said to be justified. In this regard, another aspect, though an ancillary one, may be worth noting. Prem Lata Agarwal and B.K. Joshi had retired on 31.3.2001 and 31.1.2002, and by no stretch of imagination, Uma Devi (supra) lays down that the cases of any category of appointees who had retired could be regularized. We may repeat at the cost of repetition that the protection carved out in paragraph 53 in Uma Devi (supra) could not be extended to the respondents basically for three reasons, namely, (i) that the continuance of appointment after the fixed duration was null and void by operation of law; (ii) that the respondent continued in the post by intervention of the court; and (iii) that this Court had declined to regularize their services in 1998. 35. Though we have dealt with the statutory scheme, yet as the High Court has heavily relied on various regulations to extend the benefit, we think it seemly to advert to the approach of the High Court to find out whether it has appositely appreciated the purpose and purport of the regulations. The High Court, as is manifest from the orders, has made a distinction between a permanent employee and purely temporary appointee and observed that the services of the respondent could not be termed to be purely temporary or daily wages. In that context, it has referred to Regulation 22 which uses the words “regularly appointed employee”. We may reproduce the said part of the ratiocination:- “Regulation 2(ii) is applicable to all existing employees except the persons appointed on contract or part time basis; persons on deputation; purely temporary and daily wages staff; and re- employed pensioners. The case of the petitioners is not covered under any of the aforesaid four categories. Even otherwise, it cannot be said that appointments of the petitioners were made as stop gap arrangements. They have continued for more than two decades and therefore, they cannot in any manner be termed as “purely temporary”. Also the word “purely temporary” contained in regulation 2(ii)(c) is used in company with daily wages staff and there is distinction in concept of purely temporary and temporary as provided in regulation 2 and 22 of the pension scheme purely temporary is not covered whereas temporary or officiating appointment is covered under the purview of the pension regulation.” 36. The aforesaid analysis, according to us, is not correct inasmuch as the regulations do not take in their sweep an employee who is not regularly appointed. The distinction between temporary and purely temporary, as made by the High Court, does not commend acceptance as there is an inherent fallacy in the same inasmuch as Regulation 2(i) clearly provides “regularly appointed to the service of the University” which has been reiterated in Regulation 22. In fact, as we perceive, the High Court has proceeded on the basis that their services have to be treated as regular. Once it is not regular service, the infrastructure collapses as a consequence of which the superstructure is bound to founder and, hence, the distinction made by the High Court is flawed. 37. The High Court, as has been stated earlier, has pressed into service Regulation 23 and relying on the same, it has held that the services of the respondents shall be deemed to have been confirmed as in the instant cases the University has never opined that their services were not satisfactory. The language of Regulation 23 is couched in a different manner. It fundamentally deals with the computation of the period of service of an employee. That apart, Regulation 23(b) uses the words “if he is confirmed”. It is a conditional one and it relates to officiating services. Both the concepts have their own significance in service jurisprudence. The respondents were not in the officiating service and by no stretch of imagination, they could have been treated to be confirmed because the words “if he is confirmed” required an affirmative fact to be done by the University. The High Court, as we find, has applied the doctrine of deemed confirmation to the case at hand which is impermissible. In this context, we may, with profit, refer to the decision in Head Master, Lawrence School, Lovedale v. Jayanthi Raghu and another [(2012) 4 SCC 793] wherein it has been ruled thus: - “A confirmation, as is demonstrable from the language employed in the Rule, does not occur with efflux of time. As it is hedged by a condition, an affirmative or positive act is the requisite by the employer. In our considered opinion, an order of confirmation is required to be passed.” Thus analyzed, the conclusion of the High Court which also rests on the interpretation of the regulations does not commend acceptation. 38. Consequently, the
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### Explanation:
We have already analysed the scheme of Section 3 and stated that there could not have been continuance of the service after the fixed duration as provided under Section 3(3) of the Act and such continuance is to be treated as null and void. That is how the Act operates in the field. That apart, regular selection was required to be made by a High Powered Committee as provided under Section 4. It is also pertinent to state that the Act lays down the procedure of the selection committee not leaving it to any authority to provide the same by rules orirresistible conclusion is that the continuance after the fixed duration goes to the root of the matter. That apart, the teachers were allowed to continue under certain compelling circumstances and by interdiction by courts. Quite apart from the above, this Court had categorically declined to accede to the prayer for regularization. In such a situation, we are afraid that the reliance placed by the High Court on paragraph 53 of the pronouncement in Uma Devi (supra) can be said to be justified. In this regard, another aspect, though an ancillary one, may be worth noting. Prem Lata Agarwal and B.K. Joshi had retired on 31.3.2001 and 31.1.2002, and by no stretch of imagination, Uma Devi (supra) lays down that the cases of any category of appointees who had retired could be regularized. We may repeat at the cost of repetition that the protection carved out in paragraph 53 in Uma Devi (supra) could not be extended to the respondents basically for three reasons, namely, (i) that the continuance of appointment after the fixed duration was null and void by operation of law; (ii) that the respondent continued in the post by intervention of the court; and (iii) that this Court had declined to regularize their services inwe have dealt with the statutory scheme, yet as the High Court has heavily relied on various regulations to extend the benefit, we think it seemly to advert to the approach of the High Court to find out whether it has appositely appreciated the purpose and purport of the regulations. The High Court, as is manifest from the orders, has made a distinction between a permanent employee and purely temporary appointee and observed that the services of the respondent could not be termed to be purely temporary or daily wages. In that context, it has referred to Regulation 22 which uses the wordshe aforesaid analysis, according to us, is not correct inasmuch as the regulations do not take in their sweep an employee who is not regularly appointed. The distinction between temporary and purely temporary, as made by the High Court, does not commend acceptance as there is an inherent fallacy in the same inasmuch as Regulation 2(i) clearly providesappointed to the service of thewhich has been reiterated in Regulation 22. In fact, as we perceive, the High Court has proceeded on the basis that their services have to be treated as regular. Once it is not regular service, the infrastructure collapses as a consequence of which the superstructure is bound to founder and, hence, the distinction made by the High Court isHigh Court, as has been stated earlier, has pressed into service Regulation 23 and relying on the same, it has held that the services of the respondents shall be deemed to have been confirmed as in the instant cases the University has never opined that their services were not satisfactory. The language of Regulation 23 is couched in a different manner. It fundamentally deals with the computation of the period of service of an employee. That apart, Regulation 23(b) uses the wordsIt is a conditional one and it relates to officiating services. Both the concepts have their own significance in service jurisprudence. The respondents were not in the officiating service and by no stretch of imagination, they could have been treated to be confirmed because the wordsrequired an affirmative fact to be done by the University. The High Court, as we find, has applied the doctrine of deemed confirmation to the case at hand which is impermissible
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Central Inland Water Transport Corporation Ltd Vs. The Workmen & Another | of the employees stand terminated, neither fair play nor social justice would justify the claim of the employees that they ought to be re-employed by the transferee (p. 748).That being the position in law under Section 25FF, the former employees of the company who were not absorbed by the Corporation can hardly make out a claim against the transferee Corporation either for compensation on termination of their service following the transfer or for re-employment. The claim at any rate of the employees in List II as against the Corporation under Section 25FF was clearly misconceived.19. Mr. Ray, appearing for the respondent Union, however, contended that whatever may be the position of the workers mentioned in List II, the case of the workers in List I stood on a different footing because these workers were parties to a settlement dated 25-8-1965 between the Company and its workers and under Section 18(3)(c) the settlement was binding not only on the Company but also its successor or assign - the present Corporation. Under the settlement, it was contended, the employees in List I were entitled to continue in uninterrupted service, without retrenchment, till at least December 31, 1969 and this stipulation, it was claimed, was binding on the Corporation which became the successor of the Company from the date of the transfer of the undertaking, that is to say. May 3, 1967. The further contention was that the Corporations refusal to continue the employees in service as the Corporations employees from that date was wrongful and hence it must be held, in law, that the employees continued in the service of the transferee Corporation and on that basis the Labour Court could compute the benefit under S. 33C(2).20. The several problems raised by the above contentions involve in effect a major industrial dispute, an investigation into which is quite outside the scope of Section 33C(2). Only on a detailed investigation would it be possible to determine whether the workmen had any right to a benefit and, if so, the Corporation was liable to satisfy the same. The other question which would be necessary to decide is whether the Corporation was a successor of the defunct Company. As pointed out in Anakapalla Cooperative case, 1963 Supp (1) SCR 730 = (AIR, 1963 SC 1489) already referred to, the question whether a transferee of an undertaking is a successor or not involves consideration of several factors as set out at pages 737 to 738 of the report.Such an investigation would clearly be quite outside the speedy individual remedy contemplated by Section 33C(2). Assuming further that on such investigation, the court comes to the conclusion that the Corporation is a successor, that again will not settle the matter because, as pointed out in that case, in view of Section 25FF the transferee even as a successor would be liable neither to pay compensation to nor to re-employ the workmen whose employment stood automatically terminated on the transfer. Where by operation of the law viz., Section 25FF the employment of workmen stands terminated, it may be difficult to sustain it one the basis of a term in a settlement prohibiting retrenchment, though statutorily binding on the transferee as a successor. It is perfectly arguable that such an argument would not have been available even against the transferor of the undertaking in view of S. 25FF.In any event, the question is not one which the Labour Court could be expected to deal with in a proceeding under S. 33C(2) the principal business whereunder is just computation of a benefit demonstrably existing. In short, the problems raised are appropriate for determination in an Industrial Dispute on a reference under S. 10 of the Act and cannot be regarded as merely incidental to the computation under Section 33C(2).21. If the above disputes were referred to an Industrial Tribunal under S. 10, the Tribunal would necessarily go into a detailed investigation of the alleged right of the employees to be continued in service by the Corporation. After such investigation the Tribunal may have held that they had no such right. Or it may have come to the conclusion that the Corporation had wrongfully refused to absorb the employees, in which case the Tribunal could have given relief in several forms depending on the fact and circumstances of each case. It could direct re-employment by the Corporation with or without continuity of service. It could order re-employment from any particular date found just and fair, or it could direct payment of wages fully or partially. Now, none of these things can be done by the Labour Court under Section 33C(2). All it can do is to compute the benefit if there was already an adjudication in favour of the workmen as against the Corporation or the said benefit was otherwise provided for as payable by the Corporation. A moments reflection will show that it would be impossible for the Labour Court to compute any benefit unless the Court, after considering all the matters which an Industrial Tribunal has to consider, ultimately decides upon one or the other of the several alternative reliefs which the Industrial Tribunal alone has a right to determine. By saying that the Labour Court would determine the alternative reliefs as incidental to computation, one cannot conceal the fact that it is actually exercising the function of an Industrial Tribunal. The investigation is not incidental to computation, but the computation itself is consequential upon the main finding as to the nature of relief the workmen are entitled to in an industrial disputes. The situation is the same as when a workman who is discharged wants relief, as shown in (1964) 3 SCR 140 = (AIR 1964 SC 743 ) already referred to. The discharged workmen can obtain relief by way of Section 10 only and not by an application to the Labour Court under Section 33C(2) claiming computation of the benefit on the basis that the discharge being unlawful, his services must be deemed to be continuous and uninterrupted. | 1[ds]12.It is now well-settled that a proceeding under Section 33C (2) is a proceeding, generally, in the nature of an execution proceeding wherein the Labour Court calculates the amount of money due to a workmen from his employer, or if the workman is entitled to any benefit which is capable of being computed in term of money, the Labour Court proceeds to compute the benefit in terms of money. This calculation or computation follows upon an existing right to the money or benefit, in view of its being previously adjudged, or, otherwise, duly provided for.In such cases, a determination as to whether the dismissal was unjustified would be the principal matter for adjudication, and computation of wages just consequential upon such adjudication. It would be wrong to consider the principal adjudication as incidental to the computation. Moreover, if we assume that the Labour Court had jurisdiction to make the investigation into the circumstances of the dismissal, a very anomalous situation would arise. The Labour Court after holding that the dismissal was wrongful would have no jurisdiction to direct reinstatement under Section 33C (2). And yet if its jurisdiction to compute the benefit is conceded it will be like conceding its authority to pass orders awarding wages as many times as the workman comes before it without being reinstated. Therefore, the Labour Court exercising jurisdiction under Section 33C (2) has got to be circumspect before it undertakes an investigation, reminding itself that any investigation it undertakes is, in a real sense, incidental to its computation of a benefit under an existing right, which is its principal concern.17. Bearing in mind these limitations of a Labour Court functioning under Section 33C (2) we have to approach the question before us.The old Company closed its business on May 3, 1967. The Corporation, in due course, appointed a large number of the Companys employees by fresh letters of appointments, but it could not absorb all of them. The reference was made on behalf of the employees mentioned in Lists I and II. They were in all 512. Out of these, it appears, 24 were re-employed by the Corporation later on. The rest of them virtually claimed reemployment or at least some benefits on the basis of their alleged right to be re-employed. In actual fact, however, the Corporation did not employ these workmen after the Companys undertaking was transferred to it.The scheme of transfer did not compel the Corporation to employ the workmen. Nor is there any term in the transfer agreement or the scheme which passed over to the Corporation any responsibility in respect of the workmen. Section 25 FF of the Industrial Disputes Act declares what are the rights of the workmen of an undertaking which is transferred. The right is to receive compensation as if the workmen are retrenched under Section 25F and is available only against the owners of the undertaking, that is to say, the transferor of the undertaking. The liability of the transferor to pay compensation does not arise only when (i) there has been a change of employers by reason of the transfer and (ii) the 3 sub-clauses (a) (b) and (c) of the proviso of that section come into play.Mr. Ray, appearing for the respondent Union, however, contended that whatever may be the position of the workers mentioned in List II, the case of the workers in List I stood on a different footing because these workers were parties to a settlement dated 25-8-1965 between the Company and its workers and under Section 18(3)(c) the settlement was binding not only on the Company but also its successor or assign - the present Corporation. Under the settlement, it was contended, the employees in List I were entitled to continue in uninterrupted service, without retrenchment, till at least December 31, 1969 and this stipulation, it was claimed, was binding on the Corporation which became the successor of the Company from the date of the transfer of the undertaking, that is to say. May 3, 1967. The further contention was that the Corporations refusal to continue the employees in service as the Corporations employees from that date was wrongful and hence it must be held, in law, that the employees continued in the service of the transferee Corporation and on that basis the Labour Court could compute the benefit under S. 33C(2).The several problems raised by the above contentions involve in effect a major industrial dispute, an investigation into which is quite outside the scope of Section 33C(2). Only on a detailed investigation would it be possible to determine whether the workmen had any right to a benefit and, if so, the Corporation was liable to satisfy the same. The other question which would be necessary to decide is whether the Corporation was a successor of the defunct Company. As pointed out in Anakapalla Cooperative case, 1963 Supp (1) SCR 730 = (AIR, 1963 SC 1489) already referred to, the question whether a transferee of an undertaking is a successor or not involves consideration of several factors as set out at pages 737 to 738 of the report.Such an investigation would clearly be quite outside the speedy individual remedy contemplated by Section 33C(2). Assuming further that on such investigation, the court comes to the conclusion that the Corporation is a successor, that again will not settle the matter because, as pointed out in that case, in view of Section 25FF the transferee even as a successor would be liable neither to pay compensation to nor to re-employ the workmen whose employment stood automatically terminated on the transfer. Where by operation of the law viz., Section 25FF the employment of workmen stands terminated, it may be difficult to sustain it one the basis of a term in a settlement prohibiting retrenchment, though statutorily binding on the transferee as a successor. It is perfectly arguable that such an argument would not have been available even against the transferor of the undertaking in view of S. 25FF.In any event, the question is not one which the Labour Court could be expected to deal with in a proceeding under S. 33C(2) the principal business whereunder is just computation of a benefit demonstrably existing. In short, the problems raised are appropriate for determination in an Industrial Dispute on a reference under S. 10 of the Act and cannot be regarded as merely incidental to the computation under Section 33C(2).21. If the above disputes were referred to an Industrial Tribunal under S. 10, the Tribunal would necessarily go into a detailed investigation of the alleged right of the employees to be continued in service by the Corporation. After such investigation the Tribunal may have held that they had no such right. Or it may have come to the conclusion that the Corporation had wrongfully refused to absorb the employees, in which case the Tribunal could have given relief in several forms depending on the fact and circumstances of each case. It could direct re-employment by the Corporation with or without continuity of service. It could order re-employment from any particular date found just and fair, or it could direct payment of wages fully or partially. Now, none of these things can be done by the Labour Court under Section 33C(2). All it can do is to compute the benefit if there was already an adjudication in favour of the workmen as against the Corporation or the said benefit was otherwise provided for as payable by the Corporation. A moments reflection will show that it would be impossible for the Labour Court to compute any benefit unless the Court, after considering all the matters which an Industrial Tribunal has to consider, ultimately decides upon one or the other of the several alternative reliefs which the Industrial Tribunal alone has a right to determine. By saying that the Labour Court would determine the alternative reliefs as incidental to computation, one cannot conceal the fact that it is actually exercising the function of an Industrial Tribunal. The investigation is not incidental to computation, but the computation itself is consequential upon the main finding as to the nature of relief the workmen are entitled to in an industrial disputes. The situation is the same as when a workman who is discharged wants relief, as shown in (1964) 3 SCR 140 = (AIR 1964 SC 743 ) already referred to. The discharged workmen can obtain relief by way of Section 10 only and not by an application to the Labour Court under Section 33C(2) claiming computation of the benefit on the basis that the discharge being unlawful, his services must be deemed to be continuous and uninterrupted. | 1 | 5,845 | 1,605 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
of the employees stand terminated, neither fair play nor social justice would justify the claim of the employees that they ought to be re-employed by the transferee (p. 748).That being the position in law under Section 25FF, the former employees of the company who were not absorbed by the Corporation can hardly make out a claim against the transferee Corporation either for compensation on termination of their service following the transfer or for re-employment. The claim at any rate of the employees in List II as against the Corporation under Section 25FF was clearly misconceived.19. Mr. Ray, appearing for the respondent Union, however, contended that whatever may be the position of the workers mentioned in List II, the case of the workers in List I stood on a different footing because these workers were parties to a settlement dated 25-8-1965 between the Company and its workers and under Section 18(3)(c) the settlement was binding not only on the Company but also its successor or assign - the present Corporation. Under the settlement, it was contended, the employees in List I were entitled to continue in uninterrupted service, without retrenchment, till at least December 31, 1969 and this stipulation, it was claimed, was binding on the Corporation which became the successor of the Company from the date of the transfer of the undertaking, that is to say. May 3, 1967. The further contention was that the Corporations refusal to continue the employees in service as the Corporations employees from that date was wrongful and hence it must be held, in law, that the employees continued in the service of the transferee Corporation and on that basis the Labour Court could compute the benefit under S. 33C(2).20. The several problems raised by the above contentions involve in effect a major industrial dispute, an investigation into which is quite outside the scope of Section 33C(2). Only on a detailed investigation would it be possible to determine whether the workmen had any right to a benefit and, if so, the Corporation was liable to satisfy the same. The other question which would be necessary to decide is whether the Corporation was a successor of the defunct Company. As pointed out in Anakapalla Cooperative case, 1963 Supp (1) SCR 730 = (AIR, 1963 SC 1489) already referred to, the question whether a transferee of an undertaking is a successor or not involves consideration of several factors as set out at pages 737 to 738 of the report.Such an investigation would clearly be quite outside the speedy individual remedy contemplated by Section 33C(2). Assuming further that on such investigation, the court comes to the conclusion that the Corporation is a successor, that again will not settle the matter because, as pointed out in that case, in view of Section 25FF the transferee even as a successor would be liable neither to pay compensation to nor to re-employ the workmen whose employment stood automatically terminated on the transfer. Where by operation of the law viz., Section 25FF the employment of workmen stands terminated, it may be difficult to sustain it one the basis of a term in a settlement prohibiting retrenchment, though statutorily binding on the transferee as a successor. It is perfectly arguable that such an argument would not have been available even against the transferor of the undertaking in view of S. 25FF.In any event, the question is not one which the Labour Court could be expected to deal with in a proceeding under S. 33C(2) the principal business whereunder is just computation of a benefit demonstrably existing. In short, the problems raised are appropriate for determination in an Industrial Dispute on a reference under S. 10 of the Act and cannot be regarded as merely incidental to the computation under Section 33C(2).21. If the above disputes were referred to an Industrial Tribunal under S. 10, the Tribunal would necessarily go into a detailed investigation of the alleged right of the employees to be continued in service by the Corporation. After such investigation the Tribunal may have held that they had no such right. Or it may have come to the conclusion that the Corporation had wrongfully refused to absorb the employees, in which case the Tribunal could have given relief in several forms depending on the fact and circumstances of each case. It could direct re-employment by the Corporation with or without continuity of service. It could order re-employment from any particular date found just and fair, or it could direct payment of wages fully or partially. Now, none of these things can be done by the Labour Court under Section 33C(2). All it can do is to compute the benefit if there was already an adjudication in favour of the workmen as against the Corporation or the said benefit was otherwise provided for as payable by the Corporation. A moments reflection will show that it would be impossible for the Labour Court to compute any benefit unless the Court, after considering all the matters which an Industrial Tribunal has to consider, ultimately decides upon one or the other of the several alternative reliefs which the Industrial Tribunal alone has a right to determine. By saying that the Labour Court would determine the alternative reliefs as incidental to computation, one cannot conceal the fact that it is actually exercising the function of an Industrial Tribunal. The investigation is not incidental to computation, but the computation itself is consequential upon the main finding as to the nature of relief the workmen are entitled to in an industrial disputes. The situation is the same as when a workman who is discharged wants relief, as shown in (1964) 3 SCR 140 = (AIR 1964 SC 743 ) already referred to. The discharged workmen can obtain relief by way of Section 10 only and not by an application to the Labour Court under Section 33C(2) claiming computation of the benefit on the basis that the discharge being unlawful, his services must be deemed to be continuous and uninterrupted.
### Response:
1
### Explanation:
declares what are the rights of the workmen of an undertaking which is transferred. The right is to receive compensation as if the workmen are retrenched under Section 25F and is available only against the owners of the undertaking, that is to say, the transferor of the undertaking. The liability of the transferor to pay compensation does not arise only when (i) there has been a change of employers by reason of the transfer and (ii) the 3 sub-clauses (a) (b) and (c) of the proviso of that section come into play.Mr. Ray, appearing for the respondent Union, however, contended that whatever may be the position of the workers mentioned in List II, the case of the workers in List I stood on a different footing because these workers were parties to a settlement dated 25-8-1965 between the Company and its workers and under Section 18(3)(c) the settlement was binding not only on the Company but also its successor or assign - the present Corporation. Under the settlement, it was contended, the employees in List I were entitled to continue in uninterrupted service, without retrenchment, till at least December 31, 1969 and this stipulation, it was claimed, was binding on the Corporation which became the successor of the Company from the date of the transfer of the undertaking, that is to say. May 3, 1967. The further contention was that the Corporations refusal to continue the employees in service as the Corporations employees from that date was wrongful and hence it must be held, in law, that the employees continued in the service of the transferee Corporation and on that basis the Labour Court could compute the benefit under S. 33C(2).The several problems raised by the above contentions involve in effect a major industrial dispute, an investigation into which is quite outside the scope of Section 33C(2). Only on a detailed investigation would it be possible to determine whether the workmen had any right to a benefit and, if so, the Corporation was liable to satisfy the same. The other question which would be necessary to decide is whether the Corporation was a successor of the defunct Company. As pointed out in Anakapalla Cooperative case, 1963 Supp (1) SCR 730 = (AIR, 1963 SC 1489) already referred to, the question whether a transferee of an undertaking is a successor or not involves consideration of several factors as set out at pages 737 to 738 of the report.Such an investigation would clearly be quite outside the speedy individual remedy contemplated by Section 33C(2). Assuming further that on such investigation, the court comes to the conclusion that the Corporation is a successor, that again will not settle the matter because, as pointed out in that case, in view of Section 25FF the transferee even as a successor would be liable neither to pay compensation to nor to re-employ the workmen whose employment stood automatically terminated on the transfer. Where by operation of the law viz., Section 25FF the employment of workmen stands terminated, it may be difficult to sustain it one the basis of a term in a settlement prohibiting retrenchment, though statutorily binding on the transferee as a successor. It is perfectly arguable that such an argument would not have been available even against the transferor of the undertaking in view of S. 25FF.In any event, the question is not one which the Labour Court could be expected to deal with in a proceeding under S. 33C(2) the principal business whereunder is just computation of a benefit demonstrably existing. In short, the problems raised are appropriate for determination in an Industrial Dispute on a reference under S. 10 of the Act and cannot be regarded as merely incidental to the computation under Section 33C(2).21. If the above disputes were referred to an Industrial Tribunal under S. 10, the Tribunal would necessarily go into a detailed investigation of the alleged right of the employees to be continued in service by the Corporation. After such investigation the Tribunal may have held that they had no such right. Or it may have come to the conclusion that the Corporation had wrongfully refused to absorb the employees, in which case the Tribunal could have given relief in several forms depending on the fact and circumstances of each case. It could direct re-employment by the Corporation with or without continuity of service. It could order re-employment from any particular date found just and fair, or it could direct payment of wages fully or partially. Now, none of these things can be done by the Labour Court under Section 33C(2). All it can do is to compute the benefit if there was already an adjudication in favour of the workmen as against the Corporation or the said benefit was otherwise provided for as payable by the Corporation. A moments reflection will show that it would be impossible for the Labour Court to compute any benefit unless the Court, after considering all the matters which an Industrial Tribunal has to consider, ultimately decides upon one or the other of the several alternative reliefs which the Industrial Tribunal alone has a right to determine. By saying that the Labour Court would determine the alternative reliefs as incidental to computation, one cannot conceal the fact that it is actually exercising the function of an Industrial Tribunal. The investigation is not incidental to computation, but the computation itself is consequential upon the main finding as to the nature of relief the workmen are entitled to in an industrial disputes. The situation is the same as when a workman who is discharged wants relief, as shown in (1964) 3 SCR 140 = (AIR 1964 SC 743 ) already referred to. The discharged workmen can obtain relief by way of Section 10 only and not by an application to the Labour Court under Section 33C(2) claiming computation of the benefit on the basis that the discharge being unlawful, his services must be deemed to be continuous and uninterrupted.
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Venkatesh Constrn.Co Vs. Karnataka Vidyut Karkhane Ltd.(Kavika) | by the appellant seeking permission to continue the work, there was no response from the respondent. Absence of any response on the part of the respondent, only indicates that the respondent was aware of the change of nature of work. 13. PW4-Naresh Kumar-architect had stated about his visit to the work site at the request of the respondent for preparing the design after the masonry wall for the length of hundred metres was over and that he gave the revised design and PW-4 estimated the cost of the work as per the revised design at rupees twenty lakhs. PW-4 was engaged to prepare the design suitable to the soil strength only because of the change in the nature of the work. Otherwise the need for engaging PW-4 for preparing new design would not have arisen if the earlier design would have been suitable. On appreciation of evidence, trial court rightly answered issue No.2 in favour of the appellant that the respondent asked the appellant to stop the running work for want of revised design. 14. The High Court took note of clause 11 of the contract dated 12.02.1992 which states that the contractor is not authorized to do any extra work or make any alteration without the previous consent in writing of the respondent. High Court set aside the findings recorded by the trial court holding that the parties are governed by the terms of the written contract and any variation with the terms of the agreement was required to be done strictly adhering to clause 11 of the contract. While saying so, the High Court brushed aside the admission by DW-1 that extra work was done by the appellant and the High Court was not right in ignoring the same to hold that the admission of DW-1 cannot have the effect on the contractual obligation of the parties. It is to be pointed out that the respondent has not raised the plea relying upon clause 11 of the contract. Further, by perusal of Ex.P2 dated 20.12.1991, a letter addressed by the appellant to the respondent informing the respondent about the extra work which needs to be done and the fact that PW-4 was engaged by the respondent to prepare the new design for the work, it is evident that the respondent was aware of the fact of the change in the nature of work and that there is alteration in the work done by the appellant. When the evidence and material clearly depict the change of nature of work involved and when the extra work to be done was also admitted by DW-1, parties cannot be expected to go for a revised agreement/contract. Moreover, having regard to the fact that the work was to be completed within a specified time-frame, the parties cannot be expected to go for a second round of negotiation and reframe the terms and conditions of the work. While so, the High Court was not right in placing reliance upon clause 11 of the contract to reverse the findings of fact recorded by the trial court. 15. So far as the claim of the appellant that it suffered loss due to loss of stock of material, PWs 1 and 3 have stated that they have stocked the material of worth about rupees six lakhs at the work site. The appellant also produced several letters (Exs. P5, P6 and P7) by which the appellant has informed the respondent that there was no progress in the work and that the building material are lying waste. Apart from these letters, the appellant has also produced photographs (Exs. P18 to P28) to substantiate their claim that the building material like bricks, size stones and other materials were stocked at the work site. Even though the appellant has claimed rupees six lakhs on account of loss of the material stocked, as the appellant had not produced any bill relating to purchase of material nor produced authentic trip sheet, the trial court rightly awarded rupees one lakh only on account of loss of building material. As noticed earlier, based on the evidence of PWs 1 and 3 and other documents, the trial court has awarded amount on various other heads viz., the amount payable in respect of:- (i) extra earth work; (ii) embankment work; (iii) extra soiling work; (iv) extra bed concrete work and (v) extra stone masonry work. The amount so awarded by the trial court under various heads is based on evidence and material on record. 16. The Appellate Court may not interfere with the finding of the trial court unless the finding recorded by the trial court is erroneous or the trial court ignored the evidence on record. The High Court reversed the decree passed by the trial court without discussing oral and documentary evidence and several grounds raised before the trial court. The High Court veered away from the main issue and went on to elaborate on the law of arbitration and the mode of setting aside the arbitral award under Section 34 of the Arbitration Act, which in our view, was not warranted. Without considering the oral and documentary evidence, the High Court erred in interfering with the factual findings recorded by the trial court and the impugned judgment is liable to be set aside.17. Trial court directed the respondent to pay a sum of Rs.3,23,000/- to the appellant with interest at the rate of 12% per annum from the date of suit till the date of realization. To award interest from the date of suit to date of decree and from the date of decree till the date of realization is entirely discretionary. The terms of the contract do not specify any rate of interest. In the facts and circumstances of the case and having regard to the fact that the matter is pending for over two decades and in the interest of justice, it is appropriate that the interest of 12% per annum awarded by the trial court is reduced to 6% per annum. | 1[ds]14. The High Court took note of clause 11 of the contract dated 12.02.1992 which states that the contractor is not authorized to do any extra work or make any alteration without the previous consent in writing of the respondent. High Court set aside the findings recorded by the trial court holding that the parties are governed by the terms of the written contract and any variation with the terms of the agreement was required to be done strictly adhering to clause 11 of the contract. While saying so, the High Court brushed aside the admission by DW-1 that extra work was done by the appellant and the High Court was not right in ignoring the same to hold that the admission of DW-1 cannot have the effect on the contractual obligation of the parties. It is to be pointed out that the respondent has not raised the plea relying upon clause 11 of the contract. Further, by perusal of Ex.P2 dated 20.12.1991, a letter addressed by the appellant to the respondent informing the respondent about the extra work which needs to be done and the fact that PW-4 was engaged by the respondent to prepare the new design for the work, it is evident that the respondent was aware of the fact of the change in the nature of work and that there is alteration in the work done by the appellant. When the evidence and material clearly depict the change of nature of work involved and when the extra work to be done was also admitted by DW-1, parties cannot be expected to go for a revised agreement/contract. Moreover, having regard to the fact that the work was to be completed within a specified time-frame, the parties cannot be expected to go for a second round of negotiation and reframe the terms and conditions of the work. While so, the High Court was not right in placing reliance upon clause 11 of the contract to reverse the findings of fact recorded by the trial court.The Appellate Court may not interfere with the finding of the trial court unless the finding recorded by the trial court is erroneous or the trial court ignored the evidence on record. The High Court reversed the decree passed by the trial court without discussing oral and documentary evidence and several grounds raised before the trial court. The High Court veered away from the main issue and went on to elaborate on the law of arbitration and the mode of setting aside the arbitral award under Section 34 of the Arbitration Act, which in our view, was not warranted. Without considering the oral and documentary evidence, the High Court erred in interfering with the factual findings recorded by the trial court and the impugned judgment is liable to be set aside.17. Trial court directed the respondent to pay a sum of Rs.3,23,000/- to the appellant with interest at the rate of 12% per annum from the date of suit till the date of realization. To award interest from the date of suit to date of decree and from the date of decree till the date of realization is entirely discretionary. The terms of the contract do not specify any rate of interest. In the facts and circumstances of the case and having regard to the fact that the matter is pending for over two decades and in the interest of justice, it is appropriate that the interest of 12% per annum awarded by the trial court is reduced to 6% per annum.So far as the claim of the appellant that it suffered loss due to loss of stock of material, PWs 1 and 3 have stated that they have stocked the material of worth about rupees six lakhs at the work site. The appellant also produced several letters (Exs. P5, P6 and P7) by which the appellant has informed the respondent that there was no progress in the work and that the building material are lying waste. Apart from these letters, the appellant has also produced photographs (Exs. P18 to P28) to substantiate their claim that the building material like bricks, size stones and other materials were stocked at the work site. Even though the appellant has claimed rupees six lakhs on account of loss of the material stocked, as the appellant had not produced any bill relating to purchase of material nor produced authentic trip sheet, the trial court rightly awarded rupees one lakh only on account of loss of building material. As noticed earlier, based on the evidence of PWs 1 and 3 and other documents, the trial court has awarded amount on various other heads viz., the amount payable in respect of:- (i) extra earth work; (ii) embankment work; (iii) extra soiling work; (iv) extra bed concrete work and (v) extra stone masonry work. The amount so awarded by the trial court under various heads is based on evidence and material on record.e Appellate Court may not interfere with the finding of the trial court unless the finding recorded by the trial court is erroneous or the trial court ignored the evidence on record. The High Court reversed the decree passed by the trial court without discussing oral and documentary evidence and several grounds raised before the trial court. The High Court veered away from the main issue and went on to elaborate on the law of arbitration and the mode of setting aside the arbitral award under Section 34 of the Arbitration Act, which in our view, was not warranted. Without considering the oral and documentary evidence, the High Court erred in interfering with the factual findings recorded by the trial court and the impugned judgment is liable to be set aside.Trial court directed the respondent to pay a sum of Rs.3,23,000/- to the appellant with interest at the rate of 12% per annum from the date of suit till the date of realization. To award interest from the date of suit to date of decree and from the date of decree till the date of realization is entirely discretionary. The terms of the contract do not specify any rate of interest. In the facts and circumstances of the case and having regard to the fact that the matter is pending for over two decades and in the interest of justice, it is appropriate that the interest of 12% per annum awarded by the trial court is reduced to 6% per annum. | 1 | 3,033 | 1,158 | ### 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:
by the appellant seeking permission to continue the work, there was no response from the respondent. Absence of any response on the part of the respondent, only indicates that the respondent was aware of the change of nature of work. 13. PW4-Naresh Kumar-architect had stated about his visit to the work site at the request of the respondent for preparing the design after the masonry wall for the length of hundred metres was over and that he gave the revised design and PW-4 estimated the cost of the work as per the revised design at rupees twenty lakhs. PW-4 was engaged to prepare the design suitable to the soil strength only because of the change in the nature of the work. Otherwise the need for engaging PW-4 for preparing new design would not have arisen if the earlier design would have been suitable. On appreciation of evidence, trial court rightly answered issue No.2 in favour of the appellant that the respondent asked the appellant to stop the running work for want of revised design. 14. The High Court took note of clause 11 of the contract dated 12.02.1992 which states that the contractor is not authorized to do any extra work or make any alteration without the previous consent in writing of the respondent. High Court set aside the findings recorded by the trial court holding that the parties are governed by the terms of the written contract and any variation with the terms of the agreement was required to be done strictly adhering to clause 11 of the contract. While saying so, the High Court brushed aside the admission by DW-1 that extra work was done by the appellant and the High Court was not right in ignoring the same to hold that the admission of DW-1 cannot have the effect on the contractual obligation of the parties. It is to be pointed out that the respondent has not raised the plea relying upon clause 11 of the contract. Further, by perusal of Ex.P2 dated 20.12.1991, a letter addressed by the appellant to the respondent informing the respondent about the extra work which needs to be done and the fact that PW-4 was engaged by the respondent to prepare the new design for the work, it is evident that the respondent was aware of the fact of the change in the nature of work and that there is alteration in the work done by the appellant. When the evidence and material clearly depict the change of nature of work involved and when the extra work to be done was also admitted by DW-1, parties cannot be expected to go for a revised agreement/contract. Moreover, having regard to the fact that the work was to be completed within a specified time-frame, the parties cannot be expected to go for a second round of negotiation and reframe the terms and conditions of the work. While so, the High Court was not right in placing reliance upon clause 11 of the contract to reverse the findings of fact recorded by the trial court. 15. So far as the claim of the appellant that it suffered loss due to loss of stock of material, PWs 1 and 3 have stated that they have stocked the material of worth about rupees six lakhs at the work site. The appellant also produced several letters (Exs. P5, P6 and P7) by which the appellant has informed the respondent that there was no progress in the work and that the building material are lying waste. Apart from these letters, the appellant has also produced photographs (Exs. P18 to P28) to substantiate their claim that the building material like bricks, size stones and other materials were stocked at the work site. Even though the appellant has claimed rupees six lakhs on account of loss of the material stocked, as the appellant had not produced any bill relating to purchase of material nor produced authentic trip sheet, the trial court rightly awarded rupees one lakh only on account of loss of building material. As noticed earlier, based on the evidence of PWs 1 and 3 and other documents, the trial court has awarded amount on various other heads viz., the amount payable in respect of:- (i) extra earth work; (ii) embankment work; (iii) extra soiling work; (iv) extra bed concrete work and (v) extra stone masonry work. The amount so awarded by the trial court under various heads is based on evidence and material on record. 16. The Appellate Court may not interfere with the finding of the trial court unless the finding recorded by the trial court is erroneous or the trial court ignored the evidence on record. The High Court reversed the decree passed by the trial court without discussing oral and documentary evidence and several grounds raised before the trial court. The High Court veered away from the main issue and went on to elaborate on the law of arbitration and the mode of setting aside the arbitral award under Section 34 of the Arbitration Act, which in our view, was not warranted. Without considering the oral and documentary evidence, the High Court erred in interfering with the factual findings recorded by the trial court and the impugned judgment is liable to be set aside.17. Trial court directed the respondent to pay a sum of Rs.3,23,000/- to the appellant with interest at the rate of 12% per annum from the date of suit till the date of realization. To award interest from the date of suit to date of decree and from the date of decree till the date of realization is entirely discretionary. The terms of the contract do not specify any rate of interest. In the facts and circumstances of the case and having regard to the fact that the matter is pending for over two decades and in the interest of justice, it is appropriate that the interest of 12% per annum awarded by the trial court is reduced to 6% per annum.
### Response:
1
### Explanation:
agreement was required to be done strictly adhering to clause 11 of the contract. While saying so, the High Court brushed aside the admission by DW-1 that extra work was done by the appellant and the High Court was not right in ignoring the same to hold that the admission of DW-1 cannot have the effect on the contractual obligation of the parties. It is to be pointed out that the respondent has not raised the plea relying upon clause 11 of the contract. Further, by perusal of Ex.P2 dated 20.12.1991, a letter addressed by the appellant to the respondent informing the respondent about the extra work which needs to be done and the fact that PW-4 was engaged by the respondent to prepare the new design for the work, it is evident that the respondent was aware of the fact of the change in the nature of work and that there is alteration in the work done by the appellant. When the evidence and material clearly depict the change of nature of work involved and when the extra work to be done was also admitted by DW-1, parties cannot be expected to go for a revised agreement/contract. Moreover, having regard to the fact that the work was to be completed within a specified time-frame, the parties cannot be expected to go for a second round of negotiation and reframe the terms and conditions of the work. While so, the High Court was not right in placing reliance upon clause 11 of the contract to reverse the findings of fact recorded by the trial court.The Appellate Court may not interfere with the finding of the trial court unless the finding recorded by the trial court is erroneous or the trial court ignored the evidence on record. The High Court reversed the decree passed by the trial court without discussing oral and documentary evidence and several grounds raised before the trial court. The High Court veered away from the main issue and went on to elaborate on the law of arbitration and the mode of setting aside the arbitral award under Section 34 of the Arbitration Act, which in our view, was not warranted. Without considering the oral and documentary evidence, the High Court erred in interfering with the factual findings recorded by the trial court and the impugned judgment is liable to be set aside.17. Trial court directed the respondent to pay a sum of Rs.3,23,000/- to the appellant with interest at the rate of 12% per annum from the date of suit till the date of realization. To award interest from the date of suit to date of decree and from the date of decree till the date of realization is entirely discretionary. The terms of the contract do not specify any rate of interest. In the facts and circumstances of the case and having regard to the fact that the matter is pending for over two decades and in the interest of justice, it is appropriate that the interest of 12% per annum awarded by the trial court is reduced to 6% per annum.So far as the claim of the appellant that it suffered loss due to loss of stock of material, PWs 1 and 3 have stated that they have stocked the material of worth about rupees six lakhs at the work site. The appellant also produced several letters (Exs. P5, P6 and P7) by which the appellant has informed the respondent that there was no progress in the work and that the building material are lying waste. Apart from these letters, the appellant has also produced photographs (Exs. P18 to P28) to substantiate their claim that the building material like bricks, size stones and other materials were stocked at the work site. Even though the appellant has claimed rupees six lakhs on account of loss of the material stocked, as the appellant had not produced any bill relating to purchase of material nor produced authentic trip sheet, the trial court rightly awarded rupees one lakh only on account of loss of building material. As noticed earlier, based on the evidence of PWs 1 and 3 and other documents, the trial court has awarded amount on various other heads viz., the amount payable in respect of:- (i) extra earth work; (ii) embankment work; (iii) extra soiling work; (iv) extra bed concrete work and (v) extra stone masonry work. The amount so awarded by the trial court under various heads is based on evidence and material on record.e Appellate Court may not interfere with the finding of the trial court unless the finding recorded by the trial court is erroneous or the trial court ignored the evidence on record. The High Court reversed the decree passed by the trial court without discussing oral and documentary evidence and several grounds raised before the trial court. The High Court veered away from the main issue and went on to elaborate on the law of arbitration and the mode of setting aside the arbitral award under Section 34 of the Arbitration Act, which in our view, was not warranted. Without considering the oral and documentary evidence, the High Court erred in interfering with the factual findings recorded by the trial court and the impugned judgment is liable to be set aside.Trial court directed the respondent to pay a sum of Rs.3,23,000/- to the appellant with interest at the rate of 12% per annum from the date of suit till the date of realization. To award interest from the date of suit to date of decree and from the date of decree till the date of realization is entirely discretionary. The terms of the contract do not specify any rate of interest. In the facts and circumstances of the case and having regard to the fact that the matter is pending for over two decades and in the interest of justice, it is appropriate that the interest of 12% per annum awarded by the trial court is reduced to 6% per annum.
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Union Of India & Anr Vs. K. G. Khosla & Co. (P) Ltd. & Others | the Court declined to do so. In a recent decision of this Court in Oil India Ltd.v. Superintendent of Taxes and others1976 (3) SCR 779 it was observed by Mathew, J., who spoke for the Court, that : (1) a sale which occasions movement of goods from one State to another is a sale in the course of inter-State trade, no matter in which State the property in the goods passes; (2) it is not necessary that the sale must precede the inter-State movement in order that the sale may be deemed to have occasioned such movement: and (3) it is also not necessary for a sale to be deemed to have taken place in the course of inter-State trade or commerce, that the covenant regarding inter-State movement must be specified in the contract itself. It would be enoueh if the movement was in pursuance of and incidental to the contact of sale, (page 801). The learned Judge added that it was held in a number of cases by the Supreme Court that if the movement of goods from one State to another is the result of a covenant or an incident of the contract of sale, then the sale is an inter-State sale. 14. The decision in Tata Engineering & Locomotive Co. Limited v.The Assistant Commissioner of Commercial Taxes and Another 1970 (3) SCR 862 on which the Union of India relies, procceeds on a different consideration and is distinguishable. The appellant therein carried on the business of manufacturing trucks in Jamshedpur in the State of Bihar. The sales office of the appellant in Bombay used to instruct the Jamshedpur factory to transfer stocks of vehicles to the stockyards in various States after taking into account the production schedule and requirement of customers in different States. The stocks available in the stockyards were distributed from time to time to dealers. The transfer of the vehicles from the factory to the various stockyards was a continuous process and was not related to the requirement of any particular customer. It was the stockyard in charge who appropriated the reouired number of vehicles to the contract of sale out of the stocks available with him. Until such appropriation of vehicles was made, it was open to company to allot any vehicle to any purchaser or to transfer the vehicles from the stockyard in one State to a stockyard in another State. At page 870 of the report, a statement occurs in the judg-ment of Grover J., that it was not possible to comprehend how in the above situation it could be held that ?the movement of the vehicles from the works to the stockvards was occasioned by and covenant or incident of the contract of sale.? This statement is relied upon by the Union of India in support of its contention that the contract of sale must itself provide for the movement of goods from one State to another. We are unable to read any such implication in the observation cited above. At page 866 of the report, after referring to certain decisions) the Court observed that the principle admits of no doubt, according to the decisions of this Court, that the movement of goods ?must be the result of a covenant or incident of the contract of sale.? 15. This decision may be usefully contrasted with another decision bet-ween the same parties, which is reported in State of Bihar and Anr.v. Tata Engineering and Locomotive Co. Ltd.1971 (2) SCR 849. In that case the turnover in dispute related to the sales made by the company to its dealers of trucks for being sold in the territories assigned to them under the dealership agreements. Each dealer was assigned an exclusive territory and under the agreement between the dealers and the company, they had to place their indents, pay the price of the goods to be purchased and obtain delivery orders from the Bombay office of the company. In pursuance of such delivery orders trucks used to be delivered in the State of Bihar to be taken over to the territories as-signed to the dealers. Since under the terms of the contracts of sale the pur-chasers were required to remove the goods from the State of Bihar to other States, no question arose in the case whether it was or was not necessary for a sale to be regarded as an inter-State sale that the contract must itself provide for the movement of goods from one State to another. If a contract of sale contains a stipulation for such movement, the sale would, of course, be an inter-State sale. But it can also be an inter-State sale, even if, the contract of sale does not itself provide for the movement of goods from one State to another but such movement is the result of a covenant in the contract of sale or is an incident of that contract. 16. The decisions to which we have referred above show that in order that a sale may be regarded as an inter-State sale, it is immaterial whether the pro-perty in the goods passes in one State or another. The question as regards the na-ture of the sale, that is, whether it is an inter-State sale or an inter-State sale, does not depend upon the circumstances as to in which State the property in the goods passes. It may pass in either State and yet the sale can be an inter-State sale. 17. The High Court was, therefore, right in holding that the sales in question are inter-State sales and that the turnover of sales is assessable to sales tax under the Central Sales Tax Act, 1956 at the instance of the Sales Tax auth-orities at Faridabad. The amount of tax which respondent has wrongly paid to the Sales Tax authorities at Delhi on such inter-State sales from 1.4.1961 to 30.9.1965 shall have to be transferred by the Sales Tax authorities at Delhi to the Sales Tax authorities at Faridabad as directed by the High Court. | 0[ds]There is a proviso to Section 9 (1) to which it is unnecessary to refer since it has no applicationIt is only if a sale occasions the movement of goods from one State to another that it can be deemed to have taken place in the course of inter-State trade or commerce within the meaning of Section 3 (a) of the Act. Clause (b) of Section 3 is not relevant for our purpose12. It is clear from these averments that goods were manufactured by respondent 1 in its factory at Faridabad, Haryana, in pursuance of specific orders received by its head office at Delhi. The contracts of sales were made at Delhi and in pursuance of those contracts, goods were manufactured at Faridabad according to specifications mentioned in the contracts. This there-fore, is not that type of case in which goods are manufactured in the general course of business for being sold as and when offers are received by the manu-facturer for their purchase. Contracts of sales were finalised in the instant case at Delhi and specific goods were manufactured at Faridabad in pursuance of those contracts. Those were ?future goods? within the meaning of Section 2 (6) of the Sale of Goods Act, 193013. It is true that in the instant case the contracts of sales did not require or provide that goods should be moved from Faridabad to Delhi. But it is not true to say that for the purposes of Section 3(a) of the Act it is necessary that the contract of sale must itself provide for and cause the movement of goods or that the move-ment of goods must be occasioned specifically in accordance with the terms of the contract of sale16. The decisions to which we have referred above show that in order that a sale may be regarded as an inter-State sale, it is immaterial whether the pro-perty in the goods passes in one State or another. The question as regards the na-ture of the sale, that is, whether it is an inter-State sale or an inter-State sale, does not depend upon the circumstances as to in which State the property in the goods passes. It may pass in either State and yet the sale can be an inter-State sale17. The High Court was, therefore, right in holding that the sales in question are inter-State sales and that the turnover of sales is assessable to sales tax under the Central Sales Tax Act, 1956 at the instance of the Sales Tax auth-orities at Faridabad. The amount of tax which respondent has wrongly paid to the Sales Tax authorities at Delhi on such inter-State sales from 1.4.1961 to 30.9.1965 shall have to be transferred by the Sales Tax authorities at Delhi to the Sales Tax authorities at Faridabad as directed by the High Court. | 0 | 3,521 | 512 | ### 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:
the Court declined to do so. In a recent decision of this Court in Oil India Ltd.v. Superintendent of Taxes and others1976 (3) SCR 779 it was observed by Mathew, J., who spoke for the Court, that : (1) a sale which occasions movement of goods from one State to another is a sale in the course of inter-State trade, no matter in which State the property in the goods passes; (2) it is not necessary that the sale must precede the inter-State movement in order that the sale may be deemed to have occasioned such movement: and (3) it is also not necessary for a sale to be deemed to have taken place in the course of inter-State trade or commerce, that the covenant regarding inter-State movement must be specified in the contract itself. It would be enoueh if the movement was in pursuance of and incidental to the contact of sale, (page 801). The learned Judge added that it was held in a number of cases by the Supreme Court that if the movement of goods from one State to another is the result of a covenant or an incident of the contract of sale, then the sale is an inter-State sale. 14. The decision in Tata Engineering & Locomotive Co. Limited v.The Assistant Commissioner of Commercial Taxes and Another 1970 (3) SCR 862 on which the Union of India relies, procceeds on a different consideration and is distinguishable. The appellant therein carried on the business of manufacturing trucks in Jamshedpur in the State of Bihar. The sales office of the appellant in Bombay used to instruct the Jamshedpur factory to transfer stocks of vehicles to the stockyards in various States after taking into account the production schedule and requirement of customers in different States. The stocks available in the stockyards were distributed from time to time to dealers. The transfer of the vehicles from the factory to the various stockyards was a continuous process and was not related to the requirement of any particular customer. It was the stockyard in charge who appropriated the reouired number of vehicles to the contract of sale out of the stocks available with him. Until such appropriation of vehicles was made, it was open to company to allot any vehicle to any purchaser or to transfer the vehicles from the stockyard in one State to a stockyard in another State. At page 870 of the report, a statement occurs in the judg-ment of Grover J., that it was not possible to comprehend how in the above situation it could be held that ?the movement of the vehicles from the works to the stockvards was occasioned by and covenant or incident of the contract of sale.? This statement is relied upon by the Union of India in support of its contention that the contract of sale must itself provide for the movement of goods from one State to another. We are unable to read any such implication in the observation cited above. At page 866 of the report, after referring to certain decisions) the Court observed that the principle admits of no doubt, according to the decisions of this Court, that the movement of goods ?must be the result of a covenant or incident of the contract of sale.? 15. This decision may be usefully contrasted with another decision bet-ween the same parties, which is reported in State of Bihar and Anr.v. Tata Engineering and Locomotive Co. Ltd.1971 (2) SCR 849. In that case the turnover in dispute related to the sales made by the company to its dealers of trucks for being sold in the territories assigned to them under the dealership agreements. Each dealer was assigned an exclusive territory and under the agreement between the dealers and the company, they had to place their indents, pay the price of the goods to be purchased and obtain delivery orders from the Bombay office of the company. In pursuance of such delivery orders trucks used to be delivered in the State of Bihar to be taken over to the territories as-signed to the dealers. Since under the terms of the contracts of sale the pur-chasers were required to remove the goods from the State of Bihar to other States, no question arose in the case whether it was or was not necessary for a sale to be regarded as an inter-State sale that the contract must itself provide for the movement of goods from one State to another. If a contract of sale contains a stipulation for such movement, the sale would, of course, be an inter-State sale. But it can also be an inter-State sale, even if, the contract of sale does not itself provide for the movement of goods from one State to another but such movement is the result of a covenant in the contract of sale or is an incident of that contract. 16. The decisions to which we have referred above show that in order that a sale may be regarded as an inter-State sale, it is immaterial whether the pro-perty in the goods passes in one State or another. The question as regards the na-ture of the sale, that is, whether it is an inter-State sale or an inter-State sale, does not depend upon the circumstances as to in which State the property in the goods passes. It may pass in either State and yet the sale can be an inter-State sale. 17. The High Court was, therefore, right in holding that the sales in question are inter-State sales and that the turnover of sales is assessable to sales tax under the Central Sales Tax Act, 1956 at the instance of the Sales Tax auth-orities at Faridabad. The amount of tax which respondent has wrongly paid to the Sales Tax authorities at Delhi on such inter-State sales from 1.4.1961 to 30.9.1965 shall have to be transferred by the Sales Tax authorities at Delhi to the Sales Tax authorities at Faridabad as directed by the High Court.
### Response:
0
### Explanation:
There is a proviso to Section 9 (1) to which it is unnecessary to refer since it has no applicationIt is only if a sale occasions the movement of goods from one State to another that it can be deemed to have taken place in the course of inter-State trade or commerce within the meaning of Section 3 (a) of the Act. Clause (b) of Section 3 is not relevant for our purpose12. It is clear from these averments that goods were manufactured by respondent 1 in its factory at Faridabad, Haryana, in pursuance of specific orders received by its head office at Delhi. The contracts of sales were made at Delhi and in pursuance of those contracts, goods were manufactured at Faridabad according to specifications mentioned in the contracts. This there-fore, is not that type of case in which goods are manufactured in the general course of business for being sold as and when offers are received by the manu-facturer for their purchase. Contracts of sales were finalised in the instant case at Delhi and specific goods were manufactured at Faridabad in pursuance of those contracts. Those were ?future goods? within the meaning of Section 2 (6) of the Sale of Goods Act, 193013. It is true that in the instant case the contracts of sales did not require or provide that goods should be moved from Faridabad to Delhi. But it is not true to say that for the purposes of Section 3(a) of the Act it is necessary that the contract of sale must itself provide for and cause the movement of goods or that the move-ment of goods must be occasioned specifically in accordance with the terms of the contract of sale16. The decisions to which we have referred above show that in order that a sale may be regarded as an inter-State sale, it is immaterial whether the pro-perty in the goods passes in one State or another. The question as regards the na-ture of the sale, that is, whether it is an inter-State sale or an inter-State sale, does not depend upon the circumstances as to in which State the property in the goods passes. It may pass in either State and yet the sale can be an inter-State sale17. The High Court was, therefore, right in holding that the sales in question are inter-State sales and that the turnover of sales is assessable to sales tax under the Central Sales Tax Act, 1956 at the instance of the Sales Tax auth-orities at Faridabad. The amount of tax which respondent has wrongly paid to the Sales Tax authorities at Delhi on such inter-State sales from 1.4.1961 to 30.9.1965 shall have to be transferred by the Sales Tax authorities at Delhi to the Sales Tax authorities at Faridabad as directed by the High Court.
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Larsen & Toubro Ltd Vs. State Of Jharkhand | of Section 19 of the State Act, it would be sufficient to refer to a judgment of this Court in Anandjiharidas & Co. v. S.P. Kasture AIR 1968 SC 565 wherein it was held that a fact which was already there in records doesnt by its mere availability becomes an item of information till the time it has been brought to the notice of assessing authority. Hence, the audit objections were well within the parameters of being construed as `information for the purpose of section 19 of the State Act. 27. The expression `information means instruction or knowledge derived from an external source concerning facts or parties or as to law relating to and/or after bearing on the assessment. We are of the clear view that on the basis of information received and if the assessing officer is satisfied that reasonable ground exists to believe, then in that case the power of the assessing authority extends to re-opening of assessment, if for any reason, the whole or any part of the turnover of the business of the dealer has escaped assessment or has been under assessed and the assessment in such a case would be valid even if the materials, on the basis of which the earlier assessing authority passed the order and the successor assessing authority proceeded, were same. The question still is as to whether in the present case, the assessing authority was satisfied or not. 28. At this stage, we deem it appropriate to reproduce the matter dealt with between the audit team and the assessing authority which led to the initiation of re-assessment proceedings under Section 19 of the State Act which is as under:-chart The dealer had furnished the statement of material utilized in the contract work and goods consumed for own use. Scrutiny of assessment order revealed that the dealer was allowed exemption on Rs. 3,12,47,916.00 being the amount of goods consumed or used itself in course of execution of work, details of which were discussed in the assessment order. It had been stated by the assessing authority that such goods were purchased on payment of tax, but no declaration in form IX C along with other evidences were kept on record. Production of declaration form in IX C was mandatory one and hence the claim was not allowable. The entire materials received from outside the State or purchased within the State without payment of tax was normally leviable to tax at specified rates under section 12 of B.F. Act 1981. Under section 4 of the Act ibid, every dealer liable to pay under section 3 of the Act, if otherwise disposes the goods in any manner other than by way of sale in the State was also liable to purchase tax. In this connection a reference to the judgement of Honble Karnataka High Court and duly confirmed by the Honble Supreme Court in the case of Chevvabbo v. State of Karnataka (1986) 62 STG 194 Se) is invited ....... Disposal of goods in this section (Similar to those Karnataka) was clarified as transfer of title over the goods otherwise than sale, included gifts, own use or consumption section 4 of the Act (B.F. Act) is similar to section 7 A of Tamil Nadu General Court in the case of the State of Tamil Nadu v. M.K. Kandaswami (1975 36 STC 191 ) where it was held that (1) this Section is a separate charging provision in the Act and is not subject to section 3 and (ii) brings to tax goods, the sale of which would normally have been taxed at the same point or other in the State but could not be taxed even due to destroying them or other reasons. Thus the purchase tax was leviable on goods consumed for own use. Since cost price/purchase price was reflected as value of goods consumed for own use of the dealer, the tax at the rate specified in section 12 of the Act ibid was leviable. In this case, even if same charges like Electrodes, Welding Cables, welding appliances, fuel and lubricants, oxygen and P.A. Gas safety, safety appliances valued at Rs. 44,90,114.00 was not considered as taxable, the consumable goods worth Rs. 2,67,57,802.00 attracted levying of tax at specified rates. The case may please be re-examined in the light of above observation and levying of purchase tax amounting to Rs. 24,19,385.31 (including additional tax and surcharge) as calculated below may be considered under intimation to audit. chart The use of fuel and lubricants may please be bifurcated and value of lubricants only may be levied to tax. On being pointed out in audit, it was stated that since the goods had not been transferred to contractee co-under the provisions of works contract, but it had been consumed and so it does not come under the purview of taxation. The reply is not tanable in view of the above judgements and hence the case needed to be reviewed. (emphasis supplied) 29. From a perusal of the last paragraph of the aforementioned report of the audit party, it is clear that the Assessing Officer was of the opinion that as the goods had not been transferred to appellant-Company but had been consumed, so it does not come under the purview of taxation. In other words, the Assessing Officer was not satisfied on the basis of information given by the audit party that any of the turnover of the appellant-Company had escaped assessment so as to invoke Section 19 of the State Act. From the above, it also appears that the assessing officer had to issue notice on the ground of direction issued by the audit party and not on his personal satisfaction which is not permissible under law. 30. In view of the above discussion, we are of the considered view that the order dated 27.02.2006 passed by the Deputy Commissioner, Commercial Taxes, Urban Circle, Jamshedpur is without jurisdiction and the High Court was not right in dismissing the petition filed by the appellant-Company. | 1[ds]Sub-Section (1) of Section 19 very clearly prescribes that the competent authority, upon information, if satisfied that reasonable ground exists to believe that any turnover of a registered dealer or a dealer to whom grant of registration certificate has been refused in respect of any period has, for any reason, escaped assessment or any turnover of any such dealer assessed under sub-Section (5) of Section 17 has been under-assessed or assessed at a rate lower than that which was correctly applicable, may, within eight years from the date of order of assessment, proceed to assess or reassess the amount of tax in respect of such turnover.We agree that a mere change of opinion or having second thought about it by the competent authority on the same set of facts and materials on the record does not constitute `information for the purposes of the State Act. But the word information used in the aforesaid Section is of the widest amplitude and should not be construed narrowly. It comprehends not only variety of factors including information from external sources of any kind but also the discovery of new facts or information available in the record of assessment not previously noticed or investigated. Suppose a mistake in the original order of assessment is not discovered by the Assessing Officer, on further scrutiny, if it came to the notice of another assessor or even by a subordinate or a superior officer, it would be considered as information disclosed to the incumbent officer. If the mistake itself is not extraneous to the record and the informant gathered the information from the record, the immediate source of information to the Officer in such circumstances is in one sense extraneous to the record. It will be information in his possession within the meaning of Section 19 of the State Act. In such cases of obvious mistakes apparent on the face of the record of assessment, that record itself can be a source of information, if that information leads to a discovery or belief that there has been an escape of assessment or under-assessment or wrong assessment.22. There are a catena of judgments of this Court holding that assessment proceedings can be reopened if the audit objection points out the factual information already available in the records and that it was overlooked or not taken into consideration. Similarly, if audit points out some information or facts available outside the record or any arithmetical mistake, assessment can be re-opened.26. The contention whether finding the information from the very facts that were already available on record amounts to information for the purpose of Section 19 of the State Act, it would be sufficient to refer to a judgment of this Court in AnandjiharidasCo. v. S.P. Kasture AIR 1968 SC 565 wherein it was held that a fact which was already there in records doesnt by its mere availability becomes an item of information till the time it has been brought to the notice of assessing authority. Hence, the audit objections were well within the parameters of being construed as `information for the purpose of section 19 of the State Act27. The expression `information means instruction or knowledge derived from an external source concerning facts or parties or as to law relating to and/or after bearing on the assessment. We are of the clear view that on the basis of information received and if the assessing officer is satisfied that reasonable ground exists to believe, then in that case the power of the assessing authority extends to re-opening of assessment, if for any reason, the whole or any part of the turnover of the business of the dealer has escaped assessment or has been under assessed and the assessment in such a case would be valid even if the materials, on the basis of which the earlier assessing authority passed the order and the successor assessing authority proceeded, were same29. From a perusal of the last paragraph of the aforementioned report of the audit party, it is clear that the Assessing Officer was of the opinion that as the goods had not been transferred to appellant-Company but had been consumed, so it does not come under the purview of taxation. In other words, the Assessing Officer was not satisfied on the basis of information given by the audit party that any of the turnover of the appellant-Company had escaped assessment so as to invoke Section 19 of the State Act. From the above, it also appears that the assessing officer had to issue notice on the ground of direction issued by the audit party and not on his personal satisfaction which is not permissible under law.30. In view of the above discussion, we are of the considered view that the order dated 27.02.2006 passed by the Deputy Commissioner, Commercial Taxes, Urban Circle, Jamshedpur is without jurisdiction and the High Court was not right in dismissing the petition filed by the appellant-Company. | 1 | 5,455 | 880 | ### Instruction:
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of Section 19 of the State Act, it would be sufficient to refer to a judgment of this Court in Anandjiharidas & Co. v. S.P. Kasture AIR 1968 SC 565 wherein it was held that a fact which was already there in records doesnt by its mere availability becomes an item of information till the time it has been brought to the notice of assessing authority. Hence, the audit objections were well within the parameters of being construed as `information for the purpose of section 19 of the State Act. 27. The expression `information means instruction or knowledge derived from an external source concerning facts or parties or as to law relating to and/or after bearing on the assessment. We are of the clear view that on the basis of information received and if the assessing officer is satisfied that reasonable ground exists to believe, then in that case the power of the assessing authority extends to re-opening of assessment, if for any reason, the whole or any part of the turnover of the business of the dealer has escaped assessment or has been under assessed and the assessment in such a case would be valid even if the materials, on the basis of which the earlier assessing authority passed the order and the successor assessing authority proceeded, were same. The question still is as to whether in the present case, the assessing authority was satisfied or not. 28. At this stage, we deem it appropriate to reproduce the matter dealt with between the audit team and the assessing authority which led to the initiation of re-assessment proceedings under Section 19 of the State Act which is as under:-chart The dealer had furnished the statement of material utilized in the contract work and goods consumed for own use. Scrutiny of assessment order revealed that the dealer was allowed exemption on Rs. 3,12,47,916.00 being the amount of goods consumed or used itself in course of execution of work, details of which were discussed in the assessment order. It had been stated by the assessing authority that such goods were purchased on payment of tax, but no declaration in form IX C along with other evidences were kept on record. Production of declaration form in IX C was mandatory one and hence the claim was not allowable. The entire materials received from outside the State or purchased within the State without payment of tax was normally leviable to tax at specified rates under section 12 of B.F. Act 1981. Under section 4 of the Act ibid, every dealer liable to pay under section 3 of the Act, if otherwise disposes the goods in any manner other than by way of sale in the State was also liable to purchase tax. In this connection a reference to the judgement of Honble Karnataka High Court and duly confirmed by the Honble Supreme Court in the case of Chevvabbo v. State of Karnataka (1986) 62 STG 194 Se) is invited ....... Disposal of goods in this section (Similar to those Karnataka) was clarified as transfer of title over the goods otherwise than sale, included gifts, own use or consumption section 4 of the Act (B.F. Act) is similar to section 7 A of Tamil Nadu General Court in the case of the State of Tamil Nadu v. M.K. Kandaswami (1975 36 STC 191 ) where it was held that (1) this Section is a separate charging provision in the Act and is not subject to section 3 and (ii) brings to tax goods, the sale of which would normally have been taxed at the same point or other in the State but could not be taxed even due to destroying them or other reasons. Thus the purchase tax was leviable on goods consumed for own use. Since cost price/purchase price was reflected as value of goods consumed for own use of the dealer, the tax at the rate specified in section 12 of the Act ibid was leviable. In this case, even if same charges like Electrodes, Welding Cables, welding appliances, fuel and lubricants, oxygen and P.A. Gas safety, safety appliances valued at Rs. 44,90,114.00 was not considered as taxable, the consumable goods worth Rs. 2,67,57,802.00 attracted levying of tax at specified rates. The case may please be re-examined in the light of above observation and levying of purchase tax amounting to Rs. 24,19,385.31 (including additional tax and surcharge) as calculated below may be considered under intimation to audit. chart The use of fuel and lubricants may please be bifurcated and value of lubricants only may be levied to tax. On being pointed out in audit, it was stated that since the goods had not been transferred to contractee co-under the provisions of works contract, but it had been consumed and so it does not come under the purview of taxation. The reply is not tanable in view of the above judgements and hence the case needed to be reviewed. (emphasis supplied) 29. From a perusal of the last paragraph of the aforementioned report of the audit party, it is clear that the Assessing Officer was of the opinion that as the goods had not been transferred to appellant-Company but had been consumed, so it does not come under the purview of taxation. In other words, the Assessing Officer was not satisfied on the basis of information given by the audit party that any of the turnover of the appellant-Company had escaped assessment so as to invoke Section 19 of the State Act. From the above, it also appears that the assessing officer had to issue notice on the ground of direction issued by the audit party and not on his personal satisfaction which is not permissible under law. 30. In view of the above discussion, we are of the considered view that the order dated 27.02.2006 passed by the Deputy Commissioner, Commercial Taxes, Urban Circle, Jamshedpur is without jurisdiction and the High Court was not right in dismissing the petition filed by the appellant-Company.
### Response:
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### Explanation:
Sub-Section (1) of Section 19 very clearly prescribes that the competent authority, upon information, if satisfied that reasonable ground exists to believe that any turnover of a registered dealer or a dealer to whom grant of registration certificate has been refused in respect of any period has, for any reason, escaped assessment or any turnover of any such dealer assessed under sub-Section (5) of Section 17 has been under-assessed or assessed at a rate lower than that which was correctly applicable, may, within eight years from the date of order of assessment, proceed to assess or reassess the amount of tax in respect of such turnover.We agree that a mere change of opinion or having second thought about it by the competent authority on the same set of facts and materials on the record does not constitute `information for the purposes of the State Act. But the word information used in the aforesaid Section is of the widest amplitude and should not be construed narrowly. It comprehends not only variety of factors including information from external sources of any kind but also the discovery of new facts or information available in the record of assessment not previously noticed or investigated. Suppose a mistake in the original order of assessment is not discovered by the Assessing Officer, on further scrutiny, if it came to the notice of another assessor or even by a subordinate or a superior officer, it would be considered as information disclosed to the incumbent officer. If the mistake itself is not extraneous to the record and the informant gathered the information from the record, the immediate source of information to the Officer in such circumstances is in one sense extraneous to the record. It will be information in his possession within the meaning of Section 19 of the State Act. In such cases of obvious mistakes apparent on the face of the record of assessment, that record itself can be a source of information, if that information leads to a discovery or belief that there has been an escape of assessment or under-assessment or wrong assessment.22. There are a catena of judgments of this Court holding that assessment proceedings can be reopened if the audit objection points out the factual information already available in the records and that it was overlooked or not taken into consideration. Similarly, if audit points out some information or facts available outside the record or any arithmetical mistake, assessment can be re-opened.26. The contention whether finding the information from the very facts that were already available on record amounts to information for the purpose of Section 19 of the State Act, it would be sufficient to refer to a judgment of this Court in AnandjiharidasCo. v. S.P. Kasture AIR 1968 SC 565 wherein it was held that a fact which was already there in records doesnt by its mere availability becomes an item of information till the time it has been brought to the notice of assessing authority. Hence, the audit objections were well within the parameters of being construed as `information for the purpose of section 19 of the State Act27. The expression `information means instruction or knowledge derived from an external source concerning facts or parties or as to law relating to and/or after bearing on the assessment. We are of the clear view that on the basis of information received and if the assessing officer is satisfied that reasonable ground exists to believe, then in that case the power of the assessing authority extends to re-opening of assessment, if for any reason, the whole or any part of the turnover of the business of the dealer has escaped assessment or has been under assessed and the assessment in such a case would be valid even if the materials, on the basis of which the earlier assessing authority passed the order and the successor assessing authority proceeded, were same29. From a perusal of the last paragraph of the aforementioned report of the audit party, it is clear that the Assessing Officer was of the opinion that as the goods had not been transferred to appellant-Company but had been consumed, so it does not come under the purview of taxation. In other words, the Assessing Officer was not satisfied on the basis of information given by the audit party that any of the turnover of the appellant-Company had escaped assessment so as to invoke Section 19 of the State Act. From the above, it also appears that the assessing officer had to issue notice on the ground of direction issued by the audit party and not on his personal satisfaction which is not permissible under law.30. In view of the above discussion, we are of the considered view that the order dated 27.02.2006 passed by the Deputy Commissioner, Commercial Taxes, Urban Circle, Jamshedpur is without jurisdiction and the High Court was not right in dismissing the petition filed by the appellant-Company.
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B.S. Joshi Vs. State Of Haryana | but considering that the parties had settled their dispute outside the court, the sentence was reduced to the period already undergone. It is, however, to be borne in mind that in the present case the appellants had not sought compounding of the offences. They had approached the Court seeking quashing of FIR under the circumstanced abovestated. 10. In State of Karnataka vs. L. Muniswamy & Ors. [(1977) 2 SCC 699] , considering the scope of inherent power of quashing under Section 482, this Court held that in the exercise of this wholesome power, the High Court is entitled to quash proceedings if it comes to the conclusion that ends of justice so require. It was observed that in a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice and that the ends of justice are higher than the ends of mere law though justice had got to be administered according to laws made by the legislature. This Court said that the compelling necessary for making these observations is that without a proper realization of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction. On facts, it was also noticed that there was no reasonable likelihood of the accused being convicted of the offence. What would happen to the trial of the case where the wife does not support the imputations made in the FIR of the type in question. As earlier noticed, now she has filed an affidavit that the FIR was registered at her instance due to temperamental differences and implied imputations. There may be many reasons for not supporting the imputations. It may be either for the reason that she has resolved disputes with her husband and his other family members and as a result thereof she has again started living with her husband with whom she earlier had differences or she has willingly parted company and is living happily on her own or has married someone else on earlier marriage having been dissolved by divorce on consent of parties or fails to support the prosecution on some other similar grounds. In such eventuality, there would almost be no chance of conviction. Would it then be proper to decline to exercise power of quashing on the ground that it would be permitting the parties to compound non-compoundable offences. Answer clearly has to be in negative. It would, however, be a different matter if the High Court on facts declines the prayer for quashing for any valid reasons including lack of bona fides. 11. In Madhavrao Jiwajirao Scindia & Ors. vs. Sambhajirao Chandrajirao Angre & Ors. [(1988) 1 SCC 692] , it was held that while exercising inherent power of quashing under Section 482, it is for the High Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. Where, in the opinion of the Court, chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may, while taking into consideration the special facts f a case, also quash the proceedings. 12. The special features in such matrimonial matters are evident. It becomes the duty of the Court to encourage genuine settlements of matrimonial disputes. 13. The observations made by this Court, though in a slightly different context, in G.V. Rao vs. L.H.V. Prasad & Ors. [(2000) 3 SCC 693] are very apt for determining the approach required to be kept in view in matrimonial dispute by the courts, it was said that there has been an outburst of matrimonial disputes in recent times. Marriage is a sacred ceremony the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes yeas and years to conclude and that process the parties lose their "young" days in chasing their "cases" in different courts. 14. There is no doubt that the object of introducing Chapter XX-A containing Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The hyper-technical view would be counter productive and would act against interests of women and against the object for which this provision was added. There is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. That is not the object of Chapter XXA of Indian Penal Code. 15. In view of the above discussion, we hold that the High Court is exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code.16. For the foregoing reasons, we | 1[ds]14. There is no doubt that the object of introducing Chapter XX-A containing Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The hyper-technical view would be counter productive and would act against interests of women and against the object for which this provision was added. There is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. That is not the object of Chapter XXA of Indian Penalhold that the High Court is exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code. | 1 | 2,944 | 176 | ### 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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but considering that the parties had settled their dispute outside the court, the sentence was reduced to the period already undergone. It is, however, to be borne in mind that in the present case the appellants had not sought compounding of the offences. They had approached the Court seeking quashing of FIR under the circumstanced abovestated. 10. In State of Karnataka vs. L. Muniswamy & Ors. [(1977) 2 SCC 699] , considering the scope of inherent power of quashing under Section 482, this Court held that in the exercise of this wholesome power, the High Court is entitled to quash proceedings if it comes to the conclusion that ends of justice so require. It was observed that in a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice and that the ends of justice are higher than the ends of mere law though justice had got to be administered according to laws made by the legislature. This Court said that the compelling necessary for making these observations is that without a proper realization of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction. On facts, it was also noticed that there was no reasonable likelihood of the accused being convicted of the offence. What would happen to the trial of the case where the wife does not support the imputations made in the FIR of the type in question. As earlier noticed, now she has filed an affidavit that the FIR was registered at her instance due to temperamental differences and implied imputations. There may be many reasons for not supporting the imputations. It may be either for the reason that she has resolved disputes with her husband and his other family members and as a result thereof she has again started living with her husband with whom she earlier had differences or she has willingly parted company and is living happily on her own or has married someone else on earlier marriage having been dissolved by divorce on consent of parties or fails to support the prosecution on some other similar grounds. In such eventuality, there would almost be no chance of conviction. Would it then be proper to decline to exercise power of quashing on the ground that it would be permitting the parties to compound non-compoundable offences. Answer clearly has to be in negative. It would, however, be a different matter if the High Court on facts declines the prayer for quashing for any valid reasons including lack of bona fides. 11. In Madhavrao Jiwajirao Scindia & Ors. vs. Sambhajirao Chandrajirao Angre & Ors. [(1988) 1 SCC 692] , it was held that while exercising inherent power of quashing under Section 482, it is for the High Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. Where, in the opinion of the Court, chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may, while taking into consideration the special facts f a case, also quash the proceedings. 12. The special features in such matrimonial matters are evident. It becomes the duty of the Court to encourage genuine settlements of matrimonial disputes. 13. The observations made by this Court, though in a slightly different context, in G.V. Rao vs. L.H.V. Prasad & Ors. [(2000) 3 SCC 693] are very apt for determining the approach required to be kept in view in matrimonial dispute by the courts, it was said that there has been an outburst of matrimonial disputes in recent times. Marriage is a sacred ceremony the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes yeas and years to conclude and that process the parties lose their "young" days in chasing their "cases" in different courts. 14. There is no doubt that the object of introducing Chapter XX-A containing Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The hyper-technical view would be counter productive and would act against interests of women and against the object for which this provision was added. There is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. That is not the object of Chapter XXA of Indian Penal Code. 15. In view of the above discussion, we hold that the High Court is exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code.16. For the foregoing reasons, we
### Response:
1
### Explanation:
14. There is no doubt that the object of introducing Chapter XX-A containing Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The hyper-technical view would be counter productive and would act against interests of women and against the object for which this provision was added. There is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. That is not the object of Chapter XXA of Indian Penalhold that the High Court is exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code.
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Subulaxmi Vs. M.D. T.Nadu State Transp.Corp | of over three months. It is not possible for the tribunals and the courts to make a precise assessment of the pain and trauma suffered by a person whose limb is amputated as a result of accident. Even if the victim of accident gets artificial limb, he will suffer from different kinds of handicaps and social stigma throughout his life. Therefore, in all such cases, the tribunals and the courts should make a broad guess for the purpose of fixing the amount of compensation.26. Admittedly, at the time of accident, the appellant was a young man of 24 years. For the remaining life, he will suffer the trauma of not being able to do his normal work. Therefore, we feel that ends of justice will be met by awarding him a sum of Rs1,50,000 in lieu of pain, suffering and trauma caused due to the amputation of leg.27. The compensation awarded by the Tribunal for the loss of amenities was also meager. It can only be a matter of imagination as to how the appellant will have to live for the rest of his life with one artificial leg. The appellant can be expected to live for at least 50 years. During this period he will not be able to live like a normal human being and will not be able to enjoy life. The prospects of his marriage have considerably reduced. Therefore, it would be just and reasonable to award him a sum of Rs1,50,000 for the loss of amenities and enjoyment of life.” 8. We have reproduced from the said decision in extenso, as the Court has dwelled upon the fundamental concept of just compensation regard being had to the value of life and limb in our country. Needless to say, the approach in such matters has to be liberal as well as a balanced one. 9. In the case at hand, the tribunal had awarded a sum of Rs.86,000/- towards the permanent disability. The High Court has deleted it. The said deletion as per our above discussion is impermissible. In our considered opinion regard being had to the nature of injury suffered and further taking note of the date of accident, a sum of Rs.1,00,000/- on this head would be appropriate and, accordingly, we so determine. 10. Presently, we shall proceed to compute the loss of earning capacity. The claimant was earning Rs.1,500/- per month and thereby Rs.18,000/- per annum. As she has suffered 86% permanent disability, the future earning may be computed at 14% less and accordingly it is estimated that the multiplicand should be Rs.15,480/- per annum. At the time of accident, she was 30 years of age, and hence, the multiplier of 18 would be applicable, as has been held in Sarla Verma v. D.T.C. [(2009) 13 SCC 442]. Thus, the loss of future earning by multiplying the multiplicand of Rs.15,480/- by multiplier of 18, the amount would come to Rs.2,78,640/-. 11. As far as the pain and suffering and loss of amenities are concerned, we think it is appropriate to grant a sum of Rs.1,00,000/-. In respect of other heads, namely, medical expenses, extra nourishment, transport charges and loss of earning during treatment, the amount awarded by the High Court is allowed to remain as such. Thus, the amount on the aforesaid scores would come to Rs.45,000/-. As far as the future replacement of artificial limbs and other medical expenses are concerned, keeping in view the escalation of price, we think it seemly to enhance it Rs.1,25,000/-. 12. Presently to the grant of interest. The High Court has declined to award interest on the enhanced sum. No reason has been ascribed therefor. Section 171 of the Act deals with award of interest. It reads as follows:- “171. Award of interest where any claim is allowed. – Where any Claims Tribunal allows a claim for compensation made under this Act, such Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf.” 13. In Abati Bezbaruah v. Dy. Director General, Geological Survey of India and Another [(2003) 3 SCC 148] , S.B. Sinha, J. in his opinion after referring to the earlier decisions opined that the question as to what should be the rate of interest would depend upon the facts and circumstances of each case and award of interest would normally depend on the bank rate prevailing at that time. A.R. Laxmanan, J. in his concurring opinion stated as follows: - “The rate of interest must be just and reasonable depending upon the facts and circumstances of each case and taking all relevant factors including inflation, change of economy, policy being adopted by Reserve Bank of India from time to time, how long the case is pending, permanent injuries suffered by the victim, enormity of suffering loss of future income, loss of enjoyment of life etc., into consideration.” 14. In Tamil Nadu State Transport Corporation, Tanjore, represented by its MD v. Natarajan and others [(2003) 6 SCC 137] , this Court awarded interest at the rate of 9% per annum from the date of filing of claim petition on the amount of compensation. 15. Thus analysed, we are disposed to think that the High Court has erred in not granting interest on the enhanced sum. As is evincible, the tribunal had granted payment of interest at the rate of 9% per annum. Considering the totality of facts and circumstances, we find that the interest awarded by the tribunal is just and proper and accordingly we direct that the interest on the differential enhanced sum shall carry interest at the rate 9% per annum from the date of filing of the claim petition till the date of deposit of the same before the tribunal. The respondent corporation is directed to deposit the differential amount before the tribunal within a period of eight weeks from today. | 1[ds]In K. Suresh v. New India Assurance Co. Ltd. and Another [2012 (10) SCALE 516 ], after referring to Ramesh Chandra v. Randhir Singh [(1990) 3 SCC 723] and B. Kothandapani v. Tamil Nadu State Transport Corporation Ltd. [(2011) 6 SCC 420] , this Court expressed the view that compensation can be granted towards permanent disability as well as loss of future earnings, for one head relates to the impairment ofcapacity and the other relates to the sphere of pain and suffering and loss of enjoyment of life by the person himself. The Bench also relied upon Laxman v. Divisional Manager, Oriental Insurance Co. Ltd. and another [2012 ACJ 191 ], wherein it has been laid downratio of the above noted judgments is that if the victim of an accident suffers permanent or temporary disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the pain, suffering and trauma caused due to accident, loss of earnings andinability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to thethe view expressed by the High Court on this score is not sustainable.In the case at hand, the tribunal had awarded a sum of Rs.86,000/towards the permanent disability. The High Court has deleted it. The said deletion as per our above discussion is impermissible. In our considered opinion regard being had to the nature of injury suffered and further taking note of the date of accident, a sum of Rs.1,00,000/on this head would be appropriate and, accordingly, we so determine.As far as the pain and suffering and loss of amenities are concerned, we think it is appropriate to grant a sum of Rs.In respect of other heads, namely, medical expenses, extra nourishment, transport charges and loss of earning during treatment, the amount awarded by the High Court is allowed to remain as such. Thus, the amount on the aforesaid scores would come to Rs.Thus analysed, we are disposed to think that the High Court has erred in not granting interest on the enhanced sum. As is evincible, the tribunal had granted payment of interest at the rate of 9% per annum. Considering the totality of facts and circumstances, we find that the interest awarded by the tribunal is just and proper and accordingly we direct that the interest on the differential enhanced sum shall carry interest at the rate 9% per annum from the date of filing of the claim petition till the date of deposit of the same before the tribunal. The respondent corporation is directed to deposit the differential amount before the tribunal within a period of eight weeks from today. | 1 | 2,550 | 502 | ### 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:
of over three months. It is not possible for the tribunals and the courts to make a precise assessment of the pain and trauma suffered by a person whose limb is amputated as a result of accident. Even if the victim of accident gets artificial limb, he will suffer from different kinds of handicaps and social stigma throughout his life. Therefore, in all such cases, the tribunals and the courts should make a broad guess for the purpose of fixing the amount of compensation.26. Admittedly, at the time of accident, the appellant was a young man of 24 years. For the remaining life, he will suffer the trauma of not being able to do his normal work. Therefore, we feel that ends of justice will be met by awarding him a sum of Rs1,50,000 in lieu of pain, suffering and trauma caused due to the amputation of leg.27. The compensation awarded by the Tribunal for the loss of amenities was also meager. It can only be a matter of imagination as to how the appellant will have to live for the rest of his life with one artificial leg. The appellant can be expected to live for at least 50 years. During this period he will not be able to live like a normal human being and will not be able to enjoy life. The prospects of his marriage have considerably reduced. Therefore, it would be just and reasonable to award him a sum of Rs1,50,000 for the loss of amenities and enjoyment of life.” 8. We have reproduced from the said decision in extenso, as the Court has dwelled upon the fundamental concept of just compensation regard being had to the value of life and limb in our country. Needless to say, the approach in such matters has to be liberal as well as a balanced one. 9. In the case at hand, the tribunal had awarded a sum of Rs.86,000/- towards the permanent disability. The High Court has deleted it. The said deletion as per our above discussion is impermissible. In our considered opinion regard being had to the nature of injury suffered and further taking note of the date of accident, a sum of Rs.1,00,000/- on this head would be appropriate and, accordingly, we so determine. 10. Presently, we shall proceed to compute the loss of earning capacity. The claimant was earning Rs.1,500/- per month and thereby Rs.18,000/- per annum. As she has suffered 86% permanent disability, the future earning may be computed at 14% less and accordingly it is estimated that the multiplicand should be Rs.15,480/- per annum. At the time of accident, she was 30 years of age, and hence, the multiplier of 18 would be applicable, as has been held in Sarla Verma v. D.T.C. [(2009) 13 SCC 442]. Thus, the loss of future earning by multiplying the multiplicand of Rs.15,480/- by multiplier of 18, the amount would come to Rs.2,78,640/-. 11. As far as the pain and suffering and loss of amenities are concerned, we think it is appropriate to grant a sum of Rs.1,00,000/-. In respect of other heads, namely, medical expenses, extra nourishment, transport charges and loss of earning during treatment, the amount awarded by the High Court is allowed to remain as such. Thus, the amount on the aforesaid scores would come to Rs.45,000/-. As far as the future replacement of artificial limbs and other medical expenses are concerned, keeping in view the escalation of price, we think it seemly to enhance it Rs.1,25,000/-. 12. Presently to the grant of interest. The High Court has declined to award interest on the enhanced sum. No reason has been ascribed therefor. Section 171 of the Act deals with award of interest. It reads as follows:- “171. Award of interest where any claim is allowed. – Where any Claims Tribunal allows a claim for compensation made under this Act, such Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf.” 13. In Abati Bezbaruah v. Dy. Director General, Geological Survey of India and Another [(2003) 3 SCC 148] , S.B. Sinha, J. in his opinion after referring to the earlier decisions opined that the question as to what should be the rate of interest would depend upon the facts and circumstances of each case and award of interest would normally depend on the bank rate prevailing at that time. A.R. Laxmanan, J. in his concurring opinion stated as follows: - “The rate of interest must be just and reasonable depending upon the facts and circumstances of each case and taking all relevant factors including inflation, change of economy, policy being adopted by Reserve Bank of India from time to time, how long the case is pending, permanent injuries suffered by the victim, enormity of suffering loss of future income, loss of enjoyment of life etc., into consideration.” 14. In Tamil Nadu State Transport Corporation, Tanjore, represented by its MD v. Natarajan and others [(2003) 6 SCC 137] , this Court awarded interest at the rate of 9% per annum from the date of filing of claim petition on the amount of compensation. 15. Thus analysed, we are disposed to think that the High Court has erred in not granting interest on the enhanced sum. As is evincible, the tribunal had granted payment of interest at the rate of 9% per annum. Considering the totality of facts and circumstances, we find that the interest awarded by the tribunal is just and proper and accordingly we direct that the interest on the differential enhanced sum shall carry interest at the rate 9% per annum from the date of filing of the claim petition till the date of deposit of the same before the tribunal. The respondent corporation is directed to deposit the differential amount before the tribunal within a period of eight weeks from today.
### Response:
1
### Explanation:
In K. Suresh v. New India Assurance Co. Ltd. and Another [2012 (10) SCALE 516 ], after referring to Ramesh Chandra v. Randhir Singh [(1990) 3 SCC 723] and B. Kothandapani v. Tamil Nadu State Transport Corporation Ltd. [(2011) 6 SCC 420] , this Court expressed the view that compensation can be granted towards permanent disability as well as loss of future earnings, for one head relates to the impairment ofcapacity and the other relates to the sphere of pain and suffering and loss of enjoyment of life by the person himself. The Bench also relied upon Laxman v. Divisional Manager, Oriental Insurance Co. Ltd. and another [2012 ACJ 191 ], wherein it has been laid downratio of the above noted judgments is that if the victim of an accident suffers permanent or temporary disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the pain, suffering and trauma caused due to accident, loss of earnings andinability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to thethe view expressed by the High Court on this score is not sustainable.In the case at hand, the tribunal had awarded a sum of Rs.86,000/towards the permanent disability. The High Court has deleted it. The said deletion as per our above discussion is impermissible. In our considered opinion regard being had to the nature of injury suffered and further taking note of the date of accident, a sum of Rs.1,00,000/on this head would be appropriate and, accordingly, we so determine.As far as the pain and suffering and loss of amenities are concerned, we think it is appropriate to grant a sum of Rs.In respect of other heads, namely, medical expenses, extra nourishment, transport charges and loss of earning during treatment, the amount awarded by the High Court is allowed to remain as such. Thus, the amount on the aforesaid scores would come to Rs.Thus analysed, we are disposed to think that the High Court has erred in not granting interest on the enhanced sum. As is evincible, the tribunal had granted payment of interest at the rate of 9% per annum. Considering the totality of facts and circumstances, we find that the interest awarded by the tribunal is just and proper and accordingly we direct that the interest on the differential enhanced sum shall carry interest at the rate 9% per annum from the date of filing of the claim petition till the date of deposit of the same before the tribunal. The respondent corporation is directed to deposit the differential amount before the tribunal within a period of eight weeks from today.
|
Chairman, S.E.B.I Vs. Shriram Mutual Fund | of criminal liability, the intention of the legislature is that the penalty should serve as a deterrent. The creation of an offence by statute proceeds on the assumption that society suffers injury by the act or omission of the defaulter and that a deterrent must be imposed to discourage the repetition of the offence. In the case of a proceeding under Section 271(1)(a), however, it seems that the intention of the legislature is to emphasize the fact of loss of revenue and to provide a remedy for such loss, although no doubt an element of coercion is present in the penalty. In this connection, the terms in which the penalty falls to be measured is significant. Unless there is something in the language of the statute indicating the need to establish the element of mens rea it is generally sufficient to prove that a default in complying with the statute has occurred. In our opinion, there is nothing in Section 271(1)(a) which requires that mens rea must be proved before penalty can be levied under that provision." (e) Swedish Match AB and Anr. Vs. SEBI & anr. , (2004) 11 SCC 641. "The provisions of Section 15-H of the Act mandate that a penalty of rupees twenty five crores may be imposed. The Board does not have any discretion in the matter and, thus the adjudication proceeding is a mere formality. Imposition of penalty upon the appellant would, thus, be a forgone conclusion. Only in the criminal proceedings initiated against the appellants, existence of mens rea on the part of the appellants will come up for consideration." (f) SEBI vs. Cabot International Capital Corporation, (2005) 123 Comp. Cases 841 (Bom). "Thus, the following extracted principles are summarized: (A) Mens rea is an essential or sine qua non for criminal offence. (B) Strait jacket formula of mens rea cannot be blindly followed in each and every case. Scheme of particular statute may be diluted in a given case. (C) If, from the scheme, object and words used in the statute, it appears that the proceedings for imposition of the penalty are adjudicatory in nature, in contra-distinction to criminal or quasi criminal proceedings, the determination is of the breach of the civil obligation by the offender. The word "penalty" by itself will not be determinative to conclude the nature of proceedings being criminal or quasi-criminal. The relevant considerations being the nature of the functions being discharged by the authority and the determination of the liability of the contravenor and the delinquency. (D) Mens rea is not essential element for imposing penalty for breach of civil obligations or liabilities. (E) There can be two distinct liabilities, civil and criminal under the same Act. (Para 52) The SEBI Act and the Regulations are intended to regulate the Security Market and related aspects, the imposition of penalty, in the given facts and circumstances of the case, cannot be tested on the ground of "no mens rea no penalty". For breaches of provisions of SEBI Act and Regulations, according to us, which are civil in nature, mens rea is not essential. On particular facts and circumstances of the case, proper exercise or judicial discretion is a must, but not on a foundation that mens rea is an essential to impose penalty in each and every breach of provisions of the SEBI Act. (Para 54) However, we are not in agreement with the appellate authority in respect of the reasoning given in regard to the necessity of mens rea being essential for imposing the penalty. According to us, mens rea is not essential for imposing civil penalties under the SEBI Act and Regulations." 10. The Tribunal has erroneously relied on the judgment in the case of Hindustan Steel Ltd. Vs. State of Orissa, AIR 1970 SC 253 which pertained to criminal/quasi-criminal proceeding. That Section 25 of the Orissa Sales Tax Act which was in question in the said case imposed a punishment of imprisonment up to six months and fine for the offences under the Act. The said case has no application in the present case which relates to imposition of civil liabilities under the SEBI Act and Regulations and is not a criminal/quasi-criminal proceeding. 11. In our considered opinion, penalty is attracted as soon as the contravention of the statutory obligation as contemplated by the Act and the Regulation is established and hence the intention of the parties committing such violation becomes wholly irrelevant. A breach of civil obligation which attracts penalty in the nature of fine under the provisions of the Act and the Regulations would immediately attract the levy of penalty irrespective of the fact whether contravention must made by the defaulter with guilty intention or not. We also further held that unless the language of the statute indicates the need to establish the presence of mens rea, it is wholly unnecessary to ascertain whether such a violation was intentional or not. On a careful perusal of Section 15(D)(b) and Section 15-E of the Act, there is nothing which requires that mens rea must be proved before penalty can be imposed under these provisions. Hence once the contravention is established then the penalty is to follow. In our view, the impugned judgment of the Securities appellate Tribunal has set a serious wrong precedent and the powers of the SEBI to impose penalty under Chapter VIA are severely curtailed against the plain language of the statute which mandatorily imposes penalties on the contravention of the Act/Regulations without any requirement of the contravention having been deliberated or contumacious. The impugned order sets the stage for various market players to violate statutory regulations with impunity and subsequently plead ignorance of law or lack of mens rea to escape the imposition of penalty. The imputing mens rea into the provisions of Chapter VI A is against the plain language of the statute and frustrates entire purpose and object of introducing Chapter VIA to give teeth to the SEBI to secure strict compliance of the Act and the Regulations. | 1[ds]In our opinion, the Tribunal has miserably failed to appreciate that by setting aside the order of the Adjudicating Officer the Tribunal was setting a serious wrong precedent whereby every offender would take shelter of alleged hardships to violate the provisions of the Act. In our opinion, mens rea is not an essential ingredient for contravention of the provisions of a civil act. In our view, the penalty is attracted as soon as contravention of the statutory obligations as contemplated by the Act is established and, therefore, the intention of the parties committing such violation becomes immaterial. In other words, the breach of a civil obligation which attracts penalty under the provisions of an Act would immediately attract the levy of penalty irrespective of the fact whether the contravention was made by the defaulter with any guilty intention or not. This apart that unless the language of the statute indicates the need to establish the element of mens rea, it is generally sufficient to prove that a default in complying with the statute has occurred. Under a close scrutiny of Section 15 D(b) and 15-E of the Act, there is nothing which requires that mens rea must be proved before penalty can be imposed under these provisions. Hence, we are of the view that once the contravention is established, then the penalty has to follow and only the quantum of penalty is discretionary. Discretion has been exercised by the Adjudicating Officer as is evident from imposition of lesser penalty than what could have been imposed under the provisions. The intention of the parties is wholly irrelevant since there has been a clear violation of the statutory Regulations and provisions repetitively, covering a period of 6 quarters. Hence we hold that the respondents have wilfully violated statutory provisions with impunity and hence the imposition of penalty was fully justified. The Tribunal, in this context, failed to appreciate that every Mutual Fund has to redeem the units as per terms and conditions of the scheme on the request of the unit holders and this cannot, in any manner, be considered as an extraordinary circumstance or something which was not known to the respondents. The facts and circumstances of the present case in no way indicate the existence of special circumstances so as to waive the penalty imposed by the Adjudicating Officer. A perusal of the order passed by the Adjudicating Officer would clearly go to show that factors such as small size of the funds, low volume of transactions, thinly traded securities, administrative and operational exigencies were duly considered and appreciated by the Adjudicating Officer while passing the order and that is why the Adjudicating Officer did not impose the maximum permissible penalty. The Tribunal failed to appreciate that the objective behind imposing certain limit on the business that can be conducted by mutual fund through the associate broker is to eliminate any undue advantage to the class of brokers by virtue of their close association with the Asset Management Company, sponsors etc. In other words, the object of imposing such limits is to ensure that there is no concentration of business only in such entities, so that there is an indirect pecuniary advantage to the person associated with the Asset Management Company, sponsors etc. Any undue concentration on the business of the mutual fund with its affiliated brokers by paying huge commissions to such brokers is neither desirable nor in the interest of the unit holders. It is a matter of record that in the 12 admitted instances of violation by the respondents, the percentage of the business through the associated brokers was as high as 91.68% and 52.2% in certain factors. This apart, the respondents excessive exposure to the associate brokers is not only established from the record, but has also been admitted by respondents9. It is settled law that when a penalty is imposed by an Adjudicating Officer, it is done so in adjudicatory proceedings and not by way of fine as a result of prosecution of an accused for commission of an offence in a criminal proceeding. In the instant case, the Tribunal has failed to appreciate that the respondents had given undue and unfair advantage to the associated brokers, which is detrimental to the interest of the unit holders. In the present case, it has been established by the Adjudicating Officer as well as admitted by the respondents that there has been a conscious disregard of the obligation inasmuch as the respondents were aware that they were acting in violation of the provisions of Regulations. The Adjudicating Officer had, after taking into account all the facts and circumstances of the case, imposed only a token of Rs. 5 lacs against the respondents for its failure on 12 occasions though the charging section permits imposition of a maximum penalty of Rs. 5 lacs for each such violation. The Appellant Board has been established by the Parliament under the Securities and Exchange Board of India Act, 1992 to protect the interest of investors in securities and to promote the development of, and to regulate the securities market and for matter connected therewith or incidental thereto. The Board was set up to promote orderly and healthy growth of the securities market and for investors protection SEBI has been monitoring and regulating the activities of Stock Exchanges, Mutual Funds and Merchant Bankers, etc. to achieve these goals10. The Tribunal has erroneously relied on the judgment in the case of Hindustan Steel Ltd. Vs. State of Orissa, AIR 1970 SC 253 which pertained to criminal/quasi-criminal proceeding. That Section 25 of the Orissa Sales Tax Act which was in question in the said case imposed a punishment of imprisonment up to six months and fine for the offences under the Act. The said case has no application in the present case which relates to imposition of civil liabilities under the SEBI Act and Regulations and is not a criminal/quasi-criminal proceeding11. In our considered opinion, penalty is attracted as soon as the contravention of the statutory obligation as contemplated by the Act and the Regulation is established and hence the intention of the parties committing such violation becomes wholly irrelevant. A breach of civil obligation which attracts penalty in the nature of fine under the provisions of the Act and the Regulations would immediately attract the levy of penalty irrespective of the fact whether contravention must made by the defaulter with guilty intention or not. We also further held that unless the language of the statute indicates the need to establish the presence of mens rea, it is wholly unnecessary to ascertain whether such a violation was intentional or not. On a careful perusal of Section 15(D)(b) and Section 15-E of the Act, there is nothing which requires that mens rea must be proved before penalty can be imposed under these provisions. Hence once the contravention is established then the penalty is to follow. In our view, the impugned judgment of the Securities appellate Tribunal has set a serious wrong precedent and the powers of the SEBI to impose penalty under Chapter VIA are severely curtailed against the plain language of the statute which mandatorily imposes penalties on the contravention of the Act/Regulations without any requirement of the contravention having been deliberated or contumacious. The impugned order sets the stage for various market players to violate statutory regulations with impunity and subsequently plead ignorance of law or lack of mens rea to escape the imposition of penalty. The imputing mens rea into the provisions of Chapter VI A is against the plain language of the statute and frustrates entire purpose and object of introducing Chapter VIA to give teeth to the SEBI to secure strict compliance of the Act and the Regulations. | 1 | 6,502 | 1,383 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
of criminal liability, the intention of the legislature is that the penalty should serve as a deterrent. The creation of an offence by statute proceeds on the assumption that society suffers injury by the act or omission of the defaulter and that a deterrent must be imposed to discourage the repetition of the offence. In the case of a proceeding under Section 271(1)(a), however, it seems that the intention of the legislature is to emphasize the fact of loss of revenue and to provide a remedy for such loss, although no doubt an element of coercion is present in the penalty. In this connection, the terms in which the penalty falls to be measured is significant. Unless there is something in the language of the statute indicating the need to establish the element of mens rea it is generally sufficient to prove that a default in complying with the statute has occurred. In our opinion, there is nothing in Section 271(1)(a) which requires that mens rea must be proved before penalty can be levied under that provision." (e) Swedish Match AB and Anr. Vs. SEBI & anr. , (2004) 11 SCC 641. "The provisions of Section 15-H of the Act mandate that a penalty of rupees twenty five crores may be imposed. The Board does not have any discretion in the matter and, thus the adjudication proceeding is a mere formality. Imposition of penalty upon the appellant would, thus, be a forgone conclusion. Only in the criminal proceedings initiated against the appellants, existence of mens rea on the part of the appellants will come up for consideration." (f) SEBI vs. Cabot International Capital Corporation, (2005) 123 Comp. Cases 841 (Bom). "Thus, the following extracted principles are summarized: (A) Mens rea is an essential or sine qua non for criminal offence. (B) Strait jacket formula of mens rea cannot be blindly followed in each and every case. Scheme of particular statute may be diluted in a given case. (C) If, from the scheme, object and words used in the statute, it appears that the proceedings for imposition of the penalty are adjudicatory in nature, in contra-distinction to criminal or quasi criminal proceedings, the determination is of the breach of the civil obligation by the offender. The word "penalty" by itself will not be determinative to conclude the nature of proceedings being criminal or quasi-criminal. The relevant considerations being the nature of the functions being discharged by the authority and the determination of the liability of the contravenor and the delinquency. (D) Mens rea is not essential element for imposing penalty for breach of civil obligations or liabilities. (E) There can be two distinct liabilities, civil and criminal under the same Act. (Para 52) The SEBI Act and the Regulations are intended to regulate the Security Market and related aspects, the imposition of penalty, in the given facts and circumstances of the case, cannot be tested on the ground of "no mens rea no penalty". For breaches of provisions of SEBI Act and Regulations, according to us, which are civil in nature, mens rea is not essential. On particular facts and circumstances of the case, proper exercise or judicial discretion is a must, but not on a foundation that mens rea is an essential to impose penalty in each and every breach of provisions of the SEBI Act. (Para 54) However, we are not in agreement with the appellate authority in respect of the reasoning given in regard to the necessity of mens rea being essential for imposing the penalty. According to us, mens rea is not essential for imposing civil penalties under the SEBI Act and Regulations." 10. The Tribunal has erroneously relied on the judgment in the case of Hindustan Steel Ltd. Vs. State of Orissa, AIR 1970 SC 253 which pertained to criminal/quasi-criminal proceeding. That Section 25 of the Orissa Sales Tax Act which was in question in the said case imposed a punishment of imprisonment up to six months and fine for the offences under the Act. The said case has no application in the present case which relates to imposition of civil liabilities under the SEBI Act and Regulations and is not a criminal/quasi-criminal proceeding. 11. In our considered opinion, penalty is attracted as soon as the contravention of the statutory obligation as contemplated by the Act and the Regulation is established and hence the intention of the parties committing such violation becomes wholly irrelevant. A breach of civil obligation which attracts penalty in the nature of fine under the provisions of the Act and the Regulations would immediately attract the levy of penalty irrespective of the fact whether contravention must made by the defaulter with guilty intention or not. We also further held that unless the language of the statute indicates the need to establish the presence of mens rea, it is wholly unnecessary to ascertain whether such a violation was intentional or not. On a careful perusal of Section 15(D)(b) and Section 15-E of the Act, there is nothing which requires that mens rea must be proved before penalty can be imposed under these provisions. Hence once the contravention is established then the penalty is to follow. In our view, the impugned judgment of the Securities appellate Tribunal has set a serious wrong precedent and the powers of the SEBI to impose penalty under Chapter VIA are severely curtailed against the plain language of the statute which mandatorily imposes penalties on the contravention of the Act/Regulations without any requirement of the contravention having been deliberated or contumacious. The impugned order sets the stage for various market players to violate statutory regulations with impunity and subsequently plead ignorance of law or lack of mens rea to escape the imposition of penalty. The imputing mens rea into the provisions of Chapter VI A is against the plain language of the statute and frustrates entire purpose and object of introducing Chapter VIA to give teeth to the SEBI to secure strict compliance of the Act and the Regulations.
### Response:
1
### Explanation:
hold that the respondents have wilfully violated statutory provisions with impunity and hence the imposition of penalty was fully justified. The Tribunal, in this context, failed to appreciate that every Mutual Fund has to redeem the units as per terms and conditions of the scheme on the request of the unit holders and this cannot, in any manner, be considered as an extraordinary circumstance or something which was not known to the respondents. The facts and circumstances of the present case in no way indicate the existence of special circumstances so as to waive the penalty imposed by the Adjudicating Officer. A perusal of the order passed by the Adjudicating Officer would clearly go to show that factors such as small size of the funds, low volume of transactions, thinly traded securities, administrative and operational exigencies were duly considered and appreciated by the Adjudicating Officer while passing the order and that is why the Adjudicating Officer did not impose the maximum permissible penalty. The Tribunal failed to appreciate that the objective behind imposing certain limit on the business that can be conducted by mutual fund through the associate broker is to eliminate any undue advantage to the class of brokers by virtue of their close association with the Asset Management Company, sponsors etc. In other words, the object of imposing such limits is to ensure that there is no concentration of business only in such entities, so that there is an indirect pecuniary advantage to the person associated with the Asset Management Company, sponsors etc. Any undue concentration on the business of the mutual fund with its affiliated brokers by paying huge commissions to such brokers is neither desirable nor in the interest of the unit holders. It is a matter of record that in the 12 admitted instances of violation by the respondents, the percentage of the business through the associated brokers was as high as 91.68% and 52.2% in certain factors. This apart, the respondents excessive exposure to the associate brokers is not only established from the record, but has also been admitted by respondents9. It is settled law that when a penalty is imposed by an Adjudicating Officer, it is done so in adjudicatory proceedings and not by way of fine as a result of prosecution of an accused for commission of an offence in a criminal proceeding. In the instant case, the Tribunal has failed to appreciate that the respondents had given undue and unfair advantage to the associated brokers, which is detrimental to the interest of the unit holders. In the present case, it has been established by the Adjudicating Officer as well as admitted by the respondents that there has been a conscious disregard of the obligation inasmuch as the respondents were aware that they were acting in violation of the provisions of Regulations. The Adjudicating Officer had, after taking into account all the facts and circumstances of the case, imposed only a token of Rs. 5 lacs against the respondents for its failure on 12 occasions though the charging section permits imposition of a maximum penalty of Rs. 5 lacs for each such violation. The Appellant Board has been established by the Parliament under the Securities and Exchange Board of India Act, 1992 to protect the interest of investors in securities and to promote the development of, and to regulate the securities market and for matter connected therewith or incidental thereto. The Board was set up to promote orderly and healthy growth of the securities market and for investors protection SEBI has been monitoring and regulating the activities of Stock Exchanges, Mutual Funds and Merchant Bankers, etc. to achieve these goals10. The Tribunal has erroneously relied on the judgment in the case of Hindustan Steel Ltd. Vs. State of Orissa, AIR 1970 SC 253 which pertained to criminal/quasi-criminal proceeding. That Section 25 of the Orissa Sales Tax Act which was in question in the said case imposed a punishment of imprisonment up to six months and fine for the offences under the Act. The said case has no application in the present case which relates to imposition of civil liabilities under the SEBI Act and Regulations and is not a criminal/quasi-criminal proceeding11. In our considered opinion, penalty is attracted as soon as the contravention of the statutory obligation as contemplated by the Act and the Regulation is established and hence the intention of the parties committing such violation becomes wholly irrelevant. A breach of civil obligation which attracts penalty in the nature of fine under the provisions of the Act and the Regulations would immediately attract the levy of penalty irrespective of the fact whether contravention must made by the defaulter with guilty intention or not. We also further held that unless the language of the statute indicates the need to establish the presence of mens rea, it is wholly unnecessary to ascertain whether such a violation was intentional or not. On a careful perusal of Section 15(D)(b) and Section 15-E of the Act, there is nothing which requires that mens rea must be proved before penalty can be imposed under these provisions. Hence once the contravention is established then the penalty is to follow. In our view, the impugned judgment of the Securities appellate Tribunal has set a serious wrong precedent and the powers of the SEBI to impose penalty under Chapter VIA are severely curtailed against the plain language of the statute which mandatorily imposes penalties on the contravention of the Act/Regulations without any requirement of the contravention having been deliberated or contumacious. The impugned order sets the stage for various market players to violate statutory regulations with impunity and subsequently plead ignorance of law or lack of mens rea to escape the imposition of penalty. The imputing mens rea into the provisions of Chapter VI A is against the plain language of the statute and frustrates entire purpose and object of introducing Chapter VIA to give teeth to the SEBI to secure strict compliance of the Act and the Regulations.
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M/S. Escorts Ltd Vs. Commnr. Of Central Excise, Faridabad | excise duty due thereon, provided the final product is chargeable to duty. As per this notification, M/s TAFE have paid duty on all the goods falling under Chapter Sub-Heading 87.08, used in the manufacture of Tractors of engine capacity less than 1800cc which are exempted, except the sub-assemblies manufactured and used in the exempted tractors. Therefore, it appears that M/s TAFE are liable to pay duty on all the sub-assemblies manufactured (as per Annexure-I and II), and used in the Tractors which are exempt for the period from April, 1997 to May, 1998.5. M/s. TAFE have not brought to the notice of the manufacture of sub-assemblies to the Department with the intention to evade payment of excise duty. They have willfully suppressed the fact of the manufacture of the sub-assemblies from the knowledge of the Department and cleared the same without payment of duty for use in the manufacture of Tractors, which are exempted. It can be seen from the process of manufacture that the making of the independent, sub-assemblies are inevitable in the Tractor build. But, M/s TAFE chose to declare only the parts constituting these sub-assemblies as factory finished items and not sub-assembly. Whether these factory finished items and bought out, items, when assembled will form a sub-assembly has not been declared by them. M/s. TAFE have chosen not to declare the sub-assemblies willfully in order to evade payment of duty.” 21. In the reply to the show cause notice, the respondents stated that they had never sold transmission assemblies in the market and that their price list does not carry a list price for this item. The only removal ever made was during the warranty period of one tractor and this one removal does not justify the fact that transmission assemblies have a market. It was further stated that had the respondents known that transmission assemblies were excisable, they would have claimed exemption as the finished product was exempt. Further, Transmission Assembly is only recognized as an Assembly line intermediate product and not as a product in itself which is separately identifiable as in the case of other Assemblies such as axel shaft, engine, gear parts, instrument panels, etc. The difference in this case is that vide an order dated 30.4.2004 the authorities found in favour of the respondents on merits holding that there was neither manufacture nor marketability of the Transmission Assemblies in question. This was confirmed in appeal by CESTAT by the impugned judgment dated 12.11.2009. 22. In view of what is stated in Civil Appeal No.6561 of 2004, the part of the order in original and the CESTAT order on merits have to be set aside. However, for the self-same reasons as are contained in Civil Appeal No.6561 of 2004, we hold that the extended period of limitation is not available as we are satisfied that the reply extracted above of the respondent shows that the respondent bona fide believed that Transmission Assemblies were not dutiable. In the circumstances, the appeals of the revenue shall stand dismissed on this ground. C.A. No.457 of 2006 23. The facts in this appeal are as follows. The period involved is April, 1996 to May, 1998 and the show cause notice is dated 1.5.2001. As the impugned judgment in this case by CESTAT merely follows the Escorts case i.e. Civil Appeal No.6561 of 2004, we hold that the finding of the authorities on merits is correct. However, in this case also the extended period of limitation is not available to the revenue. 24. In the order dated 26.12.2001, the Commissioner stated:- “In the present inquiry which was undertaken by the proper officer, it was found that the transmission assembly or chassis assembly which is classifiable under Sub-heading 87.08 of the 1st Schedule to the Central Excise Act was not declared by the noticee in the classification list. Therefore, their plea that they have declared the chassis thereof does not cover transmission assembly or chassis assembly. They themselves in their reply have admitted that the chassis is the main frame that supports the body and the engine has to be so framed as to receive, hold and fasten an engine and other components of the tractors (Para 14 of the reply). Thus, transmission assembly is not the chassis and since the noticee have failed to declare the transmission assembly/ chassis assembly, the suppression of fact is clear.The intention to evade duty is clear from the statement of Shri P.C. Kale dated 12.04.2001 as the noticee was knowing that duty is required to be paid on the goods which go into the assembly of the tractor of engine capacity less than 1800 CC. As such tractors were exempt from duty during the relevant period. Knowing this fact very well and not declaring the transmission assembly or chassis assembly in the classification declaration and clearing such transmission assembly/ chassis assembly without payment of duty without recording their production in the statutory records and without filing the RT-12 returns for the production and clearance of such transmission assembly/ chassis assembly clearly established that this was done with an intention to evade payment of duty.” 25. We find that in successive declarations made by the assessee in this case starting from 16.3.1995 the assessee had declared not merely the tractor but the chassis therefor. The assessee bonafide believed that the declaration of the chassis would suffice as according to them Transmission Assemblies were not taxable goods. The intention to evade duty is according to the Commissioner made out from a statement made by Shri P.C. Kale dated 12.4.2001. It is pointed out by learned counsel appearing on behalf of the appellant that in the memorandum of appeal filed against the order in original, Shri P.C. Kale was never in the employment of the appellant during the relevant period as he joined the appellant only in July, 2000. Apart from this, it is also pointed out that the appellant is a public sector company governed by a Board of Directors consisting of IAS Officers. | 1[ds]9. Although the definition ofis an inclusive one, it is clear that materials, commodities and articles spoken of in the definition take colour from one another. In order to beit is clear that they should be known to the market as materials, commodities and articles that are capable of being sold.The facts in the present case show that Transmission Assemblies of tractors are commercially known products as has been pointed out above. The fact that not a single sale of such Assembly has been made by the appellants is irrelevant. This being the case, we are of the view that the Transmission Assembly of the tractor on the facts before us is clearly an intermediate product which is a distinct product commercially known to the market as such. On this ground therefore, the appellants are not liable to succeed.Added to this, the appellants have also clearly stated that not a single Transmission Assembly has in fact been sold by them in the market. On these facts, we are of the opinion that the appellants would fall within the test laid down in two judgments of this Court.Judged by this test, it is clear that on facts in the present case there was no suppression on the part of the appellants nor was there any willful attempt to evade duty. As stated by the appellant, the appellant has been manufacturing tractors from 1965 onwards. There has never been any change in the manufacturing process. In the year 1994-95, IC engines were stated by the department to contain Transmission Assemblies, which were dutiable. On receiving a reply from the appellant, the department did not levy any excise duty on such Transmission Assemblies. The show-cause notice itself stated that the issue of manufacture and captive consumption of Transmission Assemblies for tractors is the same as that for IC engines. These facts, coupled with the fact that not a single Transmission Assembly of tractors manufactured by the appellant had been sold makes it clear that there was no suppression or any intent to evade excise duty in the present case. We feel that the show cause notice needs to be quashed on this ground alone. Accordingly, the appeal is allowed, and the judgment dated 27.5.2004 passed by CESTAT is set aside.In view of what is stated in Civil Appeal No.6561 of 2004, the part of the order in original and the CESTAT order on merits have to be set aside. However, for the self-same reasons as are contained in Civil Appeal No.6561 of 2004, we hold that the extended period of limitation is not available as we are satisfied that the reply extracted above of the respondent shows that the respondent bona fide believed that Transmission Assemblies were not dutiable. In the circumstances, the appeals of the revenue shall stand dismissed on this ground.The facts in this appeal are as follows. The period involved is April, 1996 to May, 1998 and the show cause notice is dated 1.5.2001. As the impugned judgment in this case by CESTAT merely follows the Escorts case i.e. Civil Appeal No.6561 of 2004, we hold that the finding of the authorities on merits is correct. However, in this case also the extended period of limitation is not available to theintention to evade duty is clear from the statement of Shri P.C. Kale dated 12.04.2001 as the noticee was knowing that duty is required to be paid on the goods which go into the assembly of the tractor of engine capacity less than 1800 CC. As such tractors were exempt from duty during the relevant period. Knowing this fact very well and not declaring the transmission assembly or chassis assembly in the classification declaration and clearing such transmission assembly/ chassis assembly without payment of duty without recording their production in the statutory records and without filing the RT-12 returns for the production and clearance of such transmission assembly/ chassis assembly clearly established that this was done with an intention to evade payment of duty.We find that in successive declarations made by the assessee in this case starting from 16.3.1995 the assessee had declared not merely the tractor but the chassis therefor. The assessee bonafide believed that the declaration of the chassis would suffice as according to them Transmission Assemblies were not taxable goods. The intention to evade duty is according to the Commissioner made out from a statement made by Shri P.C. Kale dated 12.4.2001. It is pointed out by learned counsel appearing on behalf of the appellant that in the memorandum of appeal filed against the order in original, Shri P.C. Kale was never in the employment of the appellant during the relevant period as he joined the appellant only in July, 2000. Apart from this, it is also pointed out that the appellant is a public sector company governed by a Board of Directors consisting of IAS Officers. | 1 | 9,109 | 870 | ### Instruction:
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excise duty due thereon, provided the final product is chargeable to duty. As per this notification, M/s TAFE have paid duty on all the goods falling under Chapter Sub-Heading 87.08, used in the manufacture of Tractors of engine capacity less than 1800cc which are exempted, except the sub-assemblies manufactured and used in the exempted tractors. Therefore, it appears that M/s TAFE are liable to pay duty on all the sub-assemblies manufactured (as per Annexure-I and II), and used in the Tractors which are exempt for the period from April, 1997 to May, 1998.5. M/s. TAFE have not brought to the notice of the manufacture of sub-assemblies to the Department with the intention to evade payment of excise duty. They have willfully suppressed the fact of the manufacture of the sub-assemblies from the knowledge of the Department and cleared the same without payment of duty for use in the manufacture of Tractors, which are exempted. It can be seen from the process of manufacture that the making of the independent, sub-assemblies are inevitable in the Tractor build. But, M/s TAFE chose to declare only the parts constituting these sub-assemblies as factory finished items and not sub-assembly. Whether these factory finished items and bought out, items, when assembled will form a sub-assembly has not been declared by them. M/s. TAFE have chosen not to declare the sub-assemblies willfully in order to evade payment of duty.” 21. In the reply to the show cause notice, the respondents stated that they had never sold transmission assemblies in the market and that their price list does not carry a list price for this item. The only removal ever made was during the warranty period of one tractor and this one removal does not justify the fact that transmission assemblies have a market. It was further stated that had the respondents known that transmission assemblies were excisable, they would have claimed exemption as the finished product was exempt. Further, Transmission Assembly is only recognized as an Assembly line intermediate product and not as a product in itself which is separately identifiable as in the case of other Assemblies such as axel shaft, engine, gear parts, instrument panels, etc. The difference in this case is that vide an order dated 30.4.2004 the authorities found in favour of the respondents on merits holding that there was neither manufacture nor marketability of the Transmission Assemblies in question. This was confirmed in appeal by CESTAT by the impugned judgment dated 12.11.2009. 22. In view of what is stated in Civil Appeal No.6561 of 2004, the part of the order in original and the CESTAT order on merits have to be set aside. However, for the self-same reasons as are contained in Civil Appeal No.6561 of 2004, we hold that the extended period of limitation is not available as we are satisfied that the reply extracted above of the respondent shows that the respondent bona fide believed that Transmission Assemblies were not dutiable. In the circumstances, the appeals of the revenue shall stand dismissed on this ground. C.A. No.457 of 2006 23. The facts in this appeal are as follows. The period involved is April, 1996 to May, 1998 and the show cause notice is dated 1.5.2001. As the impugned judgment in this case by CESTAT merely follows the Escorts case i.e. Civil Appeal No.6561 of 2004, we hold that the finding of the authorities on merits is correct. However, in this case also the extended period of limitation is not available to the revenue. 24. In the order dated 26.12.2001, the Commissioner stated:- “In the present inquiry which was undertaken by the proper officer, it was found that the transmission assembly or chassis assembly which is classifiable under Sub-heading 87.08 of the 1st Schedule to the Central Excise Act was not declared by the noticee in the classification list. Therefore, their plea that they have declared the chassis thereof does not cover transmission assembly or chassis assembly. They themselves in their reply have admitted that the chassis is the main frame that supports the body and the engine has to be so framed as to receive, hold and fasten an engine and other components of the tractors (Para 14 of the reply). Thus, transmission assembly is not the chassis and since the noticee have failed to declare the transmission assembly/ chassis assembly, the suppression of fact is clear.The intention to evade duty is clear from the statement of Shri P.C. Kale dated 12.04.2001 as the noticee was knowing that duty is required to be paid on the goods which go into the assembly of the tractor of engine capacity less than 1800 CC. As such tractors were exempt from duty during the relevant period. Knowing this fact very well and not declaring the transmission assembly or chassis assembly in the classification declaration and clearing such transmission assembly/ chassis assembly without payment of duty without recording their production in the statutory records and without filing the RT-12 returns for the production and clearance of such transmission assembly/ chassis assembly clearly established that this was done with an intention to evade payment of duty.” 25. We find that in successive declarations made by the assessee in this case starting from 16.3.1995 the assessee had declared not merely the tractor but the chassis therefor. The assessee bonafide believed that the declaration of the chassis would suffice as according to them Transmission Assemblies were not taxable goods. The intention to evade duty is according to the Commissioner made out from a statement made by Shri P.C. Kale dated 12.4.2001. It is pointed out by learned counsel appearing on behalf of the appellant that in the memorandum of appeal filed against the order in original, Shri P.C. Kale was never in the employment of the appellant during the relevant period as he joined the appellant only in July, 2000. Apart from this, it is also pointed out that the appellant is a public sector company governed by a Board of Directors consisting of IAS Officers.
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9. Although the definition ofis an inclusive one, it is clear that materials, commodities and articles spoken of in the definition take colour from one another. In order to beit is clear that they should be known to the market as materials, commodities and articles that are capable of being sold.The facts in the present case show that Transmission Assemblies of tractors are commercially known products as has been pointed out above. The fact that not a single sale of such Assembly has been made by the appellants is irrelevant. This being the case, we are of the view that the Transmission Assembly of the tractor on the facts before us is clearly an intermediate product which is a distinct product commercially known to the market as such. On this ground therefore, the appellants are not liable to succeed.Added to this, the appellants have also clearly stated that not a single Transmission Assembly has in fact been sold by them in the market. On these facts, we are of the opinion that the appellants would fall within the test laid down in two judgments of this Court.Judged by this test, it is clear that on facts in the present case there was no suppression on the part of the appellants nor was there any willful attempt to evade duty. As stated by the appellant, the appellant has been manufacturing tractors from 1965 onwards. There has never been any change in the manufacturing process. In the year 1994-95, IC engines were stated by the department to contain Transmission Assemblies, which were dutiable. On receiving a reply from the appellant, the department did not levy any excise duty on such Transmission Assemblies. The show-cause notice itself stated that the issue of manufacture and captive consumption of Transmission Assemblies for tractors is the same as that for IC engines. These facts, coupled with the fact that not a single Transmission Assembly of tractors manufactured by the appellant had been sold makes it clear that there was no suppression or any intent to evade excise duty in the present case. We feel that the show cause notice needs to be quashed on this ground alone. Accordingly, the appeal is allowed, and the judgment dated 27.5.2004 passed by CESTAT is set aside.In view of what is stated in Civil Appeal No.6561 of 2004, the part of the order in original and the CESTAT order on merits have to be set aside. However, for the self-same reasons as are contained in Civil Appeal No.6561 of 2004, we hold that the extended period of limitation is not available as we are satisfied that the reply extracted above of the respondent shows that the respondent bona fide believed that Transmission Assemblies were not dutiable. In the circumstances, the appeals of the revenue shall stand dismissed on this ground.The facts in this appeal are as follows. The period involved is April, 1996 to May, 1998 and the show cause notice is dated 1.5.2001. As the impugned judgment in this case by CESTAT merely follows the Escorts case i.e. Civil Appeal No.6561 of 2004, we hold that the finding of the authorities on merits is correct. However, in this case also the extended period of limitation is not available to theintention to evade duty is clear from the statement of Shri P.C. Kale dated 12.04.2001 as the noticee was knowing that duty is required to be paid on the goods which go into the assembly of the tractor of engine capacity less than 1800 CC. As such tractors were exempt from duty during the relevant period. Knowing this fact very well and not declaring the transmission assembly or chassis assembly in the classification declaration and clearing such transmission assembly/ chassis assembly without payment of duty without recording their production in the statutory records and without filing the RT-12 returns for the production and clearance of such transmission assembly/ chassis assembly clearly established that this was done with an intention to evade payment of duty.We find that in successive declarations made by the assessee in this case starting from 16.3.1995 the assessee had declared not merely the tractor but the chassis therefor. The assessee bonafide believed that the declaration of the chassis would suffice as according to them Transmission Assemblies were not taxable goods. The intention to evade duty is according to the Commissioner made out from a statement made by Shri P.C. Kale dated 12.4.2001. It is pointed out by learned counsel appearing on behalf of the appellant that in the memorandum of appeal filed against the order in original, Shri P.C. Kale was never in the employment of the appellant during the relevant period as he joined the appellant only in July, 2000. Apart from this, it is also pointed out that the appellant is a public sector company governed by a Board of Directors consisting of IAS Officers.
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Mahant Shreo Nath Vs. Choudhry Ranbir Singh | the residence of the respondent Ram Dhari Balmiki, Attar Singh Khatak, Partap Singh (son of the respondent), Jamadar Parbhe ram were present, that he was told that Chand Ram was busy in the elections and he (Chand ram) Had sent the leaflets after getting them printed and that the witness Bhalle Ram Should distribute those leaflets in the Harijan villages and also ask the Harijan villages and also ask the Harijans to vote for the respondent; and that thereafter the respondent made two parties for distribution of those leaflets, that the witnesses Bhalle Ram, Jamadar prabhe ram and the respondent formed one party, and that the leaflets were distributed in different villages. The witness further deposed that after 7 of 8 days of the date of polling he had informed Chand Ram that he had carried out his message and that her had succeeded in getting the respondent elected. The story of this witness was disbelieved by the High Court. It is not pretended that Bhalle Ram was a worker for the respondent of that the respondent had any reason to take Bhalle Ram in his confidence. Bhalle Ram is a Harijan and he regarded Chand Ram as his leader. It is highly improbable that the respondent who desired to distribute the leaflets, which he must have known to be fabricated and containing false averments, would avail himself of the services of Bhalle Ram who was a stranger to him. The conduct of Bhalle Ram also appears to be highly improbable. If he was asked by the respondent to distribute the leaflets, which he says he did, and which contained statements relating to the change of political allegiance by Chand Ram, he - Bhalle Ram - would have made some enquiry as to how Chand Ram came to change his allegations at the last moment, especially when Chand Ram was actually standing for election against a Congress candidate. But no such enquiry was made. In our view, the High Court was right in holding that Bhalle Ram was a "false witness". Bhalle Ram was a supporter of Chand Ram and the sympathies of Chand ram lay with the appellant. He has been persuaded to support the case of the appellant by posing that he had been called by the respondent on the night previous to the day of polling and that he had participated in the distribution of the leaflets.17. The story that the respondent himself moved till the morning of the polling day from village to village personally distributing the leaflets of contacting his workers for distributing the leaflets is unbelievable. The respondent had a large number of workers and agents who would have been deputed to go about distributing or handing over the leaflets to his agents of the respondent for distribution.18. Among the other witnesses who were cited were Prithi, Laxmi Narain, Giani Ram and Ghasi Ram. Prithi, Laxmi Narain and Ghasi Ram though summoned were not examined, and only Giani Ram and Harkesh were examined. Giani Ram stated that he had received for distribution the leaflets at 4 a.m. on May 14 from the respondent. Giani Ram, it may be noted, is a Brahmin. It is difficult to believe that he would undertake to distribute the leaflets among the Harijans or that the respondent would entrust that work to him. Giani ram is worker of the Rohtak Congress Committee. It appears that he did not support the candidature of the respondent. At one of the election meetings he wanted to speak opposing the candidature of the respondent, but he was not permitted to do so. Harkesh stated that he had seen the leaflet at the house of the respondent, that he was called by the respondent at about mid-night of May 13, 1968 not he pretext that Chand ram had called him. But at the house of the respondent he found Bhalle Ram, Parbhe Ram, Attar Singh Khatak, Ram Dhari Balmiki, but he did not see Chand ram. He asked Bhalle Ram why he was called. Bhalle Ram told him that there was a massage from Chand ram and handed over the leaflets to him. He then stated that the respondent gave him the leaflets for distribution.19. The story that the party of Partap Singh (son of the respondent) moved form place to place and that leaflets were distributed by them also is also unreliable. In support of this case witnesses Giani Ram, Harkesh, Munshi, ram Chander, Om Prakash and Narinder Singh were examined. Giani Ram stated that the along with Attar Singh Khatak, ram Dhari and Partap Singh (son of the respondent) went to Karontha, Simli, Miana, Karor, Karo and Baliana and distributed the leaflets. In cross-examination if was elicited that he had a dispute with the supporters of the respondent and that a report was lodged with the police in that behalf. The story that he was called from his house on the night of May 13, 1968, and that he participated in the distribution of the offending leaflets is not supported by any reliable evidence, and has, in out judgment, been rightly disbelieved. On a consideration of the evidence of Munshi the High Court held that he was a "thoroughly unreliable witness". About the witness Ram Chander the High Court observed that it could not place "any reliance on his testimony". About the witness Om Prakash and Narinder Singh the High Court observed that "the less said about these two statements, the better". We have been taken through the evidence of those witness and we see no reason to disagree with the appreciation of the evidence by the High Court. The story deposed by the witnesses is highly improbable : their statements are inconsistent and are not supported by any independent witnesses who could have been examined.20. In our judgment, the High Court was right in disbelieving the case of the appellant that the respondent either personally or through his agents had distributed the leaflet Ex. P.W. 7/1 as alleged by the appellant. | 0[ds]4. A plea in an election petition that a candidate or his election agent of any person with his consent has committed a corrupt practice raises a grave charge, proof of which results in disqualification from taking part in elections for six years. The charge in its very nature must be established by cleat and cogent evidence by those who seek to prove it. The Court does not hold such a charge proved merely on preponderance of probability : the Court requires that the conduct attributed to the offender is proved by evidence which establishes it beyond reasonable doubt.Om Prakash is not a reliable witness. He did not hold a permit for plying the vehicle in the village Pakasma, he maintained no accounts in support of the contract set up by him. He did not pass any receipt for the payment made to him, and his name was not even entered in the records maintained under the Motor vehicles Act. The High Court also referred to certain discrepancies between the testimony of ram Singh, Kundan and Chhotu. If the testimony of Om Prakash is disbelieved, as it must in view of the infirmities, it is difficult to accepted the testimony of witnesses ram Singh, Kundan and Chhotu who admitted that they gave no information to any one that they were brought to the polling station in the vehicle driven by Om Prakash and that they had paid no charges in respect of it. We agree with the view of the High Court that it was not proved that the respondent had hired or procured a vehicle for the use of electors to and from the poling station on the date ofstory that there was cancellation of the contracts by registered letters, especially of the contract with Ram Singh, is open to doubt especially because of the suspicious appearance of the registration envelope produced in support of that case. But we still do not disagree with the view of the High Court on a matter of appreciation of evidence of Jianand and the other contracting parties, viz. Hari Ram and Ram Singh.11. It is common ground that no formal contract was executed for employment of Jianand in the election propaganda. Jianand has executed a recipe for Rs.His story that he signed the receipt without reading it is difficult of acceptance. Jianand maintains no accounts of his earning. A bare perusal of his testimony shows that he made contradictory statements in attempting to "explain away the recitals in the receipts". When asked whether he was in the habit of signing papers without reading them, jianand stated that "it was not so". He admitted that he was told that the receipt was for Rs.He also admitted that all the Bhajniks were present when he executed the receipt and that all the other Bhajniks executed receipts on that very day, that is "on May 11 or 12, 1968". But the receipts passed in favour of the other Bhajniks do not support the case of Jianand. The High Courts had carefully analysed the evidence and has observed :"There is no evidence barring the statement of Jianand that his engagement was from the 18th of April to the 11th of May, 1968, and at Rs. 100/per day; and Jianand’s statement comes into direct conflict with the receipt issued by him. He did state that for the engagements in marriages, his charges are Rs. 100/per day. He gets documents executed. There is no proper explanation why he would pass a document for his engagement at Rs.a document which will from part of public record. Not only this, there is no evidence that the Bhajan Party of Jianand consisted of four persons including him. x x x x It is also interesting to note that Jianand was vehement in denying that he had any connection with any politicalagents of the respondent may very probably have persuaded Jianand to forego the benefit of the two contracts and to accept payment at the rate of Rs. 30/per day. Political sympathy of Jianand was always with the Congress party. He was working as a "Congress Bhajnik" in the earlier elections and he had done propaganda for the Congress candidates. There is nothing surprising in a professional singer reducing his usual charges for participating in an election campaign to further the prospects of a candidate of his party and thereby to ensure the patronage of the party. The High Court was of the view that there was no convincing evidence that for a longer engagement in election work, the rates of Jianand would be the same as in the case of marriage parties. We do not think that having regard to the circumstances that inference is not justifiable. The second contention raised by the appellant must alsois no evidence that Chand Ram had authorised publication of the leaflet. Chand Ram deposed that he was contesting the elections from two constituencies of Rohtak and Babain; that he lost in the Rohtak constituency but was elected from the Babain constituency; and that he had not authorised the printing of the leaflet and the contents thereof were untrue. The case of the appellant was that the respondent got printed this leaflet in the night of May 13, 1968, and distributed it in the early morning of the polling day. It was claimed by the appellant that the leaflet was printed and published at the Tehreek Printing Press owned by Gian Singh a relation of the respondent, but there is no reliable evidence in support of that claim.It is not pretended that Bhalle Ram was a worker for the respondent of that the respondent had any reason to take Bhalle Ram in his confidence. Bhalle Ram is a Harijan and he regarded Chand Ram as his leader. It is highly improbable that the respondent who desired to distribute the leaflets, which he must have known to be fabricated and containing false averments, would avail himself of the services of Bhalle Ram who was a stranger to him. The conduct of Bhalle Ram also appears to be highly improbable. If he was asked by the respondent to distribute the leaflets, which he says he did, and which contained statements relating to the change of political allegiance by Chand Ram, held have made some enquiry as to how Chand Ram came to change his allegations at the last moment, especially when Chand Ram was actually standing for election against a Congress candidate. But no such enquiry was made. In our view, the High Court was right in holding that Bhalle Ram was a "false witness". Bhalle Ram was a supporter of Chand Ram and the sympathies of Chand ram lay with the appellant. He has been persuaded to support the case of the appellant by posing that he had been called by the respondent on the night previous to the day of polling and that he had participated in the distribution of the leaflets.It is difficult to believe that he would undertake to distribute the leaflets among the Harijans or that the respondent would entrust that work to him. Giani ram is worker of the Rohtak Congress Committee. It appears that he did not support the candidature of the respondent. At one of the election meetings he wanted to speak opposing the candidature of the respondent, but he was not permitted to do so. Harkesh stated that he had seen the leaflet at the house of the respondent, that he was called by the respondent at aboutof May 13, 1968 not he pretext that Chand ram had called him. But at the house of the respondent he found Bhalle Ram, Parbhe Ram, Attar Singh Khatak, Ram Dhari Balmiki, but he did not see Chand ram. He asked Bhalle Ram why he was called. Bhalle Ram told him that there was a massage from Chand ram and handed over the leaflets to him. He then stated that the respondent gave him the leaflets for distribution.19. The story that the party of Partap Singh (son of the respondent) moved form place to place and that leaflets were distributed by them also is also unreliable. In support of this case witnesses Giani Ram, Harkesh, Munshi, ram Chander, Om Prakash and Narinder Singh were examined. Giani Ram stated that the along with Attar Singh Khatak, ram Dhari and Partap Singh (son of the respondent) went to Karontha, Simli, Miana, Karor, Karo and Baliana and distributed the leaflets. Inif was elicited that he had a dispute with the supporters of the respondent and that a report was lodged with the police in that behalf. The story that he was called from his house on the night of May 13, 1968, and that he participated in the distribution of the offending leaflets is not supported by any reliable evidence, and has, in out judgment, been rightly disbelieved. On a consideration of the evidence of Munshi the High Court held that he was a "thoroughly unreliable witness". About the witness Ram Chander the High Court observed that it could not place "any reliance on his testimony". About the witness Om Prakash and Narinder Singh the High Court observed that "the less said about these two statements, the better". We have been taken through the evidence of those witness and we see no reason to disagree with the appreciation of the evidence by the High Court. The story deposed by the witnesses is highly improbable : their statements are inconsistent and are not supported by any independent witnesses who could have been examined.20. In our judgment, the High Court was right in disbelieving the case of the appellant that the respondent either personally or through his agents had distributed the leaflet Ex. P.W. 7/1 as alleged by the appellant. | 0 | 5,178 | 1,768 | ### 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 residence of the respondent Ram Dhari Balmiki, Attar Singh Khatak, Partap Singh (son of the respondent), Jamadar Parbhe ram were present, that he was told that Chand Ram was busy in the elections and he (Chand ram) Had sent the leaflets after getting them printed and that the witness Bhalle Ram Should distribute those leaflets in the Harijan villages and also ask the Harijan villages and also ask the Harijans to vote for the respondent; and that thereafter the respondent made two parties for distribution of those leaflets, that the witnesses Bhalle Ram, Jamadar prabhe ram and the respondent formed one party, and that the leaflets were distributed in different villages. The witness further deposed that after 7 of 8 days of the date of polling he had informed Chand Ram that he had carried out his message and that her had succeeded in getting the respondent elected. The story of this witness was disbelieved by the High Court. It is not pretended that Bhalle Ram was a worker for the respondent of that the respondent had any reason to take Bhalle Ram in his confidence. Bhalle Ram is a Harijan and he regarded Chand Ram as his leader. It is highly improbable that the respondent who desired to distribute the leaflets, which he must have known to be fabricated and containing false averments, would avail himself of the services of Bhalle Ram who was a stranger to him. The conduct of Bhalle Ram also appears to be highly improbable. If he was asked by the respondent to distribute the leaflets, which he says he did, and which contained statements relating to the change of political allegiance by Chand Ram, he - Bhalle Ram - would have made some enquiry as to how Chand Ram came to change his allegations at the last moment, especially when Chand Ram was actually standing for election against a Congress candidate. But no such enquiry was made. In our view, the High Court was right in holding that Bhalle Ram was a "false witness". Bhalle Ram was a supporter of Chand Ram and the sympathies of Chand ram lay with the appellant. He has been persuaded to support the case of the appellant by posing that he had been called by the respondent on the night previous to the day of polling and that he had participated in the distribution of the leaflets.17. The story that the respondent himself moved till the morning of the polling day from village to village personally distributing the leaflets of contacting his workers for distributing the leaflets is unbelievable. The respondent had a large number of workers and agents who would have been deputed to go about distributing or handing over the leaflets to his agents of the respondent for distribution.18. Among the other witnesses who were cited were Prithi, Laxmi Narain, Giani Ram and Ghasi Ram. Prithi, Laxmi Narain and Ghasi Ram though summoned were not examined, and only Giani Ram and Harkesh were examined. Giani Ram stated that he had received for distribution the leaflets at 4 a.m. on May 14 from the respondent. Giani Ram, it may be noted, is a Brahmin. It is difficult to believe that he would undertake to distribute the leaflets among the Harijans or that the respondent would entrust that work to him. Giani ram is worker of the Rohtak Congress Committee. It appears that he did not support the candidature of the respondent. At one of the election meetings he wanted to speak opposing the candidature of the respondent, but he was not permitted to do so. Harkesh stated that he had seen the leaflet at the house of the respondent, that he was called by the respondent at about mid-night of May 13, 1968 not he pretext that Chand ram had called him. But at the house of the respondent he found Bhalle Ram, Parbhe Ram, Attar Singh Khatak, Ram Dhari Balmiki, but he did not see Chand ram. He asked Bhalle Ram why he was called. Bhalle Ram told him that there was a massage from Chand ram and handed over the leaflets to him. He then stated that the respondent gave him the leaflets for distribution.19. The story that the party of Partap Singh (son of the respondent) moved form place to place and that leaflets were distributed by them also is also unreliable. In support of this case witnesses Giani Ram, Harkesh, Munshi, ram Chander, Om Prakash and Narinder Singh were examined. Giani Ram stated that the along with Attar Singh Khatak, ram Dhari and Partap Singh (son of the respondent) went to Karontha, Simli, Miana, Karor, Karo and Baliana and distributed the leaflets. In cross-examination if was elicited that he had a dispute with the supporters of the respondent and that a report was lodged with the police in that behalf. The story that he was called from his house on the night of May 13, 1968, and that he participated in the distribution of the offending leaflets is not supported by any reliable evidence, and has, in out judgment, been rightly disbelieved. On a consideration of the evidence of Munshi the High Court held that he was a "thoroughly unreliable witness". About the witness Ram Chander the High Court observed that it could not place "any reliance on his testimony". About the witness Om Prakash and Narinder Singh the High Court observed that "the less said about these two statements, the better". We have been taken through the evidence of those witness and we see no reason to disagree with the appreciation of the evidence by the High Court. The story deposed by the witnesses is highly improbable : their statements are inconsistent and are not supported by any independent witnesses who could have been examined.20. In our judgment, the High Court was right in disbelieving the case of the appellant that the respondent either personally or through his agents had distributed the leaflet Ex. P.W. 7/1 as alleged by the appellant.
### Response:
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### Explanation:
interesting to note that Jianand was vehement in denying that he had any connection with any politicalagents of the respondent may very probably have persuaded Jianand to forego the benefit of the two contracts and to accept payment at the rate of Rs. 30/per day. Political sympathy of Jianand was always with the Congress party. He was working as a "Congress Bhajnik" in the earlier elections and he had done propaganda for the Congress candidates. There is nothing surprising in a professional singer reducing his usual charges for participating in an election campaign to further the prospects of a candidate of his party and thereby to ensure the patronage of the party. The High Court was of the view that there was no convincing evidence that for a longer engagement in election work, the rates of Jianand would be the same as in the case of marriage parties. We do not think that having regard to the circumstances that inference is not justifiable. The second contention raised by the appellant must alsois no evidence that Chand Ram had authorised publication of the leaflet. Chand Ram deposed that he was contesting the elections from two constituencies of Rohtak and Babain; that he lost in the Rohtak constituency but was elected from the Babain constituency; and that he had not authorised the printing of the leaflet and the contents thereof were untrue. The case of the appellant was that the respondent got printed this leaflet in the night of May 13, 1968, and distributed it in the early morning of the polling day. It was claimed by the appellant that the leaflet was printed and published at the Tehreek Printing Press owned by Gian Singh a relation of the respondent, but there is no reliable evidence in support of that claim.It is not pretended that Bhalle Ram was a worker for the respondent of that the respondent had any reason to take Bhalle Ram in his confidence. Bhalle Ram is a Harijan and he regarded Chand Ram as his leader. It is highly improbable that the respondent who desired to distribute the leaflets, which he must have known to be fabricated and containing false averments, would avail himself of the services of Bhalle Ram who was a stranger to him. The conduct of Bhalle Ram also appears to be highly improbable. If he was asked by the respondent to distribute the leaflets, which he says he did, and which contained statements relating to the change of political allegiance by Chand Ram, held have made some enquiry as to how Chand Ram came to change his allegations at the last moment, especially when Chand Ram was actually standing for election against a Congress candidate. But no such enquiry was made. In our view, the High Court was right in holding that Bhalle Ram was a "false witness". Bhalle Ram was a supporter of Chand Ram and the sympathies of Chand ram lay with the appellant. He has been persuaded to support the case of the appellant by posing that he had been called by the respondent on the night previous to the day of polling and that he had participated in the distribution of the leaflets.It is difficult to believe that he would undertake to distribute the leaflets among the Harijans or that the respondent would entrust that work to him. Giani ram is worker of the Rohtak Congress Committee. It appears that he did not support the candidature of the respondent. At one of the election meetings he wanted to speak opposing the candidature of the respondent, but he was not permitted to do so. Harkesh stated that he had seen the leaflet at the house of the respondent, that he was called by the respondent at aboutof May 13, 1968 not he pretext that Chand ram had called him. But at the house of the respondent he found Bhalle Ram, Parbhe Ram, Attar Singh Khatak, Ram Dhari Balmiki, but he did not see Chand ram. He asked Bhalle Ram why he was called. Bhalle Ram told him that there was a massage from Chand ram and handed over the leaflets to him. He then stated that the respondent gave him the leaflets for distribution.19. The story that the party of Partap Singh (son of the respondent) moved form place to place and that leaflets were distributed by them also is also unreliable. In support of this case witnesses Giani Ram, Harkesh, Munshi, ram Chander, Om Prakash and Narinder Singh were examined. Giani Ram stated that the along with Attar Singh Khatak, ram Dhari and Partap Singh (son of the respondent) went to Karontha, Simli, Miana, Karor, Karo and Baliana and distributed the leaflets. Inif was elicited that he had a dispute with the supporters of the respondent and that a report was lodged with the police in that behalf. The story that he was called from his house on the night of May 13, 1968, and that he participated in the distribution of the offending leaflets is not supported by any reliable evidence, and has, in out judgment, been rightly disbelieved. On a consideration of the evidence of Munshi the High Court held that he was a "thoroughly unreliable witness". About the witness Ram Chander the High Court observed that it could not place "any reliance on his testimony". About the witness Om Prakash and Narinder Singh the High Court observed that "the less said about these two statements, the better". We have been taken through the evidence of those witness and we see no reason to disagree with the appreciation of the evidence by the High Court. The story deposed by the witnesses is highly improbable : their statements are inconsistent and are not supported by any independent witnesses who could have been examined.20. In our judgment, the High Court was right in disbelieving the case of the appellant that the respondent either personally or through his agents had distributed the leaflet Ex. P.W. 7/1 as alleged by the appellant.
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Afnees (Unconscious) Rep. Thr Mother Vs. Oriental Insurance Co. Ltd. Vadakara & Others | accident, the cost of his medical treatment and care is likely to be very high. In cases involving total or partial disablement, the term compensation used in Section 166 of the Motor Vehicles Act, 1988 (for short, the Act) would include not only the expenses incurred for immediate treatment, but also the amount likely to be incurred for future medical treatment/care necessary for a particular injury or disability caused by an accident. 15. In R.D. Hattangadi v. Pest Control (India) Private Limited, (1995) 1 SCC 551 , this Court while dealing with a case involving claim of compensation under the Motor Vehicles Act, 1939, referred to the judgment of the Court of Appeal in Ward v. James (1965) 1 All ER 563, Halsburys Laws of England, 4th Edition, Volume 12 (page 446) and observed: Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life. In the same case, the Court further observed: In its very nature whenever a tribunal or a court is required to fix the amount of compensation in cases of accident, it involves some guesswork, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standards. 16. In Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343 , the Court considered some of the precedents and held: The provision of the Motor Vehicles Act, 1988 makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages (Special damages) (i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure. (ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising: (a) Loss of earning during the period of treatment; (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. Non-pecuniary damages (General damages) (iv) Damages for pain, suffering and trauma as a consequence of the injuries. (v) Loss of amenities (and/or loss of prospects of marriage). (vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii) (a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life. 17. In the circumstances, we shall now consider whether the compensation awarded to the appellant is just and reasonable or he is entitled to enhanced compensation. 18. In our view, considering the age of the petitioner and the fact that he is fairly educated, it can be reasonably assumed that he would have earned at least Rs.3,000/- per month taking into account the disability of the petitioner to be 100%, the Tribunal rightly awarded the multiplier of 18 and came to a figure of Rs. 6,48,000/- and the High Court is wrong in allowing the appeal of the Insurance Company assessing the disability compensation at Rs. 5,76,000/- by adopting the multiplier of 16. (See Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121 ) 19. Though the appellant had claimed an amount of Rs. 22,00,000/- under different heads as compensation, the Tribunal has granted a meagre sum of Rs. 10,88,000/- and the High Court further reduced the compensation amount. We are of the view that the compensation of Rs. 1 lakh awarded by the High Court for future treatment was wholly inadequate as the High Court without considering the fact that the appellant because of the accident has to remain in the bed in his remaining life and he needs a person for his care and caution every time. | 1[ds]This Court has, from time to time, expressed concern over the increasing number of motor accidents and pendency of large number of cases involving adjudication of claims made by the legal representatives of the deceased as also by those who suffer permanent injuries and disabilities of various types as a result of accidents18. In our view, considering the age of the petitioner and the fact that he is fairly educated, it can be reasonably assumed that he would have earned at least Rs.3,000/per month taking into account the disability of the petitioner to be 100%, the Tribunal rightly awarded the multiplier of 18 and came to a figure of Rs. 6,48,000/and the High Court is wrong in allowing the appeal of the Insurance Company assessing the disability compensation at Rs. 5,76,000/by adopting the multiplier of 1619. Though the appellant had claimed an amount of Rs. 22,00,000/under different heads as compensation, the Tribunal has granted a meagre sum of Rs. 10,88,000/and the High Court further reduced the compensation amount. We are of the view that the compensation of Rs. 1 lakh awarded by the High Court for future treatment was wholly inadequate as the High Court without considering the fact that the appellant because of the accident has to remain in the bed in his remaining life and he needs a person for his care and caution every time | 1 | 2,317 | 247 | ### 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:
accident, the cost of his medical treatment and care is likely to be very high. In cases involving total or partial disablement, the term compensation used in Section 166 of the Motor Vehicles Act, 1988 (for short, the Act) would include not only the expenses incurred for immediate treatment, but also the amount likely to be incurred for future medical treatment/care necessary for a particular injury or disability caused by an accident. 15. In R.D. Hattangadi v. Pest Control (India) Private Limited, (1995) 1 SCC 551 , this Court while dealing with a case involving claim of compensation under the Motor Vehicles Act, 1939, referred to the judgment of the Court of Appeal in Ward v. James (1965) 1 All ER 563, Halsburys Laws of England, 4th Edition, Volume 12 (page 446) and observed: Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life. In the same case, the Court further observed: In its very nature whenever a tribunal or a court is required to fix the amount of compensation in cases of accident, it involves some guesswork, some hypothetical consideration, some amount of sympathy linked with the nature of the disability caused. But all the aforesaid elements have to be viewed with objective standards. 16. In Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343 , the Court considered some of the precedents and held: The provision of the Motor Vehicles Act, 1988 makes it clear that the award must be just, which means that compensation should, to the extent possible, fully and adequately restore the claimant to the position prior to the accident. The object of awarding damages is to make good the loss suffered as a result of wrong done as far as money can do so, in a fair, reasonable and equitable manner. The court or the Tribunal shall have to assess the damages objectively and exclude from consideration any speculation or fancy, though some conjecture with reference to the nature of disability and its consequences, is inevitable. A person is not only to be compensated for the physical injury, but also for the loss which he suffered as a result of such injury. This means that he is to be compensated for his inability to lead a full life, his inability to enjoy those normal amenities which he would have enjoyed but for the injuries, and his inability to earn as much as he used to earn or could have earned. The heads under which compensation is awarded in personal injury cases are the following: Pecuniary damages (Special damages) (i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure. (ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising: (a) Loss of earning during the period of treatment; (b) Loss of future earnings on account of permanent disability. (iii) Future medical expenses. Non-pecuniary damages (General damages) (iv) Damages for pain, suffering and trauma as a consequence of the injuries. (v) Loss of amenities (and/or loss of prospects of marriage). (vi) Loss of expectation of life (shortening of normal longevity). In routine personal injury cases, compensation will be awarded only under heads (i), (ii) (a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future earnings on account of permanent disability, future medical expenses, loss of amenities (and/or loss of prospects of marriage) and loss of expectation of life. 17. In the circumstances, we shall now consider whether the compensation awarded to the appellant is just and reasonable or he is entitled to enhanced compensation. 18. In our view, considering the age of the petitioner and the fact that he is fairly educated, it can be reasonably assumed that he would have earned at least Rs.3,000/- per month taking into account the disability of the petitioner to be 100%, the Tribunal rightly awarded the multiplier of 18 and came to a figure of Rs. 6,48,000/- and the High Court is wrong in allowing the appeal of the Insurance Company assessing the disability compensation at Rs. 5,76,000/- by adopting the multiplier of 16. (See Sarla Verma v. Delhi Transport Corporation, (2009) 6 SCC 121 ) 19. Though the appellant had claimed an amount of Rs. 22,00,000/- under different heads as compensation, the Tribunal has granted a meagre sum of Rs. 10,88,000/- and the High Court further reduced the compensation amount. We are of the view that the compensation of Rs. 1 lakh awarded by the High Court for future treatment was wholly inadequate as the High Court without considering the fact that the appellant because of the accident has to remain in the bed in his remaining life and he needs a person for his care and caution every time.
### Response:
1
### Explanation:
This Court has, from time to time, expressed concern over the increasing number of motor accidents and pendency of large number of cases involving adjudication of claims made by the legal representatives of the deceased as also by those who suffer permanent injuries and disabilities of various types as a result of accidents18. In our view, considering the age of the petitioner and the fact that he is fairly educated, it can be reasonably assumed that he would have earned at least Rs.3,000/per month taking into account the disability of the petitioner to be 100%, the Tribunal rightly awarded the multiplier of 18 and came to a figure of Rs. 6,48,000/and the High Court is wrong in allowing the appeal of the Insurance Company assessing the disability compensation at Rs. 5,76,000/by adopting the multiplier of 1619. Though the appellant had claimed an amount of Rs. 22,00,000/under different heads as compensation, the Tribunal has granted a meagre sum of Rs. 10,88,000/and the High Court further reduced the compensation amount. We are of the view that the compensation of Rs. 1 lakh awarded by the High Court for future treatment was wholly inadequate as the High Court without considering the fact that the appellant because of the accident has to remain in the bed in his remaining life and he needs a person for his care and caution every time
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JYOTHIR. R Vs. SUNISHA N.S | Court praying inter alia for a direction to the Sports Council of Kerala to re-consider the marks allotted to the Appellant, and consider shifting Respondent No. 5 to the Sports (Team) List.The Appellant impleaded two students i.e. Respondent No.5 – Sujithraj U. Mallan, and one Mr. Vinay Thomas Abraham as party Respondents in the Writ Petition.16. During the pendency of the Writ Petition, on 06.07.2019, the Kerala State Sports Council informed the Commissioner of Entrance Examinations that four candidates including Respondent No.5 – Sujithraj U. Mallanhad, had erroneously been included in the Final Sports (Individual) List, even though they ought to have been included in the Sports (Team) List.17. The Commissioner of Entrance Examinations declined to consider the communication of the Kerala State Sports Council dated 06.07.2019 received after the publication of the final list at a belated stage of the admission process.18. The first round of allotment was made by the Entrance Commissioner on 08.07.2019 with an option to the candidates to join on or before 12.07.2019.19. The Single Judge of the High Court vide Judgment dated 05.08.2019, allowed the Writ Petition, holding that the Commissioner of Entrance Examinations was obligated to act on the communication of the Kerala State Sports Council. Accordingly, Respondent No.5 – Sujithraj U. Mallanhad was directed to be considered for admission in the Sports (Team) List.20. Aggrieved by the said Judgment, Respondent No. 1 – Sunisha N. S. on 07.08.2019, filed Writ Appeal No. 1757 of 2019 to challenge the Judgment dated 05.08.2019 passed by the learned Single Judge.21. The Division Bench, after hearing the Counsel for Respondent No. 5 – Sujithraj U. Mallanhad, on the same day set-aside the Order of the Single Judge and directed that the Rank List be re-cast by amending the category of Respondent No.5 – Sujithraj U. Mallan had in the Sports (Individual) category. The consequence of implementing the direction of the Single Judge at this belated stage would mean that the entire admission process would require to be re-done, which was undesirable.It was ordered that the Rank of Respondent Nos. 1 and 5 be retained as per the list prepared on 28.06.2019.22. The Appellant was not issued Notice in the Writ Appeal, and hence was not heard by the Division Bench.23. Aggrieved, by the judgment dated 07.08.2019 passed by the Division Bench, the Appellant has filed the present Appeals.24. We have heard the learned Counsels for all the parties, and perused the material on record. We affirm the judgment passed by the Division Bench for the reasons set out hereunder :24.1. The Writ Petition filed by the Appellant before the High Court was wholly speculative in nature. The entire case of the Appellant was based upon shifting Respondent No.5 from the Individual Quota to the Team Quota, which would result in the Appellant getting selected in the Sports (Individual) category, and having the marks added to his NEET score.Such a plea was wholly unfounded, particularly since out of the candidates in the Sports (Individual) category, the Appellant has admittedly scored the lowest marks.Respondent No. 1 had secured 57 marks, while Respondent No. 5 had secured 53 marks.24.2. The Appellant did not disclose in the Writ Petition, that if the relief prayed for was granted, it would have resulted in the displacement of another student in the Team category viz. Antony P. Alappat, who had scored 60 marks in the final result.The Appellant did not even join Mr. Alappat as a party to the proceedings. Hence, the prayer made by the Appellant herein was liable to be rejected on this ground also.24.3. The Appellant had admittedly not raised any objection to the provisional list which was published on 19 th May, 2019 even though an opportunity was given to all candidates to raise objections.The final list came was on 27.05.2019, which was also not objected to by the Appellant.The Appellant raised a challenge only after the category wise list of reserved candidates was published on 28.06.2019, when the Appellant chose to file his Writ Petition on 01.07.2019 after the seats were allotted in the Sports quota.The entire case of the Appellant is an afterthought, and has been made at a belated stage of the admission process, and cannot be entertained.24.4. If the plea of the Appellant was to be accepted, it would impact the criteria adopted for admission not only to the M.B.B.S. course, but also other professional degree courses, for which the same norms for selection of candidates in the Sports category are applicable.24.5. The Appellant did not reveal in the Special Leave Petition that the counselling had been completed on 08.08.2019, and all the students, including the Appellant, Respondent No. 1 and Respondent No. 5 had secured admission in various medical colleges, and were undergoing the course.This fact was not disclosed to the Court even at the time of admission hearing on 19 th August, 2019 when this Court issue notice and granted an interim order in favour of the Appellant. These facts came on record in the Counter Affidavit filed by Respondent No. 1 on 27 th August, 2019. The Appellant ought to have approached this Court with candour, and disclosed the correct facts.24.6. The Kerala State Sports Council was wholly unjustified in making a recommendation for shifting Respondent No. 5 after the Final List had been released. The consequence of implementing such a direction at such a belated stage, would be that the entire admission process under the Sports Quota would require to be re-done. The letter dated 06.07.2019 was wholly unjustified, and the Division Bench has rightly disregarded the same.25. In view of the aforesaid discussion, the prayer of the Appellant to consider Respondent No. 5 in the Sports (Team) Quota is unsustainable on merits. It is made clear that for the purposes of admission to the M.B.B.S course in the Sports Quota, the position awarded to the candidates in the final Rank List published by the Commissioner of Entrance Examinations on 28.06.2019, shall be the basis for granting admission by the authorities. | 0[ds]We affirm the judgment passed by the Division Bench for the reasons set out hereunder :24.1. The Writ Petition filed by the Appellant before the High Court was wholly speculative in nature. The entire case of the Appellant was based upon shifting Respondent No.5 from the Individual Quota to the Team Quota, which would result in the Appellant getting selected in the Sports (Individual) category, and having the marks added to his NEET score.Such a plea was wholly unfounded, particularly since out of the candidates in the Sports (Individual) category, the Appellant has admittedly scored the lowest marks.Respondent No. 1 had secured 57 marks, while Respondent No. 5 had secured 53 marks.24.2. The Appellant did not disclose in the Writ Petition, that if the relief prayed for was granted, it would have resulted in the displacement of another student in the Team category viz. Antony P. Alappat, who had scored 60 marks in the final result.The Appellant did not even join Mr. Alappat as a party to the proceedings. Hence, the prayer made by the Appellant herein was liable to be rejected on this ground also.24.3. The Appellant had admittedly not raised any objection to the provisional list which was published on 19 th May, 2019 even though an opportunity was given to all candidates to raise objections.The final list came was on 27.05.2019, which was also not objected to by the Appellant.The Appellant raised a challenge only after the category wise list of reserved candidates was published on 28.06.2019, when the Appellant chose to file his Writ Petition on 01.07.2019 after the seats were allotted in the Sports quota.The entire case of the Appellant is an afterthought, and has been made at a belated stage of the admission process, and cannot be entertained.24.4. If the plea of the Appellant was to be accepted, it would impact the criteria adopted for admission not only to the M.B.B.S. course, but also other professional degree courses, for which the same norms for selection of candidates in the Sports category are applicable.24.5. The Appellant did not reveal in the Special Leave Petition that the counselling had been completed on 08.08.2019, and all the students, including the Appellant, Respondent No. 1 and Respondent No. 5 had secured admission in various medical colleges, and were undergoing the course.This fact was not disclosed to the Court even at the time of admission hearing on 19 th August, 2019 when this Court issue notice and granted an interim order in favour of the Appellant. These facts came on record in the Counter Affidavit filed by Respondent No. 1 on 27 th August, 2019. The Appellant ought to have approached this Court with candour, and disclosed the correct facts.24.6. The Kerala State Sports Council was wholly unjustified in making a recommendation for shifting Respondent No. 5 after the Final List had been released. The consequence of implementing such a direction at such a belated stage, would be that the entire admission process under the Sports Quota would require to be re-done. The letter dated 06.07.2019 was wholly unjustified, and the Division Bench has rightly disregarded the same.25. In view of the aforesaid discussion, the prayer of the Appellant to consider Respondent No. 5 in the Sports (Team) Quota is unsustainable on merits. It is made clear that for the purposes of admission to the M.B.B.S course in the Sports Quota, the position awarded to the candidates in the final Rank List published by the Commissioner of Entrance Examinations on 28.06.2019, shall be the basis for granting admission by the authorities. | 0 | 1,964 | 656 | ### 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 praying inter alia for a direction to the Sports Council of Kerala to re-consider the marks allotted to the Appellant, and consider shifting Respondent No. 5 to the Sports (Team) List.The Appellant impleaded two students i.e. Respondent No.5 – Sujithraj U. Mallan, and one Mr. Vinay Thomas Abraham as party Respondents in the Writ Petition.16. During the pendency of the Writ Petition, on 06.07.2019, the Kerala State Sports Council informed the Commissioner of Entrance Examinations that four candidates including Respondent No.5 – Sujithraj U. Mallanhad, had erroneously been included in the Final Sports (Individual) List, even though they ought to have been included in the Sports (Team) List.17. The Commissioner of Entrance Examinations declined to consider the communication of the Kerala State Sports Council dated 06.07.2019 received after the publication of the final list at a belated stage of the admission process.18. The first round of allotment was made by the Entrance Commissioner on 08.07.2019 with an option to the candidates to join on or before 12.07.2019.19. The Single Judge of the High Court vide Judgment dated 05.08.2019, allowed the Writ Petition, holding that the Commissioner of Entrance Examinations was obligated to act on the communication of the Kerala State Sports Council. Accordingly, Respondent No.5 – Sujithraj U. Mallanhad was directed to be considered for admission in the Sports (Team) List.20. Aggrieved by the said Judgment, Respondent No. 1 – Sunisha N. S. on 07.08.2019, filed Writ Appeal No. 1757 of 2019 to challenge the Judgment dated 05.08.2019 passed by the learned Single Judge.21. The Division Bench, after hearing the Counsel for Respondent No. 5 – Sujithraj U. Mallanhad, on the same day set-aside the Order of the Single Judge and directed that the Rank List be re-cast by amending the category of Respondent No.5 – Sujithraj U. Mallan had in the Sports (Individual) category. The consequence of implementing the direction of the Single Judge at this belated stage would mean that the entire admission process would require to be re-done, which was undesirable.It was ordered that the Rank of Respondent Nos. 1 and 5 be retained as per the list prepared on 28.06.2019.22. The Appellant was not issued Notice in the Writ Appeal, and hence was not heard by the Division Bench.23. Aggrieved, by the judgment dated 07.08.2019 passed by the Division Bench, the Appellant has filed the present Appeals.24. We have heard the learned Counsels for all the parties, and perused the material on record. We affirm the judgment passed by the Division Bench for the reasons set out hereunder :24.1. The Writ Petition filed by the Appellant before the High Court was wholly speculative in nature. The entire case of the Appellant was based upon shifting Respondent No.5 from the Individual Quota to the Team Quota, which would result in the Appellant getting selected in the Sports (Individual) category, and having the marks added to his NEET score.Such a plea was wholly unfounded, particularly since out of the candidates in the Sports (Individual) category, the Appellant has admittedly scored the lowest marks.Respondent No. 1 had secured 57 marks, while Respondent No. 5 had secured 53 marks.24.2. The Appellant did not disclose in the Writ Petition, that if the relief prayed for was granted, it would have resulted in the displacement of another student in the Team category viz. Antony P. Alappat, who had scored 60 marks in the final result.The Appellant did not even join Mr. Alappat as a party to the proceedings. Hence, the prayer made by the Appellant herein was liable to be rejected on this ground also.24.3. The Appellant had admittedly not raised any objection to the provisional list which was published on 19 th May, 2019 even though an opportunity was given to all candidates to raise objections.The final list came was on 27.05.2019, which was also not objected to by the Appellant.The Appellant raised a challenge only after the category wise list of reserved candidates was published on 28.06.2019, when the Appellant chose to file his Writ Petition on 01.07.2019 after the seats were allotted in the Sports quota.The entire case of the Appellant is an afterthought, and has been made at a belated stage of the admission process, and cannot be entertained.24.4. If the plea of the Appellant was to be accepted, it would impact the criteria adopted for admission not only to the M.B.B.S. course, but also other professional degree courses, for which the same norms for selection of candidates in the Sports category are applicable.24.5. The Appellant did not reveal in the Special Leave Petition that the counselling had been completed on 08.08.2019, and all the students, including the Appellant, Respondent No. 1 and Respondent No. 5 had secured admission in various medical colleges, and were undergoing the course.This fact was not disclosed to the Court even at the time of admission hearing on 19 th August, 2019 when this Court issue notice and granted an interim order in favour of the Appellant. These facts came on record in the Counter Affidavit filed by Respondent No. 1 on 27 th August, 2019. The Appellant ought to have approached this Court with candour, and disclosed the correct facts.24.6. The Kerala State Sports Council was wholly unjustified in making a recommendation for shifting Respondent No. 5 after the Final List had been released. The consequence of implementing such a direction at such a belated stage, would be that the entire admission process under the Sports Quota would require to be re-done. The letter dated 06.07.2019 was wholly unjustified, and the Division Bench has rightly disregarded the same.25. In view of the aforesaid discussion, the prayer of the Appellant to consider Respondent No. 5 in the Sports (Team) Quota is unsustainable on merits. It is made clear that for the purposes of admission to the M.B.B.S course in the Sports Quota, the position awarded to the candidates in the final Rank List published by the Commissioner of Entrance Examinations on 28.06.2019, shall be the basis for granting admission by the authorities.
### Response:
0
### Explanation:
We affirm the judgment passed by the Division Bench for the reasons set out hereunder :24.1. The Writ Petition filed by the Appellant before the High Court was wholly speculative in nature. The entire case of the Appellant was based upon shifting Respondent No.5 from the Individual Quota to the Team Quota, which would result in the Appellant getting selected in the Sports (Individual) category, and having the marks added to his NEET score.Such a plea was wholly unfounded, particularly since out of the candidates in the Sports (Individual) category, the Appellant has admittedly scored the lowest marks.Respondent No. 1 had secured 57 marks, while Respondent No. 5 had secured 53 marks.24.2. The Appellant did not disclose in the Writ Petition, that if the relief prayed for was granted, it would have resulted in the displacement of another student in the Team category viz. Antony P. Alappat, who had scored 60 marks in the final result.The Appellant did not even join Mr. Alappat as a party to the proceedings. Hence, the prayer made by the Appellant herein was liable to be rejected on this ground also.24.3. The Appellant had admittedly not raised any objection to the provisional list which was published on 19 th May, 2019 even though an opportunity was given to all candidates to raise objections.The final list came was on 27.05.2019, which was also not objected to by the Appellant.The Appellant raised a challenge only after the category wise list of reserved candidates was published on 28.06.2019, when the Appellant chose to file his Writ Petition on 01.07.2019 after the seats were allotted in the Sports quota.The entire case of the Appellant is an afterthought, and has been made at a belated stage of the admission process, and cannot be entertained.24.4. If the plea of the Appellant was to be accepted, it would impact the criteria adopted for admission not only to the M.B.B.S. course, but also other professional degree courses, for which the same norms for selection of candidates in the Sports category are applicable.24.5. The Appellant did not reveal in the Special Leave Petition that the counselling had been completed on 08.08.2019, and all the students, including the Appellant, Respondent No. 1 and Respondent No. 5 had secured admission in various medical colleges, and were undergoing the course.This fact was not disclosed to the Court even at the time of admission hearing on 19 th August, 2019 when this Court issue notice and granted an interim order in favour of the Appellant. These facts came on record in the Counter Affidavit filed by Respondent No. 1 on 27 th August, 2019. The Appellant ought to have approached this Court with candour, and disclosed the correct facts.24.6. The Kerala State Sports Council was wholly unjustified in making a recommendation for shifting Respondent No. 5 after the Final List had been released. The consequence of implementing such a direction at such a belated stage, would be that the entire admission process under the Sports Quota would require to be re-done. The letter dated 06.07.2019 was wholly unjustified, and the Division Bench has rightly disregarded the same.25. In view of the aforesaid discussion, the prayer of the Appellant to consider Respondent No. 5 in the Sports (Team) Quota is unsustainable on merits. It is made clear that for the purposes of admission to the M.B.B.S course in the Sports Quota, the position awarded to the candidates in the final Rank List published by the Commissioner of Entrance Examinations on 28.06.2019, shall be the basis for granting admission by the authorities.
|
M/S OSWAL WOOLLEN MILLS LTD Vs. M/S OSWAL AGRO MILLS LTD | the application that is filed before the High Court to which the appellant-Company was referring to in the said letter was an application filed under Section 5 of the Act for the dispute relating to quantum of fee of the Umpire. Though the appellant-Company in the said letter made a note with regard to the de novo hearing of the matter but the same seems to be an additional armory that the appellant is putting behind its back as it hasn?t demanded de novo trial of the said matter neither in the communication nor thereafter in the proceedings. The appellant-Company next referred to communication dated 12.01.2000 but the same is also with regard to the pending proceedings before the High Court. It is only on 29.01.2000 that the appellant-Company has filed an application for de novo hearing of the case i.e., at a stage where the final arguments on the side of the respondent-Company have been finished and the date was fixed for final argument from the side of appellant-Company. If the appellant-Company was serious in its endeavor that it should get an opportunity to get the evidence recorded afresh, an application could easily have been filed before starting the proceedings before the Umpire. It is only from oblique references that the appellant-Company seeks to derive such intent. This aspect is clearly an afterthought which arose during the culmination of the proceedings before the Umpire. Further, even the sum and substance of the highly belated application dated 29.01.2000 for commencement of proceedings de novo clearly shows that it was not asking for re-hearing/re-recording of the evidence but was actually requesting for review of the order of the two Arbitrators especially for re-examination of Shri K.L. Jain. It is the case of the appellant-Company that the Arbitrators were wrong in permitting production of some other witness, by name, Shri Vijay Gupta instead of Shri K.L Jain. From the above, there is no doubt that the conduct of the appellant-Company amounts to waiver and the application filled on 29.01.2000 is nothing but trying a last armory to turn the case around. The Umpire was right in dismissing the said application. 18. Learned senior counsel for the appellant-Company contended on merits of the case, however, the law is well settled with regard to the scope and ambit of the jurisdiction of the courts to interfere with an arbitration award as has been settled in a catena of judgments of this Court and it would be sufficient to quote Ravindra Kumar Gupta and Company vs. Union of India (2010) 1 SCC 409 wherein it was held as under:-?9. The law with regard to scope and ambit of the jurisdiction of the courts to interfere with an arbitration award has been settled in a catena of judgments of this Court. We may make a reference here only to some of the judgments. In State of Rajasthan v. Puri Construction Co. Ltd. this Court observed as follows: ?26. The arbitrator is the final arbiter for the dispute between the parties and it is not open to challenge the award on the ground that the arbitrator has drawn his own conclusion or has failed to appreciate the facts. In Sudarsan Trading Co. v. Govt. of Kerala it has been held by this Court that there is a distinction between disputes as to the jurisdiction of the arbitrator and the disputes as to in what way that jurisdiction should be exercised. There may be a conflict as to the power of the arbitrator to grant a particular remedy. One has to determine the distinction between an error within the jurisdiction and an error in excess of the jurisdiction. Court cannot substitute its own evaluation of the conclusion of law or fact to come to the conclusion that the arbitrator had acted contrary to the bargain between the parties. (emphasis in original) Whether a particular amount was liable to be paid is a decision within the competency of the arbitrator. By purporting to construe the contract the court cannot take upon itself the burden of saying that this was contrary to the contract and as such beyond jurisdiction. If on a view taken of a contract, the decision of the arbitrator on certain amounts awarded is a possible view though perhaps not the only correct view, the award cannot be examined by the court. Where the reasons have been given by the arbitrator in making the award the court cannot examine the reasonableness of the reasons. If the parties have selected their own forum, the deciding forum must be conceded the power of appraisement of evidence. The arbitrator is the sole judge of the quality as well as the quantity of evidence and it will not be for the court to take upon itself the task of being a Judge on the evidence before the arbitrator.?19. In Municipal Corporation of Delhi vs. Jagan Nath Ashok Kumar and Another (1987) 4 SCC 497 , it was held by this Court that appraisement of evidence by the arbitrator is ordinarily never a matter which the court questions and considers. It may be possible that on the same evidence, the court may arrive at a different conclusion than the one arrived at by the arbitrator but that by itself is no ground for setting aside the award. 20. Following the above judgments, we are of the opinion that the question of whether the claims were tenable or not are based on the contract and which of them had to be granted were within the exclusive domain of the Arbitrators. In this case, the Award considered the totality of circumstances, and weighed the relevant facts on balance while proceeding to award damages. The award does not disclose a manifestly erroneous approach; nor does it omit to consider and apply legal principles to the facts presented before the Arbitrators. 21. In view of the above discussion, we do not find any infirmity or error in the approach and judgments passed by the courts below. | 0[ds]Either going by the very nature of functions entrusted to the Umpire or by the provisions of the First Schedule, it is crystal clear that there is no qualitative difference between the Arbitrators and the Umpire with regard to the methodology and modalities to be adopted for reaching a just and fair conclusion. It is trite to say that an Arbitrator is bound to observe the principles of natural justice and conform to the fundamentals of judicial procedure. It is his duty to afford a reasonable opportunity to the parties concerned. However, it would also be illogical to contend that the Umpire has to start de novo ipso facto. The very essence of the law of arbitration is to settle the matter efficiently in a time bound manner. Hence, when the Umpire enters upon a Reference and replaces the arbitrators, he is needed to review the evidence and submissions only on those matters about which the arbitrators have disagreed unless either party applies for the rehearing of the evidence of the parties or their witnesses. The Umpire can surely go through the evidence recorded by the previous arbitrators but without being influenced by the opinion expressed by them in that regard and even the notes taken by previous arbitrators can be relied if there exist special provisions in the agreement permitting him to do so. However, if the party makes an application for de novo hearing, the Umpire is bound to allow the same, subject to the condition that the application is made at the earliest and the applicant is not using it as last armory to turn the case around. An objection on the ground that the Umpire has not reheard the evidence may be waived by the conduct of the parties; the evidence already recorded before the previous arbitrator would remain valid and it would not be open for the parties to get the same recorded afresh later on. It is a well settled proposition that where a party seeking to impeach an Award has made no application to the Umpire for rehearing of the evidence, the same would generally operate as a waiver by conduct.inevitable outcome of the same is that a party is allowed to overcome the lacuna in the evidence already recorded before the previous arbitrators. Further, it would give an unnecessary option to the dishonest litigant to obliterate the evidence already recorded which would have adverse effect on them. Further, the witnesses to be examined afresh is a glaring anomaly that would ensue that the witnesses may not be available or might give a totally different version or a version inconsistent with their previous version, owing to the fact of faded memories. Such an interpretation of the word de novo trial would result in undue hardship to the parties and will defeat the very purpose of the Act and render arbitration ineffective.Hence, firstly, the word de novo hearing should be given a purposive interpretation and it should be understood as a fresh hearing of the matter on the basis of pleadings, evidence and documents on record. If the party wants to re-examine a witness or objects to the documents admitted, the Umpire is to hear the parties and decide the application in the interest ofHowever, having perused the records, it was found that the very first communication dated 24.05.1999, on which the appellant-Company has relied upon is a letter written to the Umpire with regard to the pending proceedings in the said matter before the High Court and the application that is filed before the High Court to which the appellant-Company was referring to in the said letter was an application filed under Section 5 of the Act for the dispute relating to quantum of fee of the Umpire. Though the appellant-Company in the said letter made a note with regard to the de novo hearing of the matter but the same seems to be an additional armory that the appellant is putting behind its back as it hasn?t demanded de novo trial of the said matter neither in the communication nor thereafter in the proceedings. The appellant-Company next referred to communication dated 12.01.2000 but the same is also with regard to the pending proceedings before the High Court. It is only on 29.01.2000 that the appellant-Company has filed an application for de novo hearing of the case i.e., at a stage where the final arguments on the side of the respondent-Company have been finished and the date was fixed for final argument from the side of appellant-Company. If the appellant-Company was serious in its endeavor that it should get an opportunity to get the evidence recorded afresh, an application could easily have been filed before starting the proceedings before the Umpire. It is only from oblique references that the appellant-Company seeks to derive such intent. This aspect is clearly an afterthought which arose during the culmination of the proceedings before the Umpire. Further, even the sum and substance of the highly belated application dated 29.01.2000 for commencement of proceedings de novo clearly shows that it was not asking for re-hearing/re-recording of the evidence but was actually requesting for review of the order of the two Arbitrators especially for re-examination of Shri K.L.is the case of the appellant-Company that the Arbitrators were wrong in permitting production of some other witness, by name, Shri Vijay Gupta instead of Shri K.L Jain. From the above, there is no doubt that the conduct of the appellant-Company amounts to waiver and the application filled on 29.01.2000 is nothing but trying a last armory to turn the case around. The Umpire was right in dismissing the saidFollowing the above judgments, we are of the opinion that the question of whether the claims were tenable or not are based on the contract and which of them had to be granted were within the exclusive domain of the Arbitrators. In this case, the Award considered the totality of circumstances, and weighed the relevant facts on balance while proceeding to award damages. The award does not disclose a manifestly erroneous approach; nor does it omit to consider and apply legal principles to the facts presented before the Arbitrators.In view of the above discussion, we do not find any infirmity or error in the approach and judgments passed by the courts below. | 0 | 3,769 | 1,110 | ### 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:
the application that is filed before the High Court to which the appellant-Company was referring to in the said letter was an application filed under Section 5 of the Act for the dispute relating to quantum of fee of the Umpire. Though the appellant-Company in the said letter made a note with regard to the de novo hearing of the matter but the same seems to be an additional armory that the appellant is putting behind its back as it hasn?t demanded de novo trial of the said matter neither in the communication nor thereafter in the proceedings. The appellant-Company next referred to communication dated 12.01.2000 but the same is also with regard to the pending proceedings before the High Court. It is only on 29.01.2000 that the appellant-Company has filed an application for de novo hearing of the case i.e., at a stage where the final arguments on the side of the respondent-Company have been finished and the date was fixed for final argument from the side of appellant-Company. If the appellant-Company was serious in its endeavor that it should get an opportunity to get the evidence recorded afresh, an application could easily have been filed before starting the proceedings before the Umpire. It is only from oblique references that the appellant-Company seeks to derive such intent. This aspect is clearly an afterthought which arose during the culmination of the proceedings before the Umpire. Further, even the sum and substance of the highly belated application dated 29.01.2000 for commencement of proceedings de novo clearly shows that it was not asking for re-hearing/re-recording of the evidence but was actually requesting for review of the order of the two Arbitrators especially for re-examination of Shri K.L. Jain. It is the case of the appellant-Company that the Arbitrators were wrong in permitting production of some other witness, by name, Shri Vijay Gupta instead of Shri K.L Jain. From the above, there is no doubt that the conduct of the appellant-Company amounts to waiver and the application filled on 29.01.2000 is nothing but trying a last armory to turn the case around. The Umpire was right in dismissing the said application. 18. Learned senior counsel for the appellant-Company contended on merits of the case, however, the law is well settled with regard to the scope and ambit of the jurisdiction of the courts to interfere with an arbitration award as has been settled in a catena of judgments of this Court and it would be sufficient to quote Ravindra Kumar Gupta and Company vs. Union of India (2010) 1 SCC 409 wherein it was held as under:-?9. The law with regard to scope and ambit of the jurisdiction of the courts to interfere with an arbitration award has been settled in a catena of judgments of this Court. We may make a reference here only to some of the judgments. In State of Rajasthan v. Puri Construction Co. Ltd. this Court observed as follows: ?26. The arbitrator is the final arbiter for the dispute between the parties and it is not open to challenge the award on the ground that the arbitrator has drawn his own conclusion or has failed to appreciate the facts. In Sudarsan Trading Co. v. Govt. of Kerala it has been held by this Court that there is a distinction between disputes as to the jurisdiction of the arbitrator and the disputes as to in what way that jurisdiction should be exercised. There may be a conflict as to the power of the arbitrator to grant a particular remedy. One has to determine the distinction between an error within the jurisdiction and an error in excess of the jurisdiction. Court cannot substitute its own evaluation of the conclusion of law or fact to come to the conclusion that the arbitrator had acted contrary to the bargain between the parties. (emphasis in original) Whether a particular amount was liable to be paid is a decision within the competency of the arbitrator. By purporting to construe the contract the court cannot take upon itself the burden of saying that this was contrary to the contract and as such beyond jurisdiction. If on a view taken of a contract, the decision of the arbitrator on certain amounts awarded is a possible view though perhaps not the only correct view, the award cannot be examined by the court. Where the reasons have been given by the arbitrator in making the award the court cannot examine the reasonableness of the reasons. If the parties have selected their own forum, the deciding forum must be conceded the power of appraisement of evidence. The arbitrator is the sole judge of the quality as well as the quantity of evidence and it will not be for the court to take upon itself the task of being a Judge on the evidence before the arbitrator.?19. In Municipal Corporation of Delhi vs. Jagan Nath Ashok Kumar and Another (1987) 4 SCC 497 , it was held by this Court that appraisement of evidence by the arbitrator is ordinarily never a matter which the court questions and considers. It may be possible that on the same evidence, the court may arrive at a different conclusion than the one arrived at by the arbitrator but that by itself is no ground for setting aside the award. 20. Following the above judgments, we are of the opinion that the question of whether the claims were tenable or not are based on the contract and which of them had to be granted were within the exclusive domain of the Arbitrators. In this case, the Award considered the totality of circumstances, and weighed the relevant facts on balance while proceeding to award damages. The award does not disclose a manifestly erroneous approach; nor does it omit to consider and apply legal principles to the facts presented before the Arbitrators. 21. In view of the above discussion, we do not find any infirmity or error in the approach and judgments passed by the courts below.
### Response:
0
### Explanation:
just and fair conclusion. It is trite to say that an Arbitrator is bound to observe the principles of natural justice and conform to the fundamentals of judicial procedure. It is his duty to afford a reasonable opportunity to the parties concerned. However, it would also be illogical to contend that the Umpire has to start de novo ipso facto. The very essence of the law of arbitration is to settle the matter efficiently in a time bound manner. Hence, when the Umpire enters upon a Reference and replaces the arbitrators, he is needed to review the evidence and submissions only on those matters about which the arbitrators have disagreed unless either party applies for the rehearing of the evidence of the parties or their witnesses. The Umpire can surely go through the evidence recorded by the previous arbitrators but without being influenced by the opinion expressed by them in that regard and even the notes taken by previous arbitrators can be relied if there exist special provisions in the agreement permitting him to do so. However, if the party makes an application for de novo hearing, the Umpire is bound to allow the same, subject to the condition that the application is made at the earliest and the applicant is not using it as last armory to turn the case around. An objection on the ground that the Umpire has not reheard the evidence may be waived by the conduct of the parties; the evidence already recorded before the previous arbitrator would remain valid and it would not be open for the parties to get the same recorded afresh later on. It is a well settled proposition that where a party seeking to impeach an Award has made no application to the Umpire for rehearing of the evidence, the same would generally operate as a waiver by conduct.inevitable outcome of the same is that a party is allowed to overcome the lacuna in the evidence already recorded before the previous arbitrators. Further, it would give an unnecessary option to the dishonest litigant to obliterate the evidence already recorded which would have adverse effect on them. Further, the witnesses to be examined afresh is a glaring anomaly that would ensue that the witnesses may not be available or might give a totally different version or a version inconsistent with their previous version, owing to the fact of faded memories. Such an interpretation of the word de novo trial would result in undue hardship to the parties and will defeat the very purpose of the Act and render arbitration ineffective.Hence, firstly, the word de novo hearing should be given a purposive interpretation and it should be understood as a fresh hearing of the matter on the basis of pleadings, evidence and documents on record. If the party wants to re-examine a witness or objects to the documents admitted, the Umpire is to hear the parties and decide the application in the interest ofHowever, having perused the records, it was found that the very first communication dated 24.05.1999, on which the appellant-Company has relied upon is a letter written to the Umpire with regard to the pending proceedings in the said matter before the High Court and the application that is filed before the High Court to which the appellant-Company was referring to in the said letter was an application filed under Section 5 of the Act for the dispute relating to quantum of fee of the Umpire. Though the appellant-Company in the said letter made a note with regard to the de novo hearing of the matter but the same seems to be an additional armory that the appellant is putting behind its back as it hasn?t demanded de novo trial of the said matter neither in the communication nor thereafter in the proceedings. The appellant-Company next referred to communication dated 12.01.2000 but the same is also with regard to the pending proceedings before the High Court. It is only on 29.01.2000 that the appellant-Company has filed an application for de novo hearing of the case i.e., at a stage where the final arguments on the side of the respondent-Company have been finished and the date was fixed for final argument from the side of appellant-Company. If the appellant-Company was serious in its endeavor that it should get an opportunity to get the evidence recorded afresh, an application could easily have been filed before starting the proceedings before the Umpire. It is only from oblique references that the appellant-Company seeks to derive such intent. This aspect is clearly an afterthought which arose during the culmination of the proceedings before the Umpire. Further, even the sum and substance of the highly belated application dated 29.01.2000 for commencement of proceedings de novo clearly shows that it was not asking for re-hearing/re-recording of the evidence but was actually requesting for review of the order of the two Arbitrators especially for re-examination of Shri K.L.is the case of the appellant-Company that the Arbitrators were wrong in permitting production of some other witness, by name, Shri Vijay Gupta instead of Shri K.L Jain. From the above, there is no doubt that the conduct of the appellant-Company amounts to waiver and the application filled on 29.01.2000 is nothing but trying a last armory to turn the case around. The Umpire was right in dismissing the saidFollowing the above judgments, we are of the opinion that the question of whether the claims were tenable or not are based on the contract and which of them had to be granted were within the exclusive domain of the Arbitrators. In this case, the Award considered the totality of circumstances, and weighed the relevant facts on balance while proceeding to award damages. The award does not disclose a manifestly erroneous approach; nor does it omit to consider and apply legal principles to the facts presented before the Arbitrators.In view of the above discussion, we do not find any infirmity or error in the approach and judgments passed by the courts below.
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Income Tax Officer, Special Investigation Circle, Indore Vs. Rustomji | A.N. Grover, J.1. These appeals by certificate are from a common judgment of the Madhya Pradesh High Court allowing certain petitions which had been filed under Article 226 of the Constitution by the respondent challenging the validity of notices issued under Section 34 of the Indian Income Tax Act, 1922, hereinafter called the "Act", in respect of escaped income for the years ending March 31, 1941 to March 31, 1945 as also for the year ending March 31, 1946.2. The petitioner is a resident of Mhow which was formerly a part of the erstwhile Holkar State. He started some business in British India in or about the year 1934 and acquired a textile mill known as the New Premier Mills, Bombay. In 1939 he purchased a cotton ginning and pressing factory at Khamgaon. For the assessment years 1940-41, 1941-42, 1943-44 and 1945-46 he was assessed to income-tax as a non-resident by the Income-tax Officer, Nagpur. For the two assessment years 1944-45, and 1945-46 he was also assessed at Mhow as a resident and ordinarily resident in respect of the properties in Mhow. The assessment orders for each year of assessment in properties in Mhow. The assessment orders for each year of assessment in question were made on various dates. On March 23, 1962 the Income-tax Officer concerned served six notices under Section 34 of the Act, in respect of certain income alleged to have escaped assessment. The assessee objected to the jurisdiction of the Income-tax Officer to issue these notices after March 31, 1956 in view of the limit of time provided by Section 34(1-A) of the Act. The Income-tax Officer issued fresh notices under Section 22(4) of the Act and called upon the assessee to comply with the notices issued under Section 34.3. The contentions which were raised before the High Court, inter alia, were that the assessee had submitted the return of his income in the taxable territories and fully and truly disclosed all material facts necessary for the assessment years in question. Therefore no notice under Section 34(1)(a) could be issued to him. It was further contended that the notices which had been issued purported to be in exercise of the power under Section 34(1)(b) of the Act and were barred by time. Even on the assumption that the notices were issued under Section 34(1)(a) of the Act they were still barred by time inasmuch as Section 34 (1-A) was an overriding provision under which no notice under Section 34 could be issued after March 31, 1956. The High Court took the view that for the assessment years 1940-41 to 1945-46 the provisions of Section 34(1-A) were applicable and that the provisions of Section 34(1)(a) did not apply. The notices were consequently quashed for the assessment years 1940-41 to 1945-46. For the assessment year 1946-47 the High Court rejected the assessees application on November 25, 1963 but on a miscellaneous application filed by the assessee it was held by the High Court that the decision given with regard to the other assessment years was equally applicable. The High Court, therefore, quashed the notice under Section 34 for the assessment year 1946-47 by its order, dated March 16, 1964.4. The point whether a notice could be issued under Section 34(1)(a) of the Act as amended by the Finance Act of 1956 after March 31, 1956 in respect of any assessment year the relevant previous year of which fell wholly or partly within the period September 1, 1939 to March 31, 1946 stands concluded by the decision of this Court in Commissioner of Income Tax, Patiala v. Shahzada Nand and Sons and Others. It was held that a notice could be validly issued under Section 34(1)(a) after March 31, 1956 in respect of the aforesaid assessment years. | 1[ds]4. The point whether a notice could be issued under Section 34(1)(a) of the Act as amended by the Finance Act of 1956 after March 31, 1956 in respect of any assessment year the relevant previous year of which fell wholly or partly within the period September 1, 1939 to March 31, 1946 stands concluded by the decision of this Court in Commissioner of Income Tax, Patiala v. Shahzada Nand and Sons and Others. It was held that a notice could be validly issued under Section 34(1)(a) after March 31, 1956 in respect of the aforesaid assessment years. | 1 | 728 | 122 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
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A.N. Grover, J.1. These appeals by certificate are from a common judgment of the Madhya Pradesh High Court allowing certain petitions which had been filed under Article 226 of the Constitution by the respondent challenging the validity of notices issued under Section 34 of the Indian Income Tax Act, 1922, hereinafter called the "Act", in respect of escaped income for the years ending March 31, 1941 to March 31, 1945 as also for the year ending March 31, 1946.2. The petitioner is a resident of Mhow which was formerly a part of the erstwhile Holkar State. He started some business in British India in or about the year 1934 and acquired a textile mill known as the New Premier Mills, Bombay. In 1939 he purchased a cotton ginning and pressing factory at Khamgaon. For the assessment years 1940-41, 1941-42, 1943-44 and 1945-46 he was assessed to income-tax as a non-resident by the Income-tax Officer, Nagpur. For the two assessment years 1944-45, and 1945-46 he was also assessed at Mhow as a resident and ordinarily resident in respect of the properties in Mhow. The assessment orders for each year of assessment in properties in Mhow. The assessment orders for each year of assessment in question were made on various dates. On March 23, 1962 the Income-tax Officer concerned served six notices under Section 34 of the Act, in respect of certain income alleged to have escaped assessment. The assessee objected to the jurisdiction of the Income-tax Officer to issue these notices after March 31, 1956 in view of the limit of time provided by Section 34(1-A) of the Act. The Income-tax Officer issued fresh notices under Section 22(4) of the Act and called upon the assessee to comply with the notices issued under Section 34.3. The contentions which were raised before the High Court, inter alia, were that the assessee had submitted the return of his income in the taxable territories and fully and truly disclosed all material facts necessary for the assessment years in question. Therefore no notice under Section 34(1)(a) could be issued to him. It was further contended that the notices which had been issued purported to be in exercise of the power under Section 34(1)(b) of the Act and were barred by time. Even on the assumption that the notices were issued under Section 34(1)(a) of the Act they were still barred by time inasmuch as Section 34 (1-A) was an overriding provision under which no notice under Section 34 could be issued after March 31, 1956. The High Court took the view that for the assessment years 1940-41 to 1945-46 the provisions of Section 34(1-A) were applicable and that the provisions of Section 34(1)(a) did not apply. The notices were consequently quashed for the assessment years 1940-41 to 1945-46. For the assessment year 1946-47 the High Court rejected the assessees application on November 25, 1963 but on a miscellaneous application filed by the assessee it was held by the High Court that the decision given with regard to the other assessment years was equally applicable. The High Court, therefore, quashed the notice under Section 34 for the assessment year 1946-47 by its order, dated March 16, 1964.4. The point whether a notice could be issued under Section 34(1)(a) of the Act as amended by the Finance Act of 1956 after March 31, 1956 in respect of any assessment year the relevant previous year of which fell wholly or partly within the period September 1, 1939 to March 31, 1946 stands concluded by the decision of this Court in Commissioner of Income Tax, Patiala v. Shahzada Nand and Sons and Others. It was held that a notice could be validly issued under Section 34(1)(a) after March 31, 1956 in respect of the aforesaid assessment years.
### Response:
1
### Explanation:
4. The point whether a notice could be issued under Section 34(1)(a) of the Act as amended by the Finance Act of 1956 after March 31, 1956 in respect of any assessment year the relevant previous year of which fell wholly or partly within the period September 1, 1939 to March 31, 1946 stands concluded by the decision of this Court in Commissioner of Income Tax, Patiala v. Shahzada Nand and Sons and Others. It was held that a notice could be validly issued under Section 34(1)(a) after March 31, 1956 in respect of the aforesaid assessment years.
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Rashtrasant Tukdoji Maharaj Technical Education Sanstha, Nagpur Vs. Prashant Manikrao Kubitkar | 1. Leave granted. The labour Court held the termination of the Respondent workman to be in infraction of Sections 25F and 25G of the Industrial Disputes Act, 1947 and awarded reinstatement with continuity in service but without back wages. The approach to the Labour Court was after 13 years of the termination made on 1st June, 1994. The High Court in writ petition filed by the Appellant affirmed the said order. Hence the present appeal.2. The Respondent workman had worked under the Appellant for a period of two years and three months whereafter he was terminated on 1st June, 1994. Judicial opinion has been consistent that if the termination is found to be contrary to Sections 25F and 25G of the Industrial Disputes Act, 1947 reinstatement in service is not the rule but an exception and ordinarily grant of compensation would meet the ends of justice.3. The Respondent workman in the present case had worked for a period of two years and three months and that apart he had approached the labour Court after 13 years. | 1[ds]2. The Respondent workman had worked under the Appellant for a period of two years and three months whereafter he was terminated on 1st June, 1994. Judicial opinion has been consistent that if the termination is found to be contrary to Sections 25F and 25G of the Industrial Disputes Act, 1947 reinstatement in service is not the rule but an exception and ordinarily grant of compensation would meet the ends of justice3. The Respondent workman in the present case had worked for a period of two years and three months and that apart he had approached the labour Court after 13 years. | 1 | 189 | 112 | ### 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. Leave granted. The labour Court held the termination of the Respondent workman to be in infraction of Sections 25F and 25G of the Industrial Disputes Act, 1947 and awarded reinstatement with continuity in service but without back wages. The approach to the Labour Court was after 13 years of the termination made on 1st June, 1994. The High Court in writ petition filed by the Appellant affirmed the said order. Hence the present appeal.2. The Respondent workman had worked under the Appellant for a period of two years and three months whereafter he was terminated on 1st June, 1994. Judicial opinion has been consistent that if the termination is found to be contrary to Sections 25F and 25G of the Industrial Disputes Act, 1947 reinstatement in service is not the rule but an exception and ordinarily grant of compensation would meet the ends of justice.3. The Respondent workman in the present case had worked for a period of two years and three months and that apart he had approached the labour Court after 13 years.
### Response:
1
### Explanation:
2. The Respondent workman had worked under the Appellant for a period of two years and three months whereafter he was terminated on 1st June, 1994. Judicial opinion has been consistent that if the termination is found to be contrary to Sections 25F and 25G of the Industrial Disputes Act, 1947 reinstatement in service is not the rule but an exception and ordinarily grant of compensation would meet the ends of justice3. The Respondent workman in the present case had worked for a period of two years and three months and that apart he had approached the labour Court after 13 years.
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Union Of India Vs. Dinesh Engg Corpn. | manufacturer than from a manufacturer of only a spare part. This argument would have been an acceptable argument if EDC was manufacturing GE governors itself. It is an admitted case that EDC manufactures its own governors and not GE governors nor are they licensed to manufacture GE governors. All and any/sundry governors manufacturer cannot be treated as a manufacturer of original equipment for the supply of spares for GE governors. The status of EDC vis-a-vis the writ petitioner will be the same in regard to the supply of spares to GE governors. This observation of ours does not of course amount to giving a certificate of approval to the writ petitioner as to the spare parts manufactured by it or that it is compatible with the GE governors. That is a matter to be decided by the experts but suffice it to say that the writ petitioner cannot be excluded from consideration for the supply of spare parts to the GE governors on the sole ground that it does not manufacture governors by itself. Here it is to be noted that a substantial number of governors used in the locomotives of the Indian Railways are those manufactured by GE, therefore, the requirements of spare parts are also substantial for replacement in these governors. Hence, the Board ought not to have created a monopoly in favour of EDC. It is, however, open to the Railways if it comes to the genuine conclusion that the spare parts manufactured by the writ petitioner are not acceptable on the ground of sophistication, complexity and high degree of precision then certainly it is for the Railways or for that matter if the terms of offer are not acceptable for justifiable reasons, it will be open to the Railways to reject the offer of the writ petitioner. But then, none of the above forms the basis for creating a monopoly in favour of EDC. As held by the High Court, creation of this monopoly in favour of EDC is unreasonable and arbitrary with which we agree. Coming to the second question involved in these appeals, namely, the rejection of the tender of the writ petitioner, it was argued on behalf of the appellants that the Railways under clause 16 of the Guidelines was entitled to reject any tender offer without assigning any reasons and it also has the power to accept or not to accept the lowest offer. We do not dispute this power provided the same is exercised within the realm of the object for which this clause is incorporated. This does not give an arbitrary power to the Railways to reject the bid offered by a party merely because it has that power. This is a power which can be exercised on the existence of certain conditions which in the opinion of the Railways are not in the interest of the Railways to accept the offer. No such ground has been taken when the writ petitioners tender was rejected. Therefore, we agree with the High Court that it is not open to the Railways to rely upon this clause in the Guidelines to reject any or every offer that may be made by the writ petitioner while responding to a tender that may be called for supply of spare parts by the Railways. Mr. Iyer, learned Senior Counsel appearing for EDC drew our attention to a judgment of this Court in Sterling Computers Ltd. v. M & N Publications Ltd. which has held :"Under some special circumstances a discretion has to be conceded to the authorities who have to enter into contract giving them liberty to assess the overall situation for purpose of taking a decision as to whom the contract be awarded and at what terms. If the decisions have been taken in bona fide manner although not strictly following the norms laid down by the courts, such decisions are upheld on the principle laid down by Justice Holmes, that courts while judging the constitutional validity of executive decisions must grant certain measure of freedom of play in the joints to the executive." * But then as has been held by this Court in the very same judgment that a public authority even in contractual matters should not have unfettered discretion and in contracts having commercial element even though some extra discretion is to be conceded in such authorities, they are bound to follow the norms recognised by courts while dealing with public property. This requirement is necessary to avoid unreasonable and arbitrary decisions being taken by public authorities whose actions are amenable to judicial review. Therefore, merely because the authority has certain elbow room available for use of discretion in accepting offer in contracts, the same will have to be done within the four corners of the requirements of law, especially Article 14 of the Constitution. In the instant case, we have noticed that apart from rejecting the offer of the writ petitioner arbitrarily, the writ petitioner has now been virtually debarred from competing with EDC in the supply of spare parts to be used in the governors by the Railways, ever since the year 1992, and during all this while, we are told the Railways are making purchases without any tender on a proprietary basis only from EDC which, in our opinion, is in flagrant violation of the constitutional mandate of Article 14. We are also of the opinion that the so-called policy of the Board creating monopoly of EDC suffers from the vice of non-application of mind, hence, it has to be quashed as has been done by the High Court.As stated above, so far as the tender dated 9-12-1991 is concerned, the same has become infructuous by passage of time, hence, the relief granted in this regard by the High Court has also become infructuous. However, we are in agreement with the High Court that the Board cannot purchase the spare parts under a proprietary basis from EDC without calling for tenders and considering the offers received on merits. | 0[ds]A perusal of the said letter shows that the Board adopted this policy keeping in mind the need to assure reliability and quality performance of the governors and their spare parts in the context of sophistication, complexity and high degree of precision associated with governors. It is in this background that in para (i) the letter states that the spares should be procured on proprietary basis from EDC. This policy proceeds on the hypothesis that there is no other supplier in the country who is competent enough to supply the spares required for the governors used by the Indian Railways without taking into consideration the fact that the writ petitioner has been supplying these spare parts for the last over 17 years to various divisions of the Indian Railways which fact has been established by the writ petitioner from the material produced both before the High Court and this Court and which fact has been accepted by the High Court. This clearly establishes the fact that the decision of the Board as found in the letter datedsuffers from the vice ofof mind. On behalf of the appellants, it has been very seriously contended before us that the decision vide letter datedbeing in the nature of a policy decision, it is not open to courts to interfere since policies are normally formulated by experts on the subjects and the courts not being in a position to step into the shoes of the experts, cannot interfere with such policy matters. There is no doubt that this Court has held in more than one case that where the decision of the authority is in regard to a policy matter, this Court will not ordinarily interfere since these policy matters are taken based on expert knowledge of the persons concerned and courts are normally not equipped to question the correctness of a policy decision. But then this does not mean that the courts have to abdicate their right to scrutinise whether the policy in question is formulated keeping in mind all the relevant facts and the said policy can be held to be beyond the pale of discrimination or unreasonableness, bearing in mind the material on record. It is with this limited object if we scrutinise the policy reflected in the letter datedit is seen that the Railways took the decision to create a monopoly on proprietary basis on EDC on the ground that the spares required by it for replacement in the governors used by the Railways required a high degree of sophistication, complexity and precision, and in the background of the fact that there was no party other than EDC which could supply such spares. There can be no doubt that an equipment of the nature of a spare part of a governor which is used to control the speed in a diesel locomotive should be a quality product which can adhere to the strict scrutiny/standards of the Railways, but then the pertinent question is : has the Board taken into consideration the availability orof such characteristics in the spare parts supplied by the writ petitioner or, for that matter, was the Board alive to the fact that like EDC the writ petitioner was also supplying the spare parts as the replacement parts for the GE governors for the last over 17 years to the various divisions of the Railways ? A perusal of the letter dateddoes not show that the Board was either aware of the existence of the writ petitioner or its capacity or otherwise to supply the spare parts required by the Railways for replacement in the governors used by it, an ignorance which is fatal to its policy decision. Any decision, be it a simple administrative decision or a policy decision, if taken without considering the relevant facts, can only be termed as an arbitrary decision. If it is so, then be it a policy decision or otherwise, it will be violative of the mandate of Article 14 of the Constitution.It isan admitted case that EDC manufactures its own governors and not GE governors nor are they licensed to manufacture GE governors. All and any/sundry governors manufacturer cannot be treated as a manufacturer of original equipment for the supply of spares for GE governors. The status of EDCthe writ petitioner will be the same in regard to the supply of spares to GE governors. This observation of ours does not of course amount to giving a certificate of approval to the writ petitioner as to the spare parts manufactured by it or that it is compatible with the GE governors. That is a matter to be decided by the experts but suffice it to say that the writ petitioner cannot be excluded from consideration for the supply of spare parts to the GE governors on the sole ground that it does not manufacture governors bysuch ground has been taken when the writ petitioners tender was rejected. Therefore, we agree with the High Court that it is not open to the Railways to rely upon this clause in the Guidelines to reject any or every offer that may be made by the writ petitioner while responding to a tender that may be called for supply of spare parts by thethe instant case, we have noticed that apart from rejecting the offer of the writ petitioner arbitrarily, the writ petitioner has now been virtually debarred from competing with EDC in the supply of spare parts to be used in the governors by the Railways, ever since the year 1992, and during all this while, we are told the Railways are making purchases without any tender on a proprietary basis only from EDC which, in our opinion, is in flagrant violation of the constitutional mandate of Article 14. We are also of the opinion that thepolicy of the Board creating monopoly of EDCsuffers from the vice ofof mind, hence, it has to be quashed as has been done by the High Court.As stated above, so far as the tender datedis concerned, the same has become infructuous by passage of time, hence, the relief granted in this regard by the High Court has also become infructuous. However, we are in agreement with the High Court that the Board cannot purchase the spare parts under a proprietary basis from EDC without calling for tenders and considering the offers received on merits. | 0 | 3,961 | 1,118 | ### 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:
manufacturer than from a manufacturer of only a spare part. This argument would have been an acceptable argument if EDC was manufacturing GE governors itself. It is an admitted case that EDC manufactures its own governors and not GE governors nor are they licensed to manufacture GE governors. All and any/sundry governors manufacturer cannot be treated as a manufacturer of original equipment for the supply of spares for GE governors. The status of EDC vis-a-vis the writ petitioner will be the same in regard to the supply of spares to GE governors. This observation of ours does not of course amount to giving a certificate of approval to the writ petitioner as to the spare parts manufactured by it or that it is compatible with the GE governors. That is a matter to be decided by the experts but suffice it to say that the writ petitioner cannot be excluded from consideration for the supply of spare parts to the GE governors on the sole ground that it does not manufacture governors by itself. Here it is to be noted that a substantial number of governors used in the locomotives of the Indian Railways are those manufactured by GE, therefore, the requirements of spare parts are also substantial for replacement in these governors. Hence, the Board ought not to have created a monopoly in favour of EDC. It is, however, open to the Railways if it comes to the genuine conclusion that the spare parts manufactured by the writ petitioner are not acceptable on the ground of sophistication, complexity and high degree of precision then certainly it is for the Railways or for that matter if the terms of offer are not acceptable for justifiable reasons, it will be open to the Railways to reject the offer of the writ petitioner. But then, none of the above forms the basis for creating a monopoly in favour of EDC. As held by the High Court, creation of this monopoly in favour of EDC is unreasonable and arbitrary with which we agree. Coming to the second question involved in these appeals, namely, the rejection of the tender of the writ petitioner, it was argued on behalf of the appellants that the Railways under clause 16 of the Guidelines was entitled to reject any tender offer without assigning any reasons and it also has the power to accept or not to accept the lowest offer. We do not dispute this power provided the same is exercised within the realm of the object for which this clause is incorporated. This does not give an arbitrary power to the Railways to reject the bid offered by a party merely because it has that power. This is a power which can be exercised on the existence of certain conditions which in the opinion of the Railways are not in the interest of the Railways to accept the offer. No such ground has been taken when the writ petitioners tender was rejected. Therefore, we agree with the High Court that it is not open to the Railways to rely upon this clause in the Guidelines to reject any or every offer that may be made by the writ petitioner while responding to a tender that may be called for supply of spare parts by the Railways. Mr. Iyer, learned Senior Counsel appearing for EDC drew our attention to a judgment of this Court in Sterling Computers Ltd. v. M & N Publications Ltd. which has held :"Under some special circumstances a discretion has to be conceded to the authorities who have to enter into contract giving them liberty to assess the overall situation for purpose of taking a decision as to whom the contract be awarded and at what terms. If the decisions have been taken in bona fide manner although not strictly following the norms laid down by the courts, such decisions are upheld on the principle laid down by Justice Holmes, that courts while judging the constitutional validity of executive decisions must grant certain measure of freedom of play in the joints to the executive." * But then as has been held by this Court in the very same judgment that a public authority even in contractual matters should not have unfettered discretion and in contracts having commercial element even though some extra discretion is to be conceded in such authorities, they are bound to follow the norms recognised by courts while dealing with public property. This requirement is necessary to avoid unreasonable and arbitrary decisions being taken by public authorities whose actions are amenable to judicial review. Therefore, merely because the authority has certain elbow room available for use of discretion in accepting offer in contracts, the same will have to be done within the four corners of the requirements of law, especially Article 14 of the Constitution. In the instant case, we have noticed that apart from rejecting the offer of the writ petitioner arbitrarily, the writ petitioner has now been virtually debarred from competing with EDC in the supply of spare parts to be used in the governors by the Railways, ever since the year 1992, and during all this while, we are told the Railways are making purchases without any tender on a proprietary basis only from EDC which, in our opinion, is in flagrant violation of the constitutional mandate of Article 14. We are also of the opinion that the so-called policy of the Board creating monopoly of EDC suffers from the vice of non-application of mind, hence, it has to be quashed as has been done by the High Court.As stated above, so far as the tender dated 9-12-1991 is concerned, the same has become infructuous by passage of time, hence, the relief granted in this regard by the High Court has also become infructuous. However, we are in agreement with the High Court that the Board cannot purchase the spare parts under a proprietary basis from EDC without calling for tenders and considering the offers received on merits.
### Response:
0
### Explanation:
the spares should be procured on proprietary basis from EDC. This policy proceeds on the hypothesis that there is no other supplier in the country who is competent enough to supply the spares required for the governors used by the Indian Railways without taking into consideration the fact that the writ petitioner has been supplying these spare parts for the last over 17 years to various divisions of the Indian Railways which fact has been established by the writ petitioner from the material produced both before the High Court and this Court and which fact has been accepted by the High Court. This clearly establishes the fact that the decision of the Board as found in the letter datedsuffers from the vice ofof mind. On behalf of the appellants, it has been very seriously contended before us that the decision vide letter datedbeing in the nature of a policy decision, it is not open to courts to interfere since policies are normally formulated by experts on the subjects and the courts not being in a position to step into the shoes of the experts, cannot interfere with such policy matters. There is no doubt that this Court has held in more than one case that where the decision of the authority is in regard to a policy matter, this Court will not ordinarily interfere since these policy matters are taken based on expert knowledge of the persons concerned and courts are normally not equipped to question the correctness of a policy decision. But then this does not mean that the courts have to abdicate their right to scrutinise whether the policy in question is formulated keeping in mind all the relevant facts and the said policy can be held to be beyond the pale of discrimination or unreasonableness, bearing in mind the material on record. It is with this limited object if we scrutinise the policy reflected in the letter datedit is seen that the Railways took the decision to create a monopoly on proprietary basis on EDC on the ground that the spares required by it for replacement in the governors used by the Railways required a high degree of sophistication, complexity and precision, and in the background of the fact that there was no party other than EDC which could supply such spares. There can be no doubt that an equipment of the nature of a spare part of a governor which is used to control the speed in a diesel locomotive should be a quality product which can adhere to the strict scrutiny/standards of the Railways, but then the pertinent question is : has the Board taken into consideration the availability orof such characteristics in the spare parts supplied by the writ petitioner or, for that matter, was the Board alive to the fact that like EDC the writ petitioner was also supplying the spare parts as the replacement parts for the GE governors for the last over 17 years to the various divisions of the Railways ? A perusal of the letter dateddoes not show that the Board was either aware of the existence of the writ petitioner or its capacity or otherwise to supply the spare parts required by the Railways for replacement in the governors used by it, an ignorance which is fatal to its policy decision. Any decision, be it a simple administrative decision or a policy decision, if taken without considering the relevant facts, can only be termed as an arbitrary decision. If it is so, then be it a policy decision or otherwise, it will be violative of the mandate of Article 14 of the Constitution.It isan admitted case that EDC manufactures its own governors and not GE governors nor are they licensed to manufacture GE governors. All and any/sundry governors manufacturer cannot be treated as a manufacturer of original equipment for the supply of spares for GE governors. The status of EDCthe writ petitioner will be the same in regard to the supply of spares to GE governors. This observation of ours does not of course amount to giving a certificate of approval to the writ petitioner as to the spare parts manufactured by it or that it is compatible with the GE governors. That is a matter to be decided by the experts but suffice it to say that the writ petitioner cannot be excluded from consideration for the supply of spare parts to the GE governors on the sole ground that it does not manufacture governors bysuch ground has been taken when the writ petitioners tender was rejected. Therefore, we agree with the High Court that it is not open to the Railways to rely upon this clause in the Guidelines to reject any or every offer that may be made by the writ petitioner while responding to a tender that may be called for supply of spare parts by thethe instant case, we have noticed that apart from rejecting the offer of the writ petitioner arbitrarily, the writ petitioner has now been virtually debarred from competing with EDC in the supply of spare parts to be used in the governors by the Railways, ever since the year 1992, and during all this while, we are told the Railways are making purchases without any tender on a proprietary basis only from EDC which, in our opinion, is in flagrant violation of the constitutional mandate of Article 14. We are also of the opinion that thepolicy of the Board creating monopoly of EDCsuffers from the vice ofof mind, hence, it has to be quashed as has been done by the High Court.As stated above, so far as the tender datedis concerned, the same has become infructuous by passage of time, hence, the relief granted in this regard by the High Court has also become infructuous. However, we are in agreement with the High Court that the Board cannot purchase the spare parts under a proprietary basis from EDC without calling for tenders and considering the offers received on merits.
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Automobile Products India Ltd Vs. Das John Peter and Ors | the instance of company against the accused was maintainable and in our opinion cognizance thereof was rightly taken by the Magistrate but committed a grave error in rejecting it on technical grounds, instead of deciding it on merits. 24. Learned counsel for appellant has also placed reliance on Section 621 of the Act, dealing with offences against the Act to be cognizable only on complaint by Registrar, share holder or government. To appreciate the arguments in this regard, the said Section 621 of the Act is reproduced hereinbelow: "621. Offences against Act to be cognizable only on complaint by Registrar, shareholder or Government.(1) No court shall take cognizance of any offence against this Act, which is alleged to have been committed by any company or any officer thereof, except on the complaint in writing of the Registrar, or of a shareholder of a company, or of a person authorised by the Central Government in that behalf:Provided that nothing in this sub-section shall apply to a prosecution by a company of any of its officers:Provided further that the court may take cognizance of offence relating to issue and transfer of securities and non-payment of dividend on a complaint in writing by a person authorised by the Securities Exchange Board of India.(1A) Notwithstanding anything contained in the Code of Criminal Procedure 1898 (5 of 1898), where the complainant under sub-section (1) is the Registrar or a person authorised by the Central Government, the personal attendance of the complainant before the Court trying the offence shall not be necessary unless the Court for the reasons to be recorded in writing requires his personal attendance at the trial.(2)Sub-section (1) shall not apply to any action taken by the liquidator of a company in respect of any offence alleged to have been committed in respect of any of the matters included in Part VII (sections 425 to 560) or in any other provisions of this Act relating to the winding up of the companies.(3) A liquidator of a company shall not be deemed to be an officer of the company, within the meaning of sub-section (1)." 25. However, it is not necessary to examine the applicability of the aforesaid Section 621 of the Act to the present case as it appears to be doubtful to categorise accused No. 1, who was admittedly working as caretaker, as an officer of the company. Thus, we deem it fit and proper to leave the said question open at this stage. 26. We have carefully examined the originals of the resolution dated 31.12.2001 as also Power of Attorney of the even date executed in favour of Mr. V.S. Parthasarthy and the irresistible conclusion is that the same are genuine and do not come under the cloud of suspicion at all.27. That being so, in the light of the admitted position that accused No. 1 retired in the year 1992 and has also given an undertaking to the Company as far as back as 5.1.2000 categorically admitting and agreeing to vacate the premises on or before 31.1.2000, it was incumbent on his part to honour the same.28. The letter of the accused No. 1 dated 05.01.2000 is reproduced herein below:- "In regard to the above subject I the undersigned would be grateful to you if you would give me one month time till January 31st 2000 to vacate the premises that was given to me while I was in service with your esteemed organisation." Das John Peter29. Even after taking into consideration all the defences taken by accused, their eviction from the servant quarter is inevitable. Since he has committed default of his own promise, we have no other choice or option but to direct the accused persons to vacate the premises by or before 1st October, 2010 and to hand over its peaceful vacant possession to the Company.30. We have done so exercising the powers conferred on us by virtue of provisions of Article 142 of the Constitution which cast a duty on us to do complete justice between the parties.31. It is clear from the impugned orders that there is manifest illegality in the same and have resulted in palpable injustice to the Appellant/Company curable at this stage under Article 142 of the Constitution as the aforesaid powers are inherent on this Court as guardian of the Constitution.32. According to us, no useful purpose would be served even if the matter is remitted to Magistrate for trial on merits. We hold so because equity also does not swing in favour of the accused, who have displayed adamant and dilatory attitude.33. From the date of retirement of accused No. 1 till date, more than 18 years have passed by and he has used the servant quarter without having any right to do so. No further mercy or sympathy can be shown to such an accused.34. Thus, looking to the matter from all angles we are of the considered opinion that the order passed by Metropolitan Magistrate as also by the High Court cannot be sustained in law. Same are hereby set aside and quashed. This we have to do to give quietus to the litigation which had commenced long years back.35. Appellants complaint filed under section 630 of the Act is hereby allowed and accused is granted time to vacate the servant quarter as mentioned hereinabove on or before 1.10.2010 and to hand over its peaceful and vacant possession to the appellant company. In default thereof accused shall have to suffer imprisonment for a term of one year and fine of Rs. 10,000/-. In default of payment of fine, the accused shall suffer further imprisonment of one month.36. We hope and trust at least good sense shall prevail on the accused and instead of running the risk of being sent to jail, they would abide by the first part of the order and do the needful. If the accused persons fail to do so then the appellant shall be entitled to take police help to get our order executed. | 1[ds]26. We have carefully examined the originals of the resolution dated 31.12.2001 as also Power of Attorney of the even date executed in favour of Mr. V.S. Parthasarthy and the irresistible conclusion is that the same are genuine and do not come under the cloud of suspicion at all.27. That being so, in the light of the admitted position that accused No. 1 retired in the year 1992 and has also given an undertaking to the Company as far as back as 5.1.2000 categorically admitting and agreeing to vacate the premises on or before 31.1.2000, it was incumbent on his part to honour the same.28. The letter of the accused No. 1 dated 05.01.2000 is reproduced hereinregard to the above subject I the undersigned would be grateful to you if you would give me one month time till January 31st 2000 to vacate the premises that was given to me while I was in service with your esteemedJohn Peter29. Even after taking into consideration all the defences taken by accused, their eviction from the servant quarter is inevitable. Since he has committed default of his own promise, we have no other choice or option but to direct the accused persons to vacate the premises by or before 1st October, 2010 and to hand over its peaceful vacant possession to the Company.30. We have done so exercising the powers conferred on us by virtue of provisions of Article 142 of the Constitution which cast a duty on us to do complete justice between the parties.31. It is clear from the impugned orders that there is manifest illegality in the same and have resulted in palpable injustice to the Appellant/Company curable at this stage under Article 142 of the Constitution as the aforesaid powers are inherent on this Court as guardian of the Constitution.32. According to us, no useful purpose would be served even if the matter is remitted to Magistrate for trial on merits. We hold so because equity also does not swing in favour of the accused, who have displayed adamant and dilatory attitude.33. From the date of retirement of accused No. 1 till date, more than 18 years have passed by and he has used the servant quarter without having any right to do so. No further mercy or sympathy can be shown to such an accused.34. Thus, looking to the matter from all angles we are of the considered opinion that the order passed by Metropolitan Magistrate as also by the High Court cannot be sustained in law. Same are hereby set aside and quashed. This we have to do to give quietus to the litigation which had commenced long years back.35. Appellants complaint filed under section 630 of the Act is hereby allowed and accused is granted time to vacate the servant quarter as mentioned hereinabove on or before 1.10.2010 and to hand over its peaceful and vacant possession to the appellant company. In default thereof accused shall have to suffer imprisonment for a term of one year and fine of Rs.In default of payment of fine, the accused shall suffer further imprisonment of one month.36. We hope and trust at least good sense shall prevail on the accused and instead of running the risk of being sent to jail, they would abide by the first part of the order and do the needful. If the accused persons fail to do so then the appellant shall be entitled to take police help to get our order executed. | 1 | 3,149 | 619 | ### 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 instance of company against the accused was maintainable and in our opinion cognizance thereof was rightly taken by the Magistrate but committed a grave error in rejecting it on technical grounds, instead of deciding it on merits. 24. Learned counsel for appellant has also placed reliance on Section 621 of the Act, dealing with offences against the Act to be cognizable only on complaint by Registrar, share holder or government. To appreciate the arguments in this regard, the said Section 621 of the Act is reproduced hereinbelow: "621. Offences against Act to be cognizable only on complaint by Registrar, shareholder or Government.(1) No court shall take cognizance of any offence against this Act, which is alleged to have been committed by any company or any officer thereof, except on the complaint in writing of the Registrar, or of a shareholder of a company, or of a person authorised by the Central Government in that behalf:Provided that nothing in this sub-section shall apply to a prosecution by a company of any of its officers:Provided further that the court may take cognizance of offence relating to issue and transfer of securities and non-payment of dividend on a complaint in writing by a person authorised by the Securities Exchange Board of India.(1A) Notwithstanding anything contained in the Code of Criminal Procedure 1898 (5 of 1898), where the complainant under sub-section (1) is the Registrar or a person authorised by the Central Government, the personal attendance of the complainant before the Court trying the offence shall not be necessary unless the Court for the reasons to be recorded in writing requires his personal attendance at the trial.(2)Sub-section (1) shall not apply to any action taken by the liquidator of a company in respect of any offence alleged to have been committed in respect of any of the matters included in Part VII (sections 425 to 560) or in any other provisions of this Act relating to the winding up of the companies.(3) A liquidator of a company shall not be deemed to be an officer of the company, within the meaning of sub-section (1)." 25. However, it is not necessary to examine the applicability of the aforesaid Section 621 of the Act to the present case as it appears to be doubtful to categorise accused No. 1, who was admittedly working as caretaker, as an officer of the company. Thus, we deem it fit and proper to leave the said question open at this stage. 26. We have carefully examined the originals of the resolution dated 31.12.2001 as also Power of Attorney of the even date executed in favour of Mr. V.S. Parthasarthy and the irresistible conclusion is that the same are genuine and do not come under the cloud of suspicion at all.27. That being so, in the light of the admitted position that accused No. 1 retired in the year 1992 and has also given an undertaking to the Company as far as back as 5.1.2000 categorically admitting and agreeing to vacate the premises on or before 31.1.2000, it was incumbent on his part to honour the same.28. The letter of the accused No. 1 dated 05.01.2000 is reproduced herein below:- "In regard to the above subject I the undersigned would be grateful to you if you would give me one month time till January 31st 2000 to vacate the premises that was given to me while I was in service with your esteemed organisation." Das John Peter29. Even after taking into consideration all the defences taken by accused, their eviction from the servant quarter is inevitable. Since he has committed default of his own promise, we have no other choice or option but to direct the accused persons to vacate the premises by or before 1st October, 2010 and to hand over its peaceful vacant possession to the Company.30. We have done so exercising the powers conferred on us by virtue of provisions of Article 142 of the Constitution which cast a duty on us to do complete justice between the parties.31. It is clear from the impugned orders that there is manifest illegality in the same and have resulted in palpable injustice to the Appellant/Company curable at this stage under Article 142 of the Constitution as the aforesaid powers are inherent on this Court as guardian of the Constitution.32. According to us, no useful purpose would be served even if the matter is remitted to Magistrate for trial on merits. We hold so because equity also does not swing in favour of the accused, who have displayed adamant and dilatory attitude.33. From the date of retirement of accused No. 1 till date, more than 18 years have passed by and he has used the servant quarter without having any right to do so. No further mercy or sympathy can be shown to such an accused.34. Thus, looking to the matter from all angles we are of the considered opinion that the order passed by Metropolitan Magistrate as also by the High Court cannot be sustained in law. Same are hereby set aside and quashed. This we have to do to give quietus to the litigation which had commenced long years back.35. Appellants complaint filed under section 630 of the Act is hereby allowed and accused is granted time to vacate the servant quarter as mentioned hereinabove on or before 1.10.2010 and to hand over its peaceful and vacant possession to the appellant company. In default thereof accused shall have to suffer imprisonment for a term of one year and fine of Rs. 10,000/-. In default of payment of fine, the accused shall suffer further imprisonment of one month.36. We hope and trust at least good sense shall prevail on the accused and instead of running the risk of being sent to jail, they would abide by the first part of the order and do the needful. If the accused persons fail to do so then the appellant shall be entitled to take police help to get our order executed.
### Response:
1
### Explanation:
26. We have carefully examined the originals of the resolution dated 31.12.2001 as also Power of Attorney of the even date executed in favour of Mr. V.S. Parthasarthy and the irresistible conclusion is that the same are genuine and do not come under the cloud of suspicion at all.27. That being so, in the light of the admitted position that accused No. 1 retired in the year 1992 and has also given an undertaking to the Company as far as back as 5.1.2000 categorically admitting and agreeing to vacate the premises on or before 31.1.2000, it was incumbent on his part to honour the same.28. The letter of the accused No. 1 dated 05.01.2000 is reproduced hereinregard to the above subject I the undersigned would be grateful to you if you would give me one month time till January 31st 2000 to vacate the premises that was given to me while I was in service with your esteemedJohn Peter29. Even after taking into consideration all the defences taken by accused, their eviction from the servant quarter is inevitable. Since he has committed default of his own promise, we have no other choice or option but to direct the accused persons to vacate the premises by or before 1st October, 2010 and to hand over its peaceful vacant possession to the Company.30. We have done so exercising the powers conferred on us by virtue of provisions of Article 142 of the Constitution which cast a duty on us to do complete justice between the parties.31. It is clear from the impugned orders that there is manifest illegality in the same and have resulted in palpable injustice to the Appellant/Company curable at this stage under Article 142 of the Constitution as the aforesaid powers are inherent on this Court as guardian of the Constitution.32. According to us, no useful purpose would be served even if the matter is remitted to Magistrate for trial on merits. We hold so because equity also does not swing in favour of the accused, who have displayed adamant and dilatory attitude.33. From the date of retirement of accused No. 1 till date, more than 18 years have passed by and he has used the servant quarter without having any right to do so. No further mercy or sympathy can be shown to such an accused.34. Thus, looking to the matter from all angles we are of the considered opinion that the order passed by Metropolitan Magistrate as also by the High Court cannot be sustained in law. Same are hereby set aside and quashed. This we have to do to give quietus to the litigation which had commenced long years back.35. Appellants complaint filed under section 630 of the Act is hereby allowed and accused is granted time to vacate the servant quarter as mentioned hereinabove on or before 1.10.2010 and to hand over its peaceful and vacant possession to the appellant company. In default thereof accused shall have to suffer imprisonment for a term of one year and fine of Rs.In default of payment of fine, the accused shall suffer further imprisonment of one month.36. We hope and trust at least good sense shall prevail on the accused and instead of running the risk of being sent to jail, they would abide by the first part of the order and do the needful. If the accused persons fail to do so then the appellant shall be entitled to take police help to get our order executed.
|
CALCUTTA GUJARATI EDUCATION SOCIETY AND ANOTHER Vs. REGIONAL PROVIDENT FUND COMMISSIONER AND ORS | Appellate Tribunal as contemplated under Section 7-I of the Employees Provident Fund and Miscellaneous Provisions Act, 1952. The Appellate Authority has decided the matter against the appellants. Insofar as the issue raised on merits relating to the payment of contribution, the same does not arise for consideration before us at this juncture since a consideration with regard to the correctness or otherwise of the order dated 20.10.2005 passed by the Appellate Tribunal would have to be considered at the outset by the Competent High Court in the writ petition on the contentions which have been raised on merits relating to the order. The only issue for our consideration herein is as to whether the writ petition filed by the appellants assailing such order would be maintainable before the Calcutta High Court wherein the appellants had assailed the said order. 4. Insofar as that aspect of the matter as already noted in the instant case, the original authority, namely, the Assistant Provident Fund Commissioner, Calcutta situated in West Bengal and the order dated 20.10.2005 was passed by the authority under the provisions of the Employees Provident Fund Act at Calcutta. The appeal provided under Section 7-I of that Act would, however, lie to the Tribunal situate at new Delhi. If that be the position, the original authority is situate, within the jurisdiction of the Calcutta High Court. On the aspect relating to the jurisdiction to entertain the writ petition at the place where the original authority is situate, the issue is no more res integra inasmuch as this Court while considering the matter in the case of Ambica Industries vs. Commissioner of Central Excise (2006) 6 SCC 769 has addressed such issue. In that case, the consideration in the appeal was with regard to the determination of the sit us of the High Court in which the appeal would lie under Section 35-G of the Central Excise Act,1944. The issue therein was with regard to the maintainability or otherwise of the writ petition before the High Court at New Delhi merely because the Central Excise and Service Tax Appellate Tribunal (CESTAT) is situated at New Delhi. While considering the said question, this Court has arrived at the conclusion that when such Tribunals exercise its jurisdiction in respect of the issues arising from the different parts of the country, the territorial jurisdiction for filing the writ petition at the place where the Tribunal is situated would not be justified. It has been held therein that the writ petition would be maintainable at the place where the original authority/court had exercised the jurisdiction. The relevant paragraph No.13 and 17 read as follows: 13. The Tribunal, as noticed hereinbefore, exercises jurisdiction over all the three States. In all the three States there are High Courts. In the event, the aggrieved person is treated to be the dominus litis, as a result whereof, he elects to file the appeal before one or the other High Court, the decision of the High Court shall be binding only on the authorities which are within its jurisdiction. It will only be of persuasive value on the authorities functioning under a different jurisdiction. If the binding authority of a High Court does not extend beyond its territorial jurisdiction and the decision of one High Court would not be a binding precedent for other High Courts or courts or tribunals outside its territorial jurisdiction, some sort of judicial anarchy shall come into play. An assessee, affected by an order of assessment made at Bombay, may invoke the jurisdiction of the Allahabad High court to take advantage of the law laid down by it and which might suit him and thus he would be able to successfully evade the law laid down by the High Court at Bombay. 17. There cannot be any doubt whatsoever that in terms of Article 227 of the Constitution of India as also Clause (2) of Article 226 thereof, the High Court would exercise its discretionary jurisdiction as also power to issue writ of certiorari in respect of the orders passed by the subordinate courts within its territorial jurisdiction or if any cause of action has arisen there within but the same tests cannot be applied when the appellate court exercises a jurisdiction over a tribunal situated in more than one State. In such a situation, in our opinion, the High Court situated in the State where the first court is located should be considered to be appropriate Appellate Authority. The Code of Civil Procedure did not contemplate such a situation. It provides for jurisdiction of each court. Even a District Judge must exercise its jurisdiction only within the territorial limits of a State. It is inconceivable under the code of Civil Procedure that the jurisdiction of the District Court would be exercisable beyond the territorial jurisdiction of the district, save and except in such matters where the law specifically provides there for.(emphasis supplied) 5. The learned counsel for the respondents no doubt referred to the decision in the case of Kusum Ingots & Alloys Ltd. Vs. Union of India & Anr. (2004) 6 SCC 254 wherein it is held that the territorial jurisdiction will be at the place where part of the cause of action arises. Apart from the fact that Calcutta has the territorial jurisdiction since the cause of action has arisen there, it is seen that this Court while considering this aspect in the case of Ambica Industries (supra) has referred to the decision in Kusum Ingots (supra) and declared the position of law. Hence no further discussion is required on that aspect. 6. If the said enunciation of law is kept in view, as already taken note, in the instant case the original order passed is by the Assistant Provident Fund Commissioner situate at Calcutta, West Bengal and the Calcutta High Court can exercise territorial jurisdiction. In that light we are of the view that the Calcutta High Court was not justified in its decision to decline to entertain the writ petition. | 1[ds]4. Insofar as that aspect of the matter as already noted in the instant case, the original authority, namely, the Assistant Provident Fund Commissioner, Calcutta situated in West Bengal and the order dated 20.10.2005 was passed by the authority under the provisions of the Employees Provident Fund Act at Calcutta. The appeal provided under Section 7-I of that Act would, however, lie to the Tribunal situate at new Delhi. If that be the position, the original authority is situate, within the jurisdiction of the Calcutta High Court. On the aspect relating to the jurisdiction to entertain the writ petition at the place where the original authority is situate, the issue is no more res integra inasmuch as this Court while considering the matter in the case of Ambica Industries vs. Commissioner of Central Excise (2006) 6 SCC 769 has addressed such issue. In that case, the consideration in the appeal was with regard to the determination of the sit us of the High Court in which the appeal would lie under Section 35-G of the Central Excise Act,1944. The issue therein was with regard to the maintainability or otherwise of the writ petition before the High Court at New Delhi merely because the Central Excise and Service Tax Appellate Tribunal (CESTAT) is situated at New Delhi. While considering the said question, this Court has arrived at the conclusion that when such Tribunals exercise its jurisdiction in respect of the issues arising from the different parts of the country, the territorial jurisdiction for filing the writ petition at the place where the Tribunal is situated would not be justified. It has been held therein that the writ petition would be maintainable at the place where the original authority/court had exercised the jurisdiction. The relevant paragraph No.13 and 17 read as follows:13. The Tribunal, as noticed hereinbefore, exercises jurisdiction over all the three States. In all the three States there are High Courts. In the event, the aggrieved person is treated to be the dominus litis, as a result whereof, he elects to file the appeal before one or the other High Court, the decision of the High Court shall be binding only on the authorities which are within its jurisdiction. It will only be of persuasive value on the authorities functioning under a different jurisdiction. If the binding authority of a High Court does not extend beyond its territorial jurisdiction and the decision of one High Court would not be a binding precedent for other High Courts or courts or tribunals outside its territorial jurisdiction, some sort of judicial anarchy shall come into play. An assessee, affected by an order of assessment made at Bombay, may invoke the jurisdiction of the Allahabad High court to take advantage of the law laid down by it and which might suit him and thus he would be able to successfully evade the law laid down by the High Court at Bombay.17. There cannot be any doubt whatsoever that in terms of Article 227 of the Constitution of India as also Clause (2) of Article 226 thereof, the High Court would exercise its discretionary jurisdiction as also power to issue writ of certiorari in respect of the orders passed by the subordinate courts within its territorial jurisdiction or if any cause of action has arisen there within but the same tests cannot be applied when the appellate court exercises a jurisdiction over a tribunal situated in more than one State. In such a situation, in our opinion, the High Court situated in the State where the first court is located should be considered to be appropriate Appellate Authority. The Code of Civil Procedure did not contemplate such a situation. It provides for jurisdiction of each court. Even a District Judge must exercise its jurisdiction only within the territorial limits of a State. It is inconceivable under the code of Civil Procedure that the jurisdiction of the District Court would be exercisable beyond the territorial jurisdiction of the district, save and except in such matters where the law specifically provides there for.(emphasis supplied)5. The learned counsel for the respondents no doubt referred to the decision in the case of Kusum Ingots & Alloys Ltd. Vs. Union of India & Anr. (2004) 6 SCC 254 wherein it is held that the territorial jurisdiction will be at the place where part of the cause of action arises. Apart from the fact that Calcutta has the territorial jurisdiction since the cause of action has arisen there, it is seen that this Court while considering this aspect in the case of Ambica Industries (supra) has referred to the decision in Kusum Ingots (supra) and declared the position of law. Hence no further discussion is required on that aspect.6. If the said enunciation of law is kept in view, as already taken note, in the instant case the original order passed is by the Assistant Provident Fund Commissioner situate at Calcutta, West Bengal and the Calcutta High Court can exercise territorial jurisdiction. In that light we are of the view that the Calcutta High Court was not justified in its decision to decline to entertain the writ petition. | 1 | 1,396 | 938 | ### 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:
Appellate Tribunal as contemplated under Section 7-I of the Employees Provident Fund and Miscellaneous Provisions Act, 1952. The Appellate Authority has decided the matter against the appellants. Insofar as the issue raised on merits relating to the payment of contribution, the same does not arise for consideration before us at this juncture since a consideration with regard to the correctness or otherwise of the order dated 20.10.2005 passed by the Appellate Tribunal would have to be considered at the outset by the Competent High Court in the writ petition on the contentions which have been raised on merits relating to the order. The only issue for our consideration herein is as to whether the writ petition filed by the appellants assailing such order would be maintainable before the Calcutta High Court wherein the appellants had assailed the said order. 4. Insofar as that aspect of the matter as already noted in the instant case, the original authority, namely, the Assistant Provident Fund Commissioner, Calcutta situated in West Bengal and the order dated 20.10.2005 was passed by the authority under the provisions of the Employees Provident Fund Act at Calcutta. The appeal provided under Section 7-I of that Act would, however, lie to the Tribunal situate at new Delhi. If that be the position, the original authority is situate, within the jurisdiction of the Calcutta High Court. On the aspect relating to the jurisdiction to entertain the writ petition at the place where the original authority is situate, the issue is no more res integra inasmuch as this Court while considering the matter in the case of Ambica Industries vs. Commissioner of Central Excise (2006) 6 SCC 769 has addressed such issue. In that case, the consideration in the appeal was with regard to the determination of the sit us of the High Court in which the appeal would lie under Section 35-G of the Central Excise Act,1944. The issue therein was with regard to the maintainability or otherwise of the writ petition before the High Court at New Delhi merely because the Central Excise and Service Tax Appellate Tribunal (CESTAT) is situated at New Delhi. While considering the said question, this Court has arrived at the conclusion that when such Tribunals exercise its jurisdiction in respect of the issues arising from the different parts of the country, the territorial jurisdiction for filing the writ petition at the place where the Tribunal is situated would not be justified. It has been held therein that the writ petition would be maintainable at the place where the original authority/court had exercised the jurisdiction. The relevant paragraph No.13 and 17 read as follows: 13. The Tribunal, as noticed hereinbefore, exercises jurisdiction over all the three States. In all the three States there are High Courts. In the event, the aggrieved person is treated to be the dominus litis, as a result whereof, he elects to file the appeal before one or the other High Court, the decision of the High Court shall be binding only on the authorities which are within its jurisdiction. It will only be of persuasive value on the authorities functioning under a different jurisdiction. If the binding authority of a High Court does not extend beyond its territorial jurisdiction and the decision of one High Court would not be a binding precedent for other High Courts or courts or tribunals outside its territorial jurisdiction, some sort of judicial anarchy shall come into play. An assessee, affected by an order of assessment made at Bombay, may invoke the jurisdiction of the Allahabad High court to take advantage of the law laid down by it and which might suit him and thus he would be able to successfully evade the law laid down by the High Court at Bombay. 17. There cannot be any doubt whatsoever that in terms of Article 227 of the Constitution of India as also Clause (2) of Article 226 thereof, the High Court would exercise its discretionary jurisdiction as also power to issue writ of certiorari in respect of the orders passed by the subordinate courts within its territorial jurisdiction or if any cause of action has arisen there within but the same tests cannot be applied when the appellate court exercises a jurisdiction over a tribunal situated in more than one State. In such a situation, in our opinion, the High Court situated in the State where the first court is located should be considered to be appropriate Appellate Authority. The Code of Civil Procedure did not contemplate such a situation. It provides for jurisdiction of each court. Even a District Judge must exercise its jurisdiction only within the territorial limits of a State. It is inconceivable under the code of Civil Procedure that the jurisdiction of the District Court would be exercisable beyond the territorial jurisdiction of the district, save and except in such matters where the law specifically provides there for.(emphasis supplied) 5. The learned counsel for the respondents no doubt referred to the decision in the case of Kusum Ingots & Alloys Ltd. Vs. Union of India & Anr. (2004) 6 SCC 254 wherein it is held that the territorial jurisdiction will be at the place where part of the cause of action arises. Apart from the fact that Calcutta has the territorial jurisdiction since the cause of action has arisen there, it is seen that this Court while considering this aspect in the case of Ambica Industries (supra) has referred to the decision in Kusum Ingots (supra) and declared the position of law. Hence no further discussion is required on that aspect. 6. If the said enunciation of law is kept in view, as already taken note, in the instant case the original order passed is by the Assistant Provident Fund Commissioner situate at Calcutta, West Bengal and the Calcutta High Court can exercise territorial jurisdiction. In that light we are of the view that the Calcutta High Court was not justified in its decision to decline to entertain the writ petition.
### Response:
1
### Explanation:
4. Insofar as that aspect of the matter as already noted in the instant case, the original authority, namely, the Assistant Provident Fund Commissioner, Calcutta situated in West Bengal and the order dated 20.10.2005 was passed by the authority under the provisions of the Employees Provident Fund Act at Calcutta. The appeal provided under Section 7-I of that Act would, however, lie to the Tribunal situate at new Delhi. If that be the position, the original authority is situate, within the jurisdiction of the Calcutta High Court. On the aspect relating to the jurisdiction to entertain the writ petition at the place where the original authority is situate, the issue is no more res integra inasmuch as this Court while considering the matter in the case of Ambica Industries vs. Commissioner of Central Excise (2006) 6 SCC 769 has addressed such issue. In that case, the consideration in the appeal was with regard to the determination of the sit us of the High Court in which the appeal would lie under Section 35-G of the Central Excise Act,1944. The issue therein was with regard to the maintainability or otherwise of the writ petition before the High Court at New Delhi merely because the Central Excise and Service Tax Appellate Tribunal (CESTAT) is situated at New Delhi. While considering the said question, this Court has arrived at the conclusion that when such Tribunals exercise its jurisdiction in respect of the issues arising from the different parts of the country, the territorial jurisdiction for filing the writ petition at the place where the Tribunal is situated would not be justified. It has been held therein that the writ petition would be maintainable at the place where the original authority/court had exercised the jurisdiction. The relevant paragraph No.13 and 17 read as follows:13. The Tribunal, as noticed hereinbefore, exercises jurisdiction over all the three States. In all the three States there are High Courts. In the event, the aggrieved person is treated to be the dominus litis, as a result whereof, he elects to file the appeal before one or the other High Court, the decision of the High Court shall be binding only on the authorities which are within its jurisdiction. It will only be of persuasive value on the authorities functioning under a different jurisdiction. If the binding authority of a High Court does not extend beyond its territorial jurisdiction and the decision of one High Court would not be a binding precedent for other High Courts or courts or tribunals outside its territorial jurisdiction, some sort of judicial anarchy shall come into play. An assessee, affected by an order of assessment made at Bombay, may invoke the jurisdiction of the Allahabad High court to take advantage of the law laid down by it and which might suit him and thus he would be able to successfully evade the law laid down by the High Court at Bombay.17. There cannot be any doubt whatsoever that in terms of Article 227 of the Constitution of India as also Clause (2) of Article 226 thereof, the High Court would exercise its discretionary jurisdiction as also power to issue writ of certiorari in respect of the orders passed by the subordinate courts within its territorial jurisdiction or if any cause of action has arisen there within but the same tests cannot be applied when the appellate court exercises a jurisdiction over a tribunal situated in more than one State. In such a situation, in our opinion, the High Court situated in the State where the first court is located should be considered to be appropriate Appellate Authority. The Code of Civil Procedure did not contemplate such a situation. It provides for jurisdiction of each court. Even a District Judge must exercise its jurisdiction only within the territorial limits of a State. It is inconceivable under the code of Civil Procedure that the jurisdiction of the District Court would be exercisable beyond the territorial jurisdiction of the district, save and except in such matters where the law specifically provides there for.(emphasis supplied)5. The learned counsel for the respondents no doubt referred to the decision in the case of Kusum Ingots & Alloys Ltd. Vs. Union of India & Anr. (2004) 6 SCC 254 wherein it is held that the territorial jurisdiction will be at the place where part of the cause of action arises. Apart from the fact that Calcutta has the territorial jurisdiction since the cause of action has arisen there, it is seen that this Court while considering this aspect in the case of Ambica Industries (supra) has referred to the decision in Kusum Ingots (supra) and declared the position of law. Hence no further discussion is required on that aspect.6. If the said enunciation of law is kept in view, as already taken note, in the instant case the original order passed is by the Assistant Provident Fund Commissioner situate at Calcutta, West Bengal and the Calcutta High Court can exercise territorial jurisdiction. In that light we are of the view that the Calcutta High Court was not justified in its decision to decline to entertain the writ petition.
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NAGAR NIGAM, GORAKHPUR Vs. SHRI RAM SHANKER YADAV | gratuity in terms of the provisions of the Act. 6. The appellant relies upon Section 3 of the U.P Dookan Aur Vanijya Adhishthan Adhiniyam, 1962 1962 Act which is to the effect that such Act will have no application to the office of Government or Local Bodies. Therefore, on the strength of such statutory provision, it was argued that the Act would not be applicable in respect of the Municipalities. The appellant is not a factory, mine, oilfield, plantation, port and railway company and that there is no notification as stipulated under Clause (c) of Section 1(3) of the Act. Therefore, the employees of the Municipalities are entitled to the gratuity in terms of the Regulations framed in exercise of powers of Section 548 of the 1959 Act and not under the Act. 7. On the other hand, learned counsel for the respondent pointed out that the Central Government has published a notification in terms of Section 1(3)(c) of the Act on 08.01.1982 to extend the applicability of the Act to the Municipalities. Thus, the Act is applicable to the Municipalities. The relevant provisions of the Act read as under: 1. Short title, extent, application and commencement.- (1) This Act may be called the Payment of Gratuity Act, 1972. (2) It extends to the whole of India: Provided that in so far as it relates to plantations or ports, it shall not extend to the State of Jammu and Kashmir. (3) It shall apply to- (a) every factory, mine, oilfield, plantation, port and railway company; (b) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months; (c) such other establishments or class of establishments, in which ten or more employees are employed, or were employed, on any day of the preceding twelve months, as the Central Government may, by notification, specify in this behalf. 8. A perusal of the above provisions would show that the Act is applicable to (1) every factory, mine, oilfield, plantation, port and railway company; (2) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, the said provision has two conditions, viz. (i) a shop or establishments within the meaning of a State law and (ii) in which ten or more persons are employed; and (3) the establishments or class of establishments which Central Government may notify. 9. The appellant is not covered by clauses (a) and (b) of Section 1(3) of the Act. Clause (a) is not applicable on the face of the provisions, but even clause (b) is not applicable in view of Section 3 (c) of the 1962 Act as such Act is not applicable to the offices of the Government or local authorities. The Local Authorities means a municipal committee, district board etc or entrusted with the control or management of a municipal or local fund in terms of Section 3(31) of the General Clauses Act, 1897. 10. In terms of the above said Section 1(3)(c) of the Act, the Central Government has published a notification on 08.01.1982 and specified Local Bodies in which ten or more persons are employed, or were employed, on any day of the preceding twelve months as a class of establishment to which this Act shall apply. The said notification dated 08.01.1982 reads as under:- New Delhi, the 8 th January, 1982 NOTIFICATION S.O. No. 239….-In exercise of the powers conferred by clause (c) of sub-section (3) of section 1 of the Payment of Gratuity Act, 1972 (39 of 1972), the Central Government hereby specified local bodies in which ten or more persons are employed, or were employed, on any day preceding twelve months, as a class of establishments to which the said Act shall apply with effect from the date of publication of this notification in the Official Gazette. Sd/. (R. K. A. Subrahmanya) Additional Secretary (F . No. S-70020/16/77-FPG) 11. We find that the notification dated 08.01.1982 was not referred to before the High Court. Such notification makes it abundantly clear that the Act is applicable to the local bodies i.e., the Municipalities. Section 14 of the Act has given an overriding effect over any other inconsistent provision in any other enactment. The said provision reads as under: 14. Act to override other enactments, etc. – The provisions of this Act or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than this Act. 12. In view of Section 14 of the Act, the provision in the State Act contemplating payment of Gratuity will be inapplicable in respect of the employees of the local bodies. 13. Section 2(e) of the Act alone was referred to in the judgment reported as Municipal Corporation of Delhi (supra). The said judgment is in the context of CCS (Pension) Rules, 1972 1972 Rules which specifically provides for payment of Pension and Gratuity. The Act is applicable to the Municipalities, therefore, it is wholly inconsequential even if there is no reference to the notification dated 08.01.1982. 14. The entire argument of the appellant is that the State Act confers restrictive benefit of gratuity than what is conferred under the Central Act. Such argument is not tenable in view of Section 14 of the Act and that liberal payment of gratuity is in fact in the interest of the employees. Thus, the gratuity would be payable under the Act. Such is the view taken by the Controlling Authority. 15. In view of the aforesaid, we find that there is no error in the orders passed by the Controlling Authorities under the Act and as maintained by the High Court. | 0[ds]8. A perusal of the above provisions would show that the Act is applicable to (1) every factory, mine, oilfield, plantation, port and railway company; (2) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, the said provision has two conditions, viz. (i) a shop or establishments within the meaning of a State law and (ii) in which ten or more persons are employed; and (3) the establishments or class of establishments which Central Government may notify9. The appellant is not covered by clauses (a) and (b) of Section 1(3) of the Act. Clause (a) is not applicable on the face of the provisions, but even clause (b) is not applicable in view of Section 3 (c) of the 1962 Act as such Act is not applicable to the offices of the Government or local authorities. The Local Authorities means a municipal committee, district board etc or entrusted with the control or management of a municipal or local fund in terms of Section 3(31) of the General Clauses Act, 189710. In terms of the above said Section 1(3)(c) of the Act, the Central Government has published a notification on 08.01.1982 and specified Local Bodies in which ten or more persons are employed, or were employed, on any day of the preceding twelve months as a class of establishment to which this Act shall apply11. We find that the notification dated 08.01.1982 was not referred to before the High Court. Such notification makes it abundantly clear that the Act is applicable to the local bodies i.e., the Municipalities. Section 14 of the Act has given an overriding effect over any other inconsistent provision in any other enactment.12. In view of Section 14 of the Act, the provision in the State Act contemplating payment of Gratuity will be inapplicable in respect of the employees of the local bodies13. Section 2(e) of the Act alone was referred to in the judgment reported as Municipal Corporation of Delhi (supra). The said judgment is in the context of CCS (Pension) Rules, 1972 1972 Rules which specifically provides for payment of Pension and Gratuity. The Act is applicable to the Municipalities, therefore, it is wholly inconsequential even if there is no reference to the notification dated 08.01.198214. The entire argument of the appellant is that the State Act confers restrictive benefit of gratuity than what is conferred under the Centralargument is not tenable in view of Section 14 of the Act and that liberal payment of gratuity is in fact in the interest of the employees. Thus, the gratuity would be payable under the Act. Such is the view taken by the Controlling Authority15. In view of the aforesaid, we find that there is no error in the orders passed by the Controlling Authorities under the Act and as maintained by the High Court. | 0 | 1,658 | 575 | ### Instruction:
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gratuity in terms of the provisions of the Act. 6. The appellant relies upon Section 3 of the U.P Dookan Aur Vanijya Adhishthan Adhiniyam, 1962 1962 Act which is to the effect that such Act will have no application to the office of Government or Local Bodies. Therefore, on the strength of such statutory provision, it was argued that the Act would not be applicable in respect of the Municipalities. The appellant is not a factory, mine, oilfield, plantation, port and railway company and that there is no notification as stipulated under Clause (c) of Section 1(3) of the Act. Therefore, the employees of the Municipalities are entitled to the gratuity in terms of the Regulations framed in exercise of powers of Section 548 of the 1959 Act and not under the Act. 7. On the other hand, learned counsel for the respondent pointed out that the Central Government has published a notification in terms of Section 1(3)(c) of the Act on 08.01.1982 to extend the applicability of the Act to the Municipalities. Thus, the Act is applicable to the Municipalities. The relevant provisions of the Act read as under: 1. Short title, extent, application and commencement.- (1) This Act may be called the Payment of Gratuity Act, 1972. (2) It extends to the whole of India: Provided that in so far as it relates to plantations or ports, it shall not extend to the State of Jammu and Kashmir. (3) It shall apply to- (a) every factory, mine, oilfield, plantation, port and railway company; (b) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months; (c) such other establishments or class of establishments, in which ten or more employees are employed, or were employed, on any day of the preceding twelve months, as the Central Government may, by notification, specify in this behalf. 8. A perusal of the above provisions would show that the Act is applicable to (1) every factory, mine, oilfield, plantation, port and railway company; (2) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, the said provision has two conditions, viz. (i) a shop or establishments within the meaning of a State law and (ii) in which ten or more persons are employed; and (3) the establishments or class of establishments which Central Government may notify. 9. The appellant is not covered by clauses (a) and (b) of Section 1(3) of the Act. Clause (a) is not applicable on the face of the provisions, but even clause (b) is not applicable in view of Section 3 (c) of the 1962 Act as such Act is not applicable to the offices of the Government or local authorities. The Local Authorities means a municipal committee, district board etc or entrusted with the control or management of a municipal or local fund in terms of Section 3(31) of the General Clauses Act, 1897. 10. In terms of the above said Section 1(3)(c) of the Act, the Central Government has published a notification on 08.01.1982 and specified Local Bodies in which ten or more persons are employed, or were employed, on any day of the preceding twelve months as a class of establishment to which this Act shall apply. The said notification dated 08.01.1982 reads as under:- New Delhi, the 8 th January, 1982 NOTIFICATION S.O. No. 239….-In exercise of the powers conferred by clause (c) of sub-section (3) of section 1 of the Payment of Gratuity Act, 1972 (39 of 1972), the Central Government hereby specified local bodies in which ten or more persons are employed, or were employed, on any day preceding twelve months, as a class of establishments to which the said Act shall apply with effect from the date of publication of this notification in the Official Gazette. Sd/. (R. K. A. Subrahmanya) Additional Secretary (F . No. S-70020/16/77-FPG) 11. We find that the notification dated 08.01.1982 was not referred to before the High Court. Such notification makes it abundantly clear that the Act is applicable to the local bodies i.e., the Municipalities. Section 14 of the Act has given an overriding effect over any other inconsistent provision in any other enactment. The said provision reads as under: 14. Act to override other enactments, etc. – The provisions of this Act or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than this Act. 12. In view of Section 14 of the Act, the provision in the State Act contemplating payment of Gratuity will be inapplicable in respect of the employees of the local bodies. 13. Section 2(e) of the Act alone was referred to in the judgment reported as Municipal Corporation of Delhi (supra). The said judgment is in the context of CCS (Pension) Rules, 1972 1972 Rules which specifically provides for payment of Pension and Gratuity. The Act is applicable to the Municipalities, therefore, it is wholly inconsequential even if there is no reference to the notification dated 08.01.1982. 14. The entire argument of the appellant is that the State Act confers restrictive benefit of gratuity than what is conferred under the Central Act. Such argument is not tenable in view of Section 14 of the Act and that liberal payment of gratuity is in fact in the interest of the employees. Thus, the gratuity would be payable under the Act. Such is the view taken by the Controlling Authority. 15. In view of the aforesaid, we find that there is no error in the orders passed by the Controlling Authorities under the Act and as maintained by the High Court.
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8. A perusal of the above provisions would show that the Act is applicable to (1) every factory, mine, oilfield, plantation, port and railway company; (2) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, the said provision has two conditions, viz. (i) a shop or establishments within the meaning of a State law and (ii) in which ten or more persons are employed; and (3) the establishments or class of establishments which Central Government may notify9. The appellant is not covered by clauses (a) and (b) of Section 1(3) of the Act. Clause (a) is not applicable on the face of the provisions, but even clause (b) is not applicable in view of Section 3 (c) of the 1962 Act as such Act is not applicable to the offices of the Government or local authorities. The Local Authorities means a municipal committee, district board etc or entrusted with the control or management of a municipal or local fund in terms of Section 3(31) of the General Clauses Act, 189710. In terms of the above said Section 1(3)(c) of the Act, the Central Government has published a notification on 08.01.1982 and specified Local Bodies in which ten or more persons are employed, or were employed, on any day of the preceding twelve months as a class of establishment to which this Act shall apply11. We find that the notification dated 08.01.1982 was not referred to before the High Court. Such notification makes it abundantly clear that the Act is applicable to the local bodies i.e., the Municipalities. Section 14 of the Act has given an overriding effect over any other inconsistent provision in any other enactment.12. In view of Section 14 of the Act, the provision in the State Act contemplating payment of Gratuity will be inapplicable in respect of the employees of the local bodies13. Section 2(e) of the Act alone was referred to in the judgment reported as Municipal Corporation of Delhi (supra). The said judgment is in the context of CCS (Pension) Rules, 1972 1972 Rules which specifically provides for payment of Pension and Gratuity. The Act is applicable to the Municipalities, therefore, it is wholly inconsequential even if there is no reference to the notification dated 08.01.198214. The entire argument of the appellant is that the State Act confers restrictive benefit of gratuity than what is conferred under the Centralargument is not tenable in view of Section 14 of the Act and that liberal payment of gratuity is in fact in the interest of the employees. Thus, the gratuity would be payable under the Act. Such is the view taken by the Controlling Authority15. In view of the aforesaid, we find that there is no error in the orders passed by the Controlling Authorities under the Act and as maintained by the High Court.
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Karnail Singh and Anr Vs. The State of Punjab | Gurbaksh Singh and that it was they who murdered him, we do not see any objection to the statement of the appellant that he was present at the scence of the occurrence from being used as an admission.Another piece of corroboration which the learned Judges relied on was that in their view the gunshot wounds must have been received by Malkiat Singh at the house of Gurbaksh Singh. They gave their finding on this point in the alternative. They observed that the injuries might have been caused by Gurbaksh Singh firing from inside the house. But of this there is no evidence and the medical evidence is in fact opposed to it and as already stated, no gun was recovered from the house of the deceased. In the alternative, they observed that the injuries might have been caused by a shot from one of his own men. This view is supported by the evidence of P. W. 14 who deposed that while the incidents were in progress Malkiat Singh stated that he had been shot by one of his own men and then left the place.It is argued for the appellant that as the learned Judges had declined to act on the evidence of P. W. 14, the alternative suggestion must be ruled but as unsupported by evidence. What all the learned Judges remarked about P. W. 14 was that it was "impossible to place any very great reliance on Maghar Singhs evidence." But then they also expressly referred to his evidence on this point (Vide p. 61 of the record) and accepted it as one of the possible alternatives (Vide p. 65), And, on their finding, that the injuries must have been received at the place of occurrence and the theory that Gurbaksh Singh fired the shot being negatived, there is no difficulty in holding that they were prepared to accept the evidence of P. W. 14 on this point.Thus there are ample materials for holding that the gunshot wounds were received by Malkiat Singh in the house of Gurbaksh Singh and that is sufficient corroboration of the evidence of P. W. 13. In this view we must overrule the first contention.7. Then the next question is whether the conviction of the appellant under S. 302 read with S. 34, when they had been charged only under S. 302 read with S. 149 was illegal. The contention of the appellants is that the scope of S. 149 is different from that of S. 34, that while what S. 149 requires is proof of a common object, it would be necessary under S. 34 to establish a common intention and that therefore when the charge against the accused is under S. 149, it cannot be converted in appeal into one under S. 34. The following observations of this Court in - Dalip Singh v. State of Punjab, AIR 1953 SC 364 AT P. 366 (C) were relied on in support of this position :"Nor is it possible in this case to have recourse to S. 34 because the appellants have not been charged with that even in the alternative and the common intention required by S. 34 and the common object required by S. 149 are far from being the same thing."It is true that there is substantial difference between the two sections but as observed by Lord Summer in - Barendra Kumar Ghosh v. Emperor, AIR 1925 PC 1 (D), they also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under S. 149 overlaps the ground covered by S. 34. If the common object which is the subject-matter of the charge under S. 149 does not necessarily involves a common intention, then the substitution of S. 34 for S. 149 might result in prejudice to the accused and ought not therefore to be permitted. But if the facts to be proved and the evidence to be adduced with reference to the charge under S. 149 would be the same if the charge were under S. 34, then the failure to charge the accused under S. 34 could not result in any prejudice and in such cases the substitution of S. 34 for S. 149 must be held to be a formal matter.We do not read the observations in AIR 1953 SC 364 (C) as an authority for the broad proposition that in law there could be no recourse to S. 34 when the charge is only under S. 149. Whether such recourse can be had or not must depend on the facts of each case. This is in accord with the view taken by this Court in AIR 1952 SC 167 (B), where the substitution of S. 34 for S. 149 was upheld on the ground that the facts were such"that the accused could have been charged alternatively either under S. 302 read with S. 149, or under S. 302 read with S. 34."8. Examining the record from this point of view, the finding are the both the appellants who had long -standing enmity with Gurbaksh Singh, got on the roof of his house and set fire to it, with the deceased and Mst. Bholan couped up within. If it was their object under S. 149 to burn the house and cause the death of Gurbaksh Singh, that was also their intention under S. 34.On the facts of this cases there can be no difference between the object and the intention with which the offences were committed. Out attention was also drawn to the wording of the charge which while mentioning S. 149 also sets out that in prosecution of the common object the accused intentionally set fire to the house and murdered Gurbaksh Singh and Mst. Bholan. We are satisfied that the substitution of S. 34 in the place of S. 149 in the charge by the court below has resulted in no prejudice to the appellant and it is therefore not open to objection. | 0[ds]5. It is necessary in view of this contention to examine the evidence in order to see what corroboration there is against each of the appellants. So far as Kamail Singh in concerned, his presence at the scene of occurrence under the circumstances disclosed in the evidence is sufficient to corroborate the evidence of P. W. 13. It should be remembered that Gurnam Singh is not an approver. He is a witness against whom the learned Judges had nothing to say and if they required corroboration of his evidence it was because he was a relation of the deceased and it was considered not safe to base a conviction on his sole testimony. The corroboration that is required in such cases is not what would be necessary to support the evidence of an approver but what would be sufficient to "lend assurance to the evidence before them, and satisfy them that the particular persons were really concerned in the murder of the deceased."(Vide"Lachhman Singh v. State, AIR 1952 SC 167 at p. 169 (B)). Karnail Singh was arrested on the spot with a spear and a bloodstained pyjama, and these are pieces of evidence which would support the inference that he was concerned in the crime.6. The case of Malkiat Singh presents greater difficulty. He was arrested in his house with gunshot wounds on his person and unless it could be established that they were received at the scene of occurrence that would not be sufficient to connect him with the crime.We agree that the mention of his name in Ex. PQ cannot be held to be sufficient corroboration because that is only the statement of P. W. 13 at an earlier stage and it is not independent evidence. With reference to the statement of the accused under S. 342, Cr. P. C., it is true that if it is sought to be used as an admission it must be read as a whole; but where it consists of distinct and separate matters, there is no reason why an admission contained in one matter should not be relied on without reference to the statements relating to other matters.In this case the admission of the appellant that he was present at or near the scene of occurrence is distinct and separate from his explanation as to how he received the injuries. The learned Judges having disbelieved, in our opinion rightly, the statement of the appellant that the house was burnt by some unknown enemies of Gurbaksh Singh and that it was they who murdered him, we do not see any objection to the statement of the appellant that he was present at the scence of the occurrence from being used as anall the learned Judges remarked about P. W. 14 was that it was "impossible to place any very great reliance on Maghar Singhs evidence." But then they also expressly referred to his evidence on this point (Vide p. 61 of the record) and accepted it as one of the possible alternatives (Vide p. 65), And, on their finding, that the injuries must have been received at the place of occurrence and the theory that Gurbaksh Singh fired the shot being negatived, there is no difficulty in holding that they were prepared to accept the evidence of P. W. 14 on this point.Thus there are ample materials for holding that the gunshot wounds were received by Malkiat Singh in the house of Gurbaksh Singh and that is sufficient corroboration of the evidence of P. W. 13. In this view we must overrule the firstfollowing observations of this Court inDalip Singh v. State of Punjab, AIR 1953 SC 364 AT P. 366 (C) were relied on in support of this position :"Nor is it possible in this case to have recourse to S. 34 because the appellants have not been charged with that even in the alternative and the common intention required by S. 34 and the common object required by S. 149 are far from being the same thing."It is true that there is substantial difference between the two sections but as observed by Lord Summer inBarendra Kumar Ghosh v. Emperor, AIR 1925 PC 1 (D), they also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under S. 149 overlaps the ground covered by S. 34. If the common object which is theof the charge under S. 149 does not necessarily involves a common intention, then the substitution of S. 34 for S. 149 might result in prejudice to the accused and ought not therefore to be permitted. But if the facts to be proved and the evidence to be adduced with reference to the charge under S. 149 would be the same if the charge were under S. 34, then the failure to charge the accused under S. 34 could not result in any prejudice and in such cases the substitution of S. 34 for S. 149 must be held to be a formal matter.We do not read the observations in AIR 1953 SC 364 (C) as an authority for the broad proposition that in law there could be no recourse to S. 34 when the charge is only under S. 149. Whether such recourse can be had or not must depend on the facts of each case. This is in accord with the view taken by this Court in AIR 1952 SC 167 (B), where the substitution of S. 34 for S. 149 was upheld on the ground that the facts were such"that the accused could have been charged alternatively either under S. 302 read with S. 149, or under S. 302 read with S. 34."8. Examining the record from this point of view, the finding are the both the appellants who had longstanding enmity with Gurbaksh Singh, got on the roof of his house and set fire to it, with the deceased and Mst. Bholan couped up within. If it was their object under S. 149 to burn the house and cause the death of Gurbaksh Singh, that was also their intention under S. 34.On the facts of this cases there can be no difference between the object and the intention with which the offences were committed. Out attention was also drawn to the wording of the charge which while mentioning S. 149 also sets out that in prosecution of the common object the accused intentionally set fire to the house and murdered Gurbaksh Singh and Mst. Bholan. We are satisfied that the substitution of S. 34 in the place of S. 149 in the charge by the court below has resulted in no prejudice to the appellant and it is therefore not open to objection. | 0 | 3,024 | 1,211 | ### Instruction:
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Gurbaksh Singh and that it was they who murdered him, we do not see any objection to the statement of the appellant that he was present at the scence of the occurrence from being used as an admission.Another piece of corroboration which the learned Judges relied on was that in their view the gunshot wounds must have been received by Malkiat Singh at the house of Gurbaksh Singh. They gave their finding on this point in the alternative. They observed that the injuries might have been caused by Gurbaksh Singh firing from inside the house. But of this there is no evidence and the medical evidence is in fact opposed to it and as already stated, no gun was recovered from the house of the deceased. In the alternative, they observed that the injuries might have been caused by a shot from one of his own men. This view is supported by the evidence of P. W. 14 who deposed that while the incidents were in progress Malkiat Singh stated that he had been shot by one of his own men and then left the place.It is argued for the appellant that as the learned Judges had declined to act on the evidence of P. W. 14, the alternative suggestion must be ruled but as unsupported by evidence. What all the learned Judges remarked about P. W. 14 was that it was "impossible to place any very great reliance on Maghar Singhs evidence." But then they also expressly referred to his evidence on this point (Vide p. 61 of the record) and accepted it as one of the possible alternatives (Vide p. 65), And, on their finding, that the injuries must have been received at the place of occurrence and the theory that Gurbaksh Singh fired the shot being negatived, there is no difficulty in holding that they were prepared to accept the evidence of P. W. 14 on this point.Thus there are ample materials for holding that the gunshot wounds were received by Malkiat Singh in the house of Gurbaksh Singh and that is sufficient corroboration of the evidence of P. W. 13. In this view we must overrule the first contention.7. Then the next question is whether the conviction of the appellant under S. 302 read with S. 34, when they had been charged only under S. 302 read with S. 149 was illegal. The contention of the appellants is that the scope of S. 149 is different from that of S. 34, that while what S. 149 requires is proof of a common object, it would be necessary under S. 34 to establish a common intention and that therefore when the charge against the accused is under S. 149, it cannot be converted in appeal into one under S. 34. The following observations of this Court in - Dalip Singh v. State of Punjab, AIR 1953 SC 364 AT P. 366 (C) were relied on in support of this position :"Nor is it possible in this case to have recourse to S. 34 because the appellants have not been charged with that even in the alternative and the common intention required by S. 34 and the common object required by S. 149 are far from being the same thing."It is true that there is substantial difference between the two sections but as observed by Lord Summer in - Barendra Kumar Ghosh v. Emperor, AIR 1925 PC 1 (D), they also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under S. 149 overlaps the ground covered by S. 34. If the common object which is the subject-matter of the charge under S. 149 does not necessarily involves a common intention, then the substitution of S. 34 for S. 149 might result in prejudice to the accused and ought not therefore to be permitted. But if the facts to be proved and the evidence to be adduced with reference to the charge under S. 149 would be the same if the charge were under S. 34, then the failure to charge the accused under S. 34 could not result in any prejudice and in such cases the substitution of S. 34 for S. 149 must be held to be a formal matter.We do not read the observations in AIR 1953 SC 364 (C) as an authority for the broad proposition that in law there could be no recourse to S. 34 when the charge is only under S. 149. Whether such recourse can be had or not must depend on the facts of each case. This is in accord with the view taken by this Court in AIR 1952 SC 167 (B), where the substitution of S. 34 for S. 149 was upheld on the ground that the facts were such"that the accused could have been charged alternatively either under S. 302 read with S. 149, or under S. 302 read with S. 34."8. Examining the record from this point of view, the finding are the both the appellants who had long -standing enmity with Gurbaksh Singh, got on the roof of his house and set fire to it, with the deceased and Mst. Bholan couped up within. If it was their object under S. 149 to burn the house and cause the death of Gurbaksh Singh, that was also their intention under S. 34.On the facts of this cases there can be no difference between the object and the intention with which the offences were committed. Out attention was also drawn to the wording of the charge which while mentioning S. 149 also sets out that in prosecution of the common object the accused intentionally set fire to the house and murdered Gurbaksh Singh and Mst. Bholan. We are satisfied that the substitution of S. 34 in the place of S. 149 in the charge by the court below has resulted in no prejudice to the appellant and it is therefore not open to objection.
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be necessary to support the evidence of an approver but what would be sufficient to "lend assurance to the evidence before them, and satisfy them that the particular persons were really concerned in the murder of the deceased."(Vide"Lachhman Singh v. State, AIR 1952 SC 167 at p. 169 (B)). Karnail Singh was arrested on the spot with a spear and a bloodstained pyjama, and these are pieces of evidence which would support the inference that he was concerned in the crime.6. The case of Malkiat Singh presents greater difficulty. He was arrested in his house with gunshot wounds on his person and unless it could be established that they were received at the scene of occurrence that would not be sufficient to connect him with the crime.We agree that the mention of his name in Ex. PQ cannot be held to be sufficient corroboration because that is only the statement of P. W. 13 at an earlier stage and it is not independent evidence. With reference to the statement of the accused under S. 342, Cr. P. C., it is true that if it is sought to be used as an admission it must be read as a whole; but where it consists of distinct and separate matters, there is no reason why an admission contained in one matter should not be relied on without reference to the statements relating to other matters.In this case the admission of the appellant that he was present at or near the scene of occurrence is distinct and separate from his explanation as to how he received the injuries. The learned Judges having disbelieved, in our opinion rightly, the statement of the appellant that the house was burnt by some unknown enemies of Gurbaksh Singh and that it was they who murdered him, we do not see any objection to the statement of the appellant that he was present at the scence of the occurrence from being used as anall the learned Judges remarked about P. W. 14 was that it was "impossible to place any very great reliance on Maghar Singhs evidence." But then they also expressly referred to his evidence on this point (Vide p. 61 of the record) and accepted it as one of the possible alternatives (Vide p. 65), And, on their finding, that the injuries must have been received at the place of occurrence and the theory that Gurbaksh Singh fired the shot being negatived, there is no difficulty in holding that they were prepared to accept the evidence of P. W. 14 on this point.Thus there are ample materials for holding that the gunshot wounds were received by Malkiat Singh in the house of Gurbaksh Singh and that is sufficient corroboration of the evidence of P. W. 13. In this view we must overrule the firstfollowing observations of this Court inDalip Singh v. State of Punjab, AIR 1953 SC 364 AT P. 366 (C) were relied on in support of this position :"Nor is it possible in this case to have recourse to S. 34 because the appellants have not been charged with that even in the alternative and the common intention required by S. 34 and the common object required by S. 149 are far from being the same thing."It is true that there is substantial difference between the two sections but as observed by Lord Summer inBarendra Kumar Ghosh v. Emperor, AIR 1925 PC 1 (D), they also to some extent overlap and it is a question to be determined on the facts of each case whether the charge under S. 149 overlaps the ground covered by S. 34. If the common object which is theof the charge under S. 149 does not necessarily involves a common intention, then the substitution of S. 34 for S. 149 might result in prejudice to the accused and ought not therefore to be permitted. But if the facts to be proved and the evidence to be adduced with reference to the charge under S. 149 would be the same if the charge were under S. 34, then the failure to charge the accused under S. 34 could not result in any prejudice and in such cases the substitution of S. 34 for S. 149 must be held to be a formal matter.We do not read the observations in AIR 1953 SC 364 (C) as an authority for the broad proposition that in law there could be no recourse to S. 34 when the charge is only under S. 149. Whether such recourse can be had or not must depend on the facts of each case. This is in accord with the view taken by this Court in AIR 1952 SC 167 (B), where the substitution of S. 34 for S. 149 was upheld on the ground that the facts were such"that the accused could have been charged alternatively either under S. 302 read with S. 149, or under S. 302 read with S. 34."8. Examining the record from this point of view, the finding are the both the appellants who had longstanding enmity with Gurbaksh Singh, got on the roof of his house and set fire to it, with the deceased and Mst. Bholan couped up within. If it was their object under S. 149 to burn the house and cause the death of Gurbaksh Singh, that was also their intention under S. 34.On the facts of this cases there can be no difference between the object and the intention with which the offences were committed. Out attention was also drawn to the wording of the charge which while mentioning S. 149 also sets out that in prosecution of the common object the accused intentionally set fire to the house and murdered Gurbaksh Singh and Mst. Bholan. We are satisfied that the substitution of S. 34 in the place of S. 149 in the charge by the court below has resulted in no prejudice to the appellant and it is therefore not open to objection.
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Mohammad Abdul Salam Khan Vs. Sarfaraz Ahmad Khan & Others | servants prevalent historically in this country. Section 7 of the Police Act, when it uses the expression dismissal must be deemed to have conveyed the official semantics attached to that expression, viz., removal from service plus a ban on re-employment by the State. The non-enumeration of removal as a distinct form of punishment does not divest the appointing authority from exercising, subject to legal restrictions, the power to remove from service without inflicting the more serious punishment of dismissal.9. The expression dismissal and removal look alike for the laity but in law they have acquired technical meanings sanctified by long usage in Service Rules. In Khem Chand v. Union of India, 1958 SCR 1080 at p. 1089 = (AIR 1958 SC 300 at p. 304) this Court observed:" ......... the expressions dismissed, removed and reduced in rank are technical words taken from the service rules where they are used to denote the three major categories of punishment. "As has been rightly pointed out in a recent book, The Civil Servant under the Law and the Constitution - by Dr. N. Narayanan Nair-The Academy of Legal Publications, Trivandrum-1, Kerala (1973), the words dismissal and removal have one distinction, viz., that the former disqualifies from future employment while the latter does not.Like wise, there is reference to this distinction in Shyamlals case AIR 1954 SC 369 at p. 374 wherein it was said :"The position, therefore, is that both under the rules and according to the last mentioned decision of the Judicial Committee (I. M. Lals case AIR 1948 PC 121 ) there is no distinction between a dismissal and a removal except that the former disqualifies from future employment while the latter does not and it may safely be taken, for reasons stated above, that removal and dismissal stand on the same footing except as to future employment. In this sense removal is but a species of dismissal.Rule 49 of the Civil Services (Classification, Control and Appeal) Rules, 1930 provides inter alia:"Removal is termination of service which does not disqualify from future employment. "Dismissal is removal from service which ordinarily disqualifies from future employment."It follows that dismissal is removal with a prohibition superadded."10. Against this background, here is Rule 1.6 (2) (iii) of the Punjab Police Rules which applied during the relevant time to the 1st respondent:"16 (2) (iii). When a Police Officer is convicted judicially and dismissed, or dismissed as a result of a departmental enquiry in consequence of corrupt practice, the conviction and-dismissal and its cause shall be published in the Police Gazette. In other cases of dismissal, when it is desired to ensure that the Officer dismissed shall not be re-employed elsewhere, a full descriptive roll, with particulars of the punishments, shall be sent for publication in the Police Gazette."The submission made with some attractiveness by Shri Goyal receives verbal support from the text of the rule. It speaks of a police officer being dismissed in consequence of corrupt practice in which case there is a mandate to the State Government that its cause shall be published in the Police Gazette In other cases of dismissal, the provision for publication in the Police Gazette is facultative. Counsel spins out the argument that if in other cases of dismissal the authority intends to inflict the additional penalty of non-reemployment, it should also publish the punishment in the Police Gazette. In the present case there is no indication of any such publication and so the dismissal does not carry with it the forbidding factor regarding re-employment Read with S. 6-K, which refers to dismissal together with debarment from re-employment, the conclusion is sought to be drawn that the 1st respondents case does not attract the disqualification in Section 6-K.11. We do not agree. The reasons are two-fold. As earlier explained, every dismissal has a double consequence understood in its contextual connotation. It removes the man from his office and superadds debarment from re-employment. Such being its meaning in the Indian Constitution in the relevant rules which have been in force in the country over the decades and indeed has become part of our officialese, we have to understand the dismissal as punishment imposed upon the constable in this case as one which embodies the latent penalty of disability from being re-employed.12. Secondly, even Rule 16 (2) (iii) carefully scanned, refuses to yield the helpful inference drawn from it by counsel for the 1st respondent. That rule does not state in other cases of dismissal the bar against re-employment operates only where there is publication in the Police Gazette to that effect. Dismissal, as such, carries with it this additional penalty in both classes of cases but in the first category covered by the rub publication is a duty cast upon the authority while in the second type of cases the authority is left with the option to publish or not to publish. If the dismissing authority desires to ensure itself that unwittingly some other department may not employ the dismissed official, he may, by way of abundant caution, resort to publication of the punishment in the Police Gazette. The language is clear that to ensure that the officer dismissed shall not be re-employed the concerned authority shall send for publication the relevant particulars. Not that without such publication a right to reemployment inheres in the dismissed official, but that to make sure that any unknowing slip may not be committed by another department, the dismissing officer may take care to forward the particulars of punishment for proper publication. It is enabling so far as the dismissing authority is concerned and is legally unnecessary to spell the two-in-one punishment of dismissal.13. In this view of the matter, there is no escape from the conclusion that the 1st respondent was punished under the former part of Rule 16 (2) (iii) and incurred the-extreme wrath of the law including disbarment from re-employment. Logically therefore he suffered disqualification under Section 6-K of the Act and the Tribunal, in removing him from Chairmanship, acted legally. | 1[ds]6. We are not impressed with this dualism. If dismissals impliciter carries with this in it the ban on re-employment as a necessary jural incident, then both the elements are present implicitly in the-order. It is not as if the interdict against re-employment should be separately stated in the rule or order if by force of law an effective bar in that behalf can be read into the order cashiering the constable. So we are thrown back on the order itself which, admittedly, is silent on prohibition ofargument which weighed with the High Court is that Section 6-K speaks of two components (a) dismissal; (b) and being debarred from re-employment. The second ingredient is not present in the terminal order against the constable and so the formula for disqualification is not fulfilled.It is clear that Section 7 speaks of dismissal as a single category of punishment, not as two twigs from the same branch i. e., dismissal without and with embargo on reentry into State. It may, however, be noticed that there is no specific reference to removal from service, a recognised form of punishment sanctified by the Constitution Acts, including Articlesubmission made with some attractiveness by Shri Goyal receives verbal support from the text of the rule. It speaks of a police officer being dismissed in consequence of corrupt practice in which case there is a mandate to the State Government that its cause shall be published in the Police Gazette In other cases of dismissal, the provision for publication in the Police Gazette isthe present case there is no indication of any such publication and so the dismissal does not carry with it the forbidding factor regarding re-employment Read with S. 6-K, which refers to dismissal together with debarment from re-employment, the conclusion is sought to be drawn that the 1st respondents case does not attract the disqualification in Section 6-K.11. We do not agree. The reasons are two-fold. As earlier explained, every dismissal has a double consequence understood in its contextual connotation. It removes the man from his office and superadds debarment from re-employment. Such being its meaning in the Indian Constitution in the relevant rules which have been in force in the country over the decades and indeed has become part of our officialese, we have to understand the dismissal as punishment imposed upon the constable in this case as one which embodies the latent penalty of disability from being re-employed.12. Secondly, even Rule 16 (2) (iii) carefully scanned, refuses to yield the helpful inference drawn from it by counsel for the 1st respondent. That rule does not state in other cases of dismissal the bar against re-employment operates only where there is publication in the Police Gazette to that effect. Dismissal, as such, carries with it this additional penalty in both classes of cases but in the first category covered by the rub publication is a duty cast upon the authority while in the second type of cases the authority is left with the option to publish or not to publish. If the dismissing authority desires to ensure itself that unwittingly some other department may not employ the dismissed official, he may, by way of abundant caution, resort to publication of the punishment in the Police Gazette. The language is clear that to ensure that the officer dismissed shall not be re-employed the concerned authority shall send for publication the relevant particulars. Not that without such publication a right to reemployment inheres in the dismissed official, but that to make sure that any unknowing slip may not be committed by another department, the dismissing officer may take care to forward the particulars of punishment for proper publication. It is enabling so far as the dismissing authority is concerned and is legally unnecessary to spell the two-in-one punishment of dismissal.13. In this view of the matter, there is no escape from the conclusion that the 1st respondent was punished under the former part of Rule 16 (2) (iii) and incurred the-extreme wrath of the law including disbarment from re-employment. Logically therefore he suffered disqualification under Section 6-K of the Act and the Tribunal, in removing him from Chairmanship, acted legally. | 1 | 2,326 | 759 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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servants prevalent historically in this country. Section 7 of the Police Act, when it uses the expression dismissal must be deemed to have conveyed the official semantics attached to that expression, viz., removal from service plus a ban on re-employment by the State. The non-enumeration of removal as a distinct form of punishment does not divest the appointing authority from exercising, subject to legal restrictions, the power to remove from service without inflicting the more serious punishment of dismissal.9. The expression dismissal and removal look alike for the laity but in law they have acquired technical meanings sanctified by long usage in Service Rules. In Khem Chand v. Union of India, 1958 SCR 1080 at p. 1089 = (AIR 1958 SC 300 at p. 304) this Court observed:" ......... the expressions dismissed, removed and reduced in rank are technical words taken from the service rules where they are used to denote the three major categories of punishment. "As has been rightly pointed out in a recent book, The Civil Servant under the Law and the Constitution - by Dr. N. Narayanan Nair-The Academy of Legal Publications, Trivandrum-1, Kerala (1973), the words dismissal and removal have one distinction, viz., that the former disqualifies from future employment while the latter does not.Like wise, there is reference to this distinction in Shyamlals case AIR 1954 SC 369 at p. 374 wherein it was said :"The position, therefore, is that both under the rules and according to the last mentioned decision of the Judicial Committee (I. M. Lals case AIR 1948 PC 121 ) there is no distinction between a dismissal and a removal except that the former disqualifies from future employment while the latter does not and it may safely be taken, for reasons stated above, that removal and dismissal stand on the same footing except as to future employment. In this sense removal is but a species of dismissal.Rule 49 of the Civil Services (Classification, Control and Appeal) Rules, 1930 provides inter alia:"Removal is termination of service which does not disqualify from future employment. "Dismissal is removal from service which ordinarily disqualifies from future employment."It follows that dismissal is removal with a prohibition superadded."10. Against this background, here is Rule 1.6 (2) (iii) of the Punjab Police Rules which applied during the relevant time to the 1st respondent:"16 (2) (iii). When a Police Officer is convicted judicially and dismissed, or dismissed as a result of a departmental enquiry in consequence of corrupt practice, the conviction and-dismissal and its cause shall be published in the Police Gazette. In other cases of dismissal, when it is desired to ensure that the Officer dismissed shall not be re-employed elsewhere, a full descriptive roll, with particulars of the punishments, shall be sent for publication in the Police Gazette."The submission made with some attractiveness by Shri Goyal receives verbal support from the text of the rule. It speaks of a police officer being dismissed in consequence of corrupt practice in which case there is a mandate to the State Government that its cause shall be published in the Police Gazette In other cases of dismissal, the provision for publication in the Police Gazette is facultative. Counsel spins out the argument that if in other cases of dismissal the authority intends to inflict the additional penalty of non-reemployment, it should also publish the punishment in the Police Gazette. In the present case there is no indication of any such publication and so the dismissal does not carry with it the forbidding factor regarding re-employment Read with S. 6-K, which refers to dismissal together with debarment from re-employment, the conclusion is sought to be drawn that the 1st respondents case does not attract the disqualification in Section 6-K.11. We do not agree. The reasons are two-fold. As earlier explained, every dismissal has a double consequence understood in its contextual connotation. It removes the man from his office and superadds debarment from re-employment. Such being its meaning in the Indian Constitution in the relevant rules which have been in force in the country over the decades and indeed has become part of our officialese, we have to understand the dismissal as punishment imposed upon the constable in this case as one which embodies the latent penalty of disability from being re-employed.12. Secondly, even Rule 16 (2) (iii) carefully scanned, refuses to yield the helpful inference drawn from it by counsel for the 1st respondent. That rule does not state in other cases of dismissal the bar against re-employment operates only where there is publication in the Police Gazette to that effect. Dismissal, as such, carries with it this additional penalty in both classes of cases but in the first category covered by the rub publication is a duty cast upon the authority while in the second type of cases the authority is left with the option to publish or not to publish. If the dismissing authority desires to ensure itself that unwittingly some other department may not employ the dismissed official, he may, by way of abundant caution, resort to publication of the punishment in the Police Gazette. The language is clear that to ensure that the officer dismissed shall not be re-employed the concerned authority shall send for publication the relevant particulars. Not that without such publication a right to reemployment inheres in the dismissed official, but that to make sure that any unknowing slip may not be committed by another department, the dismissing officer may take care to forward the particulars of punishment for proper publication. It is enabling so far as the dismissing authority is concerned and is legally unnecessary to spell the two-in-one punishment of dismissal.13. In this view of the matter, there is no escape from the conclusion that the 1st respondent was punished under the former part of Rule 16 (2) (iii) and incurred the-extreme wrath of the law including disbarment from re-employment. Logically therefore he suffered disqualification under Section 6-K of the Act and the Tribunal, in removing him from Chairmanship, acted legally.
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6. We are not impressed with this dualism. If dismissals impliciter carries with this in it the ban on re-employment as a necessary jural incident, then both the elements are present implicitly in the-order. It is not as if the interdict against re-employment should be separately stated in the rule or order if by force of law an effective bar in that behalf can be read into the order cashiering the constable. So we are thrown back on the order itself which, admittedly, is silent on prohibition ofargument which weighed with the High Court is that Section 6-K speaks of two components (a) dismissal; (b) and being debarred from re-employment. The second ingredient is not present in the terminal order against the constable and so the formula for disqualification is not fulfilled.It is clear that Section 7 speaks of dismissal as a single category of punishment, not as two twigs from the same branch i. e., dismissal without and with embargo on reentry into State. It may, however, be noticed that there is no specific reference to removal from service, a recognised form of punishment sanctified by the Constitution Acts, including Articlesubmission made with some attractiveness by Shri Goyal receives verbal support from the text of the rule. It speaks of a police officer being dismissed in consequence of corrupt practice in which case there is a mandate to the State Government that its cause shall be published in the Police Gazette In other cases of dismissal, the provision for publication in the Police Gazette isthe present case there is no indication of any such publication and so the dismissal does not carry with it the forbidding factor regarding re-employment Read with S. 6-K, which refers to dismissal together with debarment from re-employment, the conclusion is sought to be drawn that the 1st respondents case does not attract the disqualification in Section 6-K.11. We do not agree. The reasons are two-fold. As earlier explained, every dismissal has a double consequence understood in its contextual connotation. It removes the man from his office and superadds debarment from re-employment. Such being its meaning in the Indian Constitution in the relevant rules which have been in force in the country over the decades and indeed has become part of our officialese, we have to understand the dismissal as punishment imposed upon the constable in this case as one which embodies the latent penalty of disability from being re-employed.12. Secondly, even Rule 16 (2) (iii) carefully scanned, refuses to yield the helpful inference drawn from it by counsel for the 1st respondent. That rule does not state in other cases of dismissal the bar against re-employment operates only where there is publication in the Police Gazette to that effect. Dismissal, as such, carries with it this additional penalty in both classes of cases but in the first category covered by the rub publication is a duty cast upon the authority while in the second type of cases the authority is left with the option to publish or not to publish. If the dismissing authority desires to ensure itself that unwittingly some other department may not employ the dismissed official, he may, by way of abundant caution, resort to publication of the punishment in the Police Gazette. The language is clear that to ensure that the officer dismissed shall not be re-employed the concerned authority shall send for publication the relevant particulars. Not that without such publication a right to reemployment inheres in the dismissed official, but that to make sure that any unknowing slip may not be committed by another department, the dismissing officer may take care to forward the particulars of punishment for proper publication. It is enabling so far as the dismissing authority is concerned and is legally unnecessary to spell the two-in-one punishment of dismissal.13. In this view of the matter, there is no escape from the conclusion that the 1st respondent was punished under the former part of Rule 16 (2) (iii) and incurred the-extreme wrath of the law including disbarment from re-employment. Logically therefore he suffered disqualification under Section 6-K of the Act and the Tribunal, in removing him from Chairmanship, acted legally.
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Rubi(Chandra) Dutta Vs. M/S United India Insurance Co.Ltd | the authorized officer of the RTO and other material documents filed by the parties. In the light of the admission of the witness, who had appeared with the relevant records from the office of RTO, we have absolutely no doubt in our mind that at the relevant point of time Sirajul Haque was having a valid driving licence. The reasoning behind our opinion is explained hereunder.17. No doubt, it is true that the original application of Sirajul Haque bearing No. 676/96 was missing in the Register of Driving Licences but on the strength of other available documents, he was issued a duplicate licence by the same RTO, a fact admitted by the Court witness. After having gone through the copy of the duplicate licence we are further reassured that the same was duly issued following normal procedure by the Licensing Authority.18. Apart from the above, we have also seen the preliminary report of Surveyor Mr. Sujit Kumar Sarkar who has mentioned that Sirajul Haque was having a driving licence bearing No. 676/96 issued by Licensing Authority, Murshidabad. Similar is the report of another Surveyor Mr. Surya Dutt who has mentioned in the report that at the time of driving the bus, driver was having a valid driving licence. On close scrutiny of the Copy of the Duplicate Licence issued by Licensing Authority, Murshidabad we also observed a noting which categorically states that the said duplicate license was issued only after "verification from the original."19. The Government of West Bengal has promulgated the Motor Vehicles Procedure Manual in which there is a chapter that deals with the procedure to be followed for obtaining a duplicate driving licence. According to the stated requirements, under this Manual, a driver is required to submit an affidavit that his driving licence has been lost and has not been seized in any case and in case he possesses photocopy of the original licence then the same may also be submitted alongwith the prescribed application form duly filled in. After verification, thereof, a duplicate driving licence may be issued in favour of the applicant. Deposition of Mr. Lawrence Sitling states that the same procedure had been adopted by head office at the time of issuance of duplicate license.20. In view of the aforesaid admission made by him, there remains no doubt that the said duplicate licence was issued by the said office in his favour after checking the previous credentials of the driver. Even if the original application was not available but since the duplicate licence was issued by the same licensing Authority, Murshidabad, it cannot be challenged that the original licence was fake, forged, manufactured or engineered document. This unequivocal admission made by the said witness of RTO fully establishes this fact.21. The cumulative effect of the aforesaid facts would clearly establish that at the relevant point of time driver Sirajul Haque was holding a valid driving licence to drive the bus.22. Unfortunately, all these facts have not been carefully dealt with by the National Commission and still it went on to upset and quash the concurrent findings of the two lower fora.23. Also, it is to be noted that the revisional powers of the National Commission are derived fromSection 21(b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken, by setting aside the concurrent findings of two fora.24. Obviously, it goes without saying that at the time of giving employment to Sirajul Haque, the owner of the bus must have examined the licence issued to him and after satisfaction thereof, he must have been given employment. Nothing more was required to have been done by the Appellant. After all, at the time of giving employment to a driver, owner is required to be satisfied with regard to correctness and genuineness of the licence he was holding. After taking the test, if the owner is satisfied with the driving skills of the driver then, obviously, he may be given an appointment.25. In the light of the aforesaid discussion, we are of the considered opinion that the impugned order passed by National Commission cannot be sustained in law. It is necessary to point out that against the order of State Commission, whereby the amount of Rs. 2,72,517/- was awarded, no further Revision was preferred by the Appellant. Thus, in any case the compensation awarded to the Appellant cannot be enhanced beyond what has been pegged down by the State Commission.26. It is correct that the Act does not contain any provision for grant of interest, but on account of catena of cases of this Court that interest can still be awarded, taking recourse to Section 34 of the Code of Civil Procedure, to do complete justice between the parties. We accordingly do so. This principle is based upon justice, equity and good conscience, which would certainly authorize us to grant interest, otherwise, the very purpose of awarding compensation to the Appellant would be defeated. We accordingly deem it fit to award interest at the rate of 9% per annum on the aforesaid amount from the date of filing the complaint till it is actually paid. | 1[ds]We have once again critically gone through the evidence produced by the parties, and the statements made by the authorized officer of the RTO and other material documents filed by the parties. In the light of the admission of the witness, who had appeared with the relevant records from the office of RTO, we have absolutely no doubt in our mind that at the relevant point of time Sirajul Haque was having a valid driving licence. The reasoning behind our opinion is explained hereunder.17. No doubt, it is true that the original application of Sirajul Haque bearing No. 676/96 was missing in the Register of Driving Licences but on the strength of other available documents, he was issued a duplicate licence by the same RTO, a fact admitted by the Court witness. After having gone through the copy of the duplicate licence we are further reassured that the same was duly issued following normal procedure by the Licensing Authority.18. Apart from the above, we have also seen the preliminary report of Surveyor Mr. Sujit Kumar Sarkar who has mentioned that Sirajul Haque was having a driving licence bearing No. 676/96 issued by Licensing Authority, Murshidabad. Similar is the report of another Surveyor Mr. Surya Dutt who has mentioned in the report that at the time of driving the bus, driver was having a valid driving licence. On close scrutiny of the Copy of the Duplicate Licence issued by Licensing Authority, Murshidabad we also observed a noting which categorically states that the said duplicate license was issued only after "verification from the original."19. The Government of West Bengal has promulgated the Motor Vehicles Procedure Manual in which there is a chapter that deals with the procedure to be followed for obtaining a duplicate driving licence. According to the stated requirements, under this Manual, a driver is required to submit an affidavit that his driving licence has been lost and has not been seized in any case and in case he possesses photocopy of the original licence then the same may also be submitted alongwith the prescribed application form duly filled in. After verification, thereof, a duplicate driving licence may be issued in favour of the applicant. Deposition of Mr. Lawrence Sitling states that the same procedure had been adopted by head office at the time of issuance of duplicate license.20. In view of the aforesaid admission made by him, there remains no doubt that the said duplicate licence was issued by the said office in his favour after checking the previous credentials of the driver. Even if the original application was not available but since the duplicate licence was issued by the same licensing Authority, Murshidabad, it cannot be challenged that the original licence was fake, forged, manufactured or engineered document. This unequivocal admission made by the said witness of RTO fully establishes this fact.21. The cumulative effect of the aforesaid facts would clearly establish that at the relevant point of time driver Sirajul Haque was holding a valid driving licence to drive the bus.22. Unfortunately, all these facts have not been carefully dealt with by the National Commission and still it went on to upset and quash the concurrent findings of the two lower fora.23. Also, it is to be noted that the revisional powers of the National Commission are derived fromSection 21(b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has beenwas not a case where such a view could have been taken, by setting aside the concurrent findings of two fora.24. Obviously, it goes without saying that at the time of giving employment to Sirajul Haque, the owner of the bus must have examined the licence issued to him and after satisfaction thereof, he must have been given employment. Nothing more was required to have been done by the Appellant. After all, at the time of giving employment to a driver, owner is required to be satisfied with regard to correctness and genuineness of the licence he was holding. After taking the test, if the owner is satisfied with the driving skills of the driver then, obviously, he may be given an appointment.25. In the light of the aforesaid discussion, we are of the considered opinion that the impugned order passed by National Commission cannot be sustained in law. It is necessary to point out that against the order of State Commission, whereby the amount of Rs. 2,72,517/- was awarded, no further Revision was preferred by the Appellant. Thus, in any case the compensation awarded to the Appellant cannot be enhanced beyond what has been pegged down by the State Commission.26. It is correct that the Act does not contain any provision for grant of interest, but on account of catena of cases of this Court that interest can still be awarded, taking recourse to Section 34 of the Code of Civil Procedure, to do complete justice between the parties. We accordingly do so. This principle is based upon justice, equity and good conscience, which would certainly authorize us to grant interest, otherwise, the very purpose of awarding compensation to the Appellant would be defeated. We accordingly deem it fit to award interest at the rate of 9% per annum on the aforesaid amount from the date of filing the complaint till it is actually paid. | 1 | 2,553 | 1,118 | ### 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 authorized officer of the RTO and other material documents filed by the parties. In the light of the admission of the witness, who had appeared with the relevant records from the office of RTO, we have absolutely no doubt in our mind that at the relevant point of time Sirajul Haque was having a valid driving licence. The reasoning behind our opinion is explained hereunder.17. No doubt, it is true that the original application of Sirajul Haque bearing No. 676/96 was missing in the Register of Driving Licences but on the strength of other available documents, he was issued a duplicate licence by the same RTO, a fact admitted by the Court witness. After having gone through the copy of the duplicate licence we are further reassured that the same was duly issued following normal procedure by the Licensing Authority.18. Apart from the above, we have also seen the preliminary report of Surveyor Mr. Sujit Kumar Sarkar who has mentioned that Sirajul Haque was having a driving licence bearing No. 676/96 issued by Licensing Authority, Murshidabad. Similar is the report of another Surveyor Mr. Surya Dutt who has mentioned in the report that at the time of driving the bus, driver was having a valid driving licence. On close scrutiny of the Copy of the Duplicate Licence issued by Licensing Authority, Murshidabad we also observed a noting which categorically states that the said duplicate license was issued only after "verification from the original."19. The Government of West Bengal has promulgated the Motor Vehicles Procedure Manual in which there is a chapter that deals with the procedure to be followed for obtaining a duplicate driving licence. According to the stated requirements, under this Manual, a driver is required to submit an affidavit that his driving licence has been lost and has not been seized in any case and in case he possesses photocopy of the original licence then the same may also be submitted alongwith the prescribed application form duly filled in. After verification, thereof, a duplicate driving licence may be issued in favour of the applicant. Deposition of Mr. Lawrence Sitling states that the same procedure had been adopted by head office at the time of issuance of duplicate license.20. In view of the aforesaid admission made by him, there remains no doubt that the said duplicate licence was issued by the said office in his favour after checking the previous credentials of the driver. Even if the original application was not available but since the duplicate licence was issued by the same licensing Authority, Murshidabad, it cannot be challenged that the original licence was fake, forged, manufactured or engineered document. This unequivocal admission made by the said witness of RTO fully establishes this fact.21. The cumulative effect of the aforesaid facts would clearly establish that at the relevant point of time driver Sirajul Haque was holding a valid driving licence to drive the bus.22. Unfortunately, all these facts have not been carefully dealt with by the National Commission and still it went on to upset and quash the concurrent findings of the two lower fora.23. Also, it is to be noted that the revisional powers of the National Commission are derived fromSection 21(b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken, by setting aside the concurrent findings of two fora.24. Obviously, it goes without saying that at the time of giving employment to Sirajul Haque, the owner of the bus must have examined the licence issued to him and after satisfaction thereof, he must have been given employment. Nothing more was required to have been done by the Appellant. After all, at the time of giving employment to a driver, owner is required to be satisfied with regard to correctness and genuineness of the licence he was holding. After taking the test, if the owner is satisfied with the driving skills of the driver then, obviously, he may be given an appointment.25. In the light of the aforesaid discussion, we are of the considered opinion that the impugned order passed by National Commission cannot be sustained in law. It is necessary to point out that against the order of State Commission, whereby the amount of Rs. 2,72,517/- was awarded, no further Revision was preferred by the Appellant. Thus, in any case the compensation awarded to the Appellant cannot be enhanced beyond what has been pegged down by the State Commission.26. It is correct that the Act does not contain any provision for grant of interest, but on account of catena of cases of this Court that interest can still be awarded, taking recourse to Section 34 of the Code of Civil Procedure, to do complete justice between the parties. We accordingly do so. This principle is based upon justice, equity and good conscience, which would certainly authorize us to grant interest, otherwise, the very purpose of awarding compensation to the Appellant would be defeated. We accordingly deem it fit to award interest at the rate of 9% per annum on the aforesaid amount from the date of filing the complaint till it is actually paid.
### Response:
1
### Explanation:
statements made by the authorized officer of the RTO and other material documents filed by the parties. In the light of the admission of the witness, who had appeared with the relevant records from the office of RTO, we have absolutely no doubt in our mind that at the relevant point of time Sirajul Haque was having a valid driving licence. The reasoning behind our opinion is explained hereunder.17. No doubt, it is true that the original application of Sirajul Haque bearing No. 676/96 was missing in the Register of Driving Licences but on the strength of other available documents, he was issued a duplicate licence by the same RTO, a fact admitted by the Court witness. After having gone through the copy of the duplicate licence we are further reassured that the same was duly issued following normal procedure by the Licensing Authority.18. Apart from the above, we have also seen the preliminary report of Surveyor Mr. Sujit Kumar Sarkar who has mentioned that Sirajul Haque was having a driving licence bearing No. 676/96 issued by Licensing Authority, Murshidabad. Similar is the report of another Surveyor Mr. Surya Dutt who has mentioned in the report that at the time of driving the bus, driver was having a valid driving licence. On close scrutiny of the Copy of the Duplicate Licence issued by Licensing Authority, Murshidabad we also observed a noting which categorically states that the said duplicate license was issued only after "verification from the original."19. The Government of West Bengal has promulgated the Motor Vehicles Procedure Manual in which there is a chapter that deals with the procedure to be followed for obtaining a duplicate driving licence. According to the stated requirements, under this Manual, a driver is required to submit an affidavit that his driving licence has been lost and has not been seized in any case and in case he possesses photocopy of the original licence then the same may also be submitted alongwith the prescribed application form duly filled in. After verification, thereof, a duplicate driving licence may be issued in favour of the applicant. Deposition of Mr. Lawrence Sitling states that the same procedure had been adopted by head office at the time of issuance of duplicate license.20. In view of the aforesaid admission made by him, there remains no doubt that the said duplicate licence was issued by the said office in his favour after checking the previous credentials of the driver. Even if the original application was not available but since the duplicate licence was issued by the same licensing Authority, Murshidabad, it cannot be challenged that the original licence was fake, forged, manufactured or engineered document. This unequivocal admission made by the said witness of RTO fully establishes this fact.21. The cumulative effect of the aforesaid facts would clearly establish that at the relevant point of time driver Sirajul Haque was holding a valid driving licence to drive the bus.22. Unfortunately, all these facts have not been carefully dealt with by the National Commission and still it went on to upset and quash the concurrent findings of the two lower fora.23. Also, it is to be noted that the revisional powers of the National Commission are derived fromSection 21(b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has beenwas not a case where such a view could have been taken, by setting aside the concurrent findings of two fora.24. Obviously, it goes without saying that at the time of giving employment to Sirajul Haque, the owner of the bus must have examined the licence issued to him and after satisfaction thereof, he must have been given employment. Nothing more was required to have been done by the Appellant. After all, at the time of giving employment to a driver, owner is required to be satisfied with regard to correctness and genuineness of the licence he was holding. After taking the test, if the owner is satisfied with the driving skills of the driver then, obviously, he may be given an appointment.25. In the light of the aforesaid discussion, we are of the considered opinion that the impugned order passed by National Commission cannot be sustained in law. It is necessary to point out that against the order of State Commission, whereby the amount of Rs. 2,72,517/- was awarded, no further Revision was preferred by the Appellant. Thus, in any case the compensation awarded to the Appellant cannot be enhanced beyond what has been pegged down by the State Commission.26. It is correct that the Act does not contain any provision for grant of interest, but on account of catena of cases of this Court that interest can still be awarded, taking recourse to Section 34 of the Code of Civil Procedure, to do complete justice between the parties. We accordingly do so. This principle is based upon justice, equity and good conscience, which would certainly authorize us to grant interest, otherwise, the very purpose of awarding compensation to the Appellant would be defeated. We accordingly deem it fit to award interest at the rate of 9% per annum on the aforesaid amount from the date of filing the complaint till it is actually paid.
|
NAGAR NIGAM, GORAKHPUR Vs. SHRI RAM SHANKER YADAV | the gratuity in terms of the provisions of the Act. 6. The appellant relies upon Section 3 of the U.P Dookan Aur Vanijya Adhishthan Adhiniyam, 1962 1962 Act which is to the effect that such Act will have no application to the office of Government or Local Bodies. Therefore, on the strength of such statutory provision, it was argued that the Act would not be applicable in respect of the Municipalities. The appellant is not a factory, mine, oilfield, plantation, port and railway company and that there is no notification as stipulated under Clause (c) of Section 1(3) of the Act. Therefore, the employees of the Municipalities are entitled to the gratuity in terms of the Regulations framed in exercise of powers of Section 548 of the 1959 Act and not under the Act.7. On the other hand, learned counsel for the respondent pointed out that the Central Government has published a notification in terms of Section 1(3)(c) of the Act on 08.01.1982 to extend the applicability of the Act to the Municipalities. Thus, the Act is applicable to the Municipalities. The relevant provisions of the Act read as under: 1. Short title, extent, application and commencement.- (1) This Act may be called the Payment of Gratuity Act, 1972. (2) It extends to the whole of India: Provided that in so far as it relates to plantations or ports, it shall not extend to the State of Jammu and Kashmir. (3) It shall apply to- (a) every factory, mine, oilfield, plantation, port and railway company; (b) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months; (c) such other establishments or class of establishments, in which ten or more employees are employed, or were employed, on any day of the preceding twelve months, as the Central Government may, by notification, specify in this behalf. 8. A perusal of the above provisions would show that the Act is applicable to (1) every factory, mine, oilfield, plantation, port and railway company; (2) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, the said provision has two conditions, viz. (i) a shop or establishments within the meaning of a State law and (ii) in which ten or more persons are employed; and (3) the establishments or class of establishments which Central Government may notify. 9. The appellant is not covered by clauses (a) and (b) of Section 1(3) of the Act. Clause (a) is not applicable on the face of the provisions, but even clause (b) is not applicable in view of Section 3 (c) of the 1962 Act as such Act is not applicable to the offices of the Government or local authorities. The Local Authorities means a municipal committee, district board etc or entrusted with the control or management of a municipal or local fund in terms of Section 3(31) of the General Clauses Act, 1897. 10. In terms of the above said Section 1(3)(c) of the Act, the Central Government has published a notification on 08.01.1982 and specified Local Bodies in which ten or more persons are employed, or were employed, on any day of the preceding twelve months as a class of establishment to which this Act shall apply. The said notification dated 08.01.1982 reads as under:- New Delhi, the 8 th January, 1982 NOTIFICATION S.O. No. 239….-In exercise of the powers conferred by clause (c) of sub-section (3) of section 1 of the Payment of Gratuity Act, 1972 (39 of 1972), the Central Government hereby specified local bodies in which ten or more persons are employed, or were employed, on any day preceding twelve months, as a class of establishments to which the said Act shall apply with effect from the date of publication of this notification in the Official Gazette. Sd/. (R. K. A. Subrahmanya) Additional Secretary (F . No. S-70020/16/77-FPG) 11. We find that the notification dated 08.01.1982 was not referred to before the High Court. Such notification makes it abundantly clear that the Act is applicable to the local bodies i.e., the Municipalities. Section 14 of the Act has given an overriding effect over any other inconsistent provision in any other enactment. The said provision reads as under: 14. Act to override other enactments, etc. – The provisions of this Act or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than this Act. 12. In view of Section 14 of the Act, the provision in the State Act contemplating payment of Gratuity will be inapplicable in respect of the employees of the local bodies. 13. Section 2(e) of the Act alone was referred to in the judgment reported as Municipal Corporation of Delhi (supra). The said judgment is in the context of CCS (Pension) Rules, 1972 1972 Rules which specifically provides for payment of Pension and Gratuity. The Act is applicable to the Municipalities, therefore, it is wholly inconsequential even if there is no reference to the notification dated 08.01.1982. 14. The entire argument of the appellant is that the State Act confers restrictive benefit of gratuity than what is conferred under the Central Act. Such argument is not tenable in view of Section 14 of the Act and that liberal payment of gratuity is in fact in the interest of the employees. Thus, the gratuity would be payable under the Act. Such is the view taken by the Controlling Authority. 15. In view of the aforesaid, we find that there is no error in the orders passed by the Controlling Authorities under the Act and as maintained by the High Court. | 0[ds]8. A perusal of the above provisions would show that the Act is applicable to (1) every factory, mine, oilfield, plantation, port and railway company; (2) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, the said provision has two conditions, viz. (i) a shop or establishments within the meaning of a State law and (ii) in which ten or more persons are employed; and (3) the establishments or class of establishments which Central Government may notify9. The appellant is not covered by clauses (a) and (b) of Section 1(3) of the Act. Clause (a) is not applicable on the face of the provisions, but even clause (b) is not applicable in view of Section 3 (c) of the 1962 Act as such Act is not applicable to the offices of the Government or local authorities. The Local Authorities means a municipal committee, district board etc or entrusted with the control or management of a municipal or local fund in terms of Section 3(31) of the General Clauses Act, 189710. In terms of the above said Section 1(3)(c) of the Act, the Central Government has published a notification on 08.01.1982 and specified Local Bodies in which ten or more persons are employed, or were employed, on any day of the preceding twelve months as a class of establishment to which this Act shall apply11. We find that the notification dated 08.01.1982 was not referred to before the High Court. Such notification makes it abundantly clear that the Act is applicable to the local bodies i.e., the Municipalities. Section 14 of the Act has given an overriding effect over any other inconsistent provision in any other enactment.12. In view of Section 14 of the Act, the provision in the State Act contemplating payment of Gratuity will be inapplicable in respect of the employees of the local bodies13. Section 2(e) of the Act alone was referred to in the judgment reported as Municipal Corporation of Delhi (supra). The said judgment is in the context of CCS (Pension) Rules, 1972 1972 Rules which specifically provides for payment of Pension and Gratuity. The Act is applicable to the Municipalities, therefore, it is wholly inconsequential even if there is no reference to the notification dated 08.01.198214. The entire argument of the appellant is that the State Act confers restrictive benefit of gratuity than what is conferred under the Centralargument is not tenable in view of Section 14 of the Act and that liberal payment of gratuity is in fact in the interest of the employees. Thus, the gratuity would be payable under the Act. Such is the view taken by the Controlling Authority15. In view of the aforesaid, we find that there is no error in the orders passed by the Controlling Authorities under the Act and as maintained by the High Court. | 0 | 1,656 | 575 | ### 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 gratuity in terms of the provisions of the Act. 6. The appellant relies upon Section 3 of the U.P Dookan Aur Vanijya Adhishthan Adhiniyam, 1962 1962 Act which is to the effect that such Act will have no application to the office of Government or Local Bodies. Therefore, on the strength of such statutory provision, it was argued that the Act would not be applicable in respect of the Municipalities. The appellant is not a factory, mine, oilfield, plantation, port and railway company and that there is no notification as stipulated under Clause (c) of Section 1(3) of the Act. Therefore, the employees of the Municipalities are entitled to the gratuity in terms of the Regulations framed in exercise of powers of Section 548 of the 1959 Act and not under the Act.7. On the other hand, learned counsel for the respondent pointed out that the Central Government has published a notification in terms of Section 1(3)(c) of the Act on 08.01.1982 to extend the applicability of the Act to the Municipalities. Thus, the Act is applicable to the Municipalities. The relevant provisions of the Act read as under: 1. Short title, extent, application and commencement.- (1) This Act may be called the Payment of Gratuity Act, 1972. (2) It extends to the whole of India: Provided that in so far as it relates to plantations or ports, it shall not extend to the State of Jammu and Kashmir. (3) It shall apply to- (a) every factory, mine, oilfield, plantation, port and railway company; (b) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, or were employed, on any day of the preceding twelve months; (c) such other establishments or class of establishments, in which ten or more employees are employed, or were employed, on any day of the preceding twelve months, as the Central Government may, by notification, specify in this behalf. 8. A perusal of the above provisions would show that the Act is applicable to (1) every factory, mine, oilfield, plantation, port and railway company; (2) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, the said provision has two conditions, viz. (i) a shop or establishments within the meaning of a State law and (ii) in which ten or more persons are employed; and (3) the establishments or class of establishments which Central Government may notify. 9. The appellant is not covered by clauses (a) and (b) of Section 1(3) of the Act. Clause (a) is not applicable on the face of the provisions, but even clause (b) is not applicable in view of Section 3 (c) of the 1962 Act as such Act is not applicable to the offices of the Government or local authorities. The Local Authorities means a municipal committee, district board etc or entrusted with the control or management of a municipal or local fund in terms of Section 3(31) of the General Clauses Act, 1897. 10. In terms of the above said Section 1(3)(c) of the Act, the Central Government has published a notification on 08.01.1982 and specified Local Bodies in which ten or more persons are employed, or were employed, on any day of the preceding twelve months as a class of establishment to which this Act shall apply. The said notification dated 08.01.1982 reads as under:- New Delhi, the 8 th January, 1982 NOTIFICATION S.O. No. 239….-In exercise of the powers conferred by clause (c) of sub-section (3) of section 1 of the Payment of Gratuity Act, 1972 (39 of 1972), the Central Government hereby specified local bodies in which ten or more persons are employed, or were employed, on any day preceding twelve months, as a class of establishments to which the said Act shall apply with effect from the date of publication of this notification in the Official Gazette. Sd/. (R. K. A. Subrahmanya) Additional Secretary (F . No. S-70020/16/77-FPG) 11. We find that the notification dated 08.01.1982 was not referred to before the High Court. Such notification makes it abundantly clear that the Act is applicable to the local bodies i.e., the Municipalities. Section 14 of the Act has given an overriding effect over any other inconsistent provision in any other enactment. The said provision reads as under: 14. Act to override other enactments, etc. – The provisions of this Act or any rule made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act or in any instrument or contract having effect by virtue of any enactment other than this Act. 12. In view of Section 14 of the Act, the provision in the State Act contemplating payment of Gratuity will be inapplicable in respect of the employees of the local bodies. 13. Section 2(e) of the Act alone was referred to in the judgment reported as Municipal Corporation of Delhi (supra). The said judgment is in the context of CCS (Pension) Rules, 1972 1972 Rules which specifically provides for payment of Pension and Gratuity. The Act is applicable to the Municipalities, therefore, it is wholly inconsequential even if there is no reference to the notification dated 08.01.1982. 14. The entire argument of the appellant is that the State Act confers restrictive benefit of gratuity than what is conferred under the Central Act. Such argument is not tenable in view of Section 14 of the Act and that liberal payment of gratuity is in fact in the interest of the employees. Thus, the gratuity would be payable under the Act. Such is the view taken by the Controlling Authority. 15. In view of the aforesaid, we find that there is no error in the orders passed by the Controlling Authorities under the Act and as maintained by the High Court.
### Response:
0
### Explanation:
8. A perusal of the above provisions would show that the Act is applicable to (1) every factory, mine, oilfield, plantation, port and railway company; (2) every shop or establishment within the meaning of any law for the time being in force in relation to shops and establishments in a State, in which ten or more persons are employed, the said provision has two conditions, viz. (i) a shop or establishments within the meaning of a State law and (ii) in which ten or more persons are employed; and (3) the establishments or class of establishments which Central Government may notify9. The appellant is not covered by clauses (a) and (b) of Section 1(3) of the Act. Clause (a) is not applicable on the face of the provisions, but even clause (b) is not applicable in view of Section 3 (c) of the 1962 Act as such Act is not applicable to the offices of the Government or local authorities. The Local Authorities means a municipal committee, district board etc or entrusted with the control or management of a municipal or local fund in terms of Section 3(31) of the General Clauses Act, 189710. In terms of the above said Section 1(3)(c) of the Act, the Central Government has published a notification on 08.01.1982 and specified Local Bodies in which ten or more persons are employed, or were employed, on any day of the preceding twelve months as a class of establishment to which this Act shall apply11. We find that the notification dated 08.01.1982 was not referred to before the High Court. Such notification makes it abundantly clear that the Act is applicable to the local bodies i.e., the Municipalities. Section 14 of the Act has given an overriding effect over any other inconsistent provision in any other enactment.12. In view of Section 14 of the Act, the provision in the State Act contemplating payment of Gratuity will be inapplicable in respect of the employees of the local bodies13. Section 2(e) of the Act alone was referred to in the judgment reported as Municipal Corporation of Delhi (supra). The said judgment is in the context of CCS (Pension) Rules, 1972 1972 Rules which specifically provides for payment of Pension and Gratuity. The Act is applicable to the Municipalities, therefore, it is wholly inconsequential even if there is no reference to the notification dated 08.01.198214. The entire argument of the appellant is that the State Act confers restrictive benefit of gratuity than what is conferred under the Centralargument is not tenable in view of Section 14 of the Act and that liberal payment of gratuity is in fact in the interest of the employees. Thus, the gratuity would be payable under the Act. Such is the view taken by the Controlling Authority15. In view of the aforesaid, we find that there is no error in the orders passed by the Controlling Authorities under the Act and as maintained by the High Court.
|
Diwan Bros Vs. Central Bank of India, Bombay and Others | their displacement, I do not think there can be any doubt that the Act was intended to benefit all displaced persons who had property in West Pakistan which suffered loss or damage and which was covered by an insurance policy entered into before 15-8-1947 and in force at the time when the loss or damage was sustained, whether this occurred before or after the 15th of August.x x x x x .My own view is that it was certainly never anybodys intention that displaced persons, whether debtors or creditors should have to pay ad valorem court-fees on appeals against orders dismissing their applications, and I am inclined to share the view of Khosla, J., that an order dismissing an application, whether under s. 5 or s. 10 or 13, is merely a final order which does not necessitate the drawing up of any decree-sheet or amount to a decree and more particularly so in the case where an application has been dismissed, as in the present case, on a preliminary point without going into the merits at all."We find ourselves in complete agreement with the observation made by Falshaw, J., in the decision referred to above.25. Our attention was, however, drawn by the learned counsal for the respondents to three decisions of the High Court taking contrary view, namely, Kishandas v. Parasram; Nabh Raj Notan Das v. Sidhu Ram Mool Chand and Sita Ram v. Mool Chand. These decisions have on doubt held that decision of the Tribunal under the Act amounts to a decree and, therefore, does not fall within the ambit of Sch. II Art. 11 and ad valorem court-fee is payable under the Court Fees Act. We are, however, unable to agree with the view taken by these Courts. In the first place, these decisions have not taken into consideration the nature of the proceeding under the Act and the clear distinction made by the Act itself between a suit and a proceeding. These decisions have also not considered the various aspects which we have discussed above relating to the essential conditions of a decree and finally these decisions have also overlooked the main purpose and object of the Act and seem to have also ignored the rule of strict interpretation of a fiscal statute. For these reasons, therefore, that the court-fee of Rs. 5/- paid by the appellants on the cannot be held to be good law and must, therefore, be over-ruled.26. On a consideration of the facts, circumstances and the law on the subject we are clearly of the view that the memorandum of appeal in the instant case falls within the ambit of Sch. II, Art. 11, and the view of the Taxing Judge that ad valorem court-fee was payable under Sch. I, Art. 1, of the Court Fees Act was legally erroneous. We hold, therefore, that the court-fee of Rs. 5/- paid by the appellants on the memorandum of appeal was sufficient.27. Before concluding we must notice an argument advanced by the learned counsel for the respondents. It was submitted that under s. 5 of the Court Fees Act a decision of the Taxing Judge as designated by the Chief Justice is final and cannot be reopened in any Court. It was submitted by Mr. Dikshit that in view of this provision the appeal to this Court by special leave was not maintainable. We are, however, unable to agree with this contention. Even though an order of the Taxing Judge may be final under s. 5 of the Court Fees Act, the power of this Court under Art. 136 granted by the Constitution will override any stamp of finality given by a statute or Act passed by Parliament. The finality which may attach under s. 5 of the Court Fees Act cannot derogate from the power conferred by the Constitution itself on the Supreme Court. Reliance, however, seems to have been placed on a decision of this Court in S. Rm. Ar. S. Sp. Satheppa Chettiar v. S. Rm. Ar. Ramanathan Chattiar and particularly on the following observations made by this Court:"In our opinion, the decision of the Division Bench of the Madras High Court that the memorandum of appeal should be taxed for the purposes of Court fee under s. 7(iv) (b) of the Act is final under the provisions of s. 5 of this Act. That is why we have not allowed t he merits of this order to be questioned in the present appeal. We must, therefore, deal with the appellants contention on the basis that the court fees on his memorandum of appeal must be levied under s. 7(iv) (b) of the Act. "28. These observations prima facia seem to support the contention of the respondents but on a closer scrutiny of the entire decision it seems to us that this Court was not at all called upon to decide the question of the effect of s. 5 of the Court Fees Act as overriding the provision of Art. 136 of the Constitution. The observations relied upon by the respondents are prefaced by the observations of Gajendragadkar, J., who spoke for the Court, where he has clearly mentioned that the Court was not called upon to consider this point, thus:"We are, however, not called upon to consider the point as to whether s. 7 (v) would apply to the present suit or whether the present suit would fall under s. 7(iv) (b)."29. Further more, it appears that as the appellant before the Supreme Court was satisfied with the observations made by the Court, he did not press for a decision on the question of court-fees and confined his arguments only to the question as to whether the court-fees should be levied under s. 7(iv) (b) of the Court Fees Act. In these circumstances, therefore, the identical question raised before us was neither argued nor decided in the case referred to above by the respondents. For these reasons the contention raised by the respondents on this score must be overruled.30. | 1[ds]Having regard to these circumstances we are satisfied that the term "decree" used in Sch. II, Art. 11, is referable to a decree as defined in s. 2 (2) of theCode of Civil Procedure and as the decision of the Tribunal in the instant case does not fulfil the requirements of a "decree" as mentioned above, the said decision is not a decree within the meaning of Sch. II, Art. 11 of the Court Fees Act and, therefore, the memorandum of appeal filed by the appellants squarely falls within the ambit of Sc h. II Art. 11 of the Court Fees Act and ad valorem court-fees under Sch. I Art. 1 are notare, however, unable to agree with the view taken by these Courts. In the first place, these decisions have not taken into consideration the nature of the proceeding under the Act and the clear distinction made by the Act itself between a suit and a proceeding. These decisions have also not considered the various aspects which we have discussed above relating to the essential conditions of a decree and finally these decisions have also overlooked the main purpose and object of the Act and seem to have also ignored the rule of strict interpretation of a fiscal statute. For these reasons, therefore, that the court-fee of Rs. 5/- paid by the appellants on the cannot be held to be good law and must, therefore, bea consideration of the facts, circumstances and the law on the subject we are clearly of the view that the memorandum of appeal in the instant case falls within the ambit of Sch. II, Art. 11, and the view of the Taxing Judge that ad valorem court-fee was payable under Sch. I, Art. 1, of the Court Fees Act was legally erroneous. We hold, therefore, that the court-fee of Rs. 5/- paid by the appellants on the memorandum of appeal wasconcluding we must notice an argument advanced by the learned counsel for the respondents. It was submitted that under s. 5 of the Court Fees Act a decision of the Taxing Judge as designated by the Chief Justice is final and cannot be reopened in any Court. It was submitted by Mr. Dikshit that in view of this provision the appeal to this Court by special leave was not maintainable. We are, however, unable to agree with this contention. Even though an order of the Taxing Judge may be final under s. 5 of the Court Fees Act, the power of this Court under Art. 136 granted by the Constitution will override any stamp of finality given by a statute or Act passed by Parliament. The finality which may attach under s. 5 of the Court Fees Act cannot derogate from the power conferred by the Constitution itself on the Supreme Court. Reliance, however, seems to have been placed on a decision of this Court in S. Rm. Ar. S. Sp. Satheppa Chettiar v. S. Rm. Ar. Ramanathan Chattiar and particularly on the following observations made by this Court:"In our opinion, the decision of the Division Bench of the Madras High Court that the memorandum of appeal should be taxed for the purposes of Court fee under s. 7(iv) (b) of the Act is final under the provisions of s. 5 of this Act. That is why we have not allowed t he merits of this order to be questioned in the present appeal. We must, therefore, deal with the appellants contention on the basis that the court fees on his memorandum of appeal must be levied under s. 7(iv) (b) of the Act.more, it appears that as the appellant before the Supreme Court was satisfied with the observations made by the Court, he did not press for a decision on the question of court-fees and confined his arguments only to the question as to whether the court-fees should be levied under s. 7(iv) (b) of the Court Fees Act. In these circumstances, therefore, the identical question raised before us was neither argued nor decided in the case referred to above by the respondents. For these reasons the contention raised by the respondents on this score must be overruled. | 1 | 10,167 | 792 | ### Instruction:
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their displacement, I do not think there can be any doubt that the Act was intended to benefit all displaced persons who had property in West Pakistan which suffered loss or damage and which was covered by an insurance policy entered into before 15-8-1947 and in force at the time when the loss or damage was sustained, whether this occurred before or after the 15th of August.x x x x x .My own view is that it was certainly never anybodys intention that displaced persons, whether debtors or creditors should have to pay ad valorem court-fees on appeals against orders dismissing their applications, and I am inclined to share the view of Khosla, J., that an order dismissing an application, whether under s. 5 or s. 10 or 13, is merely a final order which does not necessitate the drawing up of any decree-sheet or amount to a decree and more particularly so in the case where an application has been dismissed, as in the present case, on a preliminary point without going into the merits at all."We find ourselves in complete agreement with the observation made by Falshaw, J., in the decision referred to above.25. Our attention was, however, drawn by the learned counsal for the respondents to three decisions of the High Court taking contrary view, namely, Kishandas v. Parasram; Nabh Raj Notan Das v. Sidhu Ram Mool Chand and Sita Ram v. Mool Chand. These decisions have on doubt held that decision of the Tribunal under the Act amounts to a decree and, therefore, does not fall within the ambit of Sch. II Art. 11 and ad valorem court-fee is payable under the Court Fees Act. We are, however, unable to agree with the view taken by these Courts. In the first place, these decisions have not taken into consideration the nature of the proceeding under the Act and the clear distinction made by the Act itself between a suit and a proceeding. These decisions have also not considered the various aspects which we have discussed above relating to the essential conditions of a decree and finally these decisions have also overlooked the main purpose and object of the Act and seem to have also ignored the rule of strict interpretation of a fiscal statute. For these reasons, therefore, that the court-fee of Rs. 5/- paid by the appellants on the cannot be held to be good law and must, therefore, be over-ruled.26. On a consideration of the facts, circumstances and the law on the subject we are clearly of the view that the memorandum of appeal in the instant case falls within the ambit of Sch. II, Art. 11, and the view of the Taxing Judge that ad valorem court-fee was payable under Sch. I, Art. 1, of the Court Fees Act was legally erroneous. We hold, therefore, that the court-fee of Rs. 5/- paid by the appellants on the memorandum of appeal was sufficient.27. Before concluding we must notice an argument advanced by the learned counsel for the respondents. It was submitted that under s. 5 of the Court Fees Act a decision of the Taxing Judge as designated by the Chief Justice is final and cannot be reopened in any Court. It was submitted by Mr. Dikshit that in view of this provision the appeal to this Court by special leave was not maintainable. We are, however, unable to agree with this contention. Even though an order of the Taxing Judge may be final under s. 5 of the Court Fees Act, the power of this Court under Art. 136 granted by the Constitution will override any stamp of finality given by a statute or Act passed by Parliament. The finality which may attach under s. 5 of the Court Fees Act cannot derogate from the power conferred by the Constitution itself on the Supreme Court. Reliance, however, seems to have been placed on a decision of this Court in S. Rm. Ar. S. Sp. Satheppa Chettiar v. S. Rm. Ar. Ramanathan Chattiar and particularly on the following observations made by this Court:"In our opinion, the decision of the Division Bench of the Madras High Court that the memorandum of appeal should be taxed for the purposes of Court fee under s. 7(iv) (b) of the Act is final under the provisions of s. 5 of this Act. That is why we have not allowed t he merits of this order to be questioned in the present appeal. We must, therefore, deal with the appellants contention on the basis that the court fees on his memorandum of appeal must be levied under s. 7(iv) (b) of the Act. "28. These observations prima facia seem to support the contention of the respondents but on a closer scrutiny of the entire decision it seems to us that this Court was not at all called upon to decide the question of the effect of s. 5 of the Court Fees Act as overriding the provision of Art. 136 of the Constitution. The observations relied upon by the respondents are prefaced by the observations of Gajendragadkar, J., who spoke for the Court, where he has clearly mentioned that the Court was not called upon to consider this point, thus:"We are, however, not called upon to consider the point as to whether s. 7 (v) would apply to the present suit or whether the present suit would fall under s. 7(iv) (b)."29. Further more, it appears that as the appellant before the Supreme Court was satisfied with the observations made by the Court, he did not press for a decision on the question of court-fees and confined his arguments only to the question as to whether the court-fees should be levied under s. 7(iv) (b) of the Court Fees Act. In these circumstances, therefore, the identical question raised before us was neither argued nor decided in the case referred to above by the respondents. For these reasons the contention raised by the respondents on this score must be overruled.30.
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Having regard to these circumstances we are satisfied that the term "decree" used in Sch. II, Art. 11, is referable to a decree as defined in s. 2 (2) of theCode of Civil Procedure and as the decision of the Tribunal in the instant case does not fulfil the requirements of a "decree" as mentioned above, the said decision is not a decree within the meaning of Sch. II, Art. 11 of the Court Fees Act and, therefore, the memorandum of appeal filed by the appellants squarely falls within the ambit of Sc h. II Art. 11 of the Court Fees Act and ad valorem court-fees under Sch. I Art. 1 are notare, however, unable to agree with the view taken by these Courts. In the first place, these decisions have not taken into consideration the nature of the proceeding under the Act and the clear distinction made by the Act itself between a suit and a proceeding. These decisions have also not considered the various aspects which we have discussed above relating to the essential conditions of a decree and finally these decisions have also overlooked the main purpose and object of the Act and seem to have also ignored the rule of strict interpretation of a fiscal statute. For these reasons, therefore, that the court-fee of Rs. 5/- paid by the appellants on the cannot be held to be good law and must, therefore, bea consideration of the facts, circumstances and the law on the subject we are clearly of the view that the memorandum of appeal in the instant case falls within the ambit of Sch. II, Art. 11, and the view of the Taxing Judge that ad valorem court-fee was payable under Sch. I, Art. 1, of the Court Fees Act was legally erroneous. We hold, therefore, that the court-fee of Rs. 5/- paid by the appellants on the memorandum of appeal wasconcluding we must notice an argument advanced by the learned counsel for the respondents. It was submitted that under s. 5 of the Court Fees Act a decision of the Taxing Judge as designated by the Chief Justice is final and cannot be reopened in any Court. It was submitted by Mr. Dikshit that in view of this provision the appeal to this Court by special leave was not maintainable. We are, however, unable to agree with this contention. Even though an order of the Taxing Judge may be final under s. 5 of the Court Fees Act, the power of this Court under Art. 136 granted by the Constitution will override any stamp of finality given by a statute or Act passed by Parliament. The finality which may attach under s. 5 of the Court Fees Act cannot derogate from the power conferred by the Constitution itself on the Supreme Court. Reliance, however, seems to have been placed on a decision of this Court in S. Rm. Ar. S. Sp. Satheppa Chettiar v. S. Rm. Ar. Ramanathan Chattiar and particularly on the following observations made by this Court:"In our opinion, the decision of the Division Bench of the Madras High Court that the memorandum of appeal should be taxed for the purposes of Court fee under s. 7(iv) (b) of the Act is final under the provisions of s. 5 of this Act. That is why we have not allowed t he merits of this order to be questioned in the present appeal. We must, therefore, deal with the appellants contention on the basis that the court fees on his memorandum of appeal must be levied under s. 7(iv) (b) of the Act.more, it appears that as the appellant before the Supreme Court was satisfied with the observations made by the Court, he did not press for a decision on the question of court-fees and confined his arguments only to the question as to whether the court-fees should be levied under s. 7(iv) (b) of the Court Fees Act. In these circumstances, therefore, the identical question raised before us was neither argued nor decided in the case referred to above by the respondents. For these reasons the contention raised by the respondents on this score must be overruled.
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Union Of India Vs. Allied International Products Ltd. & Anr | of the shares of the Company. It is not contended and it cannot reasonably be contended, that only one application for permission to secure quotation of the shares in an approved Exchange may be made. The expression "a recognised stock exchange" means "any recognised exchange". More applications than one for quotation of shares may therefore be made. In the present case, three applications were submitted on June 3, 1965. Two of these applications were rejected and one was granted. We are unable to hold that unless all the applications were granted, the allotment of shares must, by virtue of sub-s. (1) of Section 73, be invalid. The object of Section 73 (1) is that the subscribers to the shares must have facility to approach an Exchange for having their holdings converted whenever they desire. Even if out of several Exchanges approached, one or more, but not all, have granted the application for "enlistment" the facility of ensuring quick conversion is still available. If after representing in the prospectus that an application has been made to a recognised exchange for "enlistment" or will be made within the prescribed period, the Company is unable to obtain permission for "enlistment" from any exchange, the allotment will be invalid. But subs. (1) is not intended to mean that it will be invalid, even if permission is obtained, but not from all the Exchanges to which applications have been made.17. Section 73 (1) is enacted with the object that the subscribers will be ensured the facility of easy convertibility of their holdings when they have subscribed to the shares on the representation in the prospectus that an application for quotation of shares has been or will be made. The allotment of shares will be invalid only when permission for enlistment is not obtained. When permission from one or more of the Exchanges is obtained, it carries out the object of the Act. It will be a mechanical interpretation wholly divorced from the true object and intendment of the Act to hold that even if permission is secured for quotation of shares in an Exchange, that the allotment will be invalid because another exchange has not granted the permission. That this is the true meaning of S. 73 (1) is clear from the fact that the penalty of avoidance of allotment of shares is attracted not only where the permission applied for has not been granted, but where no application has been made within the prescribed period. If applications are made to several Exchanges, some within the period of ten days after the first issue of the prospectus, and some beyond. or that one or more applications, but not all, is or are defective, and the error is not rectified, it would be unreasonable to hold that because some of the applications made beyond the tenth day after the first issue of the prospectus, or are defective, are liable to be rejected, the applications properly made before some of the Exchanges are also ineffective and the allotment made may be invalid.18. Counsel for the Calcutta Stock Exchange urged that where a person is induced to subscribe for shares relying upon a representation that an application is made or intended to be made for quotation of the shares in an Exchange near his home-town, and it is found that the application is not made, or if made it is rejected by the Exchange, it would be a great hardship to the shareholder if he is bound by the allotment, even if the condition of securing quotation in the Exchange convenient to him is not carried out. But Section 73 (1) declares the entire allotment void: it does not take into consideration the right or convenience of individual shareholders. An enquiry whether a shareholder or a class of shareholders was or were induced to subscribe for shares on the representation is irrelevant in determining whether the allotment is rendered invalid for failure to secure compliance with a statutory condition. We need not consider whether the individual shareholder who finds that an Exchange convenient to him has not listed the shares furnishes a cause of action to him for avoiding the contract.19. We are in the view we have taken not called upon to decide whether the provisions of S. 73 of the Companies Act, 1956, are ultra vires, nor do we consider it necessary to decide whether S. 22 of the Securities Contracts (Regulation) Act, 1956, is ultra vires.20. It was urged on behalf of the Delhi and Calcutta Stock Exchanges that the High Court ought, in exercise of the power under O. 41 R. 33 of the Code of Civil Procedure, to have vacated the writ of mandamus issued requiring them to grant permission for quotation of the Companys shares. An Appellate Court may in appropriate case pass any decree and make any order appropriate to the ends of justice, even if a party has not appealed against an adverse decision. That power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the parties, even though they may not have filed any appeal or objection. But the jurisdiction is discretionary and the High Court has not exercised it apparently for good reasons. The orders passed against the Union and the two Exchanges were in substance distinct. Against the Union the order was made quashing its order in appeal against the orders of the Exchanges; and against the Exchanges the order was made directing inclusion of the shares in the list of quoted shares. The Exchanges acquiesced in the direction.21. We need, however, not express any final opinion on this question. We are informed at the Bar that the Calcutta Stock Exchange has applied for certificate to the High Court of Delhi and that application is pending. We need not pre-judge the result of that application or the appeal, if any, which may be filed in this Court. | 0[ds]19. We are in the view we have taken not called upon to decide whether the provisions of S. 73 ofthe Companies Act, 1956, are ultra vires, nor do we consider it necessary to decide whether S. 22 ofthe Securities Contracts (Regulation) Act, 1956, is ultra vires.It was urged on behalf of the Delhi and Calcutta Stock Exchanges that the High Court ought, in exercise of the power under O. 41 R. 33 of theCode of Civil Procedure, to have vacated the writ of mandamus issued requiring them to grant permission for quotation of the Companys shares.An Appellate Court may in appropriate case pass any decree and make any order appropriate to the ends of justice, even if a party has not appealed against an adverse decision. That power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the parties, even though they may not have filed any appeal or objection. But the jurisdiction is discretionary and the High Court has not exercised it apparently for good reasons. The orders passed against the Union and the two Exchanges were in substance distinct. Against the Union the order was made quashing its order in appeal against the orders of the Exchanges; and against the Exchanges the order was made directing inclusion of the shares in the list of quoted shares. The Exchanges acquiesced in the direction.21. We need, however, not express any final opinion on this question. We are informed at the Bar that the Calcutta Stock Exchange has applied for certificate to the High Court of Delhi and that application is pending. We need not pre-judge the result of that application or the appeal, if any, which may be filed in this Court. | 0 | 3,962 | 334 | ### Instruction:
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of the shares of the Company. It is not contended and it cannot reasonably be contended, that only one application for permission to secure quotation of the shares in an approved Exchange may be made. The expression "a recognised stock exchange" means "any recognised exchange". More applications than one for quotation of shares may therefore be made. In the present case, three applications were submitted on June 3, 1965. Two of these applications were rejected and one was granted. We are unable to hold that unless all the applications were granted, the allotment of shares must, by virtue of sub-s. (1) of Section 73, be invalid. The object of Section 73 (1) is that the subscribers to the shares must have facility to approach an Exchange for having their holdings converted whenever they desire. Even if out of several Exchanges approached, one or more, but not all, have granted the application for "enlistment" the facility of ensuring quick conversion is still available. If after representing in the prospectus that an application has been made to a recognised exchange for "enlistment" or will be made within the prescribed period, the Company is unable to obtain permission for "enlistment" from any exchange, the allotment will be invalid. But subs. (1) is not intended to mean that it will be invalid, even if permission is obtained, but not from all the Exchanges to which applications have been made.17. Section 73 (1) is enacted with the object that the subscribers will be ensured the facility of easy convertibility of their holdings when they have subscribed to the shares on the representation in the prospectus that an application for quotation of shares has been or will be made. The allotment of shares will be invalid only when permission for enlistment is not obtained. When permission from one or more of the Exchanges is obtained, it carries out the object of the Act. It will be a mechanical interpretation wholly divorced from the true object and intendment of the Act to hold that even if permission is secured for quotation of shares in an Exchange, that the allotment will be invalid because another exchange has not granted the permission. That this is the true meaning of S. 73 (1) is clear from the fact that the penalty of avoidance of allotment of shares is attracted not only where the permission applied for has not been granted, but where no application has been made within the prescribed period. If applications are made to several Exchanges, some within the period of ten days after the first issue of the prospectus, and some beyond. or that one or more applications, but not all, is or are defective, and the error is not rectified, it would be unreasonable to hold that because some of the applications made beyond the tenth day after the first issue of the prospectus, or are defective, are liable to be rejected, the applications properly made before some of the Exchanges are also ineffective and the allotment made may be invalid.18. Counsel for the Calcutta Stock Exchange urged that where a person is induced to subscribe for shares relying upon a representation that an application is made or intended to be made for quotation of the shares in an Exchange near his home-town, and it is found that the application is not made, or if made it is rejected by the Exchange, it would be a great hardship to the shareholder if he is bound by the allotment, even if the condition of securing quotation in the Exchange convenient to him is not carried out. But Section 73 (1) declares the entire allotment void: it does not take into consideration the right or convenience of individual shareholders. An enquiry whether a shareholder or a class of shareholders was or were induced to subscribe for shares on the representation is irrelevant in determining whether the allotment is rendered invalid for failure to secure compliance with a statutory condition. We need not consider whether the individual shareholder who finds that an Exchange convenient to him has not listed the shares furnishes a cause of action to him for avoiding the contract.19. We are in the view we have taken not called upon to decide whether the provisions of S. 73 of the Companies Act, 1956, are ultra vires, nor do we consider it necessary to decide whether S. 22 of the Securities Contracts (Regulation) Act, 1956, is ultra vires.20. It was urged on behalf of the Delhi and Calcutta Stock Exchanges that the High Court ought, in exercise of the power under O. 41 R. 33 of the Code of Civil Procedure, to have vacated the writ of mandamus issued requiring them to grant permission for quotation of the Companys shares. An Appellate Court may in appropriate case pass any decree and make any order appropriate to the ends of justice, even if a party has not appealed against an adverse decision. That power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the parties, even though they may not have filed any appeal or objection. But the jurisdiction is discretionary and the High Court has not exercised it apparently for good reasons. The orders passed against the Union and the two Exchanges were in substance distinct. Against the Union the order was made quashing its order in appeal against the orders of the Exchanges; and against the Exchanges the order was made directing inclusion of the shares in the list of quoted shares. The Exchanges acquiesced in the direction.21. We need, however, not express any final opinion on this question. We are informed at the Bar that the Calcutta Stock Exchange has applied for certificate to the High Court of Delhi and that application is pending. We need not pre-judge the result of that application or the appeal, if any, which may be filed in this Court.
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0
### Explanation:
19. We are in the view we have taken not called upon to decide whether the provisions of S. 73 ofthe Companies Act, 1956, are ultra vires, nor do we consider it necessary to decide whether S. 22 ofthe Securities Contracts (Regulation) Act, 1956, is ultra vires.It was urged on behalf of the Delhi and Calcutta Stock Exchanges that the High Court ought, in exercise of the power under O. 41 R. 33 of theCode of Civil Procedure, to have vacated the writ of mandamus issued requiring them to grant permission for quotation of the Companys shares.An Appellate Court may in appropriate case pass any decree and make any order appropriate to the ends of justice, even if a party has not appealed against an adverse decision. That power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the parties, even though they may not have filed any appeal or objection. But the jurisdiction is discretionary and the High Court has not exercised it apparently for good reasons. The orders passed against the Union and the two Exchanges were in substance distinct. Against the Union the order was made quashing its order in appeal against the orders of the Exchanges; and against the Exchanges the order was made directing inclusion of the shares in the list of quoted shares. The Exchanges acquiesced in the direction.21. We need, however, not express any final opinion on this question. We are informed at the Bar that the Calcutta Stock Exchange has applied for certificate to the High Court of Delhi and that application is pending. We need not pre-judge the result of that application or the appeal, if any, which may be filed in this Court.
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C.S. Company Vs. Kerala State Elect. Board | 1. This special leave petition arises from the order of the learned Single Judge made on 2-8-1996 in CRP No. 476 of 1996. 2. The admitted position is that the respondent had filed the suit for settlement of accounts on the basis of a contract dated 12-5-1983. He also sought for a decree jointly and severally against Defendants 2 to 4 or against their estate for the amount due; for a declaration that the respondent is entitled to recover all the loss and damages from the defendants and their assets when the same was ascertained, as stated in paragraph 8 of the plaint. An application has been filed on 15-2-1995 under Order VI Rule 17 CPC for amendment of the plaint for converting the suit into one for damages quantifying the damages as stated in paragraph 8-A. The trial court dismissed the application. In the revision, the High Court allowed it. Thus, this special leave petition. 3. It is contended for the petitioner that a suit merely for settlement of accounts and declaration that the respondent is entitled to recover damages from the defendant cannot be converted into a suit for damages in particular after the right of recovery is barred by limitation, i.e., a valuable right had accrued to the petitioners. The High Court, therefore, is not right in granting the amendment. We find no force in the contention. It is seen that what is sought to be amended is paragraph 8-A and the suit is to recover the quantified amount as damages based upon the original cause of action, namely, the contract referred to hereinbefore. It is seen that the original suit was for settlement of accounts and fastening a liability jointly and severally against all the defendants and the assets and estates. The relief originally sought for also was to declare the liability of the damages to be ascertained and recoverable from them. Thus, it could be seen that as per the original cause of action, the relief now sought for was available in the suit itself. Instead of settlement of account, the respondent is now seeking for damages against the defendant and the damages instead of being ascertained were quantified in paragraph 8-A of the plaint. The amendment does not constitute addition of any new cause of action. The respondent is not introducing any new cause of action nor would it change the cause of action as originally pleaded. Thus, there is neither change of cause of action nor introduction of any new cause of action after the bar of limitation. The High Court was, therefore, right in allowing the petition for amendment of the plaint. | 0[ds]We find no force in the contention. It is seen that what is sought to be amended is paragraph 8-A and the suit is to recover the quantified amount as damages based upon the original cause of action, namely, the contract referred to hereinbefore. It is seen that the original suit was for settlement of accounts and fastening a liability jointly and severally against all the defendants and the assets and estates. The relief originally sought for also was to declare the liability of the damages to be ascertained and recoverable from them. Thus, it could be seen that as per the original cause of action, the relief now sought for was available in the suit itself. Instead of settlement of account, the respondent is now seeking for damages against the defendant and the damages instead of being ascertained were quantified in paragraph 8-A of the plaint. The amendment does not constitute addition of any new cause of action. The respondent is not introducing any new cause of action nor would it change the cause of action as originally pleaded. Thus, there is neither change of cause of action nor introduction of any new cause of action after the bar of limitation. The High Court was, therefore, right in allowing the petition for amendment of the plaint. | 0 | 480 | 239 | ### 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. This special leave petition arises from the order of the learned Single Judge made on 2-8-1996 in CRP No. 476 of 1996. 2. The admitted position is that the respondent had filed the suit for settlement of accounts on the basis of a contract dated 12-5-1983. He also sought for a decree jointly and severally against Defendants 2 to 4 or against their estate for the amount due; for a declaration that the respondent is entitled to recover all the loss and damages from the defendants and their assets when the same was ascertained, as stated in paragraph 8 of the plaint. An application has been filed on 15-2-1995 under Order VI Rule 17 CPC for amendment of the plaint for converting the suit into one for damages quantifying the damages as stated in paragraph 8-A. The trial court dismissed the application. In the revision, the High Court allowed it. Thus, this special leave petition. 3. It is contended for the petitioner that a suit merely for settlement of accounts and declaration that the respondent is entitled to recover damages from the defendant cannot be converted into a suit for damages in particular after the right of recovery is barred by limitation, i.e., a valuable right had accrued to the petitioners. The High Court, therefore, is not right in granting the amendment. We find no force in the contention. It is seen that what is sought to be amended is paragraph 8-A and the suit is to recover the quantified amount as damages based upon the original cause of action, namely, the contract referred to hereinbefore. It is seen that the original suit was for settlement of accounts and fastening a liability jointly and severally against all the defendants and the assets and estates. The relief originally sought for also was to declare the liability of the damages to be ascertained and recoverable from them. Thus, it could be seen that as per the original cause of action, the relief now sought for was available in the suit itself. Instead of settlement of account, the respondent is now seeking for damages against the defendant and the damages instead of being ascertained were quantified in paragraph 8-A of the plaint. The amendment does not constitute addition of any new cause of action. The respondent is not introducing any new cause of action nor would it change the cause of action as originally pleaded. Thus, there is neither change of cause of action nor introduction of any new cause of action after the bar of limitation. The High Court was, therefore, right in allowing the petition for amendment of the plaint.
### Response:
0
### Explanation:
We find no force in the contention. It is seen that what is sought to be amended is paragraph 8-A and the suit is to recover the quantified amount as damages based upon the original cause of action, namely, the contract referred to hereinbefore. It is seen that the original suit was for settlement of accounts and fastening a liability jointly and severally against all the defendants and the assets and estates. The relief originally sought for also was to declare the liability of the damages to be ascertained and recoverable from them. Thus, it could be seen that as per the original cause of action, the relief now sought for was available in the suit itself. Instead of settlement of account, the respondent is now seeking for damages against the defendant and the damages instead of being ascertained were quantified in paragraph 8-A of the plaint. The amendment does not constitute addition of any new cause of action. The respondent is not introducing any new cause of action nor would it change the cause of action as originally pleaded. Thus, there is neither change of cause of action nor introduction of any new cause of action after the bar of limitation. The High Court was, therefore, right in allowing the petition for amendment of the plaint.
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Mahabir Vegetable Oils Pvt. Ltd. Vs. State Of Haryana | would not make the Respondents therein to pay purchase tax with effect from 1.4.1996 to 3.6.1997. 15. The learned counsel appearing on behalf of the State, however, has placed strong reliance on the judgment of this Court in State of Rajasthan and Another v. J.K. Udaipur Udyog Ltd. and Another [(2004) 7 SCC 673] , wherein the question which fell for consideration was as to whether in absence of any specific promise, the scheme of grant of exemption of sales tax payable by all the existing units as also the new industrial units would constitute a promise. It was held: "In this case the Scheme being notified under the power in the State Government to grant exemptions both under Section 15 of the RST Act and Section 8(5) of the CST Act in the public interest, the State Government was competent to modify or revoke the grant for the same reason. Thus what is granted can be withdrawn unless the Government is precluded from doing so on the ground of promissory estoppel, which principle is itself subject to considerations of equity and public interest. (See STO v. Shree Durga Oil Mills) The vesting of a defeasible right is therefore, a contradiction in terms. There being no indefeasible right to the continued grant of an exemption (absent the exception of promissory estoppel), the question of the respondent Companies having an indefeasible right to any facet of such exemption such as the rate, period, etc. does not arise."(Emphasis supplied) The said decision itself is an authority for the proposition that what is granted can be withdrawn by the Government except in the case where the doctrine of promissory estoppel applies. The said decision is also an authority for the proposition that the promissory estoppel operates on equity and public interest. 16. In Bannari Amman Sugars Ltd. v. Commercial Tax Officer and Others [(2005) 1 SCC 625] , it was stated: "19. In order to invoke the doctrine of promissory estoppel clear, sound and positive foundation must be laid in the petition itself by the party invoking the doctrine and bald expressions without any supporting material to the effect that the doctrine is attracted because the party invoking the doctrine has altered its position relying on the assurance of the Government would not be sufficient to press into aid the doctrine. The courts are bound to consider all aspects including the results sought to be achieved and the public good at large, because while considering the applicability of the doctrine, the courts have to do equity and the fundamental principles of equity must for ever be present in the mind of the court." It is true that the State issued a notification on or about 3.1.1996 expressing its intention to amend the rules. By reason thereof, however, the State neither stated nor could it expressly state, that the rules shall stand amended. It is now well-settled principle of law that draft rules can be invoked only when no rule is operative in the field. Recourse to draft rules for the purpose of taking a decision in certain matters, can also be taken subject to certain conditions. [See Union of India Through Govt. of Pondicherry and Another v. V. Ramakrishnan and Others, (2005) 8 SCC 394 , para 23 and 24] The promises/representations made by way of a statute, therefore, continued to operate in the field. It may be true that the Appellants altered their position only from August, 1996 but it has neither been denied nor disputed that during the relevant period, namely, August, 1996 to 16.12.1996 not only they have invested huge amounts but also the authorities of the State sanctioned benefits, granted permissions. Parties had also taken other steps which could be taken only for the purpose of setting up of a new industrial unit. An entrepreneur who sets up an industry in a backward area unless otherwise prohibited, is entitled to alter his position pursuant to or in furtherance of the promises or representations made by the State. The State accepted that equity operated in favour of the entrepreneurs by issuing Note 2 to the notification dated 16.12.1996 whereby and whereunder solvent extraction plant was for the first time inserted in Schedule III, i.e., in the negative list. 17. Both the provisions contained in Schedule III and the Note 2 formed part of subordinate legislation. By reason of the said Note, the State did not deviate from its professed object. It was in conformity with the purport for which original Rule 28A was enacted. 18. We, in this case, are not concerned with the quantum of exemption to which the Appellants may be entitled to, but only with the interpretation of the relevant provisions which arise for consideration before us. 19. We may at this stage consider the effect of omission of the said Note. It is beyond any cavil that a subordinate legislation can be given a retrospective effect and retroactive operation, if any power in this behalf is contained in the main act. Rule making power is a species of delegated legislation. A delegatee therefor can make rules only within the four-corners thereof. 20. It is a fundamental rule of law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication. [See West v. Gwynne, (1911) 2 Ch. 1] 21. A retrospective effect to an amendment by way of a delegated legislation could be given, thus, only after coming into force of sub-section (2A) of Section 64 of the Act and not prior thereto. 22. By reason of Note 2, certain rights were conferred. Although there lies a distinction between vested rights and accrued rights as by reason of a delegated legislation, a right cannot be taken away. The amendments carried out in 1996 as also the subsequent amendments made prior to 2001, could not, thus, have taken away the rights of the appellant with retrospective effect.23. | 1[ds]We, in this case, are not concerned with the quantum of exemption to which the Appellants may be entitled to, but only with the interpretation of the relevant provisions which arise for consideration beforemay at this stage consider the effect of omission of the said Note. It is beyond any cavil that a subordinate legislation can be given a retrospective effect and retroactive operation, if any power in this behalf is contained in the main act. Rule making power is a species of delegated legislation. A delegatee therefor can make rules only within the four-cornersis a fundamental rule of law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication. [See West v. Gwynne, (1911) 2 Ch.retrospective effect to an amendment by way of a delegated legislation could be given, thus, only after coming into force of sub-section (2A) of Section 64 of the Act and not priorreason of Note 2, certain rights were conferred. Although there lies a distinction between vested rights and accrued rights as by reason of a delegated legislation, a right cannot be taken away. The amendments carried out in 1996 as also the subsequent amendments made prior to 2001, could not, thus, have taken away the rights of the appellant with retrospective effect. | 1 | 5,313 | 259 | ### 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:
would not make the Respondents therein to pay purchase tax with effect from 1.4.1996 to 3.6.1997. 15. The learned counsel appearing on behalf of the State, however, has placed strong reliance on the judgment of this Court in State of Rajasthan and Another v. J.K. Udaipur Udyog Ltd. and Another [(2004) 7 SCC 673] , wherein the question which fell for consideration was as to whether in absence of any specific promise, the scheme of grant of exemption of sales tax payable by all the existing units as also the new industrial units would constitute a promise. It was held: "In this case the Scheme being notified under the power in the State Government to grant exemptions both under Section 15 of the RST Act and Section 8(5) of the CST Act in the public interest, the State Government was competent to modify or revoke the grant for the same reason. Thus what is granted can be withdrawn unless the Government is precluded from doing so on the ground of promissory estoppel, which principle is itself subject to considerations of equity and public interest. (See STO v. Shree Durga Oil Mills) The vesting of a defeasible right is therefore, a contradiction in terms. There being no indefeasible right to the continued grant of an exemption (absent the exception of promissory estoppel), the question of the respondent Companies having an indefeasible right to any facet of such exemption such as the rate, period, etc. does not arise."(Emphasis supplied) The said decision itself is an authority for the proposition that what is granted can be withdrawn by the Government except in the case where the doctrine of promissory estoppel applies. The said decision is also an authority for the proposition that the promissory estoppel operates on equity and public interest. 16. In Bannari Amman Sugars Ltd. v. Commercial Tax Officer and Others [(2005) 1 SCC 625] , it was stated: "19. In order to invoke the doctrine of promissory estoppel clear, sound and positive foundation must be laid in the petition itself by the party invoking the doctrine and bald expressions without any supporting material to the effect that the doctrine is attracted because the party invoking the doctrine has altered its position relying on the assurance of the Government would not be sufficient to press into aid the doctrine. The courts are bound to consider all aspects including the results sought to be achieved and the public good at large, because while considering the applicability of the doctrine, the courts have to do equity and the fundamental principles of equity must for ever be present in the mind of the court." It is true that the State issued a notification on or about 3.1.1996 expressing its intention to amend the rules. By reason thereof, however, the State neither stated nor could it expressly state, that the rules shall stand amended. It is now well-settled principle of law that draft rules can be invoked only when no rule is operative in the field. Recourse to draft rules for the purpose of taking a decision in certain matters, can also be taken subject to certain conditions. [See Union of India Through Govt. of Pondicherry and Another v. V. Ramakrishnan and Others, (2005) 8 SCC 394 , para 23 and 24] The promises/representations made by way of a statute, therefore, continued to operate in the field. It may be true that the Appellants altered their position only from August, 1996 but it has neither been denied nor disputed that during the relevant period, namely, August, 1996 to 16.12.1996 not only they have invested huge amounts but also the authorities of the State sanctioned benefits, granted permissions. Parties had also taken other steps which could be taken only for the purpose of setting up of a new industrial unit. An entrepreneur who sets up an industry in a backward area unless otherwise prohibited, is entitled to alter his position pursuant to or in furtherance of the promises or representations made by the State. The State accepted that equity operated in favour of the entrepreneurs by issuing Note 2 to the notification dated 16.12.1996 whereby and whereunder solvent extraction plant was for the first time inserted in Schedule III, i.e., in the negative list. 17. Both the provisions contained in Schedule III and the Note 2 formed part of subordinate legislation. By reason of the said Note, the State did not deviate from its professed object. It was in conformity with the purport for which original Rule 28A was enacted. 18. We, in this case, are not concerned with the quantum of exemption to which the Appellants may be entitled to, but only with the interpretation of the relevant provisions which arise for consideration before us. 19. We may at this stage consider the effect of omission of the said Note. It is beyond any cavil that a subordinate legislation can be given a retrospective effect and retroactive operation, if any power in this behalf is contained in the main act. Rule making power is a species of delegated legislation. A delegatee therefor can make rules only within the four-corners thereof. 20. It is a fundamental rule of law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication. [See West v. Gwynne, (1911) 2 Ch. 1] 21. A retrospective effect to an amendment by way of a delegated legislation could be given, thus, only after coming into force of sub-section (2A) of Section 64 of the Act and not prior thereto. 22. By reason of Note 2, certain rights were conferred. Although there lies a distinction between vested rights and accrued rights as by reason of a delegated legislation, a right cannot be taken away. The amendments carried out in 1996 as also the subsequent amendments made prior to 2001, could not, thus, have taken away the rights of the appellant with retrospective effect.23.
### Response:
1
### Explanation:
We, in this case, are not concerned with the quantum of exemption to which the Appellants may be entitled to, but only with the interpretation of the relevant provisions which arise for consideration beforemay at this stage consider the effect of omission of the said Note. It is beyond any cavil that a subordinate legislation can be given a retrospective effect and retroactive operation, if any power in this behalf is contained in the main act. Rule making power is a species of delegated legislation. A delegatee therefor can make rules only within the four-cornersis a fundamental rule of law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication. [See West v. Gwynne, (1911) 2 Ch.retrospective effect to an amendment by way of a delegated legislation could be given, thus, only after coming into force of sub-section (2A) of Section 64 of the Act and not priorreason of Note 2, certain rights were conferred. Although there lies a distinction between vested rights and accrued rights as by reason of a delegated legislation, a right cannot be taken away. The amendments carried out in 1996 as also the subsequent amendments made prior to 2001, could not, thus, have taken away the rights of the appellant with retrospective effect.
|
Dharman Raj Banshi Vs. State of West Bengal | Bhagwati, J.1. This is a petition under Article 32 of the Constitution for a writ of habeas corpus for setting the petitioner free from detention. Immediately on the conclusion of the hearing of the petition we passed an order releasing the petitioner from detention and we now proceed to give our reasons.2. The District Magistrate, 24 Parganas, in exercise of the power conferred upon him under sub-section (1) read with sub-section (2) of Section 3 of the Maintenance of Internal Security Act, 1971, passed an order dated 25th September, 1972 directing that the petitioner be detained as it was necessary to do so with a view to preventing him from acting in a manner prejudicial to the maintenance of supplies and services essential to the community. Pursuant to the order of detention, the petitioner was apprehended on 23rd September, 1972 and immediately on his arrest the grounds on which the order of detention was made were served on him by a communication dated 20th September, 1972 made under Section 8, sub-section (1) of the Act. There was only one ground set our in this communication and it was in the following terms:"That on 14-9-1972 at about 13-15 hrs. you and your associates broke open wagon No. S. E. 33850 at Naihati Goods Yard and committed theft in respect of Jute bales. Duty RPF personnel intercepted, when, you and your associates attacked the RPF party with stones and attempted to kill them with the help of a pipe-gun. One of the RPF personnel RK/106 R. Pathak opened fire in self defence and injured you. Your associates then fled away leaving the stolen goods near the victimised wagon and you were arrested at the spot."The fact of the making of the order of detention was reported by the District Magistrate to the State Government on 23rd September, 1972. The order of detention was thereafter approved by the State Government on 29th September, 1972 and on the same day the State Government made the necessary report to the Central Government. The petitioner submitted a representation against the order of detention and the representation was received by the State Government on 29th September, 1972. The State Government thereafter placed the case of the petitioner before the Advisory Board on 5th October, 1972 together with the grounds on which the order of detention was made and the representation received from the petitioner. The Advisory Board, after giving a personal hearing to the petitioner, submitted its report to the State Government on 30th October, 1972 stating that in its opinion there was sufficient cause for the detention of the petitioner. The State Government thereupon passed an order dated 31st October, 1972 confirming the detention of the petitioner. It is this detention which is challenged by the petitioner in the present petition submitted from the jail.3. It is apparent from the communication dated 20th September, 1972 that only one ground was disclosed to the petitioner as forming the basis of detention and that ground related to the incident of wagon breaking alleged to have taken place on 14th September, 1972. This was the only ground communicated to the petitioner, and therefore, obviously it was against this ground alone that the petitioner had an opportunity of making his representation. But the District Magistrate stated in paragraph 7 of the affidavit filed by him in reply to the petition :"........... it appears from the records that the detenu -petitioner is one of the notorious anti-social elements of Barrackpore-Naihati Area. He and his associates were indulging in breaking wagons and stealing goods from there. It appears that on 14-9-1972 petitioner and his associates were found breaking wagon at Naihati Goods shed and committing theft of jute bales therefrom and when prevented by R. P. F. party the petitioner and his associates attacked them and attempted to kill them with pipe guns. The aforesaid activity of the petitioner caused hindrance to the maintenance of supplies and services essential to the community and so he was detained under the said Act."(emphasis supplied).It is clear from this statement that what weighed with the District Magistrate in making the order of detention was not merely one single and solitary act of wagon breaking attributed to the petitioner in the grounds supplied to him, but the fact that the petitioner was "one of the notorious anti-social elements of Barrckpore-Naithati Area" and "he and his associates were indulging in breaking wagons and stealing goods from there". This was an additional ground which plainly indicated that the District Magistrate had in mind several prior incidents of wagon breaking and stealing and he took into account those incidents for the purpose of reaching the satisfaction that it was necessary to detain the petitioner with a view to preventing him from carrying prejudicial activities. These incidents of wagon breaking and stealing on the basis of which the petitioner was branded as a notorious anti-social element of Barrackpore-Naithati Area and which contributed in no small measure to the making of the order of detention, were, however, not communicated to the petitioner and he was not given an opportunity of making his representation in regard to them. This was clearly in breach of the requirement of sub-section (1) of Section 8 of the Act and it also constituted violation of the constitutional guarantee embodied in Article 22, cl. (5) of the Constitution. The case, therefore, falls within the ratio of the decisions of this Court in Shaik Hanif v. State of West Bengal W. P. No. 1679 of 1973 etc; D/- 1-2-1974 = (reported in AIR 1974 SC 679 ) and Bhut Nath Mate v. State of West Bengal W. P. No. 1456 of 1973, D/- 8-2-1974 = (reported in AIR 1974 SC 806 ) and the order of detention must be held to be invalid. | 1[ds]3. It is apparent from the communication dated 20th September, 1972 that only one ground was disclosed to the petitioner as forming the basis of detention and that ground related to the incident of wagon breaking alleged to have taken place on 14th September, 1972. This was the only ground communicated to the petitioner, and therefore, obviously it was against this ground alone that the petitioner had an opportunity of making his representation. But the District Magistrate stated in paragraph 7 of the affidavit filed by him in reply to the petition :"........... it appears from the records that the detenupetitioner is one of the notoriousati Area. He and his associates were indulging in breaking wagons and stealing goods from there. It appears that onpetitioner and his associates were found breaking wagon at Naihati Goods shed and committing theft of jute bales therefrom and when prevented by R. P. F. party the petitioner and his associates attacked them and attempted to kill them with pipe guns. The aforesaid activity of the petitioner caused hindrance to the maintenance of supplies and services essential to the community and so he was detained under the said Act."(emphasis supplied).It is clear from this statement that what weighed with the District Magistrate in making the order of detention was not merely one single and solitary act of wagon breaking attributed to the petitioner in the grounds supplied to him, but the fact that the petitioner was "one of the notoriousati Area" and "he and his associates were indulging in breaking wagons and stealing goods from there". This was an additional ground which plainly indicated that the District Magistrate had in mind several prior incidents of wagon breaking and stealing and he took into account those incidents for the purpose of reaching the satisfaction that it was necessary to detain the petitioner with a view to preventing him from carrying prejudicial activities. These incidents of wagon breaking and stealing on the basis of which the petitioner was branded as a notoriousati Area and which contributed in no small measure to the making of the order of detention, were, however, not communicated to the petitioner and he was not given an opportunity of making his representation in regard to them. This was clearly in breach of the requirement of(1) of Section 8 of the Act and it also constituted violation of the constitutional guarantee embodied in Article 22, cl. (5) of the Constitution. The case, therefore, falls within the ratio of the decisions of this Court in Shaik Hanif v. State of West Bengal W. P. No. 1679 of 1973 etc; D/= (reported in AIR 1974 SC 679 ) and Bhut Nath Mate v. State of West Bengal W. P. No. 1456 of 1973, D/= (reported in AIR 1974 SC 806 ) and the order of detention must be held to be invalid. | 1 | 1,058 | 526 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
Bhagwati, J.1. This is a petition under Article 32 of the Constitution for a writ of habeas corpus for setting the petitioner free from detention. Immediately on the conclusion of the hearing of the petition we passed an order releasing the petitioner from detention and we now proceed to give our reasons.2. The District Magistrate, 24 Parganas, in exercise of the power conferred upon him under sub-section (1) read with sub-section (2) of Section 3 of the Maintenance of Internal Security Act, 1971, passed an order dated 25th September, 1972 directing that the petitioner be detained as it was necessary to do so with a view to preventing him from acting in a manner prejudicial to the maintenance of supplies and services essential to the community. Pursuant to the order of detention, the petitioner was apprehended on 23rd September, 1972 and immediately on his arrest the grounds on which the order of detention was made were served on him by a communication dated 20th September, 1972 made under Section 8, sub-section (1) of the Act. There was only one ground set our in this communication and it was in the following terms:"That on 14-9-1972 at about 13-15 hrs. you and your associates broke open wagon No. S. E. 33850 at Naihati Goods Yard and committed theft in respect of Jute bales. Duty RPF personnel intercepted, when, you and your associates attacked the RPF party with stones and attempted to kill them with the help of a pipe-gun. One of the RPF personnel RK/106 R. Pathak opened fire in self defence and injured you. Your associates then fled away leaving the stolen goods near the victimised wagon and you were arrested at the spot."The fact of the making of the order of detention was reported by the District Magistrate to the State Government on 23rd September, 1972. The order of detention was thereafter approved by the State Government on 29th September, 1972 and on the same day the State Government made the necessary report to the Central Government. The petitioner submitted a representation against the order of detention and the representation was received by the State Government on 29th September, 1972. The State Government thereafter placed the case of the petitioner before the Advisory Board on 5th October, 1972 together with the grounds on which the order of detention was made and the representation received from the petitioner. The Advisory Board, after giving a personal hearing to the petitioner, submitted its report to the State Government on 30th October, 1972 stating that in its opinion there was sufficient cause for the detention of the petitioner. The State Government thereupon passed an order dated 31st October, 1972 confirming the detention of the petitioner. It is this detention which is challenged by the petitioner in the present petition submitted from the jail.3. It is apparent from the communication dated 20th September, 1972 that only one ground was disclosed to the petitioner as forming the basis of detention and that ground related to the incident of wagon breaking alleged to have taken place on 14th September, 1972. This was the only ground communicated to the petitioner, and therefore, obviously it was against this ground alone that the petitioner had an opportunity of making his representation. But the District Magistrate stated in paragraph 7 of the affidavit filed by him in reply to the petition :"........... it appears from the records that the detenu -petitioner is one of the notorious anti-social elements of Barrackpore-Naihati Area. He and his associates were indulging in breaking wagons and stealing goods from there. It appears that on 14-9-1972 petitioner and his associates were found breaking wagon at Naihati Goods shed and committing theft of jute bales therefrom and when prevented by R. P. F. party the petitioner and his associates attacked them and attempted to kill them with pipe guns. The aforesaid activity of the petitioner caused hindrance to the maintenance of supplies and services essential to the community and so he was detained under the said Act."(emphasis supplied).It is clear from this statement that what weighed with the District Magistrate in making the order of detention was not merely one single and solitary act of wagon breaking attributed to the petitioner in the grounds supplied to him, but the fact that the petitioner was "one of the notorious anti-social elements of Barrckpore-Naithati Area" and "he and his associates were indulging in breaking wagons and stealing goods from there". This was an additional ground which plainly indicated that the District Magistrate had in mind several prior incidents of wagon breaking and stealing and he took into account those incidents for the purpose of reaching the satisfaction that it was necessary to detain the petitioner with a view to preventing him from carrying prejudicial activities. These incidents of wagon breaking and stealing on the basis of which the petitioner was branded as a notorious anti-social element of Barrackpore-Naithati Area and which contributed in no small measure to the making of the order of detention, were, however, not communicated to the petitioner and he was not given an opportunity of making his representation in regard to them. This was clearly in breach of the requirement of sub-section (1) of Section 8 of the Act and it also constituted violation of the constitutional guarantee embodied in Article 22, cl. (5) of the Constitution. The case, therefore, falls within the ratio of the decisions of this Court in Shaik Hanif v. State of West Bengal W. P. No. 1679 of 1973 etc; D/- 1-2-1974 = (reported in AIR 1974 SC 679 ) and Bhut Nath Mate v. State of West Bengal W. P. No. 1456 of 1973, D/- 8-2-1974 = (reported in AIR 1974 SC 806 ) and the order of detention must be held to be invalid.
### Response:
1
### Explanation:
3. It is apparent from the communication dated 20th September, 1972 that only one ground was disclosed to the petitioner as forming the basis of detention and that ground related to the incident of wagon breaking alleged to have taken place on 14th September, 1972. This was the only ground communicated to the petitioner, and therefore, obviously it was against this ground alone that the petitioner had an opportunity of making his representation. But the District Magistrate stated in paragraph 7 of the affidavit filed by him in reply to the petition :"........... it appears from the records that the detenupetitioner is one of the notoriousati Area. He and his associates were indulging in breaking wagons and stealing goods from there. It appears that onpetitioner and his associates were found breaking wagon at Naihati Goods shed and committing theft of jute bales therefrom and when prevented by R. P. F. party the petitioner and his associates attacked them and attempted to kill them with pipe guns. The aforesaid activity of the petitioner caused hindrance to the maintenance of supplies and services essential to the community and so he was detained under the said Act."(emphasis supplied).It is clear from this statement that what weighed with the District Magistrate in making the order of detention was not merely one single and solitary act of wagon breaking attributed to the petitioner in the grounds supplied to him, but the fact that the petitioner was "one of the notoriousati Area" and "he and his associates were indulging in breaking wagons and stealing goods from there". This was an additional ground which plainly indicated that the District Magistrate had in mind several prior incidents of wagon breaking and stealing and he took into account those incidents for the purpose of reaching the satisfaction that it was necessary to detain the petitioner with a view to preventing him from carrying prejudicial activities. These incidents of wagon breaking and stealing on the basis of which the petitioner was branded as a notoriousati Area and which contributed in no small measure to the making of the order of detention, were, however, not communicated to the petitioner and he was not given an opportunity of making his representation in regard to them. This was clearly in breach of the requirement of(1) of Section 8 of the Act and it also constituted violation of the constitutional guarantee embodied in Article 22, cl. (5) of the Constitution. The case, therefore, falls within the ratio of the decisions of this Court in Shaik Hanif v. State of West Bengal W. P. No. 1679 of 1973 etc; D/= (reported in AIR 1974 SC 679 ) and Bhut Nath Mate v. State of West Bengal W. P. No. 1456 of 1973, D/= (reported in AIR 1974 SC 806 ) and the order of detention must be held to be invalid.
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Icici Bank Ltd Vs. Sidco Leathers Ltd. | queue for receiving money owed to him. It, however, does not stand obliterated only by the filing of an affidavit or proof of claim with the official liquidator. Such a claim had been filed pursuant to a notice issued by the official liquidator. If the creditor does not respond to the said notice, he would not be in a position to bring to the notice of the official liquidator, the existence of his right. 60. Sub-section (3) of Section 47 clearly envisages the position where he does not either realise or relinquish his security. He, in such a situation, may state in his Affidavit of Proof, the particulars of the security and value at which he assesses the same. The consequences therefor would ensue. If the Official Receiver proceeds to sell the security, the Court first has to pay the amount at which the security was valued to the secured creditor out of the sale proceeds. 61. In Mahindra and Mahindra Ltd. v. Union of India & Anr. [(1979) 2 SCC 529] , it was stated: "That has to be determined on an interpretation of Section 13(2) in the light of the context or setting in which it occurs and having regard to the object and purpose of its enactment. Now, one thing is clear that the power conferred under Section 13(2) is a corrective or rectificatory power and it is conferred in terms of widest amplitude. - It is left to the discretion of the Commission whether the power should be exercised in a given case and if so, to what extent. But it must be remembered that this discretion being a judicial or in any event a quasi judicial discretion, cannot be "arbitrary, vague or fanciful" : it must be guided by relevant considerations. It is not possible to enumerate exhaustively the various relevant considerations which may legitimately weigh with the Commission in exercising its discretion, nor would it be prudent or wise to do so, since the teeming multiplicity of circumstances and situations which may arise from time to time in this kaleidoscopic world cannot be cast in any definite or rigid mould or be imprisoned in any strait-jacket formula" 62. The question came up for consideration before a learned Single Judge of Karnataka High Court in State Bank of Mysore v. Official Liquidator & Ors. [1985 (58) Company Cases 609], wherein the law was stated in the following terms: "It will be thus plain that what section 47 provides is only for the benefit of the mortgagee and not to his detriment. He can follow any one of the three procedures suggested in the section. In this case, I do not think it can be validly argued that the mortgagee has relinquished his security. Exhibit B-1 makes it clear that he had no objection if the property is sold free of mortgage but a lien is kept in so far as the value he had assessed is concerned and is preferentially paid out of the sale proceeds. There are no words in Exhibit B-1 which warrant any conclusion that the mortgagee had relinquished his security" 63. In fact, sub-section (3) of section 47 lends support to this method of payment to the mortgagee. If the official receiver proceeds to sell the security, the court first has to pay the amount at which the security was valued to the secured creditor out of the sale proceeds. Whatever may be the position in regard to the balance, in so far as the value of his assessment is concerned, he can be preferentially paid out of the sale proceeds.64. If the sale was valid, I fail to see how the mortgagee could be deprived of his security, particularly when he had not relinquished. The property was sold with a clear understanding that the mortgagee will be paid firm from the sale proceeds. This mode of realization of security is not, in my view, derogatory either to section 47 or to section 59 of the Act. 65. It was further held: "Sub-s. (3) of s. 47 of the Act does not come in the way of the official liquidator entertaining the application of the bank for payment of secured loans in accordance with the hypothecation agreement and the mortgage by deposit of title deeds, as proved by the bank. In the result, the bank is entitled to realize that amount on a preferential basis as a secured creditor notwithstanding the fact that it filed the affidavit indicating that it stands within liquidation but subject to the reservation of its security being continued." 66. A Division bench of the Gujarat High Court in Gujarat Steel Tube Employees Union & Anr. v. O.L. of Gujarat Steel Tubes Ltd. & Ors. [disposed of on 9.1.2006], held: "The Court is also of the view that simply because the secured creditors participate in the sale proceedings undertaken by the Court and they also became the members of the Sale Committee constituted pursuant to the directions issued by the Court does not mean that they have exercised their option of remaining outside the winding up and they have relinquished their security. As a matter of fact, relinquishment of security by the secured creditors require a positive action on the part of the secured creditors. They have never stated in any of the proceedings that they are relinquishing their securities. On the contrary, they have made it clear that they remain outside the winding up and they participate in the sale proceeds only with a view to facilitate the sale proceeds so as to get the auction proceedings completed as expeditiously as possible. There is also substance in the say of the secured creditors that as soon as the assets of the companies are sold and realization is taken place, their securities are converted from the specified assets into cash and they have equal right in cash which is realized on sale of the assets of the Company in liquidation" 67. We agree with the said view.68. | 1[ds]Section 47 of the Provincial Insolvency Act is attracted by virtue of Section 529(1) of the Companies Act. Sub-section (2) of Section 47 would become applicable where a secured creditor voluntarily relinquishes his security for the general benefit of theenvisages a conscious act, i.e., an act where a person was aware of his right and then relinquishes the same. The same must be for the general benefit of the creditors. His action must lead to a conclusion that he, for one reason or the other, intended to stand in the queue for receiving money owed to him. It, however, does not stand obliterated only by the filing of an affidavit or proof of claim with the official liquidator. Such a claim had been filed pursuant to a notice issued by the official liquidator. If the creditor does not respond to the said notice, he would not be in a position to bring to the notice of the official liquidator, the existence of his(3) of Section 47 clearly envisages the position where he does not either realise or relinquish his security. He, in such a situation, may state in his Affidavit of Proof, the particulars of the security and value at which he assesses the same. The consequences therefor would ensue. If the Official Receiver proceeds to sell the security, the Court first has to pay the amount at which the security was valued to the secured creditor out of the salefact, sub-section (3) of section 47 lends support to this method of payment to the mortgagee. If the official receiver proceeds to sell the security, the court first has to pay the amount at which the security was valued to the secured creditor out of the sale proceeds. Whatever may be the position in regard to the balance, in so far as the value of his assessment is concerned, he can be preferentially paid out of the sale proceeds.64. If the sale was valid, I fail to see how the mortgagee could be deprived of his security, particularly when he had not relinquished. The property was sold with a clear understanding that the mortgagee will be paid firm from the sale proceeds. This mode of realization of security is not, in my view, derogatory either to section 47 or to section 59 of the Act.It was further(3) of s. 47 of the Act does not come in the way of the official liquidator entertaining the application of the bank for payment of secured loans in accordance with the hypothecation agreement and the mortgage by deposit of title deeds, as proved by the bank. In the result, the bank is entitled to realize that amount on a preferential basis as a secured creditor notwithstanding the fact that it filed the affidavit indicating that it stands within liquidation but subject to the reservation of its security being continued.A Division bench of the Gujarat High Court in Gujarat Steel Tube Employees Union & Anr. v. O.L. of Gujarat Steel Tubes Ltd. & Ors. [disposed of on 9.1.2006],Court is also of the view that simply because the secured creditors participate in the sale proceedings undertaken by the Court and they also became the members of the Sale Committee constituted pursuant to the directions issued by the Court does not mean that they have exercised their option of remaining outside the winding up and they have relinquished their security. As a matter of fact, relinquishment of security by the secured creditors require a positive action on the part of the secured creditors. They have never stated in any of the proceedings that they are relinquishing their securities. On the contrary, they have made it clear that they remain outside the winding up and they participate in the sale proceeds only with a view to facilitate the sale proceeds so as to get the auction proceedings completed as expeditiously as possible. There is also substance in the say of the secured creditors that as soon as the assets of the companies are sold and realization is taken place, their securities are converted from the specified assets into cash and they have equal right in cash which is realized on sale of the assets of the Company inWe agree with the said view. | 1 | 8,239 | 775 | ### 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:
queue for receiving money owed to him. It, however, does not stand obliterated only by the filing of an affidavit or proof of claim with the official liquidator. Such a claim had been filed pursuant to a notice issued by the official liquidator. If the creditor does not respond to the said notice, he would not be in a position to bring to the notice of the official liquidator, the existence of his right. 60. Sub-section (3) of Section 47 clearly envisages the position where he does not either realise or relinquish his security. He, in such a situation, may state in his Affidavit of Proof, the particulars of the security and value at which he assesses the same. The consequences therefor would ensue. If the Official Receiver proceeds to sell the security, the Court first has to pay the amount at which the security was valued to the secured creditor out of the sale proceeds. 61. In Mahindra and Mahindra Ltd. v. Union of India & Anr. [(1979) 2 SCC 529] , it was stated: "That has to be determined on an interpretation of Section 13(2) in the light of the context or setting in which it occurs and having regard to the object and purpose of its enactment. Now, one thing is clear that the power conferred under Section 13(2) is a corrective or rectificatory power and it is conferred in terms of widest amplitude. - It is left to the discretion of the Commission whether the power should be exercised in a given case and if so, to what extent. But it must be remembered that this discretion being a judicial or in any event a quasi judicial discretion, cannot be "arbitrary, vague or fanciful" : it must be guided by relevant considerations. It is not possible to enumerate exhaustively the various relevant considerations which may legitimately weigh with the Commission in exercising its discretion, nor would it be prudent or wise to do so, since the teeming multiplicity of circumstances and situations which may arise from time to time in this kaleidoscopic world cannot be cast in any definite or rigid mould or be imprisoned in any strait-jacket formula" 62. The question came up for consideration before a learned Single Judge of Karnataka High Court in State Bank of Mysore v. Official Liquidator & Ors. [1985 (58) Company Cases 609], wherein the law was stated in the following terms: "It will be thus plain that what section 47 provides is only for the benefit of the mortgagee and not to his detriment. He can follow any one of the three procedures suggested in the section. In this case, I do not think it can be validly argued that the mortgagee has relinquished his security. Exhibit B-1 makes it clear that he had no objection if the property is sold free of mortgage but a lien is kept in so far as the value he had assessed is concerned and is preferentially paid out of the sale proceeds. There are no words in Exhibit B-1 which warrant any conclusion that the mortgagee had relinquished his security" 63. In fact, sub-section (3) of section 47 lends support to this method of payment to the mortgagee. If the official receiver proceeds to sell the security, the court first has to pay the amount at which the security was valued to the secured creditor out of the sale proceeds. Whatever may be the position in regard to the balance, in so far as the value of his assessment is concerned, he can be preferentially paid out of the sale proceeds.64. If the sale was valid, I fail to see how the mortgagee could be deprived of his security, particularly when he had not relinquished. The property was sold with a clear understanding that the mortgagee will be paid firm from the sale proceeds. This mode of realization of security is not, in my view, derogatory either to section 47 or to section 59 of the Act. 65. It was further held: "Sub-s. (3) of s. 47 of the Act does not come in the way of the official liquidator entertaining the application of the bank for payment of secured loans in accordance with the hypothecation agreement and the mortgage by deposit of title deeds, as proved by the bank. In the result, the bank is entitled to realize that amount on a preferential basis as a secured creditor notwithstanding the fact that it filed the affidavit indicating that it stands within liquidation but subject to the reservation of its security being continued." 66. A Division bench of the Gujarat High Court in Gujarat Steel Tube Employees Union & Anr. v. O.L. of Gujarat Steel Tubes Ltd. & Ors. [disposed of on 9.1.2006], held: "The Court is also of the view that simply because the secured creditors participate in the sale proceedings undertaken by the Court and they also became the members of the Sale Committee constituted pursuant to the directions issued by the Court does not mean that they have exercised their option of remaining outside the winding up and they have relinquished their security. As a matter of fact, relinquishment of security by the secured creditors require a positive action on the part of the secured creditors. They have never stated in any of the proceedings that they are relinquishing their securities. On the contrary, they have made it clear that they remain outside the winding up and they participate in the sale proceeds only with a view to facilitate the sale proceeds so as to get the auction proceedings completed as expeditiously as possible. There is also substance in the say of the secured creditors that as soon as the assets of the companies are sold and realization is taken place, their securities are converted from the specified assets into cash and they have equal right in cash which is realized on sale of the assets of the Company in liquidation" 67. We agree with the said view.68.
### Response:
1
### Explanation:
Section 47 of the Provincial Insolvency Act is attracted by virtue of Section 529(1) of the Companies Act. Sub-section (2) of Section 47 would become applicable where a secured creditor voluntarily relinquishes his security for the general benefit of theenvisages a conscious act, i.e., an act where a person was aware of his right and then relinquishes the same. The same must be for the general benefit of the creditors. His action must lead to a conclusion that he, for one reason or the other, intended to stand in the queue for receiving money owed to him. It, however, does not stand obliterated only by the filing of an affidavit or proof of claim with the official liquidator. Such a claim had been filed pursuant to a notice issued by the official liquidator. If the creditor does not respond to the said notice, he would not be in a position to bring to the notice of the official liquidator, the existence of his(3) of Section 47 clearly envisages the position where he does not either realise or relinquish his security. He, in such a situation, may state in his Affidavit of Proof, the particulars of the security and value at which he assesses the same. The consequences therefor would ensue. If the Official Receiver proceeds to sell the security, the Court first has to pay the amount at which the security was valued to the secured creditor out of the salefact, sub-section (3) of section 47 lends support to this method of payment to the mortgagee. If the official receiver proceeds to sell the security, the court first has to pay the amount at which the security was valued to the secured creditor out of the sale proceeds. Whatever may be the position in regard to the balance, in so far as the value of his assessment is concerned, he can be preferentially paid out of the sale proceeds.64. If the sale was valid, I fail to see how the mortgagee could be deprived of his security, particularly when he had not relinquished. The property was sold with a clear understanding that the mortgagee will be paid firm from the sale proceeds. This mode of realization of security is not, in my view, derogatory either to section 47 or to section 59 of the Act.It was further(3) of s. 47 of the Act does not come in the way of the official liquidator entertaining the application of the bank for payment of secured loans in accordance with the hypothecation agreement and the mortgage by deposit of title deeds, as proved by the bank. In the result, the bank is entitled to realize that amount on a preferential basis as a secured creditor notwithstanding the fact that it filed the affidavit indicating that it stands within liquidation but subject to the reservation of its security being continued.A Division bench of the Gujarat High Court in Gujarat Steel Tube Employees Union & Anr. v. O.L. of Gujarat Steel Tubes Ltd. & Ors. [disposed of on 9.1.2006],Court is also of the view that simply because the secured creditors participate in the sale proceedings undertaken by the Court and they also became the members of the Sale Committee constituted pursuant to the directions issued by the Court does not mean that they have exercised their option of remaining outside the winding up and they have relinquished their security. As a matter of fact, relinquishment of security by the secured creditors require a positive action on the part of the secured creditors. They have never stated in any of the proceedings that they are relinquishing their securities. On the contrary, they have made it clear that they remain outside the winding up and they participate in the sale proceeds only with a view to facilitate the sale proceeds so as to get the auction proceedings completed as expeditiously as possible. There is also substance in the say of the secured creditors that as soon as the assets of the companies are sold and realization is taken place, their securities are converted from the specified assets into cash and they have equal right in cash which is realized on sale of the assets of the Company inWe agree with the said view.
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SHIVAJI YALLAPPA PATIL Vs. RANAJEET APPASAHEB PATIL | not rendering the contract voidable, makes it inequitable to enforce specific performance. Explanation 1.—Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b). Explanation 2.— The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract. (3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance. (4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party. 11. The possibility of injury to the interest of third party does not, by itself, disentitle the plaintiff from specific performance but it depends upon the facts and circumstances of each case which will be considered by the court in the exercise of its discretion. The court may properly exercise discretion to decree specific performance, in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance. 12. In the instant case, Respondent Nos. 1 and 2 filed an original suit for the specific performance of the contract on the ground that owners of the suit property transferred the entire possession of property to them after agreement to sell and it was done in pursuance of part performance. Hence, plaintiffs are entitled for the benefit of Section 53A of the Transfer of Property Act, 1882 (In short the TP Act). Section 53 A which was added in 1929 and imports into India a modified form of the equity of part performance as developed in England in Elizabeth Maddison vs. John Alderson (1883) 8 App Cases 467. The following postulates are sine qua non for basing a claim on Section 53 A of the TP act, 1882: There must be a contract to transfer for consideration any immovable property. The contract must be in writing signed by the transferor, or by someone on his behalf. The writing must be in such words from which the terms necessary to construe the transfer can be ascertained. The transferee must be in part performance of the contract take possession of the property, or of any part thereof. The transferee must have done some act in furtherance of the contract. The transferee must have performed or be willing to perform his part of the contract.13. It is well settled law that Section 53A of the TP Act confers no right on a party who was not willing to perform his part of the contract. A transferee has to prove that he was honestly ready and willing to perform his part under the contract. 14. In the present case, during the course of hearing, it is brought to our knowledge that both the trial court as well as the lower appellate court had proceeded to arrive at the conclusion that there was no delivery of possession in favour of the Respondent Nos. 1 and 2 herein as per the agreement to sell dated 28.05.1981 on the ground that there was no mention of delivery of possession. It is submitted that the said courts below had failed to appreciate the said judgment and decree dated 24.09.1987 of the learned Additional Munsiff, Hukkeri in O.S. No. 129 of 1984 in proper prospective which clearly shows that the said court having found the possession of Respondent Nos. 1 and 2 herein in respect of the said entire property including suit property had granted injunction in the matter and restrained the third party to interfere with the possession of Respondent Nos. 1 and 2 herein. Henceforth, Respondent Nos. 1 and 2 have been in possession of suit land against all other persons and can claim right of possession even against the subsequent purchaser. 15. In the present case, the whole case revolves around the one question whether Respondent Nos. 1 and 2 got the possession of entire suit land. It is undisputed fact that deceased husband of Respondent No.3, along with other owners in Survey No. 77, entered into an agreement with the Respondent Nos. 1 and 2 but later on Respondent No. 3 refused to execute the said agreement. In pursuance of the same, it is alleged that the possession of the entire land got transferred to Respondent Nos. 1 and 2. However, Respondent No. 3 herein denied this fact and alleged that possession of her share never transferred to the original plaintiffs. After perusal of the factual matrix of the entire case and peculiar facts, we are of the considered view that on the basis of the finding in OS No. 129 of 1984, it is well established that the present Respondent Nos. 1 and 2 were put into the possession of entire land. The decree passes by the Munsiff in the year 1987 regarding possession in an independent suit filed in the year 1984 is indicative of the fact that the plaintiffs/respondent Nos. 1 and 2 were in possession. Conclusion:- 16. In view of the foregoing discussion, we do not find any reason for not granting specific performance in favour of Respondent Nos. 1 and 2. Hence, in the interest of justice and since the Respondent Nos. 1 & 2 are in possession of suit land for long time, we do not find any illegality with the reasoned judgment passed by the High Court in granting specific performance in their favour subject to paying of the sale consideration by them as per the present prevailing market value within six months from today. | 0[ds]In the instant case, Respondent Nos. 1 and 2 filed an original suit for the specific performance of the contract on the ground that owners of the suit property transferred the entire possession of property to them after agreement to sell and it was done in pursuance of part performance. Hence, plaintiffs are entitled for the benefit of Section 53A of the Transfer of Property Act, 1882 (In short the TP Act)In view of the foregoing discussion, we do not find any reason for not granting specific performance in favour of Respondent Nos. 1 and 2. Hence, in the interest of justice and since the Respondent Nos. 1 & 2 are in possession of suit land for long time, we do not find any illegality with the reasoned judgment passed by the High Court in granting specific performance in their favour subject to paying of the sale consideration by them as per the present prevailing market value within six months from today. | 0 | 2,841 | 181 | ### 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:
not rendering the contract voidable, makes it inequitable to enforce specific performance. Explanation 1.—Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b). Explanation 2.— The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract. (3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance. (4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party. 11. The possibility of injury to the interest of third party does not, by itself, disentitle the plaintiff from specific performance but it depends upon the facts and circumstances of each case which will be considered by the court in the exercise of its discretion. The court may properly exercise discretion to decree specific performance, in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance. 12. In the instant case, Respondent Nos. 1 and 2 filed an original suit for the specific performance of the contract on the ground that owners of the suit property transferred the entire possession of property to them after agreement to sell and it was done in pursuance of part performance. Hence, plaintiffs are entitled for the benefit of Section 53A of the Transfer of Property Act, 1882 (In short the TP Act). Section 53 A which was added in 1929 and imports into India a modified form of the equity of part performance as developed in England in Elizabeth Maddison vs. John Alderson (1883) 8 App Cases 467. The following postulates are sine qua non for basing a claim on Section 53 A of the TP act, 1882: There must be a contract to transfer for consideration any immovable property. The contract must be in writing signed by the transferor, or by someone on his behalf. The writing must be in such words from which the terms necessary to construe the transfer can be ascertained. The transferee must be in part performance of the contract take possession of the property, or of any part thereof. The transferee must have done some act in furtherance of the contract. The transferee must have performed or be willing to perform his part of the contract.13. It is well settled law that Section 53A of the TP Act confers no right on a party who was not willing to perform his part of the contract. A transferee has to prove that he was honestly ready and willing to perform his part under the contract. 14. In the present case, during the course of hearing, it is brought to our knowledge that both the trial court as well as the lower appellate court had proceeded to arrive at the conclusion that there was no delivery of possession in favour of the Respondent Nos. 1 and 2 herein as per the agreement to sell dated 28.05.1981 on the ground that there was no mention of delivery of possession. It is submitted that the said courts below had failed to appreciate the said judgment and decree dated 24.09.1987 of the learned Additional Munsiff, Hukkeri in O.S. No. 129 of 1984 in proper prospective which clearly shows that the said court having found the possession of Respondent Nos. 1 and 2 herein in respect of the said entire property including suit property had granted injunction in the matter and restrained the third party to interfere with the possession of Respondent Nos. 1 and 2 herein. Henceforth, Respondent Nos. 1 and 2 have been in possession of suit land against all other persons and can claim right of possession even against the subsequent purchaser. 15. In the present case, the whole case revolves around the one question whether Respondent Nos. 1 and 2 got the possession of entire suit land. It is undisputed fact that deceased husband of Respondent No.3, along with other owners in Survey No. 77, entered into an agreement with the Respondent Nos. 1 and 2 but later on Respondent No. 3 refused to execute the said agreement. In pursuance of the same, it is alleged that the possession of the entire land got transferred to Respondent Nos. 1 and 2. However, Respondent No. 3 herein denied this fact and alleged that possession of her share never transferred to the original plaintiffs. After perusal of the factual matrix of the entire case and peculiar facts, we are of the considered view that on the basis of the finding in OS No. 129 of 1984, it is well established that the present Respondent Nos. 1 and 2 were put into the possession of entire land. The decree passes by the Munsiff in the year 1987 regarding possession in an independent suit filed in the year 1984 is indicative of the fact that the plaintiffs/respondent Nos. 1 and 2 were in possession. Conclusion:- 16. In view of the foregoing discussion, we do not find any reason for not granting specific performance in favour of Respondent Nos. 1 and 2. Hence, in the interest of justice and since the Respondent Nos. 1 & 2 are in possession of suit land for long time, we do not find any illegality with the reasoned judgment passed by the High Court in granting specific performance in their favour subject to paying of the sale consideration by them as per the present prevailing market value within six months from today.
### Response:
0
### Explanation:
In the instant case, Respondent Nos. 1 and 2 filed an original suit for the specific performance of the contract on the ground that owners of the suit property transferred the entire possession of property to them after agreement to sell and it was done in pursuance of part performance. Hence, plaintiffs are entitled for the benefit of Section 53A of the Transfer of Property Act, 1882 (In short the TP Act)In view of the foregoing discussion, we do not find any reason for not granting specific performance in favour of Respondent Nos. 1 and 2. Hence, in the interest of justice and since the Respondent Nos. 1 & 2 are in possession of suit land for long time, we do not find any illegality with the reasoned judgment passed by the High Court in granting specific performance in their favour subject to paying of the sale consideration by them as per the present prevailing market value within six months from today.
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KAPILABEN AMBALAL PATEL & ORS Vs. THE STATE OF GUJARAT & ANR | after by the late Ambalal Purshottamdas Patels constituted attorney and that therefore it was not necessary for them to approach this Honble Court in the matter. The petitioners are agriculturists and not conversant with the intricacies of law were not aware that on Ambalal Purshottamdas Patels death the Authority of his constituted attorney Kamlesh Parekh had come to an end. Though Kamleshbhai Parekh has informed the petitioners of the objections likely to be raised on behalf of the appellants in the said Letters Patent Appeal, he has also informed the petitioners that he was not aware that he could not rely upon the power of attorney given by Ambalal Purshottamdas Patel after his death and in fact has regretted putting the petitioners in the awkward position. The petitioners submit that under the circumstances the time taken in the prosecution of the Special Civil Application No. 8402 of 1999 and the said Civil Application and the Letters Patent Appeal by the respondents be excluded in considering the time taken by the petitioners to approach this Honble Court in the matter. The petitioners submit that they are approaching this Honble Court as expeditiously as the circumstances of the case would permit. The petitioners further submit that the delay, if any, on the part of the petitioners in approaching this Honble Court has not in any manner caused any prejudice or detriment to the respondents. The petitioners submit that this Honble Court be pleased to entertain the Petition and not to reject it on the ground of delay, acquiescence or laches. (emphasis supplied) The earlier part of the writ petition deals with the factual background and assertion that the appellants still continue to be in physical possession of the stated land and was using it for agricultural purpose, as can be noticed from the Revenue record. Indeed, the Revenue record may have presumptive value, but that can be rebutted, which in this case has been done by the respondent-State by relying on the Possession Panchnama and the subsequent proceedings including the application submitted to the Mamlatdar, Baroda City in right earnest for entering the name of the State Government in the Revenue records, dated 11.4.1986, and pursuant to which entries had been effected on 26.9.1989 and 15.2.2000 respectively. 16. Obviously, therefore, the appellants thought of the last attempt to assail the Possession Panchnama dated 20.3.1986 itself without seeking any further relief of declaration regarding the earlier proceedings which had attained finality. 17. The Division Bench, in our opinion, therefore, was right in concluding that the writ petition filed by the appellants after lapse of 14 years was hopelessly barred by delay and suffered from laches. We are in agreement with the said view taken by the High Court in the peculiar facts of the present case. 18. Strikingly, in this appeal by special leave, a vague ground has been raised to challenge the said conclusion of the Division Bench. Further, no substantial question of law has been formulated in the appeal by special leave in that regard. Furthermore, in the grounds all that is asserted is that the High Court erred in holding that there was delay of 14 years in filing of writ petition and in not appreciating that the notice under Section 10(5) of the 1976 Act, dated 23.1.1986, was not served upon Ambalal Parsottambhai Patel as he had already expired on 31.12.1985 and the notice sent to him was returned back on 2.2.1986 unserved with remark said owner has expired. Further, the legal heirs of Ambalal Parsottambhai Patel ought to have been served with the said notice. From the factual matrix already stated hitherto, these grounds, in our opinion, are of no avail to the appellants. It is manifest from the acknowledgement produced by the respondent-State that the first notice under Section 10(5) issued to Ambalal Parsottambhai Patel was duly served on 26.12.1985. By the time second notice under Section 10(5) was issued on 23.1.1986, Ambalal Parsottambhai Patel had died (on 31.12.1985). The second notice was also issued to others, namely, Bhikhabhai Maganbhai Patel, Natvarbhai Bhailalbhai Patel and Jayantibhai Babarbhai Patel. Be that as it may, we are not inclined to reverse the conclusion recorded by the Division Bench of the High Court that the writ petition filed by the appellants was hopelessly delayed and suffered from laches. That is a possible view in the facts of the present case. 19. The respondents had additionally relied on the decision of this Court in Larsen & Toubro Ltd. (supra), wherein the Court adverted to the exposition in Balwant Narayan Bhagde vs. M.D. Bhagwat & Ors. (1976) 1 SCC 700 ( paragraph 28) , Balmokand Khatri Educational and Industrial Trust vs. State of Punjab (1996) 4 SCC 212 ( paragraph 4) and Tamil Nadu Housing Board vs. A. Viswam (Dead) by LRs. (1996) 8 SCC 259 ( paragraph 9) regarding the settled legal position that it is difficult to take physical possession of the land under compulsory acquisition. Further, that the normal mode of taking possession is drafting the Panchnama in the presence of Panchas and taking possession and giving delivery to the beneficiaries is accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession. Reliance is also placed on paragraphs 14 to 16 of Bhaskar Jyoti Sarma (supra). However, it is not necessary for us to dilate on these aspects having agreed with the conclusion recorded by the Division Bench of the High Court that the writ petition filed in the year 2001 by the appellants with limited relief of questioning the Possession Panchnama dated 20.3.1986, suffered from laches. The Division Bench of the High Court noted that the learned single Judge completely glossed over this crucial aspect of the matter, and we find no reason to depart from that conclusion. 20. In view of the above, it is not necessary for us to dilate on other contentions raised by the appellants or by the respondent- State on merits. | 0[ds]15. After cogitating over the rival submissions and the relevant record, it is manifest that the appellants have resorted to all possible pleas. First, the application for exemption under Section 20 of the 1976 Act was moved, which was allowed by the competent authority on 6.3.1980, but the appellants chose to withdraw the same. That request was eventually granted by the competent authority on 1.2.1985. The appellants then waited till the notification under Section 10(3) of the 1976 Act was issued on 25.7.1985 and opted for remedy of exemption under Section 21 by filing an application on 22.8.1985. That came to be rejected on 15.12.1986 against which decision a review application was filed only by Devikaben Chandubhai Bhailalbhai alongwith her three siblings, after lapse of two years. Nevertheless, the same was entertained by the authority concerned and after quashing the entire order in appeal, a remand order came to be passed on 19.9.1998. Even in review proceedings, the fact of State authorities having taken forcible possession of the surplus/excess land on 20.3.1986 vide Possession Panchnama, was reiterated, as can be discerned from the order dated 19.9.1998. It is not clear as to why the appellants did not take clue at least from such unambiguous stand taken by the respondent and forthwith proceed to assail the stated stand of the State (of having taken over forcible possession on 20.3.1986). Besides taking possession, the respondent had determined the compensation for which notice under Section 11 was issued to the appellants on 17.5.1986. It is not the case of the appellants that they were unaware even about that development until 2001. No such plea is taken by the appellants in the writ petition filed in the year 2001. It is only after the competent authority declined to issue No Objection Certificate vide order dated 19.5.1999, they thought of changing the track by taking advantage of the repeal Act having come into force on 30.3.1999. However, they chose to file the writ petition only in the name of Kamleshbhai Parekh in the capacity of Power of Attorney holder of late Ambalal Parsottambhai Patel, being SCA No. 8402/1999, little realizing that the authority given by Ambalal Parsottambhai Patel had come to an end after his demise on 31.12.1985 itself. No doubt the learned single Judge was persuaded to quash the entire proceedings which had culminated with taking forcible possession of the surplus/excess land vide Possession Panchnama dated 20.3.1986, being vitiated and/or abated. However, it is only after the other appellants realised that the decision of the learned single Judge in SCA No. 8402/1999 was flawed and has been justly assailed by the State Government on that count by way of LPA No. 460/2002, they chose to file the present writ petition (SCA No. 12602/2001). In the said writ petition, however, no disclosure has been made as to why these appellants did not assail the Possession Panchnama dated 20.3.1986 in earlier point of time including when the existence of this document was specifically pleaded by the respondent-State, in particular, in the review applicationThe earlier part of the writ petition deals with the factual background and assertion that the appellants still continue to be in physical possession of the stated land and was using it for agricultural purpose, as can be noticed from the Revenue record. Indeed, the Revenue record may have presumptive value, but that can be rebutted, which in this case has been done by the respondent-State by relying on the Possession Panchnama and the subsequent proceedings including the application submitted to the Mamlatdar, Baroda City in right earnest for entering the name of the State Government in the Revenue records, dated 11.4.1986, and pursuant to which entries had been effected on 26.9.1989 and 15.2.2000 respectively16. Obviously, therefore, the appellants thought of the last attempt to assail the Possession Panchnama dated 20.3.1986 itself without seeking any further relief of declaration regarding the earlier proceedings which had attained finality17. The Division Bench, in our opinion, therefore, was right in concluding that the writ petition filed by the appellants after lapse of 14 years was hopelessly barred by delay and suffered from laches. We are in agreement with the said view taken by the High Court in the peculiar facts of the present case18. Strikingly, in this appeal by special leave, a vague ground has been raised to challenge the said conclusion of the Division Bench. Further, no substantial question of law has been formulated in the appeal by special leave in that regard. Furthermore, in the grounds all that is asserted is that the High Court erred in holding that there was delay of 14 years in filing of writ petition and in not appreciating that the notice under Section 10(5) of the 1976 Act, dated 23.1.1986, was not served upon Ambalal Parsottambhai Patel as he had already expired on 31.12.1985 and the notice sent to him was returned back on 2.2.1986 unserved with remark said owner has expired. Further, the legal heirs of Ambalal Parsottambhai Patel ought to have been served with the said notice. From the factual matrix already stated hitherto, these grounds, in our opinion, are of no avail to the appellants. It is manifest from the acknowledgement produced by the respondent-State that the first notice under Section 10(5) issued to Ambalal Parsottambhai Patel was duly served on 26.12.1985. By the time second notice under Section 10(5) was issued on 23.1.1986, Ambalal Parsottambhai Patel had died (on 31.12.1985). The second notice was also issued to others, namely, Bhikhabhai Maganbhai Patel, Natvarbhai Bhailalbhai Patel and Jayantibhai Babarbhai Patel. Be that as it may, we are not inclined to reverse the conclusion recorded by the Division Bench of the High Court that the writ petition filed by the appellants was hopelessly delayed and suffered from laches. That is a possible view in the facts of the present caseHowever, it is not necessary for us to dilate on these aspects having agreed with the conclusion recorded by the Division Bench of the High Court that the writ petition filed in the year 2001 by the appellants with limited relief of questioning the Possession Panchnama dated 20.3.1986, suffered from laches. The Division Bench of the High Court noted that the learned single Judge completely glossed over this crucial aspect of the matter, and we find no reason to depart from that conclusion20. In view of the above, it is not necessary for us to dilate on other contentions raised by the appellants or by the respondent- State on merits. | 0 | 6,694 | 1,194 | ### Instruction:
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after by the late Ambalal Purshottamdas Patels constituted attorney and that therefore it was not necessary for them to approach this Honble Court in the matter. The petitioners are agriculturists and not conversant with the intricacies of law were not aware that on Ambalal Purshottamdas Patels death the Authority of his constituted attorney Kamlesh Parekh had come to an end. Though Kamleshbhai Parekh has informed the petitioners of the objections likely to be raised on behalf of the appellants in the said Letters Patent Appeal, he has also informed the petitioners that he was not aware that he could not rely upon the power of attorney given by Ambalal Purshottamdas Patel after his death and in fact has regretted putting the petitioners in the awkward position. The petitioners submit that under the circumstances the time taken in the prosecution of the Special Civil Application No. 8402 of 1999 and the said Civil Application and the Letters Patent Appeal by the respondents be excluded in considering the time taken by the petitioners to approach this Honble Court in the matter. The petitioners submit that they are approaching this Honble Court as expeditiously as the circumstances of the case would permit. The petitioners further submit that the delay, if any, on the part of the petitioners in approaching this Honble Court has not in any manner caused any prejudice or detriment to the respondents. The petitioners submit that this Honble Court be pleased to entertain the Petition and not to reject it on the ground of delay, acquiescence or laches. (emphasis supplied) The earlier part of the writ petition deals with the factual background and assertion that the appellants still continue to be in physical possession of the stated land and was using it for agricultural purpose, as can be noticed from the Revenue record. Indeed, the Revenue record may have presumptive value, but that can be rebutted, which in this case has been done by the respondent-State by relying on the Possession Panchnama and the subsequent proceedings including the application submitted to the Mamlatdar, Baroda City in right earnest for entering the name of the State Government in the Revenue records, dated 11.4.1986, and pursuant to which entries had been effected on 26.9.1989 and 15.2.2000 respectively. 16. Obviously, therefore, the appellants thought of the last attempt to assail the Possession Panchnama dated 20.3.1986 itself without seeking any further relief of declaration regarding the earlier proceedings which had attained finality. 17. The Division Bench, in our opinion, therefore, was right in concluding that the writ petition filed by the appellants after lapse of 14 years was hopelessly barred by delay and suffered from laches. We are in agreement with the said view taken by the High Court in the peculiar facts of the present case. 18. Strikingly, in this appeal by special leave, a vague ground has been raised to challenge the said conclusion of the Division Bench. Further, no substantial question of law has been formulated in the appeal by special leave in that regard. Furthermore, in the grounds all that is asserted is that the High Court erred in holding that there was delay of 14 years in filing of writ petition and in not appreciating that the notice under Section 10(5) of the 1976 Act, dated 23.1.1986, was not served upon Ambalal Parsottambhai Patel as he had already expired on 31.12.1985 and the notice sent to him was returned back on 2.2.1986 unserved with remark said owner has expired. Further, the legal heirs of Ambalal Parsottambhai Patel ought to have been served with the said notice. From the factual matrix already stated hitherto, these grounds, in our opinion, are of no avail to the appellants. It is manifest from the acknowledgement produced by the respondent-State that the first notice under Section 10(5) issued to Ambalal Parsottambhai Patel was duly served on 26.12.1985. By the time second notice under Section 10(5) was issued on 23.1.1986, Ambalal Parsottambhai Patel had died (on 31.12.1985). The second notice was also issued to others, namely, Bhikhabhai Maganbhai Patel, Natvarbhai Bhailalbhai Patel and Jayantibhai Babarbhai Patel. Be that as it may, we are not inclined to reverse the conclusion recorded by the Division Bench of the High Court that the writ petition filed by the appellants was hopelessly delayed and suffered from laches. That is a possible view in the facts of the present case. 19. The respondents had additionally relied on the decision of this Court in Larsen & Toubro Ltd. (supra), wherein the Court adverted to the exposition in Balwant Narayan Bhagde vs. M.D. Bhagwat & Ors. (1976) 1 SCC 700 ( paragraph 28) , Balmokand Khatri Educational and Industrial Trust vs. State of Punjab (1996) 4 SCC 212 ( paragraph 4) and Tamil Nadu Housing Board vs. A. Viswam (Dead) by LRs. (1996) 8 SCC 259 ( paragraph 9) regarding the settled legal position that it is difficult to take physical possession of the land under compulsory acquisition. Further, that the normal mode of taking possession is drafting the Panchnama in the presence of Panchas and taking possession and giving delivery to the beneficiaries is accepted mode of taking possession of the land. Subsequent thereto, the retention of possession would tantamount only to illegal or unlawful possession. Reliance is also placed on paragraphs 14 to 16 of Bhaskar Jyoti Sarma (supra). However, it is not necessary for us to dilate on these aspects having agreed with the conclusion recorded by the Division Bench of the High Court that the writ petition filed in the year 2001 by the appellants with limited relief of questioning the Possession Panchnama dated 20.3.1986, suffered from laches. The Division Bench of the High Court noted that the learned single Judge completely glossed over this crucial aspect of the matter, and we find no reason to depart from that conclusion. 20. In view of the above, it is not necessary for us to dilate on other contentions raised by the appellants or by the respondent- State on merits.
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25.7.1985 and opted for remedy of exemption under Section 21 by filing an application on 22.8.1985. That came to be rejected on 15.12.1986 against which decision a review application was filed only by Devikaben Chandubhai Bhailalbhai alongwith her three siblings, after lapse of two years. Nevertheless, the same was entertained by the authority concerned and after quashing the entire order in appeal, a remand order came to be passed on 19.9.1998. Even in review proceedings, the fact of State authorities having taken forcible possession of the surplus/excess land on 20.3.1986 vide Possession Panchnama, was reiterated, as can be discerned from the order dated 19.9.1998. It is not clear as to why the appellants did not take clue at least from such unambiguous stand taken by the respondent and forthwith proceed to assail the stated stand of the State (of having taken over forcible possession on 20.3.1986). Besides taking possession, the respondent had determined the compensation for which notice under Section 11 was issued to the appellants on 17.5.1986. It is not the case of the appellants that they were unaware even about that development until 2001. No such plea is taken by the appellants in the writ petition filed in the year 2001. It is only after the competent authority declined to issue No Objection Certificate vide order dated 19.5.1999, they thought of changing the track by taking advantage of the repeal Act having come into force on 30.3.1999. However, they chose to file the writ petition only in the name of Kamleshbhai Parekh in the capacity of Power of Attorney holder of late Ambalal Parsottambhai Patel, being SCA No. 8402/1999, little realizing that the authority given by Ambalal Parsottambhai Patel had come to an end after his demise on 31.12.1985 itself. No doubt the learned single Judge was persuaded to quash the entire proceedings which had culminated with taking forcible possession of the surplus/excess land vide Possession Panchnama dated 20.3.1986, being vitiated and/or abated. However, it is only after the other appellants realised that the decision of the learned single Judge in SCA No. 8402/1999 was flawed and has been justly assailed by the State Government on that count by way of LPA No. 460/2002, they chose to file the present writ petition (SCA No. 12602/2001). In the said writ petition, however, no disclosure has been made as to why these appellants did not assail the Possession Panchnama dated 20.3.1986 in earlier point of time including when the existence of this document was specifically pleaded by the respondent-State, in particular, in the review applicationThe earlier part of the writ petition deals with the factual background and assertion that the appellants still continue to be in physical possession of the stated land and was using it for agricultural purpose, as can be noticed from the Revenue record. Indeed, the Revenue record may have presumptive value, but that can be rebutted, which in this case has been done by the respondent-State by relying on the Possession Panchnama and the subsequent proceedings including the application submitted to the Mamlatdar, Baroda City in right earnest for entering the name of the State Government in the Revenue records, dated 11.4.1986, and pursuant to which entries had been effected on 26.9.1989 and 15.2.2000 respectively16. Obviously, therefore, the appellants thought of the last attempt to assail the Possession Panchnama dated 20.3.1986 itself without seeking any further relief of declaration regarding the earlier proceedings which had attained finality17. The Division Bench, in our opinion, therefore, was right in concluding that the writ petition filed by the appellants after lapse of 14 years was hopelessly barred by delay and suffered from laches. We are in agreement with the said view taken by the High Court in the peculiar facts of the present case18. Strikingly, in this appeal by special leave, a vague ground has been raised to challenge the said conclusion of the Division Bench. Further, no substantial question of law has been formulated in the appeal by special leave in that regard. Furthermore, in the grounds all that is asserted is that the High Court erred in holding that there was delay of 14 years in filing of writ petition and in not appreciating that the notice under Section 10(5) of the 1976 Act, dated 23.1.1986, was not served upon Ambalal Parsottambhai Patel as he had already expired on 31.12.1985 and the notice sent to him was returned back on 2.2.1986 unserved with remark said owner has expired. Further, the legal heirs of Ambalal Parsottambhai Patel ought to have been served with the said notice. From the factual matrix already stated hitherto, these grounds, in our opinion, are of no avail to the appellants. It is manifest from the acknowledgement produced by the respondent-State that the first notice under Section 10(5) issued to Ambalal Parsottambhai Patel was duly served on 26.12.1985. By the time second notice under Section 10(5) was issued on 23.1.1986, Ambalal Parsottambhai Patel had died (on 31.12.1985). The second notice was also issued to others, namely, Bhikhabhai Maganbhai Patel, Natvarbhai Bhailalbhai Patel and Jayantibhai Babarbhai Patel. Be that as it may, we are not inclined to reverse the conclusion recorded by the Division Bench of the High Court that the writ petition filed by the appellants was hopelessly delayed and suffered from laches. That is a possible view in the facts of the present caseHowever, it is not necessary for us to dilate on these aspects having agreed with the conclusion recorded by the Division Bench of the High Court that the writ petition filed in the year 2001 by the appellants with limited relief of questioning the Possession Panchnama dated 20.3.1986, suffered from laches. The Division Bench of the High Court noted that the learned single Judge completely glossed over this crucial aspect of the matter, and we find no reason to depart from that conclusion20. In view of the above, it is not necessary for us to dilate on other contentions raised by the appellants or by the respondent- State on merits.
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Ashoka Kumar Thakur Vs. Union Of India & Others | legislation itself was intended to please a section of the community as part of the vote catching mechanism is not a legally acceptable plea and it is only to be rejected. 193. The quantum of reservation provided under the Act 5 of 2007 is based on the detailed facts available with the Parliament. Various commissions have been in operation determining as to who shall form the SEBCs. Though a caste-wise census is not available, several other data and statistics are available. In the case of Indra Sawhney (supra), the Mandal Commission was accepted in principle though the details and findings of the commissions were not fully accepted by this Court. 27% of reservation in the matter of employment was accepted by this Court. Petitioners have not produced any documents to show that the backward class citizens are less than 27%, vis-à-vis, the total population of this country or that there was no requirement of 27% reservation for them. The Parliament is invested with the power of legislation and must be deemed to have taken into consideration all relevant circumstances when passing a legislation of this nature. It is futile to contend whether Parliament was not aware of the statistical details of the population of this country and, therefore, we do not think that 27% reservation provided in the Act is illegal or on that account, the Act itself is liable to be struck down. Questions: 1. Whether the Ninety-Third Amendment of the Constitution is against the basic structure of the Constitution? The Constitution (Ninety-Third Amendment) Act, 2005 does not violate the basic structure of the Constitution so far as it relates to the state maintained institutions and aided educational institutions. Question whether the Constitution (Ninety-Third Amendment) Act, 2005 would be constitutionally valid or not so far as private unaided educational institutions are concerned, is left open to be decided in an appropriate case. (Paragraph 79) 2. Whether Articles 15(4) and 15(5) are mutually contradictory, hence Article 15(5) is to be held ultra vires? Article 15(5) is constitutionally valid and Articles 15(4) and 15(5) are not mutually contradictory. (Paragraph 100) 3. Whether exclusion of minority educational institutions from Article 15(5) is violative of Article 14 of Constitution? Exclusion of minority educational institutions from Article 15(5) is not violative of Article 14 of the Constitution as the minority educational institutions, by themselves, are a separate class and their rights are protected by other constitutional provisions. (Paragraph 102) 4. Whether the Constitutional Amendment followed the procedure prescribed under Article 368 of the Constitution? The Ninety-Third Amendment of the Constitution does not affect the executive power of the State under Article 162 of the Constitution and hence, procedure prescribed under Proviso to Article 368(2) is not required to be followed. (Paragraph 103) 5. Whether the Act 5 of 2007 is constitutionally invalid in view of definition of Backward Class and whether the identification of such Backward Class based on caste is constitutionally valid? Identification of backward class is not done solely based on caste. Other parameters are followed in identifying the backward class. Therefore, Act 5 of 2007 is not invalid for this reason. (Paragraph 142) 6. Whether Creamy Layer is to be excluded from SEBCs? Creamy Layer is to be excluded from SEBCs. The identification of SEBCs will not be complete and without the exclusion of creamy layer such identification may not be valid under Article 15(1) of the Constitution. (Paragraph 152) 7. What should be the para-meters for determining the creamy layer group? The parameters contained in the Office Memorandum issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) on 08.09.1993 may be applied. And the definition of Other Backward Classes under Section 2(g) of the Act 5 of 2007 should be deemed to mean class or classes of citizens who are socially and educationally backward, and so determined by the Central Government; and if the determination is with reference to caste, then the backward class shall be after excluding the creamy layer. (Paragraphs 153 and 155) 8. Whether the creamy layer principle is applicable to Scheduled Tribes and Scheduled Castes? Creamy Layer principle is not applicable to Scheduled Castes and Scheduled Tribes. (Paragraph 163) 9. Whether the principles laid down by the United States Supreme Court for affirmative action such as suspect legislation, strict scrutiny and compelling State necessity are applicable to principles of reservation or other affirmative action contemplated under Article 15(5) of the Constitution? The principles laid down by the United States Supreme Court such as suspect legislation, strict scrutiny and compelling State necessity are not applicable for challenging the validity of Act 5 of 2007 or reservations or other affirmative action contemplated under Article 15(5) of the Constitution. (Paragraphs 184) 10. Whether delegation of power to the Union Government to determine as to who shall be the backward class is constitutionally valid? The delegation of power to the Union Government to determine as to who shall be the other backward classes is not excessive delegation. Such delegation is constitutionally valid. (Paragraph 186) 11. Whether the Act is invalid as there is no time limit prescribed for its operation and no periodical review is contemplated? The Act 5 of 2007 is not invalid for the reason that there is no time limit prescribed for its operation, but a review can be made after a period of 10 years. (Paragraph 187) 12. What shall be the educational standard to be prescribed to find out whether any class is educationally backward? The contention that educational standard of matriculation or (10+2) should be the benchmark to find out whether any class is educationally backward is rejected. (Paragraph 189) 13. Whether the quantum of reservation provided for in the Act is valid and whether 27% of seats for SEBC was required to be reserved? 27% of seats for other backward classes is not illegal and the Parliament must be deemed to have taken into consideration all relevant circumstances when fixing the 27% reservation.(Paragraph 193) | 0[ds]44. There is vital distinction between the vesting of a power and the exercise of power and the manner of its exercise. It would only enable the Parliament and the State legislatures to make special provisions by law for enforcement of any socially and educationally backward class of citizens or for Scheduled Castes and Scheduled Tribes relating to their admission to educational institutions including private educational institutions46. The Ninety-Third Constitutional Amendment does not specifically or impliedly make any change in Article 162. Article 15(5) does not seek to make any change in Article 162 either directly or indirectly. The field of legislation as to education was in Entry 11 of List II. By virtue of the 42nd Amendment of the Constitution, education, which was in Entry 11 in List II, was deleted and inserted as Entry 25 in List III. The executive power of the State is not touched by the present Constitutional Amendment47. Article 15(5) does not abrogate the fundamental right enshrined under Article 19(1)(g). If at all there is an abridgement of Fundamental Right, it is in a limited area of admission to educational institutions and such abridgement does not violate the basic structure of the Constitution. In any way, Constitutional Amendments giving effect to Directive Principles of the State Policy would not offend the basic structure of the Constitution.48. The Right to Equality enshrined in our Constitution is not merely a formal right or a vacuous declaration. Affirmative action though apparently discriminatory is calculated to produce equality on a broader basis. By eliminating de facto inequalities and placing the weaker sections of the community on a footing of equality with the stronger and more powerful sections so that each member of the community whatever is his birth, occupation or social position may be, enjoys equal opportunity of using to the full, his natural endowments of physique, of character and of intelligence.54. It was held in E.V. Chinnaiah Vs. State of Andhra Pradesh & Ors., that the SCs and STs form a single class. The observations in Nagarajs case (supra) cannot be construed as requiring exclusion of creamy layer in SCs and STs. Creamy layer principle was applied for the identification of backward classes of citizens. And it was specifically held in Indra Sawhneys case, (supra) that the above discussion was confined to Other Backward Classes and has no relevance in the case of Scheduled Tribes and Scheduled Castes. The observations of the Supreme Court in Nagarajs case (supra) should not be read as conflicting with the decision in Indra Sawhneys case (supra). The observations in Nagarajs case (supra) as regards SCs and STs are obiter. In regard to SCs and STs, there can be no concept of creamy layer79. The Constitution (Ninety-Third Amendment) Act, 2005, by which clause (5) was added to Article 15 of the Constitution, is an enabling provision which states that nothing in Article 15 or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to the educational institutions including private educational institutions, whether aided or unaided by the State. Of course, minority educational institutions referred to in clause (1) of Article 30 are excluded. Thus, the newly added clause (5) of Article 15 is sought to be applied to educational institutions whether aided or unaided. In other words, this newly added constitutional provision would enable the State to make any special provision by law for admission in private educational institutions whether aided or unaided. In all the petitions which have been filed before us the main challenge is against Act 5 of 2007. Act 5 of 2007 has been enacted to provide reservation of seats for Scheduled Castes, Scheduled Tribes and SEBCs of citizens in Central Educational Institutions. The Central Educational Institution has been defined under Section 2(d) of the Act. They are institutions established or incorporated by or under the Central Act or set up by an Act of Parliament or deemed Universities maintained by or receiving aid from the Central Government or institutions maintained by or receiving aid from the Central Government or educational institutions set up by the Central Government under the Societies Registration Act, 1860. Act 5 of 2007 is not intended to provide reservation in private unaided educational institutions. None of the private unaided educational institutions have filed petitions before us challenging the Ninety-Third Constitutional Amendment. Though the learned counsel appearing for the petitioners have challenged the Ninety-Third Constitutional Amendment on various grounds, they were vis-à-vis the challenge to Act 5 of 2007. The counter to the challenge by the learned Solicitor General as well as by Shri K. Parasaran, learned Senior Counsel was also in that context. We do not want to enter a finding as to whether the Ninety-Third Constitutional Amendment is violative of the basic structure of the Constitution so far as it relates to private unaided educational institutions. In the absence of challenge by private unaided educational institutions, it would not be proper to pronounce upon the constitutional validity of that part of the Constitutional Amendment. As the main challenge in these various petitions was only regarding the provisions of Act 5 of 2007, which related to state maintained institutions, the challenge to the Ninety-Third Constitutional Amendment so far as it relates to private unaided educational institutions, does not strictly arise in these proceedings. In the absence of challenge by private unaided institutions, it may not be proper for this Court to decide whether the Ninety-Third Constitutional Amendment is violative of the basic structure of the Constitution so far as it relates to private unaided educational institutions merely because we are considering its validity in the context of Act 5 of 2007. We feel that such questions could be decided as the main questions that are involved in these petitions are specific regarding Act 5 of 2007, we leave open the question as to whether the Ninety-Third Amendment to the Constitution by which sub-clause (5) was inserted is violative of the basic structure doctrine or not so far as it relates to private unaided educational institutions to be decided in other appropriate cases. We deal only with the question of whether the Ninety-Third Constitutional Amendment is constitutionally valid so far as it relates to the state maintained institutions and aided educational institutions.92. The basic structure of the Constitution is to be taken as a larger principle on which the Constitution itself is framed and some of the illustrations given as to what constitutes the basic structure of the Constitution would show that they are not confined to the alteration or modification of any of the Fundamental Rights alone or any of the provisions of the Constitution. Of course, if any of the basic rights enshrined in the Constitution are completely taken out, it may be argued that it amounts to alteration of the Basic Structure of the Constitution. For example, the federal character of the Constitution is considered to be the basic structure of the Constitution. There are large number of provisions in the Constitution dealing with the federal character of the Constitution. If any one of the provisions is altered or modified, that does not amount to the alteration of the basic structure of the Constitution. Various fundamental rights are given in the Constitution dealing with various aspects of human life. The Constitution itself sets out principles for an expanding future and is obligated to endure for future ages to come and consequently it has to be adapted to the various changes that may take place in human affairs.95. If any Constitutional amendment is made which moderately abridges or alters the equality principle or the principles under Article 19(1)(g), it cannot be said that it violates the basic structure of the Constitution. If such a principle is accepted, our Constitution would not be able to adapt itself to the changing conditions of a dynamic human society. Therefore, the plea raised by the Petitioners that the present Constitutional Ninety-Third Amendment Act, 2005 alters the basic structure of the constitution is of no force. Moreover, the interpretation of the Constitution shall not be in a narrow pedantic way.97. Therefore, we hold that the Ninety-Third Amendment to the Constitution does not violate the basic structure of the Constitution so far as it relates to aided educational institutions. Question whether reservation could be made for SCs, STs or SEBCs in private unaided educational institutions on the basis of the Ninety-Third Constitutional Amendment; or whether reservation could be given in such institutions; or whether any such legislation would be violative of Article 19(1)(g) or Article 14 of the Constitution; or whether the Ninety-Third Constitutional Amendment which enables the State Legislatures or Parliament to make such legislation - are all questions to be decided in a properly constituted lis between the affected parties and others who support such legislation.100. Both Article 15(4) and 15(5) are enabling provisions. Article 15(4) was introduced when the Communal G.O. in the State of Madras was struck down by this Court in Champakam Dorairajans case (supra). In Unni Krishnan (supra), this Court held that Article 19(1)(g) is not attracted for establishing and running educational institutions. However, in T.M.A. Pai Foundation case, (supra), it was held that the right to establish and running educational institutions is an occupation within the meaning of Article 19(1)(g). The scope of the decision in T.M.A. Pai Foundations case was later explained in P.A. Inamdars case, (supra). It was held that as regards unaided institutions, the State has no control and such institutions are free to admit students of their own choice. The said decision necessitated the enactment of the Constitution Ninety-Third Amendment Act, 2005. Thus, both Article 15(4) and 15(5) operate in different areas. The nothing in this Article [mentioned at the beginning of Article 15(5)] would only mean that the nothing in this Article which prohibit the State on grounds which are mentioned in Article 15(1) alone be given importance. Article 15(5) does not exclude 15(4) of the Constitution. It is a well settled principle of constitutional interpretation that while interpreting the provisions of Constitution, effect shall be given to all the provisions of the Constitution and no provision shall be interpreted in a manner as to make any other provision in the Constitution inoperative or otiose. If the intention of the Parliament was to exclude Article 15(4), they could have very well deleted Article 15(4) of the Constitution. Minority institutions are also entitled to the exercise of fundamental rights under Article 19(1)(g) of the Constitution, whether they be aided or unaided. But in the case of Article 15(5), the minority educational institutions, whether aided or unaided, are excluded from the purview of Article 15(5) of the Constitution. Both, being enabling provisions, would operate in their own field and the validity of any legislation made on the basis of Article 15(4) or 15(5) have to be examined on the basis of provisions contained in such legislation or the special provision that may be made under Article 15(4) or 15(5). It may also be noticed that no educational institutions or any aggrieved party have come before us challenging the constitutional amendment on these grounds. The challenge is made by petitioners objecting to the reservations made under Act 5 of 2007. Therefore, the plea that Article 15(4) and 15(5) are mutually contradictory and, therefore, Article 15(5) is not constitutionally valid cannot be accepted. As has been held in N.M. Thomas case (supra) and Indra Sawhneys case (supra), Article 15(4) and 16(4) are not exceptions to Article 15(1) and Article 16(1) but independent enabling provision. Article 15(5) also to be taken as an enabling provision to carry out certain constitutional mandate and thus it is constitutionally valid and the contentions raised on these grounds are rejectedthe minority institutions have been given a separate treatment in view of Article 30 of Constitution. Such classification has been held to be in accordance with the provisions of the Constitution. The exemption of minority educational institutions has been allowed to conform Article 15(5) with the mandate of Article 30 of the Constitution. Moreover, both Article 15(4) and Article 15(5) are operative and the plea of non-severability is not applicable.It has been held that Article 15(4) and Article 16(4) are not exceptions to Article 15(1) and Article 16(1) respectively. It may also be noted that if at all there is any violation of Article 14 or any other equality principle, the affected educational institution should have approached this Court to vindicate their rights. No such petition has been filed before this Court. Therefore, we hold that the exclusion of minority educational institutions from Article 15(5) is not violative of Article 14 of the Constitution as the minority educational institutions, by themselves, are a separate class and their rights are protected by other constitutional provisions104. This contention of the petitioners Counsel has no force. The powers of the Parliament and the State legislatures to legislate are provided for under Article 245-255 of the Constitution. Under the proviso to Article 162, any matter with respect to which the legislature of the State and the Parliament have power to make laws, the executive power of the State shall be subject to and limited by the executive power expressly conferred by the Constitution or by any law made by Parliament upon the Union authorities thereof. The Ninety-Third Constitutional Amendment does not expressly or impliedly take away any such power conferred by Article 162. It may also be noticed that by virtue of the 42nd Amendment to the Constitution, education which was previously in Entry No. 11 in List II was deleted and inserted in List III as Entry No. 25 as the field of legislation in List III. Article 245 will operate and by reasons of proviso to Article 162, the executive power of the State be subject to, limited by, the executive power expressly conferred by the Constitution or by any law made by Parliament upon the Union authorities thereof. Subject to restrictions imposed under the Constitution, it has been in existence. Such power of the State is not limited or curtailed by the Ninety-Third Constitutional Amendment as it does not interfere with the power of the State under Article 162. The Ninety-Third Constitutional Amendment does not fall within the scope of proviso to Article 368. Therefore, the plea raised by the petitioners Counsel that the Ninety-Third Constitutional Amendment did not follow the prescribed procedure of Article 368 is not correct and the plea is only to be rejected.124. Caste is often used interchangeably with class and can be called as the basic unit in social stratification. The most characteristic thing about a caste group is its autonomy in caste related matters. One of the universal codes enforced by all castes is the requirement of endogamy. Other rules have to do with the regulations pertaining to religious purity or cleanliness. Sometimes it restricts occupational choices as well. It is not necessary that these rules be enforced in particular classes as well, and as such a class may be distinguished from the broader realm of caste on these grounds. Castes were often rated, on a purity scale, and not on a social scale.135. Hence, there is every reason to believe that within a single caste group there are some classes or groups of people to whom good fortune or perseverance has brought more dignity, social influence and social esteem than it has to others136. In India, caste, in a socio-organizational manner would mean that it is not characterized merely by the physical or occupational characteristics of the individuals who make it up; rather, it is characterized by its codes and its close-knit social controls. In the case of classes, however, there may not exist such close-knit unit social controls, and there may exist great disparity in occupational characteristics137. A social class is therefore a homogeneous unit, from the point of view of status and mutual recognition; whereas a caste is a homogeneous unit from the point of view of common ancestry, religious rites and strict organizational control. Thus the manner in which the caste is closed both in the organizational and biological sense causes it to differ from social class. Moreover, its emphasis upon ritual and regulations pertaining to cleanliness and purity differs radically from the secular nature and informality of social class rules. In a social class, the exclusiveness would be based primarily on status. Social classes divide homogeneous populations into layers of prestige and esteem, and the members of each layer are able to circulate freely with it138. In a caste, however, the social distance between members is due to the fact that they belong to entirely different organizations. It may be said, therefore, that a caste is a horizontal division and a class, a vertical division.142. We hold that the determination of SEBCs is done not solely based on caste and hence, the identification of SEBCs is not violative of Article 15(1) of the Constitution.150. It may be noted that the creamy layer principle is applied not as a general principle of reservation. It is applied for the purpose of identifying the socially and educationally backward class. One of the main criteria for determining the SEBC is poverty. If that be so, the principle of exclusion of creamy layer is necessary. Moreover, the majority in Indra Sawhneys case upheld the exclusion of creamy layer for the purpose of reservation in Article 16(4). Therefore, we are bound the larger Bench decision of this Court in Indra Sawhneys case, and it cannot be said that the creamy layer principle cannot be applied for identifying SEBCs. Moreover, Articles 15(4) and 15(5) are designed to provide opportunities in education thereby raising educational, social and economical levels of those who are lagging behind and once this progress is achieved by this section, any legislation passed thereunder should be deemed to have served its purpose. By excluding those who have already attained economic well being or educational advancement, the special benefits provided under these clauses cannot be further extended to them and, if done so, it would be unreasonable, discriminatory or arbitrary, resulting in reverse discrimination152. All these reasonings are equally applicable to the reservation or any special action contemplated under Article 15(5). Therefore, we are unable to agree with the contention raised by the respondents learned Counsel that if creamy layer is excluded, there may be practically no representation for a particular backward class in educational institutions because the remaining members, namely, the non-creamy layer, may not have risen to the level or standard necessary to qualify to get admission even within the reserved quota. If the creamy layer is not excluded, the identification of SEBC will not be complete and any SEBC without the exclusion of creamy layer may not be in accordance with Article 15(1) of the Constitution154. We make it clear that same principle of determining the creamy layer for providing 27% reservation for backward classes for appointment need not be strictly followed in case of reservation envisaged under Article 15(5) of the Constitution. As pointed by Shri Ravivarma Kumar, learned Senior Counsel, if a strict income restriction is made for identifying the creamy layer, those who are left in the particular caste may not be able to have a sufficient number of candidates for getting admission in the central institutions as per Act 5 of 2007. Government can make a relaxation to some extent so that sufficient number of candidates may be available for the purpose of filling up the 27% reservation. It is for the Union Government and the State Governments to issue appropriate guidelines to identify the creamy layer so that SEBC are properly determined in accordance with the guidelines given by this Court. If, even by applying this principle, still the candidates are not available, the State can issue appropriate guidelines to effectuate the implementation of the reservation purposefully155. As noticed earlier, backward class defined in Section 2(g) does not exclude creamy layer. Therefore, we make it clear that backward class as defined in Section 2(g) of Act 5 of 2007 must be deemed to have been such backward class by applying the principle of exclusion of creamy layer.163. Moreover, right from the beginning, the Scheduled Castes and Scheduled Tribes were treated as a separate category and nobody ever disputed identification of such classes. So long as creamy layer is not applied as one of the principles of equality, it cannot be applied to Scheduled Castes and Scheduled Tribes. So far, it is applied only to identify the socially and educationally backward classes. We make it clear that for the purpose of reservation, the principles of creamy layer are not applicable for Scheduled Castes and Scheduled Tribes.According to the United States Supreme Court, all such programmes are inherently suspect since they rely on suspect forms of classification (such as race). Therefore, because such forms of classification are inherently suspect, the courts have subjected all affirmative action programmes relying on them to a very high standard of scrutiny, wherein those practicing these affirmative action programmes have to adhere to a very high standard of proof, which we know as the strict scrutiny test177. The case of Regents of the University of California Vs. Bakke provided a starting point and from this case onwards, affirmative action programmes can be justified only on two distinct grounds, and only these grounds have been recognized as compelling enough to so as to satisfy the strict scrutiny test, as developed by the United States Supreme Court. The two grounds are as follows:1. Remedial Justification: All efforts aimed at remedying past injustices against certain identified groups of people, who were unlawfully discriminated against in the past, serve as adequate justifications and all affirmative action programmes that are implemented with this aim serve the compelling institutional interest in removing all vestiges of discrimination that occurred in the past. In the case of City of Richmond Vs. J A Croson Co., the United States Supreme Court held that if a university is able to show some showing of prior discrimination in its existing affirmative action program furthering racial exclusion then the university may take affirmative steps to dismantle such a system. However, it is to be noted that the US Supreme Court also attached a warning with the above observation. While scrutinizing such programmes, it was held that the Court would make searching judicial inquiry into the justification for such race-based measures... [and to] identify that discrimination... with some specificity before they may use race-conscious relief. (Crosons Case)2. Diversity- All affirmative action programmes aimed at bringing about racial diversity among the scholarship of the institution(s) may be said to in furtherance of compelling institutional interest. The starting point for this ground is Justice Powells detailed opinion regarding the issue of diversity in the case of Regents of the University of California Vs. Bakke (supra)178. The other part of the strict scrutiny test is the narrow tailoring test. The University, whose affirmative action programme is in question before the United States Supreme Court, is required to prove that its affirmative action programme has been designed in the narrowest possible manner, in order to benefit only those specific people who are to be benefited, thus serving the compelling purposes of the affirmative action programme. The program cannot be made in a broad manner to encompass a large group of people, and it has to serve the minimum possible requirement, in order to achieve its goal. Otherwise, it may be possible that the rights of other people may be infringed upon, which would make the affirmative action programme unconstitutional179. Thus, the first limb of the strict scrutiny test that elucidates the compelling institutional interest is focused on the objectives that affirmative action programmes are designed to achieve. The second limb, that of narrow tailoring, focuses on the details of specific affirmative action programmes and on the specific people it aims to benefit.185. Learned Counsel Shri Sushil Kumar Jain contended that the classification of OBCs was not properly done and it is not clear as to whose benefit the legislation itself is made therefore, it is a suspect legislation.This contention cannot be accepted. We are of the view that the challenge of Act 5 of 2007 on the ground that it does not stand the strict scrutiny test and there was no compellable State necessity to enact this legislation cannot be accepted. Article 340 of the Constitution specifically empowers the President of India to appoint a Commission to investigate the conditions of the socially and educationally backward classes within the territory of India. Socially and educationally backward classes of citizens are mentioned in Article 15(4) of the Constitution, which formed the First Amendment to the Constitution. Backward class citizens are also mentioned in Article 16(4) of the Constitution. It is only for the purpose of Act 5 of 2007 that the Union of India has been entrusted with the task of determining the backward class. There is already a National Commission and also various State Commissions dealing with the affairs of the backward class of citizens in this country. For the purpose of enforcement of the legislation passed under Article 16(4), the backward class of citizens have already been identified and has been in practice since the past 14 years. It is in this background that the Union of India has been given the task of determining the backward classes. The determination of backward classes itself is a laborious task and the Parliament cannot do it by itself. It is incorrect to say that there are no sufficient guidelines to determine the backward classes. Various parameters have been used and it may also be noticed that if any undeserving caste or group of persons are included in the backward class, it is open to any person to challenge the same through judicial review. Therefore, it is incorrect to say that the Union of India has been given wide powers to determine the backward classes. The challenge of Act 5 of 2007 on that ground fails.It is true that there is some force in the contention advanced by the learned Counsel for the petitioners but that may happen in future if the reservation policy as contemplated under the Act is successfully implemented. But at the outset, it may not be possible to fix a time limit or a period of time. Depending upon the result of the measures and improvements that have taken place in the status and educational advancement of the socially and educationally backward classes of citizens, the matter could be examined by the Parliament at a future time but that cannot be a ground for striking down a legislation. After some period, if it so happens that any section of the community gets an undue advantage of the affirmative action, then such community can very well be excluded from such affirmative action programme. The Parliament can certainly review the situation and even though a specific class of citizens is in the legislation, it is the constitutional duty of the Parliament to review such affirmative action as and when the social conditions are required. There is also the safeguard of judicial review and the court can exercise its powers of judicial review and say that the affirmative action has carried out its mission and is thus no longer required. In the case of reservation of 27% for backward classes, there could be a periodic review after a period of 10 years and the Parliament could examine whether the reservation has worked for the good of the country. Therefore, the legislation cannot be held to be invalid on that ground but a review can be made after a period of 10 years.191. A legislation passed by the Parliament can be challenged only on constitutionally recognized grounds. Ordinarily, grounds of attack of a legislation is whether the legislature has legislative competence or whether the legislation is ultra vires of the provisions of the Constitution. If any of the provisions of the legislation violates fundamental rights or any other provisions of the Constitution, it could certainly be a valid ground to set aside the legislation by invoking the power of judicial review. A legislation could also be challenged as unreasonable if it violates the principles of equality adumbrated in our Constitution or it unreasonably restricts the fundamental rights under Article 19 of the Constitution. A legislation cannot be challenged simply on the ground of unreasonableness because that by itself does not constitute a ground. The validity of a constitutional amendment and the validity of plenary legislation have to be decided purely as questions of constitutional law.192. Therefore, the plea of the Petitioner that the legislation itself was intended to please a section of the community as part of the vote catching mechanism is not a legally acceptable plea and it is only to be rejected193. The quantum of reservation provided under the Act 5 of 2007 is based on the detailed facts available with the Parliament. Various commissions have been in operation determining as to who shall form the SEBCs. Though a caste-wise census is not available, several other data and statistics are available. In the case of Indra Sawhney (supra), the Mandal Commission was accepted in principle though the details and findings of the commissions were not fully accepted by this Court. 27% of reservation in the matter of employment was accepted by this Court. Petitioners have not produced any documents to show that the backward class citizens are less than 27%, vis-à-vis, the total population of this country or that there was no requirement of 27% reservation for them. The Parliament is invested with the power of legislation and must be deemed to have taken into consideration all relevant circumstances when passing a legislation of this nature. It is futile to contend whether Parliament was not aware of the statistical details of the population of this country and, therefore, we do not think that 27% reservation provided in the Act is illegal or on that account, the Act itself is liable to be struck down1. Whether the Ninety-Third Amendment of the Constitution is against the basic structure of the Constitution?The Constitution (Ninety-Third Amendment) Act, 2005 does not violate the basic structure of the Constitution so far as it relates to the state maintained institutions and aided educational institutions. Question whether the Constitution (Ninety-Third Amendment) Act, 2005 would be constitutionally valid or not so far as private unaided educational institutions are concerned, is left open to be decided in an appropriate case. (Paragraph 79)2. Whether Articles 15(4) and 15(5) are mutually contradictory, hence Article 15(5) is to be held ultra vires?Article 15(5) is constitutionally valid and Articles 15(4) and 15(5) are not mutually contradictory. (Paragraph 100)3. Whether exclusion of minority educational institutions from Article 15(5) is violative of Article 14 of Constitution?Exclusion of minority educational institutions from Article 15(5) is not violative of Article 14 of the Constitution as the minority educational institutions, by themselves, are a separate class and their rights are protected by other constitutional provisions. (Paragraph 102)4. Whether the Constitutional Amendment followed the procedure prescribed under Article 368 of the Constitution?The Ninety-Third Amendment of the Constitution does not affect the executive power of the State under Article 162 of the Constitution and hence, procedure prescribed under Proviso to Article 368(2) is not required to be followed. (Paragraph 103)5. Whether the Act 5 of 2007 is constitutionally invalid in view of definition of Backward Class and whether the identification of such Backward Class based on caste is constitutionally valid?Identification of backward class is not done solely based on caste. Other parameters are followed in identifying the backward class. Therefore, Act 5 of 2007 is not invalid for this reason. (Paragraph 142)6. Whether Creamy Layer is to be excluded from SEBCs?Creamy Layer is to be excluded from SEBCs. The identification of SEBCs will not be complete and without the exclusion of creamy layer such identification may not be valid under Article 15(1) of the Constitution. (Paragraph 152)7. What should be the para-meters for determining the creamy layer group?The parameters contained in the Office Memorandum issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) on 08.09.1993 may be applied. And the definition of Other Backward Classes under Section 2(g) of the Act 5 of 2007 should be deemed to mean class or classes of citizens who are socially and educationally backward, and so determined by the Central Government; and if the determination is with reference to caste, then the backward class shall be after excluding the creamy layer. (Paragraphs 153 and 155)8. Whether the creamy layer principle is applicable to Scheduled Tribes and Scheduled Castes?Creamy Layer principle is not applicable to Scheduled Castes and Scheduled Tribes. (Paragraph 163)9. Whether the principles laid down by the United States Supreme Court for affirmative action such as suspect legislation, strict scrutiny and compelling State necessity are applicable to principles of reservation or other affirmative action contemplated under Article 15(5) of the Constitution?The principles laid down by the United States Supreme Court such as suspect legislation, strict scrutiny and compelling State necessity are not applicable for challenging the validity of Act 5 of 2007 or reservations or other affirmative action contemplated under Article 15(5) of the Constitution. (Paragraphs 184)10. Whether delegation of power to the Union Government to determine as to who shall be the backward class is constitutionally valid?The delegation of power to the Union Government to determine as to who shall be the other backward classes is not excessive delegation. Such delegation is constitutionally valid. (Paragraph 186)11. Whether the Act is invalid as there is no time limit prescribed for its operation and no periodical review is contemplated?The Act 5 of 2007 is not invalid for the reason that there is no time limit prescribed for its operation, but a review can be made after a period of 10 years. (Paragraph 187)12. What shall be the educational standard to be prescribed to find out whether any class is educationally backward?The contention that educational standard of matriculation or (10+2) should be the benchmark to find out whether any class is educationally backward is rejected. (Paragraph 189)13. Whether the quantum of reservation provided for in the Act is valid and whether 27% of seats for SEBC was required to be reserved? | 0 | 42,315 | 6,522 | ### Instruction:
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legislation itself was intended to please a section of the community as part of the vote catching mechanism is not a legally acceptable plea and it is only to be rejected. 193. The quantum of reservation provided under the Act 5 of 2007 is based on the detailed facts available with the Parliament. Various commissions have been in operation determining as to who shall form the SEBCs. Though a caste-wise census is not available, several other data and statistics are available. In the case of Indra Sawhney (supra), the Mandal Commission was accepted in principle though the details and findings of the commissions were not fully accepted by this Court. 27% of reservation in the matter of employment was accepted by this Court. Petitioners have not produced any documents to show that the backward class citizens are less than 27%, vis-à-vis, the total population of this country or that there was no requirement of 27% reservation for them. The Parliament is invested with the power of legislation and must be deemed to have taken into consideration all relevant circumstances when passing a legislation of this nature. It is futile to contend whether Parliament was not aware of the statistical details of the population of this country and, therefore, we do not think that 27% reservation provided in the Act is illegal or on that account, the Act itself is liable to be struck down. Questions: 1. Whether the Ninety-Third Amendment of the Constitution is against the basic structure of the Constitution? The Constitution (Ninety-Third Amendment) Act, 2005 does not violate the basic structure of the Constitution so far as it relates to the state maintained institutions and aided educational institutions. Question whether the Constitution (Ninety-Third Amendment) Act, 2005 would be constitutionally valid or not so far as private unaided educational institutions are concerned, is left open to be decided in an appropriate case. (Paragraph 79) 2. Whether Articles 15(4) and 15(5) are mutually contradictory, hence Article 15(5) is to be held ultra vires? Article 15(5) is constitutionally valid and Articles 15(4) and 15(5) are not mutually contradictory. (Paragraph 100) 3. Whether exclusion of minority educational institutions from Article 15(5) is violative of Article 14 of Constitution? Exclusion of minority educational institutions from Article 15(5) is not violative of Article 14 of the Constitution as the minority educational institutions, by themselves, are a separate class and their rights are protected by other constitutional provisions. (Paragraph 102) 4. Whether the Constitutional Amendment followed the procedure prescribed under Article 368 of the Constitution? The Ninety-Third Amendment of the Constitution does not affect the executive power of the State under Article 162 of the Constitution and hence, procedure prescribed under Proviso to Article 368(2) is not required to be followed. (Paragraph 103) 5. Whether the Act 5 of 2007 is constitutionally invalid in view of definition of Backward Class and whether the identification of such Backward Class based on caste is constitutionally valid? Identification of backward class is not done solely based on caste. Other parameters are followed in identifying the backward class. Therefore, Act 5 of 2007 is not invalid for this reason. (Paragraph 142) 6. Whether Creamy Layer is to be excluded from SEBCs? Creamy Layer is to be excluded from SEBCs. The identification of SEBCs will not be complete and without the exclusion of creamy layer such identification may not be valid under Article 15(1) of the Constitution. (Paragraph 152) 7. What should be the para-meters for determining the creamy layer group? The parameters contained in the Office Memorandum issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) on 08.09.1993 may be applied. And the definition of Other Backward Classes under Section 2(g) of the Act 5 of 2007 should be deemed to mean class or classes of citizens who are socially and educationally backward, and so determined by the Central Government; and if the determination is with reference to caste, then the backward class shall be after excluding the creamy layer. (Paragraphs 153 and 155) 8. Whether the creamy layer principle is applicable to Scheduled Tribes and Scheduled Castes? Creamy Layer principle is not applicable to Scheduled Castes and Scheduled Tribes. (Paragraph 163) 9. Whether the principles laid down by the United States Supreme Court for affirmative action such as suspect legislation, strict scrutiny and compelling State necessity are applicable to principles of reservation or other affirmative action contemplated under Article 15(5) of the Constitution? The principles laid down by the United States Supreme Court such as suspect legislation, strict scrutiny and compelling State necessity are not applicable for challenging the validity of Act 5 of 2007 or reservations or other affirmative action contemplated under Article 15(5) of the Constitution. (Paragraphs 184) 10. Whether delegation of power to the Union Government to determine as to who shall be the backward class is constitutionally valid? The delegation of power to the Union Government to determine as to who shall be the other backward classes is not excessive delegation. Such delegation is constitutionally valid. (Paragraph 186) 11. Whether the Act is invalid as there is no time limit prescribed for its operation and no periodical review is contemplated? The Act 5 of 2007 is not invalid for the reason that there is no time limit prescribed for its operation, but a review can be made after a period of 10 years. (Paragraph 187) 12. What shall be the educational standard to be prescribed to find out whether any class is educationally backward? The contention that educational standard of matriculation or (10+2) should be the benchmark to find out whether any class is educationally backward is rejected. (Paragraph 189) 13. Whether the quantum of reservation provided for in the Act is valid and whether 27% of seats for SEBC was required to be reserved? 27% of seats for other backward classes is not illegal and the Parliament must be deemed to have taken into consideration all relevant circumstances when fixing the 27% reservation.(Paragraph 193)
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rights under Article 19 of the Constitution. A legislation cannot be challenged simply on the ground of unreasonableness because that by itself does not constitute a ground. The validity of a constitutional amendment and the validity of plenary legislation have to be decided purely as questions of constitutional law.192. Therefore, the plea of the Petitioner that the legislation itself was intended to please a section of the community as part of the vote catching mechanism is not a legally acceptable plea and it is only to be rejected193. The quantum of reservation provided under the Act 5 of 2007 is based on the detailed facts available with the Parliament. Various commissions have been in operation determining as to who shall form the SEBCs. Though a caste-wise census is not available, several other data and statistics are available. In the case of Indra Sawhney (supra), the Mandal Commission was accepted in principle though the details and findings of the commissions were not fully accepted by this Court. 27% of reservation in the matter of employment was accepted by this Court. Petitioners have not produced any documents to show that the backward class citizens are less than 27%, vis-à-vis, the total population of this country or that there was no requirement of 27% reservation for them. The Parliament is invested with the power of legislation and must be deemed to have taken into consideration all relevant circumstances when passing a legislation of this nature. It is futile to contend whether Parliament was not aware of the statistical details of the population of this country and, therefore, we do not think that 27% reservation provided in the Act is illegal or on that account, the Act itself is liable to be struck down1. Whether the Ninety-Third Amendment of the Constitution is against the basic structure of the Constitution?The Constitution (Ninety-Third Amendment) Act, 2005 does not violate the basic structure of the Constitution so far as it relates to the state maintained institutions and aided educational institutions. Question whether the Constitution (Ninety-Third Amendment) Act, 2005 would be constitutionally valid or not so far as private unaided educational institutions are concerned, is left open to be decided in an appropriate case. (Paragraph 79)2. Whether Articles 15(4) and 15(5) are mutually contradictory, hence Article 15(5) is to be held ultra vires?Article 15(5) is constitutionally valid and Articles 15(4) and 15(5) are not mutually contradictory. (Paragraph 100)3. Whether exclusion of minority educational institutions from Article 15(5) is violative of Article 14 of Constitution?Exclusion of minority educational institutions from Article 15(5) is not violative of Article 14 of the Constitution as the minority educational institutions, by themselves, are a separate class and their rights are protected by other constitutional provisions. (Paragraph 102)4. Whether the Constitutional Amendment followed the procedure prescribed under Article 368 of the Constitution?The Ninety-Third Amendment of the Constitution does not affect the executive power of the State under Article 162 of the Constitution and hence, procedure prescribed under Proviso to Article 368(2) is not required to be followed. (Paragraph 103)5. Whether the Act 5 of 2007 is constitutionally invalid in view of definition of Backward Class and whether the identification of such Backward Class based on caste is constitutionally valid?Identification of backward class is not done solely based on caste. Other parameters are followed in identifying the backward class. Therefore, Act 5 of 2007 is not invalid for this reason. (Paragraph 142)6. Whether Creamy Layer is to be excluded from SEBCs?Creamy Layer is to be excluded from SEBCs. The identification of SEBCs will not be complete and without the exclusion of creamy layer such identification may not be valid under Article 15(1) of the Constitution. (Paragraph 152)7. What should be the para-meters for determining the creamy layer group?The parameters contained in the Office Memorandum issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) on 08.09.1993 may be applied. And the definition of Other Backward Classes under Section 2(g) of the Act 5 of 2007 should be deemed to mean class or classes of citizens who are socially and educationally backward, and so determined by the Central Government; and if the determination is with reference to caste, then the backward class shall be after excluding the creamy layer. (Paragraphs 153 and 155)8. Whether the creamy layer principle is applicable to Scheduled Tribes and Scheduled Castes?Creamy Layer principle is not applicable to Scheduled Castes and Scheduled Tribes. (Paragraph 163)9. Whether the principles laid down by the United States Supreme Court for affirmative action such as suspect legislation, strict scrutiny and compelling State necessity are applicable to principles of reservation or other affirmative action contemplated under Article 15(5) of the Constitution?The principles laid down by the United States Supreme Court such as suspect legislation, strict scrutiny and compelling State necessity are not applicable for challenging the validity of Act 5 of 2007 or reservations or other affirmative action contemplated under Article 15(5) of the Constitution. (Paragraphs 184)10. Whether delegation of power to the Union Government to determine as to who shall be the backward class is constitutionally valid?The delegation of power to the Union Government to determine as to who shall be the other backward classes is not excessive delegation. Such delegation is constitutionally valid. (Paragraph 186)11. Whether the Act is invalid as there is no time limit prescribed for its operation and no periodical review is contemplated?The Act 5 of 2007 is not invalid for the reason that there is no time limit prescribed for its operation, but a review can be made after a period of 10 years. (Paragraph 187)12. What shall be the educational standard to be prescribed to find out whether any class is educationally backward?The contention that educational standard of matriculation or (10+2) should be the benchmark to find out whether any class is educationally backward is rejected. (Paragraph 189)13. Whether the quantum of reservation provided for in the Act is valid and whether 27% of seats for SEBC was required to be reserved?
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Industrial Paper (Assam) Ltd. Emps. Un Vs. Mgmt., Assam Industrial Dev. Corpn. Ltd | filed by the appellant was dismissed. Learned Single Judge held that since workmen were not employees of the AIDC, the question of giving them benefit as done by the Labour Court did not arise. The question of employer and employees (of AIDC) was not the subject matter of reference. Writ appeal was filed by appellant before the High Court. The High Court inter alia held while dismissing the writ appeal that AIDC is not the owner of the Extensible Sack Craft Paper Project of IPAL. Being a separate and independent company, the members of the appellant-union are not the employees of AIDC which could not be saddled with the responsibility of these employees. Therefore, AIDC was not liable for absorption or engagement of the employees of IPAL in any other AIDC promoted industry and to give them salaries regularly after the closure of the project. 8. In support of the appeal learned counsel for the appellant submitted that the Labour Court had taken a practical and pragmatic view. Learned Single Judge and the Division Bench should not have interfered with the findings recorded. 9. Learned counsel for the respondent AIDC on the other hand submitted that in view of materials placed on record, both learned Single Judge and Division Bench of the High Court was justified in its conclusion and no interference is called for. There is ample material on record to show that employment was for a specific project and on an expiry of that project the question of any claim to be appointed by IPAL much less by AIDC does not arise. According to AIDC the project was closed in 1991 whose assertion is denied by the appellant. 10. There is no claim that the members of appellant union were employees of AIDC. In the reference IPAL was not a party. It is evident from materials on record that IPAL was promoted by AIDC and was incorporated in 1974. It was not even subsidiary of AIDC. 11. Learned Single Judge and the Division Bench have categorically found that IPAL was a separate, independent company and the members of the appellant union are not employees of AIDC. That being so the conclusions of learned Single Judge and the Division Bench that AIDC cannot be saddled with the responsibility of those employees is irreversible. 12. The Memorandum and Article of Association of both AIDC and IPAL as well as the Certificate of Incorporation of IPAL has been referred to by the Division Bench in the impugned judgment. It has, with reference to those come to hold that they have separate independent existence having independent Board of Directors. The Notification dated 22.2.1988 by which Board of Directors of IAPL has also been referred to for the purpose of coming to the conclusion that both the companies have independent existence. AIDC was a nodal agency of the Government of Assam and was acting only as a promotional organization for promoting IPAL at the initial stages. As is rightly pointed out by the AIDC cannot be branded as a owner of the establishment. The expression "Owner" has been defined in Section 3(f) of the Act. It reads as follows: "(f) "owner", in relation to an industrial undertaking, means the person, who, or the authority which, has the ultimate control over the affairs of the undertaking, and, where the said affairs are entrusted to a manager, managing director or managing agent shall be deemed to be the owner of the undertaking". 13. In Blacks Law Dictionary 6th Edition, the expression "promoter" has been described as follows: "One who promotes, urges on, encourage, in cites, advances etc. one promoting a plan by which it is hoped to insure the success of a business, entertainment etc. venture. The person who, for themselves or others, take a preliminary steps to the finding or organization of a corporation or other venture. These person who first associate themselves together for the purpose of organizing the company, issuing its prospectus, procuring subscriptions to the stock, securing a charter etc. From an ordinary reading of the meaning of promoter, it can be well deduced that promoter can not be treated as owner." 14. In the written statement before the Labour Court, AIDC has taken specific stand in the following manner: "That when the employees were paid regular salary by IPAL Project from its own fund/account at that time no such demand was raised by the employees of IPAL. When they found that the Project is virtually closed and they are not getting salary from their own Project, they demanded that they belong to AIDC for the sake of getting salary from AIDC without doing any job for AIDC. In such situation the employees of IPAL cannot be treated as employees of AIDC. These employees were appointed/recruited against the Project against the Project as per the job specification and as per requirement and sanctioned strength of IPAL while seeking requisition from Employment Exchange the requisition was signed by General manager, Sack Kraft Paper Project as the employer. All the employees have been appointed on behalf of the IPAL Project. They are employees of IPAL governed by all rules and regulations of Industrial Papers Assam Ltd. Under these circumstances stated above the management of AIDC cannot take any responsibility for the employees of IPAL." 15. Above being the position, the judgment of the Division Bench affirming that of learned Single Judge cannot be faulted and the appeal stands dismissed. Subject to what is stated above, dismissal of the appeal shall not stand in the way of the concerned employees or recognized Unions making claim for arrears of salaries or claims to be due from IPAL. 16. It has been submitted by learned counsel for the appellant that the committee has been appointed by the High Court in the matter of arrears of salary and on the question of absorption of various sick public sector undertakings. It needs no emphasis that those are the aspects about which we have not expressed any opinion. 17. | 0[ds]There is no claim that the members of appellant union were employees of AIDC. In the reference IPAL was not a party. It is evident from materials on record that IPAL was promoted by AIDC and was incorporated in 1974. It was not even subsidiary of AIDC.Learned Single Judge and the Division Bench have categorically found that IPAL was a separate, independent company and the members of the appellant union are not employees of AIDC. That being so the conclusions of learned Single Judge and the Division Bench that AIDC cannot be saddled with the responsibility of those employees is irreversible. | 0 | 2,695 | 112 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
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filed by the appellant was dismissed. Learned Single Judge held that since workmen were not employees of the AIDC, the question of giving them benefit as done by the Labour Court did not arise. The question of employer and employees (of AIDC) was not the subject matter of reference. Writ appeal was filed by appellant before the High Court. The High Court inter alia held while dismissing the writ appeal that AIDC is not the owner of the Extensible Sack Craft Paper Project of IPAL. Being a separate and independent company, the members of the appellant-union are not the employees of AIDC which could not be saddled with the responsibility of these employees. Therefore, AIDC was not liable for absorption or engagement of the employees of IPAL in any other AIDC promoted industry and to give them salaries regularly after the closure of the project. 8. In support of the appeal learned counsel for the appellant submitted that the Labour Court had taken a practical and pragmatic view. Learned Single Judge and the Division Bench should not have interfered with the findings recorded. 9. Learned counsel for the respondent AIDC on the other hand submitted that in view of materials placed on record, both learned Single Judge and Division Bench of the High Court was justified in its conclusion and no interference is called for. There is ample material on record to show that employment was for a specific project and on an expiry of that project the question of any claim to be appointed by IPAL much less by AIDC does not arise. According to AIDC the project was closed in 1991 whose assertion is denied by the appellant. 10. There is no claim that the members of appellant union were employees of AIDC. In the reference IPAL was not a party. It is evident from materials on record that IPAL was promoted by AIDC and was incorporated in 1974. It was not even subsidiary of AIDC. 11. Learned Single Judge and the Division Bench have categorically found that IPAL was a separate, independent company and the members of the appellant union are not employees of AIDC. That being so the conclusions of learned Single Judge and the Division Bench that AIDC cannot be saddled with the responsibility of those employees is irreversible. 12. The Memorandum and Article of Association of both AIDC and IPAL as well as the Certificate of Incorporation of IPAL has been referred to by the Division Bench in the impugned judgment. It has, with reference to those come to hold that they have separate independent existence having independent Board of Directors. The Notification dated 22.2.1988 by which Board of Directors of IAPL has also been referred to for the purpose of coming to the conclusion that both the companies have independent existence. AIDC was a nodal agency of the Government of Assam and was acting only as a promotional organization for promoting IPAL at the initial stages. As is rightly pointed out by the AIDC cannot be branded as a owner of the establishment. The expression "Owner" has been defined in Section 3(f) of the Act. It reads as follows: "(f) "owner", in relation to an industrial undertaking, means the person, who, or the authority which, has the ultimate control over the affairs of the undertaking, and, where the said affairs are entrusted to a manager, managing director or managing agent shall be deemed to be the owner of the undertaking". 13. In Blacks Law Dictionary 6th Edition, the expression "promoter" has been described as follows: "One who promotes, urges on, encourage, in cites, advances etc. one promoting a plan by which it is hoped to insure the success of a business, entertainment etc. venture. The person who, for themselves or others, take a preliminary steps to the finding or organization of a corporation or other venture. These person who first associate themselves together for the purpose of organizing the company, issuing its prospectus, procuring subscriptions to the stock, securing a charter etc. From an ordinary reading of the meaning of promoter, it can be well deduced that promoter can not be treated as owner." 14. In the written statement before the Labour Court, AIDC has taken specific stand in the following manner: "That when the employees were paid regular salary by IPAL Project from its own fund/account at that time no such demand was raised by the employees of IPAL. When they found that the Project is virtually closed and they are not getting salary from their own Project, they demanded that they belong to AIDC for the sake of getting salary from AIDC without doing any job for AIDC. In such situation the employees of IPAL cannot be treated as employees of AIDC. These employees were appointed/recruited against the Project against the Project as per the job specification and as per requirement and sanctioned strength of IPAL while seeking requisition from Employment Exchange the requisition was signed by General manager, Sack Kraft Paper Project as the employer. All the employees have been appointed on behalf of the IPAL Project. They are employees of IPAL governed by all rules and regulations of Industrial Papers Assam Ltd. Under these circumstances stated above the management of AIDC cannot take any responsibility for the employees of IPAL." 15. Above being the position, the judgment of the Division Bench affirming that of learned Single Judge cannot be faulted and the appeal stands dismissed. Subject to what is stated above, dismissal of the appeal shall not stand in the way of the concerned employees or recognized Unions making claim for arrears of salaries or claims to be due from IPAL. 16. It has been submitted by learned counsel for the appellant that the committee has been appointed by the High Court in the matter of arrears of salary and on the question of absorption of various sick public sector undertakings. It needs no emphasis that those are the aspects about which we have not expressed any opinion. 17.
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There is no claim that the members of appellant union were employees of AIDC. In the reference IPAL was not a party. It is evident from materials on record that IPAL was promoted by AIDC and was incorporated in 1974. It was not even subsidiary of AIDC.Learned Single Judge and the Division Bench have categorically found that IPAL was a separate, independent company and the members of the appellant union are not employees of AIDC. That being so the conclusions of learned Single Judge and the Division Bench that AIDC cannot be saddled with the responsibility of those employees is irreversible.
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The Kamrup Industrial Gases Limited Vs. Union Of India | A.N. Jha was cross-examined by the respondents Counsel, but his evidence on this topic has remained unshaken. Reference is made to Qs. 1044 to 1047 and Qs. 1370 to 1411 in cross-examination, put to the said A.N. Jha. The said A.N. Jha has proved that the said Blown off statements had been delivered by him personally to the responents employees at the General Managers Office. The said A.N. Jha has also deposed that the people at the General Managers Office of the respondent refused to acknowledge receipt of the said statements on the copies of the Statements produced by the claimant and the copies of the said Statements were kept in the office of the claimant which they have produced in this Reference and which have been exhibited herein as mentioned before. The claimant has also produced in this Reference their Plant Reports and proved the same through their witness, A.N. Jha (Qs. 244 to 265 in examination-in-chief). The Plant Reports were exhibited in these proceedings as Exhibit PPPPPPP series. The said A.N. Jha has deposed that the said Plant Reports were prepared by the Foreman on duty of the respondent on the basis of the production and sale of Oxygen and D.A. Gases during the relevant periods. The said Plant Reports were prepared under his supervision. The Plant Reports have entries regarding production, available gases lifted by DLW, Sales to other customers, Blown Off Statement and Closing Stock of the Claimant-Company. The Plant Reports are internal documents of the claimant, produced and proved by A.N. Jha in these proceedings. The other documents on which the claimant relies with regard to their case of blowing off of the gases are various bills submitted by the claimant in respect of the gases, both lifted and unlifted quantitites, made on the respondent. The claimants Counsel has contended that though these bills were duly served on the respondent in accordance with Clause 7 of the Agreement, no objections were raised regarding the accuracy and/or contents of the said bills."(emphasis is ours)13. Having perused the documents furnished by the appellant, at the asking of the Diesel Locomotive Works, and having perused the findings recorded with reference to the statement made by Shri A.N. Jha, before the Arbitrator (extracted above), we are satisfied, that on each occasion, before the shortfall of the gases were blown off, the appellant duly informed the Diesel Locomotive Works, and in that view of the matter, it is not possible for us to concur with the findings recorded by the High Court, that due intimation was not furnished by the appellant - Kamrup Industrial Gases Ltd., to the respondent - Diesel Locomotive Works, before carrying on the exercise of emptying their cylinders, by blowing off the unlifted gases. It is also relevant in this behalf to make a reference to the determination recorded by the Arbitrator, again based on the statement of the aforesaid Shri A.N. Jha, that on different occasion, relevant bills were raised by the appellant - Kamrup Industrial Gases Ltd., indicating payments claimable by the appellant. The bills raised also denoted the amounts deducted on account of the sale proceeds of the gases which the appellant could sell in the open market. According to Shri A.N. Jha, all the bills were duly furnished to the Diesel Locomotive Works. Details in this behalf are extracted below:"The claimant had called one A.N. Jha (full name Amar Nath Jha) as witness. Jha was the Office Superintendent of the Claimant-Company in 1971 and was appointed as the Assistant Manager in 1972 and was posted at the claimants factory at Varanasi during the relevant time. Jha had deposed that all the relevant bills with covering letters from the claimant were served on the respondent at the F.A. & C.O. Department of DLW at Varanasi by him personally and the receipt of the said bills were acknowledged by various officers of the said F.A. & C.O. Department of the respondent on the copy of the said bills (vide Qs. 32 to 75 in Examination-in-chief). The evidence of Jha in this respect had not been shaken in cross-examination by the learned Counsel for the respondent. With respect to bills for uplifted quantity of gas, the respondents case is that they made part payments for the gas supplies at the contract rate but withheld payment of escalation charges relating to rise in the price of Carbide mentioned in the said bills. Receipt of the said bills was not denied by the respondent. In respect of bills for the price of unuplifted quantities of gas, the respondents Counsel put Qs.1470 to 1497 to the said Jha in cross-examination. Jha maintained that he personally served the said bills at the Office of the F.A. & C.O. of the respondent and obtained acknowledgements by the people working at F.A. & C.O. Department of the respondent of the receipt of the said bills on the copies of the said bills, which are tendered in evidence in these proceedings.The respondents on their part called one M. Singh as their only witness. The said M. Singh was the Senior Clerk working in the Stores Department of the respondent at the relevant time. He did not belong to the F.A. & C.O. Department of the respondent and had no knowledge of affairs of the said F.A. & C.O. Department. No one from the said F.A. & C.O. Department or the General Managers Office has been called by the respondent to contradict the deposition of Jha. Further, the respondent did not produce Receipt Register from the F.A. & C.O. Department to controvert the evidence of Jha although the respondents witness, the said M. Singh, deposed that the respondent maintained Receipt Registers at the relevant time. The respondent has adduced no evidence to rebut the testimony of Jha that the bills had been served on the respondent. I accept the evidence of Jha on this point."(emphasis is ours)Interestingly, there was no rebuttal to the assertions made by Shri A.N. Jha, before the learned Arbitrator. | 1[ds]5. During the course of hearing it emerged, that the main reason for the Division Bench of the High Court in accepting the appeal was, that the appellant did not produce vital documents called for by the Diesel Locomotive Works, before the Arbitrator.We find substance in the contention advanced at the hands of the learned counsel for the appellant, more particularly because learned counsel for the respondent, could not dispute the factual position recorded in the proceedings conducted before the Arbitrator, on 16.08.1989. We therefore, hereby set aside the finding recorded by the High Court, to the effect, that the documents sought for by the buyer - Diesel Locomotive Works, were neither produced before the Arbitrator, nor provided to the respondent.9. The next question, that arises for consideration is, whetherthe appellant was entitled to payment on account of short lifting of gases by the Diesel LocomotiveWorks. In this behalf, it has already been noticed hereinabove, that the Diesel Locomotive Works, would lift a minimum of 12,900 cubic meters of Oxygen gas, and a minimum of 2,500 cubic meters of Acetylene gas, per month. And whether or not they lifted the minimum quantity, the appellant herein - Kamrup Industrial Gases Ltd., would be entitled to payment for the same. Be that as it may, it is imperative to determine, before the appellant can be held to be entitled to claim the right of such payment, that the appellant - Kamrup Industrial Gases Ltd., had actually produced the gases in terms of the stated minimum quantum, and further, the appellant was not able to sell the shortfall, in the open market. The question of payment to the appellant would arise only if, there was a subsisting shortfall, after the steps referred to above were followed. This could be done by adding the amount of gases lifted by the Diesel Locomotive Works, and the amount of gases sold by the appellant in the open market. Payment for the shortfall would emerge, "only" if the shortfall of gases thus established, were shown to have been blown off, as has been claimed by the appellant before the Arbitrator, and before the High Court.The above factual finding of the High Court, has also been assailed by the appellant.13. Having perused the documents furnished by the appellant, at the asking of the Diesel Locomotive Works, and having perused the findings recorded with reference to the statement made by Shri A.N. Jha, before the Arbitrator (extracted above), we are satisfied, that on each occasion, before the shortfall of the gases were blown off, the appellant duly informed the Diesel Locomotive Works, and in that view of the matter, it is not possible for us to concur with the findings recorded by the High Court, that due intimation was not furnished by the appellant - Kamrup Industrial Gases Ltd., to the respondent - Diesel Locomotive Works, before carrying on the exercise of emptying their cylinders, by blowing off the unlifted gases. It is also relevant in this behalf to make a reference to the determination recorded by the Arbitrator, again based on the statement of the aforesaid Shri A.N. Jha, that on different occasion, relevant bills were raised by the appellant - Kamrup Industrial Gases Ltd., indicating payments claimable by the appellant. The bills raised also denoted the amounts deducted on account of the sale proceeds of the gases which the appellant could sell in the open market. According to Shri A.N. Jha, all the bills were duly furnished to the Diesel Locomotive Works.15. The list of dates reveals, that on 1.9.2006 the Calcutta High Court decreed the award dated 18.4.2004 (in Award Case No. 12/2004). The said factual position is not disputed in the counter affidavit filed on behalf of the respondent. | 1 | 3,387 | 708 | ### Instruction:
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A.N. Jha was cross-examined by the respondents Counsel, but his evidence on this topic has remained unshaken. Reference is made to Qs. 1044 to 1047 and Qs. 1370 to 1411 in cross-examination, put to the said A.N. Jha. The said A.N. Jha has proved that the said Blown off statements had been delivered by him personally to the responents employees at the General Managers Office. The said A.N. Jha has also deposed that the people at the General Managers Office of the respondent refused to acknowledge receipt of the said statements on the copies of the Statements produced by the claimant and the copies of the said Statements were kept in the office of the claimant which they have produced in this Reference and which have been exhibited herein as mentioned before. The claimant has also produced in this Reference their Plant Reports and proved the same through their witness, A.N. Jha (Qs. 244 to 265 in examination-in-chief). The Plant Reports were exhibited in these proceedings as Exhibit PPPPPPP series. The said A.N. Jha has deposed that the said Plant Reports were prepared by the Foreman on duty of the respondent on the basis of the production and sale of Oxygen and D.A. Gases during the relevant periods. The said Plant Reports were prepared under his supervision. The Plant Reports have entries regarding production, available gases lifted by DLW, Sales to other customers, Blown Off Statement and Closing Stock of the Claimant-Company. The Plant Reports are internal documents of the claimant, produced and proved by A.N. Jha in these proceedings. The other documents on which the claimant relies with regard to their case of blowing off of the gases are various bills submitted by the claimant in respect of the gases, both lifted and unlifted quantitites, made on the respondent. The claimants Counsel has contended that though these bills were duly served on the respondent in accordance with Clause 7 of the Agreement, no objections were raised regarding the accuracy and/or contents of the said bills."(emphasis is ours)13. Having perused the documents furnished by the appellant, at the asking of the Diesel Locomotive Works, and having perused the findings recorded with reference to the statement made by Shri A.N. Jha, before the Arbitrator (extracted above), we are satisfied, that on each occasion, before the shortfall of the gases were blown off, the appellant duly informed the Diesel Locomotive Works, and in that view of the matter, it is not possible for us to concur with the findings recorded by the High Court, that due intimation was not furnished by the appellant - Kamrup Industrial Gases Ltd., to the respondent - Diesel Locomotive Works, before carrying on the exercise of emptying their cylinders, by blowing off the unlifted gases. It is also relevant in this behalf to make a reference to the determination recorded by the Arbitrator, again based on the statement of the aforesaid Shri A.N. Jha, that on different occasion, relevant bills were raised by the appellant - Kamrup Industrial Gases Ltd., indicating payments claimable by the appellant. The bills raised also denoted the amounts deducted on account of the sale proceeds of the gases which the appellant could sell in the open market. According to Shri A.N. Jha, all the bills were duly furnished to the Diesel Locomotive Works. Details in this behalf are extracted below:"The claimant had called one A.N. Jha (full name Amar Nath Jha) as witness. Jha was the Office Superintendent of the Claimant-Company in 1971 and was appointed as the Assistant Manager in 1972 and was posted at the claimants factory at Varanasi during the relevant time. Jha had deposed that all the relevant bills with covering letters from the claimant were served on the respondent at the F.A. & C.O. Department of DLW at Varanasi by him personally and the receipt of the said bills were acknowledged by various officers of the said F.A. & C.O. Department of the respondent on the copy of the said bills (vide Qs. 32 to 75 in Examination-in-chief). The evidence of Jha in this respect had not been shaken in cross-examination by the learned Counsel for the respondent. With respect to bills for uplifted quantity of gas, the respondents case is that they made part payments for the gas supplies at the contract rate but withheld payment of escalation charges relating to rise in the price of Carbide mentioned in the said bills. Receipt of the said bills was not denied by the respondent. In respect of bills for the price of unuplifted quantities of gas, the respondents Counsel put Qs.1470 to 1497 to the said Jha in cross-examination. Jha maintained that he personally served the said bills at the Office of the F.A. & C.O. of the respondent and obtained acknowledgements by the people working at F.A. & C.O. Department of the respondent of the receipt of the said bills on the copies of the said bills, which are tendered in evidence in these proceedings.The respondents on their part called one M. Singh as their only witness. The said M. Singh was the Senior Clerk working in the Stores Department of the respondent at the relevant time. He did not belong to the F.A. & C.O. Department of the respondent and had no knowledge of affairs of the said F.A. & C.O. Department. No one from the said F.A. & C.O. Department or the General Managers Office has been called by the respondent to contradict the deposition of Jha. Further, the respondent did not produce Receipt Register from the F.A. & C.O. Department to controvert the evidence of Jha although the respondents witness, the said M. Singh, deposed that the respondent maintained Receipt Registers at the relevant time. The respondent has adduced no evidence to rebut the testimony of Jha that the bills had been served on the respondent. I accept the evidence of Jha on this point."(emphasis is ours)Interestingly, there was no rebuttal to the assertions made by Shri A.N. Jha, before the learned Arbitrator.
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5. During the course of hearing it emerged, that the main reason for the Division Bench of the High Court in accepting the appeal was, that the appellant did not produce vital documents called for by the Diesel Locomotive Works, before the Arbitrator.We find substance in the contention advanced at the hands of the learned counsel for the appellant, more particularly because learned counsel for the respondent, could not dispute the factual position recorded in the proceedings conducted before the Arbitrator, on 16.08.1989. We therefore, hereby set aside the finding recorded by the High Court, to the effect, that the documents sought for by the buyer - Diesel Locomotive Works, were neither produced before the Arbitrator, nor provided to the respondent.9. The next question, that arises for consideration is, whetherthe appellant was entitled to payment on account of short lifting of gases by the Diesel LocomotiveWorks. In this behalf, it has already been noticed hereinabove, that the Diesel Locomotive Works, would lift a minimum of 12,900 cubic meters of Oxygen gas, and a minimum of 2,500 cubic meters of Acetylene gas, per month. And whether or not they lifted the minimum quantity, the appellant herein - Kamrup Industrial Gases Ltd., would be entitled to payment for the same. Be that as it may, it is imperative to determine, before the appellant can be held to be entitled to claim the right of such payment, that the appellant - Kamrup Industrial Gases Ltd., had actually produced the gases in terms of the stated minimum quantum, and further, the appellant was not able to sell the shortfall, in the open market. The question of payment to the appellant would arise only if, there was a subsisting shortfall, after the steps referred to above were followed. This could be done by adding the amount of gases lifted by the Diesel Locomotive Works, and the amount of gases sold by the appellant in the open market. Payment for the shortfall would emerge, "only" if the shortfall of gases thus established, were shown to have been blown off, as has been claimed by the appellant before the Arbitrator, and before the High Court.The above factual finding of the High Court, has also been assailed by the appellant.13. Having perused the documents furnished by the appellant, at the asking of the Diesel Locomotive Works, and having perused the findings recorded with reference to the statement made by Shri A.N. Jha, before the Arbitrator (extracted above), we are satisfied, that on each occasion, before the shortfall of the gases were blown off, the appellant duly informed the Diesel Locomotive Works, and in that view of the matter, it is not possible for us to concur with the findings recorded by the High Court, that due intimation was not furnished by the appellant - Kamrup Industrial Gases Ltd., to the respondent - Diesel Locomotive Works, before carrying on the exercise of emptying their cylinders, by blowing off the unlifted gases. It is also relevant in this behalf to make a reference to the determination recorded by the Arbitrator, again based on the statement of the aforesaid Shri A.N. Jha, that on different occasion, relevant bills were raised by the appellant - Kamrup Industrial Gases Ltd., indicating payments claimable by the appellant. The bills raised also denoted the amounts deducted on account of the sale proceeds of the gases which the appellant could sell in the open market. According to Shri A.N. Jha, all the bills were duly furnished to the Diesel Locomotive Works.15. The list of dates reveals, that on 1.9.2006 the Calcutta High Court decreed the award dated 18.4.2004 (in Award Case No. 12/2004). The said factual position is not disputed in the counter affidavit filed on behalf of the respondent.
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Raghuvanshi Mills, Ltd Vs. Commissioner Of Income-Tax, Bombay | the hands of a group which acts as a block, the third proviso ceases to apply. 15. In deciding if there is such a controlling interest, there is no formula applicable to all cases. Relationship and position as Director are not by themselves decisive. If relatives act, not freely, but with others, they cannot be said to belong to that body, which is described as public in the Explanation. But it would be otherwise if they were free. Similarly, if Directors or some of them do not act as a body or in concert with others, the fact that they are Directors is of no significance. The case of Tatem Steam Navigation Co. Ltd. v. Commissioners of Inland Revenue, 1941-24 Tax Cas 57 illustrates the first proposition. There, the assessing Commissioners had made direction under S. 21 of the Finance Act, 1922 against which the Company appealed on the ground that it was a Company in which the public were substantially interested, inasmuch as shares of the Company carrying not less than 25 per cent. of the voting power had been allotted unconditionally to or acquired unconditionally by, and were, at the end of the relevant periods, beneficially held by the public and the decision of the Special Commissioners that 16,000 shares given by Lord Glanely to his niece were not allotted to or acquired by the public and that the Company was, therefore, not a Company in which the public were "substantially interested" was erroneous. It was held by Lawrence, J., that merely because she was a niece of Lord Glanely did not make her cease to be a member of public. The Court of Appeal agreed with Lawrence, J. No doubt, there were other provisions which laid down the kind of relationship which would lead to the inference that the holder was controlled by another, and a niece was not such a relative. The Act we are considering did not lay down the kind of relationship which would show such a control, and the same principle will apply. Mere relationship thus is not of consequence, unless control of the voting power held by such a relative, by another relative, is proved. 16. The other test adopted in the case by the Bombay High Court that Directors stand out side the public is also not decisive. In Commissioner of Income-tax v. H. Bjordal, 1955 AC 309, the Judicial Committee dealt with S. 21(1) of the Income Tax Ordinance No. 8 of 1940 (Uganda), as amended by S. 5 of the Income Tax (Amendment) Ordinance, 1943. That provision of law is completely in pari materia with S. 23A. Two brothers, H. Bjordal and S. Bjordal, held 73.96 and 25.09 per cent of the voting power. The shares held by S. Bjordal were purchased for full value by him from his brother. There was no suggestion that the was a nominee of the respondent or that he was acting in concert with his brother. Both brothers were Directors of the Company. It was held by the Judicial Committee that shareholders in a company who are members of the public do not cease to be so, because they become Directors. In the Uganda Ordinance also, like our Act, there was no guidance as to the meaning of the word public, as there was in the English statute considered in Tatems case, 1941-24 Tax Cas 57. It is significant that in Jubilee Mills Ltd. v. Commissioner of Income-tax, 1958-34 ITR 30 at p. 41: (AIR 1959 Bom 51 at p. 53) Chagal, C .J. , and S. T. Desai, J., speaking of the judgment under appeal and taking into consideration the Privy Council case, observed:"It may be that our view is erroneous; and it may be - and very probably it is -that the view taken by the Privy Council is the right one." 17. In our judgment, the test is first to find out whether there is an individual or a group which controls the voting power as a block. If there be such a block, the shares held by it cannot be said to be "unconditionally" and "beneficially" held by members of the public. In the category of shares held by the public, only those shares can be counted which are unconditionally and beneficially held by the public, or, in other words, which are uncontrolled by the group, which controls the affairs. The group itself may be composed of Directors or their nominees or relations in different combinations, but none can be said to belong to that group be he a director or a relative unless he does not hold the shares unconditionally and beneficially for himself. It is only such a person, who can fall properly outside the word public. 18. Judged from this point of view, the judgment and orders of the High Court cannot be upheld. Directors cannot, by reason of being Directors, be said not to be members of the public. To that extent, the judgment is erroneous. There is a finding by the Tribunal in the supplementary statement of the case that the shares held by Bipinchandra, Harishchandra and Krishnakumar were under the control of their father, Maganlal Parbhudas. Their holding was 3,000 and with Maganlals holding of 1,344 shares, make up a total of 4,344 shares. Though the question as framed by the High Court appears to have been correctly answered in the negative, it does not dispose of the matter. The question to be determined still is whether more than 75 percent of the shares are not beneficially held by the public. We accordingly set aside the judgment and orders of the High Court, and direct the High Court to decide the question originally framed by it, viz:"Whether on the facts and circumstances of the case the provisions of S. 23A of the Indian Income-tax Act, XI of 1922, are applicable to the petitioners?" The High Court may call for a supplemental statement of the case from the Tribunal, if it finds it necessary. | 1[ds]It is clear from the third proviso that the sub-section does not apply to a company in which the public are substantially interested. The Explanation lays down, among the tests, the minimum interest which can be called substantial by saying that shares of the company carrying not less than 25 per cent. of the voting power must be allotted unconditionally to, or acquired unconditionally by, the public and they must be beneficially held by the public. The essence of the Explanation lies not in the percentage which only shows the limit of the minimum holding by the public, but lies in the words "unconditionally" and "beneficially". These words underline the fat that no person who holds a share or shares not for his own benefit but for the benefit of another and who does not exercise freely his voting power, can be said to belong to that body, which is designated public. The word public is used in contradistinction to one or more persons who act in unison and among whom the voting power constitutes a block. If such a block exists and possesses more than seventy-five per cent of the voting power, then the company cannot be said to be one in which the public are substantially interested17. In our judgment, the test is first to find out whether there is an individual or a group which controls the voting power as a block. If there be such a block, the shares held by it cannot be said to be "unconditionally" and "beneficially" held by members of the public. In the category of shares held by the public, only those shares can be counted which are unconditionally and beneficially held by the public, or, in other words, which are uncontrolled by the group, which controls the affairs. The group itself may be composed of Directors or their nominees or relations in different combinations, but none can be said to belong to that group be he a director or a relative unless he does not hold the shares unconditionally and beneficially for himself. It is only such a person, who can fall properly outside the word public18. Judged from this point of view, the judgment and orders of the High Court cannot be upheld. Directors cannot, by reason of being Directors, be said not to be members of the public. To that extent, the judgment is erroneous. There is a finding by the Tribunal in the supplementary statement of the case that the shares held by Bipinchandra, Harishchandra and Krishnakumar were under the control of their father, Maganlal Parbhudas. Their holding was 3,000 and with Maganlals holding of 1,344 shares, make up a total of 4,344 shares. Though the question as framed by the High Court appears to have been correctly answered in the negative, it does not dispose of the matter. The question to be determined still is whether more than 75 percent of the shares are not beneficially held by the public. We accordingly set aside the judgment and orders of the High Court, and direct the High Court to decide the question originally framed by it, viz: | 1 | 4,142 | 583 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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the hands of a group which acts as a block, the third proviso ceases to apply. 15. In deciding if there is such a controlling interest, there is no formula applicable to all cases. Relationship and position as Director are not by themselves decisive. If relatives act, not freely, but with others, they cannot be said to belong to that body, which is described as public in the Explanation. But it would be otherwise if they were free. Similarly, if Directors or some of them do not act as a body or in concert with others, the fact that they are Directors is of no significance. The case of Tatem Steam Navigation Co. Ltd. v. Commissioners of Inland Revenue, 1941-24 Tax Cas 57 illustrates the first proposition. There, the assessing Commissioners had made direction under S. 21 of the Finance Act, 1922 against which the Company appealed on the ground that it was a Company in which the public were substantially interested, inasmuch as shares of the Company carrying not less than 25 per cent. of the voting power had been allotted unconditionally to or acquired unconditionally by, and were, at the end of the relevant periods, beneficially held by the public and the decision of the Special Commissioners that 16,000 shares given by Lord Glanely to his niece were not allotted to or acquired by the public and that the Company was, therefore, not a Company in which the public were "substantially interested" was erroneous. It was held by Lawrence, J., that merely because she was a niece of Lord Glanely did not make her cease to be a member of public. The Court of Appeal agreed with Lawrence, J. No doubt, there were other provisions which laid down the kind of relationship which would lead to the inference that the holder was controlled by another, and a niece was not such a relative. The Act we are considering did not lay down the kind of relationship which would show such a control, and the same principle will apply. Mere relationship thus is not of consequence, unless control of the voting power held by such a relative, by another relative, is proved. 16. The other test adopted in the case by the Bombay High Court that Directors stand out side the public is also not decisive. In Commissioner of Income-tax v. H. Bjordal, 1955 AC 309, the Judicial Committee dealt with S. 21(1) of the Income Tax Ordinance No. 8 of 1940 (Uganda), as amended by S. 5 of the Income Tax (Amendment) Ordinance, 1943. That provision of law is completely in pari materia with S. 23A. Two brothers, H. Bjordal and S. Bjordal, held 73.96 and 25.09 per cent of the voting power. The shares held by S. Bjordal were purchased for full value by him from his brother. There was no suggestion that the was a nominee of the respondent or that he was acting in concert with his brother. Both brothers were Directors of the Company. It was held by the Judicial Committee that shareholders in a company who are members of the public do not cease to be so, because they become Directors. In the Uganda Ordinance also, like our Act, there was no guidance as to the meaning of the word public, as there was in the English statute considered in Tatems case, 1941-24 Tax Cas 57. It is significant that in Jubilee Mills Ltd. v. Commissioner of Income-tax, 1958-34 ITR 30 at p. 41: (AIR 1959 Bom 51 at p. 53) Chagal, C .J. , and S. T. Desai, J., speaking of the judgment under appeal and taking into consideration the Privy Council case, observed:"It may be that our view is erroneous; and it may be - and very probably it is -that the view taken by the Privy Council is the right one." 17. In our judgment, the test is first to find out whether there is an individual or a group which controls the voting power as a block. If there be such a block, the shares held by it cannot be said to be "unconditionally" and "beneficially" held by members of the public. In the category of shares held by the public, only those shares can be counted which are unconditionally and beneficially held by the public, or, in other words, which are uncontrolled by the group, which controls the affairs. The group itself may be composed of Directors or their nominees or relations in different combinations, but none can be said to belong to that group be he a director or a relative unless he does not hold the shares unconditionally and beneficially for himself. It is only such a person, who can fall properly outside the word public. 18. Judged from this point of view, the judgment and orders of the High Court cannot be upheld. Directors cannot, by reason of being Directors, be said not to be members of the public. To that extent, the judgment is erroneous. There is a finding by the Tribunal in the supplementary statement of the case that the shares held by Bipinchandra, Harishchandra and Krishnakumar were under the control of their father, Maganlal Parbhudas. Their holding was 3,000 and with Maganlals holding of 1,344 shares, make up a total of 4,344 shares. Though the question as framed by the High Court appears to have been correctly answered in the negative, it does not dispose of the matter. The question to be determined still is whether more than 75 percent of the shares are not beneficially held by the public. We accordingly set aside the judgment and orders of the High Court, and direct the High Court to decide the question originally framed by it, viz:"Whether on the facts and circumstances of the case the provisions of S. 23A of the Indian Income-tax Act, XI of 1922, are applicable to the petitioners?" The High Court may call for a supplemental statement of the case from the Tribunal, if it finds it necessary.
### Response:
1
### Explanation:
It is clear from the third proviso that the sub-section does not apply to a company in which the public are substantially interested. The Explanation lays down, among the tests, the minimum interest which can be called substantial by saying that shares of the company carrying not less than 25 per cent. of the voting power must be allotted unconditionally to, or acquired unconditionally by, the public and they must be beneficially held by the public. The essence of the Explanation lies not in the percentage which only shows the limit of the minimum holding by the public, but lies in the words "unconditionally" and "beneficially". These words underline the fat that no person who holds a share or shares not for his own benefit but for the benefit of another and who does not exercise freely his voting power, can be said to belong to that body, which is designated public. The word public is used in contradistinction to one or more persons who act in unison and among whom the voting power constitutes a block. If such a block exists and possesses more than seventy-five per cent of the voting power, then the company cannot be said to be one in which the public are substantially interested17. In our judgment, the test is first to find out whether there is an individual or a group which controls the voting power as a block. If there be such a block, the shares held by it cannot be said to be "unconditionally" and "beneficially" held by members of the public. In the category of shares held by the public, only those shares can be counted which are unconditionally and beneficially held by the public, or, in other words, which are uncontrolled by the group, which controls the affairs. The group itself may be composed of Directors or their nominees or relations in different combinations, but none can be said to belong to that group be he a director or a relative unless he does not hold the shares unconditionally and beneficially for himself. It is only such a person, who can fall properly outside the word public18. Judged from this point of view, the judgment and orders of the High Court cannot be upheld. Directors cannot, by reason of being Directors, be said not to be members of the public. To that extent, the judgment is erroneous. There is a finding by the Tribunal in the supplementary statement of the case that the shares held by Bipinchandra, Harishchandra and Krishnakumar were under the control of their father, Maganlal Parbhudas. Their holding was 3,000 and with Maganlals holding of 1,344 shares, make up a total of 4,344 shares. Though the question as framed by the High Court appears to have been correctly answered in the negative, it does not dispose of the matter. The question to be determined still is whether more than 75 percent of the shares are not beneficially held by the public. We accordingly set aside the judgment and orders of the High Court, and direct the High Court to decide the question originally framed by it, viz:
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HARYANA POWER PURCHASE CENTRE Vs. MAGNUM POWER GENERATION LIMITED & ANR | order, not being challenged by either party. (viii) Despite this order and the clear direction of the Commission that fixed costs have to be paid to the generator irrespective of whether energy is purchased or not, the HERC order dated 23.03.2010 ultimately dismissed the appellants appeal filed under Section 86(1)(f) of the Electricity Act as follows:- Final Order The above order of the Commission on each issue needs to be given a concrete shape by calculating the due amount payable to the either party and whatever is the net to be paid to the petitioner as per the following directions:- After calculating the due amount within a period of one month, first instalment of the same may be paid within a period of two months and the balance amount two months thereafter. This amount however would not be reimbursed by HERC through any claim or through FSA since the respondents have been claiming FSA in respect of MPGL under the head Deemed Generation Charges and the same stands recovered from the electricity consumers. Hence, whatsoever the excess recovery they have made from the consumer on this account, after settlement of account with MPGL in the light of the findings in the earlier paragraphs, the remaining amount either be refunded back to the consumer or to be adjusted against the future filing with the prior approval of HERC. FSA formula approved by the Commission itself provides for subsequent adjustment of/under/over recovery of the same. In passing, the Commission would wish for the revival of the plant to augment the generating capacity in the State. It is advised that both the parties may request a generation expert at the Central Electricity Authority (CEA) Govt. Of India to pay a visit to the site to check up the present state of the plant in presence of both the parties. The fees for this maybe equally shared. Thereafter the parties may work out a scheme for operationalising the plant for the benefit of all the stakeholders by entering into a fresh PPA/renegotiating the existing one which is workable and takes into account the financial interest of both the parties and the interest of the consumers of Haryana at large. (ix) An appeal from this order was also dismissed by the Appellate Tribunal by judgment dated 23.03.2012 in which after setting out the various clauses of the PPA, the Appellate Tribunal held as follows:- 33. The above analysis of Article 8.2 would indicate that the Appellant was under obligation to make available the plant to generate atleast 148.79 MU at 75% PLF. This conclusion is supported by Article 6.1(j) & (k) under which the Appellant has undertaken to supply the Contracted Capacity as defined in Schedule 3 of the PPA and works out to 143.79 for tested capacity of the Plant. These provisions are reproduced below for better understanding and completeness. (i) Make available to HSEB not later than the Required Synchronization Date, the Contracted energy and the Contracted operating Characteristics of each Units; and (k) Operate and maintain the Project so as to provide the HSEB with the Contracted energy and the Contracted Operating Characteristics of the Units reliably over the Term of this Agreement, taking into account permissible degradation. 3.1 Formula for Contracted Electrical Output Contracted Electrical output per year in Million Kwh (MU) = (8760 x 0.75 x 1000) (1-AuxCons.%)xTested Capacity in MW 1000000 = 8760 x 0.75 x 0.965 x 22.67/1000 = 143.79 MU. 34. In the light of above analysis, we hold that the Appellant was under obligation to declare annual availability of the plant to atleast 75% of tested capacity so as to obtain an annual PLF of 75%. 2. Mr. Jayant Bhushan, learned senior counsel appearing on behalf of the appellant has argued that because of the Commissions order of 12.08.2002 and because the power generated by the appellant would impact the consumer as electricity charges would then become very high, the Commission made it clear that the appellants electrical energy was not a source of power which could at all be tapped as a result of which not even a single mega watt of power was supplied or sold by the appellant to the respondent. He, however, contended that this very Commissions order made it clear that this was in the consumer interest, but that the appellant would be entitled to recover its fixed cost, which unfortunately has been missed by both the Commission as well as the Appellate Tribunal in the impugned order. He also argued that both the orders were faulty in their reading of Clause 8.2 of the PPA which cannot be read so that supply at atleast 75% of the Plant Load Factor be made a condition precedent for claiming fixed energy charges, as that clause when properly read makes it clear that the PPA itself made it clear that once the power project has been set up by the appellant, the fixed energy cost will have to be paid in any event. 3. As against this, Mr. Gurinder Singh Gill, learned senior counsel appearing on behalf of the respondent, supported the judgments of the Commission and the Tribunal, and argued that a proper reading of Article 8.2 would make it clear that it would become operative only when declared availability is more than 75% of the Plant Load Factor. 4. Having heard learned counsel for both sides, these appeals can be disposed of on the short ground that the Commissions Tariff Order of 12.08.2003 had made it clear that fixed costs during the currency of the agreement for generating electricity must be paid despite no supply having been made because the tariff order itself interdicted such supply in consumer interest. We have also noted that for the years in question it is clear that the fixed cost that has been demanded by the appellant from the respondent has in fact been collected from the consumer but not paid over to the appellant, which would result in an unjust windfall for the respondent. | 1[ds]4. Having heard learned counsel for both sides, these appeals can be disposed of on the short ground that the Commissions Tariff Order of 12.08.2003 had made it clear that fixed costs during the currency of the agreement for generating electricity must be paid despite no supply having been made because the tariff order itself interdicted such supply in consumer interest. We have also noted that for the years in question it is clear that the fixed cost that has been demanded by the appellant from the respondent has in fact been collected from the consumer but not paid over to the appellant, which would result in an unjust windfall for the respondent. | 1 | 3,001 | 122 | ### 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:
order, not being challenged by either party. (viii) Despite this order and the clear direction of the Commission that fixed costs have to be paid to the generator irrespective of whether energy is purchased or not, the HERC order dated 23.03.2010 ultimately dismissed the appellants appeal filed under Section 86(1)(f) of the Electricity Act as follows:- Final Order The above order of the Commission on each issue needs to be given a concrete shape by calculating the due amount payable to the either party and whatever is the net to be paid to the petitioner as per the following directions:- After calculating the due amount within a period of one month, first instalment of the same may be paid within a period of two months and the balance amount two months thereafter. This amount however would not be reimbursed by HERC through any claim or through FSA since the respondents have been claiming FSA in respect of MPGL under the head Deemed Generation Charges and the same stands recovered from the electricity consumers. Hence, whatsoever the excess recovery they have made from the consumer on this account, after settlement of account with MPGL in the light of the findings in the earlier paragraphs, the remaining amount either be refunded back to the consumer or to be adjusted against the future filing with the prior approval of HERC. FSA formula approved by the Commission itself provides for subsequent adjustment of/under/over recovery of the same. In passing, the Commission would wish for the revival of the plant to augment the generating capacity in the State. It is advised that both the parties may request a generation expert at the Central Electricity Authority (CEA) Govt. Of India to pay a visit to the site to check up the present state of the plant in presence of both the parties. The fees for this maybe equally shared. Thereafter the parties may work out a scheme for operationalising the plant for the benefit of all the stakeholders by entering into a fresh PPA/renegotiating the existing one which is workable and takes into account the financial interest of both the parties and the interest of the consumers of Haryana at large. (ix) An appeal from this order was also dismissed by the Appellate Tribunal by judgment dated 23.03.2012 in which after setting out the various clauses of the PPA, the Appellate Tribunal held as follows:- 33. The above analysis of Article 8.2 would indicate that the Appellant was under obligation to make available the plant to generate atleast 148.79 MU at 75% PLF. This conclusion is supported by Article 6.1(j) & (k) under which the Appellant has undertaken to supply the Contracted Capacity as defined in Schedule 3 of the PPA and works out to 143.79 for tested capacity of the Plant. These provisions are reproduced below for better understanding and completeness. (i) Make available to HSEB not later than the Required Synchronization Date, the Contracted energy and the Contracted operating Characteristics of each Units; and (k) Operate and maintain the Project so as to provide the HSEB with the Contracted energy and the Contracted Operating Characteristics of the Units reliably over the Term of this Agreement, taking into account permissible degradation. 3.1 Formula for Contracted Electrical Output Contracted Electrical output per year in Million Kwh (MU) = (8760 x 0.75 x 1000) (1-AuxCons.%)xTested Capacity in MW 1000000 = 8760 x 0.75 x 0.965 x 22.67/1000 = 143.79 MU. 34. In the light of above analysis, we hold that the Appellant was under obligation to declare annual availability of the plant to atleast 75% of tested capacity so as to obtain an annual PLF of 75%. 2. Mr. Jayant Bhushan, learned senior counsel appearing on behalf of the appellant has argued that because of the Commissions order of 12.08.2002 and because the power generated by the appellant would impact the consumer as electricity charges would then become very high, the Commission made it clear that the appellants electrical energy was not a source of power which could at all be tapped as a result of which not even a single mega watt of power was supplied or sold by the appellant to the respondent. He, however, contended that this very Commissions order made it clear that this was in the consumer interest, but that the appellant would be entitled to recover its fixed cost, which unfortunately has been missed by both the Commission as well as the Appellate Tribunal in the impugned order. He also argued that both the orders were faulty in their reading of Clause 8.2 of the PPA which cannot be read so that supply at atleast 75% of the Plant Load Factor be made a condition precedent for claiming fixed energy charges, as that clause when properly read makes it clear that the PPA itself made it clear that once the power project has been set up by the appellant, the fixed energy cost will have to be paid in any event. 3. As against this, Mr. Gurinder Singh Gill, learned senior counsel appearing on behalf of the respondent, supported the judgments of the Commission and the Tribunal, and argued that a proper reading of Article 8.2 would make it clear that it would become operative only when declared availability is more than 75% of the Plant Load Factor. 4. Having heard learned counsel for both sides, these appeals can be disposed of on the short ground that the Commissions Tariff Order of 12.08.2003 had made it clear that fixed costs during the currency of the agreement for generating electricity must be paid despite no supply having been made because the tariff order itself interdicted such supply in consumer interest. We have also noted that for the years in question it is clear that the fixed cost that has been demanded by the appellant from the respondent has in fact been collected from the consumer but not paid over to the appellant, which would result in an unjust windfall for the respondent.
### Response:
1
### Explanation:
4. Having heard learned counsel for both sides, these appeals can be disposed of on the short ground that the Commissions Tariff Order of 12.08.2003 had made it clear that fixed costs during the currency of the agreement for generating electricity must be paid despite no supply having been made because the tariff order itself interdicted such supply in consumer interest. We have also noted that for the years in question it is clear that the fixed cost that has been demanded by the appellant from the respondent has in fact been collected from the consumer but not paid over to the appellant, which would result in an unjust windfall for the respondent.
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State of Andhra Pradesh Vs. Shaik Mazhar | scrutiny what the High Court did was to make a casual and sweeping approach in a cryptic manner. We deprecate the said practice of showering such uncharitable criticism on the trial Courts judgment, particularly when such judgments have been written with adequate care and necessary details. The short cut adopted by the Division Bench in disposing of the appeal against the conviction is reflected in the impugned judgment itself.Mr. N. Y. Hanumanthappa, J. who wrote the judgment for the Division Bench pointed out that Smt. P. Raj Kumari, Advocate was appointed as amicus curiae to argue for the accused and papers were handed over to her only on the morning of the date of judgment. The amicus curiae was heard only at 3.30 p.m. After narrating the facts and extracting portions of decisions cited before the Division Bench learned Judges, quite unfortunately, allotted only a brief paragraph for considering the merits of the case. That passage is reproduced hereunder :"Keeping in mind the principles laid down by the Supreme Court in the above referred cases, the finding reached by us is that prosecution failed to establish beyond reasonable doubt the involvement of the accused in the offence alleged. Having reached this conclusion, we have to say that the conviction and sentence passed against the accused is incorrect and the appeal deserves to be allowed. The appeal is disposed of accordingly." * It became a great task for us, in view of the short cut adopted by the High Court, to go through the relevant materials in the evidence for the prosecution. In the light of the detailed arguments addressed by Ms. T. Anamika, learned counsel for the State, the following circumstances are seen pitted against the accused :1. The extra-judicial confession spoken to by PW-1 (Syed Toufiq) which we discussed earlier;2. Accused (Saleem) and the deceased were seen together on the evening of the date of occurrence, proceeding to the side of the Dargah by PW-3 (Sabira Begum), PW-4 (Irfan Pasha) and PW-5 (Shareef Moizuddin);3. Accused was seen returning from the graveyard all alone and when he was asked why the child was not seen with him he did not give any answer, though he was seen perplexed at the query; and4. As already stated the child was murdered by somebody at the graveyard itself. We do not want to repeat the evidence relating to the extra-judicial confession. Ms. Sushma Manchanda, learned counsel for the accused made a bid to assail the said testimony on the ground that PW-1 was taken to the Magistrate for recording the statement under Section 164 of the Code of Criminal Procedure only after an interval of one month from the date of occurrence. Learned counsel contended that it would have been a belated version which came to the force. Ms. T. Anamika, learned counsel for the State of Andhra Pradesh pointed out that as a matter of fact that statement of PW-1 was recorded by the Magistrate on 11-11-1992 which is only 13 days after the incident. Be that as it may, the fact remains that PW-1 was interrogated by the Police on the next day of occurrence and he would have stated this fact then and there. PW-1 cannot be blamed for the delay in recording her statement under Section 164 of Criminal Procedure Code, if at all there was any delay in recording her statement under the said section. As pointed out earlier, the law is that an extra-judicial confession, if found reliable can be made the sole basis of conviction. Nonetheless as a proposition of practice and prudence it is advisable that Court may search for assuming circumstances, so that, there can be no room for doubt regarding the reliability of the extra-judicial confession. It is for the aforesaid purpose that we have perused the evidence of PW-3, PW-4 and PW-5. It is unnecessary to reproduce the entire testimony of those witnesses except saying that all of them said that they saw the accused with the girl child proceeding towards the Dargah on the evening of the day of occurrence. In fact PW-4 (Irfan Pasha), a child, who was playing with the deceased girl also wanted to accompany the girl as the offer of custard apple allured him also. PW-4 said that he was brushed aside by the accused and as he wanted to keep him away. PW-5 said that he wanted to take his child to a Unani Physician, PW-6 who was residing very close to the Dargah. It was on his way that Physician that he happened to see the accused with girl child. PW-6 when examined by the prosecution gave evidence which lends credence to the version of PW-5. It is pertinent in this context to point out that PW-5 had seen the accused returning from the graveyard when he was all alone. He asked accused why the child was not with him then.Ms. Sushma Manchanda, learned counsel used this opportunity to make an attack on the testimony of PW-5. She contended that if he did see the child with the accused the natural conduct should have been that he should have communicated this fact to others. Of course if such a conduct was exhibited by PW-5 that also could have been accepted as a natural conduct. But here, it is unnecessary for PW-5 to presume that some harm would have been inflicted on the child. It is possible for him to think that accused would have left the child at some place and he came back alone. Idea of homicide being inflicted on the child would not have occurred to PW-5 at that particular time.Having scrutinized the evidence of the above witnesses we have no manner of doubt that the learned Sessions Judge had reached the correct conclusion that the evidence was worthy of acceptance and the circumstances proved were quite sufficient to form the chain leading to the irrestible conclusion that the killer of the little girl was none other than respondent Saleem in this case. | 1[ds]It is for the aforesaid purpose that we have perused the evidence of5. It is unnecessary to reproduce the entire testimony of those witnesses except saying that all of them said that they saw the accused with the girl child proceeding towards the Dargah on the evening of the day of occurrence. In fact(Irfan Pasha), a child, who was playing with the deceased girl also wanted to accompany the girl as the offer of custard apple allured him also.said that he was brushed aside by the accused and as he wanted to keep him away.said that he wanted to take his child to a Unani Physician,who was residing very close to the Dargah. It was on his way that Physician that he happened to see the accused with girl child.when examined by the prosecution gave evidence which lends credence to the version ofIt is pertinent in this context to point out thathad seen the accused returning from the graveyard when he was all alone. He asked accused why the child was not with him then.Ms. Sushma Manchanda, learned counsel used this opportunity to make an attack on the testimony ofShe contended that if he did see the child with the accused the natural conduct should have been that he should have communicated this fact to others. Of course if such a conduct was exhibited bythat also could have been accepted as a natural conduct. But here, it is unnecessary forto presume that some harm would have been inflicted on the child. It is possible for him to think that accused would have left the child at some place and he came back alone. Idea of homicide being inflicted on the child would not have occurred toat that particular time.Having scrutinized the evidence of the above witnesses we have no manner of doubt that the learned Sessions Judge had reached the correct conclusion that the evidence was worthy of acceptance and the circumstances proved were quite sufficient to form the chain leading to the irrestible conclusion that the killer of the little girl was none other than respondent Saleem in this case. | 1 | 2,199 | 374 | ### Instruction:
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scrutiny what the High Court did was to make a casual and sweeping approach in a cryptic manner. We deprecate the said practice of showering such uncharitable criticism on the trial Courts judgment, particularly when such judgments have been written with adequate care and necessary details. The short cut adopted by the Division Bench in disposing of the appeal against the conviction is reflected in the impugned judgment itself.Mr. N. Y. Hanumanthappa, J. who wrote the judgment for the Division Bench pointed out that Smt. P. Raj Kumari, Advocate was appointed as amicus curiae to argue for the accused and papers were handed over to her only on the morning of the date of judgment. The amicus curiae was heard only at 3.30 p.m. After narrating the facts and extracting portions of decisions cited before the Division Bench learned Judges, quite unfortunately, allotted only a brief paragraph for considering the merits of the case. That passage is reproduced hereunder :"Keeping in mind the principles laid down by the Supreme Court in the above referred cases, the finding reached by us is that prosecution failed to establish beyond reasonable doubt the involvement of the accused in the offence alleged. Having reached this conclusion, we have to say that the conviction and sentence passed against the accused is incorrect and the appeal deserves to be allowed. The appeal is disposed of accordingly." * It became a great task for us, in view of the short cut adopted by the High Court, to go through the relevant materials in the evidence for the prosecution. In the light of the detailed arguments addressed by Ms. T. Anamika, learned counsel for the State, the following circumstances are seen pitted against the accused :1. The extra-judicial confession spoken to by PW-1 (Syed Toufiq) which we discussed earlier;2. Accused (Saleem) and the deceased were seen together on the evening of the date of occurrence, proceeding to the side of the Dargah by PW-3 (Sabira Begum), PW-4 (Irfan Pasha) and PW-5 (Shareef Moizuddin);3. Accused was seen returning from the graveyard all alone and when he was asked why the child was not seen with him he did not give any answer, though he was seen perplexed at the query; and4. As already stated the child was murdered by somebody at the graveyard itself. We do not want to repeat the evidence relating to the extra-judicial confession. Ms. Sushma Manchanda, learned counsel for the accused made a bid to assail the said testimony on the ground that PW-1 was taken to the Magistrate for recording the statement under Section 164 of the Code of Criminal Procedure only after an interval of one month from the date of occurrence. Learned counsel contended that it would have been a belated version which came to the force. Ms. T. Anamika, learned counsel for the State of Andhra Pradesh pointed out that as a matter of fact that statement of PW-1 was recorded by the Magistrate on 11-11-1992 which is only 13 days after the incident. Be that as it may, the fact remains that PW-1 was interrogated by the Police on the next day of occurrence and he would have stated this fact then and there. PW-1 cannot be blamed for the delay in recording her statement under Section 164 of Criminal Procedure Code, if at all there was any delay in recording her statement under the said section. As pointed out earlier, the law is that an extra-judicial confession, if found reliable can be made the sole basis of conviction. Nonetheless as a proposition of practice and prudence it is advisable that Court may search for assuming circumstances, so that, there can be no room for doubt regarding the reliability of the extra-judicial confession. It is for the aforesaid purpose that we have perused the evidence of PW-3, PW-4 and PW-5. It is unnecessary to reproduce the entire testimony of those witnesses except saying that all of them said that they saw the accused with the girl child proceeding towards the Dargah on the evening of the day of occurrence. In fact PW-4 (Irfan Pasha), a child, who was playing with the deceased girl also wanted to accompany the girl as the offer of custard apple allured him also. PW-4 said that he was brushed aside by the accused and as he wanted to keep him away. PW-5 said that he wanted to take his child to a Unani Physician, PW-6 who was residing very close to the Dargah. It was on his way that Physician that he happened to see the accused with girl child. PW-6 when examined by the prosecution gave evidence which lends credence to the version of PW-5. It is pertinent in this context to point out that PW-5 had seen the accused returning from the graveyard when he was all alone. He asked accused why the child was not with him then.Ms. Sushma Manchanda, learned counsel used this opportunity to make an attack on the testimony of PW-5. She contended that if he did see the child with the accused the natural conduct should have been that he should have communicated this fact to others. Of course if such a conduct was exhibited by PW-5 that also could have been accepted as a natural conduct. But here, it is unnecessary for PW-5 to presume that some harm would have been inflicted on the child. It is possible for him to think that accused would have left the child at some place and he came back alone. Idea of homicide being inflicted on the child would not have occurred to PW-5 at that particular time.Having scrutinized the evidence of the above witnesses we have no manner of doubt that the learned Sessions Judge had reached the correct conclusion that the evidence was worthy of acceptance and the circumstances proved were quite sufficient to form the chain leading to the irrestible conclusion that the killer of the little girl was none other than respondent Saleem in this case.
### Response:
1
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It is for the aforesaid purpose that we have perused the evidence of5. It is unnecessary to reproduce the entire testimony of those witnesses except saying that all of them said that they saw the accused with the girl child proceeding towards the Dargah on the evening of the day of occurrence. In fact(Irfan Pasha), a child, who was playing with the deceased girl also wanted to accompany the girl as the offer of custard apple allured him also.said that he was brushed aside by the accused and as he wanted to keep him away.said that he wanted to take his child to a Unani Physician,who was residing very close to the Dargah. It was on his way that Physician that he happened to see the accused with girl child.when examined by the prosecution gave evidence which lends credence to the version ofIt is pertinent in this context to point out thathad seen the accused returning from the graveyard when he was all alone. He asked accused why the child was not with him then.Ms. Sushma Manchanda, learned counsel used this opportunity to make an attack on the testimony ofShe contended that if he did see the child with the accused the natural conduct should have been that he should have communicated this fact to others. Of course if such a conduct was exhibited bythat also could have been accepted as a natural conduct. But here, it is unnecessary forto presume that some harm would have been inflicted on the child. It is possible for him to think that accused would have left the child at some place and he came back alone. Idea of homicide being inflicted on the child would not have occurred toat that particular time.Having scrutinized the evidence of the above witnesses we have no manner of doubt that the learned Sessions Judge had reached the correct conclusion that the evidence was worthy of acceptance and the circumstances proved were quite sufficient to form the chain leading to the irrestible conclusion that the killer of the little girl was none other than respondent Saleem in this case.
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Andhra Pradesh State Road Transport Corporation, Hyderabad Vs. G. T. Venkataswamy Reddy and Others | that part of the overlapping common sector if he does not pick up or set down passengers on the overlapping part of the route. Before the Supreme Court on behalf of the operators it was contended that a "route" according to the definition in Section 2(28-A) of the Motor Vehicles Act, 1939 meant a line drawn between two termini and if a portion of it had been nationalised, it would have no effect whatsoever on the permits to play stage carriages on the route, and that the complete exclusion of private operators from the common sector would be violative of Article 14 of the Constitution and also ultra vires Section 68-D of the Act. It was further contended that the provisions of Chapter IV and Chapter IV-A of the Act must be construed in such a manner as to allow permit holders to ply their stage carriages notwithstanding that parts of their route are also parts of notified routes. It was held thus : (SCR headnote pp. 662, 664 : SCC pp. 572 and 566-7, paras 17 and 7) "None of the schemes contains any saving clause in favour of operators plying or wanting to play stage carriages on common sectors. However, there is invariably a clause in the scheme to the effect that no person other than the State Government Undertaking will be permitted to provide road transport services on the routes specified in the scheme. In view of this provision in the scheme there is a total prohibition of private operators from plying stage carriages on the whole or part of the notified routes. The appellants cannot therefore contend that they can ply their vehicles on the notified routes or part of the notified routes A careful and diligent perusal of Sections 68-C, 68-D (3) and 68-FF in the light of the definition of the expression route in Section 2(28-A) appears to make it manifestly clear that once a scheme is published under Section 68-D in relation to any area or route or portion thereof, whether to the exclusion, complete or partial of other person or otherwise, no person other than the State Transport Undertaking may operate on the notified area or notified route except as provided in the scheme itself. A necessary consequence of these provisions is that no private operator can operate his vehicles on any part or portion of a notified area or notified route unless authorised so to do by the terms of the scheme itself. He may not operate on any part or portion of the notified route or area on the mere ground that the permit as originally granted to him covered the notified route." * 14. It will be noticed that in the present draft scheme there was a total exclusion of all operators except to the extend saved by the Note appended to the scheme. That Note did not give any chance to private operators of inter-State route to ply on the overlapping part of the route. After hearing the objections filed by respondent 1, clause (4) of the Note, which partially lifted the total embargo proposed to be imposed in the draft scheme, was introduced which permitted plying subject to the "corridor restrictions". Sub-section (3) of Section 68-D of the Act along with its proviso reads as follows "68-D. Objection to the scheme. - (1) * * * (2) * * * (3) The scheme as approved or modified under sub-section (2) shall then be published in the Official Gazette by the State Government and the same shall thereupon become final and shall be called the approved scheme and the area or route to which it relates shall be called the notified area or notified route Provided that no such scheme which relates to any inter-State route shall be deemed to be an approved scheme unless it has been published in the Official Gazette with the previous approval of the Central Government." * 15. It is clear from the language of sub-section (3) of Section 68-D of the Act that the approved scheme is a scheme as published under Section 68-D (3) of the Act and its route is called the "notified route" and unless such scheme itself i.e. draft scheme itself relates to any inter-State route, the condition of the proviso of taking prior Central Governments approval will not arise and the same view was taken by this Court in the aforesaid cases. 16. On behalf of the respondent plea was again argued that the condition contained in clause (4) of the Note regarding the "corridor restrictions" did not find place in the draft scheme and even though they had filed objections and they had been heard, yet the principles of natural justice were violated. It is suffice to say that the draft scheme totally excluded the private operators on the notified route and only after hearing respondent 1 in support of his objections that the prohibition was relaxed which was envisaged in the draft scheme. In the circumstances it cannot be said that instead of total prohibition the embargo is lifted partially under the approved scheme still the principles of natural justice have been violated. 17. Another argument urged was discrimination under Article 14 of the Constitution of India inasmuch as the scheme permits certain private operators in certain overlapping routes being given free permission to operate whereas respondent 1 who operates inter-State stage carriage service is being subject to "corridor restrictions". This point does not appear to have been urged either before the Single Bench or before the Division Bench. However, it is not pointed out how the various routes are similar to each other. A reasonable classification is always permissible. It is the interest of the passengers which has to be looked into in nationalisation of the routes and not necessarily the interest of the private operators. It is clear from the counter-affidavit filed on behalf of the appellants before the High Court that no case of Article 14 of the Constitution was made out. | 1[ds]15. It is clear from the language ofn (3) of SectionD of the Act that the approved scheme is a scheme as published under SectionD (3) of the Act and its route is called the "notified route" and unless such scheme itself i.e. draft scheme itself relates to anye route, the condition of the proviso of taking prior Central Governments approval will not arise and the same view was taken by this Court in the aforesaid cases16. On behalf of the respondent plea was again argued that the condition contained in clause (4) of the Note regarding the "corridor restrictions" did not find place in the draft scheme and even though they had filed objections and they had been heard, yet the principles of natural justice were violated. It is suffice to say that the draft scheme totally excluded the private operators on the notified route and only after hearing respondent 1 in support of his objections that the prohibition was relaxed which was envisaged in the draft scheme. In the circumstances it cannot be said that instead of total prohibition the embargo is lifted partially under the approved scheme still the principles of natural justice have been violated17. Another argument urged was discrimination under Article 14 of the Constitution of India inasmuch as the scheme permits certain private operators in certain overlapping routes being given free permission to operate whereas respondent 1 who operatese stage carriage service is being subject to "corridor restrictions". This point does not appear to have been urged either before the Single Bench or before the Division Bench. However, it is not pointed out how the various routes are similar to each other. A reasonable classification is always permissible. It is the interest of the passengers which has to be looked into in nationalisation of the routes and not necessarily the interest of the private operators. It is clear from thet filed on behalf of the appellants before the High Court that no case of Article 14 of the Constitution was made out | 1 | 3,669 | 369 | ### Instruction:
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that part of the overlapping common sector if he does not pick up or set down passengers on the overlapping part of the route. Before the Supreme Court on behalf of the operators it was contended that a "route" according to the definition in Section 2(28-A) of the Motor Vehicles Act, 1939 meant a line drawn between two termini and if a portion of it had been nationalised, it would have no effect whatsoever on the permits to play stage carriages on the route, and that the complete exclusion of private operators from the common sector would be violative of Article 14 of the Constitution and also ultra vires Section 68-D of the Act. It was further contended that the provisions of Chapter IV and Chapter IV-A of the Act must be construed in such a manner as to allow permit holders to ply their stage carriages notwithstanding that parts of their route are also parts of notified routes. It was held thus : (SCR headnote pp. 662, 664 : SCC pp. 572 and 566-7, paras 17 and 7) "None of the schemes contains any saving clause in favour of operators plying or wanting to play stage carriages on common sectors. However, there is invariably a clause in the scheme to the effect that no person other than the State Government Undertaking will be permitted to provide road transport services on the routes specified in the scheme. In view of this provision in the scheme there is a total prohibition of private operators from plying stage carriages on the whole or part of the notified routes. The appellants cannot therefore contend that they can ply their vehicles on the notified routes or part of the notified routes A careful and diligent perusal of Sections 68-C, 68-D (3) and 68-FF in the light of the definition of the expression route in Section 2(28-A) appears to make it manifestly clear that once a scheme is published under Section 68-D in relation to any area or route or portion thereof, whether to the exclusion, complete or partial of other person or otherwise, no person other than the State Transport Undertaking may operate on the notified area or notified route except as provided in the scheme itself. A necessary consequence of these provisions is that no private operator can operate his vehicles on any part or portion of a notified area or notified route unless authorised so to do by the terms of the scheme itself. He may not operate on any part or portion of the notified route or area on the mere ground that the permit as originally granted to him covered the notified route." * 14. It will be noticed that in the present draft scheme there was a total exclusion of all operators except to the extend saved by the Note appended to the scheme. That Note did not give any chance to private operators of inter-State route to ply on the overlapping part of the route. After hearing the objections filed by respondent 1, clause (4) of the Note, which partially lifted the total embargo proposed to be imposed in the draft scheme, was introduced which permitted plying subject to the "corridor restrictions". Sub-section (3) of Section 68-D of the Act along with its proviso reads as follows "68-D. Objection to the scheme. - (1) * * * (2) * * * (3) The scheme as approved or modified under sub-section (2) shall then be published in the Official Gazette by the State Government and the same shall thereupon become final and shall be called the approved scheme and the area or route to which it relates shall be called the notified area or notified route Provided that no such scheme which relates to any inter-State route shall be deemed to be an approved scheme unless it has been published in the Official Gazette with the previous approval of the Central Government." * 15. It is clear from the language of sub-section (3) of Section 68-D of the Act that the approved scheme is a scheme as published under Section 68-D (3) of the Act and its route is called the "notified route" and unless such scheme itself i.e. draft scheme itself relates to any inter-State route, the condition of the proviso of taking prior Central Governments approval will not arise and the same view was taken by this Court in the aforesaid cases. 16. On behalf of the respondent plea was again argued that the condition contained in clause (4) of the Note regarding the "corridor restrictions" did not find place in the draft scheme and even though they had filed objections and they had been heard, yet the principles of natural justice were violated. It is suffice to say that the draft scheme totally excluded the private operators on the notified route and only after hearing respondent 1 in support of his objections that the prohibition was relaxed which was envisaged in the draft scheme. In the circumstances it cannot be said that instead of total prohibition the embargo is lifted partially under the approved scheme still the principles of natural justice have been violated. 17. Another argument urged was discrimination under Article 14 of the Constitution of India inasmuch as the scheme permits certain private operators in certain overlapping routes being given free permission to operate whereas respondent 1 who operates inter-State stage carriage service is being subject to "corridor restrictions". This point does not appear to have been urged either before the Single Bench or before the Division Bench. However, it is not pointed out how the various routes are similar to each other. A reasonable classification is always permissible. It is the interest of the passengers which has to be looked into in nationalisation of the routes and not necessarily the interest of the private operators. It is clear from the counter-affidavit filed on behalf of the appellants before the High Court that no case of Article 14 of the Constitution was made out.
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15. It is clear from the language ofn (3) of SectionD of the Act that the approved scheme is a scheme as published under SectionD (3) of the Act and its route is called the "notified route" and unless such scheme itself i.e. draft scheme itself relates to anye route, the condition of the proviso of taking prior Central Governments approval will not arise and the same view was taken by this Court in the aforesaid cases16. On behalf of the respondent plea was again argued that the condition contained in clause (4) of the Note regarding the "corridor restrictions" did not find place in the draft scheme and even though they had filed objections and they had been heard, yet the principles of natural justice were violated. It is suffice to say that the draft scheme totally excluded the private operators on the notified route and only after hearing respondent 1 in support of his objections that the prohibition was relaxed which was envisaged in the draft scheme. In the circumstances it cannot be said that instead of total prohibition the embargo is lifted partially under the approved scheme still the principles of natural justice have been violated17. Another argument urged was discrimination under Article 14 of the Constitution of India inasmuch as the scheme permits certain private operators in certain overlapping routes being given free permission to operate whereas respondent 1 who operatese stage carriage service is being subject to "corridor restrictions". This point does not appear to have been urged either before the Single Bench or before the Division Bench. However, it is not pointed out how the various routes are similar to each other. A reasonable classification is always permissible. It is the interest of the passengers which has to be looked into in nationalisation of the routes and not necessarily the interest of the private operators. It is clear from thet filed on behalf of the appellants before the High Court that no case of Article 14 of the Constitution was made out
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Muncipal Corporation For Greater Bombay Vs. Lala Pancham Of Bombay & Others | the instance of persons who would be affected by the order. Since tenants would be affected by it, they fall an this class. It is true that cl. (b) of that provision contemplates actual service of notice only on the persons primarily liable to pay property tax and on the mortgagees of the property but not on others and also says that the time within and the manner in which objections to the order could be made to the Commissioner should also be specified but it does not say anything regarding the tenants. But if because of this we were to hold that it would not be open to a tenant or any other person who would be affected by the order, to lodge an objection to the proposed order it would be making the publication of notice practically meaningless. Undoubtedly tenants are persons who would be affected by the Order. Sub-section (2) of Section 354R casts certain duties upon the Corporation with respect to the persons who are likely to be dishoused in consequence of the clearance order. It would, therefore, be legitimate to infer that a corresponding right was conferred upon the tenants to secure the performance of its duties towards them by the Corporation. This right would be in a addition to their interest in the property itself. They must, therefore, be held to be persons who are entitled to lodge an objection to the proposed order. Mr. Shroff, however, contends that cl. (b) of sub-section (4) of S. 354RA confines the right to lodge an objection only to the persons specified in that clause and that there is nothing in the language of cl. (a) from which a similar right can be deduced in favour of other persons. It seems to us that in order to give full effect to the provisions of both cls. (a) and (b) of sub-s. (4) the words and specifying the time within and manner in which objections thereto can be made to the Commissioner occurring at the end of cl. (b) should be read as governing not only the rest of cl. (b) but also cl. (a). We would not be re-writing the Section if we did so because if the object of the legislature was to give a right to lodge objections only to the persons specified in cl. (4) (b), sub-s. (5) would not have said that the Commissioner shall submit to the Improvements Committee the objections received under subsection (4), but would have said instead objections received under cl. (b) of sub-s. (4)".21. That a right has been conferred upon a tenant to lodge an objection is made further clear by the provisions of cl. (2) of Schedule GG which we have earlier reproduced. The expression "any person aggrieved" is sufficiently wide to include not only a tenant but also an occupant of a building who is likely to be dishoused as a result of the action taken under a clearance order." The expression person aggrieved" has not been defined in the Act and, therefore, we are entitled to give it its natural meaning. The natural meaning would certainly include a person whose interest is in any manner affected by the order. We are supported in this by the observations of James L. J., in Ex parte Sidebotham; In re Sidebotham, (1880) 14 Ch D 458 at p. 465. A similar expression occurring in S. 24(1) of the Administration of Evacuee Property Act, 1950 was the subject of construction in Mahammad Sharifuddin v. R. P. Singh, (S) AIR 1957 Pat 235 . The learned Judges there held that these words are of the widest amplitude and are wide enough to include an Assistant Custodian of Evacuee Properties.22. Since the right conferred by cl. (2) of Schedule GG upon an aggrieved person is a right to prefer an appeal against a clearance order, as confirmed by the Government, before a Judge of the City Civil Court, Mr. Shroff contends that the words "aggrieved person" therein must necessarily mean a person who was a party to the order. It is true that ordinarily a right of appeal is conferred on a person who is a party to the proceeding but that would be so only where the proceeding is between certain parties. A proceeding of the nature contemplated by S. 354R is not, strictly speaking, a proceeding between the parties ranged on opposite sides. What is contemplated is the exercise of certain powers by the Corporation which will affect the interests of a variety of persons or a class or classes of persons and cl. (2) of Schedule GG gives a right to any of them to prefer an appeal if his legal right or interest is affected by any action of the Corporation taken in pursuance of its powers.23. Upon a reasonable construction of Section 354RA and Schedule GG it must therefore, be held that they afford opportunities to tenants to object to the clearance order. It follows from this that the restrictions on the tenants right to hold property enacted by Ss. 354R and 354RA are not unreasonable and that the provisions are valid. Mr. Shroff agrees that if the restrictions are reasonable his contention that these provisions are unconstitutional must fail.24. Upon the view then that these provisions are valid it must further follow that it was open to the plaintiffs to prefer an appeal before a Judge of the Civil Court. Finality is given to a clearance order after its confirmation by the Government and its publication in the manner prescribed in cl. (2) of Schedule GG subject only to the result of an appeal preferred under cl. (2) of Schedule GG by a person aggrieved. If no such appeal is preferred or if such appeal is filed and dismissed no remedy by suit is available to a person like a tenant who contends that he is aggrieved. Agreeing with the learned City Civil Court Judge we hold that the plaintiffs suit was not maintainable. | 1[ds]While therefore, it is true that the plaintiffs have characterised the action of the Corporation as "mala fide" the grounds upon which the action is characterised as mala fide appear to be (a) the unconstitutionality of the provisions of S. 354R and 354RA and (b) failure of the Corporation to give an opportunity to the plaintiffs to satisfy its officers that the premises did not require to be demolished. By the amendment made by them in pursuance of the order of the High Court they have shifted their ground by saying that the landlords have fraudulently and wrongfully induced the Corporation to make the order and plead alternatively that as the landlords have denied their responsibility to provide accommodation to all the tenants in the new building intended to be constructed on the site, a clearance order could not properly be made by theappears to be good foundation for what Mr. Setalvad says but merely because an amendment was sought by the plaintiffs at the suggestion of the court it would not be proper for us to disallow it unless there are grounds for holding that it was forced upon an unwilling party. That is, however, not the suggestion. For, the court wanting to do justice may invite the attention of the parties to defects in pleadings so that they could be remedied and the real issue between the parties tried. There is, however, an other ground and a stronger one which impels us to hold that the amendment should never have been allowed. That ground is that the plaintiffs are now making out a case of fraud for which there is not the slightest basis in the plaint as it originally stood. The mere use of the word mala fide in the plaint cannot afford any basis for permitting an amendment. The context in which the word mala fide is used in the plaint clearly shows that what the plaintiffs meant was that the order of the Corporation having been made in exercise of arbitrary powers and having the result of adversely affecting the plaintiffs right under Art. 19(1) (f) and (g) of the Constitution amounted to an abuse of the provisions of the Act and was thus made malaclearly shows that what the High Court has in substance done is to order a fresh trial. Such a course is not permissible under O. XLI, R. 27,Code of Civil Procedure. The High Court has quite clearly not proceeded under O. XLI, R. 25 because it has not come to the conclusion that the City Civil Court had omitted to frame or try an issue or to determine the question of fact which was essential to the right decision of a suit. For, the High Court has not indicated which issue was not tried by the trial Court. If the High Court meant that the necessary issue had not been raised by the trial court though such issue was called for in the light of the pleadings, the High Court is required under this rule to frame the additional issue and then remit it for trial to the City Civil Court. Finally, this is not a case which was decided by the trial court on any preliminary point and, therefore, a general remand such as is permissible under R. 23 could not be ordered.We are, therefore, of the view that the High Court was in error in allowing the amendment to the plaint and in remitting the suit to the trial court for a virtual retrial. The High Court however, did not rest content with this order but further directed "we particularly want the Commissioner and the City Engineer and the defendants to be examined on this question -the question being the breach of an assurance given to the tenants. In making this direction the High Court may have been actuated by a laudable motive but we think it ought to have borne in mind the limits which the law places upon the powers of the court in dealing with a case before it. Just as it is not open to a court to compel a party to make a particular kind of pleading or to amend his pleading so also it is beyond its competence to virtually oblige a party to examine any particular witness. No doubt, what the High Court has said is not in terms a peremptory order but the parties could possibly not take the risk of treating it otherwise. While, therefore, it is the duty of a court of law not only to do justice but to ensure that justice is done it should bear in mind that it must act only according to law, not otherwise.We have no doubt that a tenant has both under the Transfer of Property Act and under S. 12 of the Bombay Rents, Hotel and Lodging House Rates Control, Act, 1947 an interest in the demised premises which squarely falls within the expression property occurring in sub-cl. (f) of cl. (1) of Art. 19 of the Constitution. The right which a tenant enjoys under this sub-clause is, however, subject to the provisions of cl. (5) of Art. 19 which, among other things, provides that the right recognised by the sub-clause does not affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses in the interests of the general public. The Bombay Municipal Corporation Act was admittedly an existing law at the date of the commencement of the Constitution but Ss. 354R to 354RA were substituted for the earlier provisos by S. 18 of Bombay Act 34 of 1954. So what we have to ascertain is whether the law as it stands imposes a reasonable restriction on the tenants right to hold the demised premises. For this purpose we will have to examine the provisions of the Act which empower the Corporation to make a clearanceis no doubt true that there is no express mention of tenants in either of these provisions but from the fact that cl. (a) of sub-section (4) of S. 354RA requires the publication of the clearance order it would be reasonable to infer that the object of doing so is to invite objections at the instance of persons who would be affected by the order. Since tenants would be affected by it, they fall an this class. It is true that cl. (b) of that provision contemplates actual service of notice only on the persons primarily liable to pay property tax and on the mortgagees of the property but not on others and also says that the time within and the manner in which objections to the order could be made to the Commissioner should also be specified but it does not say anything regarding the tenants. But if because of this we were to hold that it would not be open to a tenant or any other person who would be affected by the order, to lodge an objection to the proposed order it would be making the publication of notice practically meaningless. Undoubtedly tenants are persons who would be affected by the Order. Sub-section (2) of Section 354R casts certain duties upon the Corporation with respect to the persons who are likely to be dishoused in consequence of the clearance order. It would, therefore, be legitimate to infer that a corresponding right was conferred upon the tenants to secure the performance of its duties towards them by the Corporation. This right would be in a addition to their interest in the property itself. They must, therefore, be held to be persons who are entitled to lodge an objection to the proposed order. Mr. Shroff, however, contends that cl. (b) of sub-section (4) of S. 354RA confines the right to lodge an objection only to the persons specified in that clause and that there is nothing in the language of cl. (a) from which a similar right can be deduced in favour of other persons. It seems to us that in order to give full effect to the provisions of both cls. (a) and (b) of sub-s. (4) the words and specifying the time within and manner in which objections thereto can be made to the Commissioner occurring at the end of cl. (b) should be read as governing not only the rest of cl. (b) but also cl. (a). We would not be re-writing the Section if we did so because if the object of the legislature was to give a right to lodge objections only to the persons specified in cl. (4) (b), sub-s. (5) would not have said that the Commissioner shall submit to the Improvements Committee the objections received under subsection (4), but would have said instead objections received under cl. (b) of sub-s. (4)".Upon a reasonable construction of Section 354RA and Schedule GG it must therefore, be held that they afford opportunities to tenants to object to the clearance order. It follows from this that the restrictions on the tenants right to hold property enacted by Ss. 354R and 354RA are not unreasonable and that the provisions are valid. Mr. Shroff agrees that if the restrictions are reasonable his contention that these provisions are unconstitutional must fail.24. Upon the view then that these provisions are valid it must further follow that it was open to the plaintiffs to prefer an appeal before a Judge of the Civil Court. Finality is given to a clearance order after its confirmation by the Government and its publication in the manner prescribed in cl. (2) of Schedule GG subject only to the result of an appeal preferred under cl. (2) of Schedule GG by a person aggrieved. If no such appeal is preferred or if such appeal is filed and dismissed no remedy by suit is available to a person like a tenant who contends that he is aggrieved. Agreeing with the learned City Civil Court Judge we hold that the plaintiffs suit was not maintainable. | 1 | 7,450 | 1,851 | ### Instruction:
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the instance of persons who would be affected by the order. Since tenants would be affected by it, they fall an this class. It is true that cl. (b) of that provision contemplates actual service of notice only on the persons primarily liable to pay property tax and on the mortgagees of the property but not on others and also says that the time within and the manner in which objections to the order could be made to the Commissioner should also be specified but it does not say anything regarding the tenants. But if because of this we were to hold that it would not be open to a tenant or any other person who would be affected by the order, to lodge an objection to the proposed order it would be making the publication of notice practically meaningless. Undoubtedly tenants are persons who would be affected by the Order. Sub-section (2) of Section 354R casts certain duties upon the Corporation with respect to the persons who are likely to be dishoused in consequence of the clearance order. It would, therefore, be legitimate to infer that a corresponding right was conferred upon the tenants to secure the performance of its duties towards them by the Corporation. This right would be in a addition to their interest in the property itself. They must, therefore, be held to be persons who are entitled to lodge an objection to the proposed order. Mr. Shroff, however, contends that cl. (b) of sub-section (4) of S. 354RA confines the right to lodge an objection only to the persons specified in that clause and that there is nothing in the language of cl. (a) from which a similar right can be deduced in favour of other persons. It seems to us that in order to give full effect to the provisions of both cls. (a) and (b) of sub-s. (4) the words and specifying the time within and manner in which objections thereto can be made to the Commissioner occurring at the end of cl. (b) should be read as governing not only the rest of cl. (b) but also cl. (a). We would not be re-writing the Section if we did so because if the object of the legislature was to give a right to lodge objections only to the persons specified in cl. (4) (b), sub-s. (5) would not have said that the Commissioner shall submit to the Improvements Committee the objections received under subsection (4), but would have said instead objections received under cl. (b) of sub-s. (4)".21. That a right has been conferred upon a tenant to lodge an objection is made further clear by the provisions of cl. (2) of Schedule GG which we have earlier reproduced. The expression "any person aggrieved" is sufficiently wide to include not only a tenant but also an occupant of a building who is likely to be dishoused as a result of the action taken under a clearance order." The expression person aggrieved" has not been defined in the Act and, therefore, we are entitled to give it its natural meaning. The natural meaning would certainly include a person whose interest is in any manner affected by the order. We are supported in this by the observations of James L. J., in Ex parte Sidebotham; In re Sidebotham, (1880) 14 Ch D 458 at p. 465. A similar expression occurring in S. 24(1) of the Administration of Evacuee Property Act, 1950 was the subject of construction in Mahammad Sharifuddin v. R. P. Singh, (S) AIR 1957 Pat 235 . The learned Judges there held that these words are of the widest amplitude and are wide enough to include an Assistant Custodian of Evacuee Properties.22. Since the right conferred by cl. (2) of Schedule GG upon an aggrieved person is a right to prefer an appeal against a clearance order, as confirmed by the Government, before a Judge of the City Civil Court, Mr. Shroff contends that the words "aggrieved person" therein must necessarily mean a person who was a party to the order. It is true that ordinarily a right of appeal is conferred on a person who is a party to the proceeding but that would be so only where the proceeding is between certain parties. A proceeding of the nature contemplated by S. 354R is not, strictly speaking, a proceeding between the parties ranged on opposite sides. What is contemplated is the exercise of certain powers by the Corporation which will affect the interests of a variety of persons or a class or classes of persons and cl. (2) of Schedule GG gives a right to any of them to prefer an appeal if his legal right or interest is affected by any action of the Corporation taken in pursuance of its powers.23. Upon a reasonable construction of Section 354RA and Schedule GG it must therefore, be held that they afford opportunities to tenants to object to the clearance order. It follows from this that the restrictions on the tenants right to hold property enacted by Ss. 354R and 354RA are not unreasonable and that the provisions are valid. Mr. Shroff agrees that if the restrictions are reasonable his contention that these provisions are unconstitutional must fail.24. Upon the view then that these provisions are valid it must further follow that it was open to the plaintiffs to prefer an appeal before a Judge of the Civil Court. Finality is given to a clearance order after its confirmation by the Government and its publication in the manner prescribed in cl. (2) of Schedule GG subject only to the result of an appeal preferred under cl. (2) of Schedule GG by a person aggrieved. If no such appeal is preferred or if such appeal is filed and dismissed no remedy by suit is available to a person like a tenant who contends that he is aggrieved. Agreeing with the learned City Civil Court Judge we hold that the plaintiffs suit was not maintainable.
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to a court to compel a party to make a particular kind of pleading or to amend his pleading so also it is beyond its competence to virtually oblige a party to examine any particular witness. No doubt, what the High Court has said is not in terms a peremptory order but the parties could possibly not take the risk of treating it otherwise. While, therefore, it is the duty of a court of law not only to do justice but to ensure that justice is done it should bear in mind that it must act only according to law, not otherwise.We have no doubt that a tenant has both under the Transfer of Property Act and under S. 12 of the Bombay Rents, Hotel and Lodging House Rates Control, Act, 1947 an interest in the demised premises which squarely falls within the expression property occurring in sub-cl. (f) of cl. (1) of Art. 19 of the Constitution. The right which a tenant enjoys under this sub-clause is, however, subject to the provisions of cl. (5) of Art. 19 which, among other things, provides that the right recognised by the sub-clause does not affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses in the interests of the general public. The Bombay Municipal Corporation Act was admittedly an existing law at the date of the commencement of the Constitution but Ss. 354R to 354RA were substituted for the earlier provisos by S. 18 of Bombay Act 34 of 1954. So what we have to ascertain is whether the law as it stands imposes a reasonable restriction on the tenants right to hold the demised premises. For this purpose we will have to examine the provisions of the Act which empower the Corporation to make a clearanceis no doubt true that there is no express mention of tenants in either of these provisions but from the fact that cl. (a) of sub-section (4) of S. 354RA requires the publication of the clearance order it would be reasonable to infer that the object of doing so is to invite objections at the instance of persons who would be affected by the order. Since tenants would be affected by it, they fall an this class. It is true that cl. (b) of that provision contemplates actual service of notice only on the persons primarily liable to pay property tax and on the mortgagees of the property but not on others and also says that the time within and the manner in which objections to the order could be made to the Commissioner should also be specified but it does not say anything regarding the tenants. But if because of this we were to hold that it would not be open to a tenant or any other person who would be affected by the order, to lodge an objection to the proposed order it would be making the publication of notice practically meaningless. Undoubtedly tenants are persons who would be affected by the Order. Sub-section (2) of Section 354R casts certain duties upon the Corporation with respect to the persons who are likely to be dishoused in consequence of the clearance order. It would, therefore, be legitimate to infer that a corresponding right was conferred upon the tenants to secure the performance of its duties towards them by the Corporation. This right would be in a addition to their interest in the property itself. They must, therefore, be held to be persons who are entitled to lodge an objection to the proposed order. Mr. Shroff, however, contends that cl. (b) of sub-section (4) of S. 354RA confines the right to lodge an objection only to the persons specified in that clause and that there is nothing in the language of cl. (a) from which a similar right can be deduced in favour of other persons. It seems to us that in order to give full effect to the provisions of both cls. (a) and (b) of sub-s. (4) the words and specifying the time within and manner in which objections thereto can be made to the Commissioner occurring at the end of cl. (b) should be read as governing not only the rest of cl. (b) but also cl. (a). We would not be re-writing the Section if we did so because if the object of the legislature was to give a right to lodge objections only to the persons specified in cl. (4) (b), sub-s. (5) would not have said that the Commissioner shall submit to the Improvements Committee the objections received under subsection (4), but would have said instead objections received under cl. (b) of sub-s. (4)".Upon a reasonable construction of Section 354RA and Schedule GG it must therefore, be held that they afford opportunities to tenants to object to the clearance order. It follows from this that the restrictions on the tenants right to hold property enacted by Ss. 354R and 354RA are not unreasonable and that the provisions are valid. Mr. Shroff agrees that if the restrictions are reasonable his contention that these provisions are unconstitutional must fail.24. Upon the view then that these provisions are valid it must further follow that it was open to the plaintiffs to prefer an appeal before a Judge of the Civil Court. Finality is given to a clearance order after its confirmation by the Government and its publication in the manner prescribed in cl. (2) of Schedule GG subject only to the result of an appeal preferred under cl. (2) of Schedule GG by a person aggrieved. If no such appeal is preferred or if such appeal is filed and dismissed no remedy by suit is available to a person like a tenant who contends that he is aggrieved. Agreeing with the learned City Civil Court Judge we hold that the plaintiffs suit was not maintainable.
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Rama Gupta Vs. Bakemans Home Products | the complainant to rebut the allegations made in the petition. 5. The learned counsel for the parties were heard. 6. The learned counsel for the petitioners contended that the cheque in question was not returned by the Bank unpaid either because of the amount of money standing to the credit was insufficient to honour the cheque or that it exceeds the amount arranged made with that Bank. It was further submitted that as per certificate of the Manager of the Banares State Bank Ltd. at Mathura Annexure P.8 the cheque in question was only returned to drawee because the payment had been stopped by the drawer under the instructions of account holder M/s Adarsh Agencies, Mathura. It is specifically mentioned in the aforesaid Bank certificate that the cheque was returned on 10-7-1990. The balance was sufficient on that date and the cheque in question would have been encashed by us (by the Bankers) had there not been instructions from the drawer to stop payment. 7. Reliance in this respect has rightly been placed by the counsel for the petitioners on Single Bench authority of this Court in Abdul Samad v. Satya Narayan Mahwar, 1990 (2) RCR 335=1991 ISJ (Banking) 134,. wherein it was observed that the parliament in its wisdom has confined the offence referred to in S.138 only to bouncing of cheque on the ground of inadequate balance in the account concerned. Where the cheque is returned unpaid for other grounds, the same has not been made an offence. 8. Faced with this situation, the learned counsel for the respondent contended that he may be given an opportunity to rebut the certificate of the Bank, Annexure P.8, in order to prove that there was not sufficient balance in the bank account of the accused firm and that the cheque was dishonoured because of insufficiency of amount in the account of the accused firm. Reliance in this respect was placed on Single Bench authority of this Court in Nirmal Singh v. Jyoti Sarup Prop. M/s. Verma and Brothers, 1991 (2) RCR 535 , wherein it was observed that the complainant is entitled to prove the various ingredients of the offence and the certificate of the bank as to the reason why payment of the cheque was not being made is evidently not conclusive. It is open to the complainant to show that the cheque was returned by the bank unpaid because the amount of money standing to the credit of that account was insufficient to honour the cheque. In other words, prima facie it cannot be said that an essential ingredient of the offence being absent, there is no justification for the proceedings to go on according to law. 9. The facts of the aforecited authority in Nirmal Singhs case were entirely different. In that particular case the cheque in question was issued on 16th March, 1990 for Rs.1,16,643/-. It was presented to the bank several times. Ultimately it was returned on 21st of May, 1990 with the remarks that the payment thereof had been stopped by the drawer. On 19th March, 1990 the account of the petitioner showed balance of Rs.37,091.33 which was evidently insufficient to make payment of the cheque of Rs.1,16,643/-. On April 17,1990 the petitioner closed the account and there was no question of payment of cheque from the account of the petitioner. The aforesaid observations made by the Single Bench were made in view of the facts and circumstances of the case referred to above. 10. The facts of the case in hand are entirely different. In the present case cheque is comparatively of smaller amount. The fact remains that according to the positive assertions in the petition which have not been rebutted by the complainant, there was sufficient amount in the account of the accused firm in the State Bank of Benares at Mathura as is prima facie made out from the Bankers at certificate copy whereof is Annexure P.B. Thus no offence under S.138 of the Negotiable Instruments Act, 1881 as amended by Banking Public Financial Institutions and Negotiable Instruments Law (Amendment) Act, 1988 has been made out against the accused. 11. The second contention made on behalf of the accused-petitioners is that the cheque in question was issued on behalf of the accused firm to discharge its preexisting liability and was certainly not issued against delivery of goods by the complainant and as such no offence of cheating under S.420 of the Indian Penal Code has been made out, and, at best the dishonour of the cheque amounts to breach of promise which is a civil liability. From careful perusal of the complaint, it is apparent that there is no allegation, or, assertion that the cheque in question was given on behalf of the accused firm to the complainant against the delivery of the goods. Rather it is specifically pleaded in para.No.4 of the complaint that the cheque in question was issued by the accused in favour of the complainant as part payment against the outstanding amount due from the accused. It is thus quite evident that there are no specific allegations in the impugned complaint that the accused petitioners had fraudulently or dishonestly induced the complainant to deliver any property against cheque issued by them which was subsequently dishonoured. I find support in my view from the Single Bench authority of this Court in Chhote Lal Aggarwal v. The State of Punjab, 1987 (2) RCR 263 wherein it was held that the cheques were not issued against the delivery of goods but were drawn in order to discharge a pre-existing liability. The dishonouring of the cheques, therefore amounted only to breach of promise which is a civil liability and not criminal offence under S.420, Indian Penal Code. 12. The learned counsel for the respondent relied upon Single Bench authority of this Court in Tilak Raj Bakshi v. Prem Chand, 1984 (2) CLR 496, wherein the bank account was closed on 25-5-1979, i.e. 31/2 months earlier to the issuance of the cheque. | 1[ds]10. The facts of the case in hand are entirely different. In the present case cheque is comparatively of smaller amount. The fact remains that according to the positive assertions in the petition which have not been rebutted by the complainant, there was sufficient amount in the account of the accused firm in the State Bank of Benares at Mathura as is prima facie made out from the Bankers at certificate copy whereof is Annexure P.B. Thus no offence under S.138 of the Negotiable Instruments Act, 1881 as amended by Banking Public Financial Institutions and Negotiable Instruments Law (Amendment) Act, 1988 has been made out against the accusedFrom careful perusal of the complaint, it is apparent that there is no allegation, or, assertion that the cheque in question was given on behalf of the accused firm to the complainant against the delivery of the goods. Rather it is specifically pleaded in para.No.4 of the complaint that the cheque in question was issued by the accused in favour of the complainant as part payment against the outstanding amount due from the accused. It is thus quite evident that there are no specific allegations in the impugned complaint that the accused petitioners had fraudulently or dishonestly induced the complainant to deliver any property against cheque issued by them which was subsequently dishonoured. I find support in my view from the Single Bench authority of this Court in Chhote Lal Aggarwal v. The State of Punjab, 1987 (2) RCR 263 wherein it was held that the cheques were not issued against the delivery of goods but were drawn in order to discharge aliability. The dishonouring of the cheques, therefore amounted only to breach of promise which is a civil liability and not criminal offence under S.420, Indian Penal Code13. The facts of the Tilak Raj Aggarwals case (supra) are entirely different from the facts of the case in hand. As already discussed earlier there was sufficient amount in the account of the accused firm for honouring the cheque issued in favour of the complainant. The said post dated cheque could not be encashed merely because its payment was stopped by the drawer, intimation in respect whereof had already been sent to the complainant about three months prior to the date when the payment of the cheque became due. The authority in Tilak Raj Aggarwal case is not applicable to the facts and circumstances of the present case and is clearly distinguishable. which could make out a prima facie case either under S.138 of the Negotiable Instruments Act or under S.420 of the Indian Penal Code against the petitioners. | 1 | 1,635 | 469 | ### Instruction:
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the complainant to rebut the allegations made in the petition. 5. The learned counsel for the parties were heard. 6. The learned counsel for the petitioners contended that the cheque in question was not returned by the Bank unpaid either because of the amount of money standing to the credit was insufficient to honour the cheque or that it exceeds the amount arranged made with that Bank. It was further submitted that as per certificate of the Manager of the Banares State Bank Ltd. at Mathura Annexure P.8 the cheque in question was only returned to drawee because the payment had been stopped by the drawer under the instructions of account holder M/s Adarsh Agencies, Mathura. It is specifically mentioned in the aforesaid Bank certificate that the cheque was returned on 10-7-1990. The balance was sufficient on that date and the cheque in question would have been encashed by us (by the Bankers) had there not been instructions from the drawer to stop payment. 7. Reliance in this respect has rightly been placed by the counsel for the petitioners on Single Bench authority of this Court in Abdul Samad v. Satya Narayan Mahwar, 1990 (2) RCR 335=1991 ISJ (Banking) 134,. wherein it was observed that the parliament in its wisdom has confined the offence referred to in S.138 only to bouncing of cheque on the ground of inadequate balance in the account concerned. Where the cheque is returned unpaid for other grounds, the same has not been made an offence. 8. Faced with this situation, the learned counsel for the respondent contended that he may be given an opportunity to rebut the certificate of the Bank, Annexure P.8, in order to prove that there was not sufficient balance in the bank account of the accused firm and that the cheque was dishonoured because of insufficiency of amount in the account of the accused firm. Reliance in this respect was placed on Single Bench authority of this Court in Nirmal Singh v. Jyoti Sarup Prop. M/s. Verma and Brothers, 1991 (2) RCR 535 , wherein it was observed that the complainant is entitled to prove the various ingredients of the offence and the certificate of the bank as to the reason why payment of the cheque was not being made is evidently not conclusive. It is open to the complainant to show that the cheque was returned by the bank unpaid because the amount of money standing to the credit of that account was insufficient to honour the cheque. In other words, prima facie it cannot be said that an essential ingredient of the offence being absent, there is no justification for the proceedings to go on according to law. 9. The facts of the aforecited authority in Nirmal Singhs case were entirely different. In that particular case the cheque in question was issued on 16th March, 1990 for Rs.1,16,643/-. It was presented to the bank several times. Ultimately it was returned on 21st of May, 1990 with the remarks that the payment thereof had been stopped by the drawer. On 19th March, 1990 the account of the petitioner showed balance of Rs.37,091.33 which was evidently insufficient to make payment of the cheque of Rs.1,16,643/-. On April 17,1990 the petitioner closed the account and there was no question of payment of cheque from the account of the petitioner. The aforesaid observations made by the Single Bench were made in view of the facts and circumstances of the case referred to above. 10. The facts of the case in hand are entirely different. In the present case cheque is comparatively of smaller amount. The fact remains that according to the positive assertions in the petition which have not been rebutted by the complainant, there was sufficient amount in the account of the accused firm in the State Bank of Benares at Mathura as is prima facie made out from the Bankers at certificate copy whereof is Annexure P.B. Thus no offence under S.138 of the Negotiable Instruments Act, 1881 as amended by Banking Public Financial Institutions and Negotiable Instruments Law (Amendment) Act, 1988 has been made out against the accused. 11. The second contention made on behalf of the accused-petitioners is that the cheque in question was issued on behalf of the accused firm to discharge its preexisting liability and was certainly not issued against delivery of goods by the complainant and as such no offence of cheating under S.420 of the Indian Penal Code has been made out, and, at best the dishonour of the cheque amounts to breach of promise which is a civil liability. From careful perusal of the complaint, it is apparent that there is no allegation, or, assertion that the cheque in question was given on behalf of the accused firm to the complainant against the delivery of the goods. Rather it is specifically pleaded in para.No.4 of the complaint that the cheque in question was issued by the accused in favour of the complainant as part payment against the outstanding amount due from the accused. It is thus quite evident that there are no specific allegations in the impugned complaint that the accused petitioners had fraudulently or dishonestly induced the complainant to deliver any property against cheque issued by them which was subsequently dishonoured. I find support in my view from the Single Bench authority of this Court in Chhote Lal Aggarwal v. The State of Punjab, 1987 (2) RCR 263 wherein it was held that the cheques were not issued against the delivery of goods but were drawn in order to discharge a pre-existing liability. The dishonouring of the cheques, therefore amounted only to breach of promise which is a civil liability and not criminal offence under S.420, Indian Penal Code. 12. The learned counsel for the respondent relied upon Single Bench authority of this Court in Tilak Raj Bakshi v. Prem Chand, 1984 (2) CLR 496, wherein the bank account was closed on 25-5-1979, i.e. 31/2 months earlier to the issuance of the cheque.
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10. The facts of the case in hand are entirely different. In the present case cheque is comparatively of smaller amount. The fact remains that according to the positive assertions in the petition which have not been rebutted by the complainant, there was sufficient amount in the account of the accused firm in the State Bank of Benares at Mathura as is prima facie made out from the Bankers at certificate copy whereof is Annexure P.B. Thus no offence under S.138 of the Negotiable Instruments Act, 1881 as amended by Banking Public Financial Institutions and Negotiable Instruments Law (Amendment) Act, 1988 has been made out against the accusedFrom careful perusal of the complaint, it is apparent that there is no allegation, or, assertion that the cheque in question was given on behalf of the accused firm to the complainant against the delivery of the goods. Rather it is specifically pleaded in para.No.4 of the complaint that the cheque in question was issued by the accused in favour of the complainant as part payment against the outstanding amount due from the accused. It is thus quite evident that there are no specific allegations in the impugned complaint that the accused petitioners had fraudulently or dishonestly induced the complainant to deliver any property against cheque issued by them which was subsequently dishonoured. I find support in my view from the Single Bench authority of this Court in Chhote Lal Aggarwal v. The State of Punjab, 1987 (2) RCR 263 wherein it was held that the cheques were not issued against the delivery of goods but were drawn in order to discharge aliability. The dishonouring of the cheques, therefore amounted only to breach of promise which is a civil liability and not criminal offence under S.420, Indian Penal Code13. The facts of the Tilak Raj Aggarwals case (supra) are entirely different from the facts of the case in hand. As already discussed earlier there was sufficient amount in the account of the accused firm for honouring the cheque issued in favour of the complainant. The said post dated cheque could not be encashed merely because its payment was stopped by the drawer, intimation in respect whereof had already been sent to the complainant about three months prior to the date when the payment of the cheque became due. The authority in Tilak Raj Aggarwal case is not applicable to the facts and circumstances of the present case and is clearly distinguishable. which could make out a prima facie case either under S.138 of the Negotiable Instruments Act or under S.420 of the Indian Penal Code against the petitioners.
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M/S Ghcl Employees Stock Option Trust Vs. M/S India Infoline Limited | stood extinguished. It was, therefore, alleged that the officers of the Bank criminally embezzled the said amount with dishonest intention to save themselves from financial obligation. The Magistrate without adverting whether the allegations in the complaint prime facie make out an offence charged for, in a mechanical manner, issued the process against all the accused persons. The High Court refused to quash the complaint and the matter finally came to this Court. Allowing the appeal and quashing the complaint, this Court held as under: “5. It is also salutary to note that judicial process should not be an instrument of oppression or needless harassment. The complaint was laid impleading the Chairman, the Managing Director of the Bank by name and a host of officers. There lies responsibility and duty on the Magistracy to find whether the concerned accused should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded then only process would be issued. At that stage the court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complainant as vendetta to harass the persons needlessly. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance. Considered from any angle we find that the respondent had abused the process and laid complaint against all the appellants without any prima facie case to harass them for vendetta.” 17. In the case of Maksud Saiyed vs. State of Gujarat and Others (2008) 5 SCC 668 , this Court while discussing vicarious liability observed as under :- “13. Where a jurisdiction is exercised on a complaint petition filed in terms of Section 156(3) or Section 200 of the Code of Criminal Procedure, the Magistrate is required to apply his mind. The Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the Company when the accused is the Company. The learned Magistrate failed to pose unto himself the correct question viz., as to whether the complaint petition, even if given face value and taken to be correct in its entirety, would lead to the conclusion that the respondents herein were personally liable for any offence. The Bank is a body corporate. Vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. Statutes indisputably must contain provision fixing such vicarious liabilities. Even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability.” 18. From bare perusal of the order passed by the Magistrate, it reveals that two witnesses including one of the trustees were examined by the complainant but none of them specifically stated as to which of the accused committed breach of trust or cheated the complainant except general and bald allegations made therein. While ordering issuance of summons, the learned Magistrate concluded as under :- “The complainant has submitted that the accused Nos.2 to 6 are the directors of the company and accused No.7 is the secretary of the company and were looking after the day to day affairs of the company and were also responsible for conduct and business of the accused No.1 and some time or the other have interacted with the complainant.I have heard arguments on behalf of the complainant and perused the record. From the allegations raised, documents placed on record and the evidence led by the witnesses, prima facie an offence u/s 415, 409/34/120B is made out. Let all the accused hence be summoned to face trial under the aforesaid sections on PF/RC/Speed Post/courier for 2.12.2008.” 19. In the order issuing summons, the learned Magistrate has not recorded his satisfaction about the prima facie case as against respondent Nos.2 to 7 and the role played by them in the capacity of Managing Director, Company Secretary or Directors which is sine qua non for initiating criminal action against them. Recently, in the case of M/s.Thermax Ltd. & Ors. vs. K.M. Johny & Ors. 2011 (11) SCALE 128 , & ors. while dealing with a similar case, this Court held as under :- “20. Though Respondent No.1 has roped all the appellants in a criminal case without their specific role or participation in the alleged offence with the sole purpose of settling his dispute with appellant-Company by initiating the criminal prosecution, it is pointed out that appellant Nos. 2 to 8 are the Ex-Chairperson, Ex-Directors and Senior Managerial Personnel of appellant No.1 – Company, who do not have any personal role in the allegations and claims of Respondent No.1. There is also no specific allegation with regard to their role21. Apart from the fact that the complaint lacks necessary ingredients of Sections 405, 406, 420 read with Section 34 IPC, it is to be noted that the concept of ‘vicarious liability’ is unknown to criminal law. As observed earlier, there is no specific allegation made against any person but the members of the Board and senior executives are joined as the persons looking after the management and business of the appellant-Company.” 20. As stated above, the decisions relied upon by the counsel for the appellant and the respondents need not be discussed as the law has been well settled by those decisions as to the power and duty of the Magistrate while issuing summons in a complaint case. 21. In the instant case the High Court has correctly noted that issuance of summons against respondent Nos.2 to 7 is illegal and amounts to abuse of the process of law. The order of the High Court, therefore, needs no interference by this Court. 22. For the aforesaid reasons, | 0[ds]From bare perusal of the complaint and the allegations made therein, we do not find in any of the paragraphs that the complainant has made specific allegations against respondent Nos.2 to 7. In paragraph 2 of the complaint, it is alleged that respondent Nos.2 to 6 are looking after the day-to-day affairs of the Company. With whom the complainant or its authorized representative interacted has also not been specified. Although in paragraph 11 of the complaint it is alleged that the complainant on numerous occasions met accused Nos.2 to 7 and requested to refund the amount, but again the complainant has not made specific allegation about the date of meeting and whether it was an individual meeting or collective meeting. Similarly, in paragraph 17 of the complaint, there is no allegation that a particular Director or Managing Director fabricated debit note. In the entire complaint there are bald and vague allegations against respondent Nos.2 to 7.13. There is no dispute with regard to the legal proposition that the case of breach of trust or cheating are both a civil wrong and a criminal offence, but under certain situations where the act alleged would predominantly be a civil wrong, such an act does not constitute a criminal offence.14. Be that as it may, as held by this Court, summoning of accused in a criminal case is a serious matter. Hence, criminal law cannot be set into motion as a matter of course. The order of Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The Magistrate has to record his satisfaction with regard to the existence of a prima facie case on the basis of specific allegations made in the complaint supported by satisfactory evidence and other material onthe instant case the High Court has correctly noted that issuance of summons against respondent Nos.2 to 7 is illegal and amounts to abuse of the process of law. The order of the High Court, therefore, needs no interference by this Court. | 0 | 4,684 | 372 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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stood extinguished. It was, therefore, alleged that the officers of the Bank criminally embezzled the said amount with dishonest intention to save themselves from financial obligation. The Magistrate without adverting whether the allegations in the complaint prime facie make out an offence charged for, in a mechanical manner, issued the process against all the accused persons. The High Court refused to quash the complaint and the matter finally came to this Court. Allowing the appeal and quashing the complaint, this Court held as under: “5. It is also salutary to note that judicial process should not be an instrument of oppression or needless harassment. The complaint was laid impleading the Chairman, the Managing Director of the Bank by name and a host of officers. There lies responsibility and duty on the Magistracy to find whether the concerned accused should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded then only process would be issued. At that stage the court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complainant as vendetta to harass the persons needlessly. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance. Considered from any angle we find that the respondent had abused the process and laid complaint against all the appellants without any prima facie case to harass them for vendetta.” 17. In the case of Maksud Saiyed vs. State of Gujarat and Others (2008) 5 SCC 668 , this Court while discussing vicarious liability observed as under :- “13. Where a jurisdiction is exercised on a complaint petition filed in terms of Section 156(3) or Section 200 of the Code of Criminal Procedure, the Magistrate is required to apply his mind. The Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the Company when the accused is the Company. The learned Magistrate failed to pose unto himself the correct question viz., as to whether the complaint petition, even if given face value and taken to be correct in its entirety, would lead to the conclusion that the respondents herein were personally liable for any offence. The Bank is a body corporate. Vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. Statutes indisputably must contain provision fixing such vicarious liabilities. Even for the said purpose, it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability.” 18. From bare perusal of the order passed by the Magistrate, it reveals that two witnesses including one of the trustees were examined by the complainant but none of them specifically stated as to which of the accused committed breach of trust or cheated the complainant except general and bald allegations made therein. While ordering issuance of summons, the learned Magistrate concluded as under :- “The complainant has submitted that the accused Nos.2 to 6 are the directors of the company and accused No.7 is the secretary of the company and were looking after the day to day affairs of the company and were also responsible for conduct and business of the accused No.1 and some time or the other have interacted with the complainant.I have heard arguments on behalf of the complainant and perused the record. From the allegations raised, documents placed on record and the evidence led by the witnesses, prima facie an offence u/s 415, 409/34/120B is made out. Let all the accused hence be summoned to face trial under the aforesaid sections on PF/RC/Speed Post/courier for 2.12.2008.” 19. In the order issuing summons, the learned Magistrate has not recorded his satisfaction about the prima facie case as against respondent Nos.2 to 7 and the role played by them in the capacity of Managing Director, Company Secretary or Directors which is sine qua non for initiating criminal action against them. Recently, in the case of M/s.Thermax Ltd. & Ors. vs. K.M. Johny & Ors. 2011 (11) SCALE 128 , & ors. while dealing with a similar case, this Court held as under :- “20. Though Respondent No.1 has roped all the appellants in a criminal case without their specific role or participation in the alleged offence with the sole purpose of settling his dispute with appellant-Company by initiating the criminal prosecution, it is pointed out that appellant Nos. 2 to 8 are the Ex-Chairperson, Ex-Directors and Senior Managerial Personnel of appellant No.1 – Company, who do not have any personal role in the allegations and claims of Respondent No.1. There is also no specific allegation with regard to their role21. Apart from the fact that the complaint lacks necessary ingredients of Sections 405, 406, 420 read with Section 34 IPC, it is to be noted that the concept of ‘vicarious liability’ is unknown to criminal law. As observed earlier, there is no specific allegation made against any person but the members of the Board and senior executives are joined as the persons looking after the management and business of the appellant-Company.” 20. As stated above, the decisions relied upon by the counsel for the appellant and the respondents need not be discussed as the law has been well settled by those decisions as to the power and duty of the Magistrate while issuing summons in a complaint case. 21. In the instant case the High Court has correctly noted that issuance of summons against respondent Nos.2 to 7 is illegal and amounts to abuse of the process of law. The order of the High Court, therefore, needs no interference by this Court. 22. For the aforesaid reasons,
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From bare perusal of the complaint and the allegations made therein, we do not find in any of the paragraphs that the complainant has made specific allegations against respondent Nos.2 to 7. In paragraph 2 of the complaint, it is alleged that respondent Nos.2 to 6 are looking after the day-to-day affairs of the Company. With whom the complainant or its authorized representative interacted has also not been specified. Although in paragraph 11 of the complaint it is alleged that the complainant on numerous occasions met accused Nos.2 to 7 and requested to refund the amount, but again the complainant has not made specific allegation about the date of meeting and whether it was an individual meeting or collective meeting. Similarly, in paragraph 17 of the complaint, there is no allegation that a particular Director or Managing Director fabricated debit note. In the entire complaint there are bald and vague allegations against respondent Nos.2 to 7.13. There is no dispute with regard to the legal proposition that the case of breach of trust or cheating are both a civil wrong and a criminal offence, but under certain situations where the act alleged would predominantly be a civil wrong, such an act does not constitute a criminal offence.14. Be that as it may, as held by this Court, summoning of accused in a criminal case is a serious matter. Hence, criminal law cannot be set into motion as a matter of course. The order of Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. The Magistrate has to record his satisfaction with regard to the existence of a prima facie case on the basis of specific allegations made in the complaint supported by satisfactory evidence and other material onthe instant case the High Court has correctly noted that issuance of summons against respondent Nos.2 to 7 is illegal and amounts to abuse of the process of law. The order of the High Court, therefore, needs no interference by this Court.
|
BSES YAMUNA POWER LTD Vs. GHANSHYAM CHAND SHARMA | for voluntary retirement, would be entitled to pensionary benefits. Such an outcome could not be countenanced and would render nugatory the provision which stipulated that upon resignation, past service stood forfeited. 11. The Court in Shree Lal Meena II elucidated the distinction between resignation and voluntary retirement in the following terms: 22. … [quoting RBI v Cecil Dennis Solomon (2004) 9 SCC 461 ] In service jurisprudence, the expressions superannuation, voluntary retirement, compulsory retirement and resignation convey different connotations. Voluntary retirement and resignation involve voluntary acts on the part of the employee to leave service. Though both involve voluntary acts, they operate differently. One of the basic distinctions is that in case of resignation it can be tendered at any time, but in the case of voluntary retirement, it can only be sought for after rendering the prescribed period of qualifying service. Another fundamental distinction is that in case of the former, normally retiral benefits are denied but in case of the latter, the same is not denied. In case of the former, permission or notice is not mandated, while in the case of the latter, permission of the employer concerned is a requisite condition. Though resignation is a bilateral concept, and becomes effective on acceptance by the competent authority, yet the general rule can be displaced by express provisions to the contrary. The above observations highlighted the material distinction between the concept of resignation and voluntary retirement. The Court also observed that while pension schemes do form beneficial legislation in a delegated form, a beneficial construction cannot run contrary to the express terms of the provisions: 26. There are some observations on the principles of public sectors being model employers and provisions of pension being beneficial legislations (see Asger Ibrahim Amin v LIC). We may, however, note that as per what we have opined aforesaid, the issue cannot be dealt with on a charity principle. When the legislature, in its wisdom, brings forth certain beneficial provisions in the form of Pension Regulations from a particular date and on particular terms and conditions, aspects which are excluded cannot be included in it by implication. The view in Asger Ibrahim Amin was disapproved and the court held that the provisions providing for voluntary retirement would not apply retrospectively by implication. In this view, where an employee has resigned from service, there arises no question of whether he has in fact „voluntarily retired or resigned. The decision to resign is materially distinct from a decision to seek voluntary retirement. The decision to resign results in the legal consequences that flow from a resignation under the applicable provisions. These consequences are distinct from the consequences flowing from voluntary retirement and the two may not be substituted for each other based on the length of an employees tenure. 12. In the present case, the first respondent resigned on 7 July 1990 with effect from 10 July 1990. By resigning, the first respondent submitted himself to the legal consequences that flow from a resignation under the provisions applicable to his service. Rule 26 of the Central Civil Service Pension Rules 1972 CCS Pension Rules states that: 26. Forfeiture of service on resignation (1) Resignation from a service or a post, unless it is allowed to be withdrawn in the public interest by the Appointing Authority, entails a forfeiture of past service… Rule 26 states that upon resignation, an employee forfeits past service. We have noted above that the approach adopted by the court in Asger Ibrahim Amin has been held to be erroneous since it removes the important distinction between resignation and voluntary retirement. Irrespective of whether the first respondent had completed the requisite years of service to apply for voluntary retirement, his was a decision to resign and not a decision to seek voluntary retirement. If this court were to re-classify his resignation as a case of voluntary retirement, this would obfuscate the distinction between the concepts of resignation and voluntary retirement and render the operation of Rule 26 nugatory. Such an approach cannot be adopted. Accordingly, the finding of the Single Judge that the first respondent voluntarily retired is set aside. 13. We now turn to the question of whether the first respondent had completed twenty years in service. During the present proceedings, our attention was drawn to the fact that the first respondent had applied for voluntary retirement on 14 February 1990. By a letter dated 25 May 1990 the appellant denied the first respondents application for voluntary retirement on the ground that the first respondent had not completed twenty years of service. It was thus urged that the appellants decision to deny the first respondent voluntary retirement was illegal as the first respondent had completed twenty years of service. 14. This argument cannot be accepted. Even if he was denied voluntary retirement on 25 May 1990, the first respondent did not challenge this decision but resigned, on 7 July 1990. The denial of voluntary retirement does not mitigate the legal consequences that flow from resignation. No evidence has been placed on the record to show that the first respondent took issue with the denial of voluntary retirement between 25 May 1990 and 7 July 1990. To the contrary, in the legal notice dated 1 December 1992 sent by the first respondent to the appellant, the first respondent admitted to having resigned. The first respondents writ petition was instituted thirteen years after the denial of voluntary retirement and eventual resignation. In the light of these circumstances, the denial of voluntary retirement cannot be invoked before this Court to claim pensionary benefits when the first respondent has admittedly resigned. 15. On the issue of whether the first respondent has served twenty years, we are of the opinion that the question is of no legal consequence to the present dispute. Even if the first respondent had served twenty years, under Rule 26 of the CCS Pension Rules his past service stands forfeited upon resignation. The first respondent is therefore not entitled to pensionary benefits. | 1[ds]12. In the present case, the first respondent resigned on 7 July 1990 with effect from 10 July 1990. By resigning, the first respondent submitted himself to the legal consequences that flow from a resignation under the provisions applicable to his serviceWe have noted above that the approach adopted by the court in Asger Ibrahim Amin has been held to be erroneous since it removes the important distinction between resignation and voluntary retirement. Irrespective of whether the first respondent had completed the requisite years of service to apply for voluntary retirement, his was a decision to resign and not a decision to seek voluntary retirement. If this court were to re-classify his resignation as a case of voluntary retirement, this would obfuscate the distinction between the concepts of resignation and voluntary retirement and render the operation of Rule 26 nugatory. Such an approach cannot be adopted. Accordingly, the finding of the Single Judge that the first respondent15. On the issue of whether the first respondent has served twenty years, we are of the opinion that the question is of no legal consequence to the present dispute. Even if the first respondent had served twenty years, under Rule 26 of the CCS Pension Rules his past service stands forfeited upon resignation. The first respondent is therefore not entitled to pensionary benefits14. This argument cannot be accepted. Even if he was denied voluntary retirement on 25 May 1990, the first respondent did not challenge this decision but resigned, on 7 July 1990. The denial of voluntary retirement does not mitigate the legal consequences that flow from resignation. No evidence has been placed on the record to show that the first respondent took issue with the denial of voluntary retirement between 25 May 1990 and 7 July 1990. To the contrary, in the legal notice dated 1 December 1992 sent by the first respondent to the appellant, the first respondent admitted to having resigned. The first respondents writ petition was instituted thirteen years after the denial of voluntary retirement and eventual resignation. In the light of these circumstances, the denial of voluntary retirement cannot be invoked before this Court to claim pensionary benefits when the first respondent has admittedly resignedRule 26 states that upon resignation, an employee forfeits past service.We have noted above that the approach adopted by the court in Asger Ibrahim Amin has been held to be erroneous since it removes the important distinction between resignation and voluntary retirement. Irrespective of whether the first respondent had completed the requisite years of service to apply for voluntary retirement, his was a decision to resign and not a decision to seek voluntary retirement. If this court were to re-classify his resignation as a case of voluntary retirement, this would obfuscate the distinction between the concepts of resignation and voluntary retirement and render the operation of Rule 26 nugatory. Such an approach cannot be adopted. Accordingly, the finding of the Single Judge that the first respondent | 1 | 3,105 | 536 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
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for voluntary retirement, would be entitled to pensionary benefits. Such an outcome could not be countenanced and would render nugatory the provision which stipulated that upon resignation, past service stood forfeited. 11. The Court in Shree Lal Meena II elucidated the distinction between resignation and voluntary retirement in the following terms: 22. … [quoting RBI v Cecil Dennis Solomon (2004) 9 SCC 461 ] In service jurisprudence, the expressions superannuation, voluntary retirement, compulsory retirement and resignation convey different connotations. Voluntary retirement and resignation involve voluntary acts on the part of the employee to leave service. Though both involve voluntary acts, they operate differently. One of the basic distinctions is that in case of resignation it can be tendered at any time, but in the case of voluntary retirement, it can only be sought for after rendering the prescribed period of qualifying service. Another fundamental distinction is that in case of the former, normally retiral benefits are denied but in case of the latter, the same is not denied. In case of the former, permission or notice is not mandated, while in the case of the latter, permission of the employer concerned is a requisite condition. Though resignation is a bilateral concept, and becomes effective on acceptance by the competent authority, yet the general rule can be displaced by express provisions to the contrary. The above observations highlighted the material distinction between the concept of resignation and voluntary retirement. The Court also observed that while pension schemes do form beneficial legislation in a delegated form, a beneficial construction cannot run contrary to the express terms of the provisions: 26. There are some observations on the principles of public sectors being model employers and provisions of pension being beneficial legislations (see Asger Ibrahim Amin v LIC). We may, however, note that as per what we have opined aforesaid, the issue cannot be dealt with on a charity principle. When the legislature, in its wisdom, brings forth certain beneficial provisions in the form of Pension Regulations from a particular date and on particular terms and conditions, aspects which are excluded cannot be included in it by implication. The view in Asger Ibrahim Amin was disapproved and the court held that the provisions providing for voluntary retirement would not apply retrospectively by implication. In this view, where an employee has resigned from service, there arises no question of whether he has in fact „voluntarily retired or resigned. The decision to resign is materially distinct from a decision to seek voluntary retirement. The decision to resign results in the legal consequences that flow from a resignation under the applicable provisions. These consequences are distinct from the consequences flowing from voluntary retirement and the two may not be substituted for each other based on the length of an employees tenure. 12. In the present case, the first respondent resigned on 7 July 1990 with effect from 10 July 1990. By resigning, the first respondent submitted himself to the legal consequences that flow from a resignation under the provisions applicable to his service. Rule 26 of the Central Civil Service Pension Rules 1972 CCS Pension Rules states that: 26. Forfeiture of service on resignation (1) Resignation from a service or a post, unless it is allowed to be withdrawn in the public interest by the Appointing Authority, entails a forfeiture of past service… Rule 26 states that upon resignation, an employee forfeits past service. We have noted above that the approach adopted by the court in Asger Ibrahim Amin has been held to be erroneous since it removes the important distinction between resignation and voluntary retirement. Irrespective of whether the first respondent had completed the requisite years of service to apply for voluntary retirement, his was a decision to resign and not a decision to seek voluntary retirement. If this court were to re-classify his resignation as a case of voluntary retirement, this would obfuscate the distinction between the concepts of resignation and voluntary retirement and render the operation of Rule 26 nugatory. Such an approach cannot be adopted. Accordingly, the finding of the Single Judge that the first respondent voluntarily retired is set aside. 13. We now turn to the question of whether the first respondent had completed twenty years in service. During the present proceedings, our attention was drawn to the fact that the first respondent had applied for voluntary retirement on 14 February 1990. By a letter dated 25 May 1990 the appellant denied the first respondents application for voluntary retirement on the ground that the first respondent had not completed twenty years of service. It was thus urged that the appellants decision to deny the first respondent voluntary retirement was illegal as the first respondent had completed twenty years of service. 14. This argument cannot be accepted. Even if he was denied voluntary retirement on 25 May 1990, the first respondent did not challenge this decision but resigned, on 7 July 1990. The denial of voluntary retirement does not mitigate the legal consequences that flow from resignation. No evidence has been placed on the record to show that the first respondent took issue with the denial of voluntary retirement between 25 May 1990 and 7 July 1990. To the contrary, in the legal notice dated 1 December 1992 sent by the first respondent to the appellant, the first respondent admitted to having resigned. The first respondents writ petition was instituted thirteen years after the denial of voluntary retirement and eventual resignation. In the light of these circumstances, the denial of voluntary retirement cannot be invoked before this Court to claim pensionary benefits when the first respondent has admittedly resigned. 15. On the issue of whether the first respondent has served twenty years, we are of the opinion that the question is of no legal consequence to the present dispute. Even if the first respondent had served twenty years, under Rule 26 of the CCS Pension Rules his past service stands forfeited upon resignation. The first respondent is therefore not entitled to pensionary benefits.
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12. In the present case, the first respondent resigned on 7 July 1990 with effect from 10 July 1990. By resigning, the first respondent submitted himself to the legal consequences that flow from a resignation under the provisions applicable to his serviceWe have noted above that the approach adopted by the court in Asger Ibrahim Amin has been held to be erroneous since it removes the important distinction between resignation and voluntary retirement. Irrespective of whether the first respondent had completed the requisite years of service to apply for voluntary retirement, his was a decision to resign and not a decision to seek voluntary retirement. If this court were to re-classify his resignation as a case of voluntary retirement, this would obfuscate the distinction between the concepts of resignation and voluntary retirement and render the operation of Rule 26 nugatory. Such an approach cannot be adopted. Accordingly, the finding of the Single Judge that the first respondent15. On the issue of whether the first respondent has served twenty years, we are of the opinion that the question is of no legal consequence to the present dispute. Even if the first respondent had served twenty years, under Rule 26 of the CCS Pension Rules his past service stands forfeited upon resignation. The first respondent is therefore not entitled to pensionary benefits14. This argument cannot be accepted. Even if he was denied voluntary retirement on 25 May 1990, the first respondent did not challenge this decision but resigned, on 7 July 1990. The denial of voluntary retirement does not mitigate the legal consequences that flow from resignation. No evidence has been placed on the record to show that the first respondent took issue with the denial of voluntary retirement between 25 May 1990 and 7 July 1990. To the contrary, in the legal notice dated 1 December 1992 sent by the first respondent to the appellant, the first respondent admitted to having resigned. The first respondents writ petition was instituted thirteen years after the denial of voluntary retirement and eventual resignation. In the light of these circumstances, the denial of voluntary retirement cannot be invoked before this Court to claim pensionary benefits when the first respondent has admittedly resignedRule 26 states that upon resignation, an employee forfeits past service.We have noted above that the approach adopted by the court in Asger Ibrahim Amin has been held to be erroneous since it removes the important distinction between resignation and voluntary retirement. Irrespective of whether the first respondent had completed the requisite years of service to apply for voluntary retirement, his was a decision to resign and not a decision to seek voluntary retirement. If this court were to re-classify his resignation as a case of voluntary retirement, this would obfuscate the distinction between the concepts of resignation and voluntary retirement and render the operation of Rule 26 nugatory. Such an approach cannot be adopted. Accordingly, the finding of the Single Judge that the first respondent
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M/S SHANTI CONDUCTORS(P) LTD. Vs. ASSAM STATE ELECTRICITY BOARD & ORS | will very easily get away from payment of interest only after making payment of Principal amount. This interpretation shall defeat very purposes of 1993 Act. It is well settled that provisions of Act has to be interpreted in the manner so as to advance the object of the Act. We thus fully approve the view taken by this Court in Purbanchal Cables (Supra) that suit by supplier for recovery of only interest is maintainable. Issue No.6 80. The submission of the counsel to the board is that since against the judgment of Gauhati High Court dated 15.04.2001, S.L.P. No.12217 of 2001 filed by M/s Trusses & Towers was withdrawn without obtaining the liberty, Civil Appeal No. 8445 of 2016 is not maintainable challenging the Review Order and judgment dated 19.03.2003.In the Order passed by this Court on 06.08.2001, this Court had noticed the submission of the appellant that appellant shall move the High Court in review stating that it has committed error in recording thatall the bills were paid earlier to the commencement of this act. In the Review Petition, the review has been partly allowed by allowing interest @ 9% against which the appeal has been filed. A perusal of the Review judgment indicates that High Court has not returned any finding that all the bills were not paid earlier to the commencement of the Act. 81. A perusal of Division Bench judgment of High Court indicates that High Court proceed on the presumption that even if 1993 Act is not applicable the entitlement of the plaintiff could be considered in equity. When the liberty to file review was obtained on the ground as noticed in the Order the review judgment can be questioned on the ground on which review was permitted. 82. The Division Bench judgment does not indicate that it proceeds on the ground as contended by the appellant and noticed by this Court on 06.08.2001. The interest of 9% was allowed on the premise that 1993 Act is not applicable and said interest is allowed on equity relying on an earlier judgment on this court in Assam Small Scale Industry Development Corporation and others versus G.D. Pharmaceuticals and others, 2005(13) SCC19.We thus are of the view that present appeal challenging the review judgmentcannot be entertained. The ground on which the appellant can challenge the review judgment can be the ground on which liberty was obtained to file review. We thus hold that Civil Appeal No. 8445 of 2016 is not maintainable. Issue No.7 Whether the High court while considering the Review Petition No.75 of 2001 (M/s Trusses & Towers Pvt. Ltd.) even after expressing that Act 1993 is not applicable could have allowed 9% interest to the plaintiff? 83. The High Court in its judgment dated 19.03.2013 allowed interest @ 9% per annum for the period of delayed payment. Even if Act 1993 is not applicable, the Court can very well exercise its jurisdiction to award interest. InAssam Small Scale Industry Development Corporation and others versus G.D. pharmaceuticals and others(Supra),this Court in paragraph 40 while considering the claim of the respondent in a suit filed for recovery of interest under 1993 Act has allowed 9% interest with respect to the transaction made prior to coming into force of the 1993 Act. Paragraph 40 is to the following effect: - 40.We, therefore, are of the opinion that in relation to the transactions made prior to coming into force of the said Act, simple interest at the rate of 9% per annum, which was the bank rate at the relevant time, shall be payable both prior to date of filing of the suit and pendente lite and as future interest in terms of Section 34 of the Code of Civil Procedure. Interest, however, will be payable in terms of the provisions of the 1993 Act(compound interest at the rate of 23.5 % per annum) in relation to the transactions made after coming into force of the Act, both in respect of interest payable up to the date of institution of the suit and pendente lite and till realization. The judgment and decree to that extent requires to be modified. It is directed accordingly. 84. High Court did not commit any error in awarding 9% interest to plaintiff respondent. We thus did not find any error in the judgment dated 19.03.2013 allowing partly the review application filed by the plaintiff. Civil Appeal No. 8450 of 2016 85. Now, we come to Civil Appeal No. 8450 of 2016.The appellant has filed Money Suit No. 32 of 1996 for recovery of a sum of Rs. 10,34,065.23 p. and Rs. 23,738.49 p. being the outstanding against the bills for supply made and amount of security deposited and amount of Rs.10,10,326.74 p. being the amount of delayed interest.The suit was decreed by the learned Civil Judge (Senior Division) vide its judgment and order dated 30.09.2002 for recovery of Rs. 5,46,233.14 p.as on 18.12.93 from the date of enforcement of the Act, 1993 and future interest on the decretal amount @ 6% simple interest per annum with effect from 19.12.1993.Appeal was filed by the respondent in the High Court beingRFA No. 78 of2003, whichhasbeen allowed on 12.02.2015 setting aside the decree for recovery of the amount and interest but maintaining the claim of refund of security deposit to the tune of Rs. 23,738.49 with 9% interest.The High Court following the judgment of this Court inPurbanchal Cables and Conductors Pvt. Ltd. (supra) held that with regard to transaction, which had taken place prior to 23.09.1992, the 1993 Act is not applicable.The appellants have appealed against the judgment of High Court dated 20.02.2015. The pleading on the record does not indicate that any supply was made by the appellant subsequent to enforcement of the 1993 Act. We have already held that the mere fact that supply orders were issued prior to enforcement of the Act does not deny the applicability of the 1993 Act, in event, supply has been made after the enforcement of the Act. | 0[ds]51. The judgment of this Court in Purbanchal Cables and Conductors Pvt. Ltdrelying onAssam Small Scale Industries and Shakti Tubeshad laid down that Act, 1993 cannot be made applicable with regard to sale agreements which were entered into prior to the enforcement of the Act and Act can be invoked only for the sale agreements which were entered after the enforcement of the Act. Although attempt was made in Purbanachal Cables to get judgment in Assam Small Scale Industries and Shakti Tubesreconsidered but co- ordinate Bench inPurbanchal Cableshas refused to permit any such reconsideration. The matter now having been referred to this three-Judge Bench we have to consider and answer as to whether the above interpretation of Act, 1993 as given is in consonance with the statutory scheme52. We have noticed above that theincidence of applicability of the liability under the Act is supply of goods or rendering of service. In event the supply of goods and rendering of services is subsequent to Act, can liability to pay interest on delayed payment be denied on the ground that agreement in pursuance of which supplies were made were entered prior to enforcement of the Act? Entering into an agreement being not expressly or impliedly referred to in the statutory scheme as an incident for fastening of the liability, making the date of agreement as date for imposition of liability does not conform to the statutoryscheme. This can be illustrated by taking an example. There are two small scale industries who received orders for supply of materials. A received such orders prior to the enforcement of the Act and B received the order after the enforcement of the Act. Both supplied the goods subsequent to enforcement of the Act and became entitled to receive payment after the supply, on or before the day agreed upon between the supplier and buyer or before the appointed day. Payments were not made both to A and B as required by Section 3. Can the buyer who has received supplies from supplier A escape from his statutory liability to make payment of interest under Section 3 read with Section 4 ? The answer has to be No. Two suppliers who supply goods after the enforcement of the Act, become entitled to receive payment after the enforcement of the Act one supplier cannot be denied the benefit of the statutory protection on the pretext that agreement in his case was entered prior to enforcement of the Act. When the date of agreement is not referred as material or incidence for fastening the liability, by no judicial interpretation the said date can be treated as a date for fastening of the liability. The Act, 1993 being beneficial legislation enacted to protect small scale industries and statutorily ensure by mandatory provision for payment of interest on the outstanding money, accepting the interpretation as put by learned counsel for the Board that the day of agreement has to be subsequent to the enforcement of the Act, the entire beneficial protection of the Act shall be defeated. The existence of statutory liability depends on the statutory factors as enumerated in Section 3 and Section4 of the Act, 1993. Factor for liability to make payment under Section 3 being the supplier supplies any goods or renders services to the buyer, the liability of buyer cannot be denied on the ground that agreement entered between the parties for supply was prior to Act, 1993. To hold that liability of buyer for payment shall arise only when agreement for supply was entered subsequent to enforcement of the Act, it shall be adding words to Section 3 which is not permissible under principles of statutory construction. We, thus, are of the view that judgments in Purbanchal Cables and Conductors (supra),Assam Small Scale Industries and Shakti Tubes which held that Act, 1993 shall be applicable only when the agreement to sale/contract was entered prior/subsequent to the enforcement of the Act, does not lay down the correct law. We accept the submission of learned counsel for the appellants that even if agreement of sale is entered prior to enforcement of the Act, liability to make payment under Section 3 and liability to make payment of interest under Section 4 shall arise if supplies are made subsequent to the enforcement of the Act53. In all the judgments of this Court referred above, it has been held that Act, 1993 is not retrospective. It is not even contended before us by any of the parties that the Act, 1993 is retrospective in operation. Judgments of this Court as noticed above rightly hold that Act, 1993 is not retrospective54. The opinion of Justice Gowda dated 31.08.2016 although holds that Act is not retrospective but he holds the Act retroactive57. Retroactivity in the context of the statute consists application of new rule of law to an Act or transaction which has been completed before the Rule was promulgated58. In the present case the liability of buyer to make payment and day from which payment and interest become payable under Section 3 and 4 does not relate on any event which took place prior to Act, 1993, it is not even necessary for us to say that Act, 1993 is retroactive in operation. The Act, 1993 is clearly prospective in operation and it is not necessary to term it as retroactive in operation. We, thus, do not subscribe to the opinion dated 31.08.2016 of one of the Honble Judges holding that the Act, 1993 as retroactiveWhether money suit no.21 of 1997 filed by appellant is barred by time is one of the issues which has been raised before us59. From the pleadings on the record it transpires that two supply orders dated 31.03.1992 and 13.05.1992 was issued to the appellant for supply of conductors. In the Plaint, the appellant had given the details of date of supply orders and date when supply was made on different stores. The supplies made by the appellant were both before enforcement of the Act i.e. 23.09.1992 and after the enforcement of the Act60. In view of the discussions as made above only the supplies received after 23.09.1992 are relevant for purposes of 1993 Act. As per pleadings on the record entire supplies by the appellant was completed on 04.10.1993. Details of the payment has also been given in the plaint which indicate that last payment dated 05.03.1994 was received.Paragraph 24 of the plaint gives the details of cause of action for the suit which states that cause of action for the suit arose on 31.03.1992 and thereafter on different date last date being mentioned in paragraph 24 was 05.10.1993 and each date subsequent thereafter.62. The Trial Court held that by virtue of Section 10 of Act, 1993 plea of limitation is taken away and the suit is not barred by the limitation. The Division Bench of the High Court in RFA No. 66 of 2000 filed by the defendant had made a reference to the full bench. Full Bench in its order dated 05.03.2002 has not considered or decided the question of limitation63. Against the judgment dated 05.03.2002 of Full Bench of High Court answering the reference, the Assam State Electricity Board had filed appeal in this court being Civil Appeal No. 2351 of 2003. This Court decided Civil Appeal No.2351 of 2003 along with Civil Appeal No. 2348 of 2003 on 10.07.2002 which judgment isPurbanchal Cables and Conductors (P) Ltd. (Supra). This Court in paragraph 31 has noticed the submission of learned Counsel for the State Electricity Board that suits filed by both the suppliers were barred by time but this Court did not express any opinion.64. After the judgment of this Court dated 10.07.2012 when the matters went back to the High Court, Division Bench decided the RFA 66 of 2000 by impugned judgment dated 20.11.2012. The Division Bench in the impugned judgment has noticed the issues in paragraph 5 of the judgment and submissions on the limitations.65. It is thus clear that the Division Bench although noticed the submissions of both the parties on the question as to whether the suit was barred by limitation or not but Division Bench allowed the appeal on the ground that supply orders having been issued prior to enforcement of the Act. Act 1993 is not applicable. The Division Bench did not return any finding as to whether the suit was barred by the limitation or not. The submission that suit has barred by limitation has been pressed before us68. Plaintiff themselves in the plaint as noted above has pleaded that limitation will not apply by virtue of Section 10 which submission was accepted by the Trial Court. The provision of Section 10 of 1993 Act gives overriding effect to the provisions of Act notwithstanding anything inconsistent herewith contained in any other law for the time being in force. The overriding effect was given to the provisions of the Act which were contained in the Act. Section 10 provided that overriding effect is given to the provisions of the Act over any inconsistent law for the time being in force. It simply meant that if there is anything inconsistent in any other law to the provisions of the Act, the provisions of the Act shall prevail and override any inconsistent law. For example, when Section 4 requires payment of interest at particular rate on delayed payment the said rate shall have overriding effect to rate of interest provided in any other law69. Further, as per Section 7 no appeal can be filed against the decree or other order passed regarding recovery of amount due without depositing 75 % of the amount. Thus in a suit if a decree is passed on amount due of interest appeal has to be entertained after depositing 75% or as per any other order passed by the Court. Normal right of appeal shall be overridden by virtue of Section 7 of 1993 Act. The Trial Court fell in error in reading overriding effect given in Section 10 to the Limitation Act also. There is no provision in 1993 Act pertaining to limitation, the provision of Limitation Act pertaining to filing suit shall continue to operate there being nothing contrary or overriding under 1993 Act. Section 10 will operate only with regard to expressed provisions contained in 1993 Act which shall be given overriding effect but reading Section 10 to the effect that it shall override Limitation Act is not correct interpretation of Section 10 and Trial Court fell in errorin relying on Section 10in holding that Limitation Act will not apply70. We thus are of the view that Limitation Act, 1963 is fully applicable with regard to money suit filed by the appellant hence, the question of limitation has to be answered as per Limitation Act 1963.74. Article 113 as noted above provides fortime from which period begins as when the right to sue accrues. 1993 Act Section 4 creates statutory liability to pay interest from the day as mentioned in Section 4 the liability to pay is fastened on buyer. The amount become due as soon as liability to pay arises. Section 6 also uses the wordamount due from buyer. The amount due is amount which is liable to be paid by buyer under Section 4. Thus the fact that last payment was made on 05.03.1994 cannot be treated as period for beginning of the limitation and on that ground it cannot be held that suit was within time75. Shri Sinha had made an alternative submission that plaintiff was entitled for the benefit under section 14 of limitation Act. Since a W.P.No. giving rise to Civil Rule No.1531 of 1993 on behalf of five main members of the Associations i.e. Assam Conductors Manufacture Association was filed in the High Court which on 06.09.1994 directed the petitioner to move to Civil Court for realization of the dues of its member, hence the period during which the writ was pending has to be given benefit. According to pleading in paragraph 24, the Writ Petition was filed by Assam Conductors Manufacture Association. M/s Shanti Conductor(P) Ltd. and another, is a different entity than the Association76. We thus are of the view that benefit of the Section 14 cannot be claimed by the plaintiff in the facts of the present case.We, thus in view of the foregoing discussioncome to the conclusion that suit filed by the plaintiff being Money Suit No. 21 of 1997 was barred by time77. While deciding Issue No.3 we having held that Money Suit filed by the appellant was barred by time, it is not necessary to express any opinion on the above issue78. The question as to whether suit filed only for interest is maintainable has been considered in detail by this Court.79. Section 6 of the 1993 Act provides thatthe amount due from the buyer, together with amount of interest calculated in accordance with provision of Section 4 and 5 shall be recoverable ……. Section 6 uses the expressiontogether with the amount of interest with the amount due from the buyer. The interpretation put by learned counsel for the Board is that proceeding for recovery of interest can be undertaken only when any amount is due. He submits that amount due used in Section 6 is Principal amount. In event we accept the interpretation put by counsel for the Board, then buyer will very easily get away from payment of interest only after making payment of Principal amount. This interpretation shall defeat very purposes of 1993 Act. It is well settled that provisions of Act has to be interpreted in the manner so as to advance the object of the Act. We thus fully approve the view taken by this Court in Purbanchal Cables (Supra) that suit by supplier for recovery of only interest is maintainable80. The submission of the counsel to the board is that since against the judgment of Gauhati High Court dated 15.04.2001, S.L.P. No.12217 of 2001 filed by M/s Trusses & Towers was withdrawn without obtaining the liberty, Civil Appeal No. 8445 of 2016 is not maintainable challenging the Review Order and judgment dated 19.03.2003.In the Order passed by this Court on 06.08.2001, this Court had noticed the submission of the appellant that appellant shall move the High Court in review stating that it has committed error in recording thatall the bills were paid earlier to the commencement of this act. In the Review Petition, the review has been partly allowed by allowing interest @ 9% against which the appeal has been filed. A perusal of the Review judgment indicates that High Court has not returned any finding that all the bills were not paid earlier to the commencement of the Act81. A perusal of Division Bench judgment of High Court indicates that High Court proceed on the presumption that even if 1993 Act is not applicable the entitlement of the plaintiff could be considered in equity. When the liberty to file review was obtained on the ground as noticed in the Order the review judgment can be questioned on the ground on which review was permitted82. The Division Bench judgment does not indicate that it proceeds on the ground as contended by the appellant and noticed by this Court on 06.08.2001. The interest of 9% was allowed on the premise that 1993 Act is not applicable and said interest is allowed on equity relying on an earlier judgment on this court in Assam Small Scale Industry Development Corporation and others versus G.D. Pharmaceuticals and others, 2005(13) SCC19.We thus are of the view that present appeal challenging the review judgmentcannot be entertained. The ground on which the appellant can challenge the review judgment can be the ground on which liberty was obtained to file review. We thus hold that Civil Appeal No. 8445 of 2016 is not maintainableWhether the High court while considering the Review Petition No.75 of 2001 (M/s Trusses & Towers Pvt. Ltd.) even after expressing that Act 1993 is not applicable could have allowed 9% interest to the plaintiff?83. The High Court in its judgment dated 19.03.2013 allowed interest @ 9% per annum for the period of delayed payment. Even if Act 1993 is not applicable, the Court can very well exercise its jurisdiction to award interest. InAssam Small Scale Industry Development Corporation and others versus G.D. pharmaceuticals and others(Supra),this Court in paragraph 40 while considering the claim of the respondent in a suit filed for recovery of interest under 1993 Act has allowed 9% interest with respect to the transaction made prior to coming into force of the 1993 Act.84. High Court did not commit any error in awarding 9% interest to plaintiff respondent. We thus did not find any error in the judgment dated 19.03.2013 allowing partly the review application filed by the plaintiffCivil Appeal No. 8450 of 201685. Now, we come toCivil Appeal No. 8450 ofe appellant has filed Money Suit No. 32 of 1996 for recovery of a sum of Rs. 10,34,065.23 p. and Rs. 23,738.49 p. being the outstanding against the bills for supply made and amount of security deposited and amount of Rs.10,10,326.74 p. being the amount of delayed interest.The suit was decreed by the learned Civil Judge (Senior Division) vide its judgment and order dated 30.09.2002 for recovery of Rs. 5,46,233.14 p.as on 18.12.93 from the date of enforcement of the Act, 1993 and future interest on the decretal amount @ 6% simple interest per annum with effect from 19.12.1993.Appeal was filed by the respondent in the High Court beingRFA No. 78 of2003, whichhasbeen allowed on 12.02.2015 setting aside the decree for recovery of the amount and interest but maintaining the claim of refund of security deposit to the tune of Rs. 23,738.49 with 9% interest.The High Court following the judgment of this Court inPurbanchal Cables and Conductors Pvt. Ltd. (supra) held that with regard to transaction, which had taken place prior to 23.09.1992, the 1993 Act is not applicable.The appellants have appealed against the judgment of High Court dated 20.02.2015. The pleading on the record does not indicate that any supply was made by the appellant subsequent to enforcement of the 1993 Act. We have already held that the mere fact that supply orders were issued prior to enforcement of the Act does not deny the applicability of the 1993 Act, in event, supply has been made after the enforcement of the Act. | 0 | 15,094 | 3,286 | ### Instruction:
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will very easily get away from payment of interest only after making payment of Principal amount. This interpretation shall defeat very purposes of 1993 Act. It is well settled that provisions of Act has to be interpreted in the manner so as to advance the object of the Act. We thus fully approve the view taken by this Court in Purbanchal Cables (Supra) that suit by supplier for recovery of only interest is maintainable. Issue No.6 80. The submission of the counsel to the board is that since against the judgment of Gauhati High Court dated 15.04.2001, S.L.P. No.12217 of 2001 filed by M/s Trusses & Towers was withdrawn without obtaining the liberty, Civil Appeal No. 8445 of 2016 is not maintainable challenging the Review Order and judgment dated 19.03.2003.In the Order passed by this Court on 06.08.2001, this Court had noticed the submission of the appellant that appellant shall move the High Court in review stating that it has committed error in recording thatall the bills were paid earlier to the commencement of this act. In the Review Petition, the review has been partly allowed by allowing interest @ 9% against which the appeal has been filed. A perusal of the Review judgment indicates that High Court has not returned any finding that all the bills were not paid earlier to the commencement of the Act. 81. A perusal of Division Bench judgment of High Court indicates that High Court proceed on the presumption that even if 1993 Act is not applicable the entitlement of the plaintiff could be considered in equity. When the liberty to file review was obtained on the ground as noticed in the Order the review judgment can be questioned on the ground on which review was permitted. 82. The Division Bench judgment does not indicate that it proceeds on the ground as contended by the appellant and noticed by this Court on 06.08.2001. The interest of 9% was allowed on the premise that 1993 Act is not applicable and said interest is allowed on equity relying on an earlier judgment on this court in Assam Small Scale Industry Development Corporation and others versus G.D. Pharmaceuticals and others, 2005(13) SCC19.We thus are of the view that present appeal challenging the review judgmentcannot be entertained. The ground on which the appellant can challenge the review judgment can be the ground on which liberty was obtained to file review. We thus hold that Civil Appeal No. 8445 of 2016 is not maintainable. Issue No.7 Whether the High court while considering the Review Petition No.75 of 2001 (M/s Trusses & Towers Pvt. Ltd.) even after expressing that Act 1993 is not applicable could have allowed 9% interest to the plaintiff? 83. The High Court in its judgment dated 19.03.2013 allowed interest @ 9% per annum for the period of delayed payment. Even if Act 1993 is not applicable, the Court can very well exercise its jurisdiction to award interest. InAssam Small Scale Industry Development Corporation and others versus G.D. pharmaceuticals and others(Supra),this Court in paragraph 40 while considering the claim of the respondent in a suit filed for recovery of interest under 1993 Act has allowed 9% interest with respect to the transaction made prior to coming into force of the 1993 Act. Paragraph 40 is to the following effect: - 40.We, therefore, are of the opinion that in relation to the transactions made prior to coming into force of the said Act, simple interest at the rate of 9% per annum, which was the bank rate at the relevant time, shall be payable both prior to date of filing of the suit and pendente lite and as future interest in terms of Section 34 of the Code of Civil Procedure. Interest, however, will be payable in terms of the provisions of the 1993 Act(compound interest at the rate of 23.5 % per annum) in relation to the transactions made after coming into force of the Act, both in respect of interest payable up to the date of institution of the suit and pendente lite and till realization. The judgment and decree to that extent requires to be modified. It is directed accordingly. 84. High Court did not commit any error in awarding 9% interest to plaintiff respondent. We thus did not find any error in the judgment dated 19.03.2013 allowing partly the review application filed by the plaintiff. Civil Appeal No. 8450 of 2016 85. Now, we come to Civil Appeal No. 8450 of 2016.The appellant has filed Money Suit No. 32 of 1996 for recovery of a sum of Rs. 10,34,065.23 p. and Rs. 23,738.49 p. being the outstanding against the bills for supply made and amount of security deposited and amount of Rs.10,10,326.74 p. being the amount of delayed interest.The suit was decreed by the learned Civil Judge (Senior Division) vide its judgment and order dated 30.09.2002 for recovery of Rs. 5,46,233.14 p.as on 18.12.93 from the date of enforcement of the Act, 1993 and future interest on the decretal amount @ 6% simple interest per annum with effect from 19.12.1993.Appeal was filed by the respondent in the High Court beingRFA No. 78 of2003, whichhasbeen allowed on 12.02.2015 setting aside the decree for recovery of the amount and interest but maintaining the claim of refund of security deposit to the tune of Rs. 23,738.49 with 9% interest.The High Court following the judgment of this Court inPurbanchal Cables and Conductors Pvt. Ltd. (supra) held that with regard to transaction, which had taken place prior to 23.09.1992, the 1993 Act is not applicable.The appellants have appealed against the judgment of High Court dated 20.02.2015. The pleading on the record does not indicate that any supply was made by the appellant subsequent to enforcement of the 1993 Act. We have already held that the mere fact that supply orders were issued prior to enforcement of the Act does not deny the applicability of the 1993 Act, in event, supply has been made after the enforcement of the Act.
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by the plaintiff being Money Suit No. 21 of 1997 was barred by time77. While deciding Issue No.3 we having held that Money Suit filed by the appellant was barred by time, it is not necessary to express any opinion on the above issue78. The question as to whether suit filed only for interest is maintainable has been considered in detail by this Court.79. Section 6 of the 1993 Act provides thatthe amount due from the buyer, together with amount of interest calculated in accordance with provision of Section 4 and 5 shall be recoverable ……. Section 6 uses the expressiontogether with the amount of interest with the amount due from the buyer. The interpretation put by learned counsel for the Board is that proceeding for recovery of interest can be undertaken only when any amount is due. He submits that amount due used in Section 6 is Principal amount. In event we accept the interpretation put by counsel for the Board, then buyer will very easily get away from payment of interest only after making payment of Principal amount. This interpretation shall defeat very purposes of 1993 Act. It is well settled that provisions of Act has to be interpreted in the manner so as to advance the object of the Act. We thus fully approve the view taken by this Court in Purbanchal Cables (Supra) that suit by supplier for recovery of only interest is maintainable80. The submission of the counsel to the board is that since against the judgment of Gauhati High Court dated 15.04.2001, S.L.P. No.12217 of 2001 filed by M/s Trusses & Towers was withdrawn without obtaining the liberty, Civil Appeal No. 8445 of 2016 is not maintainable challenging the Review Order and judgment dated 19.03.2003.In the Order passed by this Court on 06.08.2001, this Court had noticed the submission of the appellant that appellant shall move the High Court in review stating that it has committed error in recording thatall the bills were paid earlier to the commencement of this act. In the Review Petition, the review has been partly allowed by allowing interest @ 9% against which the appeal has been filed. A perusal of the Review judgment indicates that High Court has not returned any finding that all the bills were not paid earlier to the commencement of the Act81. A perusal of Division Bench judgment of High Court indicates that High Court proceed on the presumption that even if 1993 Act is not applicable the entitlement of the plaintiff could be considered in equity. When the liberty to file review was obtained on the ground as noticed in the Order the review judgment can be questioned on the ground on which review was permitted82. The Division Bench judgment does not indicate that it proceeds on the ground as contended by the appellant and noticed by this Court on 06.08.2001. The interest of 9% was allowed on the premise that 1993 Act is not applicable and said interest is allowed on equity relying on an earlier judgment on this court in Assam Small Scale Industry Development Corporation and others versus G.D. Pharmaceuticals and others, 2005(13) SCC19.We thus are of the view that present appeal challenging the review judgmentcannot be entertained. The ground on which the appellant can challenge the review judgment can be the ground on which liberty was obtained to file review. We thus hold that Civil Appeal No. 8445 of 2016 is not maintainableWhether the High court while considering the Review Petition No.75 of 2001 (M/s Trusses & Towers Pvt. Ltd.) even after expressing that Act 1993 is not applicable could have allowed 9% interest to the plaintiff?83. The High Court in its judgment dated 19.03.2013 allowed interest @ 9% per annum for the period of delayed payment. Even if Act 1993 is not applicable, the Court can very well exercise its jurisdiction to award interest. InAssam Small Scale Industry Development Corporation and others versus G.D. pharmaceuticals and others(Supra),this Court in paragraph 40 while considering the claim of the respondent in a suit filed for recovery of interest under 1993 Act has allowed 9% interest with respect to the transaction made prior to coming into force of the 1993 Act.84. High Court did not commit any error in awarding 9% interest to plaintiff respondent. We thus did not find any error in the judgment dated 19.03.2013 allowing partly the review application filed by the plaintiffCivil Appeal No. 8450 of 201685. Now, we come toCivil Appeal No. 8450 ofe appellant has filed Money Suit No. 32 of 1996 for recovery of a sum of Rs. 10,34,065.23 p. and Rs. 23,738.49 p. being the outstanding against the bills for supply made and amount of security deposited and amount of Rs.10,10,326.74 p. being the amount of delayed interest.The suit was decreed by the learned Civil Judge (Senior Division) vide its judgment and order dated 30.09.2002 for recovery of Rs. 5,46,233.14 p.as on 18.12.93 from the date of enforcement of the Act, 1993 and future interest on the decretal amount @ 6% simple interest per annum with effect from 19.12.1993.Appeal was filed by the respondent in the High Court beingRFA No. 78 of2003, whichhasbeen allowed on 12.02.2015 setting aside the decree for recovery of the amount and interest but maintaining the claim of refund of security deposit to the tune of Rs. 23,738.49 with 9% interest.The High Court following the judgment of this Court inPurbanchal Cables and Conductors Pvt. Ltd. (supra) held that with regard to transaction, which had taken place prior to 23.09.1992, the 1993 Act is not applicable.The appellants have appealed against the judgment of High Court dated 20.02.2015. The pleading on the record does not indicate that any supply was made by the appellant subsequent to enforcement of the 1993 Act. We have already held that the mere fact that supply orders were issued prior to enforcement of the Act does not deny the applicability of the 1993 Act, in event, supply has been made after the enforcement of the Act.
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Municipal Board, Lucknow Vs. Pannalal Bhargava and Ors | of 1953 in the Court of Civil Judge, Lucknow, on 4th March, 1953, against seven defendants. The Board prayed for a decree for accounts to be passed against the defendants after their rendering of accounts, a decree for such amount as may be found due or in the alternative a decree for the sum of Rs. 69,642/6/6 against the defendants. The written statements were filed on behalf of defendants 1 to 3, 5 and 7. Defendants 4 and 6 admittedly migrated to Pakistan and their property was declared evacuee property by the Custodian under the Administration of the Evacuee property Act, who was impleaded as defendant No. 7.14 issues were framed and only the following two issues were taken up for preliminary hearing: Issue No. 6: Is the suit not maintainable as alleged paragraph 22(?) of the written statement of defendant No. 1? Issue No. g: Is the suit on the ground of negligence barred by limitation? 2. The Civil Judge answered both the issues against the Board. The High Court, in appeal, decided issue No. 9 the High Court set aside the judgment of the Civil Judge relating to defendant 1 to 3 and held that the suit was not barred by limitation against those three defendants under Section 326 of the U. P. Municipalities Act, 1916. The High Court, however, affirmed the decree of the Civil Judge in respect of defendant No. 5-Moiid. Yusuf and held that the suit was barred by limitation as against him under Section 326 of the aforesaid Act. 3. The Board had also made an application for review before the High Court with regard to two observations made in the judgment. The High Court accepted the review application with regard to the first observation complained of but declined to review the second observation. Mr. Dikshit, the learned Counsel for the appellant now does not press his claim with regard to the second observation before us. 4. Mr. Andley, the learned Counsel for the respondents 1 to 3, has raised a preliminary objection on the ground that the appeal has abated on account of the fact that Mohd. Yusuf, respondent No. 5, died more than six years back and the application of the appellant for setting aside abatement of the appeal with regard to respondent No. 5 which was made on March 21, 1974 was dismissed by this Court on December 3, 1975. The learned Counsel, therefore, submits that the whole appeal has abated on account of the above position. 5. We are however, unable to agree that the question of abatement in this case would arise in view of the fact that even if the suit had been dismissed against defendant 5, the defendants 1 to 3 could individually be sued for tendering accounts and for recovery of the amount due from them. Whether they would be ultimately found by the Court to be liable for the plaintiffs claim is a different matter and will be decided in the suit. There is, therefore, no substance in the plea that the appeal as a whole has abated on account of the death of Mohd. Yusuf. 6. Mr. Dikshit has drawn our attention to a factual inaccuracy in the judgment of the High Court in the following observation while dealing with issue Nos. 9: As regards defendants No. 1, 4, 5 and 6, there is no dispute that they were servants. Mr. Dikshit submits that there was dispute with regard to the fact of defendant No. 1 being a servant of the Board as will appear from issue No. 1 itself which is in the following terms: Issue No. 1: Was the defendant No. 1 a servant or an agent of the plaintiff and was liable to render account. Mr. Andley appreciated the point and does not controvert the inaccuracy of the statement in the judgment. We therefore, find that the question of defendant No. 1 being a servant of the Board remains a live issue for trial in the suit and the High Courts observation to the effect that there was no dispute is per incuriam. 7. In view of the concession made by Mr. Dikshit that he is not pressing his point with regard to the second observation in the judgment which was earlier the subject matter of review before the High Court, we are of opinion that nothing survives in this appeal for decision. 8. Even so, Mr. Dikshit submits that so far as the decisions of the High Court with regard to the dismissal of the suit on the ground of limitation under Section 326 of the U.P. Act against defendant No. 5 is concerned that will have a great bearing in the trial of the suit after remand even with regard to defendants 1 to 3. The learned Counsel submits that Section 326 is not applicable in the suit of this description instituted by the Board & the action is only intended as shield of protection in the hands of the Board, its members, officers or servants when sued as defendants. Although we see the force in this contention, we are unable to decide this point in this appeal. Such a point would have been open to be canvassed if the appeal against respondent 5 had not been dismissed on the ground of abatement. The appeal against respondent 5 Mohd. Yusuf having been dismissed by this Court and the High Court having held that the suit was not barred under Section 326 of the U.P. Act against respondent 1 to 3, it is not open to the appellant to raise this legal issue in the absence of respondent 5. It is true that the High Court has held that Section 326 of the U.P. Act is not applicable on grounds different from what is now sought to be urged by the learned Counsel. That, however, will not affect the legal position we, therefore, refrain from adjudicating upon the applicability of Section 326 of the U.P. Act on the ground urged. | 0[ds]5. We are however, unable to agree that the question of abatement in this case would arise in view of the fact that even if the suit had been dismissed against defendant 5, the defendants 1 to 3 could individually be sued for tendering accounts and for recovery of the amount due from them. Whether they would be ultimately found by the Court to be liable for the plaintiffs claim is a different matter and will be decided in the suit. There is, therefore, no substance in the plea that the appeal as a whole has abated on account of the death of Mohd. Yusuf.We therefore, find that the question of defendant No. 1 being a servant of the Board remains a live issue for trial in the suit and the High Courts observation to the effect that there was no dispute is per incuriam.7. In view of the concession made by Mr. Dikshit that he is not pressing his point with regard to the second observation in the judgment which was earlier the subject matter of review before the High Court, we are of opinion that nothing survives in this appeal for decision.Although we see the force in this contention, we are unable to decide this point in this appeal. Such a point would have been open to be canvassed if the appeal against respondent 5 had not been dismissed on the ground of abatement. The appeal against respondent 5 Mohd. Yusuf having been dismissed by this Court and the High Court having held that the suit was not barred under Section 326 of the U.P. Act against respondent 1 to 3, it is not open to the appellant to raise this legal issue in the absence of respondent 5. It is true that the High Court has held that Section 326 of the U.P. Act is not applicable on grounds different from what is now sought to be urged by the learned Counsel. That, however, will not affect the legal position we, therefore, refrain from adjudicating upon the applicability of Section 326 of the U.P. Act on the ground urged.Civil Appeal No. 1867 of 1967We have just delivered the judgment in Civil Appeal No. 1868 of 1967 which was heard along with the above civil appeal.Mr. C.P. Lal appearing on behalf of the legal representatives adopted the arguments advanced by Mr. Andly in Civil Appeal No. 1868 of 1967. The learned Counsel, however, pointed out that respondent No. 1 Sunderlal Gupta died on December 6, 1970, respondent No. 2 Sumer Chand died on January 1, 1966 and respondent 3 Sidhnath Gupta died on December 12, 1971.We are not required to consider in this appeal the effect of the death of these respondents and leave the matter open. | 0 | 1,167 | 504 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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of 1953 in the Court of Civil Judge, Lucknow, on 4th March, 1953, against seven defendants. The Board prayed for a decree for accounts to be passed against the defendants after their rendering of accounts, a decree for such amount as may be found due or in the alternative a decree for the sum of Rs. 69,642/6/6 against the defendants. The written statements were filed on behalf of defendants 1 to 3, 5 and 7. Defendants 4 and 6 admittedly migrated to Pakistan and their property was declared evacuee property by the Custodian under the Administration of the Evacuee property Act, who was impleaded as defendant No. 7.14 issues were framed and only the following two issues were taken up for preliminary hearing: Issue No. 6: Is the suit not maintainable as alleged paragraph 22(?) of the written statement of defendant No. 1? Issue No. g: Is the suit on the ground of negligence barred by limitation? 2. The Civil Judge answered both the issues against the Board. The High Court, in appeal, decided issue No. 9 the High Court set aside the judgment of the Civil Judge relating to defendant 1 to 3 and held that the suit was not barred by limitation against those three defendants under Section 326 of the U. P. Municipalities Act, 1916. The High Court, however, affirmed the decree of the Civil Judge in respect of defendant No. 5-Moiid. Yusuf and held that the suit was barred by limitation as against him under Section 326 of the aforesaid Act. 3. The Board had also made an application for review before the High Court with regard to two observations made in the judgment. The High Court accepted the review application with regard to the first observation complained of but declined to review the second observation. Mr. Dikshit, the learned Counsel for the appellant now does not press his claim with regard to the second observation before us. 4. Mr. Andley, the learned Counsel for the respondents 1 to 3, has raised a preliminary objection on the ground that the appeal has abated on account of the fact that Mohd. Yusuf, respondent No. 5, died more than six years back and the application of the appellant for setting aside abatement of the appeal with regard to respondent No. 5 which was made on March 21, 1974 was dismissed by this Court on December 3, 1975. The learned Counsel, therefore, submits that the whole appeal has abated on account of the above position. 5. We are however, unable to agree that the question of abatement in this case would arise in view of the fact that even if the suit had been dismissed against defendant 5, the defendants 1 to 3 could individually be sued for tendering accounts and for recovery of the amount due from them. Whether they would be ultimately found by the Court to be liable for the plaintiffs claim is a different matter and will be decided in the suit. There is, therefore, no substance in the plea that the appeal as a whole has abated on account of the death of Mohd. Yusuf. 6. Mr. Dikshit has drawn our attention to a factual inaccuracy in the judgment of the High Court in the following observation while dealing with issue Nos. 9: As regards defendants No. 1, 4, 5 and 6, there is no dispute that they were servants. Mr. Dikshit submits that there was dispute with regard to the fact of defendant No. 1 being a servant of the Board as will appear from issue No. 1 itself which is in the following terms: Issue No. 1: Was the defendant No. 1 a servant or an agent of the plaintiff and was liable to render account. Mr. Andley appreciated the point and does not controvert the inaccuracy of the statement in the judgment. We therefore, find that the question of defendant No. 1 being a servant of the Board remains a live issue for trial in the suit and the High Courts observation to the effect that there was no dispute is per incuriam. 7. In view of the concession made by Mr. Dikshit that he is not pressing his point with regard to the second observation in the judgment which was earlier the subject matter of review before the High Court, we are of opinion that nothing survives in this appeal for decision. 8. Even so, Mr. Dikshit submits that so far as the decisions of the High Court with regard to the dismissal of the suit on the ground of limitation under Section 326 of the U.P. Act against defendant No. 5 is concerned that will have a great bearing in the trial of the suit after remand even with regard to defendants 1 to 3. The learned Counsel submits that Section 326 is not applicable in the suit of this description instituted by the Board & the action is only intended as shield of protection in the hands of the Board, its members, officers or servants when sued as defendants. Although we see the force in this contention, we are unable to decide this point in this appeal. Such a point would have been open to be canvassed if the appeal against respondent 5 had not been dismissed on the ground of abatement. The appeal against respondent 5 Mohd. Yusuf having been dismissed by this Court and the High Court having held that the suit was not barred under Section 326 of the U.P. Act against respondent 1 to 3, it is not open to the appellant to raise this legal issue in the absence of respondent 5. It is true that the High Court has held that Section 326 of the U.P. Act is not applicable on grounds different from what is now sought to be urged by the learned Counsel. That, however, will not affect the legal position we, therefore, refrain from adjudicating upon the applicability of Section 326 of the U.P. Act on the ground urged.
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5. We are however, unable to agree that the question of abatement in this case would arise in view of the fact that even if the suit had been dismissed against defendant 5, the defendants 1 to 3 could individually be sued for tendering accounts and for recovery of the amount due from them. Whether they would be ultimately found by the Court to be liable for the plaintiffs claim is a different matter and will be decided in the suit. There is, therefore, no substance in the plea that the appeal as a whole has abated on account of the death of Mohd. Yusuf.We therefore, find that the question of defendant No. 1 being a servant of the Board remains a live issue for trial in the suit and the High Courts observation to the effect that there was no dispute is per incuriam.7. In view of the concession made by Mr. Dikshit that he is not pressing his point with regard to the second observation in the judgment which was earlier the subject matter of review before the High Court, we are of opinion that nothing survives in this appeal for decision.Although we see the force in this contention, we are unable to decide this point in this appeal. Such a point would have been open to be canvassed if the appeal against respondent 5 had not been dismissed on the ground of abatement. The appeal against respondent 5 Mohd. Yusuf having been dismissed by this Court and the High Court having held that the suit was not barred under Section 326 of the U.P. Act against respondent 1 to 3, it is not open to the appellant to raise this legal issue in the absence of respondent 5. It is true that the High Court has held that Section 326 of the U.P. Act is not applicable on grounds different from what is now sought to be urged by the learned Counsel. That, however, will not affect the legal position we, therefore, refrain from adjudicating upon the applicability of Section 326 of the U.P. Act on the ground urged.Civil Appeal No. 1867 of 1967We have just delivered the judgment in Civil Appeal No. 1868 of 1967 which was heard along with the above civil appeal.Mr. C.P. Lal appearing on behalf of the legal representatives adopted the arguments advanced by Mr. Andly in Civil Appeal No. 1868 of 1967. The learned Counsel, however, pointed out that respondent No. 1 Sunderlal Gupta died on December 6, 1970, respondent No. 2 Sumer Chand died on January 1, 1966 and respondent 3 Sidhnath Gupta died on December 12, 1971.We are not required to consider in this appeal the effect of the death of these respondents and leave the matter open.
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Tata Oil Mills Co. Ltd Vs. Collector Of Central Excise | 1977. This circular states that the matter had been considered pursuant to an appellate order passed in one of the cases relating to the same assessee and it had been decided to fix the formula for arriving at the correlation between rice bran oil on the hand and hydrogenated rice bran oil or rice bran fatty acid on the other as below (a) 100 M.T. of hydrogenated rice bran oil = 100 M.T. of rice bran oil (b) 100 M.T. of fatty acid = 115 M.T. of raw rice bran oil The circular refers to the fact that the present assessee (in relation to its Cochin factory) had accepted the abovesaid formula and that the formula as given was, therefore, "finally fixed in arriving at the rice bran oil contents of hydrogenated rice bran oil and of rice bran fatty acid for ascertaining the amount of exemption as per Notification Nos. 45 and 46 of 1972". It is true that this is only a local instruction issued by certain assessing authorities in Cochin. It is being referred to only to show that there is no insuperable difficulty in ascertaining the weight of rice bran oil that has been converted into fatty acid and thus entered the process of manufacture in the assessees factory particularly in view of the fact that even the process of conversion of rice bran oil into fatty acid or hydrogenated oil is carried out in a factory subject to excise jurisdiction. 10. The appellant has drawn our attention to certain extracts from a letter of the Ministry of Finance dated April 6, 1976. It poses the problem thus: "A doubt has been raised whether rebate of central excise duty would be admissible under Notification Nos. 24 and 25 of 1975 CE, dated March 1, 1975 (predecessor Notification Nos. 45 46 of 1972) where rice bran oil and other minor oils are hydrogenated in one factory and sent to another factory for manufacture of soap." The answer furnished is thus: "The matter has been considered in the Ministry and it is felt that the purpose of rebate scheme of rice bran oil as well as other minor oils envisaged in the Notifications Nos. 24 of 1975 and 25 of 1975 (including their predecessor notification) is to encourage the use of inedible oils in the manufacture of soap so as to relieve the pressure on edible oils. In Boards letter F. No. 92/2/72-CX. 3 dated July 18, 1974 and F. No. 92/ 6/74 - CX. 3, dated December 27, 1974, it was clarified that in respect of rice bran oil as well as other minor oils where such are subject to various treatments, including hydrogenation. such treatment would not debar them from the rebate scheme inasmuch as such processing is essential in the process of manufacture of soapAs the notifications in question permit the rebate subject to identification of the oil as such, had the manufacturer placed the manufacturer placed the matter before the concerned Collector pointing out his practical difficulties, the Collector would have advised for suitable documentation (if the existing documentations are not enough) for the receipt, processing, movement and accounting of the oils for the concession in question. In the circumstances, it is felt that the benefit of rebate cannot be denied to the manufacturers for want of prescribing a satisfactory procedure, especially, when it is contended by the manufacturers that they have opted for the rebate scheme, their factories are under excise control, they have sufficient documentary evidence about the receipt, processing, movement, incorporation/use in the manufacture of soap. If, as contended by the manufacturers, there is sufficient record maintained by them for excise purposes and the reasonable correlation is possible about the identify and use of such oils it would not be correct to deny the concession. In this connection, it is of relevance to mention that a problem of similar nature had arisen with reference to some other excisable product. This related to a claim of exemption in respect of fertilizers (super-phosphates) manufactured from sulphuric acid in a case where sulphuric acid was converted elsewhere into phosphoric acid then used for the manufacture of the chemicals and the law Ministry was also consulted. An extract of their opinion is appended. It is, therefore, requested that taking into account the local practical situations existing in his jurisdiction, the Collector may prescribe suitable procedures for identification of such oils for a meaningful implementation of the Rebate Scheme. A copy of the Trade Notice issued in this regard by the Collector may be sent to DICCE under intimation to this Ministry." Following this, trade notices were issued on August 25, 1976 and February 8, 1977 in certain central excise jurisdictions, the relevant portion of which reads thus "A doubt has been raised whether the rebate on central excise duty would be admissible under Notification Nos. 40 of 1972-CE and 46 of 1972-CE both dated March 17, 1972 as amended, where the rice bran oil and other minor oils are hydrogenated in one factory and sent to another factory for use in the manufacture of soap "It has been clarified that in respect of rice bran oil and other minor oils where such oils are subject to various treatment from the rebate scheme as envisaged in the abovesaid notifications." The trade notice proceeds to set out the procedural safeguards to be followed in granting this relief which are necessary for our purpose. We endorse this as embodying the correct approach to the issue in this case. 11. We are, therefore, of the view that the terms of the notification do not have the effect of excluding cases where the manufacture of soap is done out of rice bran oil but the entire process is not carried out by the assessee itself. The question which one has to ask is : does the assessee manufacture soap partly or wholly out of indigenous rice bran oil ? and the answer, we think, can only be in the affirmative. | 1[ds]6. We are of opinion that the view taken by the excise authorities as well as by the Tribunal proceeds upon too narrow an interpretation of the notification. It is true, as Mr. Ganguli contented, that an assessee claiming relief under an exemption provision in a taxing statute has to show that he comes within the language of the exemption. But, in trying to understand the language used by an exemption notification, one should keep in mind two important aspects : (a) the object and purpose of the exemption, and (b) the nature of the actual process involved in the manufacture of the commodity in relation to which exemption is granted. So far as (b) is concerned, it is common ground before us that rice bran oil as such is not directly used in the manufacture of soap. Rice bran oil contains glycerol and other impurities which have to be removed by a process of hydrolysis or hydrogenation and it is only the resultant purified rice bran oil that is actually used in the manufacture of soap. In fact, the Tribunal has given a clear finding that a pre-treatment to rice bran oil is required to be done as a matter of necessity for its use in the manufacture of soap. Thus even a factory which consumes rice bran oil in the manufacture of soap in its factory first converts the oil into hydrogenated oil or fatty acid and then manufactures soap of the latter. So as (a) is concerned, the object of the notification - as even the Tribunal finds - is to grant a concession to a manufacturer of soap who manufacturers soap from rice bran oil to a substantial extent and thus and thus discourage the use of edible oils in the manufacture. If these two aspects are considered together, it is clear that the emphasis in the notification is not that rice bran oil should be used as raw material in the very factory which produces the soap. The requirement is that the soap manufactured should, to a prescribed extend, be from rice bran oil as contrasted with other types of oil. The contrast is not between the use of rice bran oil as opposed to rice bran fatty acid or hydrogenated rice bran oil; the contrast is between the use of rice bran oil as opposed to other oils. That is the ordinary meaning of the words used. These words may be construed literally but should be given their fullest amplitude and interpreted in the context of the process of soap manufacture. There are no words in the notification to restrict it only to cases where rice bran oil is directly used in the factory claiming exemption and to exclude cases where soap is made by using rice bran fatty acid derived from rice bran oil. The whole purpose and object of the notification is to encourage the utilisation of rice bran oil in the process of manufacturer of soap in preference to various other kinds of oil (mainly edible oils) used in such manufacture and this should not be defeated by an unduly narrow interpretation of the language of the notification even when it is clear that rice bran oil can be used for manufacture of soap only after its conversion into fatty acid or hydrogenated oil7. The position will perhaps become clearer if we consider a case where an assessee manufacturer soap out of hydrogenated rice bran oil (which process of hydrogenation, again, is akin to the process of hydrolysis which yields rice bran fatty acid). The assessee will then be clearly entitled to the exemption under the notification inasmuch as the hydrogenated rice bran oil does not cease to be rice bran oil. (See in this connection : Tungabhadra Industries Ltd. v. CTO ((1961) 2 SCR 14 ) and Collector of Central Excise v. Jayant Oil Mills ((1989) 3 SCC 343 : 1989 SCC (Tax) 423.) The answer cannot be different where rice bran oil is treated to yield rice bran fatty acid before soap is manufactured even if it be assumed that, unlike hydrogenated oil the fatty acid is, commercially speaking, a different commodity. We are, therefore, of opinion that, construing the notifications literally but reasonable in the light of the process of manufacture as explained by the Tribunal, the soap manufactured by the assessee is "soap made from indigenous rice bran oil" and is entitled to the exemption under the notifications to the extend permissible thereunder8. Reference was made, in the course of the arguments before us, to a tariff advice issued as early as July 1974 by the Ministry of Finance in relation to the notification of 1972. It reads as under"I am directed to invite a reference to this Ministrys Notification No. 46 of 1972 C.E. dated March 17, 1972, which grants exemption from duty on soap which is produced from rice bran oil or from a mixture of rice bran oil and other oils. It has been brought to the notice of this Ministry that the benefit of exemption is not being allowed by the central excise officers where rice bran oil or oil mixture is hydrogenated or pre-treated before the soap is produced. The matter has been considered in detail with the concerned authorities and keeping in view the technical opinion tendered by them that rice bran oil as such sometimes cannot be used directly and has to be pre-treated before use in the manufacture of soap, it is hereby clarified that the exemption will be admissible when the rice bran oil is, after processing or pre-treatment, used in the manufacture of soap. In this connection it may be stated that the exemption notification does not preclude any processing or pre-treatment including hydrogenation in the manufacture of soap if such processes are incidental and ancillary to the manufacturing operation."This circular clarifies that the exemption will be admissible when the rice bran oil after processing or pre-treatment - that is to say, when hydrogenated rice bran oil or rice bran fatty acid - is used in the manufacture of soap. But the counsel for the Union of India would have it that the circular postulates such exemption only where the pre-treatment or processing is done in the same factory. He invites attention to the last sentence of the circular, emphasised by us above. We do not think this is the correct interpretation of the circular. In the first place, it will be noticed that the circular does not specifically say that the pre-treatment or processing should be in the same factory of the assessee. Secondly, no clarification by a circular or tariff advice is at all necessary to cover cases where the conversion from rice bran oil into rice bran fatty acid is done in the same factory for, to such a case, the notification will clearly apply. If it had been the intention to pin down the concession to cases where the pre-treatment or processing is part of the manufacturing process within the same factory, the last sentence would not have stated the obvious but would have read something like this"In this connection it is emphasised that the exemption notification precludes any processing or pre-treatment, including hydrogenation in the manufacture of soap, except where such processes are incidental and ancillary to the manufacturing operation."9. The Tribunal has pointed but that the notification refers to the percentage of rice bran oil consumption and that, unless such oil is directly used in the factory, it will not be possible to work back, from the weight of fatty acid used by the assessee, the weight of rice bran oil out of which such acid had been obtained. There are two answers to this objection. One is that, if we have stated is the correction of the notification, the mere fact that there may be some difficulty in ascertaining the weight of oil, cannot be a justification to refuse to give effect to that interpretation. The second is that a practical solution do this difficulty has in fact been evolved and that, too, in the case of the some assessee. Our attention has been invited to a circular issued by the Assistant Collector, Ernakulam II dated June 23, 1977. This circular states that the matter had been considered pursuant to an appellate order passed in one of the cases relating to the same assessee and it had been decided to fix the formula for arriving at the correlation between rice bran oil on the hand and hydrogenated rice bran oil or rice bran fatty acid on the other as) 100 M.T. of hydrogenated rice bran oil = 100 M.T. of rice bran oil(b) 100 M.T. of fatty acid = 115 M.T. of raw rice bran oilThe circular refers to the fact that the present assessee (in relation to its Cochin factory) had accepted the abovesaid formula and that the formula as given was, therefore, "finally fixed in arriving at the rice bran oil contents of hydrogenated rice bran oil and of rice bran fatty acid for ascertaining the amount of exemption as per Notification Nos. 45 and 46 of 1972". It is true that this is only a local instruction issued by certain assessing authorities in Cochin. It is being referred to only to show that there is no insuperable difficulty in ascertaining the weight of rice bran oil that has been converted into fatty acid and thus entered the process of manufacture in the assessees factory particularly in view of the fact that even the process of conversion of rice bran oil into fatty acid or hydrogenated oil is carried out in a factory subject to excise jurisdiction10. The appellant has drawn our attention to certain extracts from a letter of the Ministry of Finance dated April 6, 1976. It poses the problem thus"A doubt has been raised whether rebate of central excise duty would be admissible under Notification Nos. 24 and 25 of 1975 CE, dated March 1, 1975 (predecessor Notification Nos. 45 46 of 1972) where rice bran oil and other minor oils are hydrogenated in one factory and sent to another factory for manufacture of soap."The answer furnished is thus"The matter has been considered in the Ministry and it is felt that the purpose of rebate scheme of rice bran oil as well as other minor oils envisaged in the Notifications Nos. 24 of 1975 and 25 of 1975 (including their predecessor notification) is to encourage the use of inedible oils in the manufacture of soap so as to relieve the pressure on edible oils. In Boards letter F. No. 92/2/72-CX. 3 dated July 18, 1974 and F. No. 92/ 6/74 - CX. 3, dated December 27, 1974, it was clarified that in respect of rice bran oil as well as other minor oils where such are subject to various treatments, including hydrogenation. such treatment would not debar them from the rebate scheme inasmuch as such processing is essential in the process of manufacture of soapAs the notifications in question permit the rebate subject to identification of the oil as such, had the manufacturer placed the manufacturer placed the matter before the concerned Collector pointing out his practical difficulties, the Collector would have advised for suitable documentation (if the existing documentations are not enough) for the receipt, processing, movement and accounting of the oils for the concession in question. In the circumstances, it is felt that the benefit of rebate cannot be denied to the manufacturers for want of prescribing a satisfactory procedure, especially, when it is contended by the manufacturers that they have opted for the rebate scheme, their factories are under excise control, they have sufficient documentary evidence about the receipt, processing, movement, incorporation/use in the manufacture of soap. If, as contended by the manufacturers, there is sufficient record maintained by them for excise purposes and the reasonable correlation is possible about the identify and use of such oils it would not be correct to deny the concession. In this connection, it is of relevance to mention that a problem of similar nature had arisen with reference to some other excisable product. This related to a claim of exemption in respect of fertilizers (super-phosphates) manufactured from sulphuric acid in a case where sulphuric acid was converted elsewhere into phosphoric acid then used for the manufacture of the chemicals and the law Ministry was also consulted. An extract of their opinion is appended. It is, therefore, requested that taking into account the local practical situations existing in his jurisdiction, the Collector may prescribe suitable procedures for identification of such oils for a meaningful implementation of the Rebate Scheme. A copy of the Trade Notice issued in this regard by the Collector may be sent to DICCE under intimation to thisg this, trade notices were issued on August 25, 1976 and February 8, 1977 in certain central excise jurisdictions, the relevant portion of which reads thus"A doubt has been raised whether the rebate on central excise duty would be admissible under Notification Nos. 40 of 1972-CE and 46 of 1972-CE both dated March 17, 1972 as amended, where the rice bran oil and other minor oils are hydrogenated in one factory and sent to another factory for use in the manufacture of soap"It has been clarified that in respect of rice bran oil and other minor oils where such oils are subject to various treatment from the rebate scheme as envisaged in the abovesaid notifications."The trade notice proceeds to set out the procedural safeguards to be followed in granting this relief which are necessary for our purposeWe endorse this as embodying the correct approach to the issue in this case11. We are, therefore, of the view that the terms of the notification do not have the effect of excluding cases where the manufacture of soap is done out of rice bran oil but the entire process is not carried out by the assessee itself. The question which one has to ask is : does the assessee manufacture soap partly or wholly out of indigenous rice bran oil ? and the answer, we think, can only be in the affirmative. | 1 | 3,950 | 2,578 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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1977. This circular states that the matter had been considered pursuant to an appellate order passed in one of the cases relating to the same assessee and it had been decided to fix the formula for arriving at the correlation between rice bran oil on the hand and hydrogenated rice bran oil or rice bran fatty acid on the other as below (a) 100 M.T. of hydrogenated rice bran oil = 100 M.T. of rice bran oil (b) 100 M.T. of fatty acid = 115 M.T. of raw rice bran oil The circular refers to the fact that the present assessee (in relation to its Cochin factory) had accepted the abovesaid formula and that the formula as given was, therefore, "finally fixed in arriving at the rice bran oil contents of hydrogenated rice bran oil and of rice bran fatty acid for ascertaining the amount of exemption as per Notification Nos. 45 and 46 of 1972". It is true that this is only a local instruction issued by certain assessing authorities in Cochin. It is being referred to only to show that there is no insuperable difficulty in ascertaining the weight of rice bran oil that has been converted into fatty acid and thus entered the process of manufacture in the assessees factory particularly in view of the fact that even the process of conversion of rice bran oil into fatty acid or hydrogenated oil is carried out in a factory subject to excise jurisdiction. 10. The appellant has drawn our attention to certain extracts from a letter of the Ministry of Finance dated April 6, 1976. It poses the problem thus: "A doubt has been raised whether rebate of central excise duty would be admissible under Notification Nos. 24 and 25 of 1975 CE, dated March 1, 1975 (predecessor Notification Nos. 45 46 of 1972) where rice bran oil and other minor oils are hydrogenated in one factory and sent to another factory for manufacture of soap." The answer furnished is thus: "The matter has been considered in the Ministry and it is felt that the purpose of rebate scheme of rice bran oil as well as other minor oils envisaged in the Notifications Nos. 24 of 1975 and 25 of 1975 (including their predecessor notification) is to encourage the use of inedible oils in the manufacture of soap so as to relieve the pressure on edible oils. In Boards letter F. No. 92/2/72-CX. 3 dated July 18, 1974 and F. No. 92/ 6/74 - CX. 3, dated December 27, 1974, it was clarified that in respect of rice bran oil as well as other minor oils where such are subject to various treatments, including hydrogenation. such treatment would not debar them from the rebate scheme inasmuch as such processing is essential in the process of manufacture of soapAs the notifications in question permit the rebate subject to identification of the oil as such, had the manufacturer placed the manufacturer placed the matter before the concerned Collector pointing out his practical difficulties, the Collector would have advised for suitable documentation (if the existing documentations are not enough) for the receipt, processing, movement and accounting of the oils for the concession in question. In the circumstances, it is felt that the benefit of rebate cannot be denied to the manufacturers for want of prescribing a satisfactory procedure, especially, when it is contended by the manufacturers that they have opted for the rebate scheme, their factories are under excise control, they have sufficient documentary evidence about the receipt, processing, movement, incorporation/use in the manufacture of soap. If, as contended by the manufacturers, there is sufficient record maintained by them for excise purposes and the reasonable correlation is possible about the identify and use of such oils it would not be correct to deny the concession. In this connection, it is of relevance to mention that a problem of similar nature had arisen with reference to some other excisable product. This related to a claim of exemption in respect of fertilizers (super-phosphates) manufactured from sulphuric acid in a case where sulphuric acid was converted elsewhere into phosphoric acid then used for the manufacture of the chemicals and the law Ministry was also consulted. An extract of their opinion is appended. It is, therefore, requested that taking into account the local practical situations existing in his jurisdiction, the Collector may prescribe suitable procedures for identification of such oils for a meaningful implementation of the Rebate Scheme. A copy of the Trade Notice issued in this regard by the Collector may be sent to DICCE under intimation to this Ministry." Following this, trade notices were issued on August 25, 1976 and February 8, 1977 in certain central excise jurisdictions, the relevant portion of which reads thus "A doubt has been raised whether the rebate on central excise duty would be admissible under Notification Nos. 40 of 1972-CE and 46 of 1972-CE both dated March 17, 1972 as amended, where the rice bran oil and other minor oils are hydrogenated in one factory and sent to another factory for use in the manufacture of soap "It has been clarified that in respect of rice bran oil and other minor oils where such oils are subject to various treatment from the rebate scheme as envisaged in the abovesaid notifications." The trade notice proceeds to set out the procedural safeguards to be followed in granting this relief which are necessary for our purpose. We endorse this as embodying the correct approach to the issue in this case. 11. We are, therefore, of the view that the terms of the notification do not have the effect of excluding cases where the manufacture of soap is done out of rice bran oil but the entire process is not carried out by the assessee itself. The question which one has to ask is : does the assessee manufacture soap partly or wholly out of indigenous rice bran oil ? and the answer, we think, can only be in the affirmative.
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been invited to a circular issued by the Assistant Collector, Ernakulam II dated June 23, 1977. This circular states that the matter had been considered pursuant to an appellate order passed in one of the cases relating to the same assessee and it had been decided to fix the formula for arriving at the correlation between rice bran oil on the hand and hydrogenated rice bran oil or rice bran fatty acid on the other as) 100 M.T. of hydrogenated rice bran oil = 100 M.T. of rice bran oil(b) 100 M.T. of fatty acid = 115 M.T. of raw rice bran oilThe circular refers to the fact that the present assessee (in relation to its Cochin factory) had accepted the abovesaid formula and that the formula as given was, therefore, "finally fixed in arriving at the rice bran oil contents of hydrogenated rice bran oil and of rice bran fatty acid for ascertaining the amount of exemption as per Notification Nos. 45 and 46 of 1972". It is true that this is only a local instruction issued by certain assessing authorities in Cochin. It is being referred to only to show that there is no insuperable difficulty in ascertaining the weight of rice bran oil that has been converted into fatty acid and thus entered the process of manufacture in the assessees factory particularly in view of the fact that even the process of conversion of rice bran oil into fatty acid or hydrogenated oil is carried out in a factory subject to excise jurisdiction10. The appellant has drawn our attention to certain extracts from a letter of the Ministry of Finance dated April 6, 1976. It poses the problem thus"A doubt has been raised whether rebate of central excise duty would be admissible under Notification Nos. 24 and 25 of 1975 CE, dated March 1, 1975 (predecessor Notification Nos. 45 46 of 1972) where rice bran oil and other minor oils are hydrogenated in one factory and sent to another factory for manufacture of soap."The answer furnished is thus"The matter has been considered in the Ministry and it is felt that the purpose of rebate scheme of rice bran oil as well as other minor oils envisaged in the Notifications Nos. 24 of 1975 and 25 of 1975 (including their predecessor notification) is to encourage the use of inedible oils in the manufacture of soap so as to relieve the pressure on edible oils. In Boards letter F. No. 92/2/72-CX. 3 dated July 18, 1974 and F. No. 92/ 6/74 - CX. 3, dated December 27, 1974, it was clarified that in respect of rice bran oil as well as other minor oils where such are subject to various treatments, including hydrogenation. such treatment would not debar them from the rebate scheme inasmuch as such processing is essential in the process of manufacture of soapAs the notifications in question permit the rebate subject to identification of the oil as such, had the manufacturer placed the manufacturer placed the matter before the concerned Collector pointing out his practical difficulties, the Collector would have advised for suitable documentation (if the existing documentations are not enough) for the receipt, processing, movement and accounting of the oils for the concession in question. In the circumstances, it is felt that the benefit of rebate cannot be denied to the manufacturers for want of prescribing a satisfactory procedure, especially, when it is contended by the manufacturers that they have opted for the rebate scheme, their factories are under excise control, they have sufficient documentary evidence about the receipt, processing, movement, incorporation/use in the manufacture of soap. If, as contended by the manufacturers, there is sufficient record maintained by them for excise purposes and the reasonable correlation is possible about the identify and use of such oils it would not be correct to deny the concession. In this connection, it is of relevance to mention that a problem of similar nature had arisen with reference to some other excisable product. This related to a claim of exemption in respect of fertilizers (super-phosphates) manufactured from sulphuric acid in a case where sulphuric acid was converted elsewhere into phosphoric acid then used for the manufacture of the chemicals and the law Ministry was also consulted. An extract of their opinion is appended. It is, therefore, requested that taking into account the local practical situations existing in his jurisdiction, the Collector may prescribe suitable procedures for identification of such oils for a meaningful implementation of the Rebate Scheme. A copy of the Trade Notice issued in this regard by the Collector may be sent to DICCE under intimation to thisg this, trade notices were issued on August 25, 1976 and February 8, 1977 in certain central excise jurisdictions, the relevant portion of which reads thus"A doubt has been raised whether the rebate on central excise duty would be admissible under Notification Nos. 40 of 1972-CE and 46 of 1972-CE both dated March 17, 1972 as amended, where the rice bran oil and other minor oils are hydrogenated in one factory and sent to another factory for use in the manufacture of soap"It has been clarified that in respect of rice bran oil and other minor oils where such oils are subject to various treatment from the rebate scheme as envisaged in the abovesaid notifications."The trade notice proceeds to set out the procedural safeguards to be followed in granting this relief which are necessary for our purposeWe endorse this as embodying the correct approach to the issue in this case11. We are, therefore, of the view that the terms of the notification do not have the effect of excluding cases where the manufacture of soap is done out of rice bran oil but the entire process is not carried out by the assessee itself. The question which one has to ask is : does the assessee manufacture soap partly or wholly out of indigenous rice bran oil ? and the answer, we think, can only be in the affirmative.
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Modi Spinning & Weaving Mills Co. Ltd. and Anr Vs. Ladha Ram & Co | RAY, C.J.1. This appeal is by special leave from the judgment dated August 8, 1975 of the High Court of Allahabad. The appellants are defendants and the respondent is the plaintiff in suit out of which this appeal arises.2. The plaintiffs suit is for a decree for Rs. 1, 30, 000 on the cause of action as laid in the plaint.3. The suit was instituted sometime in the month of May, 1971.4. The defendants filed written statement.5. Two paragraphs of the written statement contained additional pleas. Paragraph 25 states that the agreement dated April 7, 1967 is applicable to the transactions in which the plaintiff works as stockist-cum-distributor of the defendants. The defendants further allege in paragraph 25 that the agreement is not applicable to transactions in which the plaintiff acts as a principal. In paragraph 26 the defendants/appellants in the alternative allege that even if agreement dated April 7, 1967 is applied to the dealings in suit, plaintiffs position is merely that of an agent of he defendants and as such plaintiffs is not entitled to claim any damages from the defendants for non-supply of its own goods for sale through the plaintiff.6. The defendants/appellants approximately 3 years after the filing of the written statement made an application for amendment of the written statement. The proposed amendments were for deletion of paragraphs 25 and 26 and for substitution of two new paragraphs 25 and 26. The proposed amendment in para 25 was that by virtue of the agreement the plaintiff was appointed a mercantile agent and the plaintiff acted in that capacity in placing orders on the defendants. The defendants further denied the allegation of the plaintiff that the plaintiff placed orders with the defendants in the plaintiffs capacity as a purchaser. The defendants also alleged that the plaintiff throughout acted as an agent of the defendants. In paragraph 26 of the proposed amendment it was alleged by the defendants that being a mercantile agent and an agent of the defendants in accordance with the terms of the agreement, the plaintiff has no locus standi to file the suit.7. The trial Court rejected the application of the defendants for amendment. One of the reasons given by the trial Court is that the defendants wanted to resile from admissions made in paragraph 25 of the written statement. The trial Court said that "the repudiation of the clear admission is motivated to deprive the plaintiff of the valuable right accrued to him and it is against law". The trial Court held the application for amendment to be not bona fide.8. The High Court on revision affirmed the judgment of the trial Court and said that by means of amendment the defendants wanted to introduce an entirely different case and if such amendments were permitted it would prejudice the other side.9. The decision of the trial Court is correct. The defendants cannot be allowed to change completely the case made in paragraphs 25 and 26 of the written statement and substitute an entirely different and new case.10. It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paragraphs 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. The High Court rightly rejected the application for amendment and agreed with the trial Court.11. We are told that the defendants proposed amendments to two other paragraphs of written statement. These are paragraphs 4 and 19 of the written statement. These amendments were also rightly rejected. | 0[ds]9. The decision of the trial Court is correct. The defendants cannot be allowed to change completely the case made in paragraphs 25 and 26 of the written statement and substitute an entirely different and new case.10. It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paragraphs 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. The High Court rightly rejected the application for amendment and agreed with the trial Court.11. We are told that the defendants proposed amendments to two other paragraphs of written statement. These are paragraphs 4 and 19 of the written statement. These amendments were also rightly rejected. | 0 | 664 | 168 | ### Instruction:
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RAY, C.J.1. This appeal is by special leave from the judgment dated August 8, 1975 of the High Court of Allahabad. The appellants are defendants and the respondent is the plaintiff in suit out of which this appeal arises.2. The plaintiffs suit is for a decree for Rs. 1, 30, 000 on the cause of action as laid in the plaint.3. The suit was instituted sometime in the month of May, 1971.4. The defendants filed written statement.5. Two paragraphs of the written statement contained additional pleas. Paragraph 25 states that the agreement dated April 7, 1967 is applicable to the transactions in which the plaintiff works as stockist-cum-distributor of the defendants. The defendants further allege in paragraph 25 that the agreement is not applicable to transactions in which the plaintiff acts as a principal. In paragraph 26 the defendants/appellants in the alternative allege that even if agreement dated April 7, 1967 is applied to the dealings in suit, plaintiffs position is merely that of an agent of he defendants and as such plaintiffs is not entitled to claim any damages from the defendants for non-supply of its own goods for sale through the plaintiff.6. The defendants/appellants approximately 3 years after the filing of the written statement made an application for amendment of the written statement. The proposed amendments were for deletion of paragraphs 25 and 26 and for substitution of two new paragraphs 25 and 26. The proposed amendment in para 25 was that by virtue of the agreement the plaintiff was appointed a mercantile agent and the plaintiff acted in that capacity in placing orders on the defendants. The defendants further denied the allegation of the plaintiff that the plaintiff placed orders with the defendants in the plaintiffs capacity as a purchaser. The defendants also alleged that the plaintiff throughout acted as an agent of the defendants. In paragraph 26 of the proposed amendment it was alleged by the defendants that being a mercantile agent and an agent of the defendants in accordance with the terms of the agreement, the plaintiff has no locus standi to file the suit.7. The trial Court rejected the application of the defendants for amendment. One of the reasons given by the trial Court is that the defendants wanted to resile from admissions made in paragraph 25 of the written statement. The trial Court said that "the repudiation of the clear admission is motivated to deprive the plaintiff of the valuable right accrued to him and it is against law". The trial Court held the application for amendment to be not bona fide.8. The High Court on revision affirmed the judgment of the trial Court and said that by means of amendment the defendants wanted to introduce an entirely different case and if such amendments were permitted it would prejudice the other side.9. The decision of the trial Court is correct. The defendants cannot be allowed to change completely the case made in paragraphs 25 and 26 of the written statement and substitute an entirely different and new case.10. It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paragraphs 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. The High Court rightly rejected the application for amendment and agreed with the trial Court.11. We are told that the defendants proposed amendments to two other paragraphs of written statement. These are paragraphs 4 and 19 of the written statement. These amendments were also rightly rejected.
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9. The decision of the trial Court is correct. The defendants cannot be allowed to change completely the case made in paragraphs 25 and 26 of the written statement and substitute an entirely different and new case.10. It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paragraphs 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement. If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. The High Court rightly rejected the application for amendment and agreed with the trial Court.11. We are told that the defendants proposed amendments to two other paragraphs of written statement. These are paragraphs 4 and 19 of the written statement. These amendments were also rightly rejected.
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Anup Kumar Sheth Vs. Reliance Industries Limited & Another | shares in Reliance Petroleum Ltd. If the exchange ratio was unfair to Reliance Industries, it would have been more than fair to the other Company. He has also drawn our attention to various judgments of the Supreme Court to canvass that the scope of inquiry in this Court is limited.10. One of the judgments is in the case of Re: German Remedies Ltd. reported in (2003) 4 Com.L.J. 89 (Bom.). In this judgment, the Supreme Court held:"It is not for the Court to sit in appeal over the valued judgment of the equity shareholders who are supposed to be commercial men. Commercial men who know their common benefit and interests underlying the proposed scheme, with open eyes, have okayed the swap ratio of 7 to 4 by an overwhelming majority of 90 per cent in numbers and 99 per cent in value of the members present and voting. The limited jurisdiction of the Court is only to see whether the ratio is so wrong or the error is so gross as would make the scheme unfair or unjust or oppressive to the majority of the members or any class of them."Similarly, reliance was placed on Kamala Sugar Mills Ltd. reported in (1984) 55 Comp Cases 308 (Mad).11. The learned senior counsel for the petitioner has, however, relied on a judgment of this Court in J.S. Davar & Anr. v. Dr.Shankar Vishnu Marathe & Ors. reported in AIR 1967 Bombay 456, the relevant portion whereof reads thus:-"(22) On a review of the authorities and from the provisions in section 153 (2) of the Indian Companies Act, 1913, it seems to us clear that the consent of the majority of creditors or shareholders to a scheme does not conclude the issue whether the scheme should be sanctioned. The jurisdiction of the Court which is called upon to sanction a scheme transcends the mere consideration that a majority of those affected by the scheme is willing to submit to the scheme. The creditors of a company may agree to accept a fraction of the amount due to them from the company and yet, on considerations of more lasting importance, like public or commercial morality, the Court may refuse to accept the verdict of the majority. It may also refuse to accept the scheme on the ground that it is not reasonable or that it is not feasible or that there is no chance that it will yield to a smooth and satisfactory execution. By reasonable is generally meant that the arrangement cannot reasonably be supposed by sensible business people to be for the benefit of the class which they represent. The Court will also not sanction the scheme if the facts which would have influenced decision of the majority were not known or disclosed to the majority, or if the sponsors of the scheme have misrepresented the true position of the company. Finally, if the acceptance of the scheme would lead to the stifling of an inquiry into the conduct of the delinquent directors, the Court would be slow to give its sanction to the scheme. Considerations such as those mentioned above must be taken into account by a Court before a scheme is sanctioned but in the very nature of things, it is not possible to enumerate exhaustively the circumstances which a Court is entitled to take into consideration."12. It is true that this Court, in its judgment, held that "the jurisdiction of the Court which is called upon to sanction a scheme transcends the mere consideration that a majority of those affected by the scheme is willing to submit to the scheme". It laid down tests for rejecting a scheme which has the support of the majority. None of the grounds exists in the present case which have been laid down as grounds for rejecting a scheme in this judgment.13. The learned senior counsel has also relied on Miheer H. Mafatlal v. Mafatlal Industries Ltd. reported in AIR 1997 S.C. 506. The Supreme Court held in paragraph 39:"It was submitted that the exchange ratio of equity shareholders so far as the transferee-company is concerned works very unfairly and unreasonably to them. As per the proposed Scheme 5 equity shares of transferor-company are to be exchanged for 2 equity shares of transferee-company. So far as this contention is concerned it has to be kept in view that before formulating the proposed Scheme of Compromise and Amalgamation an expert opinion was obtained by the respondent-company as well as the transferor-company, viz., MFL on whose Board of Directors appellant himself was a member. M/s. C.C. Chokshi & Co., a reputed firm of Chartered Accountants, having considered all the relevant aspects suggested the aforesaid exchange ratio keeping in view the valuation of shares of respective companies. It must at once be stated that valuation of shares is a technical and complex problem which can be appropriately left to the consideration of experts in the field of accountancy."14. It was also contended that the learned Company Judge had refused to entertain the matter which was brought to his notice before the matter was decided. This was by one Rasiklal S. Mardia, who has also filed Appeal (Lodging) No.463 of 2009, which was also called, and the learned counsel appearing for him was also heard. We have seen the letter, which was received. It was not, as a matter of fact, an application. It was a letter to the learned Chief Justice of High Court of Bombay, and it stated: "Please find enclosed herewith the copy of my letter of even date addressed to the Honble Chief Justice of Gujarat High Court. The contents of the letter is self-explanatory and I do not repeat the same for the sake of brevity." Thereafter, it stated: "From the reproduced newsreport, I found that Reliance Industries Ltd. has also filed the Amalgamation Petition before the Honble Bombay High Court." This letter could not be treated as a response to the notice issued by the learned Court in the Company Petition. | 0[ds]14. It was also contended that the learned Company Judge had refused to entertain the matter which was brought to his notice before the matter was decided. This was by one Rasiklal S. Mardia, who has also filed Appeal (Lodging) No.463 of 2009, which was also called, and the learned counsel appearing for him was also heard. We have seen the letter, which was received. It was not, as a matter of fact, an application. It was a letter to the learned Chief Justice of High Court of Bombay, and it stated: "Please find enclosed herewith the copy of my letter of even date addressed to the Honble Chief Justice of Gujarat High Court. The contents of the letter isand I do not repeat the same for the sake of brevity." Thereafter, it stated: "From the reproduced newsreport, I found that Reliance Industries Ltd. has also filed the Amalgamation Petition before the Honble Bombay High Court." This letter could not be treated as a response to the notice issued by the learned Court in the Company Petition. | 0 | 3,212 | 207 | ### 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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shares in Reliance Petroleum Ltd. If the exchange ratio was unfair to Reliance Industries, it would have been more than fair to the other Company. He has also drawn our attention to various judgments of the Supreme Court to canvass that the scope of inquiry in this Court is limited.10. One of the judgments is in the case of Re: German Remedies Ltd. reported in (2003) 4 Com.L.J. 89 (Bom.). In this judgment, the Supreme Court held:"It is not for the Court to sit in appeal over the valued judgment of the equity shareholders who are supposed to be commercial men. Commercial men who know their common benefit and interests underlying the proposed scheme, with open eyes, have okayed the swap ratio of 7 to 4 by an overwhelming majority of 90 per cent in numbers and 99 per cent in value of the members present and voting. The limited jurisdiction of the Court is only to see whether the ratio is so wrong or the error is so gross as would make the scheme unfair or unjust or oppressive to the majority of the members or any class of them."Similarly, reliance was placed on Kamala Sugar Mills Ltd. reported in (1984) 55 Comp Cases 308 (Mad).11. The learned senior counsel for the petitioner has, however, relied on a judgment of this Court in J.S. Davar & Anr. v. Dr.Shankar Vishnu Marathe & Ors. reported in AIR 1967 Bombay 456, the relevant portion whereof reads thus:-"(22) On a review of the authorities and from the provisions in section 153 (2) of the Indian Companies Act, 1913, it seems to us clear that the consent of the majority of creditors or shareholders to a scheme does not conclude the issue whether the scheme should be sanctioned. The jurisdiction of the Court which is called upon to sanction a scheme transcends the mere consideration that a majority of those affected by the scheme is willing to submit to the scheme. The creditors of a company may agree to accept a fraction of the amount due to them from the company and yet, on considerations of more lasting importance, like public or commercial morality, the Court may refuse to accept the verdict of the majority. It may also refuse to accept the scheme on the ground that it is not reasonable or that it is not feasible or that there is no chance that it will yield to a smooth and satisfactory execution. By reasonable is generally meant that the arrangement cannot reasonably be supposed by sensible business people to be for the benefit of the class which they represent. The Court will also not sanction the scheme if the facts which would have influenced decision of the majority were not known or disclosed to the majority, or if the sponsors of the scheme have misrepresented the true position of the company. Finally, if the acceptance of the scheme would lead to the stifling of an inquiry into the conduct of the delinquent directors, the Court would be slow to give its sanction to the scheme. Considerations such as those mentioned above must be taken into account by a Court before a scheme is sanctioned but in the very nature of things, it is not possible to enumerate exhaustively the circumstances which a Court is entitled to take into consideration."12. It is true that this Court, in its judgment, held that "the jurisdiction of the Court which is called upon to sanction a scheme transcends the mere consideration that a majority of those affected by the scheme is willing to submit to the scheme". It laid down tests for rejecting a scheme which has the support of the majority. None of the grounds exists in the present case which have been laid down as grounds for rejecting a scheme in this judgment.13. The learned senior counsel has also relied on Miheer H. Mafatlal v. Mafatlal Industries Ltd. reported in AIR 1997 S.C. 506. The Supreme Court held in paragraph 39:"It was submitted that the exchange ratio of equity shareholders so far as the transferee-company is concerned works very unfairly and unreasonably to them. As per the proposed Scheme 5 equity shares of transferor-company are to be exchanged for 2 equity shares of transferee-company. So far as this contention is concerned it has to be kept in view that before formulating the proposed Scheme of Compromise and Amalgamation an expert opinion was obtained by the respondent-company as well as the transferor-company, viz., MFL on whose Board of Directors appellant himself was a member. M/s. C.C. Chokshi & Co., a reputed firm of Chartered Accountants, having considered all the relevant aspects suggested the aforesaid exchange ratio keeping in view the valuation of shares of respective companies. It must at once be stated that valuation of shares is a technical and complex problem which can be appropriately left to the consideration of experts in the field of accountancy."14. It was also contended that the learned Company Judge had refused to entertain the matter which was brought to his notice before the matter was decided. This was by one Rasiklal S. Mardia, who has also filed Appeal (Lodging) No.463 of 2009, which was also called, and the learned counsel appearing for him was also heard. We have seen the letter, which was received. It was not, as a matter of fact, an application. It was a letter to the learned Chief Justice of High Court of Bombay, and it stated: "Please find enclosed herewith the copy of my letter of even date addressed to the Honble Chief Justice of Gujarat High Court. The contents of the letter is self-explanatory and I do not repeat the same for the sake of brevity." Thereafter, it stated: "From the reproduced newsreport, I found that Reliance Industries Ltd. has also filed the Amalgamation Petition before the Honble Bombay High Court." This letter could not be treated as a response to the notice issued by the learned Court in the Company Petition.
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### Explanation:
14. It was also contended that the learned Company Judge had refused to entertain the matter which was brought to his notice before the matter was decided. This was by one Rasiklal S. Mardia, who has also filed Appeal (Lodging) No.463 of 2009, which was also called, and the learned counsel appearing for him was also heard. We have seen the letter, which was received. It was not, as a matter of fact, an application. It was a letter to the learned Chief Justice of High Court of Bombay, and it stated: "Please find enclosed herewith the copy of my letter of even date addressed to the Honble Chief Justice of Gujarat High Court. The contents of the letter isand I do not repeat the same for the sake of brevity." Thereafter, it stated: "From the reproduced newsreport, I found that Reliance Industries Ltd. has also filed the Amalgamation Petition before the Honble Bombay High Court." This letter could not be treated as a response to the notice issued by the learned Court in the Company Petition.
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Commissioner of Income Tax Kerala, Ernakulam Vs. V. Damodaran, Trivandrum | made by the applicant, who in that application must specify the questions of law which, he claims, a rise out of the order of the Appellate Tribunal made under s. 254. The form of reference application prescribed by rule 48 of the Income Tax Rules, 1962 specifically requires the applicant to state the questions of law which he desires t o be referred to the High Court. He may, in appropriate cases, be permitted by the Appellate Tribunal, to raise further questions of law at the hearing of the reference application. But in every case, it is only the party applying for a reference who is entitled to specify the questions of law which should be referred. Nowhere in the statute do we find a right in the non- applicant (a phrase used here for convenience) to ask for a reference of questions of law on the application made by the applicant.In this connection, two categories of cases can be envisaged. One consists of cases where the order of the Tribunal under section 254 has decided the appeal partly against one party and partly against the other. T his may be so whether the appeal consists of a single subject matter or there are more than one independent claims in the appeal. In the former, one party may be aggrieved by the grant of relief, even though partial, while the other may be aggrieved by the refusal to grant total relief. In the latter, relief may be granted or refused with reference to individual items in dispute, and accordingly one party or the other will be aggrieved. In either case, the party who is aggrieved and who desires a reference to the High Court must file a reference application for that purpose. It is not open to him to make a reference application filed by the other party the basis of his claim that a question of law sought by hi m should be referred. The second category consists of cases where the order made by the Appellate Tribunal under s. 254 operates entirely in favour of one party, although in the course of making the order the Appellate Tribunal may have negatived some points of law raised by that party. Not being a party aggrieved by the result of the appeal, it is not open to that party to file a reference application. But on a reference application being filed by the aggrieved party it is open to the non-applicant, in the event of the Appellate Tribunal agreeing to refer the case to the High Court, to ask for a reference of those questions of law also which arise on its submissions negatived in appeal by the Appellate Tribunal. It is, as it were, recognising a right in the winning party to support the order of the Appellate Tribunal also on grounds raised before the Appellate Tribunal but negatived by it.There are, therefore, those two categories, one in which a non-applicant can ask for the reference of questions of law suggested by it and the other in which it cannot. To the extent to which the Courts have omitted to consider the distinction between these two categories, they have erred. There are cases w here it has been held that there is an absolute bar against a non-applicant seeking a reference of questions of law on a reference application made by the other party. They include: Commissioner of Income Tax, Madras v. S. K. Srinivasan and Commissioner of Income Tax, Madras v. Ramdas Pharmacy. cases taking the opposite extreme view are: Commissioner of Income Tax v. Bantiah Bank Ltd., followed in Girdhar Das &Co. Ltd. (supra) and Educational &Civil List Reserve Fund No. 1 through H. H . Maharana Bhagwat Singhji of Udaipur &Ors. v. Commissioner of Income Tax, Delhi and Rajasthan Smt. Dhirajben R. Amin v. Commissioner of Income Tax, Gujarat II, Ahmedabad and Commissioner of Wealth Tax, Gujarat II v. Mrs. Arundhati Balkrishna . The judgment in the last case was affirmed by this Court in Commissioner of Wealth Tax, Gujarat v. Arundhati Balkrishna but the point raised before us does not appeal to have been taken there. The observations in Bantiah Bank Limited (supra) seem to show that the High Court was alive to the possibility of a winning party being deprived of the right to raise questions of law which could properly arise as further questions because they would be intimately involved in a decision on the questions referred at the instance of the applicant, but it failed to classify such a case separately from the case where a non-applicant seeks to raise independent and unassociated questions of law. Cases in which a distinction was not iced between the two categories but no opinion was expressed on the right of a winning party to raise questions of law without applying for a reference are Commissioner of Income Tax v. Jiwaji Rao Sugar Co. Ltd., followed in Commissioner of Income Tax, M.P. v. Dr. Fida Hussain G. Abbasi and Commissioner of Income Tax, Madras v. K. Rathnam Nadar. Some attention has been given to the distinction between the two categories in Commissioner of Income Tax, West Bengal v. A. K. Das.In the present case, the question whether the provision of Rs. 11, 000 for tax and Rs. 6, 900 for dividend can be taken into account when determining the accumulated profits as on March 31, 1958 is not relate to the question whether accumulated profits can take in current profits. The two questions involve the grant of separate and distinct reliefs and the decision on one question does not affect the decision on the other.11. Accordingly, we hold that the Appellate Tribunal was not competent to refer the second question, and the reference to that extent must be considered void. In the circumstances, it is not necessary to examine the second question on its merits. The judgment of the High Court must be set aside so far as it incorporates its opinion on the second question.12. | 1[ds]We are in agreement with that view, being persuaded in that behalf by the reasoning which has prevailed in the aforementioned cases. The distinction between "accumulated profits" and "current profits" has long held the field, and as the learned judges of the High Court of Australia observed in Hooper &Harrison Ltd. (I n Liquidation) (supra), it has been well known in judicial decision and in the mercantile world for well over a century. Moreover, this Court in M. V. Murugappan (supra) has also taken the view that current profits cannot be included i n accumulated profits. It appears to be now the established law of the land.An attractive submission was raised on behalf of the Revenue that in the Twelfth Report of the Law Commission of India, the authors of the Report consider that the intention of the Legislature was to include current profits in the expression "accumulated profits" in section 2(6A) and that the present definition of "accumulated profits" by Explanation 2 to section 2(22) of the Income Tax Act. 1961 only clarifies what the true intent was allalong. In the view which has found favour with us, we are not persuaded by thatwe hold that the High Court was right in answering the first question in favour of the assessee and against theare of opinion that the Revenue is right. The objection was taken by the Revenue before the Appellate Tribunal when the statement of case was being prepared, but the Appellate Tribunal overruled the objection, relying on Girdhardas &Co. Ltd. v. Commissioner of Income Tax, Ahmedabad. It does not appear that the Revenue contended before the High Court that the reference made to it by the Appellate Tribunal was incompetent insofar as the second question was concerned. Since, however, the objection pertains to the competence of the reference to the extent that it covers the second question and, therefore, relates to the jurisdiction of the High Court to consider and decide that question, we are of opinion that the Revenue is entitled to raise that question before us.Section 256(1) ofthe Income Tax Act, 1961 entitles the assessee or the Commissioner, as the case may be, to apply to the Appellate. Tribunal to refer to the High Court any question of law arising out of the order made by the Appellate Tribunal under section 254. A period of limitation for making such application is prescribed. If the application is rejected by the Appellate Tribunal the applicant is entitled to apply to the High Court, again within a prescribed period of limitation, and the High Court may, if it is not satisfied of the correctness of the decision of the Appellate Tribunal, require the Appellate Tribunal to state the case and refer it. It is clear that the statute expressly contemplates an application in that behalf by a party desiring a reference to the High Court. The application has to be filed within a prescribed period of limitation. If the Application is rejected by the Appellate Tribunal, it is the applicant thus refused who is entitled to apply to the High Court. If the Appellate Tribunal allows the application made to it, s. 256(1) requires it to draw up the statement of the case and refer it to the High Court.the present case, the question whether the provision of Rs. 11, 000 for tax and Rs. 6, 900 for dividend can be taken into account when determining the accumulated profits as on March 31, 1958 is not relate to the question whether accumulated profits can take in current profits. The two questions involve the grant of separate and distinct reliefs and the decision on one question does not affect the decision on thewe hold that the Appellate Tribunal was not competent to refer the second question, and the reference to that extent must be considered void. In the circumstances, it is not necessary to examine the second question on its merits. The judgment of the High Court must be set aside so far as it incorporates its opinion on the second question. | 1 | 3,347 | 756 | ### 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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made by the applicant, who in that application must specify the questions of law which, he claims, a rise out of the order of the Appellate Tribunal made under s. 254. The form of reference application prescribed by rule 48 of the Income Tax Rules, 1962 specifically requires the applicant to state the questions of law which he desires t o be referred to the High Court. He may, in appropriate cases, be permitted by the Appellate Tribunal, to raise further questions of law at the hearing of the reference application. But in every case, it is only the party applying for a reference who is entitled to specify the questions of law which should be referred. Nowhere in the statute do we find a right in the non- applicant (a phrase used here for convenience) to ask for a reference of questions of law on the application made by the applicant.In this connection, two categories of cases can be envisaged. One consists of cases where the order of the Tribunal under section 254 has decided the appeal partly against one party and partly against the other. T his may be so whether the appeal consists of a single subject matter or there are more than one independent claims in the appeal. In the former, one party may be aggrieved by the grant of relief, even though partial, while the other may be aggrieved by the refusal to grant total relief. In the latter, relief may be granted or refused with reference to individual items in dispute, and accordingly one party or the other will be aggrieved. In either case, the party who is aggrieved and who desires a reference to the High Court must file a reference application for that purpose. It is not open to him to make a reference application filed by the other party the basis of his claim that a question of law sought by hi m should be referred. The second category consists of cases where the order made by the Appellate Tribunal under s. 254 operates entirely in favour of one party, although in the course of making the order the Appellate Tribunal may have negatived some points of law raised by that party. Not being a party aggrieved by the result of the appeal, it is not open to that party to file a reference application. But on a reference application being filed by the aggrieved party it is open to the non-applicant, in the event of the Appellate Tribunal agreeing to refer the case to the High Court, to ask for a reference of those questions of law also which arise on its submissions negatived in appeal by the Appellate Tribunal. It is, as it were, recognising a right in the winning party to support the order of the Appellate Tribunal also on grounds raised before the Appellate Tribunal but negatived by it.There are, therefore, those two categories, one in which a non-applicant can ask for the reference of questions of law suggested by it and the other in which it cannot. To the extent to which the Courts have omitted to consider the distinction between these two categories, they have erred. There are cases w here it has been held that there is an absolute bar against a non-applicant seeking a reference of questions of law on a reference application made by the other party. They include: Commissioner of Income Tax, Madras v. S. K. Srinivasan and Commissioner of Income Tax, Madras v. Ramdas Pharmacy. cases taking the opposite extreme view are: Commissioner of Income Tax v. Bantiah Bank Ltd., followed in Girdhar Das &Co. Ltd. (supra) and Educational &Civil List Reserve Fund No. 1 through H. H . Maharana Bhagwat Singhji of Udaipur &Ors. v. Commissioner of Income Tax, Delhi and Rajasthan Smt. Dhirajben R. Amin v. Commissioner of Income Tax, Gujarat II, Ahmedabad and Commissioner of Wealth Tax, Gujarat II v. Mrs. Arundhati Balkrishna . The judgment in the last case was affirmed by this Court in Commissioner of Wealth Tax, Gujarat v. Arundhati Balkrishna but the point raised before us does not appeal to have been taken there. The observations in Bantiah Bank Limited (supra) seem to show that the High Court was alive to the possibility of a winning party being deprived of the right to raise questions of law which could properly arise as further questions because they would be intimately involved in a decision on the questions referred at the instance of the applicant, but it failed to classify such a case separately from the case where a non-applicant seeks to raise independent and unassociated questions of law. Cases in which a distinction was not iced between the two categories but no opinion was expressed on the right of a winning party to raise questions of law without applying for a reference are Commissioner of Income Tax v. Jiwaji Rao Sugar Co. Ltd., followed in Commissioner of Income Tax, M.P. v. Dr. Fida Hussain G. Abbasi and Commissioner of Income Tax, Madras v. K. Rathnam Nadar. Some attention has been given to the distinction between the two categories in Commissioner of Income Tax, West Bengal v. A. K. Das.In the present case, the question whether the provision of Rs. 11, 000 for tax and Rs. 6, 900 for dividend can be taken into account when determining the accumulated profits as on March 31, 1958 is not relate to the question whether accumulated profits can take in current profits. The two questions involve the grant of separate and distinct reliefs and the decision on one question does not affect the decision on the other.11. Accordingly, we hold that the Appellate Tribunal was not competent to refer the second question, and the reference to that extent must be considered void. In the circumstances, it is not necessary to examine the second question on its merits. The judgment of the High Court must be set aside so far as it incorporates its opinion on the second question.12.
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We are in agreement with that view, being persuaded in that behalf by the reasoning which has prevailed in the aforementioned cases. The distinction between "accumulated profits" and "current profits" has long held the field, and as the learned judges of the High Court of Australia observed in Hooper &Harrison Ltd. (I n Liquidation) (supra), it has been well known in judicial decision and in the mercantile world for well over a century. Moreover, this Court in M. V. Murugappan (supra) has also taken the view that current profits cannot be included i n accumulated profits. It appears to be now the established law of the land.An attractive submission was raised on behalf of the Revenue that in the Twelfth Report of the Law Commission of India, the authors of the Report consider that the intention of the Legislature was to include current profits in the expression "accumulated profits" in section 2(6A) and that the present definition of "accumulated profits" by Explanation 2 to section 2(22) of the Income Tax Act. 1961 only clarifies what the true intent was allalong. In the view which has found favour with us, we are not persuaded by thatwe hold that the High Court was right in answering the first question in favour of the assessee and against theare of opinion that the Revenue is right. The objection was taken by the Revenue before the Appellate Tribunal when the statement of case was being prepared, but the Appellate Tribunal overruled the objection, relying on Girdhardas &Co. Ltd. v. Commissioner of Income Tax, Ahmedabad. It does not appear that the Revenue contended before the High Court that the reference made to it by the Appellate Tribunal was incompetent insofar as the second question was concerned. Since, however, the objection pertains to the competence of the reference to the extent that it covers the second question and, therefore, relates to the jurisdiction of the High Court to consider and decide that question, we are of opinion that the Revenue is entitled to raise that question before us.Section 256(1) ofthe Income Tax Act, 1961 entitles the assessee or the Commissioner, as the case may be, to apply to the Appellate. Tribunal to refer to the High Court any question of law arising out of the order made by the Appellate Tribunal under section 254. A period of limitation for making such application is prescribed. If the application is rejected by the Appellate Tribunal the applicant is entitled to apply to the High Court, again within a prescribed period of limitation, and the High Court may, if it is not satisfied of the correctness of the decision of the Appellate Tribunal, require the Appellate Tribunal to state the case and refer it. It is clear that the statute expressly contemplates an application in that behalf by a party desiring a reference to the High Court. The application has to be filed within a prescribed period of limitation. If the Application is rejected by the Appellate Tribunal, it is the applicant thus refused who is entitled to apply to the High Court. If the Appellate Tribunal allows the application made to it, s. 256(1) requires it to draw up the statement of the case and refer it to the High Court.the present case, the question whether the provision of Rs. 11, 000 for tax and Rs. 6, 900 for dividend can be taken into account when determining the accumulated profits as on March 31, 1958 is not relate to the question whether accumulated profits can take in current profits. The two questions involve the grant of separate and distinct reliefs and the decision on one question does not affect the decision on thewe hold that the Appellate Tribunal was not competent to refer the second question, and the reference to that extent must be considered void. In the circumstances, it is not necessary to examine the second question on its merits. The judgment of the High Court must be set aside so far as it incorporates its opinion on the second question.
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Sewaram Vs. Sobaran Singh | brought into existence on December 31, 1989 were forged and manufactured, but we do not consider it necessary to record a positive finding in this regard, in view of the fact that nothing material turns out on these documents for deciding the main controversy raised in the present case. Even it, for arguments sake it may be admitted that Sewaram had dissolved the partnership firm M/s Sewaram Gupta and Patiram was introduced as a new partner in this firm on December 31, 1989, it is neither established in fact, not it was permissible to transfer or assign the contract in favour of the firm at any time without the approval of the Divisional Officer as per terms of clause (25) of the contract. 21. Now we shall consider the main plank of the contention on which the entire edifice has been built by Sewaram that he had submitted a letter dated January 30, 1990 whereby he had severed all his connections with the contract in question and after this date there was no subsisting contract so as to incur any disqualification under Section 9-A of a Act. Admittedly, this letter dated January 30, 1990 is addressed to the Executive Engineer, but in fact, it was delivered not in the office of Executive Engineer Mr. Mandloi, but had been delivered in the office of the Sub-Divisional Officer Mr. Srivastava. It is important to note that all correspondence in respect of the contract in question has been done by Sewaram with the office of the Executive Engineer except the letter dated January 30, 1990 in question which alone according to the appellant had been submitted to Shri V. P. Srivastava, the Sub-Divisional Officer sitting in a different office and far away from the office of the Executive Engineer. According to Sewaram, one Rajesh Verma accompanied him while delivering this letter to Srivastava, but according to Srivastava, Patiram had accompanied Sewaram and not Rajesh Verma. It cannot be believed that when all correspondence relating to the contract was dealt with by the office of the Executive Engineer, why such an important letter dated January 30, 1990 was not submitted in the office of the Executive Engineer and is alleged to have been submitted to a lower authority of the rank of Assistant Engineer. We see force in the submission of the learned counsel for the respondent in this regard that Shri Mandloi, the Executive Engineer was not willing to oblige the appellant by taking a false stand and as such the appellant took a false plea that he had given such letter dated January 30, 1990 to Mr. Srivastava. It is important to note that Mr. Mandloi in his statement has clearly stated that he never saw nor had any knowledge of the letter dated January 30, 1990 prior to July 23, 1990. Even if, for arguments sake it may be considered that the appellant had submitted the letter dated January 30, 1990 bonafidely for some reasons on the same day in the office of the Assistant Engineer Mr. Srivastava, it was incumbent upon the appellant to see that the letter should have reached immediately in the office of the Executive Engineer who alone was competent to deal with such important matter. Admittedly, the letter was addressed to the Executive Engineer and it came to his notice on July 23, 1990 after the service of the notice of the election petition on the appellant. The contract can come to an end by any of the following modes(1) By performance;(2) By express agreement;(3) Under the doctrine of frustration; and(4) By breach 22. Mr. Lalit, learned senior counsel appearing on behalf of the appellant frankly and rightly submitted that in the present case by letter dated January 30, 1990, the contract did not come to an end under the above mentioned three categories, but according to him, the case of the appellant falls under the fourth category of contract coming to an end by breach. We are not satisfied that in the present case the contract came to an end by breach by writing the letter dated January 30, 1990 as sought to be submitted on behalf of the appellant. In the facts of the present case the contract had not come to an end but was sought to be continued through Patiram Gupta. It is an admitted fact that Patiram Gupta is the real brother of and member of joint Hindu family with Sewaram appellant. Not only that, Patiram was also an attorney-holder of Sewaram during the relevant period. The correspondence even after January 30, 1990 has been made in the name of Sewaram appellant though signed by Patiram. In these circumstances, it cannot be believed that Sewaram had put an end to the contract by breach and the conduct of Sewaram and Patiram even prior to and after January 30, 1990 leads to an irresistible conclusion that the contract had not come to an end, and was subsisting, thereby incurring a disqualification under Section 9-A of the Act. In case Sewaram wanted to put an end to the contact, in the normal course of behaviour and human conduct he should have gone personally to no less an authority than the Executive Engineer to put an end to the contract mutually then he could have taken the step of ending the contract unilaterally by breach taking the risk of damages. The facts of the present case lead us to the conclusion that the appellant never intended nor in fact put an end to the contract, but continued with the contract through the proxy of his real brother Patiram. 23. In the circumstances mentioned above, we are in agreement with the findings recorded by the High Court in this regard that the contract with the PWD was subsisting on the date of filing the nomination and the date of scrutiny of the nomination papers and the appellant thus incurred a dis-qualification for contesting the election of Morena Assembly Constituency in the State of Madhya Pradesh. | 0[ds]15. We have given our thoughtful consideration to the arguments advanced by learned counsel for both the parties and also thecited at the Bar. The question of subsistence of as contract with the appropriate Government making it a disqualification under Sectionof the Actis a question of fact depending on the facts and circumstances of each case. In Abdul Rahiman Khan v. Sadasiva Tripathi ( 1969 (1) SCR 351 : 1969 AIR(SC) 302 : 39 ELR 92) the respondent was declared elected to the Legislative Assembly of Orissa from the Nowrangpur General Constituency. The appellant filed an election petition before the High Court of Orissa for an order setting aside the election of the respondent, on the ground that the appellants nomination paper was improperly rejected he was illegally deprived of his right to contest the election. It was as common ground that the appellant was carrying on the business of as building contractor and that in pursuance of a notification issued by the Government of Orissa he had submitted tenders for construction of buildings of the Rental Housing Scheme the rates specified therein. The tenders were accepted and the appellant had carried out a part of the construction work, but had thereafter stooped the work because he suffered serious injuries which necessitated his detention in public hospital. The appellant claimed that at his request the contract was cancelled, and on that account at the date of filing of his nomination there was, between him and the State of Orissa no subsisting contract for execution of works undertaken by him, and that in any event there was in law no contract between him and the State relating to the execution of works which disqualified him from standing for the election as a candidate for a seat in the State LegislativeIn the facts and circumstances of the above case, it was held that the appellant had commenced execution of the work, but had not completed it. Payment for the work done was not made to the appellant. The contract was not determined by mutual agreement nor was itIn order to decide the controversy, we shall now take into consideration the facts of the case in hand. It is an admitted position that Sewaram in his individual capacity had submitted a tender/application on November 6, 1986 for seeking the contract for raising of floodable reach in K.M. 105 to 108 of A.B. Road on National Highway No. 3 for an amount of Rs. 37, 96, 500. This tender for the above work was accepted in favour of Sewaram by the Executive Engineer, PWD, National Highway Division, Gwalior on behalf of the Governor, Madhya Pradesh on April 16, 1987. Clause (25) of the contract clearly provide that the contract shall not be assigned orwithout the written approval of the Divisional Officer. Admittedly the firm M/s Sewaram Gupta itself came into existence in 1988 and the contract made originally in favour of Sewaram in his individual capacity could not have been assigned or transferred in favour of the firm without the consent of the Divisional Officer. Even otherwise, there is nothing on record to show that at any time during the subsistence of this contract Sewaram had ever intimated the PWD that the contract may be transferred or assigned in favour of the firm nor any correspondence ever shows that the PWD had accepted such transfer or assignment impliedly or expressly in favour of the firm M/s Sewaram Gupta. Thus, it is established beyond any manner of doubt that till February 1, 1990 the date of filing the nomination paper, the contract with PWD was continuing and dealt with Sewaram in his individual capacity and not with the firm Sewaram Gupta. The appellant has taken the stand that an agreement was executed between him and Patiram on December 31, 1989 by which he gave up his interest in the existing contract with PWD and MPAKVN and executed another document on the same day dissolving the partnership firm and a new partnership deed was executed on the same date between Patiram and other persons. There is a serious controversy raised in this regard on behalf of the respondent that all these documents as alleged to have been executed on the stamp paper supplied by one Narayan Swaroop Saxena, stamp vendor are forged and void. This Narayan Swaroop Saxena has appeared in theand has deposed that he did not enter the sale of the stamps to the appellant Sewaram in his register and has further admitted that the stamp paper alleged to have been sold to appellant Sewaram bearing the serial number 13429 had been sold to a third party stranger namely Budh Ram who had purchased the same on behalf of a lady Radha Bai. It has also been argued on a behalf of the respondent that the notary Shri Chhinga Lal Gupta was a relation of Sewaram and though there were various notaries having jurisdiction in Morena, the documents was got notarised from Shri Chhinga Lal Gupta, a notary from Gwalior. Many other circumstances have been shown in order to establish that all the documents brought into existence on December 31, 1989 were forged and manufactured, but we do not consider it necessary to record a positive finding in this regard, in view of the fact that nothing material turns out on these documents for deciding the main controversy raised in the present case. Even it, for arguments sake it may be admitted that Sewaram had dissolved the partnership firm M/s Sewaram Gupta and Patiram was introduced as a new partner in this firm on December 31, 1989, it is neither established in fact, not it was permissible to transfer or assign the contract in favour of the firm at any time without the approval of the Divisional Officer as per terms of clause (25) of theNow we shall consider the main plank of the contention on which the entire edifice has been built by Sewaram that he had submitted a letter dated January 30, 1990 whereby he had severed all his connections with the contract in question and after this date there was no subsisting contract so as to incur any disqualification under Sectionof a Act. Admittedly, this letter dated January 30, 1990 is addressed to the Executive Engineer, but in fact, it was delivered not in the office of Executive Engineer Mr. Mandloi, but had been delivered in the office of theOfficer Mr. Srivastava. It is important to note that all correspondence in respect of the contract in question has been done by Sewaram with the office of the Executive Engineer except the letter dated January 30, 1990 in question which alone according to the appellant had been submitted to Shri V. P. Srivastava, theOfficer sitting in a different office and far away from the office of the Executive Engineer. According to Sewaram, one Rajesh Verma accompanied him while delivering this letter to Srivastava, but according to Srivastava, Patiram had accompanied Sewaram and not Rajesh Verma. It cannot be believed that when all correspondence relating to the contract was dealt with by the office of the Executive Engineer, why such an important letter dated January 30, 1990 was not submitted in the office of the Executive Engineer and is alleged to have been submitted to a lower authority of the rank of Assistant Engineer. We see force in the submission of the learned counsel for the respondent in this regard that Shri Mandloi, the Executive Engineer was not willing to oblige the appellant by taking a false stand and as such the appellant took a false plea that he had given such letter dated January 30, 1990 to Mr. Srivastava. It is important to note that Mr. Mandloi in his statement has clearly stated that he never saw nor had any knowledge of the letter dated January 30, 1990 prior to July 23, 1990. Even if, for arguments sake it may be considered that the appellant had submitted the letter dated January 30, 1990 bonafidely for some reasons on the same day in the office of the Assistant Engineer Mr. Srivastava, it was incumbent upon the appellant to see that the letter should have reached immediately in the office of the Executive Engineer who alone was competent to deal with such important matter. Admittedly, the letter was addressed to the Executive Engineer and it came to his notice on July 23, 1990 after the service of the notice of the election petition on the appellant. The contract can come to an end by any of the following modes(1) By performance;(2) By express agreement;(3) Under the doctrine of frustration; and(4) Byare not satisfied that in the present case the contract came to an end by breach by writing the letter dated January 30, 1990 as sought to be submitted on behalf of the appellant. In the facts of the present case the contract had not come to an end but was sought to be continued through Patiram Gupta. It is an admitted fact that Patiram Gupta is the real brother of and member of joint Hindu family with Sewaram appellant. Not only that, Patiram was also anof Sewaram during the relevant period. The correspondence even after January 30, 1990 has been made in the name of Sewaram appellant though signed by Patiram. In these circumstances, it cannot be believed that Sewaram had put an end to the contract by breach and the conduct of Sewaram and Patiram even prior to and after January 30, 1990 leads to an irresistible conclusion that the contract had not come to an end, and was subsisting, thereby incurring a disqualification under Sectionct. Incase Sewaram wanted to put an end to the contact, in the normal course of behaviour and human conduct he should have gone personally to no less an authority than the Executive Engineer to put an end to the contract mutually then he could have taken the step of ending the contract unilaterally by breach taking the risk of damages. The facts of the present case lead us to the conclusion that the appellant never intended nor in fact put an end to the contract, but continued with the contract through the proxy of his real brotherIn the circumstances mentioned above, we are in agreement with the findings recorded by the High Court in this regard that the contract with the PWD was subsisting on the date of filing the nomination and the date of scrutiny of the nomination papers and the appellant thus incurred afor contesting the election of Morena Assembly Constituency in the State of Madhya Pradesh | 0 | 7,369 | 1,898 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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brought into existence on December 31, 1989 were forged and manufactured, but we do not consider it necessary to record a positive finding in this regard, in view of the fact that nothing material turns out on these documents for deciding the main controversy raised in the present case. Even it, for arguments sake it may be admitted that Sewaram had dissolved the partnership firm M/s Sewaram Gupta and Patiram was introduced as a new partner in this firm on December 31, 1989, it is neither established in fact, not it was permissible to transfer or assign the contract in favour of the firm at any time without the approval of the Divisional Officer as per terms of clause (25) of the contract. 21. Now we shall consider the main plank of the contention on which the entire edifice has been built by Sewaram that he had submitted a letter dated January 30, 1990 whereby he had severed all his connections with the contract in question and after this date there was no subsisting contract so as to incur any disqualification under Section 9-A of a Act. Admittedly, this letter dated January 30, 1990 is addressed to the Executive Engineer, but in fact, it was delivered not in the office of Executive Engineer Mr. Mandloi, but had been delivered in the office of the Sub-Divisional Officer Mr. Srivastava. It is important to note that all correspondence in respect of the contract in question has been done by Sewaram with the office of the Executive Engineer except the letter dated January 30, 1990 in question which alone according to the appellant had been submitted to Shri V. P. Srivastava, the Sub-Divisional Officer sitting in a different office and far away from the office of the Executive Engineer. According to Sewaram, one Rajesh Verma accompanied him while delivering this letter to Srivastava, but according to Srivastava, Patiram had accompanied Sewaram and not Rajesh Verma. It cannot be believed that when all correspondence relating to the contract was dealt with by the office of the Executive Engineer, why such an important letter dated January 30, 1990 was not submitted in the office of the Executive Engineer and is alleged to have been submitted to a lower authority of the rank of Assistant Engineer. We see force in the submission of the learned counsel for the respondent in this regard that Shri Mandloi, the Executive Engineer was not willing to oblige the appellant by taking a false stand and as such the appellant took a false plea that he had given such letter dated January 30, 1990 to Mr. Srivastava. It is important to note that Mr. Mandloi in his statement has clearly stated that he never saw nor had any knowledge of the letter dated January 30, 1990 prior to July 23, 1990. Even if, for arguments sake it may be considered that the appellant had submitted the letter dated January 30, 1990 bonafidely for some reasons on the same day in the office of the Assistant Engineer Mr. Srivastava, it was incumbent upon the appellant to see that the letter should have reached immediately in the office of the Executive Engineer who alone was competent to deal with such important matter. Admittedly, the letter was addressed to the Executive Engineer and it came to his notice on July 23, 1990 after the service of the notice of the election petition on the appellant. The contract can come to an end by any of the following modes(1) By performance;(2) By express agreement;(3) Under the doctrine of frustration; and(4) By breach 22. Mr. Lalit, learned senior counsel appearing on behalf of the appellant frankly and rightly submitted that in the present case by letter dated January 30, 1990, the contract did not come to an end under the above mentioned three categories, but according to him, the case of the appellant falls under the fourth category of contract coming to an end by breach. We are not satisfied that in the present case the contract came to an end by breach by writing the letter dated January 30, 1990 as sought to be submitted on behalf of the appellant. In the facts of the present case the contract had not come to an end but was sought to be continued through Patiram Gupta. It is an admitted fact that Patiram Gupta is the real brother of and member of joint Hindu family with Sewaram appellant. Not only that, Patiram was also an attorney-holder of Sewaram during the relevant period. The correspondence even after January 30, 1990 has been made in the name of Sewaram appellant though signed by Patiram. In these circumstances, it cannot be believed that Sewaram had put an end to the contract by breach and the conduct of Sewaram and Patiram even prior to and after January 30, 1990 leads to an irresistible conclusion that the contract had not come to an end, and was subsisting, thereby incurring a disqualification under Section 9-A of the Act. In case Sewaram wanted to put an end to the contact, in the normal course of behaviour and human conduct he should have gone personally to no less an authority than the Executive Engineer to put an end to the contract mutually then he could have taken the step of ending the contract unilaterally by breach taking the risk of damages. The facts of the present case lead us to the conclusion that the appellant never intended nor in fact put an end to the contract, but continued with the contract through the proxy of his real brother Patiram. 23. In the circumstances mentioned above, we are in agreement with the findings recorded by the High Court in this regard that the contract with the PWD was subsisting on the date of filing the nomination and the date of scrutiny of the nomination papers and the appellant thus incurred a dis-qualification for contesting the election of Morena Assembly Constituency in the State of Madhya Pradesh.
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serial number 13429 had been sold to a third party stranger namely Budh Ram who had purchased the same on behalf of a lady Radha Bai. It has also been argued on a behalf of the respondent that the notary Shri Chhinga Lal Gupta was a relation of Sewaram and though there were various notaries having jurisdiction in Morena, the documents was got notarised from Shri Chhinga Lal Gupta, a notary from Gwalior. Many other circumstances have been shown in order to establish that all the documents brought into existence on December 31, 1989 were forged and manufactured, but we do not consider it necessary to record a positive finding in this regard, in view of the fact that nothing material turns out on these documents for deciding the main controversy raised in the present case. Even it, for arguments sake it may be admitted that Sewaram had dissolved the partnership firm M/s Sewaram Gupta and Patiram was introduced as a new partner in this firm on December 31, 1989, it is neither established in fact, not it was permissible to transfer or assign the contract in favour of the firm at any time without the approval of the Divisional Officer as per terms of clause (25) of theNow we shall consider the main plank of the contention on which the entire edifice has been built by Sewaram that he had submitted a letter dated January 30, 1990 whereby he had severed all his connections with the contract in question and after this date there was no subsisting contract so as to incur any disqualification under Sectionof a Act. Admittedly, this letter dated January 30, 1990 is addressed to the Executive Engineer, but in fact, it was delivered not in the office of Executive Engineer Mr. Mandloi, but had been delivered in the office of theOfficer Mr. Srivastava. It is important to note that all correspondence in respect of the contract in question has been done by Sewaram with the office of the Executive Engineer except the letter dated January 30, 1990 in question which alone according to the appellant had been submitted to Shri V. P. Srivastava, theOfficer sitting in a different office and far away from the office of the Executive Engineer. According to Sewaram, one Rajesh Verma accompanied him while delivering this letter to Srivastava, but according to Srivastava, Patiram had accompanied Sewaram and not Rajesh Verma. It cannot be believed that when all correspondence relating to the contract was dealt with by the office of the Executive Engineer, why such an important letter dated January 30, 1990 was not submitted in the office of the Executive Engineer and is alleged to have been submitted to a lower authority of the rank of Assistant Engineer. We see force in the submission of the learned counsel for the respondent in this regard that Shri Mandloi, the Executive Engineer was not willing to oblige the appellant by taking a false stand and as such the appellant took a false plea that he had given such letter dated January 30, 1990 to Mr. Srivastava. It is important to note that Mr. Mandloi in his statement has clearly stated that he never saw nor had any knowledge of the letter dated January 30, 1990 prior to July 23, 1990. Even if, for arguments sake it may be considered that the appellant had submitted the letter dated January 30, 1990 bonafidely for some reasons on the same day in the office of the Assistant Engineer Mr. Srivastava, it was incumbent upon the appellant to see that the letter should have reached immediately in the office of the Executive Engineer who alone was competent to deal with such important matter. Admittedly, the letter was addressed to the Executive Engineer and it came to his notice on July 23, 1990 after the service of the notice of the election petition on the appellant. The contract can come to an end by any of the following modes(1) By performance;(2) By express agreement;(3) Under the doctrine of frustration; and(4) Byare not satisfied that in the present case the contract came to an end by breach by writing the letter dated January 30, 1990 as sought to be submitted on behalf of the appellant. In the facts of the present case the contract had not come to an end but was sought to be continued through Patiram Gupta. It is an admitted fact that Patiram Gupta is the real brother of and member of joint Hindu family with Sewaram appellant. Not only that, Patiram was also anof Sewaram during the relevant period. The correspondence even after January 30, 1990 has been made in the name of Sewaram appellant though signed by Patiram. In these circumstances, it cannot be believed that Sewaram had put an end to the contract by breach and the conduct of Sewaram and Patiram even prior to and after January 30, 1990 leads to an irresistible conclusion that the contract had not come to an end, and was subsisting, thereby incurring a disqualification under Sectionct. Incase Sewaram wanted to put an end to the contact, in the normal course of behaviour and human conduct he should have gone personally to no less an authority than the Executive Engineer to put an end to the contract mutually then he could have taken the step of ending the contract unilaterally by breach taking the risk of damages. The facts of the present case lead us to the conclusion that the appellant never intended nor in fact put an end to the contract, but continued with the contract through the proxy of his real brotherIn the circumstances mentioned above, we are in agreement with the findings recorded by the High Court in this regard that the contract with the PWD was subsisting on the date of filing the nomination and the date of scrutiny of the nomination papers and the appellant thus incurred afor contesting the election of Morena Assembly Constituency in the State of Madhya Pradesh
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Indian Rare Earths Ltd Vs. Unique Builders Ltd | case of dispute that may arise between the parties. From perusal of general conditions of the contract, we found that there was a clause to the effect that any increase in statutory levies such as taxes and duties and statutory increase in steel prices shall be paid by the appellant. Before the work was completed, a dispute arose and ultimately, the same was referred to the Arbitration.The respondent-contractor made a claim of Rs.97,54,143.78 on different heads which have been noted by the High Court and the same is extracted hereinbelow: “STATEMENT OF CLAIM OF M/S UNIQUE BUILDERS LIMITED AGAINST INDIAN RARE EARTHS LIMITED FOR CONSTRUCTION OF OSCOM/S-3 STRUCTURAL STEEL AND CLADDING WORK IN BULKWAREHOUSES, BEFORE THE HONBLE ARBITRATOR JUSTICE B.K. RAY.1Escalation as per annexure and the same submitted to M/s Dastur & Co.Rs.22,13,368.38240% of the overheads as per enclosed statement (Annexure-2)Rs.2,00,672.483Encashment of bank guarantee (Letter at Annexure-3)Rs.2,50,000.004Loss due to complete damage of workshop and store shed made of steel column, trusses with A.C. Sheet-1,200 sq.ft. @ Rs.200/- per sq. ft.Rs.2,40,000.005Loss of Welding Machine, Drilling Machine, Jigs, Tools, Tackles, Electrodes, Store items (As per Annexure-5)Rs.1,30,000.006Legal expenses for fighting theRs. 75,000.00--------------------Rs.31,09,040.867Interest @ 18% from 11.8.82 to 31st December, 1992 (Annx.7)Rs.58,13,991.428Loss for extra liability for payment of Income Tax by not availing of the adjustment of loss of Rs.16,62,223.00 upto previous eight years from the account year starting from Accounting year 82-83, i.e. 50% of the above loss of Rs.16,62,223 (Annx.8)Rs.8,31,111.50 Rs.97,54,143.78" 3. Although the respondent made a claim of Rs.97,54,143.78/- but the Arbitrator after hearing the parties and considering all objections raised by the appellant, passed an Award for Rs.19,55,368/- with pendente lite interest at the rate of 15% per annum from the date of institution of the suit till the date of the Award. The said Award was challenged by the appellant before the 1st Additional Civil Judge (Senior Division), Cuttack on various grounds by filing an application under section 30 of the Act being Misc. Case No.78 of 2000, for setting aside the said Award. The 1st Additional Civil Judge (Senior Division), Cuttack, dismissed the said application. Aggrieved by the same, the appellant preferred an appeal before the High Court. The High Court after considering the case of the appellant and the respondent and referring to the claims made by the respondent, finally upheld the Award passed by the learned Arbitrator. 4. Mr. Vinoo Bhagat, learned counsel appearing for the appellant, assailed the said Award and the impugned order passed by the High Court on various grounds inter alia the jurisdiction of the Arbitrator in passing a non-speaking Award when arbitrability of the disputes was questioned. Mr. Bhagat, learned counsel, also submits that in absence of any specific provision, the claim against the escalation of prices ought not to have been awarded. In this connection, Mr. Bhagat relied upon various decisions of this Court in the case of T. N. Electricity Board vs. Bridge Tunnel Constructions & Ors. - (1997) 4 SCC 121 ; V. G. George vs. Indian Rare Earths Ltd. & Anr. - (1999) 3 SCC 762 ; and Associated Engineering Co. vs. Government of Andhra Pradesh & Anr. - (1991) 4 SCC 93. 5. We have gone through the decisions relied upon by Mr. Bhagat, learned counsel appearing for the appellant. 6. The ratios decidendi in those decisions are based on different facts of the cases. 7. In the instant case, the only question that arises for our consideration is as to whether the non-speaking Award given by the Arbitrator can be set aside on the grounds asserted by the appellant. 8. A five-Judge Constitution Bench of this Court in the case of Raipur Development Authority etc. etc. vs. M/s Chokhamal Contractors etc. etc. - AIR 1990 SC 1426 , considered the scope of section 30 of the Arbitration Act, 1940 and held as under : “It is now well settled that an award can neither be remitted nor set aside merely on the ground that it does not contain reasons in support of the conclusion or decisions reached in it except where the arbitration agreement or the deed of submission requires him to give reasons. The arbitrator or umpire is under no obligation to give reasons in support of the decision reached by him unless under the arbitration agreement or in the deed of submission he is required to give such reasons and if the arbitrator or umpire chooses to give reasons in support of his decision it is open to the Court to set aside the award if it finds that an error of law has been committed by the arbitrator or umpire on the face of the record on going through such reasons. The arbitrator or umpire shall have to give reasons also where the court has directed in any order such as the one made under section 20 or section 21 or section 34 of the Act that reasons should be given or where the statute which governs an arbitration requires him to do so." 9. A three-Judge Bench of this Court in another case of S. Harcharan Singh vs. Union of India – (1990) 4 SCC 647 , reiterated its earlier view that the arbitrators adjudication is generally considered binding between the parties for he is a tribunal selected by the parties and the power of the court to set aside the award is restricted to cases set out in section 30 of the Act. 10. As notice above, although the respondent claimed a sum of Rs.97,54,143.78/- but the Arbitrator only awarded a sum of Rs.19,55,368/- (Rupees nineteen lakh fifty five thousand three hundred and sixty eight only) with pendente lite interest at the rate of 15% per annum from the date of institution of the suit till the date of the Award. Admittedly, the Award is a non-speaking award. Hence, it is not permissible for the court to probe into the mental process of the learned Arbitrator especially when the Arbitrator rejected major portion of the claim made by the respondent.11. | 0[ds]As notice above, although the respondent claimed a sum of Rs.97,54,143.78/- but the Arbitrator only awarded a sum of Rs.19,55,368/- (Rupees nineteen lakh fifty five thousand three hundred and sixty eight only) with pendente lite interest at the rate of 15% per annum from the date of institution of the suit till the date of the Award. Admittedly, the Award is a non-speaking award. Hence, it is not permissible for the court to probe into the mental process of the learned Arbitrator especially when the Arbitrator rejected major portion of the claim made by the respondent. | 0 | 1,313 | 109 | ### Instruction:
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case of dispute that may arise between the parties. From perusal of general conditions of the contract, we found that there was a clause to the effect that any increase in statutory levies such as taxes and duties and statutory increase in steel prices shall be paid by the appellant. Before the work was completed, a dispute arose and ultimately, the same was referred to the Arbitration.The respondent-contractor made a claim of Rs.97,54,143.78 on different heads which have been noted by the High Court and the same is extracted hereinbelow: “STATEMENT OF CLAIM OF M/S UNIQUE BUILDERS LIMITED AGAINST INDIAN RARE EARTHS LIMITED FOR CONSTRUCTION OF OSCOM/S-3 STRUCTURAL STEEL AND CLADDING WORK IN BULKWAREHOUSES, BEFORE THE HONBLE ARBITRATOR JUSTICE B.K. RAY.1Escalation as per annexure and the same submitted to M/s Dastur & Co.Rs.22,13,368.38240% of the overheads as per enclosed statement (Annexure-2)Rs.2,00,672.483Encashment of bank guarantee (Letter at Annexure-3)Rs.2,50,000.004Loss due to complete damage of workshop and store shed made of steel column, trusses with A.C. Sheet-1,200 sq.ft. @ Rs.200/- per sq. ft.Rs.2,40,000.005Loss of Welding Machine, Drilling Machine, Jigs, Tools, Tackles, Electrodes, Store items (As per Annexure-5)Rs.1,30,000.006Legal expenses for fighting theRs. 75,000.00--------------------Rs.31,09,040.867Interest @ 18% from 11.8.82 to 31st December, 1992 (Annx.7)Rs.58,13,991.428Loss for extra liability for payment of Income Tax by not availing of the adjustment of loss of Rs.16,62,223.00 upto previous eight years from the account year starting from Accounting year 82-83, i.e. 50% of the above loss of Rs.16,62,223 (Annx.8)Rs.8,31,111.50 Rs.97,54,143.78" 3. Although the respondent made a claim of Rs.97,54,143.78/- but the Arbitrator after hearing the parties and considering all objections raised by the appellant, passed an Award for Rs.19,55,368/- with pendente lite interest at the rate of 15% per annum from the date of institution of the suit till the date of the Award. The said Award was challenged by the appellant before the 1st Additional Civil Judge (Senior Division), Cuttack on various grounds by filing an application under section 30 of the Act being Misc. Case No.78 of 2000, for setting aside the said Award. The 1st Additional Civil Judge (Senior Division), Cuttack, dismissed the said application. Aggrieved by the same, the appellant preferred an appeal before the High Court. The High Court after considering the case of the appellant and the respondent and referring to the claims made by the respondent, finally upheld the Award passed by the learned Arbitrator. 4. Mr. Vinoo Bhagat, learned counsel appearing for the appellant, assailed the said Award and the impugned order passed by the High Court on various grounds inter alia the jurisdiction of the Arbitrator in passing a non-speaking Award when arbitrability of the disputes was questioned. Mr. Bhagat, learned counsel, also submits that in absence of any specific provision, the claim against the escalation of prices ought not to have been awarded. In this connection, Mr. Bhagat relied upon various decisions of this Court in the case of T. N. Electricity Board vs. Bridge Tunnel Constructions & Ors. - (1997) 4 SCC 121 ; V. G. George vs. Indian Rare Earths Ltd. & Anr. - (1999) 3 SCC 762 ; and Associated Engineering Co. vs. Government of Andhra Pradesh & Anr. - (1991) 4 SCC 93. 5. We have gone through the decisions relied upon by Mr. Bhagat, learned counsel appearing for the appellant. 6. The ratios decidendi in those decisions are based on different facts of the cases. 7. In the instant case, the only question that arises for our consideration is as to whether the non-speaking Award given by the Arbitrator can be set aside on the grounds asserted by the appellant. 8. A five-Judge Constitution Bench of this Court in the case of Raipur Development Authority etc. etc. vs. M/s Chokhamal Contractors etc. etc. - AIR 1990 SC 1426 , considered the scope of section 30 of the Arbitration Act, 1940 and held as under : “It is now well settled that an award can neither be remitted nor set aside merely on the ground that it does not contain reasons in support of the conclusion or decisions reached in it except where the arbitration agreement or the deed of submission requires him to give reasons. The arbitrator or umpire is under no obligation to give reasons in support of the decision reached by him unless under the arbitration agreement or in the deed of submission he is required to give such reasons and if the arbitrator or umpire chooses to give reasons in support of his decision it is open to the Court to set aside the award if it finds that an error of law has been committed by the arbitrator or umpire on the face of the record on going through such reasons. The arbitrator or umpire shall have to give reasons also where the court has directed in any order such as the one made under section 20 or section 21 or section 34 of the Act that reasons should be given or where the statute which governs an arbitration requires him to do so." 9. A three-Judge Bench of this Court in another case of S. Harcharan Singh vs. Union of India – (1990) 4 SCC 647 , reiterated its earlier view that the arbitrators adjudication is generally considered binding between the parties for he is a tribunal selected by the parties and the power of the court to set aside the award is restricted to cases set out in section 30 of the Act. 10. As notice above, although the respondent claimed a sum of Rs.97,54,143.78/- but the Arbitrator only awarded a sum of Rs.19,55,368/- (Rupees nineteen lakh fifty five thousand three hundred and sixty eight only) with pendente lite interest at the rate of 15% per annum from the date of institution of the suit till the date of the Award. Admittedly, the Award is a non-speaking award. Hence, it is not permissible for the court to probe into the mental process of the learned Arbitrator especially when the Arbitrator rejected major portion of the claim made by the respondent.11.
### Response:
0
### Explanation:
As notice above, although the respondent claimed a sum of Rs.97,54,143.78/- but the Arbitrator only awarded a sum of Rs.19,55,368/- (Rupees nineteen lakh fifty five thousand three hundred and sixty eight only) with pendente lite interest at the rate of 15% per annum from the date of institution of the suit till the date of the Award. Admittedly, the Award is a non-speaking award. Hence, it is not permissible for the court to probe into the mental process of the learned Arbitrator especially when the Arbitrator rejected major portion of the claim made by the respondent.
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Commissioner of Income Tax, Bombay City II Vs. Shakuntala & Others | and 18 (5) of the Act. This view was accepted by this Court in Howrah Trading Co. Ltd. v. Commissioner of Income-tax, Central, Calcutta, 1959-36 ITR 215 : (AIR 1959 SC 775 ), where it said that no valid reason existed as to why the expression shareholder as used in S. 18 (5) should mean a person other than the one denoted by the same expression in the Indian Companies Act, 1913. A reference was made to the decision of the Bombay High Court in 1948-16 ITR 187 : (AIR 1948 Bom 394 ) (supra) and other decisions bearing on the subject. Similarly, we see no reason why the expression shareholder in S. 23-A should not have the same meaning, namely, a shareholder registered in the books of company. It would be anomalous if the expression shareholder has one meaning in S. 18 (5) and a different meaning in S. 23-A of the Act; for that would mean that a Hindu undivided family treated as a shareholder for the purpose of S. 23-A would not be entitled to the benefit of S. 18 (5) of the Act.6. The learned counsel for the appellant has urged two points in support of his contention that the expression shareholder in S. 23-A means the person who owns the share, irrespective of the circumstance whether that person is registered in the books of the company as a shareholder or not. His first point is that the very object of the section is to prevent avoidance of super-tax by the shareholders of a company, and if the beneficial owner of the shares is a Hindu undivided family, that family will not come within the purview of S. 23-A, because a Hindu undivided family as such cannot be a shareholder in a company. The argument is that the narrow interpretation put on S 23-A will defeat the very purpose of the section. The second point urged is that the principle that a legal fiction must be carried to its logical conclusion cannot be overlooked in construing S. 23-A. The legal fiction enjoined by the section is that the profits must be "deemed to have been distributed as dividend amongst the shareholders as at the date of the general meeting". This legal fiction must be carried to its logical conclusion by holding that the dividend had been actually distributed and received by the Hindu undivided family. It is pointed out that if the same dividend were actually distributed by the company, it would certainly be income in the hands of the Hindu undivided family which would be liable to pay all taxes on its income, whether actual or artificial.7. We do not think that either of the two points urged by the appellant is really decisive of the question. The question is really one of interpretation of S. 23A, and we must interpret S. 23A with reference to its own terms. The section in express terms says that "the proportionate share of each shareholder shall be included in the total income of the shareholder for the purpose of assessing his total income". The section does not talk of the beneficial owner of the share. It talks of the shareholder only. Section 18 (5) of the Act deals with grossing up of dividend and two expressions occur thereon: "owner of the security" and the "shareholder". So far as the expression "owner of the security" is concerned it may perhaps include a beneficial owner; but it has been decided by this Court that the expression "shareholder" in S. 18 (5) means the shareholder registered in the books of the company. As we have earlier said, no good reason exists as to why the expression "shareholder" in S. 23-A shall not have the same meaning. Sub-section (3) and (4) of S. 23A also make the position clear; they talk of members of the company and a Hindu undivided family as such is not a member of the company.8. The position of a Hindu undivided family vis-a-vis a partnership was considered by this Court in Charandas Haridas v. Commissioner of Income-tax, Bombay. North Kutch and Saurashtra, Ahmedabad, 1960-39 ITR 202 : (AIR 1960 SC 910 ) and Commissioner of Income-tax, Bombay v. Nandlal Gandalal, 1960-40 ITR 1 : (AIR 1960 SC 1147 ). It is not disputed that the Hindu undivided family as such was not a shareholder of the company in the present case. Therefore, so far as the notional income is concerned, we must go by the terms of S. 23A and if there is any lacuna in the wording of the section, we cannot cure it in the guise of interpretation. The question here is not one of deciding the matter from the point of view of partnership law or Hindu law, as was the question in 1960-40 ITR 1 : (AIR 1960 SC 1147 ) (supra) which led to a difference of opinion. The question here is one of interpretation only and that interpretation must be based on the terms of the section. The fiction enacted by the Legislature must be restricted by the plain terms of the statute. Nor do we see how it can be said that the interpretation put on S. 23-A that it is confined to a shareholder registered in the books of the company defeats the very purpose of the section. The section will still apply to shareholders of the company and to their income will be added the notional income determined under S. 23A. We are unable to accept the argument that the principle that a legal fiction must be carried to its logical conclusion requires us to travel beyond the terms of the section or give the expression "shareholder" a meaning which it does not obviously bear.9. For these reasons we are of the view that the High Court correctly answered the question which was referred to it. In view of that answer the High Court rightly held that the second question referred to it did not fall for consideration. | 0[ds]It is clear from the section that an order made under it is not in itself an order of assessment, it has to be followed by an assessment on the shareholder either under S. 23 or under S. 34. Under the express terms of the section, the artificial or notional income has to be included in the total income of the shareholder for the purpose of assessing his total income.We do not think that either of the two points urged by the appellant is really decisive of the question. The question is really one of interpretation of S. 23A, and we must interpret S. 23A with reference to its ownAs we have earlier said, no good reason exists as to why the expression "shareholder" in S. 23-A shall not have the same meaning. Sub-section (3) and (4) of S. 23A also make the position clear; they talk of members of the company and a Hindu undivided family as such is not a member of the company.It is not disputed that the Hindu undivided family as such was not a shareholder of the company in the present case. Therefore, so far as the notional income is concerned, we must go by the terms of S. 23A and if there is any lacuna in the wording of the section, we cannot cure it in the guise of interpretation. The question here is not one of deciding the matter from the point of view of partnership law or Hindu law, as was the question in 1960-40 ITR 1 : (AIR 1960 SC 1147 ) (supra) which led to a difference of opinion. The question here is one of interpretation only and that interpretation must be based on the terms of the section. The fiction enacted by the Legislature must be restricted by the plain terms of the statute. Nor do we see how it can be said that the interpretation put on S. 23-A that it is confined to a shareholder registered in the books of the company defeats the very purpose of the section. The section will still apply to shareholders of the company and to their income will be added the notional income determined under S. 23A. We are unable to accept the argument that the principle that a legal fiction must be carried to its logical conclusion requires us to travel beyond the terms of the section or give the expression "shareholder" a meaning which it does not obviously bear.9. For these reasons we are of the view that the High Court correctly answered the question which was referred to it. In view of that answer the High Court rightly held that the second question referred to it did not fall for consideration. | 0 | 2,629 | 491 | ### Instruction:
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and 18 (5) of the Act. This view was accepted by this Court in Howrah Trading Co. Ltd. v. Commissioner of Income-tax, Central, Calcutta, 1959-36 ITR 215 : (AIR 1959 SC 775 ), where it said that no valid reason existed as to why the expression shareholder as used in S. 18 (5) should mean a person other than the one denoted by the same expression in the Indian Companies Act, 1913. A reference was made to the decision of the Bombay High Court in 1948-16 ITR 187 : (AIR 1948 Bom 394 ) (supra) and other decisions bearing on the subject. Similarly, we see no reason why the expression shareholder in S. 23-A should not have the same meaning, namely, a shareholder registered in the books of company. It would be anomalous if the expression shareholder has one meaning in S. 18 (5) and a different meaning in S. 23-A of the Act; for that would mean that a Hindu undivided family treated as a shareholder for the purpose of S. 23-A would not be entitled to the benefit of S. 18 (5) of the Act.6. The learned counsel for the appellant has urged two points in support of his contention that the expression shareholder in S. 23-A means the person who owns the share, irrespective of the circumstance whether that person is registered in the books of the company as a shareholder or not. His first point is that the very object of the section is to prevent avoidance of super-tax by the shareholders of a company, and if the beneficial owner of the shares is a Hindu undivided family, that family will not come within the purview of S. 23-A, because a Hindu undivided family as such cannot be a shareholder in a company. The argument is that the narrow interpretation put on S 23-A will defeat the very purpose of the section. The second point urged is that the principle that a legal fiction must be carried to its logical conclusion cannot be overlooked in construing S. 23-A. The legal fiction enjoined by the section is that the profits must be "deemed to have been distributed as dividend amongst the shareholders as at the date of the general meeting". This legal fiction must be carried to its logical conclusion by holding that the dividend had been actually distributed and received by the Hindu undivided family. It is pointed out that if the same dividend were actually distributed by the company, it would certainly be income in the hands of the Hindu undivided family which would be liable to pay all taxes on its income, whether actual or artificial.7. We do not think that either of the two points urged by the appellant is really decisive of the question. The question is really one of interpretation of S. 23A, and we must interpret S. 23A with reference to its own terms. The section in express terms says that "the proportionate share of each shareholder shall be included in the total income of the shareholder for the purpose of assessing his total income". The section does not talk of the beneficial owner of the share. It talks of the shareholder only. Section 18 (5) of the Act deals with grossing up of dividend and two expressions occur thereon: "owner of the security" and the "shareholder". So far as the expression "owner of the security" is concerned it may perhaps include a beneficial owner; but it has been decided by this Court that the expression "shareholder" in S. 18 (5) means the shareholder registered in the books of the company. As we have earlier said, no good reason exists as to why the expression "shareholder" in S. 23-A shall not have the same meaning. Sub-section (3) and (4) of S. 23A also make the position clear; they talk of members of the company and a Hindu undivided family as such is not a member of the company.8. The position of a Hindu undivided family vis-a-vis a partnership was considered by this Court in Charandas Haridas v. Commissioner of Income-tax, Bombay. North Kutch and Saurashtra, Ahmedabad, 1960-39 ITR 202 : (AIR 1960 SC 910 ) and Commissioner of Income-tax, Bombay v. Nandlal Gandalal, 1960-40 ITR 1 : (AIR 1960 SC 1147 ). It is not disputed that the Hindu undivided family as such was not a shareholder of the company in the present case. Therefore, so far as the notional income is concerned, we must go by the terms of S. 23A and if there is any lacuna in the wording of the section, we cannot cure it in the guise of interpretation. The question here is not one of deciding the matter from the point of view of partnership law or Hindu law, as was the question in 1960-40 ITR 1 : (AIR 1960 SC 1147 ) (supra) which led to a difference of opinion. The question here is one of interpretation only and that interpretation must be based on the terms of the section. The fiction enacted by the Legislature must be restricted by the plain terms of the statute. Nor do we see how it can be said that the interpretation put on S. 23-A that it is confined to a shareholder registered in the books of the company defeats the very purpose of the section. The section will still apply to shareholders of the company and to their income will be added the notional income determined under S. 23A. We are unable to accept the argument that the principle that a legal fiction must be carried to its logical conclusion requires us to travel beyond the terms of the section or give the expression "shareholder" a meaning which it does not obviously bear.9. For these reasons we are of the view that the High Court correctly answered the question which was referred to it. In view of that answer the High Court rightly held that the second question referred to it did not fall for consideration.
### Response:
0
### Explanation:
It is clear from the section that an order made under it is not in itself an order of assessment, it has to be followed by an assessment on the shareholder either under S. 23 or under S. 34. Under the express terms of the section, the artificial or notional income has to be included in the total income of the shareholder for the purpose of assessing his total income.We do not think that either of the two points urged by the appellant is really decisive of the question. The question is really one of interpretation of S. 23A, and we must interpret S. 23A with reference to its ownAs we have earlier said, no good reason exists as to why the expression "shareholder" in S. 23-A shall not have the same meaning. Sub-section (3) and (4) of S. 23A also make the position clear; they talk of members of the company and a Hindu undivided family as such is not a member of the company.It is not disputed that the Hindu undivided family as such was not a shareholder of the company in the present case. Therefore, so far as the notional income is concerned, we must go by the terms of S. 23A and if there is any lacuna in the wording of the section, we cannot cure it in the guise of interpretation. The question here is not one of deciding the matter from the point of view of partnership law or Hindu law, as was the question in 1960-40 ITR 1 : (AIR 1960 SC 1147 ) (supra) which led to a difference of opinion. The question here is one of interpretation only and that interpretation must be based on the terms of the section. The fiction enacted by the Legislature must be restricted by the plain terms of the statute. Nor do we see how it can be said that the interpretation put on S. 23-A that it is confined to a shareholder registered in the books of the company defeats the very purpose of the section. The section will still apply to shareholders of the company and to their income will be added the notional income determined under S. 23A. We are unable to accept the argument that the principle that a legal fiction must be carried to its logical conclusion requires us to travel beyond the terms of the section or give the expression "shareholder" a meaning which it does not obviously bear.9. For these reasons we are of the view that the High Court correctly answered the question which was referred to it. In view of that answer the High Court rightly held that the second question referred to it did not fall for consideration.
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M/s. Padia Timber Company(P) Ltd Vs. The Board of Trustees of Visakhapatnam Port Trust Through its Secretary | seen that even according to the M/s Padia Timber Company Pvt. Ltd., and as per its letter dated 27.11.1990 ex.A.10, the M/s Padia Timber Company Pvt., Ltd., admitted about the receipt of the letter dated 29.10.1990 and the acceptance of tender which is valid for three months. Therefore, having regard to the letter in Ex.A.10 mentioning about the acceptance of the tender on 29.10.1990, it is not open to the M/s Padia Timber Company Pvt. Ltd., to fall back and say that there was no acceptance at all nor there was any concluded contract. The Court below was rightly held that the tender of the defendant was duly accepted on 29.10.1990 which was followed by the purchaser order on 31.10.1990 and that itself is more enough to show that there was concluded and enforceable contract. Thus, nothing lies in the mouth of the M/s Padia Timber Company Pvt. Ltd., to say that there was no concluded contract. Further, having regard to facts and circumstances and admittedly there being no steps at all in terms of such acceptance, the breach squarely falls only on the M/s Padia Timber Company Pvt. Ltd. and therefore, the Visakhapatnam Port Trust has rightly forfeited the amount and the Court below was rightly held that the said plaintiff namely the Visakhapatnam Port Trust is entitled for the amounts as claimed. Following the same and consequently to the said findings which go to the very root of the case itself, the claim as made by the M/s Padia Timber Company Pvt. Ltd., for refund in the other suit also squarely falls to ground with the self-same reasons. Hence, we do not find any merits in these appeals... 54. With the greatest of respect, the High Court has cursorily dealt with the contentions of the Appellant and has not even discussed the cases that had been cited on behalf of the Appellant. 55. The Trial Court relied on Section 4 of the Contract Act, but completely overlooked Section 7. Section 7 of the Indian Contract Act, 1872 is set out hereinbelow for convenience:- 7. Acceptance must be absolute.—In order to convert a proposal into a promise the acceptance must— —In order to convert a proposal into a promise the acceptance must— (1) be absolute and unqualified; (2) be expressed in some usual and reasonable manner, unless the proposal prescribes the manner in which it is to be accepted. If the proposal prescribes a manner in which it is to be accepted, and the acceptance is not made in such manner, the proposer may, within a reasonable time after the acceptance is communicated to him, insist that his proposal shall be accepted in the prescribed manner, and not otherwise; but, if he fails to do so, he accepts the acceptance. 56. It is a cardinal principle of the law of contract that the offer and acceptance of an offer must be absolute. It can give no room for doubt. The offer and acceptance must be based or founded on three components, that is, certainty, commitment and communication. However, when the acceptor puts in a new condition while accepting the contract already signed by the proposer, the contract is not complete until the proposer accepts that condition, as held by this Court in Haridwar Singh v. Bagun Sumbrui and Ors. AIR 1972 SC 1242 An acceptance with a variation is no acceptance. It is, in effect and substance, simply a counter proposal which must be accepted fully by the original proposer, before a contract is made. 57. In Union of India v. Bhim Sen Walaiti Ram (1969) 3 SCC 146, a three-Judge Bench of this Court held that acceptance of an offer may be either absolute or conditional. If the acceptance is conditional, offer can be withdrawn at any moment until absolute acceptance has taken place. 58. In Jawahar Lal Burman v. Union of India (supra), referred to by the High Court, this Court held that under Section 7 of the Contract Act acceptance of the offer must be absolute and unqualified and it cannot be conditional. However, in the facts and circumstances of that case, on a reading of the letter of acceptance as a whole, the Appellants argument that the letter was intended to make a substantial variation in the contract, by making the deposit of security a condition precedent instead of a condition subsequent, was not accepted. 59. The High Court also overlooked Section 7 of the Contract Act. Both the Trial Court and the High Court over-looked the main point that, in the response to the tender floated by the Respondent-Port Trust, the Appellant had submitted its offer conditionally subject to inspection being held at the Depot of the Appellant. This condition was not accepted by the Respondent-Port Trust unconditionally. The Respondent-Port Trust agreed to inspection at the Depot of the Appellant, but imposed a further condition that the goods would be finally inspected at the showroom of the Respondent-Port Trust. This Condition was not accepted by the Appellant. It could not, therefore, be said that there was a concluded contract. There being no concluded contract, there could be no question of any breach on the part of the Appellant or of damages or any risk purchase at the cost of the Appellant. The earnest deposit of the Appellant is liable to be refunded. 60. Since we hold that the Appellant was neither in breach nor liable to damages, it is not necessary for us to examine the questions of whether the compensation and/or damages claimed by the Respondent Port Trust was reasonable or excessive, whether claim for damages could only be maintained subject to proof of the actual damages suffered, and whether the Respondent Port Trust had taken steps to mitigate losses. We also need not embark upon the academic exercise of deciding whether prior approval of the Board of Trustees is a condition precedent for creation of a valid contract for supply of goods, or whether post facto ratification by the Board would suffice. | 1[ds]47. In the judgment and order under appeal, the High Court has not discussed any of the judgments referred to above. The High Court simply recorded the contention of the Appellant that there was no previous approval of the Board of Trustees as contemplated under Section 34(1) of the Major Port Trusts Act, 1963, and therefore, no enforceable contract.48. In Visakhapatnam Port Trust, Visakhapatnam and Anr. v. Bihar Alloy Steels Ltd. and Ors. (supra) a Division Bench of the High Court held:17. In the instant case the provisions of S. 34 prescribe the manner in which a contract is to be made on behalf of the Board of Trustees and further sub-section (3) contains a prohibition that a contract not made in accordance with the earlier portions of Section shall not be binding on the Board. It has been held by the Supreme Court in its decision reported in H.S. Rokhy v. New Delhi Municipality AIR 1962 SC 554 that the effect of such a prohibition as is contained in sub-sec. (3) of S. 34 renders the contract itself void and unenforceable. In that case the controversy was about estoppel against New Delhi Municipal Corporation which was governed by the Punjab Municipal Act, 1911, which contains a similar provision viz., S. 47.. In Visakhapatnam Port Trust, Visakhapatnam and Anr. v. Bihar Alloy Steels Ltd. and Ors. (supra) this Court held that the promise as contained in the letter of Traffic Manager to lease an area of port trust was void and unenforceable against the Board of Trustees, there being no contract made in accordance with Section 34 of the Major Port Trusts Act.51. The judgment of this Court in Mahesh Transport Co. v. Transport and Dock Workers Union (supra), which relates to the validity and propriety of the reference of an industrial dispute under Section 10(1) of the Industrial Disputes Act, 1947, apparently has no relevance to the issues involved in this case. In M.V. Shankar Bhat and Anr. v. Claude Pinto since (D) by Lrs. and Ors. (supra), this Court held that an agreement which was subject to ratification by heirs under a will who were not parties to the agreement did not create a conclusive contract. The relevance of the judgment is unexplained.52. In U.P. Rajkiya Nirman Nigam Ltd. v. Indure Pvt. Ltd. And Ors. (supra) this Court held that a contract by a Government Notification is not binding unless it is executed in accordance with its Articles of Association.53. The High Court found that there was no dispute that tenders had been called for and that it was the case of the Respondent Port Trust that the offer of the Appellant had in fact been accepted and purchase order issued on 31st October, 1990 under registered Post that had been acknowledged but refused by the Appellant. The High Court also recorded the contention of the Appellant that in the absence of previous approval from the Board of Trustees of the Respondent-Port Trust, under the proviso to Section 34(1) of the Major Port Trust Act 1963, there could be no enforceable contract. Even though the High Court referred to the submission of the Appellant that the letter of intent was subject to ratification by the Board and and the only witness of the Respondent-Port Trust had admitted that no contract had been concluded, the High Court did not deal with the same. The High Court observed:….The main reliance placed by the Visakhapatnam Port Trust under Clause 16 of the tender conditions in Ex.A.1, was that in the event of non-supply of the material, the Port Trust has right to cancel the contract itself whereas the case of the Company was that there was no contract at all. Therefore, one has to see whether there was really any concluded or enforceable contract before one could blame the other. There has been a quite re-assertion through the evidence on behalf of the Port Trust by P.W.1. There is a reference to a mention in Ex.A.8 as to the ratification by the Board, which according to the M/s Padia Timber Company Pvt. Ltd., nothing is forthcoming. Further, P.W.1 during his cross-examination, stated that it is true that the contract was not concluded. However, that itself cannot be a reflection on the nature of intent, which could follow the facts and circumstances in the documents, which are staring at. It is to be seen that even according to the M/s Padia Timber Company Pvt. Ltd., and as per its letter dated 27.11.1990 ex.A.10, the M/s Padia Timber Company Pvt., Ltd., admitted about the receipt of the letter dated 29.10.1990 and the acceptance of tender which is valid for three months. Therefore, having regard to the letter in Ex.A.10 mentioning about the acceptance of the tender on 29.10.1990, it is not open to the M/s Padia Timber Company Pvt. Ltd., to fall back and say that there was no acceptance at all nor there was any concluded contract. The Court below was rightly held that the tender of the defendant was duly accepted on 29.10.1990 which was followed by the purchaser order on 31.10.1990 and that itself is more enough to show that there was concluded and enforceable contract. Thus, nothing lies in the mouth of the M/s Padia Timber Company Pvt. Ltd., to say that there was no concluded contract. Further, having regard to facts and circumstances and admittedly there being no steps at all in terms of such acceptance, the breach squarely falls only on the M/s Padia Timber Company Pvt. Ltd. and therefore, the Visakhapatnam Port Trust has rightly forfeited the amount and the Court below was rightly held that the said plaintiff namely the Visakhapatnam Port Trust is entitled for the amounts as claimed. Following the same and consequently to the said findings which go to the very root of the case itself, the claim as made by the M/s Padia Timber Company Pvt. Ltd., for refund in the other suit also squarely falls to ground with the self-same reasons. Hence, we do not find any merits in these appeals.... With the greatest of respect, the High Court has cursorily dealt with the contentions of the Appellant and has not even discussed the cases that had been cited on behalf of the Appellant.56. It is a cardinal principle of the law of contract that the offer and acceptance of an offer must be absolute. It can give no room for doubt. The offer and acceptance must be based or founded on three components, that is, certainty, commitment and communication. However, when the acceptor puts in a new condition while accepting the contract already signed by the proposer, the contract is not complete until the proposer accepts that condition, as held by this Court in Haridwar Singh v. Bagun Sumbrui and Ors. AIR 1972 SC 1242 An acceptance with a variation is no acceptance. It is, in effect and substance, simply a counter proposal which must be accepted fully by the original proposer, before a contract is made.57. In Union of India v. Bhim Sen Walaiti Ram (1969) 3 SCC 146, a three-Judge Bench of this Court held that acceptance of an offer may be either absolute or conditional. If the acceptance is conditional, offer can be withdrawn at any moment until absolute acceptance has taken place.58. In Jawahar Lal Burman v. Union of India (supra), referred to by the High Court, this Court held that under Section 7 of the Contract Act acceptance of the offer must be absolute and unqualified and it cannot be conditional. However, in the facts and circumstances of that case, on a reading of the letter of acceptance as a whole, the Appellants argument that the letter was intended to make a substantial variation in the contract, by making the deposit of security a condition precedent instead of a condition subsequent, was not accepted.59. The High Court also overlooked Section 7 of the Contract Act. Both the Trial Court and the High Court over-looked the main point that, in the response to the tender floated by the Respondent-Port Trust, the Appellant had submitted its offer conditionally subject to inspection being held at the Depot of the Appellant. This condition was not accepted by the Respondent-Port Trust unconditionally. The Respondent-Port Trust agreed to inspection at the Depot of the Appellant, but imposed a further condition that the goods would be finally inspected at the showroom of the Respondent-Port Trust. This Condition was not accepted by the Appellant. It could not, therefore, be said that there was a concluded contract. There being no concluded contract, there could be no question of any breach on the part of the Appellant or of damages or any risk purchase at the cost of the Appellant. The earnest deposit of the Appellant is liable to be refunded.60. Since we hold that the Appellant was neither in breach nor liable to damages, it is not necessary for us to examine the questions of whether the compensation and/or damages claimed by the Respondent Port Trust was reasonable or excessive, whether claim for damages could only be maintained subject to proof of the actual damages suffered, and whether the Respondent Port Trust had taken steps to mitigate losses. We also need not embark upon the academic exercise of deciding whether prior approval of the Board of Trustees is a condition precedent for creation of a valid contract for supply of goods, or whether post facto ratification by the Board would suffice. | 1 | 6,641 | 1,755 | ### 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:
seen that even according to the M/s Padia Timber Company Pvt. Ltd., and as per its letter dated 27.11.1990 ex.A.10, the M/s Padia Timber Company Pvt., Ltd., admitted about the receipt of the letter dated 29.10.1990 and the acceptance of tender which is valid for three months. Therefore, having regard to the letter in Ex.A.10 mentioning about the acceptance of the tender on 29.10.1990, it is not open to the M/s Padia Timber Company Pvt. Ltd., to fall back and say that there was no acceptance at all nor there was any concluded contract. The Court below was rightly held that the tender of the defendant was duly accepted on 29.10.1990 which was followed by the purchaser order on 31.10.1990 and that itself is more enough to show that there was concluded and enforceable contract. Thus, nothing lies in the mouth of the M/s Padia Timber Company Pvt. Ltd., to say that there was no concluded contract. Further, having regard to facts and circumstances and admittedly there being no steps at all in terms of such acceptance, the breach squarely falls only on the M/s Padia Timber Company Pvt. Ltd. and therefore, the Visakhapatnam Port Trust has rightly forfeited the amount and the Court below was rightly held that the said plaintiff namely the Visakhapatnam Port Trust is entitled for the amounts as claimed. Following the same and consequently to the said findings which go to the very root of the case itself, the claim as made by the M/s Padia Timber Company Pvt. Ltd., for refund in the other suit also squarely falls to ground with the self-same reasons. Hence, we do not find any merits in these appeals... 54. With the greatest of respect, the High Court has cursorily dealt with the contentions of the Appellant and has not even discussed the cases that had been cited on behalf of the Appellant. 55. The Trial Court relied on Section 4 of the Contract Act, but completely overlooked Section 7. Section 7 of the Indian Contract Act, 1872 is set out hereinbelow for convenience:- 7. Acceptance must be absolute.—In order to convert a proposal into a promise the acceptance must— —In order to convert a proposal into a promise the acceptance must— (1) be absolute and unqualified; (2) be expressed in some usual and reasonable manner, unless the proposal prescribes the manner in which it is to be accepted. If the proposal prescribes a manner in which it is to be accepted, and the acceptance is not made in such manner, the proposer may, within a reasonable time after the acceptance is communicated to him, insist that his proposal shall be accepted in the prescribed manner, and not otherwise; but, if he fails to do so, he accepts the acceptance. 56. It is a cardinal principle of the law of contract that the offer and acceptance of an offer must be absolute. It can give no room for doubt. The offer and acceptance must be based or founded on three components, that is, certainty, commitment and communication. However, when the acceptor puts in a new condition while accepting the contract already signed by the proposer, the contract is not complete until the proposer accepts that condition, as held by this Court in Haridwar Singh v. Bagun Sumbrui and Ors. AIR 1972 SC 1242 An acceptance with a variation is no acceptance. It is, in effect and substance, simply a counter proposal which must be accepted fully by the original proposer, before a contract is made. 57. In Union of India v. Bhim Sen Walaiti Ram (1969) 3 SCC 146, a three-Judge Bench of this Court held that acceptance of an offer may be either absolute or conditional. If the acceptance is conditional, offer can be withdrawn at any moment until absolute acceptance has taken place. 58. In Jawahar Lal Burman v. Union of India (supra), referred to by the High Court, this Court held that under Section 7 of the Contract Act acceptance of the offer must be absolute and unqualified and it cannot be conditional. However, in the facts and circumstances of that case, on a reading of the letter of acceptance as a whole, the Appellants argument that the letter was intended to make a substantial variation in the contract, by making the deposit of security a condition precedent instead of a condition subsequent, was not accepted. 59. The High Court also overlooked Section 7 of the Contract Act. Both the Trial Court and the High Court over-looked the main point that, in the response to the tender floated by the Respondent-Port Trust, the Appellant had submitted its offer conditionally subject to inspection being held at the Depot of the Appellant. This condition was not accepted by the Respondent-Port Trust unconditionally. The Respondent-Port Trust agreed to inspection at the Depot of the Appellant, but imposed a further condition that the goods would be finally inspected at the showroom of the Respondent-Port Trust. This Condition was not accepted by the Appellant. It could not, therefore, be said that there was a concluded contract. There being no concluded contract, there could be no question of any breach on the part of the Appellant or of damages or any risk purchase at the cost of the Appellant. The earnest deposit of the Appellant is liable to be refunded. 60. Since we hold that the Appellant was neither in breach nor liable to damages, it is not necessary for us to examine the questions of whether the compensation and/or damages claimed by the Respondent Port Trust was reasonable or excessive, whether claim for damages could only be maintained subject to proof of the actual damages suffered, and whether the Respondent Port Trust had taken steps to mitigate losses. We also need not embark upon the academic exercise of deciding whether prior approval of the Board of Trustees is a condition precedent for creation of a valid contract for supply of goods, or whether post facto ratification by the Board would suffice.
### Response:
1
### Explanation:
of the tender conditions in Ex.A.1, was that in the event of non-supply of the material, the Port Trust has right to cancel the contract itself whereas the case of the Company was that there was no contract at all. Therefore, one has to see whether there was really any concluded or enforceable contract before one could blame the other. There has been a quite re-assertion through the evidence on behalf of the Port Trust by P.W.1. There is a reference to a mention in Ex.A.8 as to the ratification by the Board, which according to the M/s Padia Timber Company Pvt. Ltd., nothing is forthcoming. Further, P.W.1 during his cross-examination, stated that it is true that the contract was not concluded. However, that itself cannot be a reflection on the nature of intent, which could follow the facts and circumstances in the documents, which are staring at. It is to be seen that even according to the M/s Padia Timber Company Pvt. Ltd., and as per its letter dated 27.11.1990 ex.A.10, the M/s Padia Timber Company Pvt., Ltd., admitted about the receipt of the letter dated 29.10.1990 and the acceptance of tender which is valid for three months. Therefore, having regard to the letter in Ex.A.10 mentioning about the acceptance of the tender on 29.10.1990, it is not open to the M/s Padia Timber Company Pvt. Ltd., to fall back and say that there was no acceptance at all nor there was any concluded contract. The Court below was rightly held that the tender of the defendant was duly accepted on 29.10.1990 which was followed by the purchaser order on 31.10.1990 and that itself is more enough to show that there was concluded and enforceable contract. Thus, nothing lies in the mouth of the M/s Padia Timber Company Pvt. Ltd., to say that there was no concluded contract. Further, having regard to facts and circumstances and admittedly there being no steps at all in terms of such acceptance, the breach squarely falls only on the M/s Padia Timber Company Pvt. Ltd. and therefore, the Visakhapatnam Port Trust has rightly forfeited the amount and the Court below was rightly held that the said plaintiff namely the Visakhapatnam Port Trust is entitled for the amounts as claimed. Following the same and consequently to the said findings which go to the very root of the case itself, the claim as made by the M/s Padia Timber Company Pvt. Ltd., for refund in the other suit also squarely falls to ground with the self-same reasons. Hence, we do not find any merits in these appeals.... With the greatest of respect, the High Court has cursorily dealt with the contentions of the Appellant and has not even discussed the cases that had been cited on behalf of the Appellant.56. It is a cardinal principle of the law of contract that the offer and acceptance of an offer must be absolute. It can give no room for doubt. The offer and acceptance must be based or founded on three components, that is, certainty, commitment and communication. However, when the acceptor puts in a new condition while accepting the contract already signed by the proposer, the contract is not complete until the proposer accepts that condition, as held by this Court in Haridwar Singh v. Bagun Sumbrui and Ors. AIR 1972 SC 1242 An acceptance with a variation is no acceptance. It is, in effect and substance, simply a counter proposal which must be accepted fully by the original proposer, before a contract is made.57. In Union of India v. Bhim Sen Walaiti Ram (1969) 3 SCC 146, a three-Judge Bench of this Court held that acceptance of an offer may be either absolute or conditional. If the acceptance is conditional, offer can be withdrawn at any moment until absolute acceptance has taken place.58. In Jawahar Lal Burman v. Union of India (supra), referred to by the High Court, this Court held that under Section 7 of the Contract Act acceptance of the offer must be absolute and unqualified and it cannot be conditional. However, in the facts and circumstances of that case, on a reading of the letter of acceptance as a whole, the Appellants argument that the letter was intended to make a substantial variation in the contract, by making the deposit of security a condition precedent instead of a condition subsequent, was not accepted.59. The High Court also overlooked Section 7 of the Contract Act. Both the Trial Court and the High Court over-looked the main point that, in the response to the tender floated by the Respondent-Port Trust, the Appellant had submitted its offer conditionally subject to inspection being held at the Depot of the Appellant. This condition was not accepted by the Respondent-Port Trust unconditionally. The Respondent-Port Trust agreed to inspection at the Depot of the Appellant, but imposed a further condition that the goods would be finally inspected at the showroom of the Respondent-Port Trust. This Condition was not accepted by the Appellant. It could not, therefore, be said that there was a concluded contract. There being no concluded contract, there could be no question of any breach on the part of the Appellant or of damages or any risk purchase at the cost of the Appellant. The earnest deposit of the Appellant is liable to be refunded.60. Since we hold that the Appellant was neither in breach nor liable to damages, it is not necessary for us to examine the questions of whether the compensation and/or damages claimed by the Respondent Port Trust was reasonable or excessive, whether claim for damages could only be maintained subject to proof of the actual damages suffered, and whether the Respondent Port Trust had taken steps to mitigate losses. We also need not embark upon the academic exercise of deciding whether prior approval of the Board of Trustees is a condition precedent for creation of a valid contract for supply of goods, or whether post facto ratification by the Board would suffice.
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Commissioner of Income-Tax,Central-Iv Vs. Jignesh P. Shah | Universal Medicare (P) Ltd. (supra) read with its decision in Bhaumik Colours (P) Ltd. (supra) and the decision of Rajasthan High Court in CIT v. Hotel Hilltop [2009] 313 ITR 116 /[2012] 205 Taxman 91 (Mag.)/18 taxmann.com 308 to uphold the order of the Commissioner of Income Tax (Appeals). Thus upholding the conclusion that deemed dividend can be assessed only in the hands of a shareholder of the lender company. In this case, the Respondent-Assessee is admittedly not the shareholder of M/s. NS Fincon (P) Ltd.9. This Court in the case of Universal Medicare (P.) Ltd. (supra) while approving the decision of the Special Bench of the Tribunal in Bhaumik Colours (P.) Ltd. (supra) inter alia observed that:"All payments by way of dividend have to be taxed in hands of the recipient of the dividend namely the share holder.… ... …. ….Consequently, the effect of clause (e) of Section2 (22) is to broaden the ambit of the expression dividend by including certain payments which the company has made by way of a loan or advance or payments made on behalf of or for the individual benefit of a share holder. The definition does not alter the legal position that dividend has to be taxed in the hands of the shareholder."10. Further, this Court in the case of CIT v. Impact Containers (P.) Ltd. [2014] 367 ITR 346 /225 Taxman 322 /48 taxmann.com 294 while dealing with the issue of deemed dividend categorically held that Section 2(220(e) of the Act cannot be applied/invoked where the assesee is not a shareholder of the leading company. The objective of Section 2(22)(e) of the Act is only to ensure that the Company in which the public are not substantially interested would not distribute its prosperity amongst shareholders by calling them the loan/ advances, as tax would be payable if the same were distributed as dividend.11. The submission on behalf of the Revenue made before us is that one has to look at the substance of the transaction and that if one looks at the substance, then the Respondent-Assessee would be chargeable to tax. This is not acceptable as fiscal status have to be interpreted strictly. We can do no better then meet the submission of the Revenue by inviting attention to the decision of the Supreme Court in CIT v. Vatika Township (P.) Ltd. [2014] 367 ITR 466 /227 Taxman 121 /49 taxmann.com 249 wherein it has been observed as under:—41.2:- At the same time, it is also mandated that there cannot be imposition of any tax without the authority of law. Such a law has to be unambiguous and should prescribe the liability to pay taxes in clear terms. If the provision concerned of the taxing statue is ambiguous and vague and as susceptible to two interpretations, the interpretation which favours the subjects, as against the Revenue, has to be preferred. This is a well-established principle of statutory interpretation, to help finding out as to whether particular category of assessee is to pay a particular tax or not. No doubt, with the application of this principle, the courts make endeavour to find out the intention of the legislature. At the same time, this very principle is based on "fairness" doctrine as it lays down that if it is not very clear from the provisions of the Act as to whether the particular tax is to be levied to a particular class of persons or not, the subject should not be fastened with any liability to pay tax. This principle also acts as a balancing factor between the two jurisprudential theories of justice - Libertarian theory on the one hand and Kantian theory along with Egalitarian theory propounded by John Rawls on the other hand.41.3 Tax laws are clearly in derogation of personal rights and property interests and are, therefore, subject to strict construction, and any ambiguity must be resolved against imposition of the tax.…. …. …. ….41.4 Again as United States v. Merraim, the Supreme Court clearly stated at US pp. 187.88" On behalf of the Government it is urged that taxation is a practical matter and concerns itself with the substance of the thing upon which the tax is imposed, rather than with legal forms or expressions. But in statutes levying taxes the literal meaning of the words employed is most important, for such statutes are not to be extended by implication beyond the clear impost of the language used. If the words are doubtful, the doubt must be resolved against the Government and in favour of the taxpayer. Gould v. Gould L Ed p. 213: Usp 153.41.5 As Lord Carins said many years ago in Partington v. Attorne General (LR p. 122)".... as I understand the principle of all fiscal legislation it is this: if the person sought to be taxed comes within the letter of the law he must be taxed, however great the hardship may appear to the judicial mind to be. On the other hand, if the Crown, seeking to recover the tax, cannot bring the subject within the letter of the law, the subject is free, however, apparently within the spirit of the law the case might otherwise appear to be."Thus on strict interpretation of Section 2(22)(e) of the Act, unless the Respondent-Assessee is the shareholder of the company lending him money, no occasion to apply it can arise.12. In the present facts, it is an admitted position that Respondent-Assessee is not a shareholder of M/s. NS Fincon Pvt. Ltd. from whom he has received loan. Therefore, no fault can be found with the decision of the Tribunal in having followed the decision of the High Court in Universal Medicare (P.) Ltd. (supra). This view has been further reiterated by another Division Bench of this Court in Impact Containers (P.) Ltd. (supra) rendered on 4th July, 2014.13. We are of the view that as the issue raised by the Revenue stands concluded by the order of this Court, no substantial question of law arises for our consideration. | 0[ds]12. In the present facts, it is an admitted position thatis not a shareholder of M/s. NS Fincon Pvt. Ltd. from whom he has received loan. Therefore, no fault can be found with the decision of the Tribunal in having followed the decision of the High Court in Universal Medicare (P.) Ltd. (supra). This view has been further reiterated by another Division Bench of this Court in Impact Containers (P.) Ltd. (supra) rendered on 4th July, 2014.13. We are of the view that as the issue raised by the Revenue stands concluded by the order of this Court, no substantial question of law arises for our consideration. | 0 | 2,128 | 130 | ### 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:
Universal Medicare (P) Ltd. (supra) read with its decision in Bhaumik Colours (P) Ltd. (supra) and the decision of Rajasthan High Court in CIT v. Hotel Hilltop [2009] 313 ITR 116 /[2012] 205 Taxman 91 (Mag.)/18 taxmann.com 308 to uphold the order of the Commissioner of Income Tax (Appeals). Thus upholding the conclusion that deemed dividend can be assessed only in the hands of a shareholder of the lender company. In this case, the Respondent-Assessee is admittedly not the shareholder of M/s. NS Fincon (P) Ltd.9. This Court in the case of Universal Medicare (P.) Ltd. (supra) while approving the decision of the Special Bench of the Tribunal in Bhaumik Colours (P.) Ltd. (supra) inter alia observed that:"All payments by way of dividend have to be taxed in hands of the recipient of the dividend namely the share holder.… ... …. ….Consequently, the effect of clause (e) of Section2 (22) is to broaden the ambit of the expression dividend by including certain payments which the company has made by way of a loan or advance or payments made on behalf of or for the individual benefit of a share holder. The definition does not alter the legal position that dividend has to be taxed in the hands of the shareholder."10. Further, this Court in the case of CIT v. Impact Containers (P.) Ltd. [2014] 367 ITR 346 /225 Taxman 322 /48 taxmann.com 294 while dealing with the issue of deemed dividend categorically held that Section 2(220(e) of the Act cannot be applied/invoked where the assesee is not a shareholder of the leading company. The objective of Section 2(22)(e) of the Act is only to ensure that the Company in which the public are not substantially interested would not distribute its prosperity amongst shareholders by calling them the loan/ advances, as tax would be payable if the same were distributed as dividend.11. The submission on behalf of the Revenue made before us is that one has to look at the substance of the transaction and that if one looks at the substance, then the Respondent-Assessee would be chargeable to tax. This is not acceptable as fiscal status have to be interpreted strictly. We can do no better then meet the submission of the Revenue by inviting attention to the decision of the Supreme Court in CIT v. Vatika Township (P.) Ltd. [2014] 367 ITR 466 /227 Taxman 121 /49 taxmann.com 249 wherein it has been observed as under:—41.2:- At the same time, it is also mandated that there cannot be imposition of any tax without the authority of law. Such a law has to be unambiguous and should prescribe the liability to pay taxes in clear terms. If the provision concerned of the taxing statue is ambiguous and vague and as susceptible to two interpretations, the interpretation which favours the subjects, as against the Revenue, has to be preferred. This is a well-established principle of statutory interpretation, to help finding out as to whether particular category of assessee is to pay a particular tax or not. No doubt, with the application of this principle, the courts make endeavour to find out the intention of the legislature. At the same time, this very principle is based on "fairness" doctrine as it lays down that if it is not very clear from the provisions of the Act as to whether the particular tax is to be levied to a particular class of persons or not, the subject should not be fastened with any liability to pay tax. This principle also acts as a balancing factor between the two jurisprudential theories of justice - Libertarian theory on the one hand and Kantian theory along with Egalitarian theory propounded by John Rawls on the other hand.41.3 Tax laws are clearly in derogation of personal rights and property interests and are, therefore, subject to strict construction, and any ambiguity must be resolved against imposition of the tax.…. …. …. ….41.4 Again as United States v. Merraim, the Supreme Court clearly stated at US pp. 187.88" On behalf of the Government it is urged that taxation is a practical matter and concerns itself with the substance of the thing upon which the tax is imposed, rather than with legal forms or expressions. But in statutes levying taxes the literal meaning of the words employed is most important, for such statutes are not to be extended by implication beyond the clear impost of the language used. If the words are doubtful, the doubt must be resolved against the Government and in favour of the taxpayer. Gould v. Gould L Ed p. 213: Usp 153.41.5 As Lord Carins said many years ago in Partington v. Attorne General (LR p. 122)".... as I understand the principle of all fiscal legislation it is this: if the person sought to be taxed comes within the letter of the law he must be taxed, however great the hardship may appear to the judicial mind to be. On the other hand, if the Crown, seeking to recover the tax, cannot bring the subject within the letter of the law, the subject is free, however, apparently within the spirit of the law the case might otherwise appear to be."Thus on strict interpretation of Section 2(22)(e) of the Act, unless the Respondent-Assessee is the shareholder of the company lending him money, no occasion to apply it can arise.12. In the present facts, it is an admitted position that Respondent-Assessee is not a shareholder of M/s. NS Fincon Pvt. Ltd. from whom he has received loan. Therefore, no fault can be found with the decision of the Tribunal in having followed the decision of the High Court in Universal Medicare (P.) Ltd. (supra). This view has been further reiterated by another Division Bench of this Court in Impact Containers (P.) Ltd. (supra) rendered on 4th July, 2014.13. We are of the view that as the issue raised by the Revenue stands concluded by the order of this Court, no substantial question of law arises for our consideration.
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12. In the present facts, it is an admitted position thatis not a shareholder of M/s. NS Fincon Pvt. Ltd. from whom he has received loan. Therefore, no fault can be found with the decision of the Tribunal in having followed the decision of the High Court in Universal Medicare (P.) Ltd. (supra). This view has been further reiterated by another Division Bench of this Court in Impact Containers (P.) Ltd. (supra) rendered on 4th July, 2014.13. We are of the view that as the issue raised by the Revenue stands concluded by the order of this Court, no substantial question of law arises for our consideration.
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M/S. Jethmull Bhojraj Vs. State Of Bihar & Ors | Constitution. It is open to the appellant to seek such other remedy as may be available to him under law if the Government had unlawfully taken possession of those lands. The question whether the Government had unlawfully taken possession of those lands in 1954, as we shall presently see, is wholly irrelevant for the decision of these appeals.10. The next point that arises for decision is whether delivery of the lands notified for acquisition was taken under Secton 17 (1) as contended by the appellant. The Government becomes the owner of the lands notified for acquisition only when the Collector takes possession of those lands either under Section 16 or under Sec. 17 (1). Both those provisions provide that when the Collector takes possession under those provisions the lands notified for acquisition shall vest absolutely in the Government free from all encumbrances. Until and unless possession is taken under either of those provisions, the lands notified for acquisition do not vest in the Government. Section 48 (1) of the Act provides:"Except in the case provided for in Section 36, the Government shall be at liberty to withdraw from the acquisition of any lands of which possession has not been taken."11. Section 36 is not relevant for our present purpose. Possession referred to in Section 48 necessarily is the possession taken either under Section 16 or under Section 17 (1). Section 17 (1) says:"In cases of urgency, whenever the appropriate Government so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in Section 9 sub-section (1), take possession of any waste or arable land needed for public purposes or for a Company. Such land shall thereupon vest absolutely in the Government free from all encumbrances."12. Ordinarily possession of any land notified for acquisition is taken when the Collector has made an award under Section 11 and not before it. But an exception is provided under Section 17 (1). In cases of urgency, if the Government so directs, the Collector may, though no award has been made under Section 11, on the expiration of the 15 days from the publication of the notice mentioned in S. 9 (1) take possession of any waste or arable land and the land shall thereupon vest absolutely with the Government free from all encumbrances. From this provision, it is plain that the Collector cannot take possession of the land in question unless the Government directs him to do so. The Government directs him to do so only in cases of urgency. Even when the Government directs the Collector to take possession, he cannot do so until expiration of 15 days from the publication of a notice under Section 9 (1). There is no material on record to show that the Government had given to the Collector any direction under Section 17 (1); nor is there any material to show that the lands in question had been taken possession of by the Collector under Section 17 (1).It is true that in the order-sheet maintained by the Land Acquisition Officer, a note was made on October 17, 1959:"Shri B. P. Yadav Kgo, to deliver possession at the spot to the representative of the R. O. on 16-11-59 Draft addressed to R. O. is signed."But there is nothing to show that this order was implemented. According to the respondent this order was not implemented.13. Relying on the decision of this Court in Lt. Governor of Himachal Pradesh v. Avinash Sharma, (1971) 1 SCR 413 = (AIR 1970 SC 1576 ) it was contended by Mr. R. K. Garg, the learned Counsel for the appellant that once it is established that the possession of the land notified for acquisition was taken in 1953 or 1954, it was unnecessary for his client to establish that any possession was taken under Section 17 (1). According to him on the expiration of 15 days after the issue of notices under Section 9 (1), the lands in question vested in the Government. The decision in question does not lend any support for this contention. In that case not only the property had been taken possession of by the Government even before the acquisition proceedings had started but appropriate proceedings under Section 9 (1) and Section 17 (1) were also taken though there was no actual taking of possession under Section 17 (1). Under those circumstances this Court observed:"In the present case a notification under Section 17 (1) and (4) was issued by the State Government and possession which had previously been taken must, from the date of expiry of fifteen days from the publication of the notice under Section 9 (1), be deemed to be the possession of the Government."14. In the present case, as mentioned earlier, no material has been placed before the Court to show that action under Section 17 (1) had been taken.15. It was next contended by Mr. Garg and Mr. A. K. Sen, that the expression whenever the appropriate Government so directs" in Sec. 17 (1) refers to urgency and not to the taking of possession of the lands notified for acquisition. Their further contention was that no sooner the Government issued the notification under S. 17 (4), the factum of urgency was established and hence on the expiration of the fifteen days from the publication of notice under Section 9 (1) the lands which were already in the possession of the Government vested in the Government. We are unable to accept this construction of Section 17(1). In our judgment Section 17 (1) is plain and unambigious. The expression "whenever the appropriate Government so directs" in that section refers to the taking of possession and not to the declaration of urgency. Even in cases of urgency, the Government may not think it necessary to take immediate possession for good reasons. Neither the language of Section 17 (1) nor public interest justifies the construction sought to be placed by the learned Counsel for the appellant. | 0[ds]7. Now coming to the question whether the Government took possession of the lands in question in 1954, it was conceded that the Government was not competent to take possession of those lands either under the notifications issued under Sections 14 and 21 of the Bihar Private Forest Act 1947 or under the notification issued under Section 29 of the Indian Forest Act. The case of the appellant is that the Government unlawfully took possession of the properties. In support of that contention reliance was mainly placed on the letter written by the Divisional Forest Officer, Kodarma Division to the Range Officer, Kodarma on October 1, 1958 as well as on the requisition sent to the Land Acquisition Officer by the same Officer on January 24, 1959 (Annexure II). The concerned Divisional Forest Officer was one Brij Mohan Prasad. In the letter in question heforests in the above villages are in possession of the Forest Department since some time past........." In the requisition again, he mentioned:"The land was previously notified under Section 29 (3) of the I. F. A. and it was demarcated and possession taken. Later on it was found that the land in question was raiyati, it was necessary to acquire under the Land AcquisitionPara 12 of that requisition, he furtheris already under possession and this is to be formally handed over immediately.This Officer has filed an affidavit before the High Court. Therein he explained that he made the statement in question under an erroneous impression that the Government came into possession of the lands in question in view of the notification issued under Section 29 of the Indian Forest Act. This statement of his receives support from his letter written to the Land Acquisition Officer on August 11, 1959 wherein hereference to your above letters, I have to say that Debipur Forest was notified under the Indian Forest Act on 8th December, 1953 and that of Telaiya on the 22nd November 1954. Thus, date of possession is 8th December, 1953 and 22nd November 1954 respectively.It is possible that this officer had an erroneous impression as to the effect of a notification under Section 29 of the Indian Forest Act. The other documents relied on by the appellant are wholly inconclusive. Hence there is no need to refer to them. We are in agreement with the High Court that there is no satisfactory evidence to show that the Government had taken possession of these lands in 1953 or 1954. As the parties had not enough opportunity to adduce evidence on this point, we will not be justified in finally deciding this question. It is sufficient if we say that on the material on record, the High Court was justified in not pronouncing on this question in a petition under Article 226 of the Constitution. It is open to the appellant to seek such other remedy as may be available to him under law if the Government had unlawfully taken possession of those lands. The question whether the Government had unlawfully taken possession of those lands in 1954, as we shall presently see, is wholly irrelevant for the decision of theseGovernment becomes the owner of the lands notified for acquisition only when the Collector takes possession of those lands either under Section 16 or under Sec. 17 (1). Both those provisions provide that when the Collector takes possession under those provisions the lands notified for acquisition shall vest absolutely in the Government free from all encumbrances. Until and unless possession is taken under either of those provisions, the lands notified for acquisition do not vest in the Government. Section 48 (1) of the Actin the case provided for in Section 36, the Government shall be at liberty to withdraw from the acquisition of any lands of which possession has not been taken.Section 36 is not relevant for our present purpose. Possession referred to in Section 48 necessarily is the possession taken either under Section 16 or under Section 17 (1). Section 17 (1)cases of urgency, whenever the appropriate Government so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in Section 9 sub-section (1), take possession of any waste or arable land needed for public purposes or for a Company. Such land shall thereupon vest absolutely in the Government free from all encumbrances.Ordinarily possession of any land notified for acquisition is taken when the Collector has made an award under Section 11 and not before it. But an exception is provided under Section 17 (1). In cases of urgency, if the Government so directs, the Collector may, though no award has been made under Section 11, on the expiration of the 15 days from the publication of the notice mentioned in S. 9 (1) take possession of any waste or arable land and the land shall thereupon vest absolutely with the Government free from all encumbrances. From this provision, it is plain that the Collector cannot take possession of the land in question unless the Government directs him to do so. The Government directs him to do so only in cases of urgency. Even when the Government directs the Collector to take possession, he cannot do so until expiration of 15 days from the publication of a notice under Section 9 (1). There is no material on record to show that the Government had given to the Collector any direction under Section 17 (1); nor is there any material to show that the lands in question had been taken possession of by the Collector under Section 17 (1).It is true that in the order-sheet maintained by the Land Acquisition Officer, a note was made on October 17,B. P. Yadav Kgo, to deliver possession at the spot to the representative of the R. O. on 16-11-59 Draft addressed to R. O. is signed.In the present case, as mentioned earlier, no material has been placed before the Court to show that action under Section 17 (1) had been taken.15. It was next contended by Mr. Garg and Mr. A. K. Sen, that the expression whenever the appropriate Government so directs" in Sec. 17 (1) refers to urgency and not to the taking of possession of the lands notified for acquisition. Their further contention was that no sooner the Government issued the notification under S. 17 (4), the factum of urgency was established and hence on the expiration of the fifteen days from the publication of notice under Section 9 (1) the lands which were already in the possession of the Government vested in the Government. We are unable to accept this construction of Section 17(1). In our judgment Section 17 (1) is plain and unambigious. The expression "whenever the appropriate Government so directs" in that section refers to the taking of possession and not to the declaration of urgency. Even in cases of urgency, the Government may not think it necessary to take immediate possession for good reasons. Neither the language of Section 17 (1) nor public interest justifies the construction sought to be placed by the learned Counsel for the appellant. | 0 | 2,443 | 1,321 | ### Instruction:
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Constitution. It is open to the appellant to seek such other remedy as may be available to him under law if the Government had unlawfully taken possession of those lands. The question whether the Government had unlawfully taken possession of those lands in 1954, as we shall presently see, is wholly irrelevant for the decision of these appeals.10. The next point that arises for decision is whether delivery of the lands notified for acquisition was taken under Secton 17 (1) as contended by the appellant. The Government becomes the owner of the lands notified for acquisition only when the Collector takes possession of those lands either under Section 16 or under Sec. 17 (1). Both those provisions provide that when the Collector takes possession under those provisions the lands notified for acquisition shall vest absolutely in the Government free from all encumbrances. Until and unless possession is taken under either of those provisions, the lands notified for acquisition do not vest in the Government. Section 48 (1) of the Act provides:"Except in the case provided for in Section 36, the Government shall be at liberty to withdraw from the acquisition of any lands of which possession has not been taken."11. Section 36 is not relevant for our present purpose. Possession referred to in Section 48 necessarily is the possession taken either under Section 16 or under Section 17 (1). Section 17 (1) says:"In cases of urgency, whenever the appropriate Government so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in Section 9 sub-section (1), take possession of any waste or arable land needed for public purposes or for a Company. Such land shall thereupon vest absolutely in the Government free from all encumbrances."12. Ordinarily possession of any land notified for acquisition is taken when the Collector has made an award under Section 11 and not before it. But an exception is provided under Section 17 (1). In cases of urgency, if the Government so directs, the Collector may, though no award has been made under Section 11, on the expiration of the 15 days from the publication of the notice mentioned in S. 9 (1) take possession of any waste or arable land and the land shall thereupon vest absolutely with the Government free from all encumbrances. From this provision, it is plain that the Collector cannot take possession of the land in question unless the Government directs him to do so. The Government directs him to do so only in cases of urgency. Even when the Government directs the Collector to take possession, he cannot do so until expiration of 15 days from the publication of a notice under Section 9 (1). There is no material on record to show that the Government had given to the Collector any direction under Section 17 (1); nor is there any material to show that the lands in question had been taken possession of by the Collector under Section 17 (1).It is true that in the order-sheet maintained by the Land Acquisition Officer, a note was made on October 17, 1959:"Shri B. P. Yadav Kgo, to deliver possession at the spot to the representative of the R. O. on 16-11-59 Draft addressed to R. O. is signed."But there is nothing to show that this order was implemented. According to the respondent this order was not implemented.13. Relying on the decision of this Court in Lt. Governor of Himachal Pradesh v. Avinash Sharma, (1971) 1 SCR 413 = (AIR 1970 SC 1576 ) it was contended by Mr. R. K. Garg, the learned Counsel for the appellant that once it is established that the possession of the land notified for acquisition was taken in 1953 or 1954, it was unnecessary for his client to establish that any possession was taken under Section 17 (1). According to him on the expiration of 15 days after the issue of notices under Section 9 (1), the lands in question vested in the Government. The decision in question does not lend any support for this contention. In that case not only the property had been taken possession of by the Government even before the acquisition proceedings had started but appropriate proceedings under Section 9 (1) and Section 17 (1) were also taken though there was no actual taking of possession under Section 17 (1). Under those circumstances this Court observed:"In the present case a notification under Section 17 (1) and (4) was issued by the State Government and possession which had previously been taken must, from the date of expiry of fifteen days from the publication of the notice under Section 9 (1), be deemed to be the possession of the Government."14. In the present case, as mentioned earlier, no material has been placed before the Court to show that action under Section 17 (1) had been taken.15. It was next contended by Mr. Garg and Mr. A. K. Sen, that the expression whenever the appropriate Government so directs" in Sec. 17 (1) refers to urgency and not to the taking of possession of the lands notified for acquisition. Their further contention was that no sooner the Government issued the notification under S. 17 (4), the factum of urgency was established and hence on the expiration of the fifteen days from the publication of notice under Section 9 (1) the lands which were already in the possession of the Government vested in the Government. We are unable to accept this construction of Section 17(1). In our judgment Section 17 (1) is plain and unambigious. The expression "whenever the appropriate Government so directs" in that section refers to the taking of possession and not to the declaration of urgency. Even in cases of urgency, the Government may not think it necessary to take immediate possession for good reasons. Neither the language of Section 17 (1) nor public interest justifies the construction sought to be placed by the learned Counsel for the appellant.
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Later on it was found that the land in question was raiyati, it was necessary to acquire under the Land AcquisitionPara 12 of that requisition, he furtheris already under possession and this is to be formally handed over immediately.This Officer has filed an affidavit before the High Court. Therein he explained that he made the statement in question under an erroneous impression that the Government came into possession of the lands in question in view of the notification issued under Section 29 of the Indian Forest Act. This statement of his receives support from his letter written to the Land Acquisition Officer on August 11, 1959 wherein hereference to your above letters, I have to say that Debipur Forest was notified under the Indian Forest Act on 8th December, 1953 and that of Telaiya on the 22nd November 1954. Thus, date of possession is 8th December, 1953 and 22nd November 1954 respectively.It is possible that this officer had an erroneous impression as to the effect of a notification under Section 29 of the Indian Forest Act. The other documents relied on by the appellant are wholly inconclusive. Hence there is no need to refer to them. We are in agreement with the High Court that there is no satisfactory evidence to show that the Government had taken possession of these lands in 1953 or 1954. As the parties had not enough opportunity to adduce evidence on this point, we will not be justified in finally deciding this question. It is sufficient if we say that on the material on record, the High Court was justified in not pronouncing on this question in a petition under Article 226 of the Constitution. It is open to the appellant to seek such other remedy as may be available to him under law if the Government had unlawfully taken possession of those lands. The question whether the Government had unlawfully taken possession of those lands in 1954, as we shall presently see, is wholly irrelevant for the decision of theseGovernment becomes the owner of the lands notified for acquisition only when the Collector takes possession of those lands either under Section 16 or under Sec. 17 (1). Both those provisions provide that when the Collector takes possession under those provisions the lands notified for acquisition shall vest absolutely in the Government free from all encumbrances. Until and unless possession is taken under either of those provisions, the lands notified for acquisition do not vest in the Government. Section 48 (1) of the Actin the case provided for in Section 36, the Government shall be at liberty to withdraw from the acquisition of any lands of which possession has not been taken.Section 36 is not relevant for our present purpose. Possession referred to in Section 48 necessarily is the possession taken either under Section 16 or under Section 17 (1). Section 17 (1)cases of urgency, whenever the appropriate Government so directs, the Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in Section 9 sub-section (1), take possession of any waste or arable land needed for public purposes or for a Company. Such land shall thereupon vest absolutely in the Government free from all encumbrances.Ordinarily possession of any land notified for acquisition is taken when the Collector has made an award under Section 11 and not before it. But an exception is provided under Section 17 (1). In cases of urgency, if the Government so directs, the Collector may, though no award has been made under Section 11, on the expiration of the 15 days from the publication of the notice mentioned in S. 9 (1) take possession of any waste or arable land and the land shall thereupon vest absolutely with the Government free from all encumbrances. From this provision, it is plain that the Collector cannot take possession of the land in question unless the Government directs him to do so. The Government directs him to do so only in cases of urgency. Even when the Government directs the Collector to take possession, he cannot do so until expiration of 15 days from the publication of a notice under Section 9 (1). There is no material on record to show that the Government had given to the Collector any direction under Section 17 (1); nor is there any material to show that the lands in question had been taken possession of by the Collector under Section 17 (1).It is true that in the order-sheet maintained by the Land Acquisition Officer, a note was made on October 17,B. P. Yadav Kgo, to deliver possession at the spot to the representative of the R. O. on 16-11-59 Draft addressed to R. O. is signed.In the present case, as mentioned earlier, no material has been placed before the Court to show that action under Section 17 (1) had been taken.15. It was next contended by Mr. Garg and Mr. A. K. Sen, that the expression whenever the appropriate Government so directs" in Sec. 17 (1) refers to urgency and not to the taking of possession of the lands notified for acquisition. Their further contention was that no sooner the Government issued the notification under S. 17 (4), the factum of urgency was established and hence on the expiration of the fifteen days from the publication of notice under Section 9 (1) the lands which were already in the possession of the Government vested in the Government. We are unable to accept this construction of Section 17(1). In our judgment Section 17 (1) is plain and unambigious. The expression "whenever the appropriate Government so directs" in that section refers to the taking of possession and not to the declaration of urgency. Even in cases of urgency, the Government may not think it necessary to take immediate possession for good reasons. Neither the language of Section 17 (1) nor public interest justifies the construction sought to be placed by the learned Counsel for the appellant.
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Sunil Kr.Ghosh Vs. K.Ram Chandran | much relied on the order of the learned single Judge dated 08.10.2001, it is useful to refer to the directions made therein. While declining to interfere with the order of rejection made for reference, the learned single Judge of the High Court issued the following directions: "However, the petitioners shall be entitled to all retirement benefits with effect from the date of approval of the undertaking to Kitchen Appliances Ltd. and Philips India Limited shall pay all such retirement benefits payable to the employees within six months from this date. Such benefits will be given as per normal Rules and conditions of service including the retrenchment benefit. Such benefits shall be available to the employees upto the date of approval.With the aforesaid observations, this writ application is disposed of." 8) It is not in dispute that the order was passed by the learned single Judge on 08.10.2001 after hearing the counsel for the petitioners therein (Workers) and the respondent therein (Management) including the Government counsel. It is also not in dispute that the said order has become final since neither the Management nor the Government challenged the same before the Division Bench of the High Court or in this Court. 9) Now, let us consider whether the said order dated 08.10.2001 is acceptable or not. Inasmuch as while rejecting the challenge made to refer the matter for adjudication before the Labour Court/Tribunal, the learned single Judge, in order to protect and safeguard the interests of the workmen, issued such directions taking note of various aspects including several safeguards provided in the Act and also the payment of compensation in case of transfer of an undertaking. No doubt, the Management raised an objection that these workmen neither availed the VRS within the stipulated time nor retired/retrenched from the service due to the transfer of ownership of the Company. It is true that the appellants-workers did not avail both the conditions. But at the same time, it is not in dispute and it cannot be disputed that these workmen resorted to several remedies such as filing a suit, making representation to the Management as well as to the officers of the Labour Department for consultation and consideration and finally to the Government for referring the matter to the Labour Court/Tribunal for adjudication. After several attempts, these workmen filed Writ Petition before the High Court. The learned single Judge of the High Court has taken note of proposal for transfer between Philips India Ltd. and Workers Union and all other subsequent events including the fact that the Company launched VRS to its employees who did not opt to Kitchen Appliances India Ltd. After noting that the dispute was sought to be raised but the appropriate government declined to refer the same, the learned single Judge, after considering the rival contentions of the workmen and the Management, declined to interfere with the impugned order therein and dismissed the same. However, the learned single Judge, taking note of the fact that the workmen did not give their consent for change of management, issued a positive direction about the settlement of retirement benefits with effect from the date of approval of the undertaking to Kitchen Appliances Ltd. and directed the Company to pay all such retirement benefits payable to the employees as per normal rules and conditions of service including the retrenchment benefits within six months. We have already referred to the admitted fact that the said order was passed as early as on 08.10.2001 and has become final. 10) It is settled law that without consent, workmen cannot be forced to work under different management and in that event, those workmen are entitled to retirement/retrenchment compensation in terms of the Act. In view of the same, we are of the view that the workmen are entitled to the benefit of such direction and it is the obligation on the part of the Management- Philips India Ltd., to comply with the same. We are also satisfied that the learned single Judge was conscious of the fact that these workmen failed to avail the VRS within the stipulated time and also did not retire from the service. However, taking note of the fact that the workmen cannot be compelled to join the transferee company against their wish and without their consent and all along fighting for their cause in various forums such as Civil Court, Labour Court, the Government and the High Court and even in this Court, we are of the view that the learned single Judge was fully justified in passing such order. 11) A perusal of the directions passed by the learned single Judge leaves no room for doubt that a mandatory duty was cast upon respondent Nos. 1 & 2 to comply with the same. In such circumstances, it is highly improper on the part of the Management now to turn around and to contend that since the appellants-workmen had neither been retired nor resigned nor retrenched from service, as such, there is no question of any payment or to comply with the directions passed by the learned single Judge.12) The entire genesis of the contempt application pertains to violation of order dated 08.10.2001 passed by the learned single Judge of the High Court. We are satisfied that the said order was passed by the learned single Judge after hearing all the parties in the nature of mandatory directions to respondent Nos. 1 & 2. The High Court, in the impugned order, instead of dismissing the contempt application ought to have directed the respondents to implement the order dated 08.10.2001 passed by the learned single Judge. 13) In view of the above, we are satisfied that the appellants-workmen have made out a case for interference by this Court. Accordingly, we direct the respondent-Philips India Ltd. to comply with the directions made by the learned single Judge vide order dated 08.10.2001, which we have quoted in earlier paragraphs, within a period of three months from the date of the receipt of this judgment. 14) | 1[ds]A perusal of the directions passed by the learned single Judge leaves no room for doubt that a mandatory duty was cast upon respondent Nos. 1 & 2 to comply with the same. In such circumstances, it is highly improper on the part of the Management now to turn around and to contend that since the appellants-workmen had neither been retired nor resigned nor retrenched from service, as such, there is no question of any payment or to comply with the directions passed by the learned single Judge.12) The entire genesis of the contempt application pertains to violation of order dated 08.10.2001 passed by the learned single Judge of the High Court. We are satisfied that the said order was passed by the learned single Judge after hearing all the parties in the nature of mandatory directions to respondent Nos. 1 & 2. The High Court, in the impugned order, instead of dismissing the contempt application ought to have directed the respondents to implement the order dated 08.10.2001 passed by the learned singleare satisfied that the appellants-workmen have made out a case for interference by this Court. Accordingly, we direct the respondent-Philips India Ltd. to comply with the directions made by the learned single Judge vide order dated 08.10.2001, which we have quoted in earlier paragraphs, within a period of three months from the date of the receipt of this judgment. | 1 | 2,356 | 251 | ### Instruction:
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### Input:
much relied on the order of the learned single Judge dated 08.10.2001, it is useful to refer to the directions made therein. While declining to interfere with the order of rejection made for reference, the learned single Judge of the High Court issued the following directions: "However, the petitioners shall be entitled to all retirement benefits with effect from the date of approval of the undertaking to Kitchen Appliances Ltd. and Philips India Limited shall pay all such retirement benefits payable to the employees within six months from this date. Such benefits will be given as per normal Rules and conditions of service including the retrenchment benefit. Such benefits shall be available to the employees upto the date of approval.With the aforesaid observations, this writ application is disposed of." 8) It is not in dispute that the order was passed by the learned single Judge on 08.10.2001 after hearing the counsel for the petitioners therein (Workers) and the respondent therein (Management) including the Government counsel. It is also not in dispute that the said order has become final since neither the Management nor the Government challenged the same before the Division Bench of the High Court or in this Court. 9) Now, let us consider whether the said order dated 08.10.2001 is acceptable or not. Inasmuch as while rejecting the challenge made to refer the matter for adjudication before the Labour Court/Tribunal, the learned single Judge, in order to protect and safeguard the interests of the workmen, issued such directions taking note of various aspects including several safeguards provided in the Act and also the payment of compensation in case of transfer of an undertaking. No doubt, the Management raised an objection that these workmen neither availed the VRS within the stipulated time nor retired/retrenched from the service due to the transfer of ownership of the Company. It is true that the appellants-workers did not avail both the conditions. But at the same time, it is not in dispute and it cannot be disputed that these workmen resorted to several remedies such as filing a suit, making representation to the Management as well as to the officers of the Labour Department for consultation and consideration and finally to the Government for referring the matter to the Labour Court/Tribunal for adjudication. After several attempts, these workmen filed Writ Petition before the High Court. The learned single Judge of the High Court has taken note of proposal for transfer between Philips India Ltd. and Workers Union and all other subsequent events including the fact that the Company launched VRS to its employees who did not opt to Kitchen Appliances India Ltd. After noting that the dispute was sought to be raised but the appropriate government declined to refer the same, the learned single Judge, after considering the rival contentions of the workmen and the Management, declined to interfere with the impugned order therein and dismissed the same. However, the learned single Judge, taking note of the fact that the workmen did not give their consent for change of management, issued a positive direction about the settlement of retirement benefits with effect from the date of approval of the undertaking to Kitchen Appliances Ltd. and directed the Company to pay all such retirement benefits payable to the employees as per normal rules and conditions of service including the retrenchment benefits within six months. We have already referred to the admitted fact that the said order was passed as early as on 08.10.2001 and has become final. 10) It is settled law that without consent, workmen cannot be forced to work under different management and in that event, those workmen are entitled to retirement/retrenchment compensation in terms of the Act. In view of the same, we are of the view that the workmen are entitled to the benefit of such direction and it is the obligation on the part of the Management- Philips India Ltd., to comply with the same. We are also satisfied that the learned single Judge was conscious of the fact that these workmen failed to avail the VRS within the stipulated time and also did not retire from the service. However, taking note of the fact that the workmen cannot be compelled to join the transferee company against their wish and without their consent and all along fighting for their cause in various forums such as Civil Court, Labour Court, the Government and the High Court and even in this Court, we are of the view that the learned single Judge was fully justified in passing such order. 11) A perusal of the directions passed by the learned single Judge leaves no room for doubt that a mandatory duty was cast upon respondent Nos. 1 & 2 to comply with the same. In such circumstances, it is highly improper on the part of the Management now to turn around and to contend that since the appellants-workmen had neither been retired nor resigned nor retrenched from service, as such, there is no question of any payment or to comply with the directions passed by the learned single Judge.12) The entire genesis of the contempt application pertains to violation of order dated 08.10.2001 passed by the learned single Judge of the High Court. We are satisfied that the said order was passed by the learned single Judge after hearing all the parties in the nature of mandatory directions to respondent Nos. 1 & 2. The High Court, in the impugned order, instead of dismissing the contempt application ought to have directed the respondents to implement the order dated 08.10.2001 passed by the learned single Judge. 13) In view of the above, we are satisfied that the appellants-workmen have made out a case for interference by this Court. Accordingly, we direct the respondent-Philips India Ltd. to comply with the directions made by the learned single Judge vide order dated 08.10.2001, which we have quoted in earlier paragraphs, within a period of three months from the date of the receipt of this judgment. 14)
### Response:
1
### Explanation:
A perusal of the directions passed by the learned single Judge leaves no room for doubt that a mandatory duty was cast upon respondent Nos. 1 & 2 to comply with the same. In such circumstances, it is highly improper on the part of the Management now to turn around and to contend that since the appellants-workmen had neither been retired nor resigned nor retrenched from service, as such, there is no question of any payment or to comply with the directions passed by the learned single Judge.12) The entire genesis of the contempt application pertains to violation of order dated 08.10.2001 passed by the learned single Judge of the High Court. We are satisfied that the said order was passed by the learned single Judge after hearing all the parties in the nature of mandatory directions to respondent Nos. 1 & 2. The High Court, in the impugned order, instead of dismissing the contempt application ought to have directed the respondents to implement the order dated 08.10.2001 passed by the learned singleare satisfied that the appellants-workmen have made out a case for interference by this Court. Accordingly, we direct the respondent-Philips India Ltd. to comply with the directions made by the learned single Judge vide order dated 08.10.2001, which we have quoted in earlier paragraphs, within a period of three months from the date of the receipt of this judgment.
|
The Commissioner of Income Vs. M/S. Diageo India Private Limited | to the extent of 1/5th of the amount claimed, being a sum of Rs.7,93,355/- in the current Assessment Year and the balance in the next immediately four succeeding years. Thereafter, the Assessing Officer went on to hold that since the business of the Assessee qua its manufacturing facility located at Nira, Pune had been sold / transferred and the manufacturing business of the Assessee in relation to the Indian made foreign liquor had ceased, the Assessee was not entitled to the said deduction even under the provisions of section 35DDA, as these expenses were not incurred for carrying on the business of the Assessee. 4. Being aggrieved by the order of the Assessing Officer dated 29th December 2006, the Assessee preferred an Appeal before the CIT (Appeals) who, by his order dated 7th January 2010, confirmed the findings of the Assessing Officer with reference to the disallowance of the deduction of Rs.39,66,774/- incurred by the Assessee on account of severance pay. 5. Being dissatisfied with the order of the CIT (Appeals), the Assessee approached the ITAT. After considering the entire factual matrix, the ITAT at paragraph 9 of its order observes thus:-9. Having heard the rival contentions and having perused the material on record, we are inclined to hold that expenditure on severance pay is a revenue expenditure for the simple reason that the authorities below have proceeded on the fallacious assumption that the payment of severance pay is an expenditure connected with closing down of business, whereas not only assessee continues to carry on the business, but he does so more efficiently, by outsourcing the production of alcoholic beverages. The expenditure incurred on this restructuring of business model, in our humble understanding, cannot be treated at par with expenses on closing down the business. The judicial precedents cited by the authorities below deal with the situations where business was being closed down. That is not the case before us. In this view of the matter, the judicial precedents cited by the authorities below are not really decisive of the issue in appeal before us. In our considered view, the payments for severance pay, in a situation in which employees are being paid these amounts due to change in the business model and the assessee continues to remain in the same business even after these payments, are normally deductible under section 37(1) of the Act. However, overriding provisions of section 35DDA(1) w.e.f. 1st April 2001 specifically provide that where an assessee incurs any expenditure in any previous year by way of payment of any sum to an employee in connection with his voluntary retirement, in accordance with any scheme or schemes of voluntary retirement, one-fifth of the amount so paid shall be deducted in computing the profits and gains of the business for that previous year, and the balance shall be deducted in equal installments for each of the four immediately succeeding previous years and section 35DDA(6) further provides that no deduction shall be allowed in respect of the expenditure mentioned in sub-section (1) under any other provision of this Act. In effect thus, as long as a payment is within the scope of section 35DDA(1), it cannot be allowed as a deduction under section 37(1). The scope of section 35DDA(1) is fairly wide as it covers not only a VRS payment in accordance with an approved scheme, but also any payment made to the employee in connection with his voluntary retirement whether or not in terms of the provisions of Rule 2 BA. There cannot be a dispute that the sum paid to the employees, in essence, is a payment in connection with their voluntary retirement. In this view of the matter, even though the amount paid to the employees is a revenue expenditure, it is required to be amortized nevertheless under section 35DDA of the Act. We, therefore, hold that only one fifth of the expenditure on severance pay was allowable in this assessment year. The assessee will, however, get deductions of same amount in each of the four subsequent assessment years as well.6. On the perusal of the said paragraph, it is clear that the ITAT being the last and the highest fact finding authority under the Act, has rendered a categorical finding that:-i) the Assessee continues its business;ii) it does so more efficiently by outsourcing the production of alcoholic beverages andiii) expenditure incurred on restructuring of its business cannot be treated at par with expenditure incurred for closing down the business.7. In view thereof and in our opinion rightly, the ITAT held that the Assessee would be entitled to the deduction of Rs.39,66,774/- in relation to severance pay. However, the ITAT further held that the Assessee would not be entitled to the said deduction under section 37(1) of the Act but under section 35DDA thereof. It is in the light of the provisions of section 35DDA that the ITAT held that the deduction claimed by the Assessee of Rs.39,66,774/- will have to be amortized under section 35DDA and only 1/5th of the expenditure was allowable in the current assessment year and the Assessee would be entitled to deduction of the same amount in each of the four subsequent assessment years as well. Not only are we in agreement with the findings of the ITAT but under no circumstances can it be contended that the said findings are vitiated on the ground of perversity or error apparent on the face of the record requiring our interference in this Appeal. It is important to note that it is only on the ground that the manufacturing activity of the Assessee had ceased that the Assessing Officer disallowed the said deduction. Even the Assessing Officer came to a finding that otherwise this deduction would be allowable to the Assessee Company under the provisions of section 35DDA of the Act. As noted above, this finding of the Assessing Officer and the CIT (Appeals) regarding closure of business of the Assessee Company has been reversed by the ITAT in the impugned order. | 1[ds]6. On the perusal of the said paragraph, it is clear that the ITAT being the last and the highest fact finding authority under the Act, has rendered a categorical findingthe Assessee continues its business;ii) it does so more efficiently by outsourcing the production of alcoholic beverages andiii) expenditure incurred on restructuring of its business cannot be treated at par with expenditure incurred for closing down the business.7. In view thereof and in our opinion rightly, the ITAT held that the Assessee would be entitled to the deduction of Rs.39,66,774/in relation to severance pay. However, the ITAT further held that the Assessee would not be entitled to the said deduction under section 37(1) of the Act but under section 35DDA thereof. It is in the light of the provisions of section 35DDA that the ITAT held that the deduction claimed by the Assessee of Rs.39,66,774/will have to be amortized under section 35DDA and only 1/5th of the expenditure was allowable in the current assessment year and the Assessee would be entitled to deduction of the same amount in each of the four subsequent assessment years as well. Not only are we in agreement with the findings of the ITAT but under no circumstances can it be contended that the said findings are vitiated on the ground of perversity or error apparent on the face of the record requiring our interference in this Appeal. It is important to note that it is only on the ground that the manufacturing activity of the Assessee had ceased that the Assessing Officer disallowed the said deduction. Even the Assessing Officer came to a finding that otherwise this deduction would be allowable to the Assessee Company under the provisions of section 35DDA of the Act. As noted above, this finding of the Assessing Officer and the CIT (Appeals) regarding closure of business of the Assessee Company has been reversed by the ITAT in the impugned order. In view thereof, there is no justification for denying the said deduction to the Assessee Company and granting the same as per the provisions of section 35DDA of the Act. In this view of the matter, the order of the ITAT cannot be faulted on any ground. | 1 | 1,581 | 401 | ### 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:
to the extent of 1/5th of the amount claimed, being a sum of Rs.7,93,355/- in the current Assessment Year and the balance in the next immediately four succeeding years. Thereafter, the Assessing Officer went on to hold that since the business of the Assessee qua its manufacturing facility located at Nira, Pune had been sold / transferred and the manufacturing business of the Assessee in relation to the Indian made foreign liquor had ceased, the Assessee was not entitled to the said deduction even under the provisions of section 35DDA, as these expenses were not incurred for carrying on the business of the Assessee. 4. Being aggrieved by the order of the Assessing Officer dated 29th December 2006, the Assessee preferred an Appeal before the CIT (Appeals) who, by his order dated 7th January 2010, confirmed the findings of the Assessing Officer with reference to the disallowance of the deduction of Rs.39,66,774/- incurred by the Assessee on account of severance pay. 5. Being dissatisfied with the order of the CIT (Appeals), the Assessee approached the ITAT. After considering the entire factual matrix, the ITAT at paragraph 9 of its order observes thus:-9. Having heard the rival contentions and having perused the material on record, we are inclined to hold that expenditure on severance pay is a revenue expenditure for the simple reason that the authorities below have proceeded on the fallacious assumption that the payment of severance pay is an expenditure connected with closing down of business, whereas not only assessee continues to carry on the business, but he does so more efficiently, by outsourcing the production of alcoholic beverages. The expenditure incurred on this restructuring of business model, in our humble understanding, cannot be treated at par with expenses on closing down the business. The judicial precedents cited by the authorities below deal with the situations where business was being closed down. That is not the case before us. In this view of the matter, the judicial precedents cited by the authorities below are not really decisive of the issue in appeal before us. In our considered view, the payments for severance pay, in a situation in which employees are being paid these amounts due to change in the business model and the assessee continues to remain in the same business even after these payments, are normally deductible under section 37(1) of the Act. However, overriding provisions of section 35DDA(1) w.e.f. 1st April 2001 specifically provide that where an assessee incurs any expenditure in any previous year by way of payment of any sum to an employee in connection with his voluntary retirement, in accordance with any scheme or schemes of voluntary retirement, one-fifth of the amount so paid shall be deducted in computing the profits and gains of the business for that previous year, and the balance shall be deducted in equal installments for each of the four immediately succeeding previous years and section 35DDA(6) further provides that no deduction shall be allowed in respect of the expenditure mentioned in sub-section (1) under any other provision of this Act. In effect thus, as long as a payment is within the scope of section 35DDA(1), it cannot be allowed as a deduction under section 37(1). The scope of section 35DDA(1) is fairly wide as it covers not only a VRS payment in accordance with an approved scheme, but also any payment made to the employee in connection with his voluntary retirement whether or not in terms of the provisions of Rule 2 BA. There cannot be a dispute that the sum paid to the employees, in essence, is a payment in connection with their voluntary retirement. In this view of the matter, even though the amount paid to the employees is a revenue expenditure, it is required to be amortized nevertheless under section 35DDA of the Act. We, therefore, hold that only one fifth of the expenditure on severance pay was allowable in this assessment year. The assessee will, however, get deductions of same amount in each of the four subsequent assessment years as well.6. On the perusal of the said paragraph, it is clear that the ITAT being the last and the highest fact finding authority under the Act, has rendered a categorical finding that:-i) the Assessee continues its business;ii) it does so more efficiently by outsourcing the production of alcoholic beverages andiii) expenditure incurred on restructuring of its business cannot be treated at par with expenditure incurred for closing down the business.7. In view thereof and in our opinion rightly, the ITAT held that the Assessee would be entitled to the deduction of Rs.39,66,774/- in relation to severance pay. However, the ITAT further held that the Assessee would not be entitled to the said deduction under section 37(1) of the Act but under section 35DDA thereof. It is in the light of the provisions of section 35DDA that the ITAT held that the deduction claimed by the Assessee of Rs.39,66,774/- will have to be amortized under section 35DDA and only 1/5th of the expenditure was allowable in the current assessment year and the Assessee would be entitled to deduction of the same amount in each of the four subsequent assessment years as well. Not only are we in agreement with the findings of the ITAT but under no circumstances can it be contended that the said findings are vitiated on the ground of perversity or error apparent on the face of the record requiring our interference in this Appeal. It is important to note that it is only on the ground that the manufacturing activity of the Assessee had ceased that the Assessing Officer disallowed the said deduction. Even the Assessing Officer came to a finding that otherwise this deduction would be allowable to the Assessee Company under the provisions of section 35DDA of the Act. As noted above, this finding of the Assessing Officer and the CIT (Appeals) regarding closure of business of the Assessee Company has been reversed by the ITAT in the impugned order.
### Response:
1
### Explanation:
6. On the perusal of the said paragraph, it is clear that the ITAT being the last and the highest fact finding authority under the Act, has rendered a categorical findingthe Assessee continues its business;ii) it does so more efficiently by outsourcing the production of alcoholic beverages andiii) expenditure incurred on restructuring of its business cannot be treated at par with expenditure incurred for closing down the business.7. In view thereof and in our opinion rightly, the ITAT held that the Assessee would be entitled to the deduction of Rs.39,66,774/in relation to severance pay. However, the ITAT further held that the Assessee would not be entitled to the said deduction under section 37(1) of the Act but under section 35DDA thereof. It is in the light of the provisions of section 35DDA that the ITAT held that the deduction claimed by the Assessee of Rs.39,66,774/will have to be amortized under section 35DDA and only 1/5th of the expenditure was allowable in the current assessment year and the Assessee would be entitled to deduction of the same amount in each of the four subsequent assessment years as well. Not only are we in agreement with the findings of the ITAT but under no circumstances can it be contended that the said findings are vitiated on the ground of perversity or error apparent on the face of the record requiring our interference in this Appeal. It is important to note that it is only on the ground that the manufacturing activity of the Assessee had ceased that the Assessing Officer disallowed the said deduction. Even the Assessing Officer came to a finding that otherwise this deduction would be allowable to the Assessee Company under the provisions of section 35DDA of the Act. As noted above, this finding of the Assessing Officer and the CIT (Appeals) regarding closure of business of the Assessee Company has been reversed by the ITAT in the impugned order. In view thereof, there is no justification for denying the said deduction to the Assessee Company and granting the same as per the provisions of section 35DDA of the Act. In this view of the matter, the order of the ITAT cannot be faulted on any ground.
|
Debabrata Saha Vs. Serampore Municipality & Ors | on the complaints preferred, the Appellant filed a Writ Petition before the High Court of Calcutta alleging inaction on the part of the Municipal Corporation in taking appropriate steps. The Writ Petition was disposed of by the High Court with a direction to the Board of Councilors (for short the Board of Councilors, Serampore Municipality) to consider the representations made by the Appellant on 31.12.2003 and 14.07.2004 within a period of four weeks from the date of communication of the order. In the meeting of the Board held on 14.02.2006, it was decided that the permission for construction on the second floor was obtained by Respondent No.3 on the basis of misrepresentation of facts. Thereafter, an order was passed by the Chairman, Board of Councilors, Serampore Municipality revoking the sanctioned plan in favour of Respondent No.3. Being aggrieved by the municipal authorities in not taking action to demolish the illegal construction which was made pursuant to the revocation of the sanctioned plan, the Appellant filed another Writ Petition seeking a direction to the authorities of the municipal corporation to take appropriate action to demolish the construction. The said Writ Petition was disposed of by the High Court directing the municipal corporation to initiate proceedings under Section 218 of the West Bengal Municipal Act, 1996 (for short the Act) for demolition of the illegal construction and to pass a reasoned order after giving a reasonable opportunity to all concerned. By way of implementation of the order of the High Court, a letter was issued by the municipal corporation to Respondent No.3 to remove the structure on the second floor. 2. Respondent No.3 filed a Writ Petition challenging cancellation of the building plan by the municipal authorities. A learned Single Judge of the High Court disposed of the Writ Petition and relegated Respondent No.3 to an alternate remedy of Appeal. Respondent No.3 filed an Appeal against the order of the learned Single Judge which was allowed by the Division Bench of the Calcutta High Court. Therefore, this Appeal. 3. The High Court was of the opinion that the Board of Councilors did not hear the matter and did not take a decision as required under Section 217 of the Act. After perusing the records produced by the Municipal Corporation, the High Court found that the Chairman of the Board of Councilors heard the matter on 27.12.2005 in the Municipal Office when the Appellant, Respondent No.3 and two other gentlemen i.e. Shri Avijit Saha and Shri Amitava Dey were present. The Board of Councilors is the competent authority under Section 217 of the Act, to decide any dispute on the issue of misrepresentation or fraudulent statement in the application seeking sanction of building plan, for the purpose of passing an appropriate order to cancel such sanction. The decision of the Chairman on 14.02.2006 was held to be without jurisdiction. In consequence thereof, the decision dated 14.02.2006 was declared a nullity and set aside by the High Court. While referring to the deed of conveyance, the High Court held that the Appellant had a right to use the roof of first floor and the roof of proposed second floor. The High Court opined that the dispute raised by the Appellant cannot be decided by the municipality in terms of Section 217 of the Act and it requires adjudication by a civil court. While leaving it open to the parties to approach civil court to redress their grievances, the High Court dismissed the Writ Application filed by the Appellant. 4. We have heard Mr. S.K. Bhattacharya, learned counsel appearing for the Appellant, and Mr. Ranjan Mukherjee, learned counsel appearing for Respondent No.2. By relying upon the Minutes of Meeting dated 27.12.2005 of the Board of Councilors, Serampore Municipality, the learned counsel for the Appellant argued that the Chairman, Vice Chairman and three other Members of the Council were present at the meeting during which a decision was taken that Respondent No.3 had obtained permission for construction on the second floor by misrepresentation and suppression of facts. On the other hand, learned counsel for the Respondent argued that there is no ambiguity in Section 217 of the Act by which a decision has to be taken by the municipal council and not by the Chairman of the Municipality. We have perused the Minutes of Meeting dated 27.12.2005. The learned counsel for the Respondent is right in submitting that the Chairman, Vice-Chairman and three other Members of the Municipal Corporation were present in the meeting. However, in the said meeting a decision was taken to recommend for appropriate action under Section 217 of the Act and for a reasoned order to be passed after the meeting of the Board of Councilors. It is not in dispute that, thereafter, the order dated 14.02.2006 was passed by the Chairman of the Serampore Municipality. The High Court is right in holding that the order dated 14.02.2006 passed by the Chairman of the Serampore Municipality is without jurisdiction. There is no error committed by the High Court in holding that the order dated 05.06.2006 by which action was directed to be initiated under Section 218 of the Act for demolition of the structure does not survive as the basis of the said order was the order dated 14.02.2006 passed by the Municipality. 5. We have perused the sale deed dated 14.08.2002 by which the Appellant had purchased the ground floor of the property in dispute. The conveyance relates to the ground floor of the two-storied building admeasuring a covered area of 950 square feet. The Appellant was permitted to use the common stair case, septic tank, open yard, separate water reservoir in common portion common passages, common drain in the ground floor along with roof right. The dispute pertains to the right of Respondent No.3 in making a construction on the roof of the first floor in which he resides. Any dispute relating to that right has to be decided by the civil court as held correctly by the High Court. | 0[ds]We have perused the Minutes of Meeting dated 27.12.2005. The learned counsel for the Respondent is right in submitting that the Chairman, Vice-Chairman and three other Members of the Municipal Corporation were present in the meeting. However, in the said meeting a decision was taken to recommend for appropriate action under Section 217 of the Act and for a reasoned order to be passed after the meeting of the Board of Councilors. It is not in dispute that, thereafter, the order dated 14.02.2006 was passed by the Chairman of the Serampore Municipality. The High Court is right in holding that the order dated 14.02.2006 passed by the Chairman of the Serampore Municipality is without jurisdiction. There is no error committed by the High Court in holding that the order dated 05.06.2006 by which action was directed to be initiated under Section 218 of the Act for demolition of the structure does not survive as the basis of the said order was the order dated 14.02.2006 passed by the Municipality.5. We have perused the sale deed dated 14.08.2002 by which the Appellant had purchased the ground floor of the property in dispute. The conveyance relates to the ground floor of the two-storied building admeasuring a covered area of 950 square feet. The Appellant was permitted to use the common stair case, septic tank, open yard, separate water reservoir in common portion common passages, common drain in the ground floor along with roof right. The dispute pertains to the right of Respondent No.3 in making a construction on the roof of the first floor in which he resides. Any dispute relating to that right has to be decided by the civil court as held correctly by the High Court. | 0 | 1,224 | 310 | ### 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:
on the complaints preferred, the Appellant filed a Writ Petition before the High Court of Calcutta alleging inaction on the part of the Municipal Corporation in taking appropriate steps. The Writ Petition was disposed of by the High Court with a direction to the Board of Councilors (for short the Board of Councilors, Serampore Municipality) to consider the representations made by the Appellant on 31.12.2003 and 14.07.2004 within a period of four weeks from the date of communication of the order. In the meeting of the Board held on 14.02.2006, it was decided that the permission for construction on the second floor was obtained by Respondent No.3 on the basis of misrepresentation of facts. Thereafter, an order was passed by the Chairman, Board of Councilors, Serampore Municipality revoking the sanctioned plan in favour of Respondent No.3. Being aggrieved by the municipal authorities in not taking action to demolish the illegal construction which was made pursuant to the revocation of the sanctioned plan, the Appellant filed another Writ Petition seeking a direction to the authorities of the municipal corporation to take appropriate action to demolish the construction. The said Writ Petition was disposed of by the High Court directing the municipal corporation to initiate proceedings under Section 218 of the West Bengal Municipal Act, 1996 (for short the Act) for demolition of the illegal construction and to pass a reasoned order after giving a reasonable opportunity to all concerned. By way of implementation of the order of the High Court, a letter was issued by the municipal corporation to Respondent No.3 to remove the structure on the second floor. 2. Respondent No.3 filed a Writ Petition challenging cancellation of the building plan by the municipal authorities. A learned Single Judge of the High Court disposed of the Writ Petition and relegated Respondent No.3 to an alternate remedy of Appeal. Respondent No.3 filed an Appeal against the order of the learned Single Judge which was allowed by the Division Bench of the Calcutta High Court. Therefore, this Appeal. 3. The High Court was of the opinion that the Board of Councilors did not hear the matter and did not take a decision as required under Section 217 of the Act. After perusing the records produced by the Municipal Corporation, the High Court found that the Chairman of the Board of Councilors heard the matter on 27.12.2005 in the Municipal Office when the Appellant, Respondent No.3 and two other gentlemen i.e. Shri Avijit Saha and Shri Amitava Dey were present. The Board of Councilors is the competent authority under Section 217 of the Act, to decide any dispute on the issue of misrepresentation or fraudulent statement in the application seeking sanction of building plan, for the purpose of passing an appropriate order to cancel such sanction. The decision of the Chairman on 14.02.2006 was held to be without jurisdiction. In consequence thereof, the decision dated 14.02.2006 was declared a nullity and set aside by the High Court. While referring to the deed of conveyance, the High Court held that the Appellant had a right to use the roof of first floor and the roof of proposed second floor. The High Court opined that the dispute raised by the Appellant cannot be decided by the municipality in terms of Section 217 of the Act and it requires adjudication by a civil court. While leaving it open to the parties to approach civil court to redress their grievances, the High Court dismissed the Writ Application filed by the Appellant. 4. We have heard Mr. S.K. Bhattacharya, learned counsel appearing for the Appellant, and Mr. Ranjan Mukherjee, learned counsel appearing for Respondent No.2. By relying upon the Minutes of Meeting dated 27.12.2005 of the Board of Councilors, Serampore Municipality, the learned counsel for the Appellant argued that the Chairman, Vice Chairman and three other Members of the Council were present at the meeting during which a decision was taken that Respondent No.3 had obtained permission for construction on the second floor by misrepresentation and suppression of facts. On the other hand, learned counsel for the Respondent argued that there is no ambiguity in Section 217 of the Act by which a decision has to be taken by the municipal council and not by the Chairman of the Municipality. We have perused the Minutes of Meeting dated 27.12.2005. The learned counsel for the Respondent is right in submitting that the Chairman, Vice-Chairman and three other Members of the Municipal Corporation were present in the meeting. However, in the said meeting a decision was taken to recommend for appropriate action under Section 217 of the Act and for a reasoned order to be passed after the meeting of the Board of Councilors. It is not in dispute that, thereafter, the order dated 14.02.2006 was passed by the Chairman of the Serampore Municipality. The High Court is right in holding that the order dated 14.02.2006 passed by the Chairman of the Serampore Municipality is without jurisdiction. There is no error committed by the High Court in holding that the order dated 05.06.2006 by which action was directed to be initiated under Section 218 of the Act for demolition of the structure does not survive as the basis of the said order was the order dated 14.02.2006 passed by the Municipality. 5. We have perused the sale deed dated 14.08.2002 by which the Appellant had purchased the ground floor of the property in dispute. The conveyance relates to the ground floor of the two-storied building admeasuring a covered area of 950 square feet. The Appellant was permitted to use the common stair case, septic tank, open yard, separate water reservoir in common portion common passages, common drain in the ground floor along with roof right. The dispute pertains to the right of Respondent No.3 in making a construction on the roof of the first floor in which he resides. Any dispute relating to that right has to be decided by the civil court as held correctly by the High Court.
### Response:
0
### Explanation:
We have perused the Minutes of Meeting dated 27.12.2005. The learned counsel for the Respondent is right in submitting that the Chairman, Vice-Chairman and three other Members of the Municipal Corporation were present in the meeting. However, in the said meeting a decision was taken to recommend for appropriate action under Section 217 of the Act and for a reasoned order to be passed after the meeting of the Board of Councilors. It is not in dispute that, thereafter, the order dated 14.02.2006 was passed by the Chairman of the Serampore Municipality. The High Court is right in holding that the order dated 14.02.2006 passed by the Chairman of the Serampore Municipality is without jurisdiction. There is no error committed by the High Court in holding that the order dated 05.06.2006 by which action was directed to be initiated under Section 218 of the Act for demolition of the structure does not survive as the basis of the said order was the order dated 14.02.2006 passed by the Municipality.5. We have perused the sale deed dated 14.08.2002 by which the Appellant had purchased the ground floor of the property in dispute. The conveyance relates to the ground floor of the two-storied building admeasuring a covered area of 950 square feet. The Appellant was permitted to use the common stair case, septic tank, open yard, separate water reservoir in common portion common passages, common drain in the ground floor along with roof right. The dispute pertains to the right of Respondent No.3 in making a construction on the roof of the first floor in which he resides. Any dispute relating to that right has to be decided by the civil court as held correctly by the High Court.
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Rashtriya Mill Mazdoor Sangh Vs. National Textile Corporation Ltd. | be enforceable against the concerned textile company and not against the Central Government or the Custodian. The words ``any liability in sub-section (7) of said Section 3 are of wide amplitude to cover every liability that was incurred by the textile company in relation to the textile undertaking before the appointed day. Moreover, the statement in the Preamble on which reliance has been placed by the learned counsel for the appellant, regarding giving protection to the interests of the workmen employed therein, also indicates that what was intended was to reorganise and rehabilitate the textile undertakings whose management was being taken over with a view to prevent the closure of such undertakings and consequent unemployment of workmen and thereby protect the interests of the workmen who were employed in the textile undertaking at the time of the taking over of the management of the said undertaking. The said statement in the Preamble does not refer to persons who had ceased to be in employment of the textile undertaking on the date of such taking over of the management. We are, therefore, unable to hold that sub-section (7) of section 3, must be so construed as to exclude its applicability in respect of liability for payment of gratuity under the Payment of Gratuity Act.11. That the liabilities in respect of the period prior to the taking over of the management of the textile undertaking are not taken over by the NTC is also borne out by the Textile Undertakings (Nationalisation) Ordinance No. 6 of 1995 promulgated by the President on June 27, 1995. The said Ordinance provides for the acquisition and transfer of the textile undertakings specified in the First Schedule of the said Ordinance. Respondent No. 3 is one of the textile undertakings referred to in the said Ordinance. Under Section 3 of the said Ordinance, the right, title and interest of the owner in relation to every textile undertaking mentioned in the First Schedule to the Act, stands transferred and vests absolutely in the Central Government on the appointed day, i.e. April 1, 1994. Under Section 5 of the said Ordinance, every liability, other than the liability specified in Sub-section (2), of the owner of a textile undertaking, in relation to the textile undertakings in respect of any period prior to the appointed day shall be the liability of such owner and shall be enforceable against him and not against the Central Government or the NTC. Clause (c) of Sub-section (2) of Section 5 refers to liability arising in respect of wages, salaries and other dues of the employees of the textile undertaking in respect of any period after the management of such undertaking had been taken over by the Central Government. Clause (a) of Sub-section (3) of Section 5 of the said Ordinance is similar to that contained in Sub-section (7) of Section 3 of the Act and declares that as expressly provided in the said Section or any other section of the said Ordinance, on liability other than the liability as specified in sub-section (2) in relation to a textile undertaking in respect of any period prior to the appointed day shall be enforceable against the Central Government or the NTC. Section 8 of the said Ordinance provides that the owner of every textile undertaking shall be given by the Central Government, in cash and in the manner as specified in Chapter VI, for the transfer to and vesting in it, under sub-section (1) of section 3, of such textile undertaking and the right, title and interest of the owner in relation to such textile undertaking, an amount equal to the amount specified against it in the corresponding entry in column (4) of the First Schedule. Section 20 of the said Ordinance requires every person having a claim against the owner of a textile undertaking to prefer such claim before the Commissioner and Section 21 prescribes the principles regarding priority of claims arising out of the matters specified in the Second Schedule. In the said Ordinance the liabilities in respect of the textile undertakings are divided in two parts; Part A deals with post-take over management period and contains categories I and II; and Part B relates to pre-take over management period and contains categories III to IV. Category III relates to arrears in relation to provident fund, salaries and wages and other amounts due to the employee. By Clause (a) of Section 21 categories I and II have been given precedence over category III which means that the liabilities for the post- take over management period have priority over the arrears in relation to provident fund, salaries and wages and other amounts due to the employee in relation to the pre-take over management period. These provisions are similar to those contained in Section 21 of the Sick Textile Undertakings (Nationalisation) Act, 1974. In M. Asghar v. Union of India, 1986(4) SCC 283, the said provisions giving lower priority to the amounts due to the employees in relation to the pre-take over period, was challenged before this Court. The said challenge was negatived by the Court and it was observed:- "The distinction made between the liabilities of the post-take over management period and the pre-take over management period is prima facie sound as the former liabilities are those incurred pursuant to the public management of the undertaking under the statute, while the latter liabilities are those incurred in the course of the private management by the owner of the undertaking. The provisions of the Ordinance No. 6 of 1995 also show that the liabilities for the period prior to the take over of the management are to be discharged from the amount payable to the owner of the textile undertaking for the acquisition of the undertaking and not by the NTC. It is, therefore, not possible to uphold the contention urged on behalf of the appellant that NTC is liable in respect of the gratuity amount payable under the Payment of Gratuity Act to Respondent No. 2. | 0[ds]7. We are in agreement with the said view of the High Court because under Section 4 of Payment of Gratuity Act, gratuity becomes payable to an employee on the termination of his employment, on his retirement or resignation and since the respondent No. 2 had resigned on March 22, 1983, gratuity under the Act become payable to him on March 23, 1983 i.e. before the taking over the management of the textile undertaking of respondent No. 3 on October 18,find it difficult to accept this contention. It is one of the cardinal principles of the statutory construction that where the language of an Act is clear, the Preamble cannot be invoked to curtail or restrict the scope of the enactment and only where the object or meaning of an enactment is not clear that Preamble may be resorted to explain it. See : Burrakur Coal Co. Ltd. v. Union of India, 1962 I SCR 44 at page 49 and M/s. Motipur Zamindary Co. (P) Ltd. v. The State of Bihar, 1962 Supp. (1) SCR 498 at page 504. Here we find that the language of sub-section (7) of section 3 is clear and unambiguous inasmuch as in the said provision it has been declared that any liability incurred to by the textile company in relation to the textile undertaking before the appointed day shall be enforceable against the concerned textile company and not against the Central Government or the Custodian. The words ``any liability in sub-section (7) of said Section 3 are of wide amplitude to cover every liability that was incurred by the textile company in relation to the textile undertaking before the appointed day. Moreover, the statement in the Preamble on which reliance has been placed by the learned counsel for the appellant, regarding giving protection to the interests of the workmen employed therein, also indicates that what was intended was to reorganise and rehabilitate the textile undertakings whose management was being taken over with a view to prevent the closure of such undertakings and consequent unemployment of workmen and thereby protect the interests of the workmen who were employed in the textile undertaking at the time of the taking over of the management of the said undertaking. The said statement in the Preamble does not refer to persons who had ceased to be in employment of the textile undertaking on the date of such taking over of the management. We are, therefore, unable to hold that sub-section (7) of section 3, must be so construed as to exclude its applicability in respect of liability for payment of gratuity under the Payment of Gratuity Act.11. That the liabilities in respect of the period prior to the taking over of the management of the textile undertaking are not taken over by the NTC is also borne out by the Textile Undertakings (Nationalisation) Ordinance No. 6 of 1995 promulgated by the President on June 27, 1995. The said Ordinance provides for the acquisition and transfer of the textile undertakings specified in the First Schedule of the said Ordinance. Respondent No. 3 is one of the textile undertakings referred to in the said Ordinance. Under Section 3 of the said Ordinance, the right, title and interest of the owner in relation to every textile undertaking mentioned in the First Schedule to the Act, stands transferred and vests absolutely in the Central Government on the appointed day, i.e. April 1, 1994. Under Section 5 of the said Ordinance, every liability, other than the liability specified in Sub-section (2), of the owner of a textile undertaking, in relation to the textile undertakings in respect of any period prior to the appointed day shall be the liability of such owner and shall be enforceable against him and not against the Central Government or the NTC. Clause (c) of Sub-section (2) of Section 5 refers to liability arising in respect of wages, salaries and other dues of the employees of the textile undertaking in respect of any period after the management of such undertaking had been taken over by the Central Government. Clause (a) of Sub-section (3) of Section 5 of the said Ordinance is similar to that contained in Sub-section (7) of Section 3 of the Act and declares that as expressly provided in the said Section or any other section of the said Ordinance, on liability other than the liability as specified in sub-section (2) in relation to a textile undertaking in respect of any period prior to the appointed day shall be enforceable against the Central Government or the NTC. Section 8 of the said Ordinance provides that the owner of every textile undertaking shall be given by the Central Government, in cash and in the manner as specified in Chapter VI, for the transfer to and vesting in it, under sub-section (1) of section 3, of such textile undertaking and the right, title and interest of the owner in relation to such textile undertaking, an amount equal to the amount specified against it in the corresponding entry in column (4) of the First Schedule. Section 20 of the said Ordinance requires every person having a claim against the owner of a textile undertaking to prefer such claim before the Commissioner and Section 21 prescribes the principles regarding priority of claims arising out of the matters specified in the Second Schedule. In the said Ordinance the liabilities in respect of the textile undertakings are divided in two parts; Part A deals with post-take over management period and contains categories I and II; and Part B relates to pre-take over management period and contains categories III to IV. Category III relates to arrears in relation to provident fund, salaries and wages and other amounts due to the employee. By Clause (a) of Section 21 categories I and II have been given precedence over category III which means that the liabilities for the post- take over management period have priority over the arrears in relation to provident fund, salaries and wages and other amounts due to the employee in relation to the pre-take over management period. These provisions are similar to those contained in Section 21 ofthe Sick Textile Undertakings (Nationalisation) Act, 1974. In M. Asghar v. Union of India, 1986(4) SCC 283, the said provisions giving lower priority to the amounts due to the employees in relation to the pre-take over period, was challenged before this Court. The said challenge was negatived by the Court and it wasdistinction made between the liabilities of the post-take over management period and the pre-take over management period is prima facie sound as the former liabilities are those incurred pursuant to the public management of the undertaking under the statute, while the latter liabilities are those incurred in the course of the private management by the owner of theprovisions of the Ordinance No. 6 of 1995 also show that the liabilities for the period prior to the take over of the management are to be discharged from the amount payable to the owner of the textile undertaking for the acquisition of the undertaking and not by the NTC. It is, therefore, not possible to uphold the contention urged on behalf of the appellant that NTC is liable in respect of the gratuity amount payable under the Payment of Gratuity Act to Respondent No. 2. | 0 | 4,365 | 1,341 | ### 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:
be enforceable against the concerned textile company and not against the Central Government or the Custodian. The words ``any liability in sub-section (7) of said Section 3 are of wide amplitude to cover every liability that was incurred by the textile company in relation to the textile undertaking before the appointed day. Moreover, the statement in the Preamble on which reliance has been placed by the learned counsel for the appellant, regarding giving protection to the interests of the workmen employed therein, also indicates that what was intended was to reorganise and rehabilitate the textile undertakings whose management was being taken over with a view to prevent the closure of such undertakings and consequent unemployment of workmen and thereby protect the interests of the workmen who were employed in the textile undertaking at the time of the taking over of the management of the said undertaking. The said statement in the Preamble does not refer to persons who had ceased to be in employment of the textile undertaking on the date of such taking over of the management. We are, therefore, unable to hold that sub-section (7) of section 3, must be so construed as to exclude its applicability in respect of liability for payment of gratuity under the Payment of Gratuity Act.11. That the liabilities in respect of the period prior to the taking over of the management of the textile undertaking are not taken over by the NTC is also borne out by the Textile Undertakings (Nationalisation) Ordinance No. 6 of 1995 promulgated by the President on June 27, 1995. The said Ordinance provides for the acquisition and transfer of the textile undertakings specified in the First Schedule of the said Ordinance. Respondent No. 3 is one of the textile undertakings referred to in the said Ordinance. Under Section 3 of the said Ordinance, the right, title and interest of the owner in relation to every textile undertaking mentioned in the First Schedule to the Act, stands transferred and vests absolutely in the Central Government on the appointed day, i.e. April 1, 1994. Under Section 5 of the said Ordinance, every liability, other than the liability specified in Sub-section (2), of the owner of a textile undertaking, in relation to the textile undertakings in respect of any period prior to the appointed day shall be the liability of such owner and shall be enforceable against him and not against the Central Government or the NTC. Clause (c) of Sub-section (2) of Section 5 refers to liability arising in respect of wages, salaries and other dues of the employees of the textile undertaking in respect of any period after the management of such undertaking had been taken over by the Central Government. Clause (a) of Sub-section (3) of Section 5 of the said Ordinance is similar to that contained in Sub-section (7) of Section 3 of the Act and declares that as expressly provided in the said Section or any other section of the said Ordinance, on liability other than the liability as specified in sub-section (2) in relation to a textile undertaking in respect of any period prior to the appointed day shall be enforceable against the Central Government or the NTC. Section 8 of the said Ordinance provides that the owner of every textile undertaking shall be given by the Central Government, in cash and in the manner as specified in Chapter VI, for the transfer to and vesting in it, under sub-section (1) of section 3, of such textile undertaking and the right, title and interest of the owner in relation to such textile undertaking, an amount equal to the amount specified against it in the corresponding entry in column (4) of the First Schedule. Section 20 of the said Ordinance requires every person having a claim against the owner of a textile undertaking to prefer such claim before the Commissioner and Section 21 prescribes the principles regarding priority of claims arising out of the matters specified in the Second Schedule. In the said Ordinance the liabilities in respect of the textile undertakings are divided in two parts; Part A deals with post-take over management period and contains categories I and II; and Part B relates to pre-take over management period and contains categories III to IV. Category III relates to arrears in relation to provident fund, salaries and wages and other amounts due to the employee. By Clause (a) of Section 21 categories I and II have been given precedence over category III which means that the liabilities for the post- take over management period have priority over the arrears in relation to provident fund, salaries and wages and other amounts due to the employee in relation to the pre-take over management period. These provisions are similar to those contained in Section 21 of the Sick Textile Undertakings (Nationalisation) Act, 1974. In M. Asghar v. Union of India, 1986(4) SCC 283, the said provisions giving lower priority to the amounts due to the employees in relation to the pre-take over period, was challenged before this Court. The said challenge was negatived by the Court and it was observed:- "The distinction made between the liabilities of the post-take over management period and the pre-take over management period is prima facie sound as the former liabilities are those incurred pursuant to the public management of the undertaking under the statute, while the latter liabilities are those incurred in the course of the private management by the owner of the undertaking. The provisions of the Ordinance No. 6 of 1995 also show that the liabilities for the period prior to the take over of the management are to be discharged from the amount payable to the owner of the textile undertaking for the acquisition of the undertaking and not by the NTC. It is, therefore, not possible to uphold the contention urged on behalf of the appellant that NTC is liable in respect of the gratuity amount payable under the Payment of Gratuity Act to Respondent No. 2.
### Response:
0
### Explanation:
textile undertaking before the appointed day shall be enforceable against the concerned textile company and not against the Central Government or the Custodian. The words ``any liability in sub-section (7) of said Section 3 are of wide amplitude to cover every liability that was incurred by the textile company in relation to the textile undertaking before the appointed day. Moreover, the statement in the Preamble on which reliance has been placed by the learned counsel for the appellant, regarding giving protection to the interests of the workmen employed therein, also indicates that what was intended was to reorganise and rehabilitate the textile undertakings whose management was being taken over with a view to prevent the closure of such undertakings and consequent unemployment of workmen and thereby protect the interests of the workmen who were employed in the textile undertaking at the time of the taking over of the management of the said undertaking. The said statement in the Preamble does not refer to persons who had ceased to be in employment of the textile undertaking on the date of such taking over of the management. We are, therefore, unable to hold that sub-section (7) of section 3, must be so construed as to exclude its applicability in respect of liability for payment of gratuity under the Payment of Gratuity Act.11. That the liabilities in respect of the period prior to the taking over of the management of the textile undertaking are not taken over by the NTC is also borne out by the Textile Undertakings (Nationalisation) Ordinance No. 6 of 1995 promulgated by the President on June 27, 1995. The said Ordinance provides for the acquisition and transfer of the textile undertakings specified in the First Schedule of the said Ordinance. Respondent No. 3 is one of the textile undertakings referred to in the said Ordinance. Under Section 3 of the said Ordinance, the right, title and interest of the owner in relation to every textile undertaking mentioned in the First Schedule to the Act, stands transferred and vests absolutely in the Central Government on the appointed day, i.e. April 1, 1994. Under Section 5 of the said Ordinance, every liability, other than the liability specified in Sub-section (2), of the owner of a textile undertaking, in relation to the textile undertakings in respect of any period prior to the appointed day shall be the liability of such owner and shall be enforceable against him and not against the Central Government or the NTC. Clause (c) of Sub-section (2) of Section 5 refers to liability arising in respect of wages, salaries and other dues of the employees of the textile undertaking in respect of any period after the management of such undertaking had been taken over by the Central Government. Clause (a) of Sub-section (3) of Section 5 of the said Ordinance is similar to that contained in Sub-section (7) of Section 3 of the Act and declares that as expressly provided in the said Section or any other section of the said Ordinance, on liability other than the liability as specified in sub-section (2) in relation to a textile undertaking in respect of any period prior to the appointed day shall be enforceable against the Central Government or the NTC. Section 8 of the said Ordinance provides that the owner of every textile undertaking shall be given by the Central Government, in cash and in the manner as specified in Chapter VI, for the transfer to and vesting in it, under sub-section (1) of section 3, of such textile undertaking and the right, title and interest of the owner in relation to such textile undertaking, an amount equal to the amount specified against it in the corresponding entry in column (4) of the First Schedule. Section 20 of the said Ordinance requires every person having a claim against the owner of a textile undertaking to prefer such claim before the Commissioner and Section 21 prescribes the principles regarding priority of claims arising out of the matters specified in the Second Schedule. In the said Ordinance the liabilities in respect of the textile undertakings are divided in two parts; Part A deals with post-take over management period and contains categories I and II; and Part B relates to pre-take over management period and contains categories III to IV. Category III relates to arrears in relation to provident fund, salaries and wages and other amounts due to the employee. By Clause (a) of Section 21 categories I and II have been given precedence over category III which means that the liabilities for the post- take over management period have priority over the arrears in relation to provident fund, salaries and wages and other amounts due to the employee in relation to the pre-take over management period. These provisions are similar to those contained in Section 21 ofthe Sick Textile Undertakings (Nationalisation) Act, 1974. In M. Asghar v. Union of India, 1986(4) SCC 283, the said provisions giving lower priority to the amounts due to the employees in relation to the pre-take over period, was challenged before this Court. The said challenge was negatived by the Court and it wasdistinction made between the liabilities of the post-take over management period and the pre-take over management period is prima facie sound as the former liabilities are those incurred pursuant to the public management of the undertaking under the statute, while the latter liabilities are those incurred in the course of the private management by the owner of theprovisions of the Ordinance No. 6 of 1995 also show that the liabilities for the period prior to the take over of the management are to be discharged from the amount payable to the owner of the textile undertaking for the acquisition of the undertaking and not by the NTC. It is, therefore, not possible to uphold the contention urged on behalf of the appellant that NTC is liable in respect of the gratuity amount payable under the Payment of Gratuity Act to Respondent No. 2.
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KALANDI CHARAN SAHOO Vs. GENERAL MANAGER, SOUTH-EAST CENTRAL RAILWAYS | 1. We have heard learned counsel for the parties finally at this stage itself with their consent. 2. Leave granted. 3. The appellants herein had filed a claim before the Railway Claims Tribunal (hereinafter referred to as RCT) on account of death of their son Sunil Kumar Sahoo in a train accident that occurred on 20.11.2005. The deceased was the employee in Railway and was holding the post of Assistant Loco-Pilot at the relevant time. He was posted at Raipur under the South East Central Railway, Bilaspur. On 20.11.2005, he was returning from Durg to Raipur, when he fell down from the running train near D. Cabin of Raipur Railway Station and, as a result thereof, he died on the spot. 4. Though Rule 27 of the Railway Passengers (Manner of Investigation of Untoward Incidents) Rules, 2003 (hereinafter referred to as Rules) mandates the Railway authorities to investigate into such an untoward incident. Admittedly, no such inquiry was conducted immediately after the incident. It is only when the appellants filed the claim before the RCT on 27.02.2009 that investigation into the incident was ordered on 23.04.2009. According to the Railways, the said investigation revealed that the deceased de-trained from the moving train at D. Cabin without stoppage of the train and invited the accident. The claim was rejected on the aforesaid basis and the aforesaid plea of the Railway was accepted by the RCT resulting into the dismissal of the claim of the appellants. The appellants filed the appeal, i.e., F.A.O. No. 535 of 2013 challenging the aforesaid order of the RCT. The High Court has dismissed the same by cryptic and nonspeaking order with the only observations that findings of the Tribunal in the impugned Award and the reasons assigned in support of the same, do not warrant any interference. 5. It is in these circumstances, the appellants are before us in these proceedings via Article 136 of the Constitution. After hearing learned counsel for the parties, we find that it is not even necessary to go into the issue as to whether it was the fault of the deceased or that he accidentally fell down. Learned counsel for the appellants has drawn our attention to the provisions of Section 124A of the Railways Act, 1989, which warrants payment of compensation whenever untoward incident occurs whether or not such an incident has occurred by any wrongful act, neglect or default on the part of the Railway administration. Going by the aforesaid provisions and in the peculiar facts of this case, where no inquiry as mandated by the Rules was conducted immediately after the incident had occurred, we are of the view that the appellants shall be entitled to compensation payable under Section 124A of the Railways Act, 1989. We are informed that, at the material time, compensation payable under the said provision was Rs. 4 lakhs. | 1[ds]After hearing learned counsel for the parties, we find that it is not even necessary to go into the issue as to whether it was the fault of the deceased or that he accidentally fell down.Going by the aforesaid provisions and in the peculiar facts of this case, where no inquiry as mandated by the Rules was conducted immediately after the incident had occurred, we are of the view that the appellants shall be entitled to compensation payable under Section 124A of the Railways Act, 1989. We are informed that, at the material time, compensation payable under the said provision was Rs. 4 lakhs. | 1 | 530 | 117 | ### 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. We have heard learned counsel for the parties finally at this stage itself with their consent. 2. Leave granted. 3. The appellants herein had filed a claim before the Railway Claims Tribunal (hereinafter referred to as RCT) on account of death of their son Sunil Kumar Sahoo in a train accident that occurred on 20.11.2005. The deceased was the employee in Railway and was holding the post of Assistant Loco-Pilot at the relevant time. He was posted at Raipur under the South East Central Railway, Bilaspur. On 20.11.2005, he was returning from Durg to Raipur, when he fell down from the running train near D. Cabin of Raipur Railway Station and, as a result thereof, he died on the spot. 4. Though Rule 27 of the Railway Passengers (Manner of Investigation of Untoward Incidents) Rules, 2003 (hereinafter referred to as Rules) mandates the Railway authorities to investigate into such an untoward incident. Admittedly, no such inquiry was conducted immediately after the incident. It is only when the appellants filed the claim before the RCT on 27.02.2009 that investigation into the incident was ordered on 23.04.2009. According to the Railways, the said investigation revealed that the deceased de-trained from the moving train at D. Cabin without stoppage of the train and invited the accident. The claim was rejected on the aforesaid basis and the aforesaid plea of the Railway was accepted by the RCT resulting into the dismissal of the claim of the appellants. The appellants filed the appeal, i.e., F.A.O. No. 535 of 2013 challenging the aforesaid order of the RCT. The High Court has dismissed the same by cryptic and nonspeaking order with the only observations that findings of the Tribunal in the impugned Award and the reasons assigned in support of the same, do not warrant any interference. 5. It is in these circumstances, the appellants are before us in these proceedings via Article 136 of the Constitution. After hearing learned counsel for the parties, we find that it is not even necessary to go into the issue as to whether it was the fault of the deceased or that he accidentally fell down. Learned counsel for the appellants has drawn our attention to the provisions of Section 124A of the Railways Act, 1989, which warrants payment of compensation whenever untoward incident occurs whether or not such an incident has occurred by any wrongful act, neglect or default on the part of the Railway administration. Going by the aforesaid provisions and in the peculiar facts of this case, where no inquiry as mandated by the Rules was conducted immediately after the incident had occurred, we are of the view that the appellants shall be entitled to compensation payable under Section 124A of the Railways Act, 1989. We are informed that, at the material time, compensation payable under the said provision was Rs. 4 lakhs.
### Response:
1
### Explanation:
After hearing learned counsel for the parties, we find that it is not even necessary to go into the issue as to whether it was the fault of the deceased or that he accidentally fell down.Going by the aforesaid provisions and in the peculiar facts of this case, where no inquiry as mandated by the Rules was conducted immediately after the incident had occurred, we are of the view that the appellants shall be entitled to compensation payable under Section 124A of the Railways Act, 1989. We are informed that, at the material time, compensation payable under the said provision was Rs. 4 lakhs.
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M/S. Colfax Laboratories (India) Limited & Another Vs. The State of Goa & Others | Nos.109 of 1991 and 84 of 1992 the liability of payment of excise duty at 100% ad valorem could be cast if it was ultimately held that the classification of the subject products was made as toilet preparations. However, the Company did not despatch the products in compliance with the Rules and by filling in Form AR-2. Rule 9, 40 and 81 of the Rules read as under:- "9. Time and manner of payment of duty. - (1) No dutiable goods shall be removed from any place where they are manufactured or any premises appurtenant thereto, which may be specified by the Excise Commissioner in this behalf, whether for consumption, export or manufacture of any other commodity in or outside such place, until the excise duty leviable thereon has been paid at such place and in such manner as is prescribed in these rules or as the Excise Commissioner may require." "40. Issue from a bonded manufactory.- (1) Issues of alcoholic preparations and preparations containing opium, Indian hemp or other narcotic drugs and narcotics shall be made from a bonded manufactory on payment of duty. The licensee shall present before the officer-incharge an application in Form AR- 2 signed by him or by his authorized representative. The officer-in-charge shall, after checking the entries and realizing the duty payable, allow the required quantities to be removed after issuing a permit". "81. Clearance on payment of duty. - When the licensee desires to remove goods on payment of duty, he shall make an application in Form AR-2 in triplicate, to the officer-in-charge or the proper officer, as the case may be, at least twelve hours before he is intended to remove the goods. The officer shall, thereupon, assess the amount of duty leviable on the goods and on production of evidence that the sum has been paid into a treasury or the sum has been debited to the accountcurrent, as the case may be, shall allow the goods to be cleared".17. Form AR-2 has been appended to the Rules and contains the columns inter alia of "Value" and "Duty". Under the column "Duty" there are two sub-columns, namely, "Rate" and "Amount". From the value shown in the AR-2 Form , if duty is reduced, the wholesale price is arrived at and on this wholesale price 100% ad valorem will be the duty payable. In the Affidavit-in-reply filed on behalf of the Respondents it has been stated in para 20 as under:- "In order to calculate the duties, it was necessary to get particulars from the assessee/Petitioner. The Department requested the assessee by letter dated 15-9-1999 to furnish copies of invoices from 16-8-1991 to 17-8-1998 in respect of two products sold by them. The assessee by their letter dated 30-9-1998 suggested that Department verifies the invoices at the factory premises itself. Accordingly, the officer of the Department undertook the process of verification of the invoices at the factory premises of the assessee."It is also obvious from the record that the Petitioners went on paying the duty at Rs.10/- per proof litre and they have not indicated exactly the wholesale price and merely by paying the excise duty on proof per litre basis it cannot be accepted that it was a commodity price as shown in the invoices. It is thus clear that the onus of proving the issue of cum-duty price squarely falls on the Petitioners and the learned Senior Counsel appearing for the Respondents fairly conceded that if this issue was proved, the formula as set out in the decision of this Court in Writ Petition No.337 of 1998 would be applicable. The Petitioners will have to submit the invoices/AR-2 forms or any other documentary proof to arrive at the conclusion that the price shown by them was a cum-duty price and unless it is established that the price was a cum-duty price, the quantification in the manner advanced by the Petitioners cannot be undertaken. 18. However, it is pertinent to note that the impugned Order is eloquently silent on the issue of cum-duty price and the applicability of the formula set out in our Judgment in Writ Petition No. 337 of 1998. No reasons have been given as to why the same formula could not be adopted though it has been stated that as per the Orders passed by this Court in Writ Petition Nos. 109 of 1991 and 84 of 1992, the Petitioners were aware of their ultimate liability in the products to be classified as toilet preparations. This reasoning does not suffice the legal requirements moreso when this Court has made applicable the cum-duty formula devised in the case of Government of India v. Madras Rubber Factory Ltd.(supra) for the earlier period whilst deciding Writ Petition No.337 of 1998. The learned Senior Counsel appearing for the Petitioners was right in his contentions that the subsequent Affidavits filed cannot fill in this lacuna and the impugned Order, therefore, is unsustainable on this ground. The dispute of quantification of the excise duty after the decision of the Supreme Court partly confirming our Judgment in Writ Petition No.337 of 1998 is required to be adjudicated afresh for the relevant periods and it shall be the responsibility of the Petitioners to place before the appropriate authority all the relevant records so as to ascertain the issue of commodity price to adopt the formula set out in our Judgment in Writ Petition No.337 of 1998 for quantification of the excise duty for the subsequent periods covered by the impugned Order. We are not impressed with the contentions of the Petitioners that the quantification in this case is also required to be undertaken by following the same formula suo motu. The Petitioners will have to appear before the appropriate authority and on the basis of the record that may be available with them the issue of cum-duty price will have to be settled. No other issues raised in this Petition remain to be decided in view of our earlier decision in Writ Petition No.337of 1998. | 1[ds]16. The Petitioners were fully aware that as per the Orders passed by this Court in Writ Petition Nos.109 of 1991 and 84 of 1992 the liability of payment of excise duty at 100% ad valorem could be cast if it was ultimately held that the classification of the subject products was made as toilet preparations. However, the Company did not despatch the products in compliance with the Rules and by filling in FormRule 9, 40 and 81 of the Rules read asTime and manner of payment of duty.(1) No dutiable goods shall be removed from any place where they are manufactured or any premises appurtenant thereto, which may be specified by the Excise Commissioner in this behalf, whether for consumption, export or manufacture of any other commodity in or outside such place, until the excise duty leviable thereon has been paid at such place and in such manner as is prescribed in these rules or as the Excise Commissioner may require.Issue from a bonded manufactory.(1) Issues of alcoholic preparations and preparations containing opium, Indian hemp or other narcotic drugs and narcotics shall be made from a bonded manufactory on payment of duty. The licensee shall present before thean application in Form AR2 signed by him or by his authorized representative. Theshall, after checking the entries and realizing the duty payable, allow the required quantities to be removed after issuing a permit".Clearance on payment of duty.When the licensee desires to remove goods on payment of duty, he shall makean application in Formin triplicate, to theor the proper officer, as the case may be, at least twelve hours before he is intended to remove the goods. The officer shall, thereupon, assess the amount of duty leviable on the goods and on production of evidence that the sum has been paid into a treasury or the sum has been debited to the accountcurrent, as the case may be, shall allow the goods to be cleared".17. Formhas been appended to the Rules and contains the columns inter alia of "Value" and "Duty". Under the column "Duty" there are twonamely, "Rate" and "Amount". From the value shown in theForm , if duty is reduced, the wholesale price is arrived at and on this wholesale price 100% ad valorem will be the duty payable. In thefiled on behalf of the Respondents it has been stated in para 20 asorder to calculate the duties, it was necessary to get particulars from the assessee/Petitioner. The Department requested the assessee by letter datedto furnish copies of invoices from98 in respect of two products sold by them. The assessee by their letter datedsuggested that Department verifies the invoices at the factory premises itself. Accordingly, the officer of the Department undertook the process of verification of the invoices at the factory premises of the assessee."It is also obvious from the record that the Petitioners went on paying the duty at Rs.10/per proof litre and they have not indicated exactly the wholesale price and merely by paying the excise duty on proof per litre basis it cannot be accepted that it was a commodity price as shown in the invoices. It is thus clear that the onus of proving the issue ofprice squarely falls on the Petitioners and the learned Senior Counsel appearing for the Respondents fairly conceded that if this issue was proved, the formula as set out in the decision of this Court in Writ Petition No.337 of 1998 would be applicable. The Petitioners will have to submit theforms or any other documentary proof to arrive at the conclusion that the price shown by them was aprice and unless it is established that the price was aprice, the quantification in the manner advanced by the Petitioners cannot be undertaken.However, it is pertinent to note that the impugned Order is eloquently silent on the issue ofprice and the applicability of the formula set out in our Judgment in Writ Petition No. 337 of 1998. No reasons have been given as to why the same formula could not be adopted though it has been stated that as per the Orders passed by this Court in Writ Petition Nos. 109 of 1991 and 84 of 1992, the Petitioners were aware of their ultimate liability in the products to be classified as toilet preparations. This reasoning does not suffice the legal requirements moreso when this Court has made applicable theformula devised in the case of Government of India v. Madras Rubber Factory Ltd.(supra) for the earlier period whilst deciding Writ Petition No.337 of 1998. The learned Senior Counsel appearing for the Petitioners was right in his contentions that the subsequent Affidavits filed cannot fill in this lacuna and the impugned Order, therefore, is unsustainable on this ground. The dispute of quantification of the excise duty after the decision of the Supreme Court partly confirming our Judgment in Writ Petition No.337 of 1998 is required to be adjudicated afresh for the relevant periods and it shall be the responsibility of the Petitioners to place before the appropriate authority all the relevant records so as to ascertain the issue of commodity price to adopt the formula set out in our Judgment in Writ Petition No.337 of 1998 for quantification of the excise duty for the subsequent periods covered by the impugned Order. We are not impressed with the contentions of the Petitioners that the quantification in this case is also required to be undertaken by following the same formula suo motu. The Petitioners will have to appear before the appropriate authority and on the basis of the record that may be available with them the issue ofprice will have to be settled. No other issues raised in this Petition remain to be decided in view of our earlier decision in Writ Petition No.337of 1998. | 1 | 6,602 | 1,047 | ### 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:
Nos.109 of 1991 and 84 of 1992 the liability of payment of excise duty at 100% ad valorem could be cast if it was ultimately held that the classification of the subject products was made as toilet preparations. However, the Company did not despatch the products in compliance with the Rules and by filling in Form AR-2. Rule 9, 40 and 81 of the Rules read as under:- "9. Time and manner of payment of duty. - (1) No dutiable goods shall be removed from any place where they are manufactured or any premises appurtenant thereto, which may be specified by the Excise Commissioner in this behalf, whether for consumption, export or manufacture of any other commodity in or outside such place, until the excise duty leviable thereon has been paid at such place and in such manner as is prescribed in these rules or as the Excise Commissioner may require." "40. Issue from a bonded manufactory.- (1) Issues of alcoholic preparations and preparations containing opium, Indian hemp or other narcotic drugs and narcotics shall be made from a bonded manufactory on payment of duty. The licensee shall present before the officer-incharge an application in Form AR- 2 signed by him or by his authorized representative. The officer-in-charge shall, after checking the entries and realizing the duty payable, allow the required quantities to be removed after issuing a permit". "81. Clearance on payment of duty. - When the licensee desires to remove goods on payment of duty, he shall make an application in Form AR-2 in triplicate, to the officer-in-charge or the proper officer, as the case may be, at least twelve hours before he is intended to remove the goods. The officer shall, thereupon, assess the amount of duty leviable on the goods and on production of evidence that the sum has been paid into a treasury or the sum has been debited to the accountcurrent, as the case may be, shall allow the goods to be cleared".17. Form AR-2 has been appended to the Rules and contains the columns inter alia of "Value" and "Duty". Under the column "Duty" there are two sub-columns, namely, "Rate" and "Amount". From the value shown in the AR-2 Form , if duty is reduced, the wholesale price is arrived at and on this wholesale price 100% ad valorem will be the duty payable. In the Affidavit-in-reply filed on behalf of the Respondents it has been stated in para 20 as under:- "In order to calculate the duties, it was necessary to get particulars from the assessee/Petitioner. The Department requested the assessee by letter dated 15-9-1999 to furnish copies of invoices from 16-8-1991 to 17-8-1998 in respect of two products sold by them. The assessee by their letter dated 30-9-1998 suggested that Department verifies the invoices at the factory premises itself. Accordingly, the officer of the Department undertook the process of verification of the invoices at the factory premises of the assessee."It is also obvious from the record that the Petitioners went on paying the duty at Rs.10/- per proof litre and they have not indicated exactly the wholesale price and merely by paying the excise duty on proof per litre basis it cannot be accepted that it was a commodity price as shown in the invoices. It is thus clear that the onus of proving the issue of cum-duty price squarely falls on the Petitioners and the learned Senior Counsel appearing for the Respondents fairly conceded that if this issue was proved, the formula as set out in the decision of this Court in Writ Petition No.337 of 1998 would be applicable. The Petitioners will have to submit the invoices/AR-2 forms or any other documentary proof to arrive at the conclusion that the price shown by them was a cum-duty price and unless it is established that the price was a cum-duty price, the quantification in the manner advanced by the Petitioners cannot be undertaken. 18. However, it is pertinent to note that the impugned Order is eloquently silent on the issue of cum-duty price and the applicability of the formula set out in our Judgment in Writ Petition No. 337 of 1998. No reasons have been given as to why the same formula could not be adopted though it has been stated that as per the Orders passed by this Court in Writ Petition Nos. 109 of 1991 and 84 of 1992, the Petitioners were aware of their ultimate liability in the products to be classified as toilet preparations. This reasoning does not suffice the legal requirements moreso when this Court has made applicable the cum-duty formula devised in the case of Government of India v. Madras Rubber Factory Ltd.(supra) for the earlier period whilst deciding Writ Petition No.337 of 1998. The learned Senior Counsel appearing for the Petitioners was right in his contentions that the subsequent Affidavits filed cannot fill in this lacuna and the impugned Order, therefore, is unsustainable on this ground. The dispute of quantification of the excise duty after the decision of the Supreme Court partly confirming our Judgment in Writ Petition No.337 of 1998 is required to be adjudicated afresh for the relevant periods and it shall be the responsibility of the Petitioners to place before the appropriate authority all the relevant records so as to ascertain the issue of commodity price to adopt the formula set out in our Judgment in Writ Petition No.337 of 1998 for quantification of the excise duty for the subsequent periods covered by the impugned Order. We are not impressed with the contentions of the Petitioners that the quantification in this case is also required to be undertaken by following the same formula suo motu. The Petitioners will have to appear before the appropriate authority and on the basis of the record that may be available with them the issue of cum-duty price will have to be settled. No other issues raised in this Petition remain to be decided in view of our earlier decision in Writ Petition No.337of 1998.
### Response:
1
### Explanation:
16. The Petitioners were fully aware that as per the Orders passed by this Court in Writ Petition Nos.109 of 1991 and 84 of 1992 the liability of payment of excise duty at 100% ad valorem could be cast if it was ultimately held that the classification of the subject products was made as toilet preparations. However, the Company did not despatch the products in compliance with the Rules and by filling in FormRule 9, 40 and 81 of the Rules read asTime and manner of payment of duty.(1) No dutiable goods shall be removed from any place where they are manufactured or any premises appurtenant thereto, which may be specified by the Excise Commissioner in this behalf, whether for consumption, export or manufacture of any other commodity in or outside such place, until the excise duty leviable thereon has been paid at such place and in such manner as is prescribed in these rules or as the Excise Commissioner may require.Issue from a bonded manufactory.(1) Issues of alcoholic preparations and preparations containing opium, Indian hemp or other narcotic drugs and narcotics shall be made from a bonded manufactory on payment of duty. The licensee shall present before thean application in Form AR2 signed by him or by his authorized representative. Theshall, after checking the entries and realizing the duty payable, allow the required quantities to be removed after issuing a permit".Clearance on payment of duty.When the licensee desires to remove goods on payment of duty, he shall makean application in Formin triplicate, to theor the proper officer, as the case may be, at least twelve hours before he is intended to remove the goods. The officer shall, thereupon, assess the amount of duty leviable on the goods and on production of evidence that the sum has been paid into a treasury or the sum has been debited to the accountcurrent, as the case may be, shall allow the goods to be cleared".17. Formhas been appended to the Rules and contains the columns inter alia of "Value" and "Duty". Under the column "Duty" there are twonamely, "Rate" and "Amount". From the value shown in theForm , if duty is reduced, the wholesale price is arrived at and on this wholesale price 100% ad valorem will be the duty payable. In thefiled on behalf of the Respondents it has been stated in para 20 asorder to calculate the duties, it was necessary to get particulars from the assessee/Petitioner. The Department requested the assessee by letter datedto furnish copies of invoices from98 in respect of two products sold by them. The assessee by their letter datedsuggested that Department verifies the invoices at the factory premises itself. Accordingly, the officer of the Department undertook the process of verification of the invoices at the factory premises of the assessee."It is also obvious from the record that the Petitioners went on paying the duty at Rs.10/per proof litre and they have not indicated exactly the wholesale price and merely by paying the excise duty on proof per litre basis it cannot be accepted that it was a commodity price as shown in the invoices. It is thus clear that the onus of proving the issue ofprice squarely falls on the Petitioners and the learned Senior Counsel appearing for the Respondents fairly conceded that if this issue was proved, the formula as set out in the decision of this Court in Writ Petition No.337 of 1998 would be applicable. The Petitioners will have to submit theforms or any other documentary proof to arrive at the conclusion that the price shown by them was aprice and unless it is established that the price was aprice, the quantification in the manner advanced by the Petitioners cannot be undertaken.However, it is pertinent to note that the impugned Order is eloquently silent on the issue ofprice and the applicability of the formula set out in our Judgment in Writ Petition No. 337 of 1998. No reasons have been given as to why the same formula could not be adopted though it has been stated that as per the Orders passed by this Court in Writ Petition Nos. 109 of 1991 and 84 of 1992, the Petitioners were aware of their ultimate liability in the products to be classified as toilet preparations. This reasoning does not suffice the legal requirements moreso when this Court has made applicable theformula devised in the case of Government of India v. Madras Rubber Factory Ltd.(supra) for the earlier period whilst deciding Writ Petition No.337 of 1998. The learned Senior Counsel appearing for the Petitioners was right in his contentions that the subsequent Affidavits filed cannot fill in this lacuna and the impugned Order, therefore, is unsustainable on this ground. The dispute of quantification of the excise duty after the decision of the Supreme Court partly confirming our Judgment in Writ Petition No.337 of 1998 is required to be adjudicated afresh for the relevant periods and it shall be the responsibility of the Petitioners to place before the appropriate authority all the relevant records so as to ascertain the issue of commodity price to adopt the formula set out in our Judgment in Writ Petition No.337 of 1998 for quantification of the excise duty for the subsequent periods covered by the impugned Order. We are not impressed with the contentions of the Petitioners that the quantification in this case is also required to be undertaken by following the same formula suo motu. The Petitioners will have to appear before the appropriate authority and on the basis of the record that may be available with them the issue ofprice will have to be settled. No other issues raised in this Petition remain to be decided in view of our earlier decision in Writ Petition No.337of 1998.
|
Syed Ahmed Aga Etc Vs. State of Mysore & Another | " restriction" as contemplated by Article 304 (b). The learned Additional Solicitor General has contended that such licensing is necessary even for simply maintaining a record of those.Who carry on various activities in connection with the silk production industry and business so that their purely business and industrial activities may be watched and the quality and reputation of this industry and trade of Mysore may be maintained. Such "regulation", it is contended, ultimately contributes to greater flow and freedom of trade, even if it involves some "inconvenience to those who have to take out licenses which, according to rules, were granted to all those found qualified. We find considerable weight in these arguments, In any case, we are not satisfied that there has been a real increase in restrictions upon commerce in silkworms and cocoons by the provisions of the Amending Act which mostly cover what was already laid down ,by the statutory rules. If the substance of statutory rules is converted into statutory provisions there could hardly be said to be an addition even in "regulation " imposed by the amending law.23. Learned Counsel for the petitioner cited Hughes and Vale Proprietary Ltd. v. State of New South Wales 1955 AC 241, where provisions of the State. Transport (Co-ordination) Act, of the State of new South Wales, requiring applications to be made for licences, which may be granted or refused by an official in the exercise of an uncontrolled discretion, and of all provisions consequential thereto, in so far as they were sought to be applied to public Motor. Vehicles operating in the course of or for the purposes of inter-State trade, were held to be invalid for a contravention of Section 92 of the Constitution of Commonwealth of Australia. This section, as we know, provides that trade commerce and intercourse, among States whether by means of internal carriage or motor navigation shall be absolutely free". Here, Privy Council discussed a large number of cases which had a bearing on the interpretation of Section 92 of the Australian Constitution, including commonwealth of Australia Bank of New South Wales case, 1950 AC 235 at p. 311 where it was observed (at p. 311):"Every case must be judged on its own facts and in its own setting of time and circumstance, and it may be that in regard to some economic activities and at some stage of social development it might be maintained that prohibition with a view to State monopoly was the only practical and reasonable manner of regulation, and that inter-State trade, commerce and intercourse thus prohibited and thus monopolized remained absolutely free".The Privy Council after quoting this passage said:"As to the passage in the judgment of the Board in the Bank case upon which counsel for the respondents particularly relied, their Lordships accept without qualification everything that was said by the Board in the Bank case, but they are not aware of any circumstances in the present case giving rise to the situation contemplated in that passage".24.Thus, even if we were to apply the test of regulation to distinguish it from restriction which may be deduced from Hughes case, 1955 AC- 241 (supra), it will be seen that a decision on it depends upon the circumstances to which a legislative measure is meant to apply and its consequences. In the case before us, the amendments did not, in our opinion, go beyond a regulation which was fully authorised by the language of the provisions of the Principal Act. Even any additional licensing involved did not go beyond the purview of the provisions of the Principal Act. and the rules framed thereunder. The mere change in form, from statutory rules to statutory provisions, could hardly constitute even additional "regulation", It is only an additional "restriction" from the special point of view of Article 304 (b) which requires Presidential sanction.25. Although, a petition under Article 32 alleging infringement of the fundamental right guaranteed under Article 19 (1) (g) of the Constitution would lie, yet, it has to be remembered that it cannot be allowed until such an infringement, falling outside Article 19 (6) of the Constitution, has been established. Now, as we have mentioned earlier, learned Counsel for the petitioners stated that no question about reasonableness of any restriction was being raised by them before us. They rested their case solely on the want of Presidential sanction to additional "restrictions on freedom of business, trade, and commerce which are not, as we have indicated earlier, to be equated with a mere reduction of the area of freedom of choice of those who are engaged or who want to engage in a business or trade. The passage cited in Hughes case 1955 AC 241 (supra) from the Bank of New South Wales case 1950 AC 285 (supra) makes that clear. In other words, an allegedly additional restriction on trade and commerce is to be judged from a broader and more general angle of the freedom of a particular trade. What may be a restriction of his choice from the point of view of an individual citizen engaged in a trade, may not be a restriction on inter State or intra - State commerce viewed from the angle of the trade as a whole. Even if we could not, as we did not, find any additional restrictions on the silkworm and silk production business and industry in the amendments, the petitioners could show that they were unduly hampered by the impugned amendments from carrying on their business or trade by some unreasonable restrictions on their fundamental rights as individuals engaged in silk production industry or business. But, if that was their grievance, they had to demonstrate an unreasonableness of restrictions upon their activities falling outside Article 19 (6) before they could succeed. They have not even attempted to do that. It is evident that they could not do so because the licensing fee for various activities to be licensed is quite nominal and they have not been denied any licences they wanted. | 0[ds]We do not think that the mere fact that the legality of an enactment is challenged forwith the proviso to Article 304 (b) of the Constitution would take away the character or substance of a petitioners claim when a citizen comes to Court with the allegation that his fundamental right to carry on business or trade is affected adversely by a provision which does not legallygoing through these rules, the validity of which was not challenged, we are satisfied that no additional restriction is imposed by the Amending Section 4 (1).Here also we are unable to find any substance in the grievance that there has been any significant increase inis true that even without a change in the nature of violations punished, those who contravene the provisions of the Act are subjected to somewhat severer punishment. But, the increase in the penalties is such, in view of the change in the value of money, as not to amount to an appreciable increase in restriction even from the point of view of a person who wants to break the restrictive laws. Penalties are really part of the procedure for the enforcement of restrictions. They do not create new offences. They only make violation of whatever restrictions on trade and commerce were there more onerous. We, therefore. doubt very much whether they could really, be looked upon as additional restrictions upon freedom of trade andKhyerbari Tea Cos case (supra), the Court, proceeding on the assumption that the tax was not compensatory upheld its validity, presumably because it was considered reasonable and in public interest as a restriction. No such question of reasonableness of any restriction imposed by the Amending Act before us has been raised by the petitioners. But, if the position of even taxation, from the point of view of "restrictions" contemplated by Article 304 (b) of the Constitution could be doubtful and depended upon its nature and extent and purpose, we think that there could be no doubt that some additional licensing, at nominal fees charged presumably to defray the expenses of carrying out the objects of the Act, could not he held to be anything more than "regulation" in the cases beforecarry on various activities in connection with the silk production industry and business so that their purely business and industrial activities may be watched and the quality and reputation of this industry and trade of Mysore may be maintained. Such "regulation", it is contended, ultimately contributes to greater flow and freedom of trade, even if it involves some "inconvenience to those who have to take out licenses which, according to rules, were granted to all those found qualified. We find considerable weight in these arguments, In any case, we are not satisfied that there has been a real increase in restrictions upon commerce in silkworms and cocoons by the provisions of the Amending Act which mostly cover what was already laid down ,by the statutory rules. If the substance of statutory rules is converted into statutory provisions there could hardly be said to be an addition even in "regulation " imposed by the amendingthe case before us, the amendments did not, in our opinion, go beyond a regulation which was fully authorised by the language of the provisions of the Principal Act. Even any additional licensing involved did not go beyond the purview of the provisions of the Principal Act. and the rules framed thereunder. The mere change in form, from statutory rules to statutory provisions, could hardly constitute even additional "regulation", It is only an additional "restriction" from the special point of view of Article 304 (b) which requires Presidential sanction.25. Although, a petition under Article 32 alleging infringement of the fundamental right guaranteed under Article 19 (1) (g) of the Constitution would lie, yet, it has to be remembered that it cannot be allowed until such an infringement, falling outside Article 19 (6) of the Constitution, has been established. Now, as we have mentioned earlier, learnedCounsel for the petitioners stated that no question about reasonableness of any restriction was being raised by them before us. They rested their case solely on the want of Presidential sanction to additional "restrictions on freedom of business, trade, and commerce which are not, as we have indicated earlier, to be equated with a mere reduction of the area of freedom of choice of those who are engaged or who want to engage in a business or trade.The passage cited in Hughes case 1955 AC 241 (supra) from the Bank of New South Wales case 1950 AC 285 (supra) makes that clear. In other words, an allegedly additional restriction on trade and commerce is to be judged from a broader and more general angle of the freedom of a particular trade. What may be a restriction of his choice from the point of view of an individual citizen engaged in a trade, may not be a restriction on inter State or intraState commerce viewed from the angle of the trade as a whole. Even if we could not, as we did not, find any additional restrictions on the silkworm and silk production business and industry in the amendments, the petitioners could show that they were unduly hampered by the impugned amendments from carrying on their business or trade by some unreasonable restrictions on their fundamental rights as individuals engaged in silk production industry or business. But, if that was their grievance, they had to demonstrate an unreasonableness of restrictions upon their activities falling outside Article 19 (6) before they could succeed. They have not even attempted to do that. It is evident that they could not do so because the licensing fee for various activities to be licensed is quite nominal and they have not been denied any licences they wanted. | 0 | 6,753 | 1,073 | ### 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:
" restriction" as contemplated by Article 304 (b). The learned Additional Solicitor General has contended that such licensing is necessary even for simply maintaining a record of those.Who carry on various activities in connection with the silk production industry and business so that their purely business and industrial activities may be watched and the quality and reputation of this industry and trade of Mysore may be maintained. Such "regulation", it is contended, ultimately contributes to greater flow and freedom of trade, even if it involves some "inconvenience to those who have to take out licenses which, according to rules, were granted to all those found qualified. We find considerable weight in these arguments, In any case, we are not satisfied that there has been a real increase in restrictions upon commerce in silkworms and cocoons by the provisions of the Amending Act which mostly cover what was already laid down ,by the statutory rules. If the substance of statutory rules is converted into statutory provisions there could hardly be said to be an addition even in "regulation " imposed by the amending law.23. Learned Counsel for the petitioner cited Hughes and Vale Proprietary Ltd. v. State of New South Wales 1955 AC 241, where provisions of the State. Transport (Co-ordination) Act, of the State of new South Wales, requiring applications to be made for licences, which may be granted or refused by an official in the exercise of an uncontrolled discretion, and of all provisions consequential thereto, in so far as they were sought to be applied to public Motor. Vehicles operating in the course of or for the purposes of inter-State trade, were held to be invalid for a contravention of Section 92 of the Constitution of Commonwealth of Australia. This section, as we know, provides that trade commerce and intercourse, among States whether by means of internal carriage or motor navigation shall be absolutely free". Here, Privy Council discussed a large number of cases which had a bearing on the interpretation of Section 92 of the Australian Constitution, including commonwealth of Australia Bank of New South Wales case, 1950 AC 235 at p. 311 where it was observed (at p. 311):"Every case must be judged on its own facts and in its own setting of time and circumstance, and it may be that in regard to some economic activities and at some stage of social development it might be maintained that prohibition with a view to State monopoly was the only practical and reasonable manner of regulation, and that inter-State trade, commerce and intercourse thus prohibited and thus monopolized remained absolutely free".The Privy Council after quoting this passage said:"As to the passage in the judgment of the Board in the Bank case upon which counsel for the respondents particularly relied, their Lordships accept without qualification everything that was said by the Board in the Bank case, but they are not aware of any circumstances in the present case giving rise to the situation contemplated in that passage".24.Thus, even if we were to apply the test of regulation to distinguish it from restriction which may be deduced from Hughes case, 1955 AC- 241 (supra), it will be seen that a decision on it depends upon the circumstances to which a legislative measure is meant to apply and its consequences. In the case before us, the amendments did not, in our opinion, go beyond a regulation which was fully authorised by the language of the provisions of the Principal Act. Even any additional licensing involved did not go beyond the purview of the provisions of the Principal Act. and the rules framed thereunder. The mere change in form, from statutory rules to statutory provisions, could hardly constitute even additional "regulation", It is only an additional "restriction" from the special point of view of Article 304 (b) which requires Presidential sanction.25. Although, a petition under Article 32 alleging infringement of the fundamental right guaranteed under Article 19 (1) (g) of the Constitution would lie, yet, it has to be remembered that it cannot be allowed until such an infringement, falling outside Article 19 (6) of the Constitution, has been established. Now, as we have mentioned earlier, learned Counsel for the petitioners stated that no question about reasonableness of any restriction was being raised by them before us. They rested their case solely on the want of Presidential sanction to additional "restrictions on freedom of business, trade, and commerce which are not, as we have indicated earlier, to be equated with a mere reduction of the area of freedom of choice of those who are engaged or who want to engage in a business or trade. The passage cited in Hughes case 1955 AC 241 (supra) from the Bank of New South Wales case 1950 AC 285 (supra) makes that clear. In other words, an allegedly additional restriction on trade and commerce is to be judged from a broader and more general angle of the freedom of a particular trade. What may be a restriction of his choice from the point of view of an individual citizen engaged in a trade, may not be a restriction on inter State or intra - State commerce viewed from the angle of the trade as a whole. Even if we could not, as we did not, find any additional restrictions on the silkworm and silk production business and industry in the amendments, the petitioners could show that they were unduly hampered by the impugned amendments from carrying on their business or trade by some unreasonable restrictions on their fundamental rights as individuals engaged in silk production industry or business. But, if that was their grievance, they had to demonstrate an unreasonableness of restrictions upon their activities falling outside Article 19 (6) before they could succeed. They have not even attempted to do that. It is evident that they could not do so because the licensing fee for various activities to be licensed is quite nominal and they have not been denied any licences they wanted.
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0
### Explanation:
We do not think that the mere fact that the legality of an enactment is challenged forwith the proviso to Article 304 (b) of the Constitution would take away the character or substance of a petitioners claim when a citizen comes to Court with the allegation that his fundamental right to carry on business or trade is affected adversely by a provision which does not legallygoing through these rules, the validity of which was not challenged, we are satisfied that no additional restriction is imposed by the Amending Section 4 (1).Here also we are unable to find any substance in the grievance that there has been any significant increase inis true that even without a change in the nature of violations punished, those who contravene the provisions of the Act are subjected to somewhat severer punishment. But, the increase in the penalties is such, in view of the change in the value of money, as not to amount to an appreciable increase in restriction even from the point of view of a person who wants to break the restrictive laws. Penalties are really part of the procedure for the enforcement of restrictions. They do not create new offences. They only make violation of whatever restrictions on trade and commerce were there more onerous. We, therefore. doubt very much whether they could really, be looked upon as additional restrictions upon freedom of trade andKhyerbari Tea Cos case (supra), the Court, proceeding on the assumption that the tax was not compensatory upheld its validity, presumably because it was considered reasonable and in public interest as a restriction. No such question of reasonableness of any restriction imposed by the Amending Act before us has been raised by the petitioners. But, if the position of even taxation, from the point of view of "restrictions" contemplated by Article 304 (b) of the Constitution could be doubtful and depended upon its nature and extent and purpose, we think that there could be no doubt that some additional licensing, at nominal fees charged presumably to defray the expenses of carrying out the objects of the Act, could not he held to be anything more than "regulation" in the cases beforecarry on various activities in connection with the silk production industry and business so that their purely business and industrial activities may be watched and the quality and reputation of this industry and trade of Mysore may be maintained. Such "regulation", it is contended, ultimately contributes to greater flow and freedom of trade, even if it involves some "inconvenience to those who have to take out licenses which, according to rules, were granted to all those found qualified. We find considerable weight in these arguments, In any case, we are not satisfied that there has been a real increase in restrictions upon commerce in silkworms and cocoons by the provisions of the Amending Act which mostly cover what was already laid down ,by the statutory rules. If the substance of statutory rules is converted into statutory provisions there could hardly be said to be an addition even in "regulation " imposed by the amendingthe case before us, the amendments did not, in our opinion, go beyond a regulation which was fully authorised by the language of the provisions of the Principal Act. Even any additional licensing involved did not go beyond the purview of the provisions of the Principal Act. and the rules framed thereunder. The mere change in form, from statutory rules to statutory provisions, could hardly constitute even additional "regulation", It is only an additional "restriction" from the special point of view of Article 304 (b) which requires Presidential sanction.25. Although, a petition under Article 32 alleging infringement of the fundamental right guaranteed under Article 19 (1) (g) of the Constitution would lie, yet, it has to be remembered that it cannot be allowed until such an infringement, falling outside Article 19 (6) of the Constitution, has been established. Now, as we have mentioned earlier, learnedCounsel for the petitioners stated that no question about reasonableness of any restriction was being raised by them before us. They rested their case solely on the want of Presidential sanction to additional "restrictions on freedom of business, trade, and commerce which are not, as we have indicated earlier, to be equated with a mere reduction of the area of freedom of choice of those who are engaged or who want to engage in a business or trade.The passage cited in Hughes case 1955 AC 241 (supra) from the Bank of New South Wales case 1950 AC 285 (supra) makes that clear. In other words, an allegedly additional restriction on trade and commerce is to be judged from a broader and more general angle of the freedom of a particular trade. What may be a restriction of his choice from the point of view of an individual citizen engaged in a trade, may not be a restriction on inter State or intraState commerce viewed from the angle of the trade as a whole. Even if we could not, as we did not, find any additional restrictions on the silkworm and silk production business and industry in the amendments, the petitioners could show that they were unduly hampered by the impugned amendments from carrying on their business or trade by some unreasonable restrictions on their fundamental rights as individuals engaged in silk production industry or business. But, if that was their grievance, they had to demonstrate an unreasonableness of restrictions upon their activities falling outside Article 19 (6) before they could succeed. They have not even attempted to do that. It is evident that they could not do so because the licensing fee for various activities to be licensed is quite nominal and they have not been denied any licences they wanted.
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P. Bhooma Reddy Vs. State Of Mysore & Ors | is a dispute on the question whether the circular was sent to the districts of Gulberga and Raichur.In so far as the circular attempted to modify Rule 19 it was ineffective. The Excise Commissioner, had no power to abrogate or modify a rule framed under Section 71.On behalf of the appellant it was argued that as the Chief Controlling Authority the Excise Commissioner could frame regulations under Section 3 read with Rule 24 and could issue general instructions on the subject of taking security in cases not cover by R. 19. We express no opinion on this question, as the Government has already withdrawn the circular. But we must observe that relying on this circular the appellant deposited two months rent as required by the circular in addition to the two months rent as required by Rule 19 sub-rule (2) and that such deposits were duly made within 15 days from the date of the sale. However, it is not necessary for the appellant to rely on the terms of the circular. He has complied with the provisions of Rule 19 and the sale in his favour cannot be cancelled.15. On behalf of respondent No. 4 it is argued that the appellant bought the right of retail vend as benamidar for some other person, that his benami bid was opposed to R.12 and could not be accepted and that as the sale of liquor by the real buyer without a licence in his favour was illegal in view of Sections 15 and 26, the appellant was not entitled to any relief in view of the decision in Venkata Subbayya v. Attar Sheikh Mastan, AIR 1949 Mad 252 . The onus is upon the respondent to prove that the appellant made a benami purchase. It appears that the appellant is a retired inspector drawing a pension of about Rs. 75/- per month. He is not an income-tax or a wealth tax assessee. He does not own any property in Mysore State. The appellant says that he owns immovable properties in Andhra pradesh but he did not file the title deeds in respect of them. However, the appellant was in possession of a large amount of ready cash. Before June 25, he deposited about Rs. 40 lakhs and thereafter deposited about Rs. 50 lakhs. There can be no doubt that the appellant has the backing of powerful financiers. There is no specific charge that some named person is the real purchaser. From the materials on the record it is not possible to record a finding that the appellant is a benamidar and that some other person is the real purchaser. The purchase is not illegal merely because the appellant obtained the necessary funds from some financiers. The government never alleged that the appellants bid was a benami bid and opposed to Rule 12. His bid was accepted and such acceptance was subsequently confirmed. Under Rule 17 (1) the confirmation is effective until revised by the appropriate authority. It is neither alleged nor proved that some person other than the appellant had been managing the shops and selling liquor in contravention of Section 15. Respondent No. 4 has failed to establish contravention of either Rule 12 or Section 15. The High Court was in error in holding that the appellants bid was opposed to Rule 12.16. Having regard to the fact that the appellant had already deposited about Rs. 40 lakhs the Divisional Commissioner, Gulbarga, acted rather precipitately and harshly in cancelling the sale. For the reasons already given, the order of cancellation (Ex. J) is invalid. The order must be set aside and a writ of mandamus must issue for the grant of licences to the appellant.17. Some complication arises out of the fact that the licences have been granted to respondent No. 4 after the disposal of the writ petitions by the High Court. Licences cannot be given to both the appellant and respondent No. 4 for retail vend of liquors in respect of the same groups of shops. In order to give effect to our order or the issue of licences in favour of the appellant it is necessary to give the further direction that the licences issued to respondent No. 4 should be cancelled. We can give this direction as respondent No. 4 is a party to this appeal.18. While holding that Rule 17 sub-rule (4) did not compel the officer conducting the sale to accept the next highest offer of respondent No. 4 the High Court observed that the authorities concerned should consider the advisability of accepting his bid. This observation is not in accordance with law and has given rise to unnecessary complications.Rule 17 (4) provides thatif the officer conducting the sale rejects the highest bid or offer, he may either accept the next highest bid or offer or re-sell the shop."The sub-rule cannot be invoked if the officer conducting the sale has accepted the highest offer. In the present case, the officer accepted the appellants highest offer and later confirmed it. The confirmation is still effective under Rule 17 (1). If for some reason the confirmation is subsequently revised or set aside, the officer cannot act under Rule 17 (4). In such a case there must be a fresh disposal of the right of retail vend of liquor in accordance with the Rules.It follows that the bid of respondent No. 4 could not be accepted under Rule 17 (4) after the disposal of the writ petitions on September 19.19. It is rather surprising that the government acted so hastily and issued licences to respondent No. 4 on or about September 18. It is not quite clear how licences in respect of l168 shops could be issued on a single day. The effect of this precipitate action on the part of the government was that the appellant could not on the next day obtain a stay of the operation of the High Courts order. There is ground for suspecting that the government was favouring respondent No. 4. | 1[ds]8. In our opinion, the provision of Rule 19 sub-rule (1) requiring the successful bidder to furnish a statement of his properties to the Tahsildar and the provisions of Rule 19 sub-rules (3) and (4) do not apply where the shops in respect of which the right of retail vend is sold are situated in more than one tahsil. The opening part of Rule 19 sub-rule (1) requires the purchaser to furnish to "the tahsildar" the location of the shops and the boundaries of the shop sites.The expression "the Tahsildar" is not defined but it is reasonable to think that the details regarding the shops should be furnished to the Tahsildar within whose tahsil the shops are situated. If the shops are situated in more than one tahsil the details can be furnished to several Tahsildars. But it is not possible to give effect to the last part of sub-rule (1) and the provisions of sub-rules (3) and (4) in cases where the shops are situated in more than one tahsil.The statement of immovable properties under the last part of sub-rule (1) can be furnished to only one Tahsildar so that he can peruse the same and on such perusal or on independent inquiry ascertain under sub-rule (3) whether or not the purchaser is of doubtful solvency and satisfy himself under sub-rule (4) whether or not the value of the immovable properties tendered as security is adequate. Sub-rules (3) and (4) do not contemplate findings by more than one Tahsildar nor do they provide any machinery for resolving the conflict of opinion, if any, between two or more Tahsildars. In our opinion, the last part of sub-rule (1) and the provisions of sub-rules (3) and (4) do not apply where the shops are situated in two or more tahsils.The right of retail vend sold to the appellant is in respect of shops situated in 19 tahsils in the districts of Raichur and Gulberga. Consequently, those provisions were not attracted to this sale and the appellant was not required to comply with those provisions.9. The Divisional Commissioner, Gulberga, could not record a finding under Rule 19 sub-rule (3) that the purchaser was of doubtful solvency. Even a Tahsildar could not record such a finding without making an independent inquiry where no statement regarding immovable properties was furnished under sub-rule (1). No independent inquiry under sub-rule (3) was made by any Tahsildar. For this reason also the appellant cannot be regarded as a person of doubtful solvency and he was therefore not required to comply with the provisions of sub-rule (3). The appellant has so far deposited about Rs. 90,00,000/- and it is impossible to believe that he is a person of doubtful solvency.10. The remaining charge is that the appellant did not "at once" apply for licences.Rule 20 (2) provides for the forfeiture of the deposits on failure to comply with the provisions of Rule 19. Under the Mysore Excise Licences (General Conditions) Rules, 1967 a licensee is required to commence his business on July 1. The purpose of the Act and the Rules is achieved if the application for licence is made within sufficient time so as to enable the issue of licences before July 1. Having regard to the object of the Act and the Rules the expression "at once" in Rule 19 sub-rule (1) means within a reasonable time before July 1.It could not have been intended that the deposits would be forfeited where the purchaser applies for licence within a reasonable time. The appellant sufficiently complied with Rule 19 sub-rule (1) by applying under Ex. B, to the Excise Commissioner for permission to obtain licences and by applying to the Divisional Commissioner on June 18 for the issue of licences.In view of this conclusion it is not necessary to consider whether Rule 19 sub-rule (3) offends Articles 14 and 19 of the Constitution and we express no opinion on the question. We cannot agree with the proposition that the appellant is estopped from challenging the constitutionality and vires of the sub-rule. It is true that Rule 24 provides that the purchaser shall be bound by all the rules. But if Rule 19 sub-rule (3) offends Articles 14 and 19 it is non est and there can be no question of the appellant being bound by a rule which does not exist. Though we express no opinion on the vires of the sub-rule, we must observe that Rule 19 is clumsily drafted, its import is not clear, its tight time schedule works hardship and its procedure is cumbersome. The Government should immediately consider the question of redrafting Rule 19. It may be noted that Mr. Narasaraju conceded that Rule 19 is not beyond the rule-making powers of the State Government.Having regard to the fact that the appellant had already deposited about Rs. 40 lakhs the Divisional Commissioner, Gulbarga, acted rather precipitately and harshly in cancelling the sale. For the reasons already given, the order of cancellation (Ex. J) is invalid. The order must be set aside and a writ of mandamus must issue for the grant of licences to the appellant.17. Some complication arises out of the fact that the licences have been granted to respondent No. 4 after the disposal of the writ petitions by the High Court. Licences cannot be given to both the appellant and respondent No. 4 for retail vend of liquors in respect of the same groups of shops. In order to give effect to our order or the issue of licences in favour of the appellant it is necessary to give the further direction that the licences issued to respondent No. 4 should be cancelled. We can give this direction as respondent No. 4 is a party to this appeal.18. While holding that Rule 17 sub-rule (4) did not compel the officer conducting the sale to accept the next highest offer of respondent No. 4 the High Court observed that the authorities concerned should consider the advisability of accepting his bid. This observation is not in accordance with law and has given rise to unnecessary complications.Rule 17 (4) provides thatif the officer conducting the sale rejects the highest bid or offer, he may either accept the next highest bid or offer or re-sell the shop."The sub-rule cannot be invoked if the officer conducting the sale has accepted the highest offer. In the present case, the officer accepted the appellants highest offer and later confirmed it. The confirmation is still effective under Rule 17 (1). If for some reason the confirmation is subsequently revised or set aside, the officer cannot act under Rule 17 (4). In such a case there must be a fresh disposal of the right of retail vend of liquor in accordance with the Rules.It follows that the bid of respondent No. 4 could not be accepted under Rule 17 (4) after the disposal of the writ petitions on September 19.19. It is rather surprising that the government acted so hastily and issued licences to respondent No. 4 on or about September 18. It is not quite clear how licences in respect of l168 shops could be issued on a single day. The effect of this precipitate action on the part of the government was that the appellant could not on the next day obtain a stay of the operation of the High Courts order. There is ground for suspecting that the government was favouring respondent No. 4. | 1 | 5,823 | 1,390 | ### 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:
is a dispute on the question whether the circular was sent to the districts of Gulberga and Raichur.In so far as the circular attempted to modify Rule 19 it was ineffective. The Excise Commissioner, had no power to abrogate or modify a rule framed under Section 71.On behalf of the appellant it was argued that as the Chief Controlling Authority the Excise Commissioner could frame regulations under Section 3 read with Rule 24 and could issue general instructions on the subject of taking security in cases not cover by R. 19. We express no opinion on this question, as the Government has already withdrawn the circular. But we must observe that relying on this circular the appellant deposited two months rent as required by the circular in addition to the two months rent as required by Rule 19 sub-rule (2) and that such deposits were duly made within 15 days from the date of the sale. However, it is not necessary for the appellant to rely on the terms of the circular. He has complied with the provisions of Rule 19 and the sale in his favour cannot be cancelled.15. On behalf of respondent No. 4 it is argued that the appellant bought the right of retail vend as benamidar for some other person, that his benami bid was opposed to R.12 and could not be accepted and that as the sale of liquor by the real buyer without a licence in his favour was illegal in view of Sections 15 and 26, the appellant was not entitled to any relief in view of the decision in Venkata Subbayya v. Attar Sheikh Mastan, AIR 1949 Mad 252 . The onus is upon the respondent to prove that the appellant made a benami purchase. It appears that the appellant is a retired inspector drawing a pension of about Rs. 75/- per month. He is not an income-tax or a wealth tax assessee. He does not own any property in Mysore State. The appellant says that he owns immovable properties in Andhra pradesh but he did not file the title deeds in respect of them. However, the appellant was in possession of a large amount of ready cash. Before June 25, he deposited about Rs. 40 lakhs and thereafter deposited about Rs. 50 lakhs. There can be no doubt that the appellant has the backing of powerful financiers. There is no specific charge that some named person is the real purchaser. From the materials on the record it is not possible to record a finding that the appellant is a benamidar and that some other person is the real purchaser. The purchase is not illegal merely because the appellant obtained the necessary funds from some financiers. The government never alleged that the appellants bid was a benami bid and opposed to Rule 12. His bid was accepted and such acceptance was subsequently confirmed. Under Rule 17 (1) the confirmation is effective until revised by the appropriate authority. It is neither alleged nor proved that some person other than the appellant had been managing the shops and selling liquor in contravention of Section 15. Respondent No. 4 has failed to establish contravention of either Rule 12 or Section 15. The High Court was in error in holding that the appellants bid was opposed to Rule 12.16. Having regard to the fact that the appellant had already deposited about Rs. 40 lakhs the Divisional Commissioner, Gulbarga, acted rather precipitately and harshly in cancelling the sale. For the reasons already given, the order of cancellation (Ex. J) is invalid. The order must be set aside and a writ of mandamus must issue for the grant of licences to the appellant.17. Some complication arises out of the fact that the licences have been granted to respondent No. 4 after the disposal of the writ petitions by the High Court. Licences cannot be given to both the appellant and respondent No. 4 for retail vend of liquors in respect of the same groups of shops. In order to give effect to our order or the issue of licences in favour of the appellant it is necessary to give the further direction that the licences issued to respondent No. 4 should be cancelled. We can give this direction as respondent No. 4 is a party to this appeal.18. While holding that Rule 17 sub-rule (4) did not compel the officer conducting the sale to accept the next highest offer of respondent No. 4 the High Court observed that the authorities concerned should consider the advisability of accepting his bid. This observation is not in accordance with law and has given rise to unnecessary complications.Rule 17 (4) provides thatif the officer conducting the sale rejects the highest bid or offer, he may either accept the next highest bid or offer or re-sell the shop."The sub-rule cannot be invoked if the officer conducting the sale has accepted the highest offer. In the present case, the officer accepted the appellants highest offer and later confirmed it. The confirmation is still effective under Rule 17 (1). If for some reason the confirmation is subsequently revised or set aside, the officer cannot act under Rule 17 (4). In such a case there must be a fresh disposal of the right of retail vend of liquor in accordance with the Rules.It follows that the bid of respondent No. 4 could not be accepted under Rule 17 (4) after the disposal of the writ petitions on September 19.19. It is rather surprising that the government acted so hastily and issued licences to respondent No. 4 on or about September 18. It is not quite clear how licences in respect of l168 shops could be issued on a single day. The effect of this precipitate action on the part of the government was that the appellant could not on the next day obtain a stay of the operation of the High Courts order. There is ground for suspecting that the government was favouring respondent No. 4.
### Response:
1
### Explanation:
(3) and (4) do not contemplate findings by more than one Tahsildar nor do they provide any machinery for resolving the conflict of opinion, if any, between two or more Tahsildars. In our opinion, the last part of sub-rule (1) and the provisions of sub-rules (3) and (4) do not apply where the shops are situated in two or more tahsils.The right of retail vend sold to the appellant is in respect of shops situated in 19 tahsils in the districts of Raichur and Gulberga. Consequently, those provisions were not attracted to this sale and the appellant was not required to comply with those provisions.9. The Divisional Commissioner, Gulberga, could not record a finding under Rule 19 sub-rule (3) that the purchaser was of doubtful solvency. Even a Tahsildar could not record such a finding without making an independent inquiry where no statement regarding immovable properties was furnished under sub-rule (1). No independent inquiry under sub-rule (3) was made by any Tahsildar. For this reason also the appellant cannot be regarded as a person of doubtful solvency and he was therefore not required to comply with the provisions of sub-rule (3). The appellant has so far deposited about Rs. 90,00,000/- and it is impossible to believe that he is a person of doubtful solvency.10. The remaining charge is that the appellant did not "at once" apply for licences.Rule 20 (2) provides for the forfeiture of the deposits on failure to comply with the provisions of Rule 19. Under the Mysore Excise Licences (General Conditions) Rules, 1967 a licensee is required to commence his business on July 1. The purpose of the Act and the Rules is achieved if the application for licence is made within sufficient time so as to enable the issue of licences before July 1. Having regard to the object of the Act and the Rules the expression "at once" in Rule 19 sub-rule (1) means within a reasonable time before July 1.It could not have been intended that the deposits would be forfeited where the purchaser applies for licence within a reasonable time. The appellant sufficiently complied with Rule 19 sub-rule (1) by applying under Ex. B, to the Excise Commissioner for permission to obtain licences and by applying to the Divisional Commissioner on June 18 for the issue of licences.In view of this conclusion it is not necessary to consider whether Rule 19 sub-rule (3) offends Articles 14 and 19 of the Constitution and we express no opinion on the question. We cannot agree with the proposition that the appellant is estopped from challenging the constitutionality and vires of the sub-rule. It is true that Rule 24 provides that the purchaser shall be bound by all the rules. But if Rule 19 sub-rule (3) offends Articles 14 and 19 it is non est and there can be no question of the appellant being bound by a rule which does not exist. Though we express no opinion on the vires of the sub-rule, we must observe that Rule 19 is clumsily drafted, its import is not clear, its tight time schedule works hardship and its procedure is cumbersome. The Government should immediately consider the question of redrafting Rule 19. It may be noted that Mr. Narasaraju conceded that Rule 19 is not beyond the rule-making powers of the State Government.Having regard to the fact that the appellant had already deposited about Rs. 40 lakhs the Divisional Commissioner, Gulbarga, acted rather precipitately and harshly in cancelling the sale. For the reasons already given, the order of cancellation (Ex. J) is invalid. The order must be set aside and a writ of mandamus must issue for the grant of licences to the appellant.17. Some complication arises out of the fact that the licences have been granted to respondent No. 4 after the disposal of the writ petitions by the High Court. Licences cannot be given to both the appellant and respondent No. 4 for retail vend of liquors in respect of the same groups of shops. In order to give effect to our order or the issue of licences in favour of the appellant it is necessary to give the further direction that the licences issued to respondent No. 4 should be cancelled. We can give this direction as respondent No. 4 is a party to this appeal.18. While holding that Rule 17 sub-rule (4) did not compel the officer conducting the sale to accept the next highest offer of respondent No. 4 the High Court observed that the authorities concerned should consider the advisability of accepting his bid. This observation is not in accordance with law and has given rise to unnecessary complications.Rule 17 (4) provides thatif the officer conducting the sale rejects the highest bid or offer, he may either accept the next highest bid or offer or re-sell the shop."The sub-rule cannot be invoked if the officer conducting the sale has accepted the highest offer. In the present case, the officer accepted the appellants highest offer and later confirmed it. The confirmation is still effective under Rule 17 (1). If for some reason the confirmation is subsequently revised or set aside, the officer cannot act under Rule 17 (4). In such a case there must be a fresh disposal of the right of retail vend of liquor in accordance with the Rules.It follows that the bid of respondent No. 4 could not be accepted under Rule 17 (4) after the disposal of the writ petitions on September 19.19. It is rather surprising that the government acted so hastily and issued licences to respondent No. 4 on or about September 18. It is not quite clear how licences in respect of l168 shops could be issued on a single day. The effect of this precipitate action on the part of the government was that the appellant could not on the next day obtain a stay of the operation of the High Courts order. There is ground for suspecting that the government was favouring respondent No. 4.
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THE INCOME TAX OFFICER, Vs. URBAN IMPROVEMENT TRUST | constituted in India by or under any law enacted for the purpose of planning, development or improvement of cities, towns and villages or for both. There cannot be any dispute that Urban Improvement Trust, i.e. the assessee was fully covered by the definition of authorities as contained in Section 10(20A) prior to its deletion. When there is a specific deletion of Section 10(20A), the said deletion was for an object and purpose. The Explanatory Notes in Paragraph Nos. 13.1 to 13.4 as noticed above clearly mentioned that ?income of certain Housing Boards etc. to become taxable?. The deletion of authorities, which were enumerated in Section 10(20A) was a clear indicator that such authorities, which were enjoying exemption under Section 10(20A) shall no longer be entitled to enjoy the exemption henceforth. The deletion of Section 10(20A) thus has to be given a purpose and meaning. 34. This Court in New Okhla Industrial Development Authority Vs. Chief Commissioner of Income Tax & Ors. (supra), which was a judgment delivered by this very Bench had considered in detail the object and purpose of Section 10(20A), the object and purpose of Finance Act, 2002 amendment adding the Explanation to Section 10(20) and deletion of Section 10(20A). 35. The provisions of Sections 47 and 48 are to permit certain powers of the municipal boards to be performed by the Trust which does not transform the Trust into a Municipal Committee. The power entrusted under Sections 47 and 48 are for limited purpose, for purposes of carrying out the improvement by the Improvement Trusts. 36. Sections 61 to 64 as noticed above are the provisions empowering levy of betterment charges, which is again in reference to and in context of carrying out improvement by the Improvement Trust in urban areas. The Municipal Board, Kota performs its functions, in areas where Municipal Board still exists. There is no reason to accept that Urban Improvement Trust is a Municipal Committee within the meaning of Section 10(20) Explanation Clause (iii). Coming back to Section 105, which provides for ultimate dissolution of Trust and transfer of its assets and liabilities to the Municipal Board, this provision does not in any manner improve the case of the assessee. When the Trust is dissolved or at dissolution, properties and funds and dues vested in or realisable by the Trust shall vest in and be realisable by the Municipal Board, which is a provision for different purpose and object. The above provision does not support the contention that Improvement Trust is a Municipal Committee as referred to in Clause (iii) of Explanation to Section 10(20) of the I.T. Act. 37. We, thus, are of the view that Scheme of the Rajasthan Urban Improvement Act, 1959 does not permit acceptance of the contention of the appellant assessee that Urban Improvement Trust is a Municipal Committee within the meaning of Section 10(20) Explanation (iii). The purpose and object for expression ?Municipal Committee? used in Section 10(20) Explanation (iii) has been explained, as already noticed above, by this Court?s judgment in Agricultural Produce Market Committee Narela, Delhi (supra). 38. The entire consideration of the High Court in the impugned judgment is contained in paragraph 15 to 18 which are to the following effect:-?15. It is true that the functions which are carried out by the assessee are statutory functions and carry on for the benefit of the State Government for urban development therefore, in our considered opinion, the functions carried out by the authority is a supreme function and fall within the activity of the State Government. 16. In that view of the matter, the judgments which are strongly relied upon by counsel for the department are of no help in the facts of the case as the case relied upon by the department was in respect of industrial corporation which was under the statute for the purpose of making profit. The fees and other charges which are covered are statutorily for the development of the urban area. In that view of the matter, the judgment which sought to be relied upon by the counsel for the respondents, in our considered opinion, would be of importance and the functions which are carried out by the assessee is statutory function. In our considered opinion, under clause-10(20) & Sub- clause (3) Municipal Committee and District Board are legal entity entrusted by the function of the Government within the control or management of the municipal or local authority and will try to help the assessee. 17. In that view of the matter, the reliance placed by counsel for the department regarding 10(20) and explanation A will not make any difference. Taking into consideration income of authority is under constitution of India vide order enacted either for the purpose of dealing with or setting up the housing scheme for the purpose of planning and development of the improvement of the cities, town and villages or both for which the authority are created to carry out the function of State which are sovereign whereas the urban development and calculation of development charges will fall under the development charges. 18. In that view of the matter, deletion of 20A will not make difference in case of assessee. In our considered opinion, Clause-3 will come in the help of the assessee. In that view of the matter, we are considered opinion, that the authority assessee is a local authority for the purpose of carrying out of the improvement and development function of the State.?39. The High Court based its decision on the fact that functions carried out by the assessee are statutory functions and it is carrying on the functions for the benefit of the State Government for urban development. The said reasoning cannot lead to the conclusion that it is a Municipal Committee within the meaning of Section 10(20) Explanation Clause (iii). The High Court has not adverted to the relevant facts and circumstances and without considering the relevant aspects has arrived at erroneous conclusions. Judgments of the High Court are unsustainable. | 1[ds]27. A perusal of the Scheme of the Rajasthan Urban Improvement Act, 1959 as well as the Rajasthan Municipalities Act, 1959 indicate that Urban Improvement Trust undertakes development in the urban area included in municipality/municipal board. Urban Improvement Trust is not constituted in place of the municipality/municipal board rather it undertakes the act of improvement in urban areas of a municipality/municipal board under the Rajasthan Urban Improvement Act, 1959. It may also perform certain limited power of the municipal board as referred to in Sections 47 and 48 but on the strength of such provision Urban Improvement Trust does not become a municipality or municipal board. After the insertion of Part IXA in the Constitution by the ConstitutionAmendment Act, 1992 w.e.f. 01.06.1993, Articles 243Q deals with constitution of Municipalities. Section 10(20) Explanation, Clause (ii) relates to Municipalities.In above case, this Court, thus, has held that the expression ?Municipal Committee and District Board? occurring in Clause (iii) of Explanation referred to those bodies, which are discharging municipal functions and power in any part of country and so far has not been substituted by any other Body by any Act of Legislature. The word ?Municipal Committee? occurring in Clause (iii) Explanation, thus, has a definite purpose and object. Purpose and object was to cover those bodies, which are discharging municipal functions but are not covered by the definition of municipalities as was required to be constituted by Article 243Q of the Constitution of India. Urban Improvement Trust constituted under the Rajasthan Urban Improvement Act, 1959, thus, cannot be held to be covered by the definition of Municipal Committee as contained in Clause (iii) of Explanation to Section 10(20) of the I.T. Act. Further, as noticed above, prior to deletion of Section 10(20A), Section 10(20A) was a provision which exempted the income of authority constituted in India by or under any law enacted for the purpose of planning, development or improvement of cities, towns and villages or for both. There cannot be any dispute that Urban Improvement Trust, i.e. the assessee was fully covered by the definition of authorities as contained in Section 10(20A) prior to its deletion. When there is a specific deletion of Section 10(20A), the said deletion was for an object and purpose. The Explanatory Notes in Paragraph Nos. 13.1 to 13.4 as noticed above clearly mentioned that ?income of certain Housing Boards etc. to become taxable?. The deletion of authorities, which were enumerated in Section 10(20A) was a clear indicator that such authorities, which were enjoying exemption under Section 10(20A) shall no longer be entitled to enjoy the exemption henceforth. The deletion of Section 10(20A) thus has to be given a purpose and meaning.The provisions of Sections 47 and 48 are to permit certain powers of the municipal boards to be performed by the Trust which does not transform the Trust into a Municipal Committee. The power entrusted under Sections 47 and 48 are for limited purpose, for purposes of carrying out the improvement by the Improvement Trusts.Sections 61 to 64 as noticed above are the provisions empowering levy of betterment charges, which is again in reference to and in context of carrying out improvement by the Improvement Trust in urban areas. The Municipal Board, Kota performs its functions, in areas where Municipal Board still exists. There is no reason to accept that Urban Improvement Trust is a Municipal Committee within the meaning of Section 10(20) Explanation Clause (iii). Coming back to Section 105, which provides for ultimate dissolution of Trust and transfer of its assets and liabilities to the Municipal Board, this provision does not in any manner improve the case of the assessee. When the Trust is dissolved or at dissolution, properties and funds and dues vested in or realisable by the Trust shall vest in and be realisable by the Municipal Board, which is a provision for different purpose and object. The above provision does not support the contention that Improvement Trust is a Municipal Committee as referred to in Clause (iii) of Explanation to Section 10(20) of the I.T. Act.We, thus, are of the view that Scheme of the Rajasthan Urban Improvement Act, 1959 does not permit acceptance of the contention of the appellant assessee that Urban Improvement Trust is a Municipal Committee within the meaning of Section 10(20) Explanation (iii). The purpose and object for expression ?Municipal Committee? used in Section 10(20) Explanation (iii) has been explained, as already noticed above, by this Court?s judgment in Agricultural Produce Market Committee Narela, Delhi (supra).The High Court based its decision on the fact that functions carried out by the assessee are statutory functions and it is carrying on the functions for the benefit of the State Government for urban development. The said reasoning cannot lead to the conclusion that it is a Municipal Committee within the meaning of Section 10(20) Explanation Clause (iii). The High Court has not adverted to the relevant facts and circumstances and without considering the relevant aspects has arrived at erroneous conclusions. Judgments of the High Court are unsustainable. | 1 | 7,891 | 987 | ### Instruction:
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constituted in India by or under any law enacted for the purpose of planning, development or improvement of cities, towns and villages or for both. There cannot be any dispute that Urban Improvement Trust, i.e. the assessee was fully covered by the definition of authorities as contained in Section 10(20A) prior to its deletion. When there is a specific deletion of Section 10(20A), the said deletion was for an object and purpose. The Explanatory Notes in Paragraph Nos. 13.1 to 13.4 as noticed above clearly mentioned that ?income of certain Housing Boards etc. to become taxable?. The deletion of authorities, which were enumerated in Section 10(20A) was a clear indicator that such authorities, which were enjoying exemption under Section 10(20A) shall no longer be entitled to enjoy the exemption henceforth. The deletion of Section 10(20A) thus has to be given a purpose and meaning. 34. This Court in New Okhla Industrial Development Authority Vs. Chief Commissioner of Income Tax & Ors. (supra), which was a judgment delivered by this very Bench had considered in detail the object and purpose of Section 10(20A), the object and purpose of Finance Act, 2002 amendment adding the Explanation to Section 10(20) and deletion of Section 10(20A). 35. The provisions of Sections 47 and 48 are to permit certain powers of the municipal boards to be performed by the Trust which does not transform the Trust into a Municipal Committee. The power entrusted under Sections 47 and 48 are for limited purpose, for purposes of carrying out the improvement by the Improvement Trusts. 36. Sections 61 to 64 as noticed above are the provisions empowering levy of betterment charges, which is again in reference to and in context of carrying out improvement by the Improvement Trust in urban areas. The Municipal Board, Kota performs its functions, in areas where Municipal Board still exists. There is no reason to accept that Urban Improvement Trust is a Municipal Committee within the meaning of Section 10(20) Explanation Clause (iii). Coming back to Section 105, which provides for ultimate dissolution of Trust and transfer of its assets and liabilities to the Municipal Board, this provision does not in any manner improve the case of the assessee. When the Trust is dissolved or at dissolution, properties and funds and dues vested in or realisable by the Trust shall vest in and be realisable by the Municipal Board, which is a provision for different purpose and object. The above provision does not support the contention that Improvement Trust is a Municipal Committee as referred to in Clause (iii) of Explanation to Section 10(20) of the I.T. Act. 37. We, thus, are of the view that Scheme of the Rajasthan Urban Improvement Act, 1959 does not permit acceptance of the contention of the appellant assessee that Urban Improvement Trust is a Municipal Committee within the meaning of Section 10(20) Explanation (iii). The purpose and object for expression ?Municipal Committee? used in Section 10(20) Explanation (iii) has been explained, as already noticed above, by this Court?s judgment in Agricultural Produce Market Committee Narela, Delhi (supra). 38. The entire consideration of the High Court in the impugned judgment is contained in paragraph 15 to 18 which are to the following effect:-?15. It is true that the functions which are carried out by the assessee are statutory functions and carry on for the benefit of the State Government for urban development therefore, in our considered opinion, the functions carried out by the authority is a supreme function and fall within the activity of the State Government. 16. In that view of the matter, the judgments which are strongly relied upon by counsel for the department are of no help in the facts of the case as the case relied upon by the department was in respect of industrial corporation which was under the statute for the purpose of making profit. The fees and other charges which are covered are statutorily for the development of the urban area. In that view of the matter, the judgment which sought to be relied upon by the counsel for the respondents, in our considered opinion, would be of importance and the functions which are carried out by the assessee is statutory function. In our considered opinion, under clause-10(20) & Sub- clause (3) Municipal Committee and District Board are legal entity entrusted by the function of the Government within the control or management of the municipal or local authority and will try to help the assessee. 17. In that view of the matter, the reliance placed by counsel for the department regarding 10(20) and explanation A will not make any difference. Taking into consideration income of authority is under constitution of India vide order enacted either for the purpose of dealing with or setting up the housing scheme for the purpose of planning and development of the improvement of the cities, town and villages or both for which the authority are created to carry out the function of State which are sovereign whereas the urban development and calculation of development charges will fall under the development charges. 18. In that view of the matter, deletion of 20A will not make difference in case of assessee. In our considered opinion, Clause-3 will come in the help of the assessee. In that view of the matter, we are considered opinion, that the authority assessee is a local authority for the purpose of carrying out of the improvement and development function of the State.?39. The High Court based its decision on the fact that functions carried out by the assessee are statutory functions and it is carrying on the functions for the benefit of the State Government for urban development. The said reasoning cannot lead to the conclusion that it is a Municipal Committee within the meaning of Section 10(20) Explanation Clause (iii). The High Court has not adverted to the relevant facts and circumstances and without considering the relevant aspects has arrived at erroneous conclusions. Judgments of the High Court are unsustainable.
### Response:
1
### Explanation:
27. A perusal of the Scheme of the Rajasthan Urban Improvement Act, 1959 as well as the Rajasthan Municipalities Act, 1959 indicate that Urban Improvement Trust undertakes development in the urban area included in municipality/municipal board. Urban Improvement Trust is not constituted in place of the municipality/municipal board rather it undertakes the act of improvement in urban areas of a municipality/municipal board under the Rajasthan Urban Improvement Act, 1959. It may also perform certain limited power of the municipal board as referred to in Sections 47 and 48 but on the strength of such provision Urban Improvement Trust does not become a municipality or municipal board. After the insertion of Part IXA in the Constitution by the ConstitutionAmendment Act, 1992 w.e.f. 01.06.1993, Articles 243Q deals with constitution of Municipalities. Section 10(20) Explanation, Clause (ii) relates to Municipalities.In above case, this Court, thus, has held that the expression ?Municipal Committee and District Board? occurring in Clause (iii) of Explanation referred to those bodies, which are discharging municipal functions and power in any part of country and so far has not been substituted by any other Body by any Act of Legislature. The word ?Municipal Committee? occurring in Clause (iii) Explanation, thus, has a definite purpose and object. Purpose and object was to cover those bodies, which are discharging municipal functions but are not covered by the definition of municipalities as was required to be constituted by Article 243Q of the Constitution of India. Urban Improvement Trust constituted under the Rajasthan Urban Improvement Act, 1959, thus, cannot be held to be covered by the definition of Municipal Committee as contained in Clause (iii) of Explanation to Section 10(20) of the I.T. Act. Further, as noticed above, prior to deletion of Section 10(20A), Section 10(20A) was a provision which exempted the income of authority constituted in India by or under any law enacted for the purpose of planning, development or improvement of cities, towns and villages or for both. There cannot be any dispute that Urban Improvement Trust, i.e. the assessee was fully covered by the definition of authorities as contained in Section 10(20A) prior to its deletion. When there is a specific deletion of Section 10(20A), the said deletion was for an object and purpose. The Explanatory Notes in Paragraph Nos. 13.1 to 13.4 as noticed above clearly mentioned that ?income of certain Housing Boards etc. to become taxable?. The deletion of authorities, which were enumerated in Section 10(20A) was a clear indicator that such authorities, which were enjoying exemption under Section 10(20A) shall no longer be entitled to enjoy the exemption henceforth. The deletion of Section 10(20A) thus has to be given a purpose and meaning.The provisions of Sections 47 and 48 are to permit certain powers of the municipal boards to be performed by the Trust which does not transform the Trust into a Municipal Committee. The power entrusted under Sections 47 and 48 are for limited purpose, for purposes of carrying out the improvement by the Improvement Trusts.Sections 61 to 64 as noticed above are the provisions empowering levy of betterment charges, which is again in reference to and in context of carrying out improvement by the Improvement Trust in urban areas. The Municipal Board, Kota performs its functions, in areas where Municipal Board still exists. There is no reason to accept that Urban Improvement Trust is a Municipal Committee within the meaning of Section 10(20) Explanation Clause (iii). Coming back to Section 105, which provides for ultimate dissolution of Trust and transfer of its assets and liabilities to the Municipal Board, this provision does not in any manner improve the case of the assessee. When the Trust is dissolved or at dissolution, properties and funds and dues vested in or realisable by the Trust shall vest in and be realisable by the Municipal Board, which is a provision for different purpose and object. The above provision does not support the contention that Improvement Trust is a Municipal Committee as referred to in Clause (iii) of Explanation to Section 10(20) of the I.T. Act.We, thus, are of the view that Scheme of the Rajasthan Urban Improvement Act, 1959 does not permit acceptance of the contention of the appellant assessee that Urban Improvement Trust is a Municipal Committee within the meaning of Section 10(20) Explanation (iii). The purpose and object for expression ?Municipal Committee? used in Section 10(20) Explanation (iii) has been explained, as already noticed above, by this Court?s judgment in Agricultural Produce Market Committee Narela, Delhi (supra).The High Court based its decision on the fact that functions carried out by the assessee are statutory functions and it is carrying on the functions for the benefit of the State Government for urban development. The said reasoning cannot lead to the conclusion that it is a Municipal Committee within the meaning of Section 10(20) Explanation Clause (iii). The High Court has not adverted to the relevant facts and circumstances and without considering the relevant aspects has arrived at erroneous conclusions. Judgments of the High Court are unsustainable.
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Champa Kumari Singhi & Ors Vs. The Member Board Of Revenue, West Bengaland Others | from 1952 to 31st March 1957. It was however, provided as follows:".......provided however that in the event of due and punctual payment of all instalments Government will give up the sum of Rs. 11,49,019/5/- with interest thereon, from the last instalment and accept the sum of Rs. 55,99,822/6/- with interest thereon in full settlement of the balance due provided further that in the event of any default in payment of any sum on due date therefrom or in the event of it being found that the guarantee hereby given or any part thereof is not enforceable for any reason whatsoever there will be no abatement and the parties of the first and second part will pay the full sum of Rs. 67,48,841/11/-.The monies payable on 31st March, 1953, 31st March, 1954, 31st March, 1955, 31st March, 1956 and 31st March, 1957 shall be applied pro rata towards the tax liability of the party of the first part and the parties of the second part mentioned in Schedule "Y" hereto.The said parties shall however be at liberty to make any part payment at any time towards the said instalments not less that Rs. 10,000 (Rupees ten thousand) at a time.4. In the event of any instalment not being paid within the time mentioned above (such time being deemed to be of the essence of the arrangement) or in the event of it being found that the guarantee hereby given or any part thereof is not enforceable for any reason whatsoever the whole of the balance of the said sum of Rs. 67,48,841/11/- will at once become due and payable with interest at the rate aforesaid and Government will (in addition to all rights for enforcement of this document) be entitled to take all steps to enforce payment including issue of certificate under Section 46 (2) of the Income Tax Act and proceedings under the West Bengal Public Demands Recovery Act and Revenue Recovery Act."16. The contention of the appellants is that the letters of the 22nd September, 1952 (one of which has been reproduced above as a sample) were accompanied by the notices of demand and on the breach of the payment of the instalment of Rs. 9,50,000/- on 31st March, 1953, the appellants became defaulters within the meaning of the Act in respect of the whole amount of tax. Therefore recovery proceedings could only commence within the end of a financial year commencing from 31st March, 1953 since the payment of the instalment was co-terminus with the end of the financial year. This, according to them, was provided in the agreement itself in the extract just reproduced from the agreements above. The other side contends that Clause (iv) of the proviso to Section 46, sub-sec. (7) takes no account of the exigibility of the whole amount under a scheme of payment by instalments. Whenever instalments are granted the period of limitation counts from the last instalment and here it would be one year from March 31, 1957. The default could be taken note of earlier also because the whole amount remained exigible the moment the first default was made. In the present case the certificate was issued on March 14, 1956 and, therefore, it was well within the period of limitation.17. The learned single Judge in the case (Sinha, J.) very rightly pointed out that under the agreements two things were done. Firstly, the total liability of the parties was calculated and each party became jointly and severally liable for the whole sum. Then instalments were fixed and on the breach of a single instalment the whole of the amount became exigible. The assessment order reproduced the agreement as part of it and the agreement therefore became the assessment order. Under the assessment order a notice of demand was sent to pay the money of the first instalments of Rs. 9,50,000 by March 31, 1953. On breach of it the whole amount was said to be exigible and the demand in respect of that was also made. The appellants, therefore, rightly concluded the Judge, became defaulters on the failure to pay the first instalment. Since instalments were granted Clause (iv) of the proviso to sub-section (7) of Section 46 applied to the case. This conclusion is correct. That clause does not mention about the exigibility of the whole amount or exigibility of any particular instalment. It only says that if instalments are granted time of one year ending with the end of a financial year is to be calculated from the date on which the last instalment is payable. The language of Clause (iv) of the proviso was unfortunate in expressing this intent and has now been corrected in the new Act but the intention was always obvious. Even in the second agreement which replaced the first agreement the same condition obtained. There was a concession shown in the matter of penalty and smaller instalments were fixed. But the Central Board of Revenue had stipulated even then that the concession mentioned above would only be available if the revised scheme of payment was strictly followed. In other words, payment was to be made by instalments and this concession therefore attracted the provisions of Cl. (iv). The Government could always accept any instalment even if paid late without having to worry about the period of limitation of one year from the date of demand, since Clause (iv) of the first proviso gave them an option to wait till the last instalment was payable.The scheme of the instalments took the matter out of the main part of sub-section (7) and brought it within the provision to Cl. (iv). We are, therefore, satisfied that the High Court was right in holding that the certificates were issued within the period of limitation prescribed by law and were not barred by time. The first four appeals therefore fail and are dismissed with costs. The other appeals need not be considered since special leave was granted against the main order and those appeals themselves have failed. | 0[ds]15. To begin with there is an error in the fourth clause of the first proviso inasmuch as the words "be reckoned" have been inadvertently left out in that clause. The intention to use those words is obvious from the way in which the first three clauses are worded. Supplying those words, because they were inadvertently omitted, it is clear that one of two limitations is applicable to the present case, according to the circumstances of the case. If it is to be considered under the main clause of(7), then we have to find out whether the whole of the amount was payable by a particular date on which the assessee can be said to have become a defaulter. If, however, the fourth clause of the proviso applies then we have to see whether by reason of the grant of instalments, limitation would only commence to run from the date on which the last of the instalments was payable. In this connection reference has been made by the High Court and the Board of Revenue to the agreements and the letters written sending the assessment orders and the notices of demand. The agreements set out a scheme of payments by instalments and the entire sum payable was RupeesThis was payable in different instalments, from 1952 to 31st March 1957. It was however, provided ashowever that in the event of due and punctual payment of all instalments Government will give up the sum of Rs. 11,49,019/5/with interest thereon, from the last instalment and accept the sum of Rs. 55,99,822/6/with interest thereon in full settlement of the balance due provided further that in the event of any default in payment of any sum on due date therefrom or in the event of it being found that the guarantee hereby given or any part thereof is not enforceable for any reason whatsoever there will be no abatement and the parties of the first and second part will pay the full sum of Rs.monies payable on 31st March, 1953, 31st March, 1954, 31st March, 1955, 31st March, 1956 and 31st March, 1957 shall be applied pro rata towards the tax liability of the party of the first part and the parties of the second part mentioned in Schedule "Y" hereto.The said parties shall however be at liberty to make any part payment at any time towards the said instalments not less that Rs. 10,000 (Rupees ten thousand) at a time.4. In the event of any instalment not being paid within the time mentioned above (such time being deemed to be of the essence of the arrangement) or in the event of it being found that the guarantee hereby given or any part thereof is not enforceable for any reason whatsoever the whole of the balance of the said sum of Rs. 67,48,841/11/will at once become due and payable with interest at the rate aforesaid and Government will (in addition to all rights for enforcement of this document) be entitled to take all steps to enforce payment including issue of certificate under Section 46 (2) of the Income Tax Act and proceedings under the West Bengal Public Demands Recovery Act and Revenue Recoveryrecovery proceedings could only commence within the end of a financial year commencing from 31st March, 1953 since the payment of the instalment waswith the end of the financial year. This, according to them, was provided in the agreement itself in the extract just reproduced from the agreementsare, therefore, satisfied that the High Court was right in holding that the certificates were issued within the period of limitation prescribed by law and were not barred by time. The first four appeals therefore fail and are dismissed with costs. The other appeals need not be considered since special leave was granted against the main order and those appeals themselves havethe assessee is a defaulter, no action can be taken against him under Section 46.of the terms of the agreement does not amount to a default under Sectione the first thing we have to see is when the assessees became defaulters. For deciding that question reference to the agreement is irrelevant. Admittedly demand notices under Section 29 had been issued to the assessees on September 22, 1952 in respect of the entire tax due from them. Therefore they became defaulters as soon as they failed to comply with those demands. | 0 | 3,822 | 789 | ### Instruction:
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from 1952 to 31st March 1957. It was however, provided as follows:".......provided however that in the event of due and punctual payment of all instalments Government will give up the sum of Rs. 11,49,019/5/- with interest thereon, from the last instalment and accept the sum of Rs. 55,99,822/6/- with interest thereon in full settlement of the balance due provided further that in the event of any default in payment of any sum on due date therefrom or in the event of it being found that the guarantee hereby given or any part thereof is not enforceable for any reason whatsoever there will be no abatement and the parties of the first and second part will pay the full sum of Rs. 67,48,841/11/-.The monies payable on 31st March, 1953, 31st March, 1954, 31st March, 1955, 31st March, 1956 and 31st March, 1957 shall be applied pro rata towards the tax liability of the party of the first part and the parties of the second part mentioned in Schedule "Y" hereto.The said parties shall however be at liberty to make any part payment at any time towards the said instalments not less that Rs. 10,000 (Rupees ten thousand) at a time.4. In the event of any instalment not being paid within the time mentioned above (such time being deemed to be of the essence of the arrangement) or in the event of it being found that the guarantee hereby given or any part thereof is not enforceable for any reason whatsoever the whole of the balance of the said sum of Rs. 67,48,841/11/- will at once become due and payable with interest at the rate aforesaid and Government will (in addition to all rights for enforcement of this document) be entitled to take all steps to enforce payment including issue of certificate under Section 46 (2) of the Income Tax Act and proceedings under the West Bengal Public Demands Recovery Act and Revenue Recovery Act."16. The contention of the appellants is that the letters of the 22nd September, 1952 (one of which has been reproduced above as a sample) were accompanied by the notices of demand and on the breach of the payment of the instalment of Rs. 9,50,000/- on 31st March, 1953, the appellants became defaulters within the meaning of the Act in respect of the whole amount of tax. Therefore recovery proceedings could only commence within the end of a financial year commencing from 31st March, 1953 since the payment of the instalment was co-terminus with the end of the financial year. This, according to them, was provided in the agreement itself in the extract just reproduced from the agreements above. The other side contends that Clause (iv) of the proviso to Section 46, sub-sec. (7) takes no account of the exigibility of the whole amount under a scheme of payment by instalments. Whenever instalments are granted the period of limitation counts from the last instalment and here it would be one year from March 31, 1957. The default could be taken note of earlier also because the whole amount remained exigible the moment the first default was made. In the present case the certificate was issued on March 14, 1956 and, therefore, it was well within the period of limitation.17. The learned single Judge in the case (Sinha, J.) very rightly pointed out that under the agreements two things were done. Firstly, the total liability of the parties was calculated and each party became jointly and severally liable for the whole sum. Then instalments were fixed and on the breach of a single instalment the whole of the amount became exigible. The assessment order reproduced the agreement as part of it and the agreement therefore became the assessment order. Under the assessment order a notice of demand was sent to pay the money of the first instalments of Rs. 9,50,000 by March 31, 1953. On breach of it the whole amount was said to be exigible and the demand in respect of that was also made. The appellants, therefore, rightly concluded the Judge, became defaulters on the failure to pay the first instalment. Since instalments were granted Clause (iv) of the proviso to sub-section (7) of Section 46 applied to the case. This conclusion is correct. That clause does not mention about the exigibility of the whole amount or exigibility of any particular instalment. It only says that if instalments are granted time of one year ending with the end of a financial year is to be calculated from the date on which the last instalment is payable. The language of Clause (iv) of the proviso was unfortunate in expressing this intent and has now been corrected in the new Act but the intention was always obvious. Even in the second agreement which replaced the first agreement the same condition obtained. There was a concession shown in the matter of penalty and smaller instalments were fixed. But the Central Board of Revenue had stipulated even then that the concession mentioned above would only be available if the revised scheme of payment was strictly followed. In other words, payment was to be made by instalments and this concession therefore attracted the provisions of Cl. (iv). The Government could always accept any instalment even if paid late without having to worry about the period of limitation of one year from the date of demand, since Clause (iv) of the first proviso gave them an option to wait till the last instalment was payable.The scheme of the instalments took the matter out of the main part of sub-section (7) and brought it within the provision to Cl. (iv). We are, therefore, satisfied that the High Court was right in holding that the certificates were issued within the period of limitation prescribed by law and were not barred by time. The first four appeals therefore fail and are dismissed with costs. The other appeals need not be considered since special leave was granted against the main order and those appeals themselves have failed.
### Response:
0
### Explanation:
15. To begin with there is an error in the fourth clause of the first proviso inasmuch as the words "be reckoned" have been inadvertently left out in that clause. The intention to use those words is obvious from the way in which the first three clauses are worded. Supplying those words, because they were inadvertently omitted, it is clear that one of two limitations is applicable to the present case, according to the circumstances of the case. If it is to be considered under the main clause of(7), then we have to find out whether the whole of the amount was payable by a particular date on which the assessee can be said to have become a defaulter. If, however, the fourth clause of the proviso applies then we have to see whether by reason of the grant of instalments, limitation would only commence to run from the date on which the last of the instalments was payable. In this connection reference has been made by the High Court and the Board of Revenue to the agreements and the letters written sending the assessment orders and the notices of demand. The agreements set out a scheme of payments by instalments and the entire sum payable was RupeesThis was payable in different instalments, from 1952 to 31st March 1957. It was however, provided ashowever that in the event of due and punctual payment of all instalments Government will give up the sum of Rs. 11,49,019/5/with interest thereon, from the last instalment and accept the sum of Rs. 55,99,822/6/with interest thereon in full settlement of the balance due provided further that in the event of any default in payment of any sum on due date therefrom or in the event of it being found that the guarantee hereby given or any part thereof is not enforceable for any reason whatsoever there will be no abatement and the parties of the first and second part will pay the full sum of Rs.monies payable on 31st March, 1953, 31st March, 1954, 31st March, 1955, 31st March, 1956 and 31st March, 1957 shall be applied pro rata towards the tax liability of the party of the first part and the parties of the second part mentioned in Schedule "Y" hereto.The said parties shall however be at liberty to make any part payment at any time towards the said instalments not less that Rs. 10,000 (Rupees ten thousand) at a time.4. In the event of any instalment not being paid within the time mentioned above (such time being deemed to be of the essence of the arrangement) or in the event of it being found that the guarantee hereby given or any part thereof is not enforceable for any reason whatsoever the whole of the balance of the said sum of Rs. 67,48,841/11/will at once become due and payable with interest at the rate aforesaid and Government will (in addition to all rights for enforcement of this document) be entitled to take all steps to enforce payment including issue of certificate under Section 46 (2) of the Income Tax Act and proceedings under the West Bengal Public Demands Recovery Act and Revenue Recoveryrecovery proceedings could only commence within the end of a financial year commencing from 31st March, 1953 since the payment of the instalment waswith the end of the financial year. This, according to them, was provided in the agreement itself in the extract just reproduced from the agreementsare, therefore, satisfied that the High Court was right in holding that the certificates were issued within the period of limitation prescribed by law and were not barred by time. The first four appeals therefore fail and are dismissed with costs. The other appeals need not be considered since special leave was granted against the main order and those appeals themselves havethe assessee is a defaulter, no action can be taken against him under Section 46.of the terms of the agreement does not amount to a default under Sectione the first thing we have to see is when the assessees became defaulters. For deciding that question reference to the agreement is irrelevant. Admittedly demand notices under Section 29 had been issued to the assessees on September 22, 1952 in respect of the entire tax due from them. Therefore they became defaulters as soon as they failed to comply with those demands.
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Rashpal Malhotra Vs. Mrs. Satya Rajput and Another | fact was known to the party suing. There, the Court observed that there could not be any controversy that Rajendra Prasad oil Mills, Kanpur was an undertaking owned by N.K. Industries limited. Satish Chandra J. as the learned Chief J ustice then was, observed that in certain circumstances a limited company carrying on business in an assumed name by concealment of its own corporate name is a person within meaning of order 30 Rule 10 of the Code of Civil Procedure. Same is the view of the Rajasthan High Court in the case of M/s. M.K.M. Moosa Bhai Amin, Kota v. Rajasthan Textile Mills, Bhawanimandi, A.I.R. 1974 Rajasthan 194 where it was held that where a limited company carried on a business in an assumed name and a suit came to be filed against the defendant in that name in respect of price due on sale of goods in view of section 3(42) of the General Clauses Act, 1897 the expression person as used in the Code of Civil Procedure order 30 Rule 10 in the suit filed ag ainst the defendant in the name assumed by the limited company was tenable under order 30 Rule 10 of the Code of Civil Procedure. The Kerala High Court, however, in the case of Educational Supplies Depot, Trivandrum v. Vithoba High School and others, [1970] Kerala Law Journal Reports 43 held that a decree could not be passed against a school as it was not a juristic entity much less a person to hold property. It may be mentioned that subsequently the Kailash Chemical and Textile Mills Ltd. h as changed its name to the Haryana Milk Food Corporation and they have merged formerly, but that is subsequent to the lease and the institution of the suit. It is manifest from the position that parties knew that Kailash Chemical and Textile Mills Ltd. was the owner of the Haryana Milk Food Corporation. Kailash Chemical and Textile Mills Ltd., accepted that position as it would be apparent from the grounds filed before the Appellate Authority. Mr. Garg, learned counsel for the appellant, however, tried to emphasise that in view of the definition of tenant under section 2(i) of the Rent Act the right of eviction under section 13 in the suit as framed was not maintainable.It has been held by all the Courts that the parties knew who were the tenants, it is apparent that the appellant was not the tenant. It was held by the Rent Controller that one of the grounds for eviction was bona fide need of the landlord. The Appellate Authority and the High Court did not go into this question. The parties were aware that the Kailash Chemical and Textile Mills Ltd., was the real owner of the Haryana Milk Food Corporation. Neither Haryana Milk Food Corporation nor Kailash Chemical and Textile Mills was prejudiced by holding that the lessee was not the appellant and they have not been prejudiced by not being made formal parties. In the aforesaid view of the matter, we are inclined not to interfere with the order of eviction. 4. It has to be borne in min d that this is an appeal under Article 136 of the Constitution. This Court in Heavy Engineering Corporation Ltd. Ranchi v. K. Singh and Company, Ranchi, A.I.R. 1977 Supreme Court 2031 expressed the opinion that although the powers of this Court were wide under Article 136 it could not be urged that because leave had been granted the Court must always in every case deal with the merits even though it was satisfied that the ends of justice did not justify its interference in a given ca se. It is not as if, in an appeal with leave under Article 136, this Court was bound to decide the question if on facts at the later hearing the Court felt that the ends of justice did not make it necessary to decide the point. Similarly in Baigana and others v. Deputy Collector of Consolidation and others, [ 1978] 3 S.C.R. 509 this Court expressed the view that this Court was more than a Court of appeal. It exercises power only when there is supreme need. It is not the fifth court o f appeal but the final court of the nation. Therefore, even if legal flaws might be electronically detected, we cannot interfere save manifest injustice or substantial question of public importance. In this case it is apparent from the facts placed before us and the High Court and the courts below that there is a genuine need of the landlady for the premises in question. It has been established clearly that the tenancy agreement was not with the appellant and the lease was signed by the appellant on behalf of other entity though not strictly legal but it was entered by a legal entitly, namely Kailash Chemical and Textile Mills Ltd. It has been held that no deposit had been made in accordance with law by three Courts. Merely because in the form of the lease Kailash Chemical and Textile Mills Ltd., was not mentioned and as such was not made a party to the suit and the lease was purported to be entered with an entity which is not a juristic person and a suit was filed against such non-juristic person, this Court should not interfere with the conclusions arrived at by the learned Appellate Authority and the High Court. It has to be borne in mind that this Court in exercising its power under Article 136 of the Constitution acts not only as a court of law but also as a court of equity and must subserve ultimately the cause of justice. In this case, there is evidence that there is some bona fide need of the landlady for her family. After a long la pse of time, in the facts and the circumstances of this case we decline to interfere with the findings arrived at by the High Court and the Courts below. | 0[ds]It was contended in the grounds of said appeal, that the relationship of the landlord and tenant between respondent No. 1 and the appellant did not stand proved from the material on record. It was further contended that the note signed by the appellant that the order dated 5th May, 1979 had virtually held Kailash Chemical and Textile Mills Ltd., as liable. It had treated Haryana Milk Food Corporation as synonymous with Kailash Chemical and Textile Mills Ltd., and it was, therefore, aggrieved by the said order. That appeal had been filed by Haryana Milk Food Corporation through its General Manager and Kai lash Chemical and Textile Mills Ltd., through its Director. Therefore, Kailash Chemical and Textile Mills Ltd., accepted that this was the company which owned Haryana Milk Food Corporation and it was a legal entityIt has been established clearly that the tenancy agreement was not with the appellant and the lease was signed by the appellant on behalf of other entity though not strictly legal but it was entered by a legal entitly, namely Kailash Chemical and Textile Mills Ltd. It has been held that no deposit had been made in accordance with law by three Courts. Merely because in the form of the lease Kailash Chemical and Textile Mills Ltd., was not mentioned and as such was not made a party to the suit and the lease was purported to be entered with an entity which is not a juristic person and a suit was filed against such non-juristic person, this Court should not interfere with the conclusions arrived at by the learned Appellate Authority and the High Court. It has to be borne in mind that this Court in exercising its power under Article 136 of the Constitution acts not only as a court of law but also as a court of equity and must subserve ultimately the cause of justice. In this case, there is evidence that there is some bona fide need of the landlady for her family. After a long la pse of time, in the facts and the circumstances of this case we decline to interfere with the findings arrived at by the High Court and the Courts below. | 0 | 2,511 | 396 | ### 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:
fact was known to the party suing. There, the Court observed that there could not be any controversy that Rajendra Prasad oil Mills, Kanpur was an undertaking owned by N.K. Industries limited. Satish Chandra J. as the learned Chief J ustice then was, observed that in certain circumstances a limited company carrying on business in an assumed name by concealment of its own corporate name is a person within meaning of order 30 Rule 10 of the Code of Civil Procedure. Same is the view of the Rajasthan High Court in the case of M/s. M.K.M. Moosa Bhai Amin, Kota v. Rajasthan Textile Mills, Bhawanimandi, A.I.R. 1974 Rajasthan 194 where it was held that where a limited company carried on a business in an assumed name and a suit came to be filed against the defendant in that name in respect of price due on sale of goods in view of section 3(42) of the General Clauses Act, 1897 the expression person as used in the Code of Civil Procedure order 30 Rule 10 in the suit filed ag ainst the defendant in the name assumed by the limited company was tenable under order 30 Rule 10 of the Code of Civil Procedure. The Kerala High Court, however, in the case of Educational Supplies Depot, Trivandrum v. Vithoba High School and others, [1970] Kerala Law Journal Reports 43 held that a decree could not be passed against a school as it was not a juristic entity much less a person to hold property. It may be mentioned that subsequently the Kailash Chemical and Textile Mills Ltd. h as changed its name to the Haryana Milk Food Corporation and they have merged formerly, but that is subsequent to the lease and the institution of the suit. It is manifest from the position that parties knew that Kailash Chemical and Textile Mills Ltd. was the owner of the Haryana Milk Food Corporation. Kailash Chemical and Textile Mills Ltd., accepted that position as it would be apparent from the grounds filed before the Appellate Authority. Mr. Garg, learned counsel for the appellant, however, tried to emphasise that in view of the definition of tenant under section 2(i) of the Rent Act the right of eviction under section 13 in the suit as framed was not maintainable.It has been held by all the Courts that the parties knew who were the tenants, it is apparent that the appellant was not the tenant. It was held by the Rent Controller that one of the grounds for eviction was bona fide need of the landlord. The Appellate Authority and the High Court did not go into this question. The parties were aware that the Kailash Chemical and Textile Mills Ltd., was the real owner of the Haryana Milk Food Corporation. Neither Haryana Milk Food Corporation nor Kailash Chemical and Textile Mills was prejudiced by holding that the lessee was not the appellant and they have not been prejudiced by not being made formal parties. In the aforesaid view of the matter, we are inclined not to interfere with the order of eviction. 4. It has to be borne in min d that this is an appeal under Article 136 of the Constitution. This Court in Heavy Engineering Corporation Ltd. Ranchi v. K. Singh and Company, Ranchi, A.I.R. 1977 Supreme Court 2031 expressed the opinion that although the powers of this Court were wide under Article 136 it could not be urged that because leave had been granted the Court must always in every case deal with the merits even though it was satisfied that the ends of justice did not justify its interference in a given ca se. It is not as if, in an appeal with leave under Article 136, this Court was bound to decide the question if on facts at the later hearing the Court felt that the ends of justice did not make it necessary to decide the point. Similarly in Baigana and others v. Deputy Collector of Consolidation and others, [ 1978] 3 S.C.R. 509 this Court expressed the view that this Court was more than a Court of appeal. It exercises power only when there is supreme need. It is not the fifth court o f appeal but the final court of the nation. Therefore, even if legal flaws might be electronically detected, we cannot interfere save manifest injustice or substantial question of public importance. In this case it is apparent from the facts placed before us and the High Court and the courts below that there is a genuine need of the landlady for the premises in question. It has been established clearly that the tenancy agreement was not with the appellant and the lease was signed by the appellant on behalf of other entity though not strictly legal but it was entered by a legal entitly, namely Kailash Chemical and Textile Mills Ltd. It has been held that no deposit had been made in accordance with law by three Courts. Merely because in the form of the lease Kailash Chemical and Textile Mills Ltd., was not mentioned and as such was not made a party to the suit and the lease was purported to be entered with an entity which is not a juristic person and a suit was filed against such non-juristic person, this Court should not interfere with the conclusions arrived at by the learned Appellate Authority and the High Court. It has to be borne in mind that this Court in exercising its power under Article 136 of the Constitution acts not only as a court of law but also as a court of equity and must subserve ultimately the cause of justice. In this case, there is evidence that there is some bona fide need of the landlady for her family. After a long la pse of time, in the facts and the circumstances of this case we decline to interfere with the findings arrived at by the High Court and the Courts below.
### Response:
0
### Explanation:
It was contended in the grounds of said appeal, that the relationship of the landlord and tenant between respondent No. 1 and the appellant did not stand proved from the material on record. It was further contended that the note signed by the appellant that the order dated 5th May, 1979 had virtually held Kailash Chemical and Textile Mills Ltd., as liable. It had treated Haryana Milk Food Corporation as synonymous with Kailash Chemical and Textile Mills Ltd., and it was, therefore, aggrieved by the said order. That appeal had been filed by Haryana Milk Food Corporation through its General Manager and Kai lash Chemical and Textile Mills Ltd., through its Director. Therefore, Kailash Chemical and Textile Mills Ltd., accepted that this was the company which owned Haryana Milk Food Corporation and it was a legal entityIt has been established clearly that the tenancy agreement was not with the appellant and the lease was signed by the appellant on behalf of other entity though not strictly legal but it was entered by a legal entitly, namely Kailash Chemical and Textile Mills Ltd. It has been held that no deposit had been made in accordance with law by three Courts. Merely because in the form of the lease Kailash Chemical and Textile Mills Ltd., was not mentioned and as such was not made a party to the suit and the lease was purported to be entered with an entity which is not a juristic person and a suit was filed against such non-juristic person, this Court should not interfere with the conclusions arrived at by the learned Appellate Authority and the High Court. It has to be borne in mind that this Court in exercising its power under Article 136 of the Constitution acts not only as a court of law but also as a court of equity and must subserve ultimately the cause of justice. In this case, there is evidence that there is some bona fide need of the landlady for her family. After a long la pse of time, in the facts and the circumstances of this case we decline to interfere with the findings arrived at by the High Court and the Courts below.
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Sathe Biscuits & Chocolate Company& Others Vs. Union of India & Others | and the packing is to be returned in specie, the cost of packing does not "form a part of the sale price and cannot, therefore, included in the valuation for the purpose of computation of the levy."We are in respectful agreement with the view taken by the Full Bench of the Gujarat High Court.12. We may also refer to the decision of the Madhya Pradesh High Court in Birla Jute Manufacturing Co. Ltd. v. Union of India and others, 1980 E.L.T. 593. In that decision, the Division Bench while construing the definition of Value in section 4(4)(d)(i) has held that it is not necessary to get the benefit of the exception in the definition for the assessee to show that the packing material has been returned or the cost of the packing has been refunded because it is impossible to show at the stage of removal and "All that is necessary is to show that the packing is returnable by the buyer to the assessee under the terms of the sale." and "The question of actual return is entirely irrelevant".13. It was contended before us by Mr. Hidayatullah that this construction would not be beneficial to the Revenue because even if the packing is not returned to the manufacturer, though there is a term in the contract regarding returnability, the Revenue will be put to a great loss because for the purposes merely of excise duty, by merely relying on the contract, the cost of packing will be excluded from the value. When the words of the statute are clear and are not, in our view, capable of any other construction the consideration that the cost of the packing will wrongly get excluded in our view, appears to be wholly irrelevant.14. It need not be mentioned that the question whether in a given case, the packing is of a durable nature and is returnable by the buyer will have to be determined on the facts of each case and possibly in most cases on evidence with regard to the durability, and returnability. It is not therefore, possible to lay down whether in each case, the corrugated fibre containers or the wooden packing, as in the instant case, is of a durable nature or not. Mere assertion by the petitioners that these packings were of a durable nature would not be conclusive and if and when a question arises in a given case, these matters will have to be decided by the appropriate authorities in evidence, if necessary.15. It was contended by Mr. Ganesh, now appearing on behalf of the petitioners, that when we are laying down a criterion that the returnability must be under the terms of the sale or the contract between the wholeseller and the manufacturer, this must also include the usage of trade. In other words, the contention is that the returnability could depend on the usage of any particular trade or business and reference was made to the observations of the Supreme Court in the order dated 15th November, 1983 in the Bombay Tyre Internationals case reported in 1983 .C.R. 2233-D (S.C.). This order is in the nature of a clarification of the earlier decision dated 7th October, 1983. With regard to the trade discount, the Supreme Court observed as follows :---"Discount allowed in the Trade (by whatever name such discount is described) should be allowed to be deducted from the sale price having regard to the nature of the goods, if established under agreements or under terms of sale or by established practice, the allowance and the nature of the discount being known at or prior to the removal of the goods. Such Trade Discounts shall not be disallowed only because they are not payable at the time of each invoice or deducted from the invoice price."According to Mr. Ganesh, the Supreme Court has clearly indicated that if discount was being given as a result of established practice, that was liable to be deducted from the value and consequently by analogy, the returnability must also be decided on the basis of established practice or trade usage.16. Undoubtedly the Supreme Court has referred to the established practice of giving trade discount. But the Supreme Court also pointed out that the allowance and the nature of discount must be known at or prior to the removal of the goods. The value to be ascertained for the purposes of excise duty is the value at the time of removal of the goods. If there has to be some certainty with regard to the method and the manner by which allowance in respect of durable and returnable packing is to be given, the only way by which this can be done is to ascertain at the time of removal of the goods as to whether it is a term of the sale that the durable packing will be liable to be returned. It cannot be left to doubt as to whether in a given case, there is a practice or usage of returning the packings or not, because, as earlier pointed out, what is the obligation of the manufacturer to accept the returned packing which can be reused and the price of such packing is left out of consideration because if the said packing is reused, it will become liable to excise duty for the second time. We are, therefore, not satisfied that if it is not shown at the time of removal of the goods that under the terms of the sale, the packing was durable and liable to be returned, the price of such packing will still be excluded from the value.17. In this petition, the Company has proceeded on the footing that the packing is capable of being returned and not that it was returnable under the terms of the sale and, therefore, having regard to the view which we have taken, it is not possible to accept the contention of the petitioner company that they were not liable to pay the amount which was demanded. | 0[ds]By excepting the cost or packing which is of a durable nature and is returnable by the buyer, the legislature was clearly giving effect to the principle that no excise duty would be leviable on a packing which was capable of being reused because this would mean that the value of the same packing would being subject to excise duty more than once. We are, therefore, of the view that the cost of only such packing which is of a durable nature and is returnable under the terms of the contract between the manufacturer and the wholesaler is excludable from the value for the purposes of excise duty.It was contended before us by Mr. Hidayatullah that this construction would not be beneficial to the Revenue because even if the packing is not returned to the manufacturer, though there is a term in the contract regarding returnability, the Revenue will be put to a great loss because for the purposes merely of excise duty, by merely relying on the contract, the cost of packing will be excluded from the value. When the words of the statute are clear and are not, in our view, capable of any other construction the consideration that the cost of the packing will wrongly get excluded in our view, appears to be wholly irrelevant.Undoubtedly the Supreme Court has referred to the established practice of giving trade discount. But the Supreme Court also pointed out that the allowance and the nature of discount must be known at or prior to the removal of the goods. The value to be ascertained for the purposes of excise duty is the value at the time of removal of the goods. If there has to be some certainty with regard to the method and the manner by which allowance in respect of durable and returnable packing is to be given, the only way by which this can be done is to ascertain at the time of removal of the goods as to whether it is a term of the sale that the durable packing will be liable to be returned. It cannot be left to doubt as to whether in a given case, there is a practice or usage of returning the packings or not, because, as earlier pointed out, what is the obligation of the manufacturer to accept the returned packing which can be reused and the price of such packing is left out of consideration because if the said packing is reused, it will become liable to excise duty for the second time. We are, therefore, not satisfied that if it is not shown at the time of removal of the goods that under the terms of the sale, the packing was durable and liable to be returned, the price of such packing will still be excluded from the value.17. In this petition, the Company has proceeded on the footing that the packing is capable of being returned and not that it was returnable under the terms of the sale and, therefore, having regard to the view which we have taken, it is not possible to accept the contention of the petitioner company that they were not liable to pay the amount which was demanded. | 0 | 4,134 | 574 | ### 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:
and the packing is to be returned in specie, the cost of packing does not "form a part of the sale price and cannot, therefore, included in the valuation for the purpose of computation of the levy."We are in respectful agreement with the view taken by the Full Bench of the Gujarat High Court.12. We may also refer to the decision of the Madhya Pradesh High Court in Birla Jute Manufacturing Co. Ltd. v. Union of India and others, 1980 E.L.T. 593. In that decision, the Division Bench while construing the definition of Value in section 4(4)(d)(i) has held that it is not necessary to get the benefit of the exception in the definition for the assessee to show that the packing material has been returned or the cost of the packing has been refunded because it is impossible to show at the stage of removal and "All that is necessary is to show that the packing is returnable by the buyer to the assessee under the terms of the sale." and "The question of actual return is entirely irrelevant".13. It was contended before us by Mr. Hidayatullah that this construction would not be beneficial to the Revenue because even if the packing is not returned to the manufacturer, though there is a term in the contract regarding returnability, the Revenue will be put to a great loss because for the purposes merely of excise duty, by merely relying on the contract, the cost of packing will be excluded from the value. When the words of the statute are clear and are not, in our view, capable of any other construction the consideration that the cost of the packing will wrongly get excluded in our view, appears to be wholly irrelevant.14. It need not be mentioned that the question whether in a given case, the packing is of a durable nature and is returnable by the buyer will have to be determined on the facts of each case and possibly in most cases on evidence with regard to the durability, and returnability. It is not therefore, possible to lay down whether in each case, the corrugated fibre containers or the wooden packing, as in the instant case, is of a durable nature or not. Mere assertion by the petitioners that these packings were of a durable nature would not be conclusive and if and when a question arises in a given case, these matters will have to be decided by the appropriate authorities in evidence, if necessary.15. It was contended by Mr. Ganesh, now appearing on behalf of the petitioners, that when we are laying down a criterion that the returnability must be under the terms of the sale or the contract between the wholeseller and the manufacturer, this must also include the usage of trade. In other words, the contention is that the returnability could depend on the usage of any particular trade or business and reference was made to the observations of the Supreme Court in the order dated 15th November, 1983 in the Bombay Tyre Internationals case reported in 1983 .C.R. 2233-D (S.C.). This order is in the nature of a clarification of the earlier decision dated 7th October, 1983. With regard to the trade discount, the Supreme Court observed as follows :---"Discount allowed in the Trade (by whatever name such discount is described) should be allowed to be deducted from the sale price having regard to the nature of the goods, if established under agreements or under terms of sale or by established practice, the allowance and the nature of the discount being known at or prior to the removal of the goods. Such Trade Discounts shall not be disallowed only because they are not payable at the time of each invoice or deducted from the invoice price."According to Mr. Ganesh, the Supreme Court has clearly indicated that if discount was being given as a result of established practice, that was liable to be deducted from the value and consequently by analogy, the returnability must also be decided on the basis of established practice or trade usage.16. Undoubtedly the Supreme Court has referred to the established practice of giving trade discount. But the Supreme Court also pointed out that the allowance and the nature of discount must be known at or prior to the removal of the goods. The value to be ascertained for the purposes of excise duty is the value at the time of removal of the goods. If there has to be some certainty with regard to the method and the manner by which allowance in respect of durable and returnable packing is to be given, the only way by which this can be done is to ascertain at the time of removal of the goods as to whether it is a term of the sale that the durable packing will be liable to be returned. It cannot be left to doubt as to whether in a given case, there is a practice or usage of returning the packings or not, because, as earlier pointed out, what is the obligation of the manufacturer to accept the returned packing which can be reused and the price of such packing is left out of consideration because if the said packing is reused, it will become liable to excise duty for the second time. We are, therefore, not satisfied that if it is not shown at the time of removal of the goods that under the terms of the sale, the packing was durable and liable to be returned, the price of such packing will still be excluded from the value.17. In this petition, the Company has proceeded on the footing that the packing is capable of being returned and not that it was returnable under the terms of the sale and, therefore, having regard to the view which we have taken, it is not possible to accept the contention of the petitioner company that they were not liable to pay the amount which was demanded.
### Response:
0
### Explanation:
By excepting the cost or packing which is of a durable nature and is returnable by the buyer, the legislature was clearly giving effect to the principle that no excise duty would be leviable on a packing which was capable of being reused because this would mean that the value of the same packing would being subject to excise duty more than once. We are, therefore, of the view that the cost of only such packing which is of a durable nature and is returnable under the terms of the contract between the manufacturer and the wholesaler is excludable from the value for the purposes of excise duty.It was contended before us by Mr. Hidayatullah that this construction would not be beneficial to the Revenue because even if the packing is not returned to the manufacturer, though there is a term in the contract regarding returnability, the Revenue will be put to a great loss because for the purposes merely of excise duty, by merely relying on the contract, the cost of packing will be excluded from the value. When the words of the statute are clear and are not, in our view, capable of any other construction the consideration that the cost of the packing will wrongly get excluded in our view, appears to be wholly irrelevant.Undoubtedly the Supreme Court has referred to the established practice of giving trade discount. But the Supreme Court also pointed out that the allowance and the nature of discount must be known at or prior to the removal of the goods. The value to be ascertained for the purposes of excise duty is the value at the time of removal of the goods. If there has to be some certainty with regard to the method and the manner by which allowance in respect of durable and returnable packing is to be given, the only way by which this can be done is to ascertain at the time of removal of the goods as to whether it is a term of the sale that the durable packing will be liable to be returned. It cannot be left to doubt as to whether in a given case, there is a practice or usage of returning the packings or not, because, as earlier pointed out, what is the obligation of the manufacturer to accept the returned packing which can be reused and the price of such packing is left out of consideration because if the said packing is reused, it will become liable to excise duty for the second time. We are, therefore, not satisfied that if it is not shown at the time of removal of the goods that under the terms of the sale, the packing was durable and liable to be returned, the price of such packing will still be excluded from the value.17. In this petition, the Company has proceeded on the footing that the packing is capable of being returned and not that it was returnable under the terms of the sale and, therefore, having regard to the view which we have taken, it is not possible to accept the contention of the petitioner company that they were not liable to pay the amount which was demanded.
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GIRIRAJ GARG Vs. COAL INDIA LTD | LR 1 (SC) : 2009 (9) SCALE 298. this Court held that even though a contract between the parties did not contain a provision for arbitration, an arbitration clause contained in an independent document would be incorporated into the contract by reference, if the reference is such as to make the arbitration clause a part of the contract. The court explained the doctrine of incorporation in the following words - ?24. The scope and intent of Section 7(5) may therefore be summarised thus: (i) An arbitration clause in another document, would get incorporated into a contract by reference, if the following conditions are fulfilled : (1) The contract should contain a clear reference to the documents containing arbitration clause, (2) the reference to the other document should clearly indicate an intention to incorporate the arbitration clause into the contract, (3) The arbitration clause should be appropriate, that is capable of application in respect of disputes under the contract and should not be repugnant to any term of the contract. (ii) When the parties enter into a contract, making a general reference to another contract, such general reference would not have the effect of incorporating the arbitration clause from the referred document into the contract between the parties. The arbitration clause from another contract can be incorporated into the contract (where such reference is made), only by a specific reference to arbitration clause. (iii) Where a contract between the parties provides that the execution or performance of that contract shall be in terms of another contract (which contains the terms and conditions relating to performance and a provision for settlement of disputes by arbitration), then, the terms of the referred contract in regard to execution/performance alone will apply, and not the arbitration agreement in the referred contract, unless there is special reference to the arbitration clause also. (iv) Where the contract provides that the standard form of terms and conditions of an independent Trade or Professional Institution (as for example the Standard Terms & Conditions of a Trade Association or Architects Association) will bind them or apply to the contract, such standard form of terms and conditions including any provision for arbitration in such standard terms and conditions, shall be deemed to be incorporated by reference. Sometimes the contract may also say that the parties are familiar with those terms and conditions or that the parties have read and understood the said terms and conditions. (v) Where the contract between the parties stipulates that the Conditions of Contract of one of the parties to the contract shall form a part of their contract (as for example the General Conditions of Contract of the Government where Government is a party), the arbitration clause forming part of such General Conditions of contract will apply to the contract between the parties.? (emphasis supplied) 4.10. This Court in Inox Wind Ltd. v. Thermocables Ltd.(2018) 2 SCC 519 while adopting the ‘single contract case? and ‘two-contract case? principle laid down by Habas (supra), held that a general reference to a consensual standard form is sufficient for incorporation of an arbitration clause. In other words, general reference to a standard form contract of one party, would be sufficient for incorporation of the arbitration clause. In this case, the Court expanded the application of this doctrine by holding that even a general reference to a standard form contract of one party, along with those of trade associations, and professional bodies would be sufficient to incorporate the arbitration clause. 5. In the instant case, the learned Single Judge in the impugned Order has erroneously taken the view that an arbitration clause would not stand incorporated in the individual sale orders entered into by the Respondent No. 2 – Coal Company and the Appellant. The individual sale orders emanate out of the 2007 Scheme. The sale orders specifically state that they would be governed by the guidelines, circulars, office orders, notices, instructions, relevant law etc. issued from time to time by Coal India Limited or Bharat Coking Coal Limited etc. As a consequence, the arbitration clause (i.e. Clause 11.12) in the 2007 Scheme would stand incorporated in the sale orders issued thereunder. Clause 7 in the sale orders falls under the ‘single contract case? where the arbitration clause is contained in a standard form document i.e. the 2007 Scheme, to which there is a reference in the individual sale orders issued by Respondent No. 2 – the Coal Company. 5.1. The arbitration clause in the 2007 Scheme clearly states that : ?All disputes arising out of this scheme or in relation thereto in any form whatsoever shall be dealt exclusively by way of arbitration in terms of the Arbitration and Conciliation Act, 1996.? (emphasis supplied) Russell in his commentary on arbitration Russell on Arbitration (24 th Edn. ,2015, Sweet & Maxwell) pg. 82, para 2¬103 has interpreted these words as follows : "Disputes ?in connection with?, ?in relation to?, or ?regarding? a contract. These words, which are frequently encountered and are to be given the same meaning, were at one time given a restricted interpretation, but are now well established as having a broad meaning…..They may also be sufficient to catch disputes arising under another contract related to the contract containing the arbitration clause.? (emphasis supplied) In Renusagar Power Co. Ltd. v. General Electric Company and Anr.,[1985]1SCR432 this Court observed that expressions such as ?arising out of?, or ?in respect of?, or ?in connection with?, or ?in relation to?, the contract are of the widest amplitude, and content. In Doypack Systems Pvt. Ltd. v. Union of India and Ors.,1988 (36) ELT 201 (SC) this Court observed that expressions such as – ?pertaining to?, ?in relation to? and ?arising out of?, are used in the expansive sense, and must be construed accordingly. The words ?in relation thereto? used in Clause 11.12 of the 2007 Scheme indicate that the clause would apply to all transactions which took place under the 2007 Scheme. This would include the sale transactions in the present case. | 1[ds]Section 7(5) of the 1996 Act, closely replicates Article 7(2) 2 Art. 7. Definition and form of arbitration agreement.— (1) ‘Arbitration agreement? is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. (2) The arbitration agreement shall be in writing. An agreement is in writing if it is contained in a document signed by the parties or in an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement, or in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by another. The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement provided that the contract is in writing and the reference is such as to make that clause part of the contract. of the UNCITRAL Model Law as it stood prior to the 2006 amendment.This Court in Inox Wind Ltd. v. Thermocables Ltd.(2018) 2 SCC 519 while adopting the ‘single contract case? and ‘two-contract case? principle laid down by Habas (supra), held that a general reference to a consensual standard form is sufficient for incorporation of an arbitration clause. In other words, general reference to a standard form contract of one party, would be sufficient for incorporation of the arbitration clause. In this case, the Court expanded the application of this doctrine by holding that even a general reference to a standard form contract of one party, along with those of trade associations, and professional bodies would be sufficient to incorporate the arbitration clause.In the instant case, the learned Single Judge in the impugned Order has erroneously taken the view that an arbitration clause would not stand incorporated in the individual sale orders entered into by the Respondent No. 2 – Coal Company and the Appellant. The individual sale orders emanate out of the 2007 Scheme. The sale orders specifically state that they would be governed by the guidelines, circulars, office orders, notices, instructions, relevant law etc. issued from time to time by Coal India Limited or Bharat Coking Coal Limited etc. As a consequence, the arbitration clause (i.e. Clause 11.12) in the 2007 Scheme would stand incorporated in the sale orders issued thereunder. | 1 | 4,527 | 480 | ### 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:
LR 1 (SC) : 2009 (9) SCALE 298. this Court held that even though a contract between the parties did not contain a provision for arbitration, an arbitration clause contained in an independent document would be incorporated into the contract by reference, if the reference is such as to make the arbitration clause a part of the contract. The court explained the doctrine of incorporation in the following words - ?24. The scope and intent of Section 7(5) may therefore be summarised thus: (i) An arbitration clause in another document, would get incorporated into a contract by reference, if the following conditions are fulfilled : (1) The contract should contain a clear reference to the documents containing arbitration clause, (2) the reference to the other document should clearly indicate an intention to incorporate the arbitration clause into the contract, (3) The arbitration clause should be appropriate, that is capable of application in respect of disputes under the contract and should not be repugnant to any term of the contract. (ii) When the parties enter into a contract, making a general reference to another contract, such general reference would not have the effect of incorporating the arbitration clause from the referred document into the contract between the parties. The arbitration clause from another contract can be incorporated into the contract (where such reference is made), only by a specific reference to arbitration clause. (iii) Where a contract between the parties provides that the execution or performance of that contract shall be in terms of another contract (which contains the terms and conditions relating to performance and a provision for settlement of disputes by arbitration), then, the terms of the referred contract in regard to execution/performance alone will apply, and not the arbitration agreement in the referred contract, unless there is special reference to the arbitration clause also. (iv) Where the contract provides that the standard form of terms and conditions of an independent Trade or Professional Institution (as for example the Standard Terms & Conditions of a Trade Association or Architects Association) will bind them or apply to the contract, such standard form of terms and conditions including any provision for arbitration in such standard terms and conditions, shall be deemed to be incorporated by reference. Sometimes the contract may also say that the parties are familiar with those terms and conditions or that the parties have read and understood the said terms and conditions. (v) Where the contract between the parties stipulates that the Conditions of Contract of one of the parties to the contract shall form a part of their contract (as for example the General Conditions of Contract of the Government where Government is a party), the arbitration clause forming part of such General Conditions of contract will apply to the contract between the parties.? (emphasis supplied) 4.10. This Court in Inox Wind Ltd. v. Thermocables Ltd.(2018) 2 SCC 519 while adopting the ‘single contract case? and ‘two-contract case? principle laid down by Habas (supra), held that a general reference to a consensual standard form is sufficient for incorporation of an arbitration clause. In other words, general reference to a standard form contract of one party, would be sufficient for incorporation of the arbitration clause. In this case, the Court expanded the application of this doctrine by holding that even a general reference to a standard form contract of one party, along with those of trade associations, and professional bodies would be sufficient to incorporate the arbitration clause. 5. In the instant case, the learned Single Judge in the impugned Order has erroneously taken the view that an arbitration clause would not stand incorporated in the individual sale orders entered into by the Respondent No. 2 – Coal Company and the Appellant. The individual sale orders emanate out of the 2007 Scheme. The sale orders specifically state that they would be governed by the guidelines, circulars, office orders, notices, instructions, relevant law etc. issued from time to time by Coal India Limited or Bharat Coking Coal Limited etc. As a consequence, the arbitration clause (i.e. Clause 11.12) in the 2007 Scheme would stand incorporated in the sale orders issued thereunder. Clause 7 in the sale orders falls under the ‘single contract case? where the arbitration clause is contained in a standard form document i.e. the 2007 Scheme, to which there is a reference in the individual sale orders issued by Respondent No. 2 – the Coal Company. 5.1. The arbitration clause in the 2007 Scheme clearly states that : ?All disputes arising out of this scheme or in relation thereto in any form whatsoever shall be dealt exclusively by way of arbitration in terms of the Arbitration and Conciliation Act, 1996.? (emphasis supplied) Russell in his commentary on arbitration Russell on Arbitration (24 th Edn. ,2015, Sweet & Maxwell) pg. 82, para 2¬103 has interpreted these words as follows : "Disputes ?in connection with?, ?in relation to?, or ?regarding? a contract. These words, which are frequently encountered and are to be given the same meaning, were at one time given a restricted interpretation, but are now well established as having a broad meaning…..They may also be sufficient to catch disputes arising under another contract related to the contract containing the arbitration clause.? (emphasis supplied) In Renusagar Power Co. Ltd. v. General Electric Company and Anr.,[1985]1SCR432 this Court observed that expressions such as ?arising out of?, or ?in respect of?, or ?in connection with?, or ?in relation to?, the contract are of the widest amplitude, and content. In Doypack Systems Pvt. Ltd. v. Union of India and Ors.,1988 (36) ELT 201 (SC) this Court observed that expressions such as – ?pertaining to?, ?in relation to? and ?arising out of?, are used in the expansive sense, and must be construed accordingly. The words ?in relation thereto? used in Clause 11.12 of the 2007 Scheme indicate that the clause would apply to all transactions which took place under the 2007 Scheme. This would include the sale transactions in the present case.
### Response:
1
### Explanation:
Section 7(5) of the 1996 Act, closely replicates Article 7(2) 2 Art. 7. Definition and form of arbitration agreement.— (1) ‘Arbitration agreement? is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. (2) The arbitration agreement shall be in writing. An agreement is in writing if it is contained in a document signed by the parties or in an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement, or in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by another. The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement provided that the contract is in writing and the reference is such as to make that clause part of the contract. of the UNCITRAL Model Law as it stood prior to the 2006 amendment.This Court in Inox Wind Ltd. v. Thermocables Ltd.(2018) 2 SCC 519 while adopting the ‘single contract case? and ‘two-contract case? principle laid down by Habas (supra), held that a general reference to a consensual standard form is sufficient for incorporation of an arbitration clause. In other words, general reference to a standard form contract of one party, would be sufficient for incorporation of the arbitration clause. In this case, the Court expanded the application of this doctrine by holding that even a general reference to a standard form contract of one party, along with those of trade associations, and professional bodies would be sufficient to incorporate the arbitration clause.In the instant case, the learned Single Judge in the impugned Order has erroneously taken the view that an arbitration clause would not stand incorporated in the individual sale orders entered into by the Respondent No. 2 – Coal Company and the Appellant. The individual sale orders emanate out of the 2007 Scheme. The sale orders specifically state that they would be governed by the guidelines, circulars, office orders, notices, instructions, relevant law etc. issued from time to time by Coal India Limited or Bharat Coking Coal Limited etc. As a consequence, the arbitration clause (i.e. Clause 11.12) in the 2007 Scheme would stand incorporated in the sale orders issued thereunder.
|
Salim Ali Centre for Ornithology & Natural History, Coimbatore & Another Vs. Dr. Mathew K. Sebastian | heard Ms. Madhvi Divan, learned ASG and considering the facts and circumstances narrated hereinabove, we are of the firm view that the High Court has not committed any error in ordering back wages along with interest @ 9% per annum to the writ petitioner for the period from 23.08.2002 to 30.04.2007 during which time he was out of employment. 4.1 It is required to be noted that this is a case where the writ petitioner – respondent herein was claiming back wages on quashing and setting aside the order of termination. This is case where he remained out of employment, despite the order of reinstatement granted by the learned Single Judge, in view of the stay in the appeal preferred by the management – petitioners herein, which ultimately came to be dismissed in the year 2010. The back wages which are awarded to the writ petitioner are for the period the learned Single Judge in the earlier round of litigation ordered reinstatement. If there would not have been any stay order in the appeal preferred by the management, in that case, the writ petitioner would have been reinstated in service in the year 2002 itself, pursuant to the judgment and order passed by the learned Single Judge. What was denied by the learned Single Judge in the earlier round of litigation was the back wages from the date of termination (1996) till the order of reinstatement (2002). In the present case, the writ petitioner is claiming the back wages for the period subsequent to the order of reinstatement passed by the learned Single Judge and the writ petitioner remained out of employment even thereafter due to the order of stay passed in the appeal preferred by the management. Therefore, as such, on dismissal of the appeal of the management and the stay being vacated, the judgment and order passed by the learned Single Judge, setting aside the termination and ordering reinstatement came to be confirmed, as a natural consequence, the writ petitioner – employee shall be entitled to back wages during the period he remained unemployed in view of the order of stay granted by the appellate court, which was at the instance of the management, subject to the management proving or producing any material on record that even during the said period the employee was gainfully employed. 5. Now so far as the submission on behalf of the management that the writ petitioner has not established and proved by leading cogent evidence that he was not gainfully employed during the period he was out of employment and therefore he shall not be entitled to the back wages is concerned, at the outset, it is required to be noted that as such the learned Single Judge in the earlier round of litigation ordered reinstatement vide order dated 23.08.2002 and in fact the appeal came to be dismissed and the writ petitioner was reinstated in service on 16.12.2010. Therefore, as such, he was entitled to back wages for the period between 23.08.2002 to 16.12.2010, subject to proving that he was otherwise gainfully employed. However, the writ petitioner himself came out with a case and claimed back wages only for the period from 23.08.2002 to 30.04.2007 by specifically averring and submitting that he was in some other employment for the period from 01.05.2007 to 20.01.2011. By submitting so, it can be said that the writ petitioner has discharged the initial burden. Thereafter, the onus shifted to the employer to disprove and establish that the employee was gainfully employed throughout the aforesaid period. 6. Now so far as the submission on behalf of the petitioners herein that the writ petitioner had not established and proved by leading cogent evidence that he was not gainfully employed is concerned, it is to be noted that once the writ petitioner came out with a specific case that he remained out of employment for the period from 23.08.2002 to 30.04.2007 and that he was gainfully employed during the period from 01.05.2007 to 20.01.2011, meaning thereby, that he was not gainfully employed for the period between 23.08.2002 to 30.04.2007, thereafter, he was not required to lead any further evidence to prove the negative. Even in the case of J.K. Synthetics v. K.P. Agrawal (supra), it is specifically observed by this Court that an employee cannot be asked to prove the negative. However, he has to at least assert on oath that he was neither employed nor engaged in any gainful business or venture and that he did not have any income. Thereafter the employee is not supposed to prove the negative that he was not gainfully employed. There cannot be any evidence to prove the negative to the effect that he is not gainfully employed. Once he asserts that he is not gainfully employed, thereafter the onus will shift to the employer positively and it would be for the employer to prove that the employee was gainfully employed. Therefore, in the facts and circumstances of the case, none of the decisions relied upon by the learned ASG, referred to hereinabove, is of any assistance to the petitioners, considering the facts and circumstances, narrated hereinabove. 7. As far as the submission on behalf of the petitioners that even on the principle of no work no pay, the writ petitioner shall not be entitled to back wages is concerned, the said principle shall not be applicable to the facts of the case on hand, where the employee remained unemployed due to the stay order granted by the appellate court. It was the management who preferred the appeal and at the instance of the management, there was an order of stay against reinstatement as ordered by the learned Single Judge and the appeal came to be dismissed and consequently the stay came to be vacated in the year 2010. Therefore, the employee/writ petitioner/respondent herein cannot be denied the back wages for no fault of his. Therefore, the principle of no work no pay shall not be applicable in such a situation. | 0[ds]4. Having heard Ms. Madhvi Divan, learned ASG and considering the facts and circumstances narrated hereinabove, we are of the firm view that the High Court has not committed any error in ordering back wages along with interest @ 9% per annum to the writ petitioner for the period from 23.08.2002 to 30.04.2007 during which time he was out of employment.4.1 It is required to be noted that this is a case where the writ petitioner – respondent herein was claiming back wages on quashing and setting aside the order of termination. This is case where he remained out of employment, despite the order of reinstatement granted by the learned Single Judge, in view of the stay in the appeal preferred by the management – petitioners herein, which ultimately came to be dismissed in the year 2010. The back wages which are awarded to the writ petitioner are for the period the learned Single Judge in the earlier round of litigation ordered reinstatement. If there would not have been any stay order in the appeal preferred by the management, in that case, the writ petitioner would have been reinstated in service in the year 2002 itself, pursuant to the judgment and order passed by the learned Single Judge. What was denied by the learned Single Judge in the earlier round of litigation was the back wages from the date of termination (1996) till the order of reinstatement (2002). In the present case, the writ petitioner is claiming the back wages for the period subsequent to the order of reinstatement passed by the learned Single Judge and the writ petitioner remained out of employment even thereafter due to the order of stay passed in the appeal preferred by the management. Therefore, as such, on dismissal of the appeal of the management and the stay being vacated, the judgment and order passed by the learned Single Judge, setting aside the termination and ordering reinstatement came to be confirmed, as a natural consequence, the writ petitioner – employee shall be entitled to back wages during the period he remained unemployed in view of the order of stay granted by the appellate court, which was at the instance of the management, subject to the management proving or producing any material on record that even during the said period the employee was gainfully employed.5. Now so far as the submission on behalf of the management that the writ petitioner has not established and proved by leading cogent evidence that he was not gainfully employed during the period he was out of employment and therefore he shall not be entitled to the back wages is concerned, at the outset, it is required to be noted that as such the learned Single Judge in the earlier round of litigation ordered reinstatement vide order dated 23.08.2002 and in fact the appeal came to be dismissed and the writ petitioner was reinstated in service on 16.12.2010. Therefore, as such, he was entitled to back wages for the period between 23.08.2002 to 16.12.2010, subject to proving that he was otherwise gainfully employed. However, the writ petitioner himself came out with a case and claimed back wages only for the period from 23.08.2002 to 30.04.2007 by specifically averring and submitting that he was in some other employment for the period from 01.05.2007 to 20.01.2011. By submitting so, it can be said that the writ petitioner has discharged the initial burden. Thereafter, the onus shifted to the employer to disprove and establish that the employee was gainfully employed throughout the aforesaid period.6. Now so far as the submission on behalf of the petitioners herein that the writ petitioner had not established and proved by leading cogent evidence that he was not gainfully employed is concerned, it is to be noted that once the writ petitioner came out with a specific case that he remained out of employment for the period from 23.08.2002 to 30.04.2007 and that he was gainfully employed during the period from 01.05.2007 to 20.01.2011, meaning thereby, that he was not gainfully employed for the period between 23.08.2002 to 30.04.2007, thereafter, he was not required to lead any further evidence to prove the negative. Even in the case of J.K. Synthetics v. K.P. Agrawal (supra), it is specifically observed by this Court that an employee cannot be asked to prove the negative. However, he has to at least assert on oath that he was neither employed nor engaged in any gainful business or venture and that he did not have any income. Thereafter the employee is not supposed to prove the negative that he was not gainfully employed. There cannot be any evidence to prove the negative to the effect that he is not gainfully employed. Once he asserts that he is not gainfully employed, thereafter the onus will shift to the employer positively and it would be for the employer to prove that the employee was gainfully employed. Therefore, in the facts and circumstances of the case, none of the decisions relied upon by the learned ASG, referred to hereinabove, is of any assistance to the petitioners, considering the facts and circumstances, narrated hereinabove.7. As far as the submission on behalf of the petitioners that even on the principle of no work no pay, the writ petitioner shall not be entitled to back wages is concerned, the said principle shall not be applicable to the facts of the case on hand, where the employee remained unemployed due to the stay order granted by the appellate court. It was the management who preferred the appeal and at the instance of the management, there was an order of stay against reinstatement as ordered by the learned Single Judge and the appeal came to be dismissed and consequently the stay came to be vacated in the year 2010. Therefore, the employee/writ petitioner/respondent herein cannot be denied the back wages for no fault of his. Therefore, the principle of no work no pay shall not be applicable in such a situation. | 0 | 1,948 | 1,082 | ### 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:
heard Ms. Madhvi Divan, learned ASG and considering the facts and circumstances narrated hereinabove, we are of the firm view that the High Court has not committed any error in ordering back wages along with interest @ 9% per annum to the writ petitioner for the period from 23.08.2002 to 30.04.2007 during which time he was out of employment. 4.1 It is required to be noted that this is a case where the writ petitioner – respondent herein was claiming back wages on quashing and setting aside the order of termination. This is case where he remained out of employment, despite the order of reinstatement granted by the learned Single Judge, in view of the stay in the appeal preferred by the management – petitioners herein, which ultimately came to be dismissed in the year 2010. The back wages which are awarded to the writ petitioner are for the period the learned Single Judge in the earlier round of litigation ordered reinstatement. If there would not have been any stay order in the appeal preferred by the management, in that case, the writ petitioner would have been reinstated in service in the year 2002 itself, pursuant to the judgment and order passed by the learned Single Judge. What was denied by the learned Single Judge in the earlier round of litigation was the back wages from the date of termination (1996) till the order of reinstatement (2002). In the present case, the writ petitioner is claiming the back wages for the period subsequent to the order of reinstatement passed by the learned Single Judge and the writ petitioner remained out of employment even thereafter due to the order of stay passed in the appeal preferred by the management. Therefore, as such, on dismissal of the appeal of the management and the stay being vacated, the judgment and order passed by the learned Single Judge, setting aside the termination and ordering reinstatement came to be confirmed, as a natural consequence, the writ petitioner – employee shall be entitled to back wages during the period he remained unemployed in view of the order of stay granted by the appellate court, which was at the instance of the management, subject to the management proving or producing any material on record that even during the said period the employee was gainfully employed. 5. Now so far as the submission on behalf of the management that the writ petitioner has not established and proved by leading cogent evidence that he was not gainfully employed during the period he was out of employment and therefore he shall not be entitled to the back wages is concerned, at the outset, it is required to be noted that as such the learned Single Judge in the earlier round of litigation ordered reinstatement vide order dated 23.08.2002 and in fact the appeal came to be dismissed and the writ petitioner was reinstated in service on 16.12.2010. Therefore, as such, he was entitled to back wages for the period between 23.08.2002 to 16.12.2010, subject to proving that he was otherwise gainfully employed. However, the writ petitioner himself came out with a case and claimed back wages only for the period from 23.08.2002 to 30.04.2007 by specifically averring and submitting that he was in some other employment for the period from 01.05.2007 to 20.01.2011. By submitting so, it can be said that the writ petitioner has discharged the initial burden. Thereafter, the onus shifted to the employer to disprove and establish that the employee was gainfully employed throughout the aforesaid period. 6. Now so far as the submission on behalf of the petitioners herein that the writ petitioner had not established and proved by leading cogent evidence that he was not gainfully employed is concerned, it is to be noted that once the writ petitioner came out with a specific case that he remained out of employment for the period from 23.08.2002 to 30.04.2007 and that he was gainfully employed during the period from 01.05.2007 to 20.01.2011, meaning thereby, that he was not gainfully employed for the period between 23.08.2002 to 30.04.2007, thereafter, he was not required to lead any further evidence to prove the negative. Even in the case of J.K. Synthetics v. K.P. Agrawal (supra), it is specifically observed by this Court that an employee cannot be asked to prove the negative. However, he has to at least assert on oath that he was neither employed nor engaged in any gainful business or venture and that he did not have any income. Thereafter the employee is not supposed to prove the negative that he was not gainfully employed. There cannot be any evidence to prove the negative to the effect that he is not gainfully employed. Once he asserts that he is not gainfully employed, thereafter the onus will shift to the employer positively and it would be for the employer to prove that the employee was gainfully employed. Therefore, in the facts and circumstances of the case, none of the decisions relied upon by the learned ASG, referred to hereinabove, is of any assistance to the petitioners, considering the facts and circumstances, narrated hereinabove. 7. As far as the submission on behalf of the petitioners that even on the principle of no work no pay, the writ petitioner shall not be entitled to back wages is concerned, the said principle shall not be applicable to the facts of the case on hand, where the employee remained unemployed due to the stay order granted by the appellate court. It was the management who preferred the appeal and at the instance of the management, there was an order of stay against reinstatement as ordered by the learned Single Judge and the appeal came to be dismissed and consequently the stay came to be vacated in the year 2010. Therefore, the employee/writ petitioner/respondent herein cannot be denied the back wages for no fault of his. Therefore, the principle of no work no pay shall not be applicable in such a situation.
### Response:
0
### Explanation:
4. Having heard Ms. Madhvi Divan, learned ASG and considering the facts and circumstances narrated hereinabove, we are of the firm view that the High Court has not committed any error in ordering back wages along with interest @ 9% per annum to the writ petitioner for the period from 23.08.2002 to 30.04.2007 during which time he was out of employment.4.1 It is required to be noted that this is a case where the writ petitioner – respondent herein was claiming back wages on quashing and setting aside the order of termination. This is case where he remained out of employment, despite the order of reinstatement granted by the learned Single Judge, in view of the stay in the appeal preferred by the management – petitioners herein, which ultimately came to be dismissed in the year 2010. The back wages which are awarded to the writ petitioner are for the period the learned Single Judge in the earlier round of litigation ordered reinstatement. If there would not have been any stay order in the appeal preferred by the management, in that case, the writ petitioner would have been reinstated in service in the year 2002 itself, pursuant to the judgment and order passed by the learned Single Judge. What was denied by the learned Single Judge in the earlier round of litigation was the back wages from the date of termination (1996) till the order of reinstatement (2002). In the present case, the writ petitioner is claiming the back wages for the period subsequent to the order of reinstatement passed by the learned Single Judge and the writ petitioner remained out of employment even thereafter due to the order of stay passed in the appeal preferred by the management. Therefore, as such, on dismissal of the appeal of the management and the stay being vacated, the judgment and order passed by the learned Single Judge, setting aside the termination and ordering reinstatement came to be confirmed, as a natural consequence, the writ petitioner – employee shall be entitled to back wages during the period he remained unemployed in view of the order of stay granted by the appellate court, which was at the instance of the management, subject to the management proving or producing any material on record that even during the said period the employee was gainfully employed.5. Now so far as the submission on behalf of the management that the writ petitioner has not established and proved by leading cogent evidence that he was not gainfully employed during the period he was out of employment and therefore he shall not be entitled to the back wages is concerned, at the outset, it is required to be noted that as such the learned Single Judge in the earlier round of litigation ordered reinstatement vide order dated 23.08.2002 and in fact the appeal came to be dismissed and the writ petitioner was reinstated in service on 16.12.2010. Therefore, as such, he was entitled to back wages for the period between 23.08.2002 to 16.12.2010, subject to proving that he was otherwise gainfully employed. However, the writ petitioner himself came out with a case and claimed back wages only for the period from 23.08.2002 to 30.04.2007 by specifically averring and submitting that he was in some other employment for the period from 01.05.2007 to 20.01.2011. By submitting so, it can be said that the writ petitioner has discharged the initial burden. Thereafter, the onus shifted to the employer to disprove and establish that the employee was gainfully employed throughout the aforesaid period.6. Now so far as the submission on behalf of the petitioners herein that the writ petitioner had not established and proved by leading cogent evidence that he was not gainfully employed is concerned, it is to be noted that once the writ petitioner came out with a specific case that he remained out of employment for the period from 23.08.2002 to 30.04.2007 and that he was gainfully employed during the period from 01.05.2007 to 20.01.2011, meaning thereby, that he was not gainfully employed for the period between 23.08.2002 to 30.04.2007, thereafter, he was not required to lead any further evidence to prove the negative. Even in the case of J.K. Synthetics v. K.P. Agrawal (supra), it is specifically observed by this Court that an employee cannot be asked to prove the negative. However, he has to at least assert on oath that he was neither employed nor engaged in any gainful business or venture and that he did not have any income. Thereafter the employee is not supposed to prove the negative that he was not gainfully employed. There cannot be any evidence to prove the negative to the effect that he is not gainfully employed. Once he asserts that he is not gainfully employed, thereafter the onus will shift to the employer positively and it would be for the employer to prove that the employee was gainfully employed. Therefore, in the facts and circumstances of the case, none of the decisions relied upon by the learned ASG, referred to hereinabove, is of any assistance to the petitioners, considering the facts and circumstances, narrated hereinabove.7. As far as the submission on behalf of the petitioners that even on the principle of no work no pay, the writ petitioner shall not be entitled to back wages is concerned, the said principle shall not be applicable to the facts of the case on hand, where the employee remained unemployed due to the stay order granted by the appellate court. It was the management who preferred the appeal and at the instance of the management, there was an order of stay against reinstatement as ordered by the learned Single Judge and the appeal came to be dismissed and consequently the stay came to be vacated in the year 2010. Therefore, the employee/writ petitioner/respondent herein cannot be denied the back wages for no fault of his. Therefore, the principle of no work no pay shall not be applicable in such a situation.
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Anil Kumar Soti & Ors Vs. State of U.P. through Collector Bijnore (U.P.) | 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 16.04.2019 passed by the High Court of Judicature at Allahabad in First Appeal No.440 of 1989, by which the High Court has partly allowed the said appeal preferred by the appellants herein – original claimants and has determined the market value of the lands acquired at Rs.7,100/- per acre only, original land owners have preferred the present appeal. 2. That the appellants lands situated at village Rawali came to be acquired for public purpose. A notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) was issued on 16.05.1981. The Land Acquisition Officer declared the award and determined the compensation at Rs.5,218.39/- per acre. At the instances of the claimants a Reference was made to the District Court under Section 18 of the ACT claiming compensation of Rs.12,000/- per acre. The Reference Court enhanced the compensation from Rs.5,218.39/- per acre to Rs.6,696.70/- per acre with all other statutory benefits which may be available under the Act. The appellants herein preferred the appeal before the High Court. The claimants prayed the compensation of Rs.15,402/- per acre relying upon the judgment and award passed by the Reference Court in another case with respect to the acquisition of the land of the very village, but with respect to the notification issued under Section 4 of the Act dated 19.12.1981. That by the impugned judgment and order and relying upon and considering the sale deed exemplar dated 23.12.1980, the High Court has partly allowed the said appeal and has determined and awarded the compensation at the rate of Rs.7,100/- per acre. 3. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, enhancing the amount of compensation to Rs.7,100/- per acre only the original claimants have preferred the present appeal. 4. Learned Counsel appearing on behalf of the appellants – original claimants has vehemently submitted that the High Court has materially erred in determining and awarding the compensation of Rs.7,100/- per acre only. 4.1 It is submitted that for the acquisition of the land of the very village but notification under Section 4 of the Act was issued on 19.12.1981 the Reference Court determined and awarded the compensation at Rs.15,402/- per acre. It is submitted that the Reference Court in that case relied upon the sale deed exemplar of the year 1978 and thereafter determined the market value of the compensation at Rs. 15,402/- per acre. It is submitted that the appeal against the judgment and award passed by the Reference Court in that case determining and awarding the compensation at Rs.15,402/- per acre has been subsequently withdrawn. It is submitted that therefore the Government has accepted the judgment and award passed by the Reference Court with respect to the land acquired of the same village but for which the notification under Section 4 of the Act was issued on 19.12.1981. It is submitted that therefore the appellants are also entitled to the compensation of Rs.15,402/- per acre. 5. Learned counsel appearing on behalf of the respondent – State has submitted that in the present case the High Court has rightly determined the compensation at Rs.7,100/- per acre considering the sale deed exemplar dated 23.12.1980 which as such can be said to be proximate/nearer to the date of the acquisition of the land. It is submitted that therefore the interference of this court in exercise of power under Article 136 of the Constitution of India is not called for. 6. We have heard the learned counsel appearing for the respective parties at length. 7. At the outset, it is required to be noted and it is not in dispute that in the present case notification under Section 4 of the Act has been issued on 16.05.1981 by which the High Court has determined the compensation at Rs.7,100/- per acre. However, it is required to be noted that with respect to the land acquired of the very same village for which the notification under Section 4 of the Act was issued on 19.12.1981, the Reference Court in another case determined and awarded the compensation at Rs.15,402/- per acre. Having gone through the judgment and award passed by the Reference Court in another case determining the compensation at Rs.15,402/- per acre (which is heavily relied upon by the claimants in the present case) the Reference Court had considered the sale deed exemplar of the year 1978. Therefore, it is not the case that in another case the sale deed exemplar relied upon was for the period between 16.05.1981 (acquisition of the land in the present case) and 19.12.1981 (date of acquisition in another case). As per the settled preposition of law while determining the market value/compensation, previous instances of acquisition in proximity for location and potential of land acquisition along with cumulative increase is relevant consideration. In the present case, time gap between two notifications under Section 4 of the Act is only seven months. Nothing has been pointed out with respect to any material changes for the period between 16.05.1981 and 16.12.1981 time gap between the two notifications under Section 4 of the Act. On the contrary, after the judgment and award passed by the Reference Court with respect to the land acquired of the same village for which notification under Section 4 was issued on 19.12.1981, the Reference Court determined the compensation at Rs.15,402/- per acre. The Reference Court in that case relied upon the sale deed exemplar of 1978. The judgment and award passed by the Reference Court in that case determining the market value/compensation at Rs.15,402/- per acre has attained the finality and the State has accepted the same by withdrawing the appeal against the said judgment and award. Therefore, in the present circumstances, the appellants shall be entitled to the compensation at Rs.15,402/- per acre. | 1[ds]7. At the outset, it is required to be noted and it is not in dispute that in the present case notification under Section 4 of the Act has been issued on 16.05.1981 by which the High Court has determined the compensation at Rs.7,100/- per acre. However, it is required to be noted that with respect to the land acquired of the very same village for which the notification under Section 4 of the Act was issued on 19.12.1981, the Reference Court in another case determined and awarded the compensation at Rs.15,402/- per acre. Having gone through the judgment and award passed by the Reference Court in another case determining the compensation at Rs.15,402/- per acre (which is heavily relied upon by the claimants in the present case) the Reference Court had considered the sale deed exemplar of the year 1978. Therefore, it is not the case that in another case the sale deed exemplar relied upon was for the period between 16.05.1981 (acquisition of the land in the present case) and 19.12.1981 (date of acquisition in another case). As per the settled preposition of law while determining the market value/compensation, previous instances of acquisition in proximity for location and potential of land acquisition along with cumulative increase is relevant consideration. In the present case, time gap between two notifications under Section 4 of the Act is only seven months. Nothing has been pointed out with respect to any material changes for the period between 16.05.1981 and 16.12.1981 time gap between the two notifications under Section 4 of the Act. On the contrary, after the judgment and award passed by the Reference Court with respect to the land acquired of the same village for which notification under Section 4 was issued on 19.12.1981, the Reference Court determined the compensation at Rs.15,402/- per acre. The Reference Court in that case relied upon the sale deed exemplar of 1978. The judgment and award passed by the Reference Court in that case determining the market value/compensation at Rs.15,402/- per acre has attained the finality and the State has accepted the same by withdrawing the appeal against the said judgment and award. Therefore, in the present circumstances, the appellants shall be entitled to the compensation at Rs.15,402/- per acre. | 1 | 1,039 | 407 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 16.04.2019 passed by the High Court of Judicature at Allahabad in First Appeal No.440 of 1989, by which the High Court has partly allowed the said appeal preferred by the appellants herein – original claimants and has determined the market value of the lands acquired at Rs.7,100/- per acre only, original land owners have preferred the present appeal. 2. That the appellants lands situated at village Rawali came to be acquired for public purpose. A notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) was issued on 16.05.1981. The Land Acquisition Officer declared the award and determined the compensation at Rs.5,218.39/- per acre. At the instances of the claimants a Reference was made to the District Court under Section 18 of the ACT claiming compensation of Rs.12,000/- per acre. The Reference Court enhanced the compensation from Rs.5,218.39/- per acre to Rs.6,696.70/- per acre with all other statutory benefits which may be available under the Act. The appellants herein preferred the appeal before the High Court. The claimants prayed the compensation of Rs.15,402/- per acre relying upon the judgment and award passed by the Reference Court in another case with respect to the acquisition of the land of the very village, but with respect to the notification issued under Section 4 of the Act dated 19.12.1981. That by the impugned judgment and order and relying upon and considering the sale deed exemplar dated 23.12.1980, the High Court has partly allowed the said appeal and has determined and awarded the compensation at the rate of Rs.7,100/- per acre. 3. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, enhancing the amount of compensation to Rs.7,100/- per acre only the original claimants have preferred the present appeal. 4. Learned Counsel appearing on behalf of the appellants – original claimants has vehemently submitted that the High Court has materially erred in determining and awarding the compensation of Rs.7,100/- per acre only. 4.1 It is submitted that for the acquisition of the land of the very village but notification under Section 4 of the Act was issued on 19.12.1981 the Reference Court determined and awarded the compensation at Rs.15,402/- per acre. It is submitted that the Reference Court in that case relied upon the sale deed exemplar of the year 1978 and thereafter determined the market value of the compensation at Rs. 15,402/- per acre. It is submitted that the appeal against the judgment and award passed by the Reference Court in that case determining and awarding the compensation at Rs.15,402/- per acre has been subsequently withdrawn. It is submitted that therefore the Government has accepted the judgment and award passed by the Reference Court with respect to the land acquired of the same village but for which the notification under Section 4 of the Act was issued on 19.12.1981. It is submitted that therefore the appellants are also entitled to the compensation of Rs.15,402/- per acre. 5. Learned counsel appearing on behalf of the respondent – State has submitted that in the present case the High Court has rightly determined the compensation at Rs.7,100/- per acre considering the sale deed exemplar dated 23.12.1980 which as such can be said to be proximate/nearer to the date of the acquisition of the land. It is submitted that therefore the interference of this court in exercise of power under Article 136 of the Constitution of India is not called for. 6. We have heard the learned counsel appearing for the respective parties at length. 7. At the outset, it is required to be noted and it is not in dispute that in the present case notification under Section 4 of the Act has been issued on 16.05.1981 by which the High Court has determined the compensation at Rs.7,100/- per acre. However, it is required to be noted that with respect to the land acquired of the very same village for which the notification under Section 4 of the Act was issued on 19.12.1981, the Reference Court in another case determined and awarded the compensation at Rs.15,402/- per acre. Having gone through the judgment and award passed by the Reference Court in another case determining the compensation at Rs.15,402/- per acre (which is heavily relied upon by the claimants in the present case) the Reference Court had considered the sale deed exemplar of the year 1978. Therefore, it is not the case that in another case the sale deed exemplar relied upon was for the period between 16.05.1981 (acquisition of the land in the present case) and 19.12.1981 (date of acquisition in another case). As per the settled preposition of law while determining the market value/compensation, previous instances of acquisition in proximity for location and potential of land acquisition along with cumulative increase is relevant consideration. In the present case, time gap between two notifications under Section 4 of the Act is only seven months. Nothing has been pointed out with respect to any material changes for the period between 16.05.1981 and 16.12.1981 time gap between the two notifications under Section 4 of the Act. On the contrary, after the judgment and award passed by the Reference Court with respect to the land acquired of the same village for which notification under Section 4 was issued on 19.12.1981, the Reference Court determined the compensation at Rs.15,402/- per acre. The Reference Court in that case relied upon the sale deed exemplar of 1978. The judgment and award passed by the Reference Court in that case determining the market value/compensation at Rs.15,402/- per acre has attained the finality and the State has accepted the same by withdrawing the appeal against the said judgment and award. Therefore, in the present circumstances, the appellants shall be entitled to the compensation at Rs.15,402/- per acre.
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7. At the outset, it is required to be noted and it is not in dispute that in the present case notification under Section 4 of the Act has been issued on 16.05.1981 by which the High Court has determined the compensation at Rs.7,100/- per acre. However, it is required to be noted that with respect to the land acquired of the very same village for which the notification under Section 4 of the Act was issued on 19.12.1981, the Reference Court in another case determined and awarded the compensation at Rs.15,402/- per acre. Having gone through the judgment and award passed by the Reference Court in another case determining the compensation at Rs.15,402/- per acre (which is heavily relied upon by the claimants in the present case) the Reference Court had considered the sale deed exemplar of the year 1978. Therefore, it is not the case that in another case the sale deed exemplar relied upon was for the period between 16.05.1981 (acquisition of the land in the present case) and 19.12.1981 (date of acquisition in another case). As per the settled preposition of law while determining the market value/compensation, previous instances of acquisition in proximity for location and potential of land acquisition along with cumulative increase is relevant consideration. In the present case, time gap between two notifications under Section 4 of the Act is only seven months. Nothing has been pointed out with respect to any material changes for the period between 16.05.1981 and 16.12.1981 time gap between the two notifications under Section 4 of the Act. On the contrary, after the judgment and award passed by the Reference Court with respect to the land acquired of the same village for which notification under Section 4 was issued on 19.12.1981, the Reference Court determined the compensation at Rs.15,402/- per acre. The Reference Court in that case relied upon the sale deed exemplar of 1978. The judgment and award passed by the Reference Court in that case determining the market value/compensation at Rs.15,402/- per acre has attained the finality and the State has accepted the same by withdrawing the appeal against the said judgment and award. Therefore, in the present circumstances, the appellants shall be entitled to the compensation at Rs.15,402/- per acre.
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Kesho Ram & Co. & Ors. Etc Vs. Union Of India & Ors | decree of eviction with a view to make the exemption effective and meaningful. In this view if the submission made on behalf of the tenants is accepted it would render the exemption illusory, as in reality, it will be impossible for a landlord to get the suit decreed within the period of exemption even if he instituted the suit within the period of exemption. Interpretation of the Act and the impugned notification as suggested on behalf of the tenants if accepted would defeat the purpose of the beneficial social legislation. It is a settled rule of harmonious construction of statute that a construction which would advance the object and purpose of the legislation should be followed and construction which would result in reducing a provision of the Act to a dead letter or to defeat the object and purpose of the statute should be avoided without doing any violence to the language. We therefore reject the submission made on behalf of tenants. 16. Learned counsel for the tenants placed reliance on the decisions of this Court in Vineet Kumar v. Mangal Sain Wadhera ((1984) 3 SCC 352 ), and Shiv Kumar v. Jawahar Lal Verma ((1988) 4 SCC 763 ) in support of their submission that once five years period of exemption expired during the pendency of the suit, the civil court ceased to have jurisdiction to pass decree of eviction or to execute the same. In these decisions Section 2(2) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, granting immunity to newly constructed buildings for a period of 10 years from the operation of the Act was considered and interpreted. In both of these decisions a bench of two Judges held that on the expiry of 10 years period of exemption during the pendency of the suit, the provisions of the Act would apply and the tenant is entitled to the protection of Section 39 of the Act and no decree of eviction could be passed against him. On behalf of the landlords it was urged that the view taken in the aforesaid two cases is incorrect and contrary to the observation made by a larger bench of this Court in Om Prakash Gupta v. Dig Vijendrapal Gupta ((1982) 2 SCC 61 : (1982) 3 SCR 491 ) and also against the decision in Nand Kishore Marwah v. Smt. Samundri Devi ((1987) 4 SCC 382 ) It was further urged that Section 39 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 protects the tenant from eviction provided the suit was pending on the date of commencement of the Act and not to a suit instituted thereafter. In the aforesaid decisions it was held that a suit for eviction instituted within period of exemption of 10 years could be decreed by the civil court even if during the pendency of the litigation 10 years period of exemptions expired. The counsel for the landlords further placed reliance on the decision of this Court in Atma Ram Mittal v. Ishwar Singh Punja ((1988) 4 SCC 284 ) wherein Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 granting exemption to newly constructed building for a period of 10 years was considered. The court held that a suit instituted within the period of exemption for eviction of the tenant, could legally be decreed even if the period of exemption expired during the pendency of the suit. These decisions no doubt support the view we are taking but we do not consider it necessary to consider these decisions in detail as the provisions of the Rent Control legislation, which were considered in those decisions were quite different which did not expressly preserve the jurisdiction of the civil court to decree the suit after expiry of the period of exemption, while the impugned notification in express terms, maintains the jurisdiction of the civil court to decree a suit for eviction, even if the period of exemption expires during the pendency of the suit. There is no provision under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 or the Haryana Urban (Control of Rent and Eviction) Act, 1973 containing similar provision as contained in the impugned notification. We therefore do not consider it necessary to discuss the aforesaid decisions in detail or to express any final opinion about the correctness of the same. 17. It was then urged that the impugned notification practiced discrimination between two classes of tenants in the Union Territory of Chandigarh. The two classes of tenants are : (i) the tenants of old buildings which were never exempted from the provisions of the Act, the tenants of buildings entitled to protection of the Act, and (ii) the tenants of newly constructed buildings exempted from the protection of the Act, who are liable to evicted at any time at the mercy of the landlord. In Mohinder Kumar v. State of Haryana ((1985) 4 SCC 221 ), this Court considering a similar challenge to the validity of Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 held that the classification of buildings with reference to the date of completion for the purpose of regulating the rent and eviction of tenants from such buildings has a rational basis and has a clear nexus with the object to be achieved. Classification is founded on intelligible differentia which has a rational nexus with the object of the Act. It does not practice any invidious discrimination between two classes of tenants, the classification is reasonable and it does not violate Article 14 of the Constitution of India. It is not necessary to discuss the question further as we are in full agreement with the view taken in Mohinder Kumar case ((1985) 4 SCC 221 ). The object and purpose of the exemption as discussed earlier is to effectuate the purpose of the Act, to ensure availability of more accommodation to meet the need of tenants. | 0[ds]In this view if the submission made on behalf of the tenants is accepted it would render the exemption illusory, as in reality, it will be impossible for a landlord to get the suit decreed within the period of exemption even if he instituted the suit within the period of exemption. Interpretation of the Act and the impugned notification as suggested on behalf of the tenants if accepted would defeat the purpose of the beneficial social legislation. It is a settled rule of harmonious construction of statute that a construction which would advance the object and purpose of the legislation should be followed and construction which would result in reducing a provision of the Act to a dead letter or to defeat the object and purpose of the statute should be avoided without doing any violence to the language. We therefore reject the submission made on behalf of tenantsIn Mohinder Kumar v. State of Haryana ((1985) 4 SCC 221 ), this Court considering a similar challenge to the validity of Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 held that the classification of buildings with reference to the date of completion for the purpose of regulating the rent and eviction of tenants from such buildings has a rational basis and has a clear nexus with the object to be achieved. Classification is founded on intelligible differentia which has a rational nexus with the object of the Act. It does not practice any invidious discrimination between two classes of tenants, the classification is reasonable and it does not violate Article 14 of the Constitution of India. It is not necessary to discuss the question further as we are in full agreement with the view taken in Mohinder Kumar case ((1985) 4 SCC 221 ). The object and purpose of the exemption as discussed earlier is to effectuate the purpose of the Act, to ensure availability of more accommodation to meet the need of tenants18. In view of the above discussion we hold that Section 3 as well as the impugned notification are valid and the same do not suffer from any constitutional or legal infirmity. We further hold that civil court has jurisdiction to pass decree even after the expiry of period of exemption, in suits instituted during the period of exemption, and to execute the same notwithstanding the provisions of Section 13 of the Act.In the result the civil appeals, special leave petitions, and the writ petitions fail and are accordingly dismissed with costs and all interim orders stand discharged6. The effect of the Notification dated January 31, 1973 was that all newly constructed buildings in the urban area of Chandigarh were granted exemption from the provisions of the Act for a period of five years. The notification also set out the method of computing the period of five years. But the Notification dated September 24, 1974 directed that the provisions of Section 13 of the Act shall not apply to buildings situate in the urban area of Chandigarh for a period of five years, in respect of decrees passed by civil courts in suits for ejectment of tenants, instituted during the period of exemption notwithstanding the fact that such decrees are passed during the period of exemption or at any time thereafter. The effect of the notification is that protection granted to tenants against eviction under Section 13 of the Act is not available to them for a period of five years and if the landlord institutes a suit for eviction against the tenant within the aforesaid period of five years, the restrictions contained in Section 13 of the Act shall not apply to such suits and the civil court has jurisdiction to pass decree of eviction and to execute the same, even though five years period of exemption expired during the pendency of the suit. The tenants have assailed validity of Section 3 of the Act and the Notification dated September 24, 1974After hearing the counsel for both the parties at some length, it seems to us that the correctness of the decisions in Firm Amar Nath Basheshar Dass v. Tek Chand ((1972) 1 SCC 893 : (1972) 3 SCR 922 ), is open to doubt. It appears that the interpretation placed by the court as to the scope and effect of the exemption in Section 3 of the East Punjab Urban Rent Restriction Act, 1949, which is parimateria with Section 3 of the East Punjab Urban Rent Restriction Act, 1949, (as extended to the Union Territory of Chandigarh) with which we are concerned in this appeal, requires reconsideration. We do feel that the second part of the impugned notification issued by the Chief Commissioner, Chandigarh dated September 24, 1974, under Section 3 of the Act, in effect permits the civil courts to pass decrees in suits for ejectment of tenants instituted by the landlords even after the expiry of the period of exemption, contrary to the statutory bar contained in Section 13 of the Act and therefore it could not be upheldIn our opinion the petitions by such tenants are not maintainable as the same are barred by principles of res judicata. Once the petitioners challenged the validity of the impugned notification dated September 24, 1974 in earlier proceedings they ought to have raised all the grounds which could have been raised in impugning the validity of Section 3 and the notification, if they failed to raise a ground in earlier petition they cannot raise the ground now in the present proceedings. Finality in litigation and public policy both require that a litigant should not be permitted to challenge validity of the provisions of the Act or notification at different times on different grounds. Once petitioners challenge to Section 3 and the impugned notification was considered by the court and the validity of the same was upheld it must be presumed that all grounds which could validity be raised were raised and considered by the court. Learned counsel for the petitioners urged that the questions which are being raised in the present proceedings were neither raised nor considered by this Court in Punjab Tin Supply Company case ((1984) 1 SCC 206 : (1984) 1 SCR 428 ), therefore it is open to them to question the validity of Section 3 and the Notification dated September 24, 1974. This submission is contrary to the principles of res judicata and it further ignores the binding effect of a decision of this Court under Article 141 of the Constitution. The binding effect of a decision of this Court does not depend upon whether a particular arguments was considered or not, provided the point with reference to which the argument is advanced subsequently was actually decided in the earlier decision, see Smt. Somavanti v. State of Punjab ((1963) 2 SCR 774 : AIR 1963 SC 151 : (1963) 33 Com Cas 745), T. Govindaraja Mudaliar v. State of Tamil Nadu ((1973) 1 SCC 336 ) and Anil Kumar Neotia v. Union of India ((1988) 2 SCC 587 ). It is therefore no longer open to thes to challenge the validity of Section 3 of the Act and the impugned Notification dated September 24, 1974 on the ground that some points had not been urged or considered in Punjab Tin Supply Company case ((1984) 1 SCC 206 : (1984) 1 SCR 428 ). On the principles of res judicata, and also in view of Article 141 of the Constitution, the law declared by this Court in Punjab Tin Supply Company case ((1984) 1 SCC 206 : (1984) 1 SCR 2 SCC 587) is binding on the petitioners. But even otherwise the submissions made on their behalf in impugning the validity of Section 3 and the Notification dated September 24, 1974 are devoid of any merit as we shall presently discuss the same11. The challenge to the validity of Section 3 of the Act on the ground that it suffers from the vice of excessive delegation of legislative power need not detain us long in view of a number of decisions of this Court. Similar provision contained in Section 13 of the Madras Building (Lease and Rent Control) Act, 1949 was upheld by a Constitution Bench of this Court in P. J. Irani v. State of Madras ((1962) 2 SCR 169 : AIR 1961 SC 1731 ). In Sadhu Singh v. District Board, Gurdaspur (C.A. 2594 of 1966 (decided on 29th October, 1968) (1969) 1 SCWR 139), this Court held that Section 3 of the East Punjab Urban Rent Restriction Act, 1949 does not suffer from the vice of excessive delegation of legislative power nor it violates Article 14 of the Constitution. Section 3 (2) of the Madhya Pradesh Accommodation Control Act, 1961 conferring power on the government to exempt certain accommodations from all or any of the provisions of the Act was upheld in the State of Madhya Pradesh v. Kanhaiyalal ((1976) 15 MPLJ 973). In fact validity of Section 3 of the Act was again upheld up this Court, holding that it does not suffer from the vice of excessive delegation of legislative power in Punjab Tin Supply Company case (Narendra Kumar Sharma v. Smt. Kailashwati, C.A. No. 3994/82 CSC) (CB). We find no good reason to take a different view; we therefore hold that Section 3 of the Act does not suffer from vice of constitutional infirmity and it is a valid provision12. As regards the validity of the impugned Notification dated September 24, 1974 is concerned, it is necessary to examine the object and purpose of the exemption granted by the notification. The paramount object of the Act, like any other rent control legislation is to safeguard the interest of tenants against their exploitation by landlords. After the Second World War there has been movement of population from rural areas to urban areas as a result of which the problem of accommodation became acute in cities. Landlords of the buildings took full advantage of the situation and they charged exorbitant rent from tenants and very often evicted them by terminating tenancy under the provisions of Transfer of Property Act. The tenants were helpless as the suits once filed by the landlord after terminating the tenancy were bound to succeed. The legislature of different States took cognizance of the situation and enacted rent control legislation providing safeguards for tenants by making provisions for fixation of reasonable rent and also placing restrictions on the landlords right to evict tenants. Generally the rent control legislation of various States exclude the jurisdiction of civil court to entertain a suit or pass a decree of eviction against a tenant; instead the jurisdiction to evict a tenant is conferred on Rent Controller or some designated authority and the statutory grounds for eviction of a tenant have been laid down. The multiple restrictions placed on the landlords right to charge rent from tenants or to evict them from buildings resulted in shortage of accommodation because those who had money and capacity to build new houses were discouraged from investing money in constructing buildings on account of the restrictions placed by rent control legislations. The legislature stepped in, to meet the situation, in making provision for granting exemption to newly constructed buildings for certain number of years from the operation of the restrictions of the rent control legislations. These steps were taken to meet the acute scarcity of accommodation and to encourage landlords to construct buildings which would ultimately ease the situation of shortage of accommodation to a large extent. Provisions for exemption the newly constructed buildings from the restrictions of the rent control legislations for a limited period have been enacted by the Punjab, Uttar Pradesh, Haryana and Madhya Pradesh legislature. While considering the interpretation and validity of the provisions granting exemption, either by statutory provision made in the Act or by a notification issued under the Act, it is necessary to bear in mind the object and purpose of exemption to newly constructed buildings. The paramount object and purpose of exemption is to provide incentive for construction of new buildings, to meet the shortage of accommodation which would ultimately result in benefiting the tenantsWe do not find merit in the submission. As noticed earlier Section 13 (1) imposes a complete ban against the eviction of a tenant in execution of a decree passed by a civil court before or after the commencement of the Act and it further lays down that a tenant in possession of a building or rented land shall not be evicted except in accordance with the provisions of Section 13 or an order made in pursuance of the provisions of the Act.n (2) of Section 13 sets out statutory grounds on which the Controller, an authority constituted under the Act has power to pass order of eviction against a tenant. Section 13 takes away the jurisdiction of civil court to pass a decree of eviction or execution thereof against a tenant in respect of a building which is subject to the provisions of the Act. The impugned notification grants immunity to newly constructed buildings from the shackles of Section 13 of the Act for a period of five years. While doing so, the notification has taken care to make the exemption effective by providing that the exemption shall be available to the building even if the decree is is passed after the expiry of the period of five years provided the suit is instituted during the period of exemption. The emphasis is on the institution of the suit within the period of exemption of five years. Once the landlord institutes a suit before the expiry of the period of exemption, the decree even if passed after the period of five years will not be subject to the provisions of Section 13 of the Act. This is the true meaning of the notification. The notification does not enlarge the period of exemption instead it safeguards the rights of the parties which crytallise on the date of institution of the suitIt is a matter of common knowledge that final disposal of suits before the civil court are time consuming in view of the heavy workload of cases and dilatory tactics adopted by the interested party. Having regard to time normally consumed for adjudication of a suit by the civil court, it is too much to expect that a suit filed within the period of exemption of five years can be disposed of finally within the period of exemption. The exemption contemplated by the notification permits the institution of a suit within the period of exemption taking into account the delay caused in disposal of the suit, it further protects the jurisdiction of the civil court in passing decree of eviction with a view to make the exemption effective and meaningful.In this view if the submission made on behalf of the tenants is accepted it would render the exemption illusory, as in reality, it will be impossible for a landlord to get the suit decreed within the period of exemption even if he instituted the suit within the period of exemption. Interpretation of the Act and the impugned notification as suggested on behalf of the tenants if accepted would defeat the purpose of the beneficial social legislation. It is a settled rule of harmonious construction of statute that a construction which would advance the object and purpose of the legislation should be followed and construction which would result in reducing a provision of the Act to a dead letter or to defeat the object and purpose of the statute should be avoided without doing any violence to the language. We therefore reject the submission made on behalf of tenantsThere is no provision under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 or the Haryana Urban (Control of Rent and Eviction) Act, 1973 containing similar provision as contained in the impugned notification. We therefore do not consider it necessary to discuss the aforesaid decisions in detail or to express any final opinion about the correctness of the same | 0 | 6,745 | 2,883 | ### 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:
decree of eviction with a view to make the exemption effective and meaningful. In this view if the submission made on behalf of the tenants is accepted it would render the exemption illusory, as in reality, it will be impossible for a landlord to get the suit decreed within the period of exemption even if he instituted the suit within the period of exemption. Interpretation of the Act and the impugned notification as suggested on behalf of the tenants if accepted would defeat the purpose of the beneficial social legislation. It is a settled rule of harmonious construction of statute that a construction which would advance the object and purpose of the legislation should be followed and construction which would result in reducing a provision of the Act to a dead letter or to defeat the object and purpose of the statute should be avoided without doing any violence to the language. We therefore reject the submission made on behalf of tenants. 16. Learned counsel for the tenants placed reliance on the decisions of this Court in Vineet Kumar v. Mangal Sain Wadhera ((1984) 3 SCC 352 ), and Shiv Kumar v. Jawahar Lal Verma ((1988) 4 SCC 763 ) in support of their submission that once five years period of exemption expired during the pendency of the suit, the civil court ceased to have jurisdiction to pass decree of eviction or to execute the same. In these decisions Section 2(2) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, granting immunity to newly constructed buildings for a period of 10 years from the operation of the Act was considered and interpreted. In both of these decisions a bench of two Judges held that on the expiry of 10 years period of exemption during the pendency of the suit, the provisions of the Act would apply and the tenant is entitled to the protection of Section 39 of the Act and no decree of eviction could be passed against him. On behalf of the landlords it was urged that the view taken in the aforesaid two cases is incorrect and contrary to the observation made by a larger bench of this Court in Om Prakash Gupta v. Dig Vijendrapal Gupta ((1982) 2 SCC 61 : (1982) 3 SCR 491 ) and also against the decision in Nand Kishore Marwah v. Smt. Samundri Devi ((1987) 4 SCC 382 ) It was further urged that Section 39 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 protects the tenant from eviction provided the suit was pending on the date of commencement of the Act and not to a suit instituted thereafter. In the aforesaid decisions it was held that a suit for eviction instituted within period of exemption of 10 years could be decreed by the civil court even if during the pendency of the litigation 10 years period of exemptions expired. The counsel for the landlords further placed reliance on the decision of this Court in Atma Ram Mittal v. Ishwar Singh Punja ((1988) 4 SCC 284 ) wherein Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 granting exemption to newly constructed building for a period of 10 years was considered. The court held that a suit instituted within the period of exemption for eviction of the tenant, could legally be decreed even if the period of exemption expired during the pendency of the suit. These decisions no doubt support the view we are taking but we do not consider it necessary to consider these decisions in detail as the provisions of the Rent Control legislation, which were considered in those decisions were quite different which did not expressly preserve the jurisdiction of the civil court to decree the suit after expiry of the period of exemption, while the impugned notification in express terms, maintains the jurisdiction of the civil court to decree a suit for eviction, even if the period of exemption expires during the pendency of the suit. There is no provision under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 or the Haryana Urban (Control of Rent and Eviction) Act, 1973 containing similar provision as contained in the impugned notification. We therefore do not consider it necessary to discuss the aforesaid decisions in detail or to express any final opinion about the correctness of the same. 17. It was then urged that the impugned notification practiced discrimination between two classes of tenants in the Union Territory of Chandigarh. The two classes of tenants are : (i) the tenants of old buildings which were never exempted from the provisions of the Act, the tenants of buildings entitled to protection of the Act, and (ii) the tenants of newly constructed buildings exempted from the protection of the Act, who are liable to evicted at any time at the mercy of the landlord. In Mohinder Kumar v. State of Haryana ((1985) 4 SCC 221 ), this Court considering a similar challenge to the validity of Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 held that the classification of buildings with reference to the date of completion for the purpose of regulating the rent and eviction of tenants from such buildings has a rational basis and has a clear nexus with the object to be achieved. Classification is founded on intelligible differentia which has a rational nexus with the object of the Act. It does not practice any invidious discrimination between two classes of tenants, the classification is reasonable and it does not violate Article 14 of the Constitution of India. It is not necessary to discuss the question further as we are in full agreement with the view taken in Mohinder Kumar case ((1985) 4 SCC 221 ). The object and purpose of the exemption as discussed earlier is to effectuate the purpose of the Act, to ensure availability of more accommodation to meet the need of tenants.
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0
### Explanation:
evicted them by terminating tenancy under the provisions of Transfer of Property Act. The tenants were helpless as the suits once filed by the landlord after terminating the tenancy were bound to succeed. The legislature of different States took cognizance of the situation and enacted rent control legislation providing safeguards for tenants by making provisions for fixation of reasonable rent and also placing restrictions on the landlords right to evict tenants. Generally the rent control legislation of various States exclude the jurisdiction of civil court to entertain a suit or pass a decree of eviction against a tenant; instead the jurisdiction to evict a tenant is conferred on Rent Controller or some designated authority and the statutory grounds for eviction of a tenant have been laid down. The multiple restrictions placed on the landlords right to charge rent from tenants or to evict them from buildings resulted in shortage of accommodation because those who had money and capacity to build new houses were discouraged from investing money in constructing buildings on account of the restrictions placed by rent control legislations. The legislature stepped in, to meet the situation, in making provision for granting exemption to newly constructed buildings for certain number of years from the operation of the restrictions of the rent control legislations. These steps were taken to meet the acute scarcity of accommodation and to encourage landlords to construct buildings which would ultimately ease the situation of shortage of accommodation to a large extent. Provisions for exemption the newly constructed buildings from the restrictions of the rent control legislations for a limited period have been enacted by the Punjab, Uttar Pradesh, Haryana and Madhya Pradesh legislature. While considering the interpretation and validity of the provisions granting exemption, either by statutory provision made in the Act or by a notification issued under the Act, it is necessary to bear in mind the object and purpose of exemption to newly constructed buildings. The paramount object and purpose of exemption is to provide incentive for construction of new buildings, to meet the shortage of accommodation which would ultimately result in benefiting the tenantsWe do not find merit in the submission. As noticed earlier Section 13 (1) imposes a complete ban against the eviction of a tenant in execution of a decree passed by a civil court before or after the commencement of the Act and it further lays down that a tenant in possession of a building or rented land shall not be evicted except in accordance with the provisions of Section 13 or an order made in pursuance of the provisions of the Act.n (2) of Section 13 sets out statutory grounds on which the Controller, an authority constituted under the Act has power to pass order of eviction against a tenant. Section 13 takes away the jurisdiction of civil court to pass a decree of eviction or execution thereof against a tenant in respect of a building which is subject to the provisions of the Act. The impugned notification grants immunity to newly constructed buildings from the shackles of Section 13 of the Act for a period of five years. While doing so, the notification has taken care to make the exemption effective by providing that the exemption shall be available to the building even if the decree is is passed after the expiry of the period of five years provided the suit is instituted during the period of exemption. The emphasis is on the institution of the suit within the period of exemption of five years. Once the landlord institutes a suit before the expiry of the period of exemption, the decree even if passed after the period of five years will not be subject to the provisions of Section 13 of the Act. This is the true meaning of the notification. The notification does not enlarge the period of exemption instead it safeguards the rights of the parties which crytallise on the date of institution of the suitIt is a matter of common knowledge that final disposal of suits before the civil court are time consuming in view of the heavy workload of cases and dilatory tactics adopted by the interested party. Having regard to time normally consumed for adjudication of a suit by the civil court, it is too much to expect that a suit filed within the period of exemption of five years can be disposed of finally within the period of exemption. The exemption contemplated by the notification permits the institution of a suit within the period of exemption taking into account the delay caused in disposal of the suit, it further protects the jurisdiction of the civil court in passing decree of eviction with a view to make the exemption effective and meaningful.In this view if the submission made on behalf of the tenants is accepted it would render the exemption illusory, as in reality, it will be impossible for a landlord to get the suit decreed within the period of exemption even if he instituted the suit within the period of exemption. Interpretation of the Act and the impugned notification as suggested on behalf of the tenants if accepted would defeat the purpose of the beneficial social legislation. It is a settled rule of harmonious construction of statute that a construction which would advance the object and purpose of the legislation should be followed and construction which would result in reducing a provision of the Act to a dead letter or to defeat the object and purpose of the statute should be avoided without doing any violence to the language. We therefore reject the submission made on behalf of tenantsThere is no provision under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 or the Haryana Urban (Control of Rent and Eviction) Act, 1973 containing similar provision as contained in the impugned notification. We therefore do not consider it necessary to discuss the aforesaid decisions in detail or to express any final opinion about the correctness of the same
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Jameskutty Jacob Vs. United India Insurance Co.&Ors | S.N. Variava, J. 1. This appeal is against the judgment dated 17th October, 1997. 2. Briefly stated that facts are as follows:On 5th February, 1986 an accident took place in which a young boy was seriously injured. A claim was filed against the Appellant, who was shown as the owner of the vehicle, and the Insurance Company. The Motor Accident Claims Tribunal awarded a sum of Rs. 2,00,000/- with interest thereon. In so awarding it did not accept the contention of the Appellant that the Appellant was not owner of the vehicle inasmuch as he had sold the vehicle in 1983. The Motor Accident Claims Tribunal also did not accept the contention that the liability of the Insurance Company was limited to Rs. 50,000/-. It held both the Appellant and the Insurance Company jointly and severally liable.3. The Insurance Company filed an Appeal. It claimed that the Policy was an Act only policy on which no extra premium had been paid for making the liability unlimited. It was submitted that as the policy was an Act only policy the liability of the Insurance Company was limited to Rs. 50,000/- only under Section 95(2)(b)(i) of the Motor Vehicles Act, 1939. The High Court accepted this contention and limited the liability of the Insurance Company to a sum of Rs. 50,000/-. 4. After this Appeal was filed this Court directed the Insurance Company to produce the complete policy as also any other document to show that the vehicle insured was a taxi and not a private car. The Insurance Company had produced the policy. We, however, do not find, from the Policy or from any other document produced on record, that the vehicle was a taxi. Undoubtedly the policy is an Act only policy, however, even in respect of an Act only policy the Insurance Company would be liable for the statutory amount as payable under Section 95 of the Motor Vehicles Act, 1939. The relevant portion of Section 95 read as follows: "95. Requirements of policies and limits of liability.(1) xx xx xx xxxx xx xx xx xx(2) Subject to the proviso to sub-section (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely -a) where the vehicle is a goods vehicle, a limit of one lakh and fifty thousand rupees in all, including the liabilities, if any, arising under the Workmens Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, employees (other than the driver), not exceeding six in number, being carried in the vehicle;(b) Where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment -(i) in respect of persons other than passengers carried for hire or reward, a limit of fifty thousand rupees in all;(ii) in respect of passengers, a limit of fifteen thousand rupees for each individual passengers;(c) save as provided in clause (d), where the vehicle is a vehicle of any other class, the amount of liability incurred;(d) irrespective of the class of the vehicle, a limit of rupees six thousand in all in respect of damage to any property of a third party.(3) xxx xx xx(4) xx xx xx(4-A) xx xx xx(5) xx xx xx " 5. Accordingly, it is to be seen that if the vehicle was a vehicle in which passengers are carried for hire or reward then the liability would be limited to Rs. 50,000/- under Section 95(2)(b)(i). However, if the vehicle does not carry passengers for hire or reward, then under Section 95(2)(c) the liability of the Insurance Company would be the amount of liability incurred. 6. In this case, nobody has appeared on behalf of the Insurance Company in spite of the fact that they were served. We are informed by counsel for the Appellant that there is no evidence on record to show that the vehicle was a taxi. We, therefore, fail to understand on what basis the High Court has restricted the liability of the Insurance Company to Rs. 50,000/-. In view of the fact that it has not been shown to us that the vehicle was a taxi, the case would be covered by Section 95(2)(c) and the liability of the Insurance Company would be the amount of liability incurred, even though it is an Act only Policy. | 1[ds]6. In this case, nobody has appeared on behalf of the Insurance Company in spite of the fact that they were served. We are informed by counsel for the Appellant that there is no evidence on record to show that the vehicle was a taxi. We, therefore, fail to understand on what basis the High Court has restricted the liability of the Insurance Company to Rs.In view of the fact that it has not been shown to us that the vehicle was a taxi, the case would be covered by Section 95(2)(c) and the liability of the Insurance Company would be the amount of liability incurred, even though it is an Act only Policy. | 1 | 891 | 133 | ### 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:
S.N. Variava, J. 1. This appeal is against the judgment dated 17th October, 1997. 2. Briefly stated that facts are as follows:On 5th February, 1986 an accident took place in which a young boy was seriously injured. A claim was filed against the Appellant, who was shown as the owner of the vehicle, and the Insurance Company. The Motor Accident Claims Tribunal awarded a sum of Rs. 2,00,000/- with interest thereon. In so awarding it did not accept the contention of the Appellant that the Appellant was not owner of the vehicle inasmuch as he had sold the vehicle in 1983. The Motor Accident Claims Tribunal also did not accept the contention that the liability of the Insurance Company was limited to Rs. 50,000/-. It held both the Appellant and the Insurance Company jointly and severally liable.3. The Insurance Company filed an Appeal. It claimed that the Policy was an Act only policy on which no extra premium had been paid for making the liability unlimited. It was submitted that as the policy was an Act only policy the liability of the Insurance Company was limited to Rs. 50,000/- only under Section 95(2)(b)(i) of the Motor Vehicles Act, 1939. The High Court accepted this contention and limited the liability of the Insurance Company to a sum of Rs. 50,000/-. 4. After this Appeal was filed this Court directed the Insurance Company to produce the complete policy as also any other document to show that the vehicle insured was a taxi and not a private car. The Insurance Company had produced the policy. We, however, do not find, from the Policy or from any other document produced on record, that the vehicle was a taxi. Undoubtedly the policy is an Act only policy, however, even in respect of an Act only policy the Insurance Company would be liable for the statutory amount as payable under Section 95 of the Motor Vehicles Act, 1939. The relevant portion of Section 95 read as follows: "95. Requirements of policies and limits of liability.(1) xx xx xx xxxx xx xx xx xx(2) Subject to the proviso to sub-section (1), a policy of insurance shall cover any liability incurred in respect of any one accident up to the following limits, namely -a) where the vehicle is a goods vehicle, a limit of one lakh and fifty thousand rupees in all, including the liabilities, if any, arising under the Workmens Compensation Act, 1923 (8 of 1923), in respect of the death of, or bodily injury to, employees (other than the driver), not exceeding six in number, being carried in the vehicle;(b) Where the vehicle is a vehicle in which passengers are carried for hire or reward or by reason of or in pursuance of a contract of employment -(i) in respect of persons other than passengers carried for hire or reward, a limit of fifty thousand rupees in all;(ii) in respect of passengers, a limit of fifteen thousand rupees for each individual passengers;(c) save as provided in clause (d), where the vehicle is a vehicle of any other class, the amount of liability incurred;(d) irrespective of the class of the vehicle, a limit of rupees six thousand in all in respect of damage to any property of a third party.(3) xxx xx xx(4) xx xx xx(4-A) xx xx xx(5) xx xx xx " 5. Accordingly, it is to be seen that if the vehicle was a vehicle in which passengers are carried for hire or reward then the liability would be limited to Rs. 50,000/- under Section 95(2)(b)(i). However, if the vehicle does not carry passengers for hire or reward, then under Section 95(2)(c) the liability of the Insurance Company would be the amount of liability incurred. 6. In this case, nobody has appeared on behalf of the Insurance Company in spite of the fact that they were served. We are informed by counsel for the Appellant that there is no evidence on record to show that the vehicle was a taxi. We, therefore, fail to understand on what basis the High Court has restricted the liability of the Insurance Company to Rs. 50,000/-. In view of the fact that it has not been shown to us that the vehicle was a taxi, the case would be covered by Section 95(2)(c) and the liability of the Insurance Company would be the amount of liability incurred, even though it is an Act only Policy.
### Response:
1
### Explanation:
6. In this case, nobody has appeared on behalf of the Insurance Company in spite of the fact that they were served. We are informed by counsel for the Appellant that there is no evidence on record to show that the vehicle was a taxi. We, therefore, fail to understand on what basis the High Court has restricted the liability of the Insurance Company to Rs.In view of the fact that it has not been shown to us that the vehicle was a taxi, the case would be covered by Section 95(2)(c) and the liability of the Insurance Company would be the amount of liability incurred, even though it is an Act only Policy.
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Navneet Ram Batra Vs. State Of Uttar Pradesh & Ors | appellants land is a waste and arable land and thus falls under s.17 (1). There was therefore no objection to the Government dispensing with the provisions of s.5A by resorting to the power conferred by s.17(4). The person who could have taken objection to the enquiry under s. 5A being dispensed with was the owner of plot No. 436. He has not objected to the acquisition. He has taken the compensation awarded to him and walked out. It is, therefore? not open to the appellant to question the validity of this notification. If possibly the owner of the land sought to be acquired but any person in the locality derations might arise. The appellant who is only the owner of plot No. 428 in relation to which s. 17(1) and 17(4) are applicable and therefore enquiry under s 5A could properly be dispensed with, cannot object to the same notification because the notification also relates to another land to which s.17(1) and 17(4) are not applicable when the owner of that land has not chosen to challenge the notification. on behalf of the appellant, however, reliance was placed on certain observations of this Court in Sarju Prasad v. State of U.P. (A.I.R. 1965 S. C. 1763.) to the following effect:"It was contended by Mr. S. P. Sinha appearing on behalf of the Municipal Board, Basti, that a part of the land notified for acquisition was waste or arable and in support of his contention, counsel referred us to certain revenue record. But if only a part of the land is waste or arable and the rest is not, notification under s. 17(4) dispensing with compliance with the requirements of s. 5-A would be invalid. It would not be open to the Court to regard the notification as partially good and partially bad, for if the State had no power to dispense with the inquiry in respect of any part of the land notified under s. 4(1), an inquiry must be held s. 5-A giving an opportunity to persons interested in the land notified to raise the objections to the proposed acquisition and in that inquiry the persons interested cannot be restricted to raising objections in respect of land other than waste or arable land "3. That case is the converse of the present case. The appellant therein was a person who was entitle d to object to the notification. Under those circumstances the question whether the notification is to be quashed completely or only partially might well arise. But such a question cannot arise where a person like the appellant has no rig ht to impugn the notification. It was, however, urged that under s. 5-A(1) it is not only the owner of the land sought to be acquired but any person in the locality may object and his objections will have to be heard. Section 5-A (l) reads as follows:"5A.(1) Any person interested in any land which has been notified under section 4, sub-section (1), as being needed or likely to be needed for a public purpose or for a Company may, within thirty days after the issue of the notification, object to the acquisition of the land or of any land in the locality. as the case may be. "This section should be understood in the background of the provisions of s. 4(1) which reads as follows"4.(1) Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose, a notification to that effect shall be published in the official Gazette, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality."4. It may be noticed that under this section what is necessary is that only the locality the land in which appears to the appropriate Government as needed or as likely to be needed for any public purpose need be specified in the notification under that section. But in actual practice always the survey numbers of the lands sought to be acquired are given in such notifications. The question of notifying the locality might probably arise when all the lands in a village are sought to be acquired otherwise the word locality is a word of such indefinite import that it is difficult to conceive of any locality in any particular village being notified for acquisition. Therefore when a locality in the sense of a village or perhaps a group of villages is notified for acquisition any person interested in any land in that locality would be entitled to be heard under s. 5A. But where the land proposed to be acquired is specifically mentioned in the notification it is only the person interested in that land who is entitled to be heard under s. 5A. That is why s.5A provides that any person interested in any land which has been notified under s.(1) may object to the acquisition of the land or of any land in the locality as the case may be. The latter part would apply to a case where lands in any locality are notified under s. 4(1). That is the significance of the use of the words "as the case may be". To give and other interpretation to this section would mean that any person interested in any land which has been notified may object to the acquisition of his land or to the acquisition of any land ill the locality. This cannot be correct because he would not be a person interested in any land in the locality which is a pre-requisite before a person can object to the acquisition of any land. In other words in the background of section 4 (1), section 5A provides that where land in any locality is notified under section 4(1) any person who is interested in any land in the locality may object to the acquisition of his land or any land in the locality as the case may be. | 0[ds]Admittedly the appellants land is a waste and arable land and thus falls under s.17 (1). There was therefore no objection to the Government dispensing with the provisions of s.5A by resorting to the power conferred by s.17(4). The person who could have taken objection to the enquiry under s. 5A being dispensed with was the owner of plot No. 436. He has not objected to the acquisition. He has taken the compensation awarded to him and walked out. It is, thereforenot open to the appellant to question the validity of this notification. If possibly the owner of the land sought to be acquired but any person in the locality derations might arise. The appellant who is only the owner of plot No. 428 in relation to which s. 17(1) and 17(4) are applicable and therefore enquiry under s 5A could properly be dispensed with, cannot object to the same notification because the notification also relates to another land to which s.17(1) and 17(4) are not applicable when the owner of that land has not chosen to challenge thecase is the converse of the present case. The appellant therein was a person who was entitle d to object to the notification. Under those circumstances the question whether the notification is to be quashed completely or only partially might well arise. But such a question cannot arise where a person like the appellant has no rig ht to impugn themay be noticed that under this section what is necessary is that only the locality the land in which appears to the appropriate Government as needed or as likely to be needed for any public purpose need be specified in the notification under that section. But in actual practice always the survey numbers of the lands sought to be acquired are given in such notifications. The question of notifying the locality might probably arise when all the lands in a village are sought to be acquired otherwise the word locality is a word of such indefinite import that it is difficult to conceive of any locality in any particular village being notified for acquisition. Therefore when a locality in the sense of a village or perhaps a group of villages is notified for acquisition any person interested in any land in that locality would be entitled to be heard under s. 5A. But where the land proposed to be acquired is specifically mentioned in the notification it is only the person interested in that land who is entitled to be heard under s. 5A. That is why s.5A provides that any person interested in any land which has been notified under s.(1) may object to the acquisition of the land or of any land in the locality as the case may be. The latter part would apply to a case where lands in any locality are notified under s. 4(1). That is the significance of the use of the words "as the case may be". To give and other interpretation to this section would mean that any person interested in any land which has been notified may object to the acquisition of his land or to the acquisition of any land ill the locality. This cannot be correct because he would not be a person interested in any land in the locality which is a pre-requisite before a person can object to the acquisition of any land. In other words in the background of section 4 (1), section 5A provides that where land in any locality is notified under section 4(1) any person who is interested in any land in the locality may object to the acquisition of his land or any land in the locality as the case may be. | 0 | 1,398 | 682 | ### 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:
appellants land is a waste and arable land and thus falls under s.17 (1). There was therefore no objection to the Government dispensing with the provisions of s.5A by resorting to the power conferred by s.17(4). The person who could have taken objection to the enquiry under s. 5A being dispensed with was the owner of plot No. 436. He has not objected to the acquisition. He has taken the compensation awarded to him and walked out. It is, therefore? not open to the appellant to question the validity of this notification. If possibly the owner of the land sought to be acquired but any person in the locality derations might arise. The appellant who is only the owner of plot No. 428 in relation to which s. 17(1) and 17(4) are applicable and therefore enquiry under s 5A could properly be dispensed with, cannot object to the same notification because the notification also relates to another land to which s.17(1) and 17(4) are not applicable when the owner of that land has not chosen to challenge the notification. on behalf of the appellant, however, reliance was placed on certain observations of this Court in Sarju Prasad v. State of U.P. (A.I.R. 1965 S. C. 1763.) to the following effect:"It was contended by Mr. S. P. Sinha appearing on behalf of the Municipal Board, Basti, that a part of the land notified for acquisition was waste or arable and in support of his contention, counsel referred us to certain revenue record. But if only a part of the land is waste or arable and the rest is not, notification under s. 17(4) dispensing with compliance with the requirements of s. 5-A would be invalid. It would not be open to the Court to regard the notification as partially good and partially bad, for if the State had no power to dispense with the inquiry in respect of any part of the land notified under s. 4(1), an inquiry must be held s. 5-A giving an opportunity to persons interested in the land notified to raise the objections to the proposed acquisition and in that inquiry the persons interested cannot be restricted to raising objections in respect of land other than waste or arable land "3. That case is the converse of the present case. The appellant therein was a person who was entitle d to object to the notification. Under those circumstances the question whether the notification is to be quashed completely or only partially might well arise. But such a question cannot arise where a person like the appellant has no rig ht to impugn the notification. It was, however, urged that under s. 5-A(1) it is not only the owner of the land sought to be acquired but any person in the locality may object and his objections will have to be heard. Section 5-A (l) reads as follows:"5A.(1) Any person interested in any land which has been notified under section 4, sub-section (1), as being needed or likely to be needed for a public purpose or for a Company may, within thirty days after the issue of the notification, object to the acquisition of the land or of any land in the locality. as the case may be. "This section should be understood in the background of the provisions of s. 4(1) which reads as follows"4.(1) Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose, a notification to that effect shall be published in the official Gazette, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality."4. It may be noticed that under this section what is necessary is that only the locality the land in which appears to the appropriate Government as needed or as likely to be needed for any public purpose need be specified in the notification under that section. But in actual practice always the survey numbers of the lands sought to be acquired are given in such notifications. The question of notifying the locality might probably arise when all the lands in a village are sought to be acquired otherwise the word locality is a word of such indefinite import that it is difficult to conceive of any locality in any particular village being notified for acquisition. Therefore when a locality in the sense of a village or perhaps a group of villages is notified for acquisition any person interested in any land in that locality would be entitled to be heard under s. 5A. But where the land proposed to be acquired is specifically mentioned in the notification it is only the person interested in that land who is entitled to be heard under s. 5A. That is why s.5A provides that any person interested in any land which has been notified under s.(1) may object to the acquisition of the land or of any land in the locality as the case may be. The latter part would apply to a case where lands in any locality are notified under s. 4(1). That is the significance of the use of the words "as the case may be". To give and other interpretation to this section would mean that any person interested in any land which has been notified may object to the acquisition of his land or to the acquisition of any land ill the locality. This cannot be correct because he would not be a person interested in any land in the locality which is a pre-requisite before a person can object to the acquisition of any land. In other words in the background of section 4 (1), section 5A provides that where land in any locality is notified under section 4(1) any person who is interested in any land in the locality may object to the acquisition of his land or any land in the locality as the case may be.
### Response:
0
### Explanation:
Admittedly the appellants land is a waste and arable land and thus falls under s.17 (1). There was therefore no objection to the Government dispensing with the provisions of s.5A by resorting to the power conferred by s.17(4). The person who could have taken objection to the enquiry under s. 5A being dispensed with was the owner of plot No. 436. He has not objected to the acquisition. He has taken the compensation awarded to him and walked out. It is, thereforenot open to the appellant to question the validity of this notification. If possibly the owner of the land sought to be acquired but any person in the locality derations might arise. The appellant who is only the owner of plot No. 428 in relation to which s. 17(1) and 17(4) are applicable and therefore enquiry under s 5A could properly be dispensed with, cannot object to the same notification because the notification also relates to another land to which s.17(1) and 17(4) are not applicable when the owner of that land has not chosen to challenge thecase is the converse of the present case. The appellant therein was a person who was entitle d to object to the notification. Under those circumstances the question whether the notification is to be quashed completely or only partially might well arise. But such a question cannot arise where a person like the appellant has no rig ht to impugn themay be noticed that under this section what is necessary is that only the locality the land in which appears to the appropriate Government as needed or as likely to be needed for any public purpose need be specified in the notification under that section. But in actual practice always the survey numbers of the lands sought to be acquired are given in such notifications. The question of notifying the locality might probably arise when all the lands in a village are sought to be acquired otherwise the word locality is a word of such indefinite import that it is difficult to conceive of any locality in any particular village being notified for acquisition. Therefore when a locality in the sense of a village or perhaps a group of villages is notified for acquisition any person interested in any land in that locality would be entitled to be heard under s. 5A. But where the land proposed to be acquired is specifically mentioned in the notification it is only the person interested in that land who is entitled to be heard under s. 5A. That is why s.5A provides that any person interested in any land which has been notified under s.(1) may object to the acquisition of the land or of any land in the locality as the case may be. The latter part would apply to a case where lands in any locality are notified under s. 4(1). That is the significance of the use of the words "as the case may be". To give and other interpretation to this section would mean that any person interested in any land which has been notified may object to the acquisition of his land or to the acquisition of any land ill the locality. This cannot be correct because he would not be a person interested in any land in the locality which is a pre-requisite before a person can object to the acquisition of any land. In other words in the background of section 4 (1), section 5A provides that where land in any locality is notified under section 4(1) any person who is interested in any land in the locality may object to the acquisition of his land or any land in the locality as the case may be.
|
Damodar Valley Corporation Vs. Workmen | is no justification for denying construction allowance to those workmen.18. The learned Attorney-General no doubt urged that except filing Annexure B along with the written statement, neither PW-1 nor PW-2, who gave evidence on behalf of the unions, has explained the contents of Annexure B and given any information as to the circumstances under which the workers coming under category (d) are eligible to get construction allowance. The learned Attorney-General is right in his criticism that these two witnesses have not said anything in their evidence about Annexure B. But, in our opinion, that does not absolve the appellant, who is in possession of all information regarding the matters mentioned therein, from placing the necessary materials before the Tribunal to show the distinguishing and differentiating features of the two categories of workmen coming under items (c) and (d). We have already referred to this fact that Annexure B was before the Tribunal as early as October 7, 1967. The appellant filed its written statement only on December 2, 1967.Except a bald denial regarding Annexure B the appellant has not assisted the Tribunal by placing before it details or particulars such as the nature of work, the place where the work is being done other relevant factors regarding the eligibility of the particular group of workmen under category (c) to get construction allowance. Nor has the appellant placed any such material regarding the non-eligibility for construction allowance of the workmen coming under category (d).The appellant, who is in possession of all facts, has furnished no information regarding the distinction between the workmen coming under the two categories. The material part of the evidence of MW-1 has already been referred to by us. He has stated that the regular employees, who are at the construction site or who are posted at their headquarters, but have to visit the construction site during the process of construction, are paid construction allowance. That witness could have very well referred to the different types of work, if any, done by the employees coming under categories (c) and (d) of Annexure B. No such evidence has been furnished by that or any other witness. He has also admitted that at the same station a time will come when there are two sets of employees, some connected with the construction work of an extension project. The point to be noted from this evidence is that when the above two types of employees are posted at the same station, both of them will be having the benefit of the civic amenities provided at that station, because, even according to the appellant, by the time the operational stage is reached, full civic amenities are already provided.19. According to the circulars already referred to, the essential qualification for getting construction allowance is that the employee must be stationed at the construction camp site. This is emphasised by the circular dated 14-2-1953. The reason for circular such payment is the arduous and exacting nature of construction duties and the lack of civic amenities at the camp site. Obviously, the appellant has modified the above principle. The evidence of M. W. 1 shows that construction allowance is paid to employees who are posted at head-quarters but have to visit the construction site during the process of construction. The essential qualification for receipt of construction allowance viz. of being stationed as construction camp site, has been modified by the appellant. If such employees are posted or stationed at headquarters, they will be enjoying the civic amenities in the same manner as the other employees who are doing operational work at the same headquarters. Thus there is no distinction between them in the mater of enjoying civic amenities. The former are paid construction allowance while the latter do not get the same.20. For instance, according to the respondents, the entire Hospital staff coming under item (c) in Annexure B get construction allowance. This has not been controverted by the appellant. Nor is it case of the appellant that the Hospital staff, referred to earlier, is stationed at the construction site.It is not even in the case of the appellant that the Hospital staff is covered by clause (b) of paragraph 1 of the circular of 1953. In fact the appellant, except making a general denial, has not cared to place any material before the Tribunal regarding the location of the Hospital and its staff. It was faintly suggested by the Attorney General during the argument that a Doctor now and then visits the construction site to attend employees who may require medical assistance. We will assume that it is so. Even then, according to the circular, the said Doctor cannot get construction allowance, as he is not stationed at the Doctor for the moment, there is no justification for the entire staff of the Hospital being paid the said allowance. Even the plea made regarding the Doctor, has not been advanced before us regarding the remaining staff of the Hospital.21. Though we are not concerned with the question whether the staff of the Hospital should or should not get construction allowance,we have referred to the above circumstances only to show that there is no justification for denying construction allowance to the employees coming under item (d) of Annexure B. The appellant has neither pleaded not established any factors distinguishing the school staff coming under item (d) from the Hospital staff referred to in item (c) of Annexure B. If so, it follows that when the employees under item (c) are paid construction allowance, it stands to reason that the employees under item (d) should also get the said allowance, when both of them are posted at the same place.22. In view of the materials on record, in the our opinion, the Tribunal was justified in holding that the employees, who are posted at the same station, some doing construction work and others operational work , will both be entitled to construction allowance, as the two sets of employees have to be treated and paid uniformly. | 0[ds]From the circular of 1953 it is clear that the eligibility for receiving construction allowance is that the employee should be stationed at a construction camp, unless he comes under clause (b) of paragraph 1. Prima facie these two circulars give importance to the employee being at a particular place where he is discharging an arduous and exacting nature of constructionlearned Attorney-General is right in his criticism that these two witnesses have not said anything in their evidence about Annexure B. But, in our opinion, that does not absolve the appellant, who is in possession of all information regarding the matters mentioned therein, from placing the necessary materials before the Tribunal to show the distinguishing and differentiating features of the two categories of workmen coming under items (c) and (d). We have already referred to this fact that Annexure B was before the Tribunal as early as October 7, 1967. The appellant filed its written statement only on December 2, 1967.Except a bald denial regarding Annexure B the appellant has not assisted the Tribunal by placing before it details or particulars such as the nature of work, the place where the work is being done other relevant factors regarding the eligibility of the particular group of workmen under category (c) to get construction allowance. Nor has the appellant placed any such material regarding the non-eligibility for construction allowance of the workmen coming under category (d).The appellant, who is in possession of all facts, has furnished no information regarding the distinction between the workmen coming under the two categories. The material part of the evidence of MW-1 has already been referred to by us. He has stated that the regular employees, who are at the construction site or who are posted at their headquarters, but have to visit the construction site during the process of construction, are paid construction allowance. That witness could have very well referred to the different types of work, if any, done by the employees coming under categories (c) and (d) of Annexure B. No such evidence has been furnished by that or any other witness. He has also admitted that at the same station a time will come when there are two sets of employees, some connected with the construction work of an extension project. The point to be noted from this evidence is that when the above two types of employees are posted at the same station, both of them will be having the benefit of the civic amenities provided at that station, because, even according to the appellant, by the time the operational stage is reached, full civic amenities are already provided.For instance, according to the respondents, the entire Hospital staff coming under item (c) in Annexure B get construction allowance. This has not been controverted by the appellant. Nor is it case of the appellant that the Hospital staff, referred to earlier, is stationed at the construction site.It is not even in the case of the appellant that the Hospital staff is covered by clause (b) of paragraph 1 of the circular of 1953. In fact the appellant, except making a general denial, has not cared to place any material before the Tribunal regarding the location of the Hospital and its staff. It was faintly suggested by the Attorney General during the argument that a Doctor now and then visits the construction site to attend employees who may require medical assistance. We will assume that it is so. Even then, according to the circular, the said Doctor cannot get construction allowance, as he is not stationed at the Doctor for the moment, there is no justification for the entire staff of the Hospital being paid the said allowance. Even the plea made regarding the Doctor, has not been advanced before us regarding the remaining staff of theappellant has neither pleaded not established any factors distinguishing the school staff coming under item (d) from the Hospital staff referred to in item (c) of Annexure B. If so, it follows that when the employees under item (c) are paid construction allowance, it stands to reason that the employees under item (d) should also get the said allowance, when both of them are posted at the same place.22. In view of the materials on record, in the our opinion, the Tribunal was justified in holding that the employees, who are posted at the same station, some doing construction work and others operational work , will both be entitled to construction allowance, as the two sets of employees have to be treated and paid | 0 | 4,635 | 849 | ### 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:
is no justification for denying construction allowance to those workmen.18. The learned Attorney-General no doubt urged that except filing Annexure B along with the written statement, neither PW-1 nor PW-2, who gave evidence on behalf of the unions, has explained the contents of Annexure B and given any information as to the circumstances under which the workers coming under category (d) are eligible to get construction allowance. The learned Attorney-General is right in his criticism that these two witnesses have not said anything in their evidence about Annexure B. But, in our opinion, that does not absolve the appellant, who is in possession of all information regarding the matters mentioned therein, from placing the necessary materials before the Tribunal to show the distinguishing and differentiating features of the two categories of workmen coming under items (c) and (d). We have already referred to this fact that Annexure B was before the Tribunal as early as October 7, 1967. The appellant filed its written statement only on December 2, 1967.Except a bald denial regarding Annexure B the appellant has not assisted the Tribunal by placing before it details or particulars such as the nature of work, the place where the work is being done other relevant factors regarding the eligibility of the particular group of workmen under category (c) to get construction allowance. Nor has the appellant placed any such material regarding the non-eligibility for construction allowance of the workmen coming under category (d).The appellant, who is in possession of all facts, has furnished no information regarding the distinction between the workmen coming under the two categories. The material part of the evidence of MW-1 has already been referred to by us. He has stated that the regular employees, who are at the construction site or who are posted at their headquarters, but have to visit the construction site during the process of construction, are paid construction allowance. That witness could have very well referred to the different types of work, if any, done by the employees coming under categories (c) and (d) of Annexure B. No such evidence has been furnished by that or any other witness. He has also admitted that at the same station a time will come when there are two sets of employees, some connected with the construction work of an extension project. The point to be noted from this evidence is that when the above two types of employees are posted at the same station, both of them will be having the benefit of the civic amenities provided at that station, because, even according to the appellant, by the time the operational stage is reached, full civic amenities are already provided.19. According to the circulars already referred to, the essential qualification for getting construction allowance is that the employee must be stationed at the construction camp site. This is emphasised by the circular dated 14-2-1953. The reason for circular such payment is the arduous and exacting nature of construction duties and the lack of civic amenities at the camp site. Obviously, the appellant has modified the above principle. The evidence of M. W. 1 shows that construction allowance is paid to employees who are posted at head-quarters but have to visit the construction site during the process of construction. The essential qualification for receipt of construction allowance viz. of being stationed as construction camp site, has been modified by the appellant. If such employees are posted or stationed at headquarters, they will be enjoying the civic amenities in the same manner as the other employees who are doing operational work at the same headquarters. Thus there is no distinction between them in the mater of enjoying civic amenities. The former are paid construction allowance while the latter do not get the same.20. For instance, according to the respondents, the entire Hospital staff coming under item (c) in Annexure B get construction allowance. This has not been controverted by the appellant. Nor is it case of the appellant that the Hospital staff, referred to earlier, is stationed at the construction site.It is not even in the case of the appellant that the Hospital staff is covered by clause (b) of paragraph 1 of the circular of 1953. In fact the appellant, except making a general denial, has not cared to place any material before the Tribunal regarding the location of the Hospital and its staff. It was faintly suggested by the Attorney General during the argument that a Doctor now and then visits the construction site to attend employees who may require medical assistance. We will assume that it is so. Even then, according to the circular, the said Doctor cannot get construction allowance, as he is not stationed at the Doctor for the moment, there is no justification for the entire staff of the Hospital being paid the said allowance. Even the plea made regarding the Doctor, has not been advanced before us regarding the remaining staff of the Hospital.21. Though we are not concerned with the question whether the staff of the Hospital should or should not get construction allowance,we have referred to the above circumstances only to show that there is no justification for denying construction allowance to the employees coming under item (d) of Annexure B. The appellant has neither pleaded not established any factors distinguishing the school staff coming under item (d) from the Hospital staff referred to in item (c) of Annexure B. If so, it follows that when the employees under item (c) are paid construction allowance, it stands to reason that the employees under item (d) should also get the said allowance, when both of them are posted at the same place.22. In view of the materials on record, in the our opinion, the Tribunal was justified in holding that the employees, who are posted at the same station, some doing construction work and others operational work , will both be entitled to construction allowance, as the two sets of employees have to be treated and paid uniformly.
### Response:
0
### Explanation:
From the circular of 1953 it is clear that the eligibility for receiving construction allowance is that the employee should be stationed at a construction camp, unless he comes under clause (b) of paragraph 1. Prima facie these two circulars give importance to the employee being at a particular place where he is discharging an arduous and exacting nature of constructionlearned Attorney-General is right in his criticism that these two witnesses have not said anything in their evidence about Annexure B. But, in our opinion, that does not absolve the appellant, who is in possession of all information regarding the matters mentioned therein, from placing the necessary materials before the Tribunal to show the distinguishing and differentiating features of the two categories of workmen coming under items (c) and (d). We have already referred to this fact that Annexure B was before the Tribunal as early as October 7, 1967. The appellant filed its written statement only on December 2, 1967.Except a bald denial regarding Annexure B the appellant has not assisted the Tribunal by placing before it details or particulars such as the nature of work, the place where the work is being done other relevant factors regarding the eligibility of the particular group of workmen under category (c) to get construction allowance. Nor has the appellant placed any such material regarding the non-eligibility for construction allowance of the workmen coming under category (d).The appellant, who is in possession of all facts, has furnished no information regarding the distinction between the workmen coming under the two categories. The material part of the evidence of MW-1 has already been referred to by us. He has stated that the regular employees, who are at the construction site or who are posted at their headquarters, but have to visit the construction site during the process of construction, are paid construction allowance. That witness could have very well referred to the different types of work, if any, done by the employees coming under categories (c) and (d) of Annexure B. No such evidence has been furnished by that or any other witness. He has also admitted that at the same station a time will come when there are two sets of employees, some connected with the construction work of an extension project. The point to be noted from this evidence is that when the above two types of employees are posted at the same station, both of them will be having the benefit of the civic amenities provided at that station, because, even according to the appellant, by the time the operational stage is reached, full civic amenities are already provided.For instance, according to the respondents, the entire Hospital staff coming under item (c) in Annexure B get construction allowance. This has not been controverted by the appellant. Nor is it case of the appellant that the Hospital staff, referred to earlier, is stationed at the construction site.It is not even in the case of the appellant that the Hospital staff is covered by clause (b) of paragraph 1 of the circular of 1953. In fact the appellant, except making a general denial, has not cared to place any material before the Tribunal regarding the location of the Hospital and its staff. It was faintly suggested by the Attorney General during the argument that a Doctor now and then visits the construction site to attend employees who may require medical assistance. We will assume that it is so. Even then, according to the circular, the said Doctor cannot get construction allowance, as he is not stationed at the Doctor for the moment, there is no justification for the entire staff of the Hospital being paid the said allowance. Even the plea made regarding the Doctor, has not been advanced before us regarding the remaining staff of theappellant has neither pleaded not established any factors distinguishing the school staff coming under item (d) from the Hospital staff referred to in item (c) of Annexure B. If so, it follows that when the employees under item (c) are paid construction allowance, it stands to reason that the employees under item (d) should also get the said allowance, when both of them are posted at the same place.22. In view of the materials on record, in the our opinion, the Tribunal was justified in holding that the employees, who are posted at the same station, some doing construction work and others operational work , will both be entitled to construction allowance, as the two sets of employees have to be treated and paid
|
M/S. Synco Industries Ltd Vs. Assessing Officer,Income Tax Mumbai &Anr | 80A (1) of the Act says that in computing the total income of an assessee it shall be allowed from the gross total income in accordance with and subject to the provisions of this Section the deductions specified in Section 80C to 80U whereas sub-section 2 of Section 80A says that the aggregate amount of the deductions under this Chapter shall not be in any case exceed the gross total income of the assessee and therefore the total deduction under Sections 80HH and 80I should not exceed the gross total income of the assessee. In Commissioner of Income Tax and Another v. R.P.G. Telecoms Ltd. (2007) 292 ITR 355 the Karnataka High Court has held that Section 80AB of the Income-Tax Act, 1961, would override all other Sections for the purpose of deduction under Chapter VI-A of the Act and while calculating the gross total income of the company, one has to adjust the losses from one priority unit against the profits of the other priority unit and if the resultant gross total income is Nil then the assessee cannot claim deduction under Chapter VI-A. 11. The above discussion makes it very evident that predominant majority of the High Courts have taken the view that while working out gross total income of the assessee the losses suffered have to be adjusted and if the gross total income of the assessee is Nil the assessee will not be entitled to deduction under Chapter VI-A of the Act. It is well settled that where the predominant majority of the High Courts have taken certain view on the interpretation of certain provisions, the Supreme Court would lean in favour of the predominant view. Therefore, this Court is of the opinion that the High Court was justified in holding that gross total income must be determined, by setting off against the income, the business losses of earlier years, before allowing deduction under Chapter VI-A and if the resultant income is Nil, then the asessee cannot claim deduction under Chapter VI-A.12. The contention that under Section 80-I (6) the profits derived from one industrial undertaking cannot be set off against loss suffered from another and the profit is required to be computed as if profit making industrial undertaking was the only source of income, has no merits. Section 80-I (1) lays down that where the gross total income of the assessee includes any profits derived from the priority undertaking/unit/division, then in computing the total income of the assessee, a deduction from such profits of an amount equal to 20% has to be made. Section 80-I (1) lays down the broad parameters indicating circumstances under which an assessee would be entitled to claim deduction. On the other hand Section 80-I (6) deals with determination of the quantum of deduction. Section 80-I (6) lays down the manner in which the quantum of deduction has to be worked out. After such computation of the quantum of deduction, one has to go back to Section 80-I (1) which categorically states that where the gross total income includes any profits and gains derived from an industrial undertaking to which Section 80-I applies then there shall be a deduction from such profits and gains of an amount equal to 20%. The words "includes any profits used by the legislature in Section 80-I(1) are very important which indicate that the gross total income of an assessee shall include profits from a priority undertaking. While computing the quantum of deduction under Section 80-I(6) the Assessing Officer, no doubt, has to treat the profits derived from an industrial undertaking as the only source of income in order to arrive at the deduction under Chapter VI-A. However, this Court finds that the non-obstante clause appearing in Section 80-I(6) of the Act, is applicable only to the quantum of deduction, whereas, the gross total income under Section 80B(5) which is also referred to in Section 80I(1) is required to be computed in the manner provided under the Act which presupposes that the gross total income shall be arrived at after adjusting the losses of the other division against the profits derived from an industrial undertaking. If the interpretation as suggested by the appellant is accepted it would almost render the provisions of Section 80A(2) of the Act nugatory and therefore the interpretation canvassed on behalf of the appellant cannot be accepted. It is true that under Section 80-I(6) for the purpose of calculating the deduction, the loss sustained in one of the units, cannot be taken into account because Sub-Section 6 contemplates that only the profits shall be taken into account as if it was the only source of income. However, Section 80A(2) and Section 80B (5) are declaratory in nature. They apply to all the Sections falling in Chapter VI-A. They impose a ceiling on the total amount of deduction and therefore the non-obstante clause in Section 80-I(6) cannot restrict the operation of Sections 80A(2) and 80B(5) which operate in different spheres. As observed earlier Section 80-I(6) deals with actual computation of deduction whereas Section 80-I(1) deals with the treatment to be given to such deductions in order to arrive at the total income of the assessee and therefore while interpreting Section 80-I(1), which also refers to gross total income one has to read the expression gross total income as defined in Section 80B(5). Therefore, this Court is of the opinion that the High Court was justified in holding that the loss from the oil division was required to be adjusted before determining the gross total income and as the gross total income was Nil the assessee was not entitled to claim deduction under Chapter VI-A which includes Section 80-I also.13. The proposition of law, emerging from the above discussion is that the gross total income of the assessee has first got to be determined after adjusting losses etc., and if the gross total income of the assessee is Nil the assessee would not be entitled to deductions under Chapter VI-A of the Act. 14. | 0[ds]11. The above discussion makes it very evident that predominant majority of the High Courts have taken the view that while working out gross total income of the assessee the losses suffered have to be adjusted and if the gross total income of the assessee is Nil the assessee will not be entitled to deduction under Chapter VI-A of the Act. It is well settled that where the predominant majority of the High Courts have taken certain view on the interpretation of certain provisions, the Supreme Court would lean in favour of the predominant view. Therefore, this Court is of the opinion that the High Court was justified in holding that gross total income must be determined, by setting off against the income, the business losses of earlier years, before allowing deduction under Chapter VI-A and if the resultant income is Nil, then the asessee cannot claim deduction under Chapter VI-A.12. The contention that under Section 80-I (6) the profits derived from one industrial undertaking cannot be set off against loss suffered from another and the profit is required to be computed as if profit making industrial undertaking was the only source of income, has no merits. Section 80-I (1) lays down that where the gross total income of the assessee includes any profits derived from the priority undertaking/unit/division, then in computing the total income of the assessee, a deduction from such profits of an amount equal to 20% has to be made. Section 80-I (1) lays down the broad parameters indicating circumstances under which an assessee would be entitled to claim deduction. On the other hand Section 80-I (6) deals with determination of the quantum of deduction. Section 80-I (6) lays down the manner in which the quantum of deduction has to be worked out. After such computation of the quantum of deduction, one has to go back to Section 80-I (1) which categorically states that where the gross total income includes any profits and gains derived from an industrial undertaking to which Section 80-I applies then there shall be a deduction from such profits and gains of an amount equal to 20%. The words "includes any profits used by the legislature in Section 80-I(1) are very important which indicate that the gross total income of an assessee shall include profits from a priority undertaking. While computing the quantum of deduction under Section 80-I(6) the Assessing Officer, no doubt, has to treat the profits derived from an industrial undertaking as the only source of income in order to arrive at the deduction under Chapter VI-A. However, this Court finds that the non-obstante clause appearing in Section 80-I(6) of the Act, is applicable only to the quantum of deduction, whereas, the gross total income under Section 80B(5) which is also referred to in Section 80I(1) is required to be computed in the manner provided under the Act which presupposes that the gross total income shall be arrived at after adjusting the losses of the other division against the profits derived from an industrial undertaking. If the interpretation as suggested by the appellant is accepted it would almost render the provisions of Section 80A(2) of the Act nugatory and therefore the interpretation canvassed on behalf of the appellant cannot be accepted. It is true that under Section 80-I(6) for the purpose of calculating the deduction, the loss sustained in one of the units, cannot be taken into account because Sub-Section 6 contemplates that only the profits shall be taken into account as if it was the only source of income. However, Section 80A(2) and Section 80B (5) are declaratory in nature. They apply to all the Sections falling in Chapter VI-A. They impose a ceiling on the total amount of deduction and therefore the non-obstante clause in Section 80-I(6) cannot restrict the operation of Sections 80A(2) and 80B(5) which operate in different spheres. As observed earlier Section 80-I(6) deals with actual computation of deduction whereas Section 80-I(1) deals with the treatment to be given to such deductions in order to arrive at the total income of the assessee and therefore while interpreting Section 80-I(1), which also refers to gross total income one has to read the expression gross total income as defined in Section 80B(5). Therefore, this Court is of the opinion that the High Court was justified in holding that the loss from the oil division was required to be adjusted before determining the gross total income and as the gross total income was Nil the assessee was not entitled to claim deduction under Chapter VI-A which includes Section 80-I also.13. The proposition of law, emerging from the above discussion is that the gross total income of the assessee has first got to be determined after adjusting losses etc., and if the gross total income of the assessee is Nil the assessee would not be entitled to deductions under Chapter VI-A of the | 0 | 4,551 | 927 | ### 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:
80A (1) of the Act says that in computing the total income of an assessee it shall be allowed from the gross total income in accordance with and subject to the provisions of this Section the deductions specified in Section 80C to 80U whereas sub-section 2 of Section 80A says that the aggregate amount of the deductions under this Chapter shall not be in any case exceed the gross total income of the assessee and therefore the total deduction under Sections 80HH and 80I should not exceed the gross total income of the assessee. In Commissioner of Income Tax and Another v. R.P.G. Telecoms Ltd. (2007) 292 ITR 355 the Karnataka High Court has held that Section 80AB of the Income-Tax Act, 1961, would override all other Sections for the purpose of deduction under Chapter VI-A of the Act and while calculating the gross total income of the company, one has to adjust the losses from one priority unit against the profits of the other priority unit and if the resultant gross total income is Nil then the assessee cannot claim deduction under Chapter VI-A. 11. The above discussion makes it very evident that predominant majority of the High Courts have taken the view that while working out gross total income of the assessee the losses suffered have to be adjusted and if the gross total income of the assessee is Nil the assessee will not be entitled to deduction under Chapter VI-A of the Act. It is well settled that where the predominant majority of the High Courts have taken certain view on the interpretation of certain provisions, the Supreme Court would lean in favour of the predominant view. Therefore, this Court is of the opinion that the High Court was justified in holding that gross total income must be determined, by setting off against the income, the business losses of earlier years, before allowing deduction under Chapter VI-A and if the resultant income is Nil, then the asessee cannot claim deduction under Chapter VI-A.12. The contention that under Section 80-I (6) the profits derived from one industrial undertaking cannot be set off against loss suffered from another and the profit is required to be computed as if profit making industrial undertaking was the only source of income, has no merits. Section 80-I (1) lays down that where the gross total income of the assessee includes any profits derived from the priority undertaking/unit/division, then in computing the total income of the assessee, a deduction from such profits of an amount equal to 20% has to be made. Section 80-I (1) lays down the broad parameters indicating circumstances under which an assessee would be entitled to claim deduction. On the other hand Section 80-I (6) deals with determination of the quantum of deduction. Section 80-I (6) lays down the manner in which the quantum of deduction has to be worked out. After such computation of the quantum of deduction, one has to go back to Section 80-I (1) which categorically states that where the gross total income includes any profits and gains derived from an industrial undertaking to which Section 80-I applies then there shall be a deduction from such profits and gains of an amount equal to 20%. The words "includes any profits used by the legislature in Section 80-I(1) are very important which indicate that the gross total income of an assessee shall include profits from a priority undertaking. While computing the quantum of deduction under Section 80-I(6) the Assessing Officer, no doubt, has to treat the profits derived from an industrial undertaking as the only source of income in order to arrive at the deduction under Chapter VI-A. However, this Court finds that the non-obstante clause appearing in Section 80-I(6) of the Act, is applicable only to the quantum of deduction, whereas, the gross total income under Section 80B(5) which is also referred to in Section 80I(1) is required to be computed in the manner provided under the Act which presupposes that the gross total income shall be arrived at after adjusting the losses of the other division against the profits derived from an industrial undertaking. If the interpretation as suggested by the appellant is accepted it would almost render the provisions of Section 80A(2) of the Act nugatory and therefore the interpretation canvassed on behalf of the appellant cannot be accepted. It is true that under Section 80-I(6) for the purpose of calculating the deduction, the loss sustained in one of the units, cannot be taken into account because Sub-Section 6 contemplates that only the profits shall be taken into account as if it was the only source of income. However, Section 80A(2) and Section 80B (5) are declaratory in nature. They apply to all the Sections falling in Chapter VI-A. They impose a ceiling on the total amount of deduction and therefore the non-obstante clause in Section 80-I(6) cannot restrict the operation of Sections 80A(2) and 80B(5) which operate in different spheres. As observed earlier Section 80-I(6) deals with actual computation of deduction whereas Section 80-I(1) deals with the treatment to be given to such deductions in order to arrive at the total income of the assessee and therefore while interpreting Section 80-I(1), which also refers to gross total income one has to read the expression gross total income as defined in Section 80B(5). Therefore, this Court is of the opinion that the High Court was justified in holding that the loss from the oil division was required to be adjusted before determining the gross total income and as the gross total income was Nil the assessee was not entitled to claim deduction under Chapter VI-A which includes Section 80-I also.13. The proposition of law, emerging from the above discussion is that the gross total income of the assessee has first got to be determined after adjusting losses etc., and if the gross total income of the assessee is Nil the assessee would not be entitled to deductions under Chapter VI-A of the Act. 14.
### Response:
0
### Explanation:
11. The above discussion makes it very evident that predominant majority of the High Courts have taken the view that while working out gross total income of the assessee the losses suffered have to be adjusted and if the gross total income of the assessee is Nil the assessee will not be entitled to deduction under Chapter VI-A of the Act. It is well settled that where the predominant majority of the High Courts have taken certain view on the interpretation of certain provisions, the Supreme Court would lean in favour of the predominant view. Therefore, this Court is of the opinion that the High Court was justified in holding that gross total income must be determined, by setting off against the income, the business losses of earlier years, before allowing deduction under Chapter VI-A and if the resultant income is Nil, then the asessee cannot claim deduction under Chapter VI-A.12. The contention that under Section 80-I (6) the profits derived from one industrial undertaking cannot be set off against loss suffered from another and the profit is required to be computed as if profit making industrial undertaking was the only source of income, has no merits. Section 80-I (1) lays down that where the gross total income of the assessee includes any profits derived from the priority undertaking/unit/division, then in computing the total income of the assessee, a deduction from such profits of an amount equal to 20% has to be made. Section 80-I (1) lays down the broad parameters indicating circumstances under which an assessee would be entitled to claim deduction. On the other hand Section 80-I (6) deals with determination of the quantum of deduction. Section 80-I (6) lays down the manner in which the quantum of deduction has to be worked out. After such computation of the quantum of deduction, one has to go back to Section 80-I (1) which categorically states that where the gross total income includes any profits and gains derived from an industrial undertaking to which Section 80-I applies then there shall be a deduction from such profits and gains of an amount equal to 20%. The words "includes any profits used by the legislature in Section 80-I(1) are very important which indicate that the gross total income of an assessee shall include profits from a priority undertaking. While computing the quantum of deduction under Section 80-I(6) the Assessing Officer, no doubt, has to treat the profits derived from an industrial undertaking as the only source of income in order to arrive at the deduction under Chapter VI-A. However, this Court finds that the non-obstante clause appearing in Section 80-I(6) of the Act, is applicable only to the quantum of deduction, whereas, the gross total income under Section 80B(5) which is also referred to in Section 80I(1) is required to be computed in the manner provided under the Act which presupposes that the gross total income shall be arrived at after adjusting the losses of the other division against the profits derived from an industrial undertaking. If the interpretation as suggested by the appellant is accepted it would almost render the provisions of Section 80A(2) of the Act nugatory and therefore the interpretation canvassed on behalf of the appellant cannot be accepted. It is true that under Section 80-I(6) for the purpose of calculating the deduction, the loss sustained in one of the units, cannot be taken into account because Sub-Section 6 contemplates that only the profits shall be taken into account as if it was the only source of income. However, Section 80A(2) and Section 80B (5) are declaratory in nature. They apply to all the Sections falling in Chapter VI-A. They impose a ceiling on the total amount of deduction and therefore the non-obstante clause in Section 80-I(6) cannot restrict the operation of Sections 80A(2) and 80B(5) which operate in different spheres. As observed earlier Section 80-I(6) deals with actual computation of deduction whereas Section 80-I(1) deals with the treatment to be given to such deductions in order to arrive at the total income of the assessee and therefore while interpreting Section 80-I(1), which also refers to gross total income one has to read the expression gross total income as defined in Section 80B(5). Therefore, this Court is of the opinion that the High Court was justified in holding that the loss from the oil division was required to be adjusted before determining the gross total income and as the gross total income was Nil the assessee was not entitled to claim deduction under Chapter VI-A which includes Section 80-I also.13. The proposition of law, emerging from the above discussion is that the gross total income of the assessee has first got to be determined after adjusting losses etc., and if the gross total income of the assessee is Nil the assessee would not be entitled to deductions under Chapter VI-A of the
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The State of Meghalaya and Ors Vs. Phikirbha Khariah and Ors | 1. We have heard learned Counsel for the parties. We do not find any ground to interfere with the directions in the impugned order.SLP(C) Nos. 33995-34027/2017:2. It has been found that there are serious irregularities in the selection process of appointment of assistant teachers in government lower primary schools in the State of Meghalaya. Such incidents are being reported in several cases. We have recently dealt with such a matter in Avinash C. and Ors. v. The State of Karnataka and Ors., C.A. Nos. 3543-3555 of 2018, decided on 4.4.2018.3. We are of the view that for the purity of selection to the public posts, it is desirable that as far as possible the selection process conducted by the selection bodies, especially the State Public Service Commissions and the State Selection Boards, is videographed. It is desirable that at examination centres as well as interview centres CCTV cameras are installed to the extent viable. Footage thereof may be seen by an independent committee of three members and report of such committee may be placed on the website concerned. | 1[ds]1. We have heard learned Counsel for the parties. We do not find any ground to interfere with the directions in the impugned orderSLP(C) Nos. 33995-34027/2017:Such incidents are being reported in several cases. We have recently dealt with such a matter in Avinash C. and Ors. v. The State of Karnataka and Ors., C.A. Nos. 3543-3555 of 2018, decided on 4.4.20183. We are of the view that for the purity of selection to the public posts, it is desirable that as far as possible the selection process conducted by the selection bodies, especially the State Public Service Commissions and the State Selection Boards, is videographed. It is desirable that at examination centres as well as interview centres CCTV cameras are installed to the extent viable. Footage thereof may be seen by an independent committee of three members and report of such committee may be placed on the website concerned. | 1 | 199 | 174 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
1. We have heard learned Counsel for the parties. We do not find any ground to interfere with the directions in the impugned order.SLP(C) Nos. 33995-34027/2017:2. It has been found that there are serious irregularities in the selection process of appointment of assistant teachers in government lower primary schools in the State of Meghalaya. Such incidents are being reported in several cases. We have recently dealt with such a matter in Avinash C. and Ors. v. The State of Karnataka and Ors., C.A. Nos. 3543-3555 of 2018, decided on 4.4.2018.3. We are of the view that for the purity of selection to the public posts, it is desirable that as far as possible the selection process conducted by the selection bodies, especially the State Public Service Commissions and the State Selection Boards, is videographed. It is desirable that at examination centres as well as interview centres CCTV cameras are installed to the extent viable. Footage thereof may be seen by an independent committee of three members and report of such committee may be placed on the website concerned.
### Response:
1
### Explanation:
1. We have heard learned Counsel for the parties. We do not find any ground to interfere with the directions in the impugned orderSLP(C) Nos. 33995-34027/2017:Such incidents are being reported in several cases. We have recently dealt with such a matter in Avinash C. and Ors. v. The State of Karnataka and Ors., C.A. Nos. 3543-3555 of 2018, decided on 4.4.20183. We are of the view that for the purity of selection to the public posts, it is desirable that as far as possible the selection process conducted by the selection bodies, especially the State Public Service Commissions and the State Selection Boards, is videographed. It is desirable that at examination centres as well as interview centres CCTV cameras are installed to the extent viable. Footage thereof may be seen by an independent committee of three members and report of such committee may be placed on the website concerned.
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The East India Hotels Vs. Their Workmen & Others | workman. It is admitted that it was the duty of workman to remove the bottle after serving the liquor. It was also his duty to empty the bottle after ginger and liquor were served. In the circumstances, there is no reason to disbelieve the explanation submitted by the workman. In view of the nature of evidence adduced before the enquiry officer, it must be held that the workman was negligent in performing his duty. In that view of the matter, the conclusion is irresistible that the enquiry officer has committed an error in finding the workman guilty under clauses 17 (19) of the Standing Orders." On the above reasoning , the Tribunal found the order of dismissal passed by the company against the workman illegal and set it aside. It further ditected that the period from the date of suspension to May 31, 1972, was to be treated as service without pay and the said period would not in any way interfere in the matter of increment and other allowances. etc. 5. This appeal is by special leave against the award of the Tribunal. It is not derried that the Tribunal was in error in applying 3. 11A of the Act to this case, because the compisint, the enquiry, the report and the refrence were all prior to the coming into operation of this section on December 15, 1971.This Court held in Workmen of M/s Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. v. The Management, (1973) 1 Lab LJ 978 - (AIR 1973 SC 1227 ) that Section 11A has no retrospectove operation as it not only deals woth procedural matters, but also has the effect of altering the law laid own by this Court in this respect by abridging the rights of the employer inasmuch as it gives gives power to the Tribunal for the first time to differ both on a finding of misconduct arrived at by an employer as wrll as with the punishment imposed by it.In the undoubted exercise of the right of the employer to take disciplinary action, and to decide upon the quantum of punishment, both of which are part of managerial functions, what has to be seen is whether the employer before imposing the punishment had conducted a proper enquiry in accordance with the provisions of the Standing Order, if applicable, and principles of natural justice. When a proper enquiry has been held by an employer and the finding of misconduct has support from the evidence adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified whan the enquiry is unfair or the findings arrived at in the enquiry are perverse or have no basis in evidence or the management is guilty of victimisation, unfair labour practice or mala fide or the punishment is harsh and oppressive. The Tribunal cannot, therefore, reappraise the evidence and arrive at a conclusion different from that arrived at by the domestic Tribunal. Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, has to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action; and it is open to the employee to adduce evidence contra. Once misconduct is proved, either in the enquiry conducted by the employer or by the evidence placed before the Tribunal for the first time, the punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is harsh and oppressive. This is not a case where no enquiry has been held nor is it a case where either side had not adduced evidence before the Tribunal. What the Tribunal had to see is whether the enquiry is vitiated by any of the grounds referred to by us. Admittedly, no such grounds exist in this case. Nothing was stated as to in what respects the enquiry was defective. On the other hand, the Tribunal proceeded on the basis that the enquiry was not vitiated, but it had power under S. 11A to arrive at a different conclusion and award a different punishment. That apart, even the evidence justified the conclusion arrived at by the Enquiry Officer. 6. It is not necessary that Sethi should have given evidence. His absence may be due to the fact that it was now for the employer to take action on his complaint and to protect theri prestige and reputation which was mainly their affair. It is, however, apparent from the evidence that Sethi had complained to Pyare Lal and Pyare Lal speaks to what the respondent did and what happened in his presence. He said even when he asked the respondent what was in the bottle the respondent replied that it contained Nimboo Pani and that he was pouring the contents in the tub. Bakshi also found whisky in the gingerale bottle. He says that Agrawal was tasting something when he came. The bottle was sealed by him in the presence of Sethi, Agrawal and Pyare Lal. Agrawal also gave evidence and so did Lal Singh. When the respondent was asked to sign the envelope he refused to do so and when he was asked by Lal Singh why he was refusing to do so, his reply wasHum Jab esme sign karange tob mar jayange". The respondent did not challenge this statement also. As the enquiry and the dismissal do not suffer from any defect and there is evidence from which the impugned conclusions can be drawn, we set aside the award of the Tribunal and subsitute instead the finding that the dismissal of the respondent was justified. 7. The appeal is accordingly allowed, but in the circumstances without costs. | 1[ds]6. It is not necessary that Sethi should have given evidence. His absence may be due to the fact that it was now for the employer to take action on his complaint and to protect theri prestige and reputation which was mainly their affair. It is, however, apparent from the evidence that Sethi had complained to Pyare Lal and Pyare Lal speaks to what the respondent did and what happened in his presence. He said even when he asked the respondent what was in the bottle the respondent replied that it contained Nimboo Pani and that he was pouring the contents in the tub. Bakshi also found whisky in the gingerale bottle. He says that Agrawal was tasting something when he came. The bottle was sealed by him in the presence of Sethi, Agrawal and Pyare Lal. Agrawal also gave evidence and so did Lal Singh. When the respondent was asked to sign the envelope he refused to do so and when he was asked by Lal Singh why he was refusing to do so, his reply wasHum Jab esme sign karange tob mar jayange". The respondent did not challenge this statement also. As the enquiry and the dismissal do not suffer from any defect and there is evidence from which the impugned conclusions can be drawn, we set aside the award of the Tribunal and subsitute instead the finding that the dismissal of the respondent was justified7. The appeal is accordingly allowed, but in the circumstances without costs. | 1 | 2,480 | 273 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
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workman. It is admitted that it was the duty of workman to remove the bottle after serving the liquor. It was also his duty to empty the bottle after ginger and liquor were served. In the circumstances, there is no reason to disbelieve the explanation submitted by the workman. In view of the nature of evidence adduced before the enquiry officer, it must be held that the workman was negligent in performing his duty. In that view of the matter, the conclusion is irresistible that the enquiry officer has committed an error in finding the workman guilty under clauses 17 (19) of the Standing Orders." On the above reasoning , the Tribunal found the order of dismissal passed by the company against the workman illegal and set it aside. It further ditected that the period from the date of suspension to May 31, 1972, was to be treated as service without pay and the said period would not in any way interfere in the matter of increment and other allowances. etc. 5. This appeal is by special leave against the award of the Tribunal. It is not derried that the Tribunal was in error in applying 3. 11A of the Act to this case, because the compisint, the enquiry, the report and the refrence were all prior to the coming into operation of this section on December 15, 1971.This Court held in Workmen of M/s Firestone Tyre and Rubber Co. of India (Pvt.) Ltd. v. The Management, (1973) 1 Lab LJ 978 - (AIR 1973 SC 1227 ) that Section 11A has no retrospectove operation as it not only deals woth procedural matters, but also has the effect of altering the law laid own by this Court in this respect by abridging the rights of the employer inasmuch as it gives gives power to the Tribunal for the first time to differ both on a finding of misconduct arrived at by an employer as wrll as with the punishment imposed by it.In the undoubted exercise of the right of the employer to take disciplinary action, and to decide upon the quantum of punishment, both of which are part of managerial functions, what has to be seen is whether the employer before imposing the punishment had conducted a proper enquiry in accordance with the provisions of the Standing Order, if applicable, and principles of natural justice. When a proper enquiry has been held by an employer and the finding of misconduct has support from the evidence adduced at the said enquiry, the Tribunal has no jurisdiction to sit in judgment over the decision of the employer as an appellate body. The interference with the decision of the employer will be justified whan the enquiry is unfair or the findings arrived at in the enquiry are perverse or have no basis in evidence or the management is guilty of victimisation, unfair labour practice or mala fide or the punishment is harsh and oppressive. The Tribunal cannot, therefore, reappraise the evidence and arrive at a conclusion different from that arrived at by the domestic Tribunal. Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality and validity of the order, has to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action; and it is open to the employee to adduce evidence contra. Once misconduct is proved, either in the enquiry conducted by the employer or by the evidence placed before the Tribunal for the first time, the punishment imposed cannot be interfered with by the Tribunal except in cases where the punishment is harsh and oppressive. This is not a case where no enquiry has been held nor is it a case where either side had not adduced evidence before the Tribunal. What the Tribunal had to see is whether the enquiry is vitiated by any of the grounds referred to by us. Admittedly, no such grounds exist in this case. Nothing was stated as to in what respects the enquiry was defective. On the other hand, the Tribunal proceeded on the basis that the enquiry was not vitiated, but it had power under S. 11A to arrive at a different conclusion and award a different punishment. That apart, even the evidence justified the conclusion arrived at by the Enquiry Officer. 6. It is not necessary that Sethi should have given evidence. His absence may be due to the fact that it was now for the employer to take action on his complaint and to protect theri prestige and reputation which was mainly their affair. It is, however, apparent from the evidence that Sethi had complained to Pyare Lal and Pyare Lal speaks to what the respondent did and what happened in his presence. He said even when he asked the respondent what was in the bottle the respondent replied that it contained Nimboo Pani and that he was pouring the contents in the tub. Bakshi also found whisky in the gingerale bottle. He says that Agrawal was tasting something when he came. The bottle was sealed by him in the presence of Sethi, Agrawal and Pyare Lal. Agrawal also gave evidence and so did Lal Singh. When the respondent was asked to sign the envelope he refused to do so and when he was asked by Lal Singh why he was refusing to do so, his reply wasHum Jab esme sign karange tob mar jayange". The respondent did not challenge this statement also. As the enquiry and the dismissal do not suffer from any defect and there is evidence from which the impugned conclusions can be drawn, we set aside the award of the Tribunal and subsitute instead the finding that the dismissal of the respondent was justified. 7. The appeal is accordingly allowed, but in the circumstances without costs.
### Response:
1
### Explanation:
6. It is not necessary that Sethi should have given evidence. His absence may be due to the fact that it was now for the employer to take action on his complaint and to protect theri prestige and reputation which was mainly their affair. It is, however, apparent from the evidence that Sethi had complained to Pyare Lal and Pyare Lal speaks to what the respondent did and what happened in his presence. He said even when he asked the respondent what was in the bottle the respondent replied that it contained Nimboo Pani and that he was pouring the contents in the tub. Bakshi also found whisky in the gingerale bottle. He says that Agrawal was tasting something when he came. The bottle was sealed by him in the presence of Sethi, Agrawal and Pyare Lal. Agrawal also gave evidence and so did Lal Singh. When the respondent was asked to sign the envelope he refused to do so and when he was asked by Lal Singh why he was refusing to do so, his reply wasHum Jab esme sign karange tob mar jayange". The respondent did not challenge this statement also. As the enquiry and the dismissal do not suffer from any defect and there is evidence from which the impugned conclusions can be drawn, we set aside the award of the Tribunal and subsitute instead the finding that the dismissal of the respondent was justified7. The appeal is accordingly allowed, but in the circumstances without costs.
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Estate Of Late, Rangalal Jajodia Vs. Commissioner Of Income-Tax Madras | deleted from the assessment year 1949-50 and included in the assessment year 1948-49. Pursuant to that direction the Income-tax Officer initiated re-assessment proceedings in respect of the year 1948-49 and served a notice on 5 December, 1957. The question was whether the second proviso applied and saved the notice in respect of the year 1948-49. It was held that the jurisdiction of the Appellate Assistant Commissioner under section 31 of the 1922 Act was strictly confined to the assessment order of the particular year under appeal and the assessment or re-assessment made in consequence of or to give effect to any finding or direction contained in an order under S. 31, section 33A, section 33B, section 66 or section 66A must necessarily relate to the assessment of the year under appeal. The expression finding and direction in the second proviso to section 34 (3) was held to be a finding necessary for giving relief in respect of the assessment in question and that a direction which the appellate or the revisional authority was empowered to give under the sections mentioned in that proviso. The finding in Murlidhars case, (1964) 52 ITR 335 = (AIR 1965 SC 342 ) (supra) that the income be longed to the year 1948-49 was not a finding necessary for the disposal of an appeal in respect of the year of assessment in question. 16. Counsel for Aruna Devi contended that the expression any person occurring in the second proviso to section 34 (3) of the Act could not be referable to a stranger and that Aruna Devi was a stranger. In support of that proposition reliance was placed on the decision of this Court in S. C. Prashar v Vasantsen Dwarkadas, (1963) 49 ITR 1 = (AIR 1963 SC 1356 ). The facts of that case are entirely different and are of no assistance for the reason that in the present appeals Aruna Devi was impleaded as a party to the assessment proceedings as a legal representative of Rangalal Jajodia. The words any person were construed in Murlidhars case (1964) 52 ITR 335 = (AIR 1965 SC 342 ) (supra) to be confined to a person intimately connected with the assessment year under appeal It was said in that case that modification or setting aside of assessment made on a firm, joint Hindu family, association of persons, for a particular year may affect the assessment for the said year on a partner or partners of the firm, member or members of the Hindu undivided family or the individual, as the case may be. In such cases though the latter are not eo nomine parties to the appeal, their assessments depend upon the assessments on the former. The said instances are only illustrative it is not necessary to pursue the matter further.We would, therefore, hold that the expression any person in the setting in which it appears must be confined to a person intimately connected in the aforesaid sense with the assessments of the year under appeal in the present appeals the finding was that the assessment was made on Aruna Devi but no notice was given to her. The necessary direction was therefore given that notice should be given to her. Aruna Devi was heard and the assessment was made. She was not merely intimately connected with the assessment. She was in fact an assessee. Therefore the second proviso to Section 34(3) applied. 17. We are therefore of opinion that the second proviso to Section 34(3) of the Act applies to the present appeals because first the proceedings against Rangalal Jajodia commenced on filing of returns before the income-tax authorities; secondly, the assessment proceedings continued after the death of Rangalal Jajodia against the legal representatives Shankarlal Jajodia and Aruna Devi; thirdly, the assessment proceedings on being set aside and not cancelled pursuant to the appeal filed by Shankarlal Jajodia on the ground that notice was not given to Aruna Devi were continued, and, fourthly, the setting aside of the assessment was only on the ground that notice was not given to Aruna Devi and therefore the finding and direction was vital to the assessment proceedings. The High Court was in error in holding that the assessment proceedings were barred by limitation. 18. The other question is as to the applicability of section 24B of the Act Counsel on behalf of Aruna Devi repeated the contentions advanced in the High Court that section 24B does not cover the entire field of procedure to be followed in assessing the income of the deceased person. The High Court held that section 24B of the Act applied but Aruna Devi should have been given opportunities to object to the assessment by repeating the entire procedure of section 24B of the Act as during the lifetime of the deceased. Counsel for the Revenue did not impeach the conclusion of the High Court that in relation to Aruna Devi the provisions of section 24B of the Act were to be followed de novo. 19. We are of opinion that the High Court correctly held that section 24B of the Act applies to the present case. The third sub-section of section 24B clears with a case of a person dying after having furnished a return Further, in the present case the Income-tax Officer had reason to believe the return to be incorrect or incomplete, and he called upon Rangalal to furnish evidence The Act further confers Power on the Revenue officer to make the assessment and determine the tax payable by the deceased on the basis of the assessment and for that purpose to issue appropriate notice which would have had to be served upon the deceased had he survived and in that behalf to require from the executor, administrator or other legal representative of the deceased person any accounts, documents or other evidence which he might under the provisions of sections 22 and 23 require from the deceased person. These provisions adequately answer the contention of the appellant Aruna Devi 20. | 1[ds]are therefore of opinion that the second proviso to Section 34(3) of the Act applies to the present appeals because first the proceedings against Rangalal Jajodia commenced on filing of returns before the income-tax authorities; secondly, the assessment proceedings continued after the death of Rangalal Jajodia against the legal representatives Shankarlal Jajodia and Aruna Devi; thirdly, the assessment proceedings on being set aside and not cancelled pursuant to the appeal filed by Shankarlal Jajodia on the ground that notice was not given to Aruna Devi were continued, and, fourthly, the setting aside of the assessment was only on the ground that notice was not given to Aruna Devi and therefore the finding and direction was vital to the assessment proceedings. The High Court was in error in holding that the assessment proceedings were barred by limitationThe other question is as to the applicability of section 24B of the Act Counsel on behalf of Aruna Devi repeated the contentions advanced in the High Court that section 24B does not cover the entire field of procedure to be followed in assessing the income of the deceased person. The High Court held that section 24B of the Act applied but Aruna Devi should have been given opportunities to object to the assessment by repeating the entire procedure of section 24B of the Act as during the lifetime of the deceased. Counsel for the Revenue did not impeach the conclusion of the High Court that in relation to Aruna Devi the provisions of section 24B of the Act were to be followed de novo.We are of opinion that the High Court correctly held that section 24B of the Act applies to the present case. The third sub-section of section 24B clears with a case of a person dying after having furnished a return Further, in the present case the Income-tax Officer had reason to believe the return to be incorrect or incomplete, and he called upon Rangalal to furnish evidence The Act further confers Power on the Revenue officer to make the assessment and determine the tax payable by the deceased on the basis of the assessment and for that purpose to issue appropriate notice which would have had to be served upon the deceased had he survived and in that behalf to require from the executor, administrator or other legal representative of the deceased person any accounts, documents or other evidence which he might under the provisions of sections 22 and 23 require from the deceased person. These provisions adequately answer the contention of the appellant Aruna Devi | 1 | 3,560 | 448 | ### Instruction:
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deleted from the assessment year 1949-50 and included in the assessment year 1948-49. Pursuant to that direction the Income-tax Officer initiated re-assessment proceedings in respect of the year 1948-49 and served a notice on 5 December, 1957. The question was whether the second proviso applied and saved the notice in respect of the year 1948-49. It was held that the jurisdiction of the Appellate Assistant Commissioner under section 31 of the 1922 Act was strictly confined to the assessment order of the particular year under appeal and the assessment or re-assessment made in consequence of or to give effect to any finding or direction contained in an order under S. 31, section 33A, section 33B, section 66 or section 66A must necessarily relate to the assessment of the year under appeal. The expression finding and direction in the second proviso to section 34 (3) was held to be a finding necessary for giving relief in respect of the assessment in question and that a direction which the appellate or the revisional authority was empowered to give under the sections mentioned in that proviso. The finding in Murlidhars case, (1964) 52 ITR 335 = (AIR 1965 SC 342 ) (supra) that the income be longed to the year 1948-49 was not a finding necessary for the disposal of an appeal in respect of the year of assessment in question. 16. Counsel for Aruna Devi contended that the expression any person occurring in the second proviso to section 34 (3) of the Act could not be referable to a stranger and that Aruna Devi was a stranger. In support of that proposition reliance was placed on the decision of this Court in S. C. Prashar v Vasantsen Dwarkadas, (1963) 49 ITR 1 = (AIR 1963 SC 1356 ). The facts of that case are entirely different and are of no assistance for the reason that in the present appeals Aruna Devi was impleaded as a party to the assessment proceedings as a legal representative of Rangalal Jajodia. The words any person were construed in Murlidhars case (1964) 52 ITR 335 = (AIR 1965 SC 342 ) (supra) to be confined to a person intimately connected with the assessment year under appeal It was said in that case that modification or setting aside of assessment made on a firm, joint Hindu family, association of persons, for a particular year may affect the assessment for the said year on a partner or partners of the firm, member or members of the Hindu undivided family or the individual, as the case may be. In such cases though the latter are not eo nomine parties to the appeal, their assessments depend upon the assessments on the former. The said instances are only illustrative it is not necessary to pursue the matter further.We would, therefore, hold that the expression any person in the setting in which it appears must be confined to a person intimately connected in the aforesaid sense with the assessments of the year under appeal in the present appeals the finding was that the assessment was made on Aruna Devi but no notice was given to her. The necessary direction was therefore given that notice should be given to her. Aruna Devi was heard and the assessment was made. She was not merely intimately connected with the assessment. She was in fact an assessee. Therefore the second proviso to Section 34(3) applied. 17. We are therefore of opinion that the second proviso to Section 34(3) of the Act applies to the present appeals because first the proceedings against Rangalal Jajodia commenced on filing of returns before the income-tax authorities; secondly, the assessment proceedings continued after the death of Rangalal Jajodia against the legal representatives Shankarlal Jajodia and Aruna Devi; thirdly, the assessment proceedings on being set aside and not cancelled pursuant to the appeal filed by Shankarlal Jajodia on the ground that notice was not given to Aruna Devi were continued, and, fourthly, the setting aside of the assessment was only on the ground that notice was not given to Aruna Devi and therefore the finding and direction was vital to the assessment proceedings. The High Court was in error in holding that the assessment proceedings were barred by limitation. 18. The other question is as to the applicability of section 24B of the Act Counsel on behalf of Aruna Devi repeated the contentions advanced in the High Court that section 24B does not cover the entire field of procedure to be followed in assessing the income of the deceased person. The High Court held that section 24B of the Act applied but Aruna Devi should have been given opportunities to object to the assessment by repeating the entire procedure of section 24B of the Act as during the lifetime of the deceased. Counsel for the Revenue did not impeach the conclusion of the High Court that in relation to Aruna Devi the provisions of section 24B of the Act were to be followed de novo. 19. We are of opinion that the High Court correctly held that section 24B of the Act applies to the present case. The third sub-section of section 24B clears with a case of a person dying after having furnished a return Further, in the present case the Income-tax Officer had reason to believe the return to be incorrect or incomplete, and he called upon Rangalal to furnish evidence The Act further confers Power on the Revenue officer to make the assessment and determine the tax payable by the deceased on the basis of the assessment and for that purpose to issue appropriate notice which would have had to be served upon the deceased had he survived and in that behalf to require from the executor, administrator or other legal representative of the deceased person any accounts, documents or other evidence which he might under the provisions of sections 22 and 23 require from the deceased person. These provisions adequately answer the contention of the appellant Aruna Devi 20.
### Response:
1
### Explanation:
are therefore of opinion that the second proviso to Section 34(3) of the Act applies to the present appeals because first the proceedings against Rangalal Jajodia commenced on filing of returns before the income-tax authorities; secondly, the assessment proceedings continued after the death of Rangalal Jajodia against the legal representatives Shankarlal Jajodia and Aruna Devi; thirdly, the assessment proceedings on being set aside and not cancelled pursuant to the appeal filed by Shankarlal Jajodia on the ground that notice was not given to Aruna Devi were continued, and, fourthly, the setting aside of the assessment was only on the ground that notice was not given to Aruna Devi and therefore the finding and direction was vital to the assessment proceedings. The High Court was in error in holding that the assessment proceedings were barred by limitationThe other question is as to the applicability of section 24B of the Act Counsel on behalf of Aruna Devi repeated the contentions advanced in the High Court that section 24B does not cover the entire field of procedure to be followed in assessing the income of the deceased person. The High Court held that section 24B of the Act applied but Aruna Devi should have been given opportunities to object to the assessment by repeating the entire procedure of section 24B of the Act as during the lifetime of the deceased. Counsel for the Revenue did not impeach the conclusion of the High Court that in relation to Aruna Devi the provisions of section 24B of the Act were to be followed de novo.We are of opinion that the High Court correctly held that section 24B of the Act applies to the present case. The third sub-section of section 24B clears with a case of a person dying after having furnished a return Further, in the present case the Income-tax Officer had reason to believe the return to be incorrect or incomplete, and he called upon Rangalal to furnish evidence The Act further confers Power on the Revenue officer to make the assessment and determine the tax payable by the deceased on the basis of the assessment and for that purpose to issue appropriate notice which would have had to be served upon the deceased had he survived and in that behalf to require from the executor, administrator or other legal representative of the deceased person any accounts, documents or other evidence which he might under the provisions of sections 22 and 23 require from the deceased person. These provisions adequately answer the contention of the appellant Aruna Devi
|
State Of U.P Vs. Arvind Kumar Srivastava | claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches. 22. Holding that the Respondents had also acquiesced in accepting the retirements, the appeal of U.P. Jal Nigam was allowed with the following reasons: 13. In view of the statement of law as summarised above, the Respondents are guilty since the Respondents have acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or whiled it away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. In the present case, if the Respondents would have challenged their retirement being violative of the provisions of the Act, perhaps the Nigam could have taken appropriate steps to raise funds so as to meet the liability but by not asserting their rights the Respondents have allowed time to pass and after a lapse of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious financial repercussions on the financial management of the Nigam. Why should the court come to the rescue of such persons when they themselves are guilty of waiver and acquiescence?. 23. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the Appellants as well as the Respondents, can be summed up as under: (1) Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently. (2) However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim. (3) However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma and Ors. v. Union of India (supra). On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence. 24. Viewed from this angle, in the present case, we find that the selection process took place in the year 1986. Appointment orders were issued in the year 1987, but were also cancelled vide orders dated June 22, 1987. The Respondents before us did not challenge these cancellation orders till the year 1996, i.e. for a period of 9 years. It means that they had accepted the cancellation of their appointments. They woke up in the year 1996 only after finding that some other persons whose appointment orders were also cancelled got the relief. By that time, nine years had passed. The earlier judgment had granted the relief to the parties before the Court. It would also be pertinent to highlight that these Respondents have not joined the service nor working like the employees who succeeded in earlier case before the Tribunal. As of today, 27 years have passed after the issuance of cancellation orders. Therefore, not only there was unexplained delay and laches in filing the claim petition after period of 9 years, it would be totally unjust to direct the appointment to give them the appointment as of today, i.e. after a period of 27 years when most of these Respondents would be almost 50 years of age or above. 25. | 1[ds]The legal principles which emerge from the reading of the aforesaid judgments, cited both by thes as well as the, can be summed up as under:(1) Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently(2) However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim(3) However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. SharmaOrs. v. Union of India (supra). On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescenceViewed from this angle, in the present case, we find that the selection process took place in the year 1986. Appointment orders were issued in the year 1987, but were also cancelled vide orders dated June 22, 1987. Thes before us did notn orders till the year 1996, i.e. for a period of 9 years. It means that they had accepted the cancellation of their appointments. They woke up in the year 1996 only after finding that some other persons whose appointment orders were also cancelled got the relief. By that time, nine years had passed. The earlier judgment had granted the relief to the parties before the Court. It would also be pertinent to highlight that theses have not joined the service nor working like the employees who succeeded in earlier case before the Tribunal. As of today, 27 years have passed after the issuance of cancellation orders. Therefore, not only there was unexplained delay and laches in filing the claim petition after period of 9 years, it would be totally unjust to direct the appointment to give them the appointment as of today, i.e. after a period of 27 years when most of theses would be almost 50 years of age or above | 1 | 7,773 | 684 | ### 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:
claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches. 22. Holding that the Respondents had also acquiesced in accepting the retirements, the appeal of U.P. Jal Nigam was allowed with the following reasons: 13. In view of the statement of law as summarised above, the Respondents are guilty since the Respondents have acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or whiled it away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted. In the present case, if the Respondents would have challenged their retirement being violative of the provisions of the Act, perhaps the Nigam could have taken appropriate steps to raise funds so as to meet the liability but by not asserting their rights the Respondents have allowed time to pass and after a lapse of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious financial repercussions on the financial management of the Nigam. Why should the court come to the rescue of such persons when they themselves are guilty of waiver and acquiescence?. 23. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the Appellants as well as the Respondents, can be summed up as under: (1) Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently. (2) However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim. (3) However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma and Ors. v. Union of India (supra). On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence. 24. Viewed from this angle, in the present case, we find that the selection process took place in the year 1986. Appointment orders were issued in the year 1987, but were also cancelled vide orders dated June 22, 1987. The Respondents before us did not challenge these cancellation orders till the year 1996, i.e. for a period of 9 years. It means that they had accepted the cancellation of their appointments. They woke up in the year 1996 only after finding that some other persons whose appointment orders were also cancelled got the relief. By that time, nine years had passed. The earlier judgment had granted the relief to the parties before the Court. It would also be pertinent to highlight that these Respondents have not joined the service nor working like the employees who succeeded in earlier case before the Tribunal. As of today, 27 years have passed after the issuance of cancellation orders. Therefore, not only there was unexplained delay and laches in filing the claim petition after period of 9 years, it would be totally unjust to direct the appointment to give them the appointment as of today, i.e. after a period of 27 years when most of these Respondents would be almost 50 years of age or above. 25.
### Response:
1
### Explanation:
The legal principles which emerge from the reading of the aforesaid judgments, cited both by thes as well as the, can be summed up as under:(1) Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently(2) However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim(3) However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. SharmaOrs. v. Union of India (supra). On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescenceViewed from this angle, in the present case, we find that the selection process took place in the year 1986. Appointment orders were issued in the year 1987, but were also cancelled vide orders dated June 22, 1987. Thes before us did notn orders till the year 1996, i.e. for a period of 9 years. It means that they had accepted the cancellation of their appointments. They woke up in the year 1996 only after finding that some other persons whose appointment orders were also cancelled got the relief. By that time, nine years had passed. The earlier judgment had granted the relief to the parties before the Court. It would also be pertinent to highlight that theses have not joined the service nor working like the employees who succeeded in earlier case before the Tribunal. As of today, 27 years have passed after the issuance of cancellation orders. Therefore, not only there was unexplained delay and laches in filing the claim petition after period of 9 years, it would be totally unjust to direct the appointment to give them the appointment as of today, i.e. after a period of 27 years when most of theses would be almost 50 years of age or above
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Tax and Sales Tax, South Zone, Quilon Vs. Deputy Commissioner of Agricultural Income-Aluminium Industries Limited Kanan Devan Hill Produce Company Limited Intervener | in the case of a sale of goods during their movement from one State to another, being a sale subsequent to the first sale in respect of the same goods, the tax shall, where such sale does not fall within sub-section (2) of section 6, be levied and collected in the State from which the registered dealer effecting the subsequent sale obtained or, as the case may be, could have obtained, the form prescribed for the purposes of clause (a) of sub-section (4) of section 8 in connection with the purchase of such goods.(2) Subject to the other provisions of this Act and the rules made thereunder, the authorities for the time being empowered to assess, re-assess, collect and enforce payment of any tax under the general sales tax law of the appropriate State shall, on behalf of the Government of India, assess, re-assess, collect and enforce payment of tax, including any penalty, payable by a dealer under this Act as if the tax or penalty payable by such a dealer under this Act is a tax or penalty under the general sales tax law of the State; and for this purpose they may exercise all or any of the powers they have under the general sales tax law of the State; and the provisions of such law, including provisions relating to returns, provisional assessment, advance payment of tax, registration of the transferee of any business, imposition of the tax liability of a person carrying on business on the transferee of, or successor to, such business, transfer of liability of any firm or Hindi undivided family to pay tax in the event of the dissolution of such firm or partition of such family, recovery of tax from third parties, appeals, reviews, revisions, references, refunds, rebates, penalties, compounding of offences and treatment of documents furnished by a dealer as confidential, shall apply accordingly :rovided that if in any State or part thereof there is no general sales tax law in force, the Central Government may, be rules made in this behalf, make necessary provision for all or any of the matters specified in this sub-section.(3) The proceeds in any financial year of any tax, including any penalty, levied and collected under this Act in any State (other than a Union territory) on behalf of the Government of India shall be assigned to that State and shall be retained by it; and the proceeds attributable to Union territories shall form part of the Consolidated Fund of India."Clause 9 provides :"Validation of assessments, etc. - (1) Notwithstanding anything contained in any judgment, decree or order of any court or other authority to the contrary, any assessment, re-assessment, levy or collection of any tax made or purporting to have been made, any action or thing taken or done in relation to such assessment, re-assessment, levy or collection under the provisions of the principal Act before the commencement of this Ordinance, shall be deemed to be as valid and effective as if such assessment, re-assessment, levy or collection or action or thing had been made, taken or done under the principal Act as amended by this Ordinance and accordingly -(a) all acts, proceedings or things done or taken by the Government by any officer of the Government or by any other authority in connection with the assessment, re-assessment, levy or collection of such tax shall, for all purposes, be deemed to be, and to have always been, done or taken in accordance with law;(b) no suit or other proceedings shall be maintained or continued in any court or before any authority for the refund of any such tax, and(c) no court shall enforce any decree or order directing the refund of any such tax.(2) For the removal of doubts, it is hereby declared that nothing in sub-section (1) shall be construed as preventing any person -(a) from questioning in accordance with the provisions of the principal Act, as amended by this Ordinance, any assessment, re-assessment, levy or collection of tax referred to in sub-section (1), or(b) from claiming refund of any tax paid by him in excess of the amount due from him by way of tax under the principal Act as amended by this Ordinance."These two clauses have been made expressly retrospective and the result, therefore, is that the law as stated in the majority decision of this court in Lakshminarasimhiahs case ([1965] 16 S.T.C. 231) has been superseded.4. On behalf of the interveners, Mr. Narasaraju raised a constitutional objection that the Ordinance was in the first place violative of article 19 as it was made retrospective and therefore constituted an unreasonable restriction and secondly that it is violative of article 14 of the Constitution. It is not open to the parties in this case to challenge the constitutional validity of the Ordinance in view of the decision of this court in K. S. Venkataraman & Co. v. State of Madras ([1966] 2 S.C.R. 229; 17 S.T.C. 418). It was held by the majority of the Judges in that case that the Income-tax Officer, the Appellate Assistant Commissioner and the Appellate Tribunal are all creatures of the Income-tax Act and whether the provisions of the Act are good or bad is not their concern. As the Appellate Tribunal is a creature of the statute it can only decide the dispute between the assessee and the Commissioner in terms of the provisions of the Act and the question of ultra vires is foreign to the scope of its jurisdiction. As no such question can be raised or can arise on the Tribunals order, the High Court cannot possibly give any decision on the question of ultra vires. Similarly an appeal to this court under section 66A(2) of the Act does not enlarge the scope of the jurisdiction for this court can only do what the High Court can. Mr. Narasaraju conceded that in view of this decision it is not open to him to challenge the constitutional validity of the Ordinance in the present appeals. | 1[ds]In dismissing the tax revision cases the High Court followed the decision of this court in State of Mysore v. Yaddalam Lakshminarasimhiah Setty & Sons ([1965] 16 S.T.C.legal position has, however, been changed as a result of the issue of the Central Sales Tax (Amendment) Ordinance, 1969 (No. 4 of 1969) which was promulgated on June, 9,two clauses have been made expressly retrospective and the result, therefore, is that the law as stated in the majority decision of this court in Lakshminarasimhiahs case ([1965] 16 S.T.C. 231) has beenbehalf of the interveners, Mr. Narasaraju raised a constitutional objection that the Ordinance was in the first place violative of article 19 as it was made retrospective and therefore constituted an unreasonable restriction and secondly that it is violative of article 14 of the Constitution.It is not open to the parties in this case to challenge the constitutional validity of the Ordinance in view of the decision of this court in K. S. Venkataraman & Co. v. State of Madras ([1966] 2 S.C.R. 229; 17 S.T.C. 418). It was held by the majority of the Judges in that case that the Income-tax Officer, the Appellate Assistant Commissioner and the Appellate Tribunal are all creatures of the Income-tax Act and whether the provisions of the Act are good or bad is not their concern. As the Appellate Tribunal is a creature of the statute it can only decide the dispute between the assessee and the Commissioner in terms of the provisions of the Act and the question of ultra vires is foreign to the scope of its jurisdiction. As no such question can be raised or can arise on the Tribunals order, the High Court cannot possibly give any decision on the question of ultra vires. Similarly an appeal to this court under section 66A(2) of the Act does not enlarge the scope of the jurisdiction for this court can only do what the High Court can. Mr. Narasaraju conceded that in view of this decision it is not open to him to challenge the constitutional validity of the Ordinance in the presentis not open to the parties in this case to challenge the constitutional validity of the Ordinance in view of the decision of this court in K. S. Venkataraman & Co. v. State of Madras ([1966] 2 S.C.R. 229; 17 S.T.C. 418). It was held by the majority of the Judges in that case that theOfficer, the Appellate Assistant Commissioner and the Appellate Tribunal are all creatures of theAct and whether the provisions of the Act are good or bad is not their concern. As the Appellate Tribunal is a creature of the statute it can only decide the dispute between the assessee and the Commissioner in terms of the provisions of the Act and the question of ultra vires is foreign to the scope of its jurisdiction. As no such question can be raised or can arise on the Tribunals order, the High Court cannot possibly give any decision on the question of ultra vires. Similarly an appeal to this court under section 66A(2) of the Act does not enlarge the scope of the jurisdiction for this court can only do what the High Court can. Mr. Narasaraju conceded that in view of this decision it is not open to him to challenge the constitutional validity of the Ordinance in the presentappeals.For the reasons already expressed we hold that these appeals should be allowed and the judgment dated July 23, 1968, of the Kerala High Court in Tax Revision Cases Nos. 10 and 11 of 1967 should be set aside. We also set aside the orders passed by the Appellate Tribunal and the Deputy Commissioner of Sales Tax and the Sales Tax Officer and direct that the matter should go back to the Sales Tax Officer forin accordance with law. | 1 | 3,553 | 707 | ### 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:
in the case of a sale of goods during their movement from one State to another, being a sale subsequent to the first sale in respect of the same goods, the tax shall, where such sale does not fall within sub-section (2) of section 6, be levied and collected in the State from which the registered dealer effecting the subsequent sale obtained or, as the case may be, could have obtained, the form prescribed for the purposes of clause (a) of sub-section (4) of section 8 in connection with the purchase of such goods.(2) Subject to the other provisions of this Act and the rules made thereunder, the authorities for the time being empowered to assess, re-assess, collect and enforce payment of any tax under the general sales tax law of the appropriate State shall, on behalf of the Government of India, assess, re-assess, collect and enforce payment of tax, including any penalty, payable by a dealer under this Act as if the tax or penalty payable by such a dealer under this Act is a tax or penalty under the general sales tax law of the State; and for this purpose they may exercise all or any of the powers they have under the general sales tax law of the State; and the provisions of such law, including provisions relating to returns, provisional assessment, advance payment of tax, registration of the transferee of any business, imposition of the tax liability of a person carrying on business on the transferee of, or successor to, such business, transfer of liability of any firm or Hindi undivided family to pay tax in the event of the dissolution of such firm or partition of such family, recovery of tax from third parties, appeals, reviews, revisions, references, refunds, rebates, penalties, compounding of offences and treatment of documents furnished by a dealer as confidential, shall apply accordingly :rovided that if in any State or part thereof there is no general sales tax law in force, the Central Government may, be rules made in this behalf, make necessary provision for all or any of the matters specified in this sub-section.(3) The proceeds in any financial year of any tax, including any penalty, levied and collected under this Act in any State (other than a Union territory) on behalf of the Government of India shall be assigned to that State and shall be retained by it; and the proceeds attributable to Union territories shall form part of the Consolidated Fund of India."Clause 9 provides :"Validation of assessments, etc. - (1) Notwithstanding anything contained in any judgment, decree or order of any court or other authority to the contrary, any assessment, re-assessment, levy or collection of any tax made or purporting to have been made, any action or thing taken or done in relation to such assessment, re-assessment, levy or collection under the provisions of the principal Act before the commencement of this Ordinance, shall be deemed to be as valid and effective as if such assessment, re-assessment, levy or collection or action or thing had been made, taken or done under the principal Act as amended by this Ordinance and accordingly -(a) all acts, proceedings or things done or taken by the Government by any officer of the Government or by any other authority in connection with the assessment, re-assessment, levy or collection of such tax shall, for all purposes, be deemed to be, and to have always been, done or taken in accordance with law;(b) no suit or other proceedings shall be maintained or continued in any court or before any authority for the refund of any such tax, and(c) no court shall enforce any decree or order directing the refund of any such tax.(2) For the removal of doubts, it is hereby declared that nothing in sub-section (1) shall be construed as preventing any person -(a) from questioning in accordance with the provisions of the principal Act, as amended by this Ordinance, any assessment, re-assessment, levy or collection of tax referred to in sub-section (1), or(b) from claiming refund of any tax paid by him in excess of the amount due from him by way of tax under the principal Act as amended by this Ordinance."These two clauses have been made expressly retrospective and the result, therefore, is that the law as stated in the majority decision of this court in Lakshminarasimhiahs case ([1965] 16 S.T.C. 231) has been superseded.4. On behalf of the interveners, Mr. Narasaraju raised a constitutional objection that the Ordinance was in the first place violative of article 19 as it was made retrospective and therefore constituted an unreasonable restriction and secondly that it is violative of article 14 of the Constitution. It is not open to the parties in this case to challenge the constitutional validity of the Ordinance in view of the decision of this court in K. S. Venkataraman & Co. v. State of Madras ([1966] 2 S.C.R. 229; 17 S.T.C. 418). It was held by the majority of the Judges in that case that the Income-tax Officer, the Appellate Assistant Commissioner and the Appellate Tribunal are all creatures of the Income-tax Act and whether the provisions of the Act are good or bad is not their concern. As the Appellate Tribunal is a creature of the statute it can only decide the dispute between the assessee and the Commissioner in terms of the provisions of the Act and the question of ultra vires is foreign to the scope of its jurisdiction. As no such question can be raised or can arise on the Tribunals order, the High Court cannot possibly give any decision on the question of ultra vires. Similarly an appeal to this court under section 66A(2) of the Act does not enlarge the scope of the jurisdiction for this court can only do what the High Court can. Mr. Narasaraju conceded that in view of this decision it is not open to him to challenge the constitutional validity of the Ordinance in the present appeals.
### Response:
1
### Explanation:
In dismissing the tax revision cases the High Court followed the decision of this court in State of Mysore v. Yaddalam Lakshminarasimhiah Setty & Sons ([1965] 16 S.T.C.legal position has, however, been changed as a result of the issue of the Central Sales Tax (Amendment) Ordinance, 1969 (No. 4 of 1969) which was promulgated on June, 9,two clauses have been made expressly retrospective and the result, therefore, is that the law as stated in the majority decision of this court in Lakshminarasimhiahs case ([1965] 16 S.T.C. 231) has beenbehalf of the interveners, Mr. Narasaraju raised a constitutional objection that the Ordinance was in the first place violative of article 19 as it was made retrospective and therefore constituted an unreasonable restriction and secondly that it is violative of article 14 of the Constitution.It is not open to the parties in this case to challenge the constitutional validity of the Ordinance in view of the decision of this court in K. S. Venkataraman & Co. v. State of Madras ([1966] 2 S.C.R. 229; 17 S.T.C. 418). It was held by the majority of the Judges in that case that the Income-tax Officer, the Appellate Assistant Commissioner and the Appellate Tribunal are all creatures of the Income-tax Act and whether the provisions of the Act are good or bad is not their concern. As the Appellate Tribunal is a creature of the statute it can only decide the dispute between the assessee and the Commissioner in terms of the provisions of the Act and the question of ultra vires is foreign to the scope of its jurisdiction. As no such question can be raised or can arise on the Tribunals order, the High Court cannot possibly give any decision on the question of ultra vires. Similarly an appeal to this court under section 66A(2) of the Act does not enlarge the scope of the jurisdiction for this court can only do what the High Court can. Mr. Narasaraju conceded that in view of this decision it is not open to him to challenge the constitutional validity of the Ordinance in the presentis not open to the parties in this case to challenge the constitutional validity of the Ordinance in view of the decision of this court in K. S. Venkataraman & Co. v. State of Madras ([1966] 2 S.C.R. 229; 17 S.T.C. 418). It was held by the majority of the Judges in that case that theOfficer, the Appellate Assistant Commissioner and the Appellate Tribunal are all creatures of theAct and whether the provisions of the Act are good or bad is not their concern. As the Appellate Tribunal is a creature of the statute it can only decide the dispute between the assessee and the Commissioner in terms of the provisions of the Act and the question of ultra vires is foreign to the scope of its jurisdiction. As no such question can be raised or can arise on the Tribunals order, the High Court cannot possibly give any decision on the question of ultra vires. Similarly an appeal to this court under section 66A(2) of the Act does not enlarge the scope of the jurisdiction for this court can only do what the High Court can. Mr. Narasaraju conceded that in view of this decision it is not open to him to challenge the constitutional validity of the Ordinance in the presentappeals.For the reasons already expressed we hold that these appeals should be allowed and the judgment dated July 23, 1968, of the Kerala High Court in Tax Revision Cases Nos. 10 and 11 of 1967 should be set aside. We also set aside the orders passed by the Appellate Tribunal and the Deputy Commissioner of Sales Tax and the Sales Tax Officer and direct that the matter should go back to the Sales Tax Officer forin accordance with law.
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Rashida Haroon Kupurade Vs. Div. Manager,Oriental Ins. Co.Ltd. | 1. Delay condoned. 2. Leave granted. 3. Despite notice having been served on the respondent Nos. 2 to 5, none of them have chosen to appear to oppose the appeal, when it is taken up for consideration. Learned counsel has, however, entered appearance on behalf of the respondent No.1/insurance company.4. The appeal is directed against an order passed by the Karnataka High Court in Misc.First Appeal No.3340 of 2004, under Section 30(1) of the Workmens Compensation Act, 1923, (hereinafter referred to as the Act) for setting aside the order dated 31st December, 2003, passed by the Commissioner for Workmens Compensation, Sub-Division-I, Belgaum, in Case No.WCA/FSR/1/03. By the said judgment, the appeal of the insurance company challenging the compensation awarded by the Commissioner for Workmens Compensation was partly allowed, upon the finding that since the deceased workman had died of natural causes, namely, a heart attack, the insurance company could not be fastened with the liability of making payment of the said award since there was no nexus between the death of the workman and the accident, which had occurred about six months prior to his death. However, while disposing of the appeal, the High Court observed that at best, the relationship of employer and employee as between the deceased and the insured not being in dispute and the death having occurred during and in the course of employment, liability could be fastened on the employer and not the insurance company. Leave was, therefore, given to the claimants to recover the compensation amount from the owner of the vehicle. This appeal has been filed by the owner of the vehicle against the said observations and directions given by the High Court. 5. It has been submitted on behalf of the appellant/owner of the vehicle that the provisions of Section 3 of the Act had been wrongly interpreted by the High Court in observing that the liability for the death of the workman, even if it had no connection with the accident in question, was with the owner of the vehicle. It has been submitted by Mr. Hegde that Section 3, which sets out the employers liability for compensation indicates in Sub-Section (1) that if personal injuries are caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of Chapter II, which deals with workmens compensation. Certain exceptions have been carved out in the proviso to the effect that there had to be some link between the accident and the death of the employee in order to attract the provisions of Section 3 as far as the owner of the vehicle is concerned. 6. On behalf of the respondent/insurance company, it has been sought to be reiterated that since there was no nexus between the accident and the death of the employee, the High Court had correctly held that the liability of making payment under the Award was not with the insurance company. 7. Having considered the submissions made on behalf of the respective parties, we are inclined to agree with the submissions made on behalf of the appellant that the High Court has committed an error in holding that notwithstanding the fact that there was no connection with the accident and the death of the workman, the owner of the vehicle in question was still liable to pay compensation under the provisions of the Act. 8. In order to better appreciate the submissions made on behalf of the parties, Section 3(1) of the above Act is extracted hereinbelow:- "3. Employers liability for compensation.-(1)....If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter:..............." 9. It will be clear from the wording of the above Section that compensation would be payable only if the injury is caused to a workman by accident arising out of and in the course of his employment. There has to be an accident in order to attract the provisions of Section 3 and such accident must have occurred in the course of the workmans employment. As indicated hereinabove, in the instant case, there is no nexus between the accident and the death of the workman since the accident had occurred six months prior to his death. 10. In such circumstances, we are unable to sustain the order of the High Court and we have no option but to set aside the same as far as the observations relating to the appellant herein are concerned. | 1[ds]7. Having considered the submissions made on behalf of the respective parties, we are inclined to agree with the submissions made on behalf of the appellant that the High Court has committed an error in holding that notwithstanding the fact that there was no connection with the accident and the death of the workman, the owner of the vehicle in question was still liable to pay compensation under the provisions of the Act. | 1 | 859 | 81 | ### 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:
1. Delay condoned. 2. Leave granted. 3. Despite notice having been served on the respondent Nos. 2 to 5, none of them have chosen to appear to oppose the appeal, when it is taken up for consideration. Learned counsel has, however, entered appearance on behalf of the respondent No.1/insurance company.4. The appeal is directed against an order passed by the Karnataka High Court in Misc.First Appeal No.3340 of 2004, under Section 30(1) of the Workmens Compensation Act, 1923, (hereinafter referred to as the Act) for setting aside the order dated 31st December, 2003, passed by the Commissioner for Workmens Compensation, Sub-Division-I, Belgaum, in Case No.WCA/FSR/1/03. By the said judgment, the appeal of the insurance company challenging the compensation awarded by the Commissioner for Workmens Compensation was partly allowed, upon the finding that since the deceased workman had died of natural causes, namely, a heart attack, the insurance company could not be fastened with the liability of making payment of the said award since there was no nexus between the death of the workman and the accident, which had occurred about six months prior to his death. However, while disposing of the appeal, the High Court observed that at best, the relationship of employer and employee as between the deceased and the insured not being in dispute and the death having occurred during and in the course of employment, liability could be fastened on the employer and not the insurance company. Leave was, therefore, given to the claimants to recover the compensation amount from the owner of the vehicle. This appeal has been filed by the owner of the vehicle against the said observations and directions given by the High Court. 5. It has been submitted on behalf of the appellant/owner of the vehicle that the provisions of Section 3 of the Act had been wrongly interpreted by the High Court in observing that the liability for the death of the workman, even if it had no connection with the accident in question, was with the owner of the vehicle. It has been submitted by Mr. Hegde that Section 3, which sets out the employers liability for compensation indicates in Sub-Section (1) that if personal injuries are caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of Chapter II, which deals with workmens compensation. Certain exceptions have been carved out in the proviso to the effect that there had to be some link between the accident and the death of the employee in order to attract the provisions of Section 3 as far as the owner of the vehicle is concerned. 6. On behalf of the respondent/insurance company, it has been sought to be reiterated that since there was no nexus between the accident and the death of the employee, the High Court had correctly held that the liability of making payment under the Award was not with the insurance company. 7. Having considered the submissions made on behalf of the respective parties, we are inclined to agree with the submissions made on behalf of the appellant that the High Court has committed an error in holding that notwithstanding the fact that there was no connection with the accident and the death of the workman, the owner of the vehicle in question was still liable to pay compensation under the provisions of the Act. 8. In order to better appreciate the submissions made on behalf of the parties, Section 3(1) of the above Act is extracted hereinbelow:- "3. Employers liability for compensation.-(1)....If personal injury is caused to a workman by accident arising out of and in the course of his employment, his employer shall be liable to pay compensation in accordance with the provisions of this Chapter:..............." 9. It will be clear from the wording of the above Section that compensation would be payable only if the injury is caused to a workman by accident arising out of and in the course of his employment. There has to be an accident in order to attract the provisions of Section 3 and such accident must have occurred in the course of the workmans employment. As indicated hereinabove, in the instant case, there is no nexus between the accident and the death of the workman since the accident had occurred six months prior to his death. 10. In such circumstances, we are unable to sustain the order of the High Court and we have no option but to set aside the same as far as the observations relating to the appellant herein are concerned.
### Response:
1
### Explanation:
7. Having considered the submissions made on behalf of the respective parties, we are inclined to agree with the submissions made on behalf of the appellant that the High Court has committed an error in holding that notwithstanding the fact that there was no connection with the accident and the death of the workman, the owner of the vehicle in question was still liable to pay compensation under the provisions of the Act.
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Sri Athmanathaswami Devasthanam Vs. K. Gopalaswami Aiyangar | letter to Pandarasannidhi about this matter. The demand sent to me by the Revenue Inspector in 1950 is Exhibit B-21. That related to rent due by me for kudikani lands in my possession. I did not pay it but I entered into correspondence with the Revenue Divisional Officer. But nothing more was heard about it."These statements too do not make out that the respondent disclaimed liability to pay rent. Whenever he refused to pay rent it was for reasons other than absence of a liability to pay rent.9. There is ample material on the record to show that the respondent was liable to pay rent for the land given to him for cultivation. Exhibit A-3 is the order of the Pandarasannidhi for granting patta to the respondent of the land belonging to Avadiyarkoil Temple. The very first term mentioned in this order is that the application, i.e., the respondent, must pay cash rent at such rates as may be determined by the Pandarasannidhi.10. We therefore do not see any force in the contention that the respondent is not a ryot as defined in the Act.11. The next contention for the appellant is that the lease of the land in favour of the respondent is invalid in view of the provisions of S. 76 of the Endowments Act as the Board had not sanctioned the lease. Sub-section (1) of S. 76 reads:"76 (1) No exchange, sale or mortgage and no lease for a term exceeding five years of any immovable property belonging to any math or temple shall be valid or operative unless it is necessary or beneficial to the math or temple and is sanctioned by the Board in the case of maths and excepted temple and by the committee in the case of other temples."The order for the grant of patta to the respondent did not fix any period for which it was granted. It is urged for the appellant that the lease must be taken to be for a period exceeding 5 years, as in pursuance of the provisions of S. 6(1) of the Act, the respondent secured permanent right of occupancy in his holding. Such permanent right of occupancy is not conferred on the appellant on account of the term fixed in the lease. Such right is conferred by the Act on any person who is admitted by a landholder to the possession ryoti land. The mere admission of a ryot to the possession of ryoti land by the landholder give that ryot the permanent right of occupancy in view of the statutory provisions of S. 6. If the Pandarasannidhi had only admitted the respondent to the ryoti land for a period less than five years, even then the resuit would have been that the respondent, would have acquired a permanent right of occurpancy in this holding. We are of opinion that the mere fact that S. 6 of the Act confers such a right on a person admitted to a ryoti land does not make the letting of the land to such a person equivalent to the grant of a lease to him for a term exceeding 5 years, and as such requiring the previous sanction of the Board. If it be held otherwise the result would be that either the Pandarasannidhi will have on obtain the sanction of the Board for every proposed letting of land of whatever area or not to exercise his ordinary duties of letting the land as a trustee. The provisions of S. 76 could not have been intended to put such a restriction on the exercise of his ordinary rights by the Paridarasannidhi. It is too much to expect that the combined effect of S. 76 of the Endowments Act and S. 6 of the Estates Land Act is that there be no more letting of land belonging to a temple by the Pandarasannidhi. We hold that the letting of the land to the respondent did not amount to the leasing of the land to him for a term exceeding 5 years and that therefore required no sanction of the Board and that the letting of the load to the respondent is valid and good in law.12. The respondent being a ryot, a suit for the recovery of rent and ejectment is not cognizable by a Civil Court, in view of the provision of S. 189 of the Act. Sub-section (1) of S. 189 reads :189 (1). A District Collector or Collector hearing suits or applications of the nature specified in Parts A and B of the Schedule and the Board of Revenue or the District Collector exercising appellate or revisional jurisdiction therefrom shall hear and determine such suits or applications or exercise such jurisdiction as a Revenue Court.No Civil Court in the exercise of his original jurisdiction shall take cognizance of any dispute or matter in respect of which such suit or application might be brought or made." Suits by a landholder to recover arrears of rent and to eject a ryot are triable by a Collector, vide entries at serial Nos. 3 and 11, Part A of the Schedule to the Act. Such suits cannot be taken cognizance of by a Civil Court in view of second paragraph of S. 189 (1) The High Court is right in holding that the revenue Court alone has the jurisdiction over the suit and therefore in ordering the return of the plaint for presentation to the proper court."13. The last point urged is that when the civil court had no jurisdiction over the suit, the High Court could not have dealt with the cross-objection filed by the appellant with respect to the adjustment of certain amount paid by the respondent. This contention is correct. When the Court had no jurisdiction over the subject matter of the suit it cannot decide any question on merits. It can simply decide on the question of jurisdiction and coming to the conclusion that it had no jurisdiction over the matter had to return the plaint. | 0[ds]It was not alleged by the appellant in its plaint or at any stage of the proceedings in the trial court that part of the land in suit consisted of beds of tanks and therefore did not come with in the definition of ryoti land. We do not consider it fair to allow this fresh contention, relating to a question of fact to be raised at this stage, even thought in some of the records of rights certain land is described asobservation seems to be a general observation and not in connection with the land in suit. The land in suit was sought to be brought under cultivation in connection with the Growmore Food Campaign and this must have been as the land in suit could be brought under cultivation without any undue expenditure of money and labour. The expenditure on reclaiming the land might have been more than the usual expenses in view of the fact that most of the labour had to be imported from outside and as tractors had to be used on account of the large size of the land to be reclaimed within as short a time as possible. It is not event shown that the reclamation of land has not been profitable financially. We are therefore of the opinion that the Courts below have rightly held the land in suit to be cultivablecontention is not factually correct. The respondent made no such definite statement in either the written statement or in his evidence which would indicate that he completely disowned his liability to pay rent. We have been referred to certain statements in the written statement. They only show that there was some dispute about the rate of rent to be paid and not about the liability tostatements too do not make out that the respondent disclaimed liability to pay rent. Whenever he refused to pay rent it was for reasons other than absence of a liability to pay rent.9. There is ample material on the record to show that the respondent was liable to pay rent for the land given to him for cultivation. Exhibit A-3 is the order of the Pandarasannidhi for granting patta to the respondent of the land belonging to Avadiyarkoil Temple. The very first term mentioned in this order is that the application, i.e., the respondent, must pay cash rent at such rates as may be determined by the Pandarasannidhi.10. We therefore do not see any force in the contention that the respondent is not a ryot as defined in thehold that the letting of the land to the respondent did not amount to the leasing of the land to him for a term exceeding 5 years and that therefore required no sanction of the Board and that the letting of the load to the respondent is valid and good inby a landholder to recover arrears of rent and to eject a ryot are triable by a Collector, vide entries at serial Nos. 3 and 11, Part A of the Schedule to the Act. Such suits cannot be taken cognizance of by a Civil Court in view of second paragraph of S. 189 (1) The High Court is right in holding that the revenue Court alone has the jurisdiction over the suit and therefore in ordering the return of the plaint for presentation to the propercontention is correct. When the Court had no jurisdiction over the subject matter of the suit it cannot decide any question on merits. It can simply decide on the question of jurisdiction and coming to the conclusion that it had no jurisdiction over the matter had to return the plaint. | 0 | 3,013 | 639 | ### 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:
letter to Pandarasannidhi about this matter. The demand sent to me by the Revenue Inspector in 1950 is Exhibit B-21. That related to rent due by me for kudikani lands in my possession. I did not pay it but I entered into correspondence with the Revenue Divisional Officer. But nothing more was heard about it."These statements too do not make out that the respondent disclaimed liability to pay rent. Whenever he refused to pay rent it was for reasons other than absence of a liability to pay rent.9. There is ample material on the record to show that the respondent was liable to pay rent for the land given to him for cultivation. Exhibit A-3 is the order of the Pandarasannidhi for granting patta to the respondent of the land belonging to Avadiyarkoil Temple. The very first term mentioned in this order is that the application, i.e., the respondent, must pay cash rent at such rates as may be determined by the Pandarasannidhi.10. We therefore do not see any force in the contention that the respondent is not a ryot as defined in the Act.11. The next contention for the appellant is that the lease of the land in favour of the respondent is invalid in view of the provisions of S. 76 of the Endowments Act as the Board had not sanctioned the lease. Sub-section (1) of S. 76 reads:"76 (1) No exchange, sale or mortgage and no lease for a term exceeding five years of any immovable property belonging to any math or temple shall be valid or operative unless it is necessary or beneficial to the math or temple and is sanctioned by the Board in the case of maths and excepted temple and by the committee in the case of other temples."The order for the grant of patta to the respondent did not fix any period for which it was granted. It is urged for the appellant that the lease must be taken to be for a period exceeding 5 years, as in pursuance of the provisions of S. 6(1) of the Act, the respondent secured permanent right of occupancy in his holding. Such permanent right of occupancy is not conferred on the appellant on account of the term fixed in the lease. Such right is conferred by the Act on any person who is admitted by a landholder to the possession ryoti land. The mere admission of a ryot to the possession of ryoti land by the landholder give that ryot the permanent right of occupancy in view of the statutory provisions of S. 6. If the Pandarasannidhi had only admitted the respondent to the ryoti land for a period less than five years, even then the resuit would have been that the respondent, would have acquired a permanent right of occurpancy in this holding. We are of opinion that the mere fact that S. 6 of the Act confers such a right on a person admitted to a ryoti land does not make the letting of the land to such a person equivalent to the grant of a lease to him for a term exceeding 5 years, and as such requiring the previous sanction of the Board. If it be held otherwise the result would be that either the Pandarasannidhi will have on obtain the sanction of the Board for every proposed letting of land of whatever area or not to exercise his ordinary duties of letting the land as a trustee. The provisions of S. 76 could not have been intended to put such a restriction on the exercise of his ordinary rights by the Paridarasannidhi. It is too much to expect that the combined effect of S. 76 of the Endowments Act and S. 6 of the Estates Land Act is that there be no more letting of land belonging to a temple by the Pandarasannidhi. We hold that the letting of the land to the respondent did not amount to the leasing of the land to him for a term exceeding 5 years and that therefore required no sanction of the Board and that the letting of the load to the respondent is valid and good in law.12. The respondent being a ryot, a suit for the recovery of rent and ejectment is not cognizable by a Civil Court, in view of the provision of S. 189 of the Act. Sub-section (1) of S. 189 reads :189 (1). A District Collector or Collector hearing suits or applications of the nature specified in Parts A and B of the Schedule and the Board of Revenue or the District Collector exercising appellate or revisional jurisdiction therefrom shall hear and determine such suits or applications or exercise such jurisdiction as a Revenue Court.No Civil Court in the exercise of his original jurisdiction shall take cognizance of any dispute or matter in respect of which such suit or application might be brought or made." Suits by a landholder to recover arrears of rent and to eject a ryot are triable by a Collector, vide entries at serial Nos. 3 and 11, Part A of the Schedule to the Act. Such suits cannot be taken cognizance of by a Civil Court in view of second paragraph of S. 189 (1) The High Court is right in holding that the revenue Court alone has the jurisdiction over the suit and therefore in ordering the return of the plaint for presentation to the proper court."13. The last point urged is that when the civil court had no jurisdiction over the suit, the High Court could not have dealt with the cross-objection filed by the appellant with respect to the adjustment of certain amount paid by the respondent. This contention is correct. When the Court had no jurisdiction over the subject matter of the suit it cannot decide any question on merits. It can simply decide on the question of jurisdiction and coming to the conclusion that it had no jurisdiction over the matter had to return the plaint.
### Response:
0
### Explanation:
It was not alleged by the appellant in its plaint or at any stage of the proceedings in the trial court that part of the land in suit consisted of beds of tanks and therefore did not come with in the definition of ryoti land. We do not consider it fair to allow this fresh contention, relating to a question of fact to be raised at this stage, even thought in some of the records of rights certain land is described asobservation seems to be a general observation and not in connection with the land in suit. The land in suit was sought to be brought under cultivation in connection with the Growmore Food Campaign and this must have been as the land in suit could be brought under cultivation without any undue expenditure of money and labour. The expenditure on reclaiming the land might have been more than the usual expenses in view of the fact that most of the labour had to be imported from outside and as tractors had to be used on account of the large size of the land to be reclaimed within as short a time as possible. It is not event shown that the reclamation of land has not been profitable financially. We are therefore of the opinion that the Courts below have rightly held the land in suit to be cultivablecontention is not factually correct. The respondent made no such definite statement in either the written statement or in his evidence which would indicate that he completely disowned his liability to pay rent. We have been referred to certain statements in the written statement. They only show that there was some dispute about the rate of rent to be paid and not about the liability tostatements too do not make out that the respondent disclaimed liability to pay rent. Whenever he refused to pay rent it was for reasons other than absence of a liability to pay rent.9. There is ample material on the record to show that the respondent was liable to pay rent for the land given to him for cultivation. Exhibit A-3 is the order of the Pandarasannidhi for granting patta to the respondent of the land belonging to Avadiyarkoil Temple. The very first term mentioned in this order is that the application, i.e., the respondent, must pay cash rent at such rates as may be determined by the Pandarasannidhi.10. We therefore do not see any force in the contention that the respondent is not a ryot as defined in thehold that the letting of the land to the respondent did not amount to the leasing of the land to him for a term exceeding 5 years and that therefore required no sanction of the Board and that the letting of the load to the respondent is valid and good inby a landholder to recover arrears of rent and to eject a ryot are triable by a Collector, vide entries at serial Nos. 3 and 11, Part A of the Schedule to the Act. Such suits cannot be taken cognizance of by a Civil Court in view of second paragraph of S. 189 (1) The High Court is right in holding that the revenue Court alone has the jurisdiction over the suit and therefore in ordering the return of the plaint for presentation to the propercontention is correct. When the Court had no jurisdiction over the subject matter of the suit it cannot decide any question on merits. It can simply decide on the question of jurisdiction and coming to the conclusion that it had no jurisdiction over the matter had to return the plaint.
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The Collector Of Customs, Baroda Vs. Digvijaysinhji Spinning & Weaving Mills Ltd | empowered to nominate the subordinate officers of Customs to adjudge question within certain pecuniary limits. That apart, S. 3(a) of the Act defines "Chief Customs authority" to mean the Central Board of Revenue. The Central Board of Revenue is a statutory authority and, though it can only function through officers appointed to the said Board, it is inappropriate to call it an officer of Customs. In this situation, when under the provisions of the Act there is no scope for realization of any penalty imposed for the first time by the Chief Customs Authority, it would be more in accord with the scheme of the Act to construe the words "an officer of Customs" as an officer of the Customs who is authorized to adjudicate in the first instance rate of duty or penalty under S. 182 of the Act. This construction, it is said, would lead to an anomaly of the statute conferring a power on the Chief Customs Authority to impose a penalty and at the same time withholding from it a procedure to enforce its collection. As we have pointed out, such an anomaly cannot arise under the provisions of the Act, for there is no section which empowers the Chief Customs Authority to impose a penalty higher than that imposed by the Customs Officer.6. Assuming that the Chief Customs Authority is an Officer of Customs within the meaning of S. 193 of the Act, it had to initiate proceedings under the said section; but in this case the Collector of Customs notified in writing to the Magistrate for recovering the said penalty.7. Learned counsel for the appellant contends that an order made by the Chief Customs Authority imposing a penalty shall be deemed in law to be an order made by the original authority, that is, the Collector of Customs and, therefore, the said order for the purpose of enforcement shall be treated as the order of the Collector of Customs. It is said that this legal position would flow from the proposition that an appeal is a continuation of a suit. The said proposition is unexceptionable: see Rangaswamy v. Alagayammal, AIR 1915 Mad 1133, Kristnamachariar v. Mangammal, ILR 26 Mad 91 at pp. 95-96 (FB), Lachmeshwar Prasad v. Keshwar Lal, 1940 FCR 84 at p. 103: (AIR 1941 FC 5 at p. 13).But neither the said decisions nor the principles laid down therein can have any bearing on the question whether an order made for the first time by an appellate authority could in law be deemed to be one made by the original authority. In the absence of any statutory fiction giving rise to that result, it is not permissible to treat the order made by one authority as that made by another authority. If so, it follows that the order of the Chief Customs Authority imposing a penalty for the first time cannot be treated to be an order of the Collector of Customs within the meaning of the S. 193 of the Act.8. As we have pointed out, the Chief Customs Authority has no power to impose a penalty for the first time under S. 188 of the Act; but it has power under S. 190 of the Act to commute the order of confiscation to a penalty not exceeding the value of the goods confiscated. Though the Chief Customs Authority in its order dated January 15, 1954, did not expressly rely on S. 190 of the Act, it cannot be disputed that it has jurisdiction to pass such an order thereunder subject to the conditions laid down therein. The condition for the exercise of that power is that it should have obtained the consent of the party whose goods were confiscated. The High Court in its order observed that there was nothing before it to show that the consent of the owner of the goods ordered to be confiscated was not obtained before the order of confiscation was commuted to one of penalty by the Chief Customs Authority. If that be taken as a finding the question of the legal effect of an order of commutation would arise for consideration. Would such an order be deemed to be made in substitution of that of an original authority? Could it be said that the commuted sentence shall be deemed in law a sentence imposed by the original tribunal? But these questions need not detain us, as we are not satisfied on the material placed before us that the condition of consent has been fulfilled in this case. The High Court in effect drew a presumption in favour of the regular performance of an official act. But this presumption is only optional. In a case like this when the validity of an order depends upon the fulfilment of a condition, the party relying upon the presumption should at least show that the order on the face of it is regular and is in conformity with the provisions of the statute. But in the present case the order of the Chief Customs Authority ex facie does not show that it was made under S. 190 of the Act. Indeed it is purported to have been made under S. 167 (8) of the Act. If as a matter of fact the said Authority made the order of commutation with the consent of the owner of the goods it would have certainly jurisdiction to make such an order under S. 190 of the Act. Though there was no such recital, it would have been open to the appellant to establish that fact by necessary evidence. In the absence of any such evidence we must hold that it has not been established that the Chief Customs Authority made its order under S. 190 of the Act with the consent of the respondent.9. This will not preclude the State from establishing by relevant evidence that the penalty was imposed under S. 190 of the Act with the consent of the owner of the goods in an appropriate proceeding. | 1[ds]The result of the provisions, therefore is that there would never by a contingency or necessity for an appellate tribunal to enforce payment of penalty imposed by it, for no appeal would be heard by it unless the penalty was deposited asconstruction, it is said, would lead to an anomaly of the statute conferring a power on the Chief Customs Authority to impose a penalty and at the same time withholding from it a procedure to enforce its collection. As we have pointed out, such an anomaly cannot arise under the provisions of the Act, for there is no section which empowers the Chief Customs Authority to impose a penalty higher than that imposed by the Customs Officer.6. Assuming that the Chief Customs Authority is an Officer of Customs within the meaning of S. 193 of the Act, it had to initiate proceedings under the said section; but in this case the Collector of Customs notified in writing to the Magistrate for recovering the saidis said that this legal position would flow from the proposition that an appeal is a continuation of a suit. The said proposition isneither the said decisions nor the principles laid down therein can have any bearing on the question whether an order made for the first time by an appellate authority could in law be deemed to be one made by the original authority. In the absence of any statutory fiction giving rise to that result, it is not permissible to treat the order made by one authority as that made by another authority. If so, it follows that the order of the Chief Customs Authority imposing a penalty for the first time cannot be treated to be an order of the Collector of Customs within the meaning of the S. 193 of thethese questions need not detain us, as we are not satisfied on the material placed before us that the condition of consent has been fulfilled in this case. The High Court in effect drew a presumption in favour of the regular performance of an official act. But this presumption is only optional. In a case like this when the validity of an order depends upon the fulfilment of a condition, the party relying upon the presumption should at least show that the order on the face of it is regular and is in conformity with the provisions of the statute. But in the present case the order of the Chief Customs Authority ex facie does not show that it was made under S. 190 of the Act. Indeed it is purported to have been made under S. 167 (8) of the Act. If as a matter of fact the said Authority made the order of commutation with the consent of the owner of the goods it would have certainly jurisdiction to make such an order under S. 190 of the Act. Though there was no such recital, it would have been open to the appellant to establish that fact by necessary evidence. In the absence of any such evidence we must hold that it has not been established that the Chief Customs Authority made its order under S. 190 of the Act with the consent of the respondent.9. This will not preclude the State from establishing by relevant evidence that the penalty was imposed under S. 190 of the Act with the consent of the owner of the goods in an appropriate proceeding. | 1 | 3,297 | 607 | ### 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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empowered to nominate the subordinate officers of Customs to adjudge question within certain pecuniary limits. That apart, S. 3(a) of the Act defines "Chief Customs authority" to mean the Central Board of Revenue. The Central Board of Revenue is a statutory authority and, though it can only function through officers appointed to the said Board, it is inappropriate to call it an officer of Customs. In this situation, when under the provisions of the Act there is no scope for realization of any penalty imposed for the first time by the Chief Customs Authority, it would be more in accord with the scheme of the Act to construe the words "an officer of Customs" as an officer of the Customs who is authorized to adjudicate in the first instance rate of duty or penalty under S. 182 of the Act. This construction, it is said, would lead to an anomaly of the statute conferring a power on the Chief Customs Authority to impose a penalty and at the same time withholding from it a procedure to enforce its collection. As we have pointed out, such an anomaly cannot arise under the provisions of the Act, for there is no section which empowers the Chief Customs Authority to impose a penalty higher than that imposed by the Customs Officer.6. Assuming that the Chief Customs Authority is an Officer of Customs within the meaning of S. 193 of the Act, it had to initiate proceedings under the said section; but in this case the Collector of Customs notified in writing to the Magistrate for recovering the said penalty.7. Learned counsel for the appellant contends that an order made by the Chief Customs Authority imposing a penalty shall be deemed in law to be an order made by the original authority, that is, the Collector of Customs and, therefore, the said order for the purpose of enforcement shall be treated as the order of the Collector of Customs. It is said that this legal position would flow from the proposition that an appeal is a continuation of a suit. The said proposition is unexceptionable: see Rangaswamy v. Alagayammal, AIR 1915 Mad 1133, Kristnamachariar v. Mangammal, ILR 26 Mad 91 at pp. 95-96 (FB), Lachmeshwar Prasad v. Keshwar Lal, 1940 FCR 84 at p. 103: (AIR 1941 FC 5 at p. 13).But neither the said decisions nor the principles laid down therein can have any bearing on the question whether an order made for the first time by an appellate authority could in law be deemed to be one made by the original authority. In the absence of any statutory fiction giving rise to that result, it is not permissible to treat the order made by one authority as that made by another authority. If so, it follows that the order of the Chief Customs Authority imposing a penalty for the first time cannot be treated to be an order of the Collector of Customs within the meaning of the S. 193 of the Act.8. As we have pointed out, the Chief Customs Authority has no power to impose a penalty for the first time under S. 188 of the Act; but it has power under S. 190 of the Act to commute the order of confiscation to a penalty not exceeding the value of the goods confiscated. Though the Chief Customs Authority in its order dated January 15, 1954, did not expressly rely on S. 190 of the Act, it cannot be disputed that it has jurisdiction to pass such an order thereunder subject to the conditions laid down therein. The condition for the exercise of that power is that it should have obtained the consent of the party whose goods were confiscated. The High Court in its order observed that there was nothing before it to show that the consent of the owner of the goods ordered to be confiscated was not obtained before the order of confiscation was commuted to one of penalty by the Chief Customs Authority. If that be taken as a finding the question of the legal effect of an order of commutation would arise for consideration. Would such an order be deemed to be made in substitution of that of an original authority? Could it be said that the commuted sentence shall be deemed in law a sentence imposed by the original tribunal? But these questions need not detain us, as we are not satisfied on the material placed before us that the condition of consent has been fulfilled in this case. The High Court in effect drew a presumption in favour of the regular performance of an official act. But this presumption is only optional. In a case like this when the validity of an order depends upon the fulfilment of a condition, the party relying upon the presumption should at least show that the order on the face of it is regular and is in conformity with the provisions of the statute. But in the present case the order of the Chief Customs Authority ex facie does not show that it was made under S. 190 of the Act. Indeed it is purported to have been made under S. 167 (8) of the Act. If as a matter of fact the said Authority made the order of commutation with the consent of the owner of the goods it would have certainly jurisdiction to make such an order under S. 190 of the Act. Though there was no such recital, it would have been open to the appellant to establish that fact by necessary evidence. In the absence of any such evidence we must hold that it has not been established that the Chief Customs Authority made its order under S. 190 of the Act with the consent of the respondent.9. This will not preclude the State from establishing by relevant evidence that the penalty was imposed under S. 190 of the Act with the consent of the owner of the goods in an appropriate proceeding.
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The result of the provisions, therefore is that there would never by a contingency or necessity for an appellate tribunal to enforce payment of penalty imposed by it, for no appeal would be heard by it unless the penalty was deposited asconstruction, it is said, would lead to an anomaly of the statute conferring a power on the Chief Customs Authority to impose a penalty and at the same time withholding from it a procedure to enforce its collection. As we have pointed out, such an anomaly cannot arise under the provisions of the Act, for there is no section which empowers the Chief Customs Authority to impose a penalty higher than that imposed by the Customs Officer.6. Assuming that the Chief Customs Authority is an Officer of Customs within the meaning of S. 193 of the Act, it had to initiate proceedings under the said section; but in this case the Collector of Customs notified in writing to the Magistrate for recovering the saidis said that this legal position would flow from the proposition that an appeal is a continuation of a suit. The said proposition isneither the said decisions nor the principles laid down therein can have any bearing on the question whether an order made for the first time by an appellate authority could in law be deemed to be one made by the original authority. In the absence of any statutory fiction giving rise to that result, it is not permissible to treat the order made by one authority as that made by another authority. If so, it follows that the order of the Chief Customs Authority imposing a penalty for the first time cannot be treated to be an order of the Collector of Customs within the meaning of the S. 193 of thethese questions need not detain us, as we are not satisfied on the material placed before us that the condition of consent has been fulfilled in this case. The High Court in effect drew a presumption in favour of the regular performance of an official act. But this presumption is only optional. In a case like this when the validity of an order depends upon the fulfilment of a condition, the party relying upon the presumption should at least show that the order on the face of it is regular and is in conformity with the provisions of the statute. But in the present case the order of the Chief Customs Authority ex facie does not show that it was made under S. 190 of the Act. Indeed it is purported to have been made under S. 167 (8) of the Act. If as a matter of fact the said Authority made the order of commutation with the consent of the owner of the goods it would have certainly jurisdiction to make such an order under S. 190 of the Act. Though there was no such recital, it would have been open to the appellant to establish that fact by necessary evidence. In the absence of any such evidence we must hold that it has not been established that the Chief Customs Authority made its order under S. 190 of the Act with the consent of the respondent.9. This will not preclude the State from establishing by relevant evidence that the penalty was imposed under S. 190 of the Act with the consent of the owner of the goods in an appropriate proceeding.
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Rajpal Singh Vs. Saroj (Deceased) Through LRs and Anr | court and/or even thereafter also. At this stage, it is required to be noted that prior thereto, there was already an agreement to sell executed by the original defendant No.2 – husband of the original plaintiff dated 04.04.1993 in favour of the Appellant herein and the time for executing the sale deed was extended twice in writing on requests made by the original defendant No.2 – original owner on 02.04.1994 and 01.04.1995. After the aforesaid agreement to sell dated 04.04.1993 and after the first extension, the original plaintiff filed the aforesaid collusive suit being Civil Suit No.1643 of 1994 and obtained the collusive decree dated 01.02.1995. Thereafter, on the strength of the agreement to sell dated 04.04.1993 and without disclosing the decree passed against him in Civil Suit No.1643 of 1994 dated 01.02.1995, the original defendant No.2 – husband of the original plaintiff – original landowner executed the registered Sale Deed dated 19.04.1996 and accepted the balance sale consideration. Necessary changes were consequently made in the revenue records as well, entering the name of the original defendant No.1 – appellant herein in the year 1996 itself. At this stage, it is to be noted that there was no mutation in the revenue records pursuant to the decree dated 01.02.1995 in Civil Suit No.1643 of 1994. It has also come on record and even as admitted by the original plaintiff in the present suit, the appellant herein - original defendant No.1 continued to be in possession and cultivating the land from 1996 onwards and despite the above she filed the suit for cancellation of the Sale Deed dated 19.04.1996, which was in favour of the appellant - original defendant No.1 executed by her husband – original defendant No.2 in the year 2001. Therefore, the subsequent present suit filed by the original plaintiff in Civil Suit No. 419/2007 can be said to be clearly barred by the law of limitation. The suit seeking cancellation of the sale deed was required to be filed within a period of three years from the date of the knowledge of the sale deed. Therefore, when the name of the appellant herein - original defendant No.1 was mutated in the revenue records in the year 1996 on the basis of the registered Sale Deed dated 19.04.1996 and when he was found to be in possession and cultivating the land since then, the suit was required to be filed by the original plaintiff within a period of three years from 1996. The submission on behalf of the original plaintiff (now represented through her heirs) that the prayer in the suit was also for recovery of the possession and therefore the said suit was filed within the period of twelve years and therefore the suit has been filed within the period of limitation, cannot be accepted. Relief for possession is a consequential prayer and the substantive prayer was of cancellation of the Sale Deed dated 19.04.1996 and therefore, the limitation period is required to be considered with respect to the substantive relief claimed and not the consequential relief. When a composite suit is filed for cancellation of the sale deed as well as for recovery of the possession, the limitation period is required to be considered with respect to the substantive relief of cancellation of the sale deed, which would be three years from the date of the knowledge of the sale deed sought to be cancelled. Therefore, the suit, which was filed by the original plaintiff for cancellation of the sale deed, can be said to be a substantive therefore the same was clearly barred by limitation. Hence, the learned Trial Court ought to have dismissed the suit on the ground that the suit was barred by limitation. As such the learned First Appellate Court was justified and right in setting aside the judgment and decree passed by the learned Trial Court and consequently dismissing the suit. The High Court has committed a grave error in quashing and setting aside a well-reasoned and a detailed judgment and order passed by the First Appellate Court dismissing the suit and consequently restoring the judgment and decree passed by the Trial Court. 7. Even the High Court has also not properly appreciated and considered the fact that the appellant herein - original defendant No.1 can be said to be a bona fide purchaser and that the decree obtained by the original plaintiff in the earlier Civil Suit No.1643 of 1994 was a collusive decree and everything was done behind the back of the appellant herein - original defendant No.1. After pocketing the money and receiving the full sale consideration, the original defendant No.2 as such did not contest the present suit and now in the present appeal, both, the heirs of the original plaintiff as well as the original defendant No.2 are represented by the same Advocate contesting the present appeal. Be that as it may, when the original plaintiff – wife of the original defendant No.2 (original landowner) obtained the collusive decree dated 01.02.1995 in Civil Suit No.1643 of 1994, there was already an agreement to sell in favour of the appellant herein – original defendant No.1 by which the original owner – original defendant No.2 agreed to sell the land in question and a sum of Rs.40,000/- was paid as earnest money at the time of agreement and subsequently the appellant herein – original defendant No.1 paid the entire balance sale consideration, which was accepted by the original defendant No.2 – husband of the plaintiff, the High Court has erred in allowing the Second Appeal. All these aspects have not at all been considered by the High Court, which were considered by the First Appellate Court. The High Court has also not at all considered whether the suit was barred by limitation or not, which ought to have been considered by the High Court. Under the circumstances, the impugned judgment and order passed by the High Court is unsustainable and the same deserves to be quashed and set aside. | 1[ds]6. The original plaintiff instituted the Civil Suit No. 419/2007 claiming cancellation of the Sale Deed dated 19.04.1996 in respect of the suit property on the basis of the decree obtained by her in Civil Suit No.1643 of 1994 dated 01.02.1995. It is required to be noted that in the earlier said suit filed by the original plaintiff being Civil Suit No.1643 of 1994, which was filed against her husband – original defendant No.2, there was no contest by the original defendant No.2 – original landowner and in the written statement, he admitted everything averred in the plaint and on the basis of which the decree came to be passed in favour of the original plaintiff on 01.02.1995. It is also required to be noted that the case on behalf of the original plaintiff in the earlier Civil Suit No.1643 of 1994 was based on an alleged family arrangement, which was never produced before the court and/or even thereafter also. At this stage, it is required to be noted that prior thereto, there was already an agreement to sell executed by the original defendant No.2 – husband of the original plaintiff dated 04.04.1993 in favour of the Appellant herein and the time for executing the sale deed was extended twice in writing on requests made by the original defendant No.2 – original owner on 02.04.1994 and 01.04.1995. After the aforesaid agreement to sell dated 04.04.1993 and after the first extension, the original plaintiff filed the aforesaid collusive suit being Civil Suit No.1643 of 1994 and obtained the collusive decree dated 01.02.1995.Thereafter, on the strength of the agreement to sell dated 04.04.1993 and without disclosing the decree passed against him in Civil Suit No.1643 of 1994 dated 01.02.1995, the original defendant No.2 – husband of the original plaintiff – original landowner executed the registered Sale Deed dated 19.04.1996 and accepted the balance sale consideration. Necessary changes were consequently made in the revenue records as well, entering the name of the original defendant No.1 – appellant herein in the year 1996 itself. At this stage, it is to be noted that there was no mutation in the revenue records pursuant to the decree dated 01.02.1995 in Civil Suit No.1643 of 1994. It has also come on record and even as admitted by the original plaintiff in the present suit, the appellant herein - original defendant No.1 continued to be in possession and cultivating the land from 1996 onwards and despite the above she filed the suit for cancellation of the Sale Deed dated 19.04.1996, which was in favour of the appellant - original defendant No.1 executed by her husband – original defendant No.2 in the year 2001.Therefore, the subsequent present suit filed by the original plaintiff in Civil Suit No. 419/2007 can be said to be clearly barred by the law of limitation. The suit seeking cancellation of the sale deed was required to be filed within a period of three years from the date of the knowledge of the sale deed. Therefore, when the name of the appellant herein - original defendant No.1 was mutated in the revenue records in the year 1996 on the basis of the registered Sale Deed dated 19.04.1996 and when he was found to be in possession and cultivating the land since then, the suit was required to be filed by the original plaintiff within a period of three years from 1996. The submission on behalf of the original plaintiff (now represented through her heirs) that the prayer in the suit was also for recovery of the possession and therefore the said suit was filed within the period of twelve years and therefore the suit has been filed within the period of limitation, cannot be accepted. Relief for possession is a consequential prayer and the substantive prayer was of cancellation of the Sale Deed dated 19.04.1996 and therefore, the limitation period is required to be considered with respect to the substantive relief claimed and not the consequential relief. When a composite suit is filed for cancellation of the sale deed as well as for recovery of the possession, the limitation period is required to be considered with respect to the substantive relief of cancellation of the sale deed, which would be three years from the date of the knowledge of the sale deed sought to be cancelled. Therefore, the suit, which was filed by the original plaintiff for cancellation of the sale deed, can be said to be a substantive therefore the same was clearly barred by limitation. Hence, the learned Trial Court ought to have dismissed the suit on the ground that the suit was barred by limitation. As such the learned First Appellate Court was justified and right in setting aside the judgment and decree passed by the learned Trial Court and consequently dismissing the suit. The High Court has committed a grave error in quashing and setting aside a well-reasoned and a detailed judgment and order passed by the First Appellate Court dismissing the suit and consequently restoring the judgment and decree passed by the Trial Court.7. Even the High Court has also not properly appreciated and considered the fact that the appellant herein - original defendant No.1 can be said to be a bona fide purchaser and that the decree obtained by the original plaintiff in the earlier Civil Suit No.1643 of 1994 was a collusive decree and everything was done behind the back of the appellant herein - original defendant No.1. After pocketing the money and receiving the full sale consideration, the original defendant No.2 as such did not contest the present suit and now in the present appeal, both, the heirs of the original plaintiff as well as the original defendant No.2 are represented by the same Advocate contesting the present appeal. Be that as it may, when the original plaintiff – wife of the original defendant No.2 (original landowner) obtained the collusive decree dated 01.02.1995 in Civil Suit No.1643 of 1994, there was already an agreement to sell in favour of the appellant herein – original defendant No.1 by which the original owner – original defendant No.2 agreed to sell the land in question and a sum of Rs.40,000/- was paid as earnest money at the time of agreement and subsequently the appellant herein – original defendant No.1 paid the entire balance sale consideration, which was accepted by the original defendant No.2 – husband of the plaintiff, the High Court has erred in allowing the Second Appeal. All these aspects have not at all been considered by the High Court, which were considered by the First Appellate Court. The High Court has also not at all considered whether the suit was barred by limitation or not, which ought to have been considered by the High Court. Under the circumstances, the impugned judgment and order passed by the High Court is unsustainable and the same deserves to be quashed and set aside. | 1 | 3,150 | 1,221 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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court and/or even thereafter also. At this stage, it is required to be noted that prior thereto, there was already an agreement to sell executed by the original defendant No.2 – husband of the original plaintiff dated 04.04.1993 in favour of the Appellant herein and the time for executing the sale deed was extended twice in writing on requests made by the original defendant No.2 – original owner on 02.04.1994 and 01.04.1995. After the aforesaid agreement to sell dated 04.04.1993 and after the first extension, the original plaintiff filed the aforesaid collusive suit being Civil Suit No.1643 of 1994 and obtained the collusive decree dated 01.02.1995. Thereafter, on the strength of the agreement to sell dated 04.04.1993 and without disclosing the decree passed against him in Civil Suit No.1643 of 1994 dated 01.02.1995, the original defendant No.2 – husband of the original plaintiff – original landowner executed the registered Sale Deed dated 19.04.1996 and accepted the balance sale consideration. Necessary changes were consequently made in the revenue records as well, entering the name of the original defendant No.1 – appellant herein in the year 1996 itself. At this stage, it is to be noted that there was no mutation in the revenue records pursuant to the decree dated 01.02.1995 in Civil Suit No.1643 of 1994. It has also come on record and even as admitted by the original plaintiff in the present suit, the appellant herein - original defendant No.1 continued to be in possession and cultivating the land from 1996 onwards and despite the above she filed the suit for cancellation of the Sale Deed dated 19.04.1996, which was in favour of the appellant - original defendant No.1 executed by her husband – original defendant No.2 in the year 2001. Therefore, the subsequent present suit filed by the original plaintiff in Civil Suit No. 419/2007 can be said to be clearly barred by the law of limitation. The suit seeking cancellation of the sale deed was required to be filed within a period of three years from the date of the knowledge of the sale deed. Therefore, when the name of the appellant herein - original defendant No.1 was mutated in the revenue records in the year 1996 on the basis of the registered Sale Deed dated 19.04.1996 and when he was found to be in possession and cultivating the land since then, the suit was required to be filed by the original plaintiff within a period of three years from 1996. The submission on behalf of the original plaintiff (now represented through her heirs) that the prayer in the suit was also for recovery of the possession and therefore the said suit was filed within the period of twelve years and therefore the suit has been filed within the period of limitation, cannot be accepted. Relief for possession is a consequential prayer and the substantive prayer was of cancellation of the Sale Deed dated 19.04.1996 and therefore, the limitation period is required to be considered with respect to the substantive relief claimed and not the consequential relief. When a composite suit is filed for cancellation of the sale deed as well as for recovery of the possession, the limitation period is required to be considered with respect to the substantive relief of cancellation of the sale deed, which would be three years from the date of the knowledge of the sale deed sought to be cancelled. Therefore, the suit, which was filed by the original plaintiff for cancellation of the sale deed, can be said to be a substantive therefore the same was clearly barred by limitation. Hence, the learned Trial Court ought to have dismissed the suit on the ground that the suit was barred by limitation. As such the learned First Appellate Court was justified and right in setting aside the judgment and decree passed by the learned Trial Court and consequently dismissing the suit. The High Court has committed a grave error in quashing and setting aside a well-reasoned and a detailed judgment and order passed by the First Appellate Court dismissing the suit and consequently restoring the judgment and decree passed by the Trial Court. 7. Even the High Court has also not properly appreciated and considered the fact that the appellant herein - original defendant No.1 can be said to be a bona fide purchaser and that the decree obtained by the original plaintiff in the earlier Civil Suit No.1643 of 1994 was a collusive decree and everything was done behind the back of the appellant herein - original defendant No.1. After pocketing the money and receiving the full sale consideration, the original defendant No.2 as such did not contest the present suit and now in the present appeal, both, the heirs of the original plaintiff as well as the original defendant No.2 are represented by the same Advocate contesting the present appeal. Be that as it may, when the original plaintiff – wife of the original defendant No.2 (original landowner) obtained the collusive decree dated 01.02.1995 in Civil Suit No.1643 of 1994, there was already an agreement to sell in favour of the appellant herein – original defendant No.1 by which the original owner – original defendant No.2 agreed to sell the land in question and a sum of Rs.40,000/- was paid as earnest money at the time of agreement and subsequently the appellant herein – original defendant No.1 paid the entire balance sale consideration, which was accepted by the original defendant No.2 – husband of the plaintiff, the High Court has erred in allowing the Second Appeal. All these aspects have not at all been considered by the High Court, which were considered by the First Appellate Court. The High Court has also not at all considered whether the suit was barred by limitation or not, which ought to have been considered by the High Court. Under the circumstances, the impugned judgment and order passed by the High Court is unsustainable and the same deserves to be quashed and set aside.
### Response:
1
### Explanation:
produced before the court and/or even thereafter also. At this stage, it is required to be noted that prior thereto, there was already an agreement to sell executed by the original defendant No.2 – husband of the original plaintiff dated 04.04.1993 in favour of the Appellant herein and the time for executing the sale deed was extended twice in writing on requests made by the original defendant No.2 – original owner on 02.04.1994 and 01.04.1995. After the aforesaid agreement to sell dated 04.04.1993 and after the first extension, the original plaintiff filed the aforesaid collusive suit being Civil Suit No.1643 of 1994 and obtained the collusive decree dated 01.02.1995.Thereafter, on the strength of the agreement to sell dated 04.04.1993 and without disclosing the decree passed against him in Civil Suit No.1643 of 1994 dated 01.02.1995, the original defendant No.2 – husband of the original plaintiff – original landowner executed the registered Sale Deed dated 19.04.1996 and accepted the balance sale consideration. Necessary changes were consequently made in the revenue records as well, entering the name of the original defendant No.1 – appellant herein in the year 1996 itself. At this stage, it is to be noted that there was no mutation in the revenue records pursuant to the decree dated 01.02.1995 in Civil Suit No.1643 of 1994. It has also come on record and even as admitted by the original plaintiff in the present suit, the appellant herein - original defendant No.1 continued to be in possession and cultivating the land from 1996 onwards and despite the above she filed the suit for cancellation of the Sale Deed dated 19.04.1996, which was in favour of the appellant - original defendant No.1 executed by her husband – original defendant No.2 in the year 2001.Therefore, the subsequent present suit filed by the original plaintiff in Civil Suit No. 419/2007 can be said to be clearly barred by the law of limitation. The suit seeking cancellation of the sale deed was required to be filed within a period of three years from the date of the knowledge of the sale deed. Therefore, when the name of the appellant herein - original defendant No.1 was mutated in the revenue records in the year 1996 on the basis of the registered Sale Deed dated 19.04.1996 and when he was found to be in possession and cultivating the land since then, the suit was required to be filed by the original plaintiff within a period of three years from 1996. The submission on behalf of the original plaintiff (now represented through her heirs) that the prayer in the suit was also for recovery of the possession and therefore the said suit was filed within the period of twelve years and therefore the suit has been filed within the period of limitation, cannot be accepted. Relief for possession is a consequential prayer and the substantive prayer was of cancellation of the Sale Deed dated 19.04.1996 and therefore, the limitation period is required to be considered with respect to the substantive relief claimed and not the consequential relief. When a composite suit is filed for cancellation of the sale deed as well as for recovery of the possession, the limitation period is required to be considered with respect to the substantive relief of cancellation of the sale deed, which would be three years from the date of the knowledge of the sale deed sought to be cancelled. Therefore, the suit, which was filed by the original plaintiff for cancellation of the sale deed, can be said to be a substantive therefore the same was clearly barred by limitation. Hence, the learned Trial Court ought to have dismissed the suit on the ground that the suit was barred by limitation. As such the learned First Appellate Court was justified and right in setting aside the judgment and decree passed by the learned Trial Court and consequently dismissing the suit. The High Court has committed a grave error in quashing and setting aside a well-reasoned and a detailed judgment and order passed by the First Appellate Court dismissing the suit and consequently restoring the judgment and decree passed by the Trial Court.7. Even the High Court has also not properly appreciated and considered the fact that the appellant herein - original defendant No.1 can be said to be a bona fide purchaser and that the decree obtained by the original plaintiff in the earlier Civil Suit No.1643 of 1994 was a collusive decree and everything was done behind the back of the appellant herein - original defendant No.1. After pocketing the money and receiving the full sale consideration, the original defendant No.2 as such did not contest the present suit and now in the present appeal, both, the heirs of the original plaintiff as well as the original defendant No.2 are represented by the same Advocate contesting the present appeal. Be that as it may, when the original plaintiff – wife of the original defendant No.2 (original landowner) obtained the collusive decree dated 01.02.1995 in Civil Suit No.1643 of 1994, there was already an agreement to sell in favour of the appellant herein – original defendant No.1 by which the original owner – original defendant No.2 agreed to sell the land in question and a sum of Rs.40,000/- was paid as earnest money at the time of agreement and subsequently the appellant herein – original defendant No.1 paid the entire balance sale consideration, which was accepted by the original defendant No.2 – husband of the plaintiff, the High Court has erred in allowing the Second Appeal. All these aspects have not at all been considered by the High Court, which were considered by the First Appellate Court. The High Court has also not at all considered whether the suit was barred by limitation or not, which ought to have been considered by the High Court. Under the circumstances, the impugned judgment and order passed by the High Court is unsustainable and the same deserves to be quashed and set aside.
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Mangoo Singh Vs. The Election Tribunal, Bareillyand Others | was disqualified is disqualified also for nomination. The nomination is for this purpose an essential part of the election, and if there are no competitors it of itself constitutes the election by virtue of the express words of S. 56. A different construction might produce much confusion. On the nomination day no one could know whether the persons nominated will at the poll be effective candidates or not. It is true that in the case the disqualification may be removed before the election is completed; but what is to be the effect if the disqualification continues until the poll begins, or until the middle of the polling day, or until the close of the poll? Will votes given before the removal of the disqualification be valid? If not, how is the number of them to be ascertained? It seems to us unreasonable to hold that the Act means to leave the matter in such a state of uncertainty, and for these reasons we think that this petitioner was disqualified for nomination or election."The same state of uncertainty and confusion, to which a reference has been made in the aforesaid observations, will arise if the construction which learned counsel for the appellant has pressed for our acceptance is adopted in the case before us.7. Lastly, it has been argued on behalf of the appellant that the expression to which S. 166 applies in cl. (g) of S. 18-D means that a bill of the sum due must be presented to the person liable for it, as required by that section, before he can come within the mischief of the clause; furthermore, the use of the expression demand makes it essential that a demand notice must also be served as required by S. 168 of the Act. As on the finding of the Election Tribunal neither a bill was presented to the appellant, nor was he served with a demand notice, learned counsel contends that the appellant does not come within the mischief of the clause.8. Sections 166 and 168 are in these terms"Section 166: Presentation of bill - (1) As soon as a person becomes liable for the payment of -(a) any sum on account of a tax, other than an octroi or toll or any similar tax payable upon immediate demand, or(b) a sum payable under cl. (C) of S. 196 or S. 229 of S. 230 in respect of the supply or water, or payable in respect of any other municipal service or undertaking, or(c) any other sum declared by this Act or by rule (or bye-law) to be recoverable in the manner provided by this chapter, the board shall, with all convenient speed, cause a bill to be presented to the persons so liable.(2) Unless otherwise provided by rule, a person shall be deemed to become liable for the payment of every tax and licence fee upon the commencement of the period in respect of which such tax or fee is payable.""Section 168. Notice of demand. - If the sum for which a bill has been presented as aforesaid is not paid in municipal office, or to a person empowered by a regulation to receive such payments within fifteen days from the presentation thereof, the board may cause to be served upon the person liable for the payment of the said sum a notice of demand in the form set forth in Sch. IV, or to the like effect."We are clearly of the view that the expression to which S. 166 applies cannot bear the meaning sought to be given to it on behalf of the appellant. That expression merely describes the nature of the demand referred to in cl. (g). Section 166 refers to three types of dues; cl. (a) of sub-s (1) refers to any sum on account of a tax other than an octroi or toll or any similar tax payable under cl. (C) of S. 196 or S. 229 or S. 230 in respect of the supply of water etc., and cl, (C) refers to any other sum declared by the Act or by rule or bye-law to be recoverable in the manner provided by chap. VI. The demand to which S. 166 applies must be a demand of the nature or type mentioned in one or other of the aforesaid three clauses, and the demand referred to in cl. (g) of S. 13 D must be of that nature or type; this in our view, is the true meaning and effect if the expression to which S. 166 applies.9. Nor do we think that the word demand attracts the operation of S. 168. It may be readily conceded that the word demand ordinarily means something more than what is due; it means something which has been demanded called for or asked for. But the meaning of a word must take colour from the context in which it is used. In cl. (g) the context in which the word, demand is used has a very obvious and clear reference to the amount of arrears or dues on which the disqualification depends; therefore, the expression used is - arrears in the payment of municipal tax or other dues in excess of one years demand. The word demand in that context and in the collocation of words in which it has been used can only mean in excess of one years municipal tax or other dues. We have been referred to several meanings of the word demand in standard English dictionaries and Law lexicons. When the context makes the meaning of a word quite clear, it becomes unnecessary to search for and select a particular meaning out of the diverse meanings a word is capable of according to lexicographers. If it sufficient for our purpose to state that even in standard dictionaries and law lexicons, it is well recognised that the word demand may mean simply a claim or due, without importing any further meaning of calling upon the person liable to pay claim or due. | 1[ds]We are clearly of the view that the expression to which S. 166 applies cannot bear the meaning sought to be given to it on behalf of the appellant. That expression merely describes the nature of the demand referred to in cl. (g). Section 166 refers to three types of dues; cl. (a) of sub-s (1) refers to any sum on account of a tax other than an octroi or toll or any similar tax payable under cl. (C) of S. 196 or S. 229 or S. 230 in respect of the supply of water etc., and cl, (C) refers to any other sum declared by the Act or by rule or bye-law to be recoverable in the manner provided by chap.demand to which S. 166 applies must be a demand of the nature or type mentioned in one or other of the aforesaid three clauses, and the demand referred to in cl. (g) of S. 13 D must be of that nature or type; this in our view, is the true meaning and effect if the expression to which S. 166 applies.9. Nor do we think that the word demand attracts the operation of S.It may be readily conceded that the word demand ordinarily means something more than what is due; it means something which has been demanded called for or asked for. But the meaning of a word must take colour from the context in which it iscl. (g) the context in which the word, demand is used has a very obvious and clear reference to the amount of arrears or dues on which the disqualification depends; therefore, the expression used is - arrears in the payment of municipal tax or other dues in excess of one years demand. The word demand in that context and in the collocation of words in which it has been used can only mean in excess of one years municipal tax or otherhave been referred to several meanings of the word demand in standard English dictionaries and Law lexicons. When the context makes the meaning of a word quite clear, it becomes unnecessary to search for and select a particular meaning out of the diverse meanings a word is capable of according toit sufficient for our purpose to state that even in standard dictionaries and law lexicons, it is well recognised that the word demand may mean simply a claim or due, without importing any further meaning of calling upon the person liable to pay claim or due. | 1 | 3,553 | 460 | ### 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:
was disqualified is disqualified also for nomination. The nomination is for this purpose an essential part of the election, and if there are no competitors it of itself constitutes the election by virtue of the express words of S. 56. A different construction might produce much confusion. On the nomination day no one could know whether the persons nominated will at the poll be effective candidates or not. It is true that in the case the disqualification may be removed before the election is completed; but what is to be the effect if the disqualification continues until the poll begins, or until the middle of the polling day, or until the close of the poll? Will votes given before the removal of the disqualification be valid? If not, how is the number of them to be ascertained? It seems to us unreasonable to hold that the Act means to leave the matter in such a state of uncertainty, and for these reasons we think that this petitioner was disqualified for nomination or election."The same state of uncertainty and confusion, to which a reference has been made in the aforesaid observations, will arise if the construction which learned counsel for the appellant has pressed for our acceptance is adopted in the case before us.7. Lastly, it has been argued on behalf of the appellant that the expression to which S. 166 applies in cl. (g) of S. 18-D means that a bill of the sum due must be presented to the person liable for it, as required by that section, before he can come within the mischief of the clause; furthermore, the use of the expression demand makes it essential that a demand notice must also be served as required by S. 168 of the Act. As on the finding of the Election Tribunal neither a bill was presented to the appellant, nor was he served with a demand notice, learned counsel contends that the appellant does not come within the mischief of the clause.8. Sections 166 and 168 are in these terms"Section 166: Presentation of bill - (1) As soon as a person becomes liable for the payment of -(a) any sum on account of a tax, other than an octroi or toll or any similar tax payable upon immediate demand, or(b) a sum payable under cl. (C) of S. 196 or S. 229 of S. 230 in respect of the supply or water, or payable in respect of any other municipal service or undertaking, or(c) any other sum declared by this Act or by rule (or bye-law) to be recoverable in the manner provided by this chapter, the board shall, with all convenient speed, cause a bill to be presented to the persons so liable.(2) Unless otherwise provided by rule, a person shall be deemed to become liable for the payment of every tax and licence fee upon the commencement of the period in respect of which such tax or fee is payable.""Section 168. Notice of demand. - If the sum for which a bill has been presented as aforesaid is not paid in municipal office, or to a person empowered by a regulation to receive such payments within fifteen days from the presentation thereof, the board may cause to be served upon the person liable for the payment of the said sum a notice of demand in the form set forth in Sch. IV, or to the like effect."We are clearly of the view that the expression to which S. 166 applies cannot bear the meaning sought to be given to it on behalf of the appellant. That expression merely describes the nature of the demand referred to in cl. (g). Section 166 refers to three types of dues; cl. (a) of sub-s (1) refers to any sum on account of a tax other than an octroi or toll or any similar tax payable under cl. (C) of S. 196 or S. 229 or S. 230 in respect of the supply of water etc., and cl, (C) refers to any other sum declared by the Act or by rule or bye-law to be recoverable in the manner provided by chap. VI. The demand to which S. 166 applies must be a demand of the nature or type mentioned in one or other of the aforesaid three clauses, and the demand referred to in cl. (g) of S. 13 D must be of that nature or type; this in our view, is the true meaning and effect if the expression to which S. 166 applies.9. Nor do we think that the word demand attracts the operation of S. 168. It may be readily conceded that the word demand ordinarily means something more than what is due; it means something which has been demanded called for or asked for. But the meaning of a word must take colour from the context in which it is used. In cl. (g) the context in which the word, demand is used has a very obvious and clear reference to the amount of arrears or dues on which the disqualification depends; therefore, the expression used is - arrears in the payment of municipal tax or other dues in excess of one years demand. The word demand in that context and in the collocation of words in which it has been used can only mean in excess of one years municipal tax or other dues. We have been referred to several meanings of the word demand in standard English dictionaries and Law lexicons. When the context makes the meaning of a word quite clear, it becomes unnecessary to search for and select a particular meaning out of the diverse meanings a word is capable of according to lexicographers. If it sufficient for our purpose to state that even in standard dictionaries and law lexicons, it is well recognised that the word demand may mean simply a claim or due, without importing any further meaning of calling upon the person liable to pay claim or due.
### Response:
1
### Explanation:
We are clearly of the view that the expression to which S. 166 applies cannot bear the meaning sought to be given to it on behalf of the appellant. That expression merely describes the nature of the demand referred to in cl. (g). Section 166 refers to three types of dues; cl. (a) of sub-s (1) refers to any sum on account of a tax other than an octroi or toll or any similar tax payable under cl. (C) of S. 196 or S. 229 or S. 230 in respect of the supply of water etc., and cl, (C) refers to any other sum declared by the Act or by rule or bye-law to be recoverable in the manner provided by chap.demand to which S. 166 applies must be a demand of the nature or type mentioned in one or other of the aforesaid three clauses, and the demand referred to in cl. (g) of S. 13 D must be of that nature or type; this in our view, is the true meaning and effect if the expression to which S. 166 applies.9. Nor do we think that the word demand attracts the operation of S.It may be readily conceded that the word demand ordinarily means something more than what is due; it means something which has been demanded called for or asked for. But the meaning of a word must take colour from the context in which it iscl. (g) the context in which the word, demand is used has a very obvious and clear reference to the amount of arrears or dues on which the disqualification depends; therefore, the expression used is - arrears in the payment of municipal tax or other dues in excess of one years demand. The word demand in that context and in the collocation of words in which it has been used can only mean in excess of one years municipal tax or otherhave been referred to several meanings of the word demand in standard English dictionaries and Law lexicons. When the context makes the meaning of a word quite clear, it becomes unnecessary to search for and select a particular meaning out of the diverse meanings a word is capable of according toit sufficient for our purpose to state that even in standard dictionaries and law lexicons, it is well recognised that the word demand may mean simply a claim or due, without importing any further meaning of calling upon the person liable to pay claim or due.
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Benjamin (A. G.) Vs. Union of India | such cases the order of termination of services of the temporary Government servant which in form and in substance is no more than his discharge effected under the terms of contract or the relevant rule, cannot, in law, be regarded as his dismissal, because the appointing authority was actuated by the motive that the said servant did not deserve to be continued in service for some alleged inefficiency or misconduct. The point has been clearly stated by Gajendragadkar, J. (as he then was) in Jagdish Mitter v. Union of India [1964 - I L.L.J. 418] as follows at pp. 423-424 :"... Take a case where the authority initiates a formal departmental inquiry against a temporary servant, but whilst the enquiry is pending, it takes the view that it may not be necessary or expedient to terminate the services of the temporary servant by issuing an order of dismissal against him. In order to avoid imposing any stigma which an order of dismissal necessarily implies, the enquiry is stopped and an order of discharge simpliciter is served on the servant. On the authority of the decision of this Court in the case of Parshotam Lal Dhingra [1958 - I L.L.J. 544] (vide supra) it must be held that the termination of services of the temporary servant which in form and in substance is no more than his discharge effected under the terms of contract or the relevant rule, cannot in law, be regarded as his dismissal, because the appointing authority was actuated by the motive that the said servant did not deserve to be continued for some alleged misconduct. That is why in dealing with temporary servant against whom formal departmental enquiries may have been commenced but were not pursued to the end, the principle that the motive operating in the mind of the authority is immaterial, has to be borne in mind." 7. Let us now turn to the facts of the present case. There were several complaints made against the appellant and in July 1951 a memorandum was issued to the appellant under the signature of the Chairman of the Central Tractor Organization asking him to reply to the allegations. By the memorandum the appellant was informed that he failed to maintain stores and record properly, that he did not make adequate fire-fighting arrangements and that he also failed to carry out the orders given by superior officers. It was also alleged that the appellant had been handing over, without authority, Government stores to representatives of the supply companies. The appellant was asked to submit his explanation as to why disciplinary action should not be taken against him. Reference was made by Sri Mani on behalf of the appellant to Ex. D. 1. which is the note of the Chairman dated 19 April 1954 wherein it is mentioned that the appellant was found guilty of failing to maintain properly the stores and records and of not exercising sufficient vigilance in performing his duties. It was argued for the appellant that there was a definite finding with regard to the guilt of the appellant. It is, however, not possible for us to accept the contention of the appellant that any formal finding was recorded against him. The note of the Chairman, Ex. D. 1, itself shows that the enquiry was not completed and it was thought that if proper departmental enquiry was to be completed it would take much longer time. In para 5 of the note, Ex. D. 1, the Chairman recommends that"services of the appellant should be terminated under rule 5 of the Central Civil Services (Temporary Service) Rules, 1949, by paying a months salary in lieu of notice" and that "the departmental proceedings will take much longer time." 8. It is, therefore, manifest that the formal departmental enquiry was dropped against the appellant before it could be completed and the intention of the authority was not to impose a stigma against the appellant by making an order of dismissal but to make a simple order of discharge of the services of the appellant under rule 5 of the Central Civil Services (Temporary Service) Rules, 1949. Indeed, the order of discharge, dated 23 April, 1954, Ex D. 2, makes no imputation, whatever, against the appellant and it simply states that "his services are no longer required in the organization." As we have already stated, the note of the Chairman, Ex. D. 1, dated 19 April, 1954, also shows that departmental proceedings were dropped and it was decided not to take punitive action against the appellant but to make a simple order of discharge under rule 5. In this state of facts the appellant is not entitled to invoke the protection of Art. 311(2) of the Constitution. 9. Strong reliance was placed on behalf of the appellant on the decision of this Court in Madan Gopal v. State of Punjab [1964 - I L.L.J. 68]. In that case, Madan Gopal was a temporary Government servant. A chargesheet was served with having taken bribes in two cases. He was also asked to explain why disciplinary action should not be taken against him and he was further asked to state if he wanted to be heard in person and also to put forth any defence. An enquiry was held by the Settlement Officer who submitted his report to the Deputy Commissioner. On the basis of this report the Deputy Commissioner passed an order that it had been established that bribes had been taken by Madan Gopal and, therefore, the services of Madan Gopal were terminated on payment of one months pay in lieu of notice. In these circumstances, it was held by this Court that the order was really one of dismissal or removal and passed as a punishment after inquiry and, therefore, the provisions of Art. 311(2) should have been complied with. The material facts in the present case are obviously different and the principle of Madan Gopal case [1964 - I L.L.J. 68] (vide supra) cannot be held applicable. | 0[ds]Even in a case where a formal departmental inquiry is entitled against a temporary Government servant it is, we think, open to the authority to drop further proceedings in the departmental enquiry and to make an order or discharge simpliciter against the temporary Government servant. We do not accept the contention of counsel for the appellant that once the formal departmental proceedings have been initiated it is not open to the authority concerned to drop them and to take the alternative course of discharging the temporary Government servant in terms of the contract of services or the relevant statutory rule. It is possible that the authority takes the view that the stigma of the order of dismissal should be avoided in the individual case. As we have already said, the appropriate authority possesses two powers to terminate the services of a temporary Government servant. It can either discharge him purporting to exercise its power under the terms of contract or the relevant rule, and in that case, the provisions of Art. 311 will not be applicable. Alternatively, the authority can also act under its power to dismiss a temporary servant and make an order of dismissal in which case the provisions of Art. 311 will be applicable. If therefore, the authority decides, for some reason, to drop the formal departmental enquiry even though it had been initiated against the temporary Government servant, it is still open to the authority to make an order of discharge simpliciter is terms of the contract of service or the relevant statutory rule. In such cases the order of termination of services of the temporary Government servant which in form and in substance is no more than his discharge effected under the terms of contract or the relevant rule, cannot, in law, be regarded as his dismissal, because the appointing authority was actuated by the motive that the said servant did not deserve to be continued in service for some alleged inefficiency or misconduct.8. It is, therefore, manifest that the formal departmental enquiry was dropped against the appellant before it could be completed and the intention of the authority was not to impose a stigma against the appellant by making an order of dismissal but to make a simple order of discharge of the services of the appellant under rule 5 of the Central Civil Services (Temporary Service) Rules, 1949. Indeed, the order of discharge, dated 23 April, 1954, Ex D. 2, makes no imputation, whatever, against the appellant and it simply states that "his services are no longer required in the organization."As we have already stated, the note of the Chairman, Ex. D. 1, dated 19 April, 1954, also shows that departmental proceedings were dropped and it was decided not to take punitive action against the appellant but to make a simple order of discharge under rule 5. In this state of facts the appellant is not entitled to invoke the protection of Art. 311(2) of the Constitution9. Strong reliance was placed on behalf of the appellant on the decision of this Court in Madan Gopal v. State of Punjab [1964I L.L.J. 68]. In that case, Madan Gopal was a temporary Government servant. A chargesheet was served with having taken bribes in two cases.He was also asked to explain why disciplinary action should not be taken against him and he was further asked to state if he wanted to be heard in person and also to put forth any defence. An enquiry was held by the Settlement Officer who submitted his report to the Deputy Commissioner. On the basis of this report the Deputy Commissioner passed an order that it had been established that bribes had been taken by Madan Gopal and, therefore, the services of Madan Gopal were terminated on payment of one months pay in lieu of notice. In these circumstances, it was held by this Court that the order was really one of dismissal or removal and passed as a punishment after inquiry and, therefore, the provisions of Art. 311(2) should have been complied with. The material facts in the present case are obviously different and the principle of Madan Gopal case [1964I L.L.J. 68] (vide supra) cannot be held applicable. | 0 | 3,213 | 784 | ### 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:
such cases the order of termination of services of the temporary Government servant which in form and in substance is no more than his discharge effected under the terms of contract or the relevant rule, cannot, in law, be regarded as his dismissal, because the appointing authority was actuated by the motive that the said servant did not deserve to be continued in service for some alleged inefficiency or misconduct. The point has been clearly stated by Gajendragadkar, J. (as he then was) in Jagdish Mitter v. Union of India [1964 - I L.L.J. 418] as follows at pp. 423-424 :"... Take a case where the authority initiates a formal departmental inquiry against a temporary servant, but whilst the enquiry is pending, it takes the view that it may not be necessary or expedient to terminate the services of the temporary servant by issuing an order of dismissal against him. In order to avoid imposing any stigma which an order of dismissal necessarily implies, the enquiry is stopped and an order of discharge simpliciter is served on the servant. On the authority of the decision of this Court in the case of Parshotam Lal Dhingra [1958 - I L.L.J. 544] (vide supra) it must be held that the termination of services of the temporary servant which in form and in substance is no more than his discharge effected under the terms of contract or the relevant rule, cannot in law, be regarded as his dismissal, because the appointing authority was actuated by the motive that the said servant did not deserve to be continued for some alleged misconduct. That is why in dealing with temporary servant against whom formal departmental enquiries may have been commenced but were not pursued to the end, the principle that the motive operating in the mind of the authority is immaterial, has to be borne in mind." 7. Let us now turn to the facts of the present case. There were several complaints made against the appellant and in July 1951 a memorandum was issued to the appellant under the signature of the Chairman of the Central Tractor Organization asking him to reply to the allegations. By the memorandum the appellant was informed that he failed to maintain stores and record properly, that he did not make adequate fire-fighting arrangements and that he also failed to carry out the orders given by superior officers. It was also alleged that the appellant had been handing over, without authority, Government stores to representatives of the supply companies. The appellant was asked to submit his explanation as to why disciplinary action should not be taken against him. Reference was made by Sri Mani on behalf of the appellant to Ex. D. 1. which is the note of the Chairman dated 19 April 1954 wherein it is mentioned that the appellant was found guilty of failing to maintain properly the stores and records and of not exercising sufficient vigilance in performing his duties. It was argued for the appellant that there was a definite finding with regard to the guilt of the appellant. It is, however, not possible for us to accept the contention of the appellant that any formal finding was recorded against him. The note of the Chairman, Ex. D. 1, itself shows that the enquiry was not completed and it was thought that if proper departmental enquiry was to be completed it would take much longer time. In para 5 of the note, Ex. D. 1, the Chairman recommends that"services of the appellant should be terminated under rule 5 of the Central Civil Services (Temporary Service) Rules, 1949, by paying a months salary in lieu of notice" and that "the departmental proceedings will take much longer time." 8. It is, therefore, manifest that the formal departmental enquiry was dropped against the appellant before it could be completed and the intention of the authority was not to impose a stigma against the appellant by making an order of dismissal but to make a simple order of discharge of the services of the appellant under rule 5 of the Central Civil Services (Temporary Service) Rules, 1949. Indeed, the order of discharge, dated 23 April, 1954, Ex D. 2, makes no imputation, whatever, against the appellant and it simply states that "his services are no longer required in the organization." As we have already stated, the note of the Chairman, Ex. D. 1, dated 19 April, 1954, also shows that departmental proceedings were dropped and it was decided not to take punitive action against the appellant but to make a simple order of discharge under rule 5. In this state of facts the appellant is not entitled to invoke the protection of Art. 311(2) of the Constitution. 9. Strong reliance was placed on behalf of the appellant on the decision of this Court in Madan Gopal v. State of Punjab [1964 - I L.L.J. 68]. In that case, Madan Gopal was a temporary Government servant. A chargesheet was served with having taken bribes in two cases. He was also asked to explain why disciplinary action should not be taken against him and he was further asked to state if he wanted to be heard in person and also to put forth any defence. An enquiry was held by the Settlement Officer who submitted his report to the Deputy Commissioner. On the basis of this report the Deputy Commissioner passed an order that it had been established that bribes had been taken by Madan Gopal and, therefore, the services of Madan Gopal were terminated on payment of one months pay in lieu of notice. In these circumstances, it was held by this Court that the order was really one of dismissal or removal and passed as a punishment after inquiry and, therefore, the provisions of Art. 311(2) should have been complied with. The material facts in the present case are obviously different and the principle of Madan Gopal case [1964 - I L.L.J. 68] (vide supra) cannot be held applicable.
### Response:
0
### Explanation:
Even in a case where a formal departmental inquiry is entitled against a temporary Government servant it is, we think, open to the authority to drop further proceedings in the departmental enquiry and to make an order or discharge simpliciter against the temporary Government servant. We do not accept the contention of counsel for the appellant that once the formal departmental proceedings have been initiated it is not open to the authority concerned to drop them and to take the alternative course of discharging the temporary Government servant in terms of the contract of services or the relevant statutory rule. It is possible that the authority takes the view that the stigma of the order of dismissal should be avoided in the individual case. As we have already said, the appropriate authority possesses two powers to terminate the services of a temporary Government servant. It can either discharge him purporting to exercise its power under the terms of contract or the relevant rule, and in that case, the provisions of Art. 311 will not be applicable. Alternatively, the authority can also act under its power to dismiss a temporary servant and make an order of dismissal in which case the provisions of Art. 311 will be applicable. If therefore, the authority decides, for some reason, to drop the formal departmental enquiry even though it had been initiated against the temporary Government servant, it is still open to the authority to make an order of discharge simpliciter is terms of the contract of service or the relevant statutory rule. In such cases the order of termination of services of the temporary Government servant which in form and in substance is no more than his discharge effected under the terms of contract or the relevant rule, cannot, in law, be regarded as his dismissal, because the appointing authority was actuated by the motive that the said servant did not deserve to be continued in service for some alleged inefficiency or misconduct.8. It is, therefore, manifest that the formal departmental enquiry was dropped against the appellant before it could be completed and the intention of the authority was not to impose a stigma against the appellant by making an order of dismissal but to make a simple order of discharge of the services of the appellant under rule 5 of the Central Civil Services (Temporary Service) Rules, 1949. Indeed, the order of discharge, dated 23 April, 1954, Ex D. 2, makes no imputation, whatever, against the appellant and it simply states that "his services are no longer required in the organization."As we have already stated, the note of the Chairman, Ex. D. 1, dated 19 April, 1954, also shows that departmental proceedings were dropped and it was decided not to take punitive action against the appellant but to make a simple order of discharge under rule 5. In this state of facts the appellant is not entitled to invoke the protection of Art. 311(2) of the Constitution9. Strong reliance was placed on behalf of the appellant on the decision of this Court in Madan Gopal v. State of Punjab [1964I L.L.J. 68]. In that case, Madan Gopal was a temporary Government servant. A chargesheet was served with having taken bribes in two cases.He was also asked to explain why disciplinary action should not be taken against him and he was further asked to state if he wanted to be heard in person and also to put forth any defence. An enquiry was held by the Settlement Officer who submitted his report to the Deputy Commissioner. On the basis of this report the Deputy Commissioner passed an order that it had been established that bribes had been taken by Madan Gopal and, therefore, the services of Madan Gopal were terminated on payment of one months pay in lieu of notice. In these circumstances, it was held by this Court that the order was really one of dismissal or removal and passed as a punishment after inquiry and, therefore, the provisions of Art. 311(2) should have been complied with. The material facts in the present case are obviously different and the principle of Madan Gopal case [1964I L.L.J. 68] (vide supra) cannot be held applicable.
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M/s. Kanpur Fert. & Cement Ltd Vs. State of U.P. & Another | 1. Leave granted.2. The appellant seeks to challenge the order of the High Court refusing interference with the order dated 23rd September, 2013 passed by the Labour Court by which the respondent workman has been granted wages for the period from July 2008 to March 2011 with simple interest at the rate for 9% per annum.3. The core ground of challenge to the aforesaid order is that the aforesaid relief could not have been granted under Section 33-C(2) of the Industrial Disputes Act, 1947 in view of the settlement by and between the Management and the Representative Union of the workmen under which the workmen were entitled to an honorarium i.e. 25% of the basic wages plus D.A. for the period of special leave (during the period of closure of the unit).4. We have perused the Memorandum of Understanding/Settlement, particularly, the clause relating to the payment of honorarium as referred to above. The Memorandum of Understanding/Settlement became a part of the revival scheme approved by the Board for Industrial and Financial Reconstruction (BIFR) by its order dated 16th January, 2012 in terms of which the Company got revived.5. Evidently, all the other workmen got benefit in terms of the settlement and the respondent workman herein is the lone employee who has been granted higher benefits in terms of the order of the Labour Court as affirmed by the High Court.6. If the settlement by and between the Management and the Representative Union of workmen is to be construed to be one under Section 18(1) of the Industrial Disputes Act, 1947 which we are inclined to do the same would bind the respondent workman. In this regard, we have perused the evidence of the respondent workman wherein he does not deny that the Representative Union which was a party to the settlement did not represent his cause. A mere statement in the evidence of the workman that he is not a member of any specific union will not suffice.7. That apart, if the Memorandum of Understanding/Settlement is a part of the revival scheme approved by the BIFR, the same would also be binding on the workmen under Section 18(8) of the Sick Industrial Companies (Special Provisions) Act, 1985.8. In the aforesaid circumstances, we are of the view that the Labour Court as well as the High Court was not justified in passing the impugned order. Instead of full wages for the period from July 2008 to March 2011 with simple interest at the rate of 9% per annum, the respondent workman would be entitled to 25% of the wages as per the settlement from the date of special leave till the date of reporting back to duty i.e. July 2008 to March 2011. | 1[ds]5. Evidently, all the other workmen got benefit in terms of the settlement and the respondent workman herein is the lone employee who has been granted higher benefits in terms of the order of the Labour Court as affirmed by the High Court.6. If the settlement by and between the Management and the Representative Union of workmen is to be construed to be one under Section 18(1) of the Industrial Disputes Act, 1947 which we are inclined to do the same would bind the respondent workman. In this regard, we have perused the evidence of the respondent workman wherein he does not deny that the Representative Union which was a party to the settlement did not represent his cause. A mere statement in the evidence of the workman that he is not a member of any specific union will not suffice.7. That apart, if the Memorandum of Understanding/Settlement is a part of the revival scheme approved by the BIFR, the same would also be binding on the workmen under Section 18(8) of the Sick Industrial Companies (Special Provisions) Act, 1985.8. In the aforesaid circumstances, we are of the view that the Labour Court as well as the High Court was not justified in passing the impugned order. Instead of full wages for the period from July 2008 to March 2011 with simple interest at the rate of 9% per annum, the respondent workman would be entitled to 25% of the wages as per the settlement from the date of special leave till the date of reporting back to duty i.e. July 2008 to March 2011. | 1 | 501 | 296 | ### 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. Leave granted.2. The appellant seeks to challenge the order of the High Court refusing interference with the order dated 23rd September, 2013 passed by the Labour Court by which the respondent workman has been granted wages for the period from July 2008 to March 2011 with simple interest at the rate for 9% per annum.3. The core ground of challenge to the aforesaid order is that the aforesaid relief could not have been granted under Section 33-C(2) of the Industrial Disputes Act, 1947 in view of the settlement by and between the Management and the Representative Union of the workmen under which the workmen were entitled to an honorarium i.e. 25% of the basic wages plus D.A. for the period of special leave (during the period of closure of the unit).4. We have perused the Memorandum of Understanding/Settlement, particularly, the clause relating to the payment of honorarium as referred to above. The Memorandum of Understanding/Settlement became a part of the revival scheme approved by the Board for Industrial and Financial Reconstruction (BIFR) by its order dated 16th January, 2012 in terms of which the Company got revived.5. Evidently, all the other workmen got benefit in terms of the settlement and the respondent workman herein is the lone employee who has been granted higher benefits in terms of the order of the Labour Court as affirmed by the High Court.6. If the settlement by and between the Management and the Representative Union of workmen is to be construed to be one under Section 18(1) of the Industrial Disputes Act, 1947 which we are inclined to do the same would bind the respondent workman. In this regard, we have perused the evidence of the respondent workman wherein he does not deny that the Representative Union which was a party to the settlement did not represent his cause. A mere statement in the evidence of the workman that he is not a member of any specific union will not suffice.7. That apart, if the Memorandum of Understanding/Settlement is a part of the revival scheme approved by the BIFR, the same would also be binding on the workmen under Section 18(8) of the Sick Industrial Companies (Special Provisions) Act, 1985.8. In the aforesaid circumstances, we are of the view that the Labour Court as well as the High Court was not justified in passing the impugned order. Instead of full wages for the period from July 2008 to March 2011 with simple interest at the rate of 9% per annum, the respondent workman would be entitled to 25% of the wages as per the settlement from the date of special leave till the date of reporting back to duty i.e. July 2008 to March 2011.
### Response:
1
### Explanation:
5. Evidently, all the other workmen got benefit in terms of the settlement and the respondent workman herein is the lone employee who has been granted higher benefits in terms of the order of the Labour Court as affirmed by the High Court.6. If the settlement by and between the Management and the Representative Union of workmen is to be construed to be one under Section 18(1) of the Industrial Disputes Act, 1947 which we are inclined to do the same would bind the respondent workman. In this regard, we have perused the evidence of the respondent workman wherein he does not deny that the Representative Union which was a party to the settlement did not represent his cause. A mere statement in the evidence of the workman that he is not a member of any specific union will not suffice.7. That apart, if the Memorandum of Understanding/Settlement is a part of the revival scheme approved by the BIFR, the same would also be binding on the workmen under Section 18(8) of the Sick Industrial Companies (Special Provisions) Act, 1985.8. In the aforesaid circumstances, we are of the view that the Labour Court as well as the High Court was not justified in passing the impugned order. Instead of full wages for the period from July 2008 to March 2011 with simple interest at the rate of 9% per annum, the respondent workman would be entitled to 25% of the wages as per the settlement from the date of special leave till the date of reporting back to duty i.e. July 2008 to March 2011.
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State of Kerala & Others Vs. M/s. South India Corporation Private Limited | respect to-(a) the levy and collection of any lax or duty leviable by the Government of India in such State and for the distribution of the proceeds thereof otherwise than in accordance with the provisions of this Chapter,(b) the grant of any financial assistance by the Government of India to such State in consequence of the loss of any revenue which that State used to derive from any tax or duty leviable under this Constitution by the Government of India or from any other sources;(c) the contribution by such State in respect of any payment made by the Government of India under Clause (1) of Article 291, and, when an agreement is so entered into, the provisions of this Chapter shall in relation to such State have effect subject to the terms of such agreement.(2) An agreement entered into under Clause (1) shall continue in force for a period not exceeding ten years from the commencement of this Constitution:Provided that the President may at any time after the expiration of five years from such commencement terminate or modify any such agreement if after consideration of the report of the Finance Commission he thinks it necessary to do so."10. The decision of this Court in The South India Corporation (P) Ltd., (1964) 4 SCR 280 = (AIR 1964 SC 207 ) (supra) elucidates the purpose of Article 278 and the object with which the President of India entered into the agreement with the Raj Pramukh of Travancore. For our present purpose it will suffice to quote a portion of the said judgment. According to that judgment the agreement."incorporated the recommendations made by the Indian States Finances Enquiry Committee with some modifications and the Union of India agreed to recoup the State for the loss caused to it by reason of the federal financial integration in the manner described thereunder. It was not a piecemeal agreement confined to a few items, but a comprehensive one to fill up the entire revenue-gap caused to the State by reason of some of its sources of revenue having been taken away by the Union or otherwise lost to it."Further (see p. 392) (of SCR) = (at 213 of AIR):"The agreement, read with the Report, makes the following position clear: The loss arising to the State on account of the federal financial integration in the State was ascertained and a provision was made for subsidising the State by filling up the said revenue-gap. The agreement ex facie appears to be a comprehensive one. It takes into consideration the entire loss caused to the State by reason of some of its sources of revenue being transferred under the Constitution to the Union. It would be unreasonable to construe the agreement as to exclude from its operation certain taxes which the State was authorised to levy for a temporary period ..................... that saving was subject to an agreement and, as by the agreement effective adjustments were made to meet the loss which the State would have incurred but for the agreement, there was no longer any necessity for the continuance of the saving and it ceased to have any force thereafter between the parties to the agreement."11. The Court also opined that it was not called upon to decide whether the said power revived after the expiry of ten years from the commencement of the Constitution, for all the impugned assessments fell within the said period. The Court observed that there was no force in the contention that because Article 278 was omitted by the Constitution (Seventh Amendment) Act, 1956, the agreement entered into in exercise of a power thereunder automatically came to an end and thereafter the power of the State to levy the tax would come into life again.12. It was enough for the Court in that case to say that the agreement would have its full force unless the Constitution (Seventh Amendment) Act, 1956 in terms avoided it and in the result it held that the impugned assessment orders were not validly made by the sales tax authorities in exercise of the power saved by Article 277 of the Constitution.13. The question directly arises before us as to whether Article 277 would still have effect in regard to the power to levy taxes falling within its scope after the said agreement of 25th February 1950 came to an end. The answer must clearly be in the negative because the essential condition for the validity of the imposition is the continuity of the levy and once there is a break in its operation it ceases to be effective and it cannot matter that no provision to the contrary as envisaged by Article 277 was made by Parliament.14. It is clear that Article 277 and particularly Article 278 were engrafted in the Constitution with the immediate object of maintaining the financial viability of the new States for such time as the Parliament thought proper. So far as the State of Kerala was concerned the need for financial assistance was met by the agreement between the President of India and the Raj Pramukh of Travancore. That agreement itself shows that there was liberal assistance for the first five years which was to be tapered off in another five years time. It would not be wrong to observe that it was contemplated that after ten years the State of Kerala would be able to find its own feet and do without any special assistance from the Centre. One of the objects of the said agreement was to recoup the State of Kerala for the loss of revenue which that State used to derive from inter alia, the sales tax on works contracts being a tax which was leviable under the Constitution by the Government of India alone. The agreement came to an end in 1960 and with it the financial assistance rendered in terms thereof. The agreement broke the continuity of the levy of sales tax on works contracts and there is nothing in Article 277 to resuscitate it.15. | 0[ds]8. The impost of sales tax on works contracts though beyond the competence of the States would be within that of Parliament by virtue of item 97 of List I of Seventh Schedule and Article 248 of the Constitution. It would therefore follow that if there was no other law touching this point, sales tax on works contracts which were being lawfully levied by the Governments of the States of Travancore and Cochin before 25th January, 1950 would continue to be levied and to be applied to the same purposes until provision to the contrary was made by Parliament by Law. The fact that the Sales Tax Acts of the former States of Travancore and Cochin were repealed but identical provisions were re-enacted in the later Acts would not take the case out of Article 277. All that the said article requires is that there should be a continuity in the levy of taxes and so long as the character of the taxes did not change they would be saved by the saidanswer must clearly be in the negative because the essential condition for the validity of the imposition is the continuity of the levy and once there is a break in its operation it ceases to be effective and it cannot matter that no provision to the contrary as envisaged by Article 277 was made by Parliament.It is clear that Article 277 and particularly Article 278 were engrafted in the Constitution with the immediate object of maintaining the financial viability of the new States for such time as the Parliament thought proper. So far as the State of Kerala was concerned the need for financial assistance was met by the agreement between the President of India and the Raj Pramukh of Travancore. That agreement itself shows that there was liberal assistance for the first five years which was to be tapered off in another five years time. It would not be wrong to observe that it was contemplated that after ten years the State of Kerala would be able to find its own feet and do without any special assistance from the Centre. One of the objects of the said agreement was to recoup the State of Kerala for the loss of revenue which that State used to derive from inter alia, the sales tax on works contracts being a tax which was leviable under the Constitution by the Government of India alone. The agreement came to an end in 1960 and with it the financial assistance rendered in terms thereof. The agreement broke the continuity of the levy of sales tax on works contracts and there is nothing in Article 277 to resuscitate it. | 0 | 3,171 | 465 | ### 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:
respect to-(a) the levy and collection of any lax or duty leviable by the Government of India in such State and for the distribution of the proceeds thereof otherwise than in accordance with the provisions of this Chapter,(b) the grant of any financial assistance by the Government of India to such State in consequence of the loss of any revenue which that State used to derive from any tax or duty leviable under this Constitution by the Government of India or from any other sources;(c) the contribution by such State in respect of any payment made by the Government of India under Clause (1) of Article 291, and, when an agreement is so entered into, the provisions of this Chapter shall in relation to such State have effect subject to the terms of such agreement.(2) An agreement entered into under Clause (1) shall continue in force for a period not exceeding ten years from the commencement of this Constitution:Provided that the President may at any time after the expiration of five years from such commencement terminate or modify any such agreement if after consideration of the report of the Finance Commission he thinks it necessary to do so."10. The decision of this Court in The South India Corporation (P) Ltd., (1964) 4 SCR 280 = (AIR 1964 SC 207 ) (supra) elucidates the purpose of Article 278 and the object with which the President of India entered into the agreement with the Raj Pramukh of Travancore. For our present purpose it will suffice to quote a portion of the said judgment. According to that judgment the agreement."incorporated the recommendations made by the Indian States Finances Enquiry Committee with some modifications and the Union of India agreed to recoup the State for the loss caused to it by reason of the federal financial integration in the manner described thereunder. It was not a piecemeal agreement confined to a few items, but a comprehensive one to fill up the entire revenue-gap caused to the State by reason of some of its sources of revenue having been taken away by the Union or otherwise lost to it."Further (see p. 392) (of SCR) = (at 213 of AIR):"The agreement, read with the Report, makes the following position clear: The loss arising to the State on account of the federal financial integration in the State was ascertained and a provision was made for subsidising the State by filling up the said revenue-gap. The agreement ex facie appears to be a comprehensive one. It takes into consideration the entire loss caused to the State by reason of some of its sources of revenue being transferred under the Constitution to the Union. It would be unreasonable to construe the agreement as to exclude from its operation certain taxes which the State was authorised to levy for a temporary period ..................... that saving was subject to an agreement and, as by the agreement effective adjustments were made to meet the loss which the State would have incurred but for the agreement, there was no longer any necessity for the continuance of the saving and it ceased to have any force thereafter between the parties to the agreement."11. The Court also opined that it was not called upon to decide whether the said power revived after the expiry of ten years from the commencement of the Constitution, for all the impugned assessments fell within the said period. The Court observed that there was no force in the contention that because Article 278 was omitted by the Constitution (Seventh Amendment) Act, 1956, the agreement entered into in exercise of a power thereunder automatically came to an end and thereafter the power of the State to levy the tax would come into life again.12. It was enough for the Court in that case to say that the agreement would have its full force unless the Constitution (Seventh Amendment) Act, 1956 in terms avoided it and in the result it held that the impugned assessment orders were not validly made by the sales tax authorities in exercise of the power saved by Article 277 of the Constitution.13. The question directly arises before us as to whether Article 277 would still have effect in regard to the power to levy taxes falling within its scope after the said agreement of 25th February 1950 came to an end. The answer must clearly be in the negative because the essential condition for the validity of the imposition is the continuity of the levy and once there is a break in its operation it ceases to be effective and it cannot matter that no provision to the contrary as envisaged by Article 277 was made by Parliament.14. It is clear that Article 277 and particularly Article 278 were engrafted in the Constitution with the immediate object of maintaining the financial viability of the new States for such time as the Parliament thought proper. So far as the State of Kerala was concerned the need for financial assistance was met by the agreement between the President of India and the Raj Pramukh of Travancore. That agreement itself shows that there was liberal assistance for the first five years which was to be tapered off in another five years time. It would not be wrong to observe that it was contemplated that after ten years the State of Kerala would be able to find its own feet and do without any special assistance from the Centre. One of the objects of the said agreement was to recoup the State of Kerala for the loss of revenue which that State used to derive from inter alia, the sales tax on works contracts being a tax which was leviable under the Constitution by the Government of India alone. The agreement came to an end in 1960 and with it the financial assistance rendered in terms thereof. The agreement broke the continuity of the levy of sales tax on works contracts and there is nothing in Article 277 to resuscitate it.15.
### Response:
0
### Explanation:
8. The impost of sales tax on works contracts though beyond the competence of the States would be within that of Parliament by virtue of item 97 of List I of Seventh Schedule and Article 248 of the Constitution. It would therefore follow that if there was no other law touching this point, sales tax on works contracts which were being lawfully levied by the Governments of the States of Travancore and Cochin before 25th January, 1950 would continue to be levied and to be applied to the same purposes until provision to the contrary was made by Parliament by Law. The fact that the Sales Tax Acts of the former States of Travancore and Cochin were repealed but identical provisions were re-enacted in the later Acts would not take the case out of Article 277. All that the said article requires is that there should be a continuity in the levy of taxes and so long as the character of the taxes did not change they would be saved by the saidanswer must clearly be in the negative because the essential condition for the validity of the imposition is the continuity of the levy and once there is a break in its operation it ceases to be effective and it cannot matter that no provision to the contrary as envisaged by Article 277 was made by Parliament.It is clear that Article 277 and particularly Article 278 were engrafted in the Constitution with the immediate object of maintaining the financial viability of the new States for such time as the Parliament thought proper. So far as the State of Kerala was concerned the need for financial assistance was met by the agreement between the President of India and the Raj Pramukh of Travancore. That agreement itself shows that there was liberal assistance for the first five years which was to be tapered off in another five years time. It would not be wrong to observe that it was contemplated that after ten years the State of Kerala would be able to find its own feet and do without any special assistance from the Centre. One of the objects of the said agreement was to recoup the State of Kerala for the loss of revenue which that State used to derive from inter alia, the sales tax on works contracts being a tax which was leviable under the Constitution by the Government of India alone. The agreement came to an end in 1960 and with it the financial assistance rendered in terms thereof. The agreement broke the continuity of the levy of sales tax on works contracts and there is nothing in Article 277 to resuscitate it.
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QUIPPO CONSTRUCTION EQUIPMENT LIMITED Vs. JANARDAN NIRMAN PVT. LIMITED | as against this, matters from which a party can derogate are those provided under Sections 11(2), 19(1) and (2), 20(1) and (2), 22(1), 24, 25, 26 and 31(3). … … … 14. We have heard the parties at length. We have considered the submissions. Undoubtedly, Section 10 provides that the number of arbitrators shall not be an even number. The question still remains whether Section 10 is a non-derogable provision. In our view the answer to this question would depend on the question as to whether, under the said Act, a party has a right to object to the composition of the Arbitral Tribunal, if such composition is not in accordance with the said Act, and if so, at what stage. It must be remembered that arbitration is a creature of an agreement. There can be no arbitration unless there is an arbitration agreement in writing between the parties. … … … 16. It has been held by a Constitution Bench of this Court, in the case of Konkan Rly. Corpn. Ltd. v. Rani Construction (P) Ltd. (2002) 2 SCC 388 that Section 16 enables the Arbitral Tribunal to rule on its own jurisdiction. It has been held that under Section 16 the Arbitral Tribunal can rule on any objection with respect to existence or validity of the arbitration agreement. It is held that the Arbitral Tribunals authority under Section 16, is not confined to the width of its jurisdiction but goes also to the root of its jurisdiction. Not only this decision is binding on this Court, but we are in respectful agreement with the same. Thus it is no longer open to contend that, under Section 16, a party cannot challenge the composition of the Arbitral Tribunal before the Arbitral Tribunal itself. Such a challenge must be taken, under Section 16(2), not later than the submission of the statement of defence. Section 16(2) makes it clear that such a challenge can be taken even though the party may have participated in the appointment of the arbitrator and/or may have himself appointed the arbitrator. Needless to state a party would be free, if it so chooses, not to raise such a challenge. Thus a conjoint reading of Sections 10 and 16 shows that an objection to the composition of the Arbitral Tribunal is a matter which is derogable. It is derogable because a party is free not to object within the time prescribed in Section 16(2). If a party chooses not to so object there will be a deemed waiver under Section 4. Thus, we are unable to accept the submission that Section 10 is a non-derogable provision. In our view Section 10 has to be read along with Section 16 and is, therefore, a derogable provision. … … … 20. Respondents 1 and 2 not having raised any objection to the composition of the Arbitral Tribunal, as provided in Section 16, they must be deemed to have waived their right to object. Thus, even stipulation in Section 10 that number of Arbitrators shall not be an even number was found to be a derogable provision and since no objections were raised to the composition of the Arbitral Tribunal, as provided in Section 16, the concerned respondents were deemed to have waived their right to object. 21. In Duro Felguera (2017) 9 SCC 729 the submission that for convenience of either side the original contract was split into five different contracts and as such there ought to be a composite reference to arbitration covering all the contracts was not accepted by this Court. It was found by this Court:- 42. … … The case in hand stands entirely on different footing. As discussed earlier, all five different packages as well as the Corporate Guarantee have separate arbitration clauses and they do not depend on the terms and conditions of the Original Package No. 4 TR nor on the MoU, which is intended to have clarity in execution of the work. Incidentally, it was a case of International Commercial Arbitration and in each of those agreements the seat of Arbitration was at Hyderabad. Moreover, the matter had arisen from an arbitration petition preferred under Section 11(6) of the Act. 22. In the present case the arbitration in question is a domestic and an institutional arbitration where CIAA was empowered to and did nominate the Arbitrator. It is not as if there were completely different mechanisms for appointment of Arbitrator in each of the agreements. The only distinction is that according to one of the agreements the venue was to be at Kolkata. The specification of place of arbitration may have special significance in an International Commercial Arbitration, where the place of arbitration may determine which curial law would apply. However, in the present case, the applicable substantive as well as curial law would be the same. 23. It was possible for the respondent to raise submissions that arbitration pertaining to each of the agreements be considered and dealt with separately. It was also possible for him to contend that in respect of the agreement where the venue was agreed to be at Kolkata, the arbitration proceedings be conducted accordingly. Considering the facts that the respondent failed to participate in the proceedings before the Arbitrator and did not raise any submission that the Arbitrator did not have jurisdiction or that he was exceeding the scope of his authority, the respondent must be deemed to have waived all such objections. 24. In the circumstances, the respondent is now precluded from raising any submission or objection as to the venue of arbitration, the conclusion drawn by the Court at Alipore while dismissing Miscellaneous Case No.298 of 2015 was quite correct and did not call for any interference. The High Court, in our view, was in error in setting aside said Order. In any case, the fact that the cause title showed that the present appellant was otherwise amenable to the jurisdiction of the Alipore Court, could not be the decisive or determining criteria. | 1[ds]16. In the circumstances, it is clear that:-(i) Though each of the four agreements provided for arbitration, the award rendered by the Arbitrator was a common award; and(ii) In one of the agreements the venue was stated to be Kolkata and yet the proceedings were conducted at Delhi;However, at no stage, the aforesaid objections were raised by the respondent before the Arbitrator and the respondent let the arbitral proceedings conclude and culminate in an ex-parte award22. In the present case the arbitration in question is a domestic and an institutional arbitration where CIAA was empowered to and did nominate the Arbitrator. It is not as if there were completely different mechanisms for appointment of Arbitrator in each of the agreements. The only distinction is that according to one of the agreements the venue was to be at Kolkata. The specification of place of arbitration may have special significance in an International Commercial Arbitration, where the place of arbitration may determine which curial law would apply. However, in the present case, the applicable substantive as well as curial law would be the same23. It was possible for the respondent to raise submissions that arbitration pertaining to each of the agreements be considered and dealt with separately. It was also possible for him to contend that in respect of the agreement where the venue was agreed to be at Kolkata, the arbitration proceedings be conducted accordingly. Considering the facts that the respondent failed to participate in the proceedings before the Arbitrator and did not raise any submission that the Arbitrator did not have jurisdiction or that he was exceeding the scope of his authority, the respondent must be deemed to have waived all such objections24. In the circumstances, the respondent is now precluded from raising any submission or objection as to the venue of arbitration, the conclusion drawn by the Court at Alipore while dismissing Miscellaneous Case No.298 of 2015 was quite correct and did not call for any interference. The High Court, in our view, was in error in setting aside said Order. In any case, the fact that the cause title showed that the present appellant was otherwise amenable to the jurisdiction of the Alipore Court, could not be the decisive or determining criteria. | 1 | 5,879 | 417 | ### 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:
as against this, matters from which a party can derogate are those provided under Sections 11(2), 19(1) and (2), 20(1) and (2), 22(1), 24, 25, 26 and 31(3). … … … 14. We have heard the parties at length. We have considered the submissions. Undoubtedly, Section 10 provides that the number of arbitrators shall not be an even number. The question still remains whether Section 10 is a non-derogable provision. In our view the answer to this question would depend on the question as to whether, under the said Act, a party has a right to object to the composition of the Arbitral Tribunal, if such composition is not in accordance with the said Act, and if so, at what stage. It must be remembered that arbitration is a creature of an agreement. There can be no arbitration unless there is an arbitration agreement in writing between the parties. … … … 16. It has been held by a Constitution Bench of this Court, in the case of Konkan Rly. Corpn. Ltd. v. Rani Construction (P) Ltd. (2002) 2 SCC 388 that Section 16 enables the Arbitral Tribunal to rule on its own jurisdiction. It has been held that under Section 16 the Arbitral Tribunal can rule on any objection with respect to existence or validity of the arbitration agreement. It is held that the Arbitral Tribunals authority under Section 16, is not confined to the width of its jurisdiction but goes also to the root of its jurisdiction. Not only this decision is binding on this Court, but we are in respectful agreement with the same. Thus it is no longer open to contend that, under Section 16, a party cannot challenge the composition of the Arbitral Tribunal before the Arbitral Tribunal itself. Such a challenge must be taken, under Section 16(2), not later than the submission of the statement of defence. Section 16(2) makes it clear that such a challenge can be taken even though the party may have participated in the appointment of the arbitrator and/or may have himself appointed the arbitrator. Needless to state a party would be free, if it so chooses, not to raise such a challenge. Thus a conjoint reading of Sections 10 and 16 shows that an objection to the composition of the Arbitral Tribunal is a matter which is derogable. It is derogable because a party is free not to object within the time prescribed in Section 16(2). If a party chooses not to so object there will be a deemed waiver under Section 4. Thus, we are unable to accept the submission that Section 10 is a non-derogable provision. In our view Section 10 has to be read along with Section 16 and is, therefore, a derogable provision. … … … 20. Respondents 1 and 2 not having raised any objection to the composition of the Arbitral Tribunal, as provided in Section 16, they must be deemed to have waived their right to object. Thus, even stipulation in Section 10 that number of Arbitrators shall not be an even number was found to be a derogable provision and since no objections were raised to the composition of the Arbitral Tribunal, as provided in Section 16, the concerned respondents were deemed to have waived their right to object. 21. In Duro Felguera (2017) 9 SCC 729 the submission that for convenience of either side the original contract was split into five different contracts and as such there ought to be a composite reference to arbitration covering all the contracts was not accepted by this Court. It was found by this Court:- 42. … … The case in hand stands entirely on different footing. As discussed earlier, all five different packages as well as the Corporate Guarantee have separate arbitration clauses and they do not depend on the terms and conditions of the Original Package No. 4 TR nor on the MoU, which is intended to have clarity in execution of the work. Incidentally, it was a case of International Commercial Arbitration and in each of those agreements the seat of Arbitration was at Hyderabad. Moreover, the matter had arisen from an arbitration petition preferred under Section 11(6) of the Act. 22. In the present case the arbitration in question is a domestic and an institutional arbitration where CIAA was empowered to and did nominate the Arbitrator. It is not as if there were completely different mechanisms for appointment of Arbitrator in each of the agreements. The only distinction is that according to one of the agreements the venue was to be at Kolkata. The specification of place of arbitration may have special significance in an International Commercial Arbitration, where the place of arbitration may determine which curial law would apply. However, in the present case, the applicable substantive as well as curial law would be the same. 23. It was possible for the respondent to raise submissions that arbitration pertaining to each of the agreements be considered and dealt with separately. It was also possible for him to contend that in respect of the agreement where the venue was agreed to be at Kolkata, the arbitration proceedings be conducted accordingly. Considering the facts that the respondent failed to participate in the proceedings before the Arbitrator and did not raise any submission that the Arbitrator did not have jurisdiction or that he was exceeding the scope of his authority, the respondent must be deemed to have waived all such objections. 24. In the circumstances, the respondent is now precluded from raising any submission or objection as to the venue of arbitration, the conclusion drawn by the Court at Alipore while dismissing Miscellaneous Case No.298 of 2015 was quite correct and did not call for any interference. The High Court, in our view, was in error in setting aside said Order. In any case, the fact that the cause title showed that the present appellant was otherwise amenable to the jurisdiction of the Alipore Court, could not be the decisive or determining criteria.
### Response:
1
### Explanation:
16. In the circumstances, it is clear that:-(i) Though each of the four agreements provided for arbitration, the award rendered by the Arbitrator was a common award; and(ii) In one of the agreements the venue was stated to be Kolkata and yet the proceedings were conducted at Delhi;However, at no stage, the aforesaid objections were raised by the respondent before the Arbitrator and the respondent let the arbitral proceedings conclude and culminate in an ex-parte award22. In the present case the arbitration in question is a domestic and an institutional arbitration where CIAA was empowered to and did nominate the Arbitrator. It is not as if there were completely different mechanisms for appointment of Arbitrator in each of the agreements. The only distinction is that according to one of the agreements the venue was to be at Kolkata. The specification of place of arbitration may have special significance in an International Commercial Arbitration, where the place of arbitration may determine which curial law would apply. However, in the present case, the applicable substantive as well as curial law would be the same23. It was possible for the respondent to raise submissions that arbitration pertaining to each of the agreements be considered and dealt with separately. It was also possible for him to contend that in respect of the agreement where the venue was agreed to be at Kolkata, the arbitration proceedings be conducted accordingly. Considering the facts that the respondent failed to participate in the proceedings before the Arbitrator and did not raise any submission that the Arbitrator did not have jurisdiction or that he was exceeding the scope of his authority, the respondent must be deemed to have waived all such objections24. In the circumstances, the respondent is now precluded from raising any submission or objection as to the venue of arbitration, the conclusion drawn by the Court at Alipore while dismissing Miscellaneous Case No.298 of 2015 was quite correct and did not call for any interference. The High Court, in our view, was in error in setting aside said Order. In any case, the fact that the cause title showed that the present appellant was otherwise amenable to the jurisdiction of the Alipore Court, could not be the decisive or determining criteria.
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